Defense Federal Acquisition Regulation Supplement: Reliability and Maintainability in Weapon System Design (DFARS Case 2019-D003), 58332-58334 [2019-23812]
Download as PDF
<![CDATA[
58332
Federal Register / Vol. 84, No. 211 / Thursday, October 31, 2019 / Rules and Regulations
1707(a)(1) (see section IV. of this
preamble), the analytical requirements
of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) are not applicable.
Accordingly, no regulatory flexibility
analysis is required, and none has been
prepared.
VII. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 204,
209, 212, and 252
FOR FURTHER INFORMATION CONTACT:
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
212.301
[Amended]
4. Amend section 212.301 by—
a. Removing paragraph (f)(ii)(E);
b. Redesignating paragraphs (f)(ii)(F)
and (G) as paragraphs (f)(ii)(E) and (F),
respectively;
■ c. In the newly redesignated (f)(ii)(E)
removing ‘‘204.7403(b)’’ and adding
‘‘204.7403(a)’’ in its place; and
■ d. In the newly redesignated (f)(ii)(F)
removing ‘‘204.7403(c)’’ and adding
‘‘204.7403(b)’’ in its place.
■
■
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
Government procurement.
252.204–7013
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
[Removed and Reserved]
5. Remove and reserve section
252.204–7013.
■
Therefore, 48 CFR parts 204, 209, 212,
and 252 are amended as follows:
1. The authority citation for 48 CFR
parts 204, 209, 212, and 252 continues
to read as follows:
■
252.204–7014
[Amended]
6. Amend section 252.204–7014, in
the introductory text, by removing
‘‘204.7403(b)’’ and adding ‘‘204.7403(a)’’
in its place.
■
252.204–7015
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
[Amended]
PART 204—ADMINISTRATIVE AND
INFORMATION MATTERS
7. Amend section 252.204–7015, in
the introductory text, by removing
‘‘204.7403(c)’’ and adding ‘‘204.7403(b)’’
in its place.
204.7403
[FR Doc. 2019–23802 Filed 10–30–19; 8:45 am]
■
[Amended]
BILLING CODE 5001–06–P
2. Amend section 204.7403 by—
■ a. In the section heading, removing
‘‘Solicitation provision and contract’’
and adding ‘‘Contract’’ in its place;
■ b. Removing paragraph (a); and
■ c. Redesignating paragraphs (b) and
(c) as paragraphs (a) and (b),
respectively.
■
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 207, 215, 216, and 234
[Docket DARS–2019–0026]
RIN 0750–AK38
PART 209—CONTRACTOR
QUALIFICATIONS
■
Defense Federal Acquisition
Regulation Supplement: Reliability and
Maintainability in Weapon System
Design (DFARS Case 2019–D003)
209.505–4 Obtaining access to proprietary
information.
AGENCY:
khammond on DSKJM1Z7X2PROD with RULES
3. Revise section 209.505–4(b)(ii) to
read as follows:
(b) * * *
(ii) For litigation support contractors
accessing litigation information,
including that originating from third
parties, use and non-disclosure
requirements are addressed through the
use of the clause at 252.204–7014, as
prescribed at 204.7403(a). Pursuant to
the clause, litigation support contractors
are not required to enter into nondisclosure agreements directly with any
third party asserting restrictions on any
litigation information.
VerDate Sep<11>2014
16:08 Oct 30, 2019
Jkt 250001
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
DOD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a section of the
National Defense Authorization Act for
Fiscal Year 2018 that requires the use of
reliability and maintainability
sustainment factors in weapon system
design.
SUMMARY:
DATES:
PO 00000
Effective October 31, 2019.
Frm 00030
Fmt 4700
Sfmt 4700
Ms.
Kimberly Bass, telephone 571–372–
6174.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the
Federal Register at 84 FR 125 on June
28, 2019, to implement section 834 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2018.
Section 834 of the NDAA for FY 2018
amends 10 U.S.C. to add section 2443,
sustainment factors in weapon system
design which requires program
managers or comparable requiring
activity officials exercising program
management responsibilities to ensure
that reliability and maintainability are
included in the performance attributes
of the key performance parameters on
sustainment during the development of
capabilities requirements for major
weapon systems design and contracts
for the—
• Engineering and manufacturing
development of a weapon system,
including embedded software; or
• Production of a weapon system,
including embedded software.
As a matter of policy, the Under
Secretary of Defense for Acquisition and
Sustainment directed the application of
the requirements of 10 U.S.C. 2443 to
the technical maturation and risk
reduction phase. No public comments
were received on the proposed rule, and
no changes are made in the final rule.
II. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule does not propose to create
any new provisions or clauses or impact
any existing provisions or clauses.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
E:\FR\FM\31OCR1.SGM
31OCR1
Federal Register / Vol. 84, No. 211 / Thursday, October 31, 2019 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES
IV. Executive Order 13771
This final rule is not subject to E.O.
13771, because this rule is not a
significant regulatory action under E.O.
12866.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis
(FRFA) has been prepared consistent
with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is
summarized as follows:
This final rule is necessary to
implement section 834 of the National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2018. Section 834 of
the NDAA for FY 2018 amends Title 10,
United States Code, to add section 2443,
Sustainment factors in weapon system
design. Section 2443 requires program
managers or comparable requiring
activity officials, exercising program
management responsibilities, to ensure
that reliability and maintainability are
included in the performance attributes
of the key performance parameters on
sustainment during the development of
capabilities requirements for major
weapon systems design and contracts
for the technical maturation and risk
reduction and engineering and
manufacturing development of a
weapon system, including embedded
software; or production of a weapon
system. The objective of this final rule
is to implement section 834 of the
NDAA for FY 2018.
There were no issues raised by the
public in response to the initial
regulatory flexibility analysis provided
in the proposed rule.
The final rule will apply to all small
entities that have been or will be
awarded contracts for the development
of major weapon systems. Small
business statistics were obtained from
the Federal Procurement Data System
for FY 2018 data identifying the DoD
research and development engineering
development awards issued, including
task and delivery orders under singleaward indefinite delivery indefinite
quantity contracts and Basic Ordering
Agreements as of February 26, 2019. Of
the 78 contract awards, 15 awards or
approximately 19 percent were made to
unique small business entities.
This rule does not include any new
reporting, recordkeeping, or other
compliance requirements for small
businesses.
There are no known significant
alternative approaches to the proposed
rule that would meet the proposed
objectives of the statute.
VI. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
VerDate Sep<11>2014
16:08 Oct 30, 2019
Jkt 250001
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 207,
215, 216, and 234
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR parts 207, 215, 216,
and 234 are amended as follows:
■ 1. The authority citation for 48 CFR
parts 207, 215, 216, and 234 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 207—ACQUISITION PLANNING
2. Amend section 207.106 by—
a. In paragraph (S–70)(1), removing
‘‘Section 802(a)’’ and adding ‘‘section
802(a)’’ in its place;
■ b. Redesignating paragraphs (S–
70)(2)(ii) through (iv) as paragraphs (iii)
through (v), respectively;
■ c. Adding a new paragraph (S–
70)(2)(ii); and
■ d. Adding paragraph (S–72)(5).
The additions read as follows:
■
■
207.106 Additional requirements for major
systems.
*
*
*
*
*
(S–70) * * *
(2) * * *
(ii) In accordance with 10 U.S.C.
2443, to emphasize reliability and
maintainability in weapon system
design, ensure that reliability and
maintainability are included in the
performance attributes of the key
performance parameters on sustainment
during the development of capabilities
requirements. For additional guidance
see PGI 207.105(b)(14)(ii)(2);
*
*
*
*
*
(S–72) * * *
(5) In accordance with 10 U.S.C. 2443,
acquisition plans for engineering
manufacturing and development and
production of major systems as defined
in 10 U.S.C. 2302 and 2302d and for
major defense acquisition programs as
defined in 202.101, shall include
performance measures that are
developed using best practices for
responding to the positive or negative
performance of a contractor for the
engineering and manufacturing
development or production of a weapon
system, including embedded software.
At a minimum the contracting officer
shall—
(i) Encourage the use of incentive fees
and penalties as appropriate; and
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
58333
(ii) Allow the program manager or
comparable requiring activity official
exercising program management
responsibilities, to base determinations
of a contractor’s performance on
reliability and maintainability data
collected during the program. Such data
collection and associated evaluation
metrics shall be described in detail in
the contract; and to the maximum extent
practicable, the data shall be shared
with appropriate contractor and
Government organizations.
*
*
*
*
*
PART 215—CONTRACTING BY
NEGOTIATION
3. Amend section 215.304 by adding
paragraph (c)(vi) to read as follows:
■
215.304 Evaluation factors and significant
subfactors.
(c) * * *
(vi) Ensure source selections
emphasize sustainment factors and
objective reliability and maintainability
evaluation criteria in competitive
contracts for the—
(A) Technical maturation and risk
reduction phase of weapon system
design (see guidance at PGI
207.105(b)(14)(ii)(2));
(B) Engineering and manufacturing
development phase of a weapon system,
including embedded software (10 U.S.C.
2443); or
(C) Production and deployment phase
of a weapon system, including
embedded software (10 U.S.C. 2443).
PART 216—TYPES OF CONTRACTS
4. Amend section 216.402–2 by—
a. Designating the text as paragraph
(1); and
■ b. Adding paragraph (2).
The addition reads as follows:
■
■
216.402–2 Technical performance
incentives.
*
*
*
*
*
(2) Contracting officers shall ensure
requirements about the payment of
incentive fees or the imposition of
penalties are included in the solicitation
for a contract for the engineering and
manufacturing development or
production of a weapon system,
including embedded software, if the
program manager or comparable
requiring activity official exercising
program manager responsibilities
includes—
(i) Provisions for the payment of
incentive fees to the contractor, based
on achievement of design specification
requirements for reliability and
maintainability of weapons systems
under the contract; or
E:\FR\FM\31OCR1.SGM
31OCR1
58334
Federal Register / Vol. 84, No. 211 / Thursday, October 31, 2019 / Rules and Regulations
(ii) The imposition of penalties to be
paid by the contractor to the
Government for failure to achieve such
design specification requirements (10
U.S.C. 2443).
PART 234—MAJOR SYSTEM
ACQUISITION
5. Amend section 234.004 by adding
paragraph (3) to read as follows:
■
234.004
Acquisition strategy.
*
*
*
*
*
(3) The contracting officer shall
include in solicitations for contracts for
the technical maturation and risk
reduction phase, engineering and
manufacturing development phase or
production phase of a weapon system,
including embedded software—
(i) Clearly defined measurable criteria
for engineering activities and design
specifications for reliability and
maintainability provided by the
program manager, or the comparable
requiring activity official performing
program management responsibilities;
or
(ii) Ensure a copy of the justification,
executed by the program manager or the
comparable requiring activity official
performing program management
responsibilities for the decision that
engineering activities and design
specifications for reliability and
maintainability should not be a
requirement, is included in the contract
file (10 U.S.C. 2443).
I. Background
DoD published a proposed rule in the
Federal Register at 84 FR 12187 on
April 1, 2019, to implement regulatory
changes made by the Small Business
Administration (SBA) in its final rule
published in the Federal Register at 81
FR 34243 on May 31, 2016. SBA’s final
rule implemented section 1651 of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2013 (Pub.
L. 112–239, 15 U.S.C. 657s). Section
1651 revised and standardized the
limitations on subcontracting and the
nonmanufacturer rule that apply to
small business concerns, including 8(a)
Program participants, under
procurements conducted pursuant to
Federal Acquisition Regulation (FAR)
part 19, Small Business Programs. Two
respondents submitted public
comments in response to the proposed
rule.
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule.
[FR Doc. 2019–23812 Filed 10–30–19; 8:45 am]
A. Summary of Significant Changes
BILLING CODE 5001–06–P
There are no significant changes made
to the final rule from the proposed rule.
One minor edit is made to the clause in
paragraph (a)(3) to change ‘‘by the SBA’’
to ‘‘by SBA’’.
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
B. Analysis of Public Comments
48 CFR Parts 219 and 252
1. Support for the Rule
[Docket DARS–2019–0015]
Comment: Both respondents
expressed support for the proposed rule.
Response: DoD acknowledges the
respondents’ support.
RIN 0750–AK39
Defense Federal Acquisition
Regulation Supplement:
Nonmanufacturer Rule for 8(a)
Participants (DFARS Case 2019–D004)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
khammond on DSKJM1Z7X2PROD with RULES
to revise and standardize the limitations
on subcontracting and the
nonmanufacturer rule, which apply to
small business concerns, including
participants in the 8(a) Program.
DATES: Effective October 31, 2019.
FOR FURTHER INFORMATION CONTACT: Ms.
Jennifer D. Johnson, telephone 571–
372–6100.
SUPPLEMENTARY INFORMATION:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a Small Business
Administration rule that implemented a
section of the National Defense
Authorization Act for Fiscal Year 2013
SUMMARY:
VerDate Sep<11>2014
16:08 Oct 30, 2019
Jkt 250001
2. Scope of the Rule
Comment: The respondents
recommended expanding the rule to
include all small businesses instead of
limiting the rule to 8(a) participants.
One respondent noted that application
of the nonmanufacturer rule to all small
business set-asides would require
contracting officers to make a good faith
effort to locate small business
manufacturers before requesting a
waiver from SBA. The respondent
further noted that, without the
nonmanufacturer rule and the waiver
process, small business
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
nonmanufacturers would serve as a
pass-through for large global and foreign
manufacturers.
Response: The scope of this final
DFARS rule is limited to the 8(a)
Program and cannot be expanded to all
small business set-asides. Application of
the nonmanufacturer rule to all small
business set-asides is addressed in the
FAR and will be updated in the final
rule for FAR case 2016–011, Revision of
Limitations on Subcontracting. DoD
contracting officers must follow the FAR
with regard to application of the
nonmanufacturer rule to small business
programs other than the 8(a) Program. In
competitive procurements under the
8(a) Program, DoD contracting officers
must use the clause at DFARS 252.219–
7010, Notification of Competition
Limited to Eligible 8(a) Participants—
Partnership Agreement, which takes
into account the Partnership Agreement
between DoD and SBA.
III. Expected Impact of the Rule
Prior to publication of this final rule,
the clause at DFARS 252.219–7010
required 8(a) participants that offer end
items they did not manufacture or
produce (i.e., nonmanufacturers) to offer
end items manufactured or produced by
small business concerns in the United
States or its outlying areas. This
requirement is known as the
‘‘nonmanufacturer rule.’’ DFARS
252.219–7010 provided an exemption
from the nonmanufacturer rule for
contracts valued at or below $25,000
and awarded under simplified
acquisition procedures. For these
contracts, an 8(a) participant could offer
end items manufactured or produced by
any domestic firm.
SBA’s final rule applied the
nonmanufacturer rule to 8(a) contracts
at any dollar value. There was no
exemption for contracts valued at or
below $25,000 and awarded under
simplified acquisition procedures.
Therefore, this rule removes that
exemption from DFARS 252.219–7010.
This change means the
nonmanufacturer rule will apply to 8(a)
contracts at any dollar value, and 8(a)
participants that are nonmanufacturers
will be required to offer end items
manufactured, processed, or produced
by small business concerns in the
United States or its outlying areas.
To estimate the number of 8(a)
participants that may be impacted by
this change, DoD obtained data from the
Federal Procurement Data System on
DoD contracts, for products, awarded to
8(a) participants under the 8(a) Program.
Contracts for services, including
construction, were excluded because the
nonmanufacturer rule only applies to
E:\FR\FM\31OCR1.SGM
31OCR1
]]>Agencies
[Federal Register Volume 84, Number 211 (Thursday, October 31, 2019)]
[Rules and Regulations]
[Pages 58332-58334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23812]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 207, 215, 216, and 234
[Docket DARS-2019-0026]
RIN 0750-AK38
Defense Federal Acquisition Regulation Supplement: Reliability
and Maintainability in Weapon System Design (DFARS Case 2019-D003)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DOD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement a section of the
National Defense Authorization Act for Fiscal Year 2018 that requires
the use of reliability and maintainability sustainment factors in
weapon system design.
DATES: Effective October 31, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Bass, telephone 571-372-
6174.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 84 FR 125
on June 28, 2019, to implement section 834 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2018. Section 834 of the
NDAA for FY 2018 amends 10 U.S.C. to add section 2443, sustainment
factors in weapon system design which requires program managers or
comparable requiring activity officials exercising program management
responsibilities to ensure that reliability and maintainability are
included in the performance attributes of the key performance
parameters on sustainment during the development of capabilities
requirements for major weapon systems design and contracts for the--
Engineering and manufacturing development of a weapon
system, including embedded software; or
Production of a weapon system, including embedded
software.
As a matter of policy, the Under Secretary of Defense for
Acquisition and Sustainment directed the application of the
requirements of 10 U.S.C. 2443 to the technical maturation and risk
reduction phase. No public comments were received on the proposed rule,
and no changes are made in the final rule.
II. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule does not propose to create any new provisions or clauses
or impact any existing provisions or clauses.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
[[Page 58333]]
IV. Executive Order 13771
This final rule is not subject to E.O. 13771, because this rule is
not a significant regulatory action under E.O. 12866.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis (FRFA) has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
The FRFA is summarized as follows:
This final rule is necessary to implement section 834 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018.
Section 834 of the NDAA for FY 2018 amends Title 10, United States
Code, to add section 2443, Sustainment factors in weapon system design.
Section 2443 requires program managers or comparable requiring activity
officials, exercising program management responsibilities, to ensure
that reliability and maintainability are included in the performance
attributes of the key performance parameters on sustainment during the
development of capabilities requirements for major weapon systems
design and contracts for the technical maturation and risk reduction
and engineering and manufacturing development of a weapon system,
including embedded software; or production of a weapon system. The
objective of this final rule is to implement section 834 of the NDAA
for FY 2018.
There were no issues raised by the public in response to the
initial regulatory flexibility analysis provided in the proposed rule.
The final rule will apply to all small entities that have been or
will be awarded contracts for the development of major weapon systems.
Small business statistics were obtained from the Federal Procurement
Data System for FY 2018 data identifying the DoD research and
development engineering development awards issued, including task and
delivery orders under single-award indefinite delivery indefinite
quantity contracts and Basic Ordering Agreements as of February 26,
2019. Of the 78 contract awards, 15 awards or approximately 19 percent
were made to unique small business entities.
This rule does not include any new reporting, recordkeeping, or
other compliance requirements for small businesses.
There are no known significant alternative approaches to the
proposed rule that would meet the proposed objectives of the statute.
VI. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 207, 215, 216, and 234
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 207, 215, 216, and 234 are amended as
follows:
0
1. The authority citation for 48 CFR parts 207, 215, 216, and 234
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 207--ACQUISITION PLANNING
0
2. Amend section 207.106 by--
0
a. In paragraph (S-70)(1), removing ``Section 802(a)'' and adding
``section 802(a)'' in its place;
0
b. Redesignating paragraphs (S-70)(2)(ii) through (iv) as paragraphs
(iii) through (v), respectively;
0
c. Adding a new paragraph (S-70)(2)(ii); and
0
d. Adding paragraph (S-72)(5).
The additions read as follows:
207.106 Additional requirements for major systems.
* * * * *
(S-70) * * *
(2) * * *
(ii) In accordance with 10 U.S.C. 2443, to emphasize reliability
and maintainability in weapon system design, ensure that reliability
and maintainability are included in the performance attributes of the
key performance parameters on sustainment during the development of
capabilities requirements. For additional guidance see PGI
207.105(b)(14)(ii)(2);
* * * * *
(S-72) * * *
(5) In accordance with 10 U.S.C. 2443, acquisition plans for
engineering manufacturing and development and production of major
systems as defined in 10 U.S.C. 2302 and 2302d and for major defense
acquisition programs as defined in 202.101, shall include performance
measures that are developed using best practices for responding to the
positive or negative performance of a contractor for the engineering
and manufacturing development or production of a weapon system,
including embedded software. At a minimum the contracting officer
shall--
(i) Encourage the use of incentive fees and penalties as
appropriate; and
(ii) Allow the program manager or comparable requiring activity
official exercising program management responsibilities, to base
determinations of a contractor's performance on reliability and
maintainability data collected during the program. Such data collection
and associated evaluation metrics shall be described in detail in the
contract; and to the maximum extent practicable, the data shall be
shared with appropriate contractor and Government organizations.
* * * * *
PART 215--CONTRACTING BY NEGOTIATION
0
3. Amend section 215.304 by adding paragraph (c)(vi) to read as
follows:
215.304 Evaluation factors and significant subfactors.
(c) * * *
(vi) Ensure source selections emphasize sustainment factors and
objective reliability and maintainability evaluation criteria in
competitive contracts for the--
(A) Technical maturation and risk reduction phase of weapon system
design (see guidance at PGI 207.105(b)(14)(ii)(2));
(B) Engineering and manufacturing development phase of a weapon
system, including embedded software (10 U.S.C. 2443); or
(C) Production and deployment phase of a weapon system, including
embedded software (10 U.S.C. 2443).
PART 216--TYPES OF CONTRACTS
0
4. Amend section 216.402-2 by--
0
a. Designating the text as paragraph (1); and
0
b. Adding paragraph (2).
The addition reads as follows:
216.402-2 Technical performance incentives.
* * * * *
(2) Contracting officers shall ensure requirements about the
payment of incentive fees or the imposition of penalties are included
in the solicitation for a contract for the engineering and
manufacturing development or production of a weapon system, including
embedded software, if the program manager or comparable requiring
activity official exercising program manager responsibilities
includes--
(i) Provisions for the payment of incentive fees to the contractor,
based on achievement of design specification requirements for
reliability and maintainability of weapons systems under the contract;
or
[[Page 58334]]
(ii) The imposition of penalties to be paid by the contractor to
the Government for failure to achieve such design specification
requirements (10 U.S.C. 2443).
PART 234--MAJOR SYSTEM ACQUISITION
0
5. Amend section 234.004 by adding paragraph (3) to read as follows:
234.004 Acquisition strategy.
* * * * *
(3) The contracting officer shall include in solicitations for
contracts for the technical maturation and risk reduction phase,
engineering and manufacturing development phase or production phase of
a weapon system, including embedded software--
(i) Clearly defined measurable criteria for engineering activities
and design specifications for reliability and maintainability provided
by the program manager, or the comparable requiring activity official
performing program management responsibilities; or
(ii) Ensure a copy of the justification, executed by the program
manager or the comparable requiring activity official performing
program management responsibilities for the decision that engineering
activities and design specifications for reliability and
maintainability should not be a requirement, is included in the
contract file (10 U.S.C. 2443).
[FR Doc. 2019-23812 Filed 10-30-19; 8:45 am]
BILLING CODE 5001-06-P
