Defense Federal Acquisition Regulation Supplement; Use of Firm-Fixed-Price Contracts for Foreign Military Sales (DFARS Case 2021-D019), 48339-48340 [2021-18342]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 86, Number 165 (Monday, August 30, 2021)]
[Rules and Regulations]
[Pages 48339-48340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18342]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 225

[Docket DARS-2021-0016]
RIN 0750-AL37


Defense Federal Acquisition Regulation Supplement; Use of Firm-
Fixed-Price Contracts for Foreign Military Sales (DFARS Case 2021-D019)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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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 2021 that rescinds 
the requirement for the use of firm-fixed-price contract types for 
foreign military sales unless an exception or waiver applies.

[[Page 48340]]


DATES: Effective August 30, 2021.

FOR FURTHER INFORMATION CONTACT: Kimberly Bass, telephone 703-372-6174.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is issuing a final rule amending the DFARS to implement section 
888 of the National Defense Authorization Act (NDAA) for Fiscal Year 
(FY) 2021 (Pub. L. 116-283), which repeals section 830 of the NDAA for 
FY 2017 (Pub. L. 114-328). DoD published a proposed rule in the Federal 
Register at 84 FR 12179 on April 1, 2019, to implement sections 829 and 
830 of the NDAA for FY 2017 (Pub. L. 114-328). On May 29, 2019, a 
document was published in the Federal Register at 84 FR 24734 to extend 
the comment period for 14 days until June 14, 2019. The final rule 
implementing section 830 was published in the Federal Register at 84 FR 
65304, on November 27, 2019.
    Section 830 was implemented at DFARS 225.7301-1, Requirement to Use 
Firm-Fixed-Price Contracts, and required the use of firm-fixed-price 
contracts for foreign military sales (FMS), unless one of the 
exceptions or the waiver provided in the statute applied.
    Section 807 of the NDAA for FY 2020 (Pub. L. 116-92) delayed the 
effective date of regulations implementing section 830 until December 
31, 2020.
    Section 888 of the NDAA for FY 2021 repealed section 830 of the 
NDAA for FY 2017 and the requirement for contracting officers to use 
firm-fixed-price contracts for FMS unless an exception or a waiver 
applies. Accordingly, DFARS section 225.7301-1 is being removed and 
reserved.

II. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the Federal 
Acquisition Regulation (FAR) is the Office of Federal Procurement 
Policy statute (codified at title 41 of the United States Code). 
Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, 
regulation, procedure, or form (including an amendment or modification 
thereof) must be published for public comment if it relates to the 
expenditure of appropriated funds and has either a significant effect 
beyond the internal operating procedures of the agency issuing the 
policy, regulation, procedure, or form, or has a significant cost or 
administrative impact on contractors or offerors. This final rule is 
not required to be published for public comment, because DoD is not 
issuing a new regulation; rather, this rule is updating internal 
operating procedures that will no longer require contracting officers 
to use firm-fixed-price contracts for FMS as directed at DFARS 
225.7301-1(a). In addition, the waiver at DFARS 225.7301-1(b) will no 
longer be required.

III. 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 create any new DFARS solicitation provisions or 
contract clauses. It does not impact any existing solicitation 
provisions or contract clauses or their applicability to contracts 
valued at or below the simplified acquisition threshold or for 
commercial items, including commercially available off-the-shelf items.

IV. 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.

V. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD will submit a copy of 
the final rule with the form, Submission of Federal Rules under the 
Congressional Review Act, to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule under the Congressional Review Act cannot take effect until 
60 days after it is published in the Federal Register. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
a major rule as defined by 5 U.S.C. 804.

VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule does not constitute a significant DFARS revision within 
the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require 
publication for public comment.

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 Part 225

    Government procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 225 is amended as follows:

PART 225--FOREIGN ACQUISITION

0
1. The authority citation for 48 CFR part 225 continues to read as 
follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.


225.7301-1  [Removed and Reserved]

0
2. Remove and reserve section 225.7301-1.

[FR Doc. 2021-18342 Filed 8-27-21; 8:45 am]
BILLING CODE 5001-06-P