Defense Federal Acquisition Regulation Supplement: Contract Authority for Development and Demonstration of Prototypes (DFARS Case 2021-D025), 59951-59953 [2021-23459]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 86, Number 207 (Friday, October 29, 2021)]
[Proposed Rules]
[Pages 59951-59953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23459]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 217, 234, and 235

[Docket DARS-2021-0020]
RIN 0750-AL49


Defense Federal Acquisition Regulation Supplement: Contract 
Authority for Development and Demonstration of Prototypes (DFARS Case 
2021-D025)

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

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement a section of the National 
Defense Authorization Act for Fiscal Year 2021 that amends the types of 
line items and contract options that may be included, subject to 
limitations, in certain contracts initially awarded pursuant to 
competitive solicitations.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before December 28, 2021, to be 
considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2021-D025, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 
Search for ``DFARS Case 2021-D025'' in the search box and select 
``Search.'' Select ``Comment'' and follow the instructions to submit a 
comment. Please include your name, company name (if any), and ``DFARS 
Case 2021-D025'' on any attached document.
    [cir] Email: [email protected]. Include DFARS Case 2021-D025 in 
the subject line of the message.
    Comments received generally will be posted without change to 
https://www.regulations.gov, including any personal information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission 
to verify posting.

FOR FURTHER INFORMATION CONTACT: Carrie Moore, telephone 571-372-6093.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to revise the DFARS to implement paragraph (a)(2) 
of section 831 of the National Defense Authorization Act (NDAA) for 
Fiscal Year (FY) 2021 (Pub. L. 116-283). Section 831(a)(2) amends 10 
U.S.C. 2302e(a) to revise the type of contract line items or options 
that may be included, without additional competition, in contracts 
initially awarded from the competitive selection of a proposal 
resulting from a broad agency announcement (BAA).
    When awarding a contract that results from the competitive 
selection of a proposal received in response to a BAA, 10 U.S.C. 
2302e(a) permits the inclusion of certain contract line items or 
contract options that would not otherwise be covered under the general 
solicitation authority of a BAA. These contract line items or contract 
options: (1) Must be for certain services related to the technology 
developed under the contract, or the delivery of initial or additional 
items created as a result of the work performed under the contract; and 
(2) are subject to the quantity, term, and dollar value limitations 
expressed at 10 U.S.C. 2302e(b).
    10 U.S.C. 2302e is intended to help streamline the process for 
moving technologies from science and technology into production and to 
enable the transition of technology for faster fielding by allowing the 
performance of certain work to continue while a follow-on or production 
contract is awarded.

II. Discussion and Analysis

    Section 831(a)(2) amends 10 U.S.C. 2302e to replace ``provision of 
advanced component development, prototype'' with ``development and 
demonstration.'' As a result, when awarding a contract that results 
from the competitive selection of a proposal received in response to a 
BAA, contracting officers may now include a contract line item or 
contract option for the ``development and demonstration'' of technology 
developed under the contract. This revision provides a broader scope of 
effort and funding for which these contract line items and contract 
options can be awarded.
    This proposed rule reflects the authority provided by section 
831(a)(2) and clarifies for contracting officers that a contract line 
item or contract option included in an award pursuant to 10 U.S.C. 
2302e is not limited to the funding types used for the general 
solicitation authority of a BAA, which are listed at DFARS 235.016.

[[Page 59952]]

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

    This rule does not create any new solicitation provisions or 
contract clauses. It does not impact any existing solicitation 
provisions or contract clauses.

IV. Expected Impact of the Rule

    The proposed rule impacts DoD acquisition planning decisions for 
contract awards that will result from the competitive selection of a 
proposal in response to a BAA for which DoD intends to include a 
contract line item or option for the development and demonstration of 
technology developed under the contract. The proposed rule broadens the 
scope of effort for which these contract line items and contract 
options can be awarded and the type of funding that may be used to fund 
these line items or options. This proposed rule also helps streamline 
the process for moving technologies developed under such contracts from 
science and technology into production.

V. 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.

VI. 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 interim or 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. This rule is not 
anticipated to be a major rule under 5 U.S.C. 804.

VII. Regulatory Flexibility Act

    DoD does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the rule primarily affects the acquisition planning decisions 
made internally by DoD. However, an initial regulatory flexibility 
analysis has been performed and is summarized as follows:
    The reason for this proposed rule is to implement paragraph (a)(2) 
of section 831 of the National Defense Authorization Act (NDAA) for 
Fiscal Year (FY) 2021 (Pub. L. 116-283).
    The objective of this rule is to revise the type of contract line 
items or options that may be included, without additional competition, 
in contracts initially awarded from the competitive selection of a 
proposal resulting from a broad agency announcement (BAA). When 
awarding such a contract, contracting officers may now include a 
contract line item or contract option for the ``development and 
demonstration'' of technology developed under the contract. This 
revision provides a broader scope of effort and funding for which these 
contract line items and contract options can be awarded, which in turn 
helps streamline the process for moving technologies developed under 
such contracts from science and technology into production. The legal 
basis for the rule is paragraph (a)(2) of section 831 of the NDAA for 
FY 2021.
    Based on data from the Federal Procurement Data System for FY 2018 
through FY 2020, on average, DoD annually awards 300 contracts to 200 
unique small entities using the competitive selection of proposals 
resulting from a BAA.
    This rule does not impose any new reporting, recordkeeping, or 
other compliance requirements. This rule does not duplicate, overlap, 
or conflict with any other Federal rules. There are no significant 
alternatives to this rule that would accomplish the objective of the 
statute.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2021-D025), in 
correspondence.

VIII. 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 217, 234, and 235

    Government procurement.

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

    Therefore, 48 CFR parts 217, 234, and 235 are proposed to be 
amended as follows:

0
1. The authority citation for 48 CFR parts 217, 234, and 235 continues 
to read as follows:

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

PART 217--SPECIAL CONTRACTING METHODS

0
2. Amend section 217.202 by revising paragraph (2) to read as follows:


217.202   Use of options.

* * * * *
    (2) For a contract that is initially awarded from the competitive 
selection of a proposal resulting from a broad agency announcement, see 
234.005-1 for the use of contract options for the development and 
demonstration or initial production of technology developed under the 
contract or the delivery of initial or additional items.

PART 234--MAJOR SYSTEM ACQUISITION

0
3. Amend section 234.005-1 by revising the introductory text and 
paragraph (1) to read as follows:


234.005-1   Competition.

    A contract that is initially awarded from the competitive selection 
of a proposal resulting from a broad agency announcement (see 235.016) 
may contain a contract line item or contract option using funds not 
limited to those identified in 235.016 for the development and 
demonstration or initial production of technology developed under the 
contract, or the delivery of initial or additional items if the item or 
a prototype thereof is created as the result of work performed under 
the contract, only when it adheres to the following limitations:
    (1) The contract line item or contract option shall be limited to 
the delivery of the minimal amount of initial or additional items or 
prototypes that will allow for timely competitive solicitation

[[Page 59953]]

and award of a follow-on development or production contract for those 
items.
* * * * *

PART 235--RESEARCH AND DEVELOPMENT CONTRACTING

0
4. Amend section 235.006-71 by revising paragraph (b) to read as 
follows:


235.006-71  Competition.

* * * * *
    (b) For a contract that is initially awarded from the competitive 
selection of a proposal resulting from a broad agency announcement, see 
234.005-1 for the use of contract line items or contract options for 
the development and demonstration or initial production of technology 
developed under the contract or the delivery of initial or additional 
items.

[FR Doc. 2021-23459 Filed 10-28-21; 8:45 am]
BILLING CODE 5001-06-P