Defense Federal Acquisition Regulation Supplement: Repeal of Preference for Fixed-Price Contracts (DFARS Case 2022-D007), 65512-65513 [2022-23283]
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Federal Register / Vol. 87, No. 208 / Friday, October 28, 2022 / Rules and Regulations
waste, fraud, or abuse related to the
performance of a DoD contract to a
designated investigative or law
enforcement representative within DoD
authorized to receive such information.
3. Add sections 203.909 and 203.909–
3 to read as follows:
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 216 and 235
■
203.909 Prohibition on providing funds to
an entity that requires certain internal
confidentiality agreements or statements.
203.909–3 Solicitation provision and
contract clause.
Use the provision at FAR 52.203–18,
Prohibition on Contracting with Entities
That Require Certain Internal
Confidentiality Agreements or
Statements—Representation, and the
clause at FAR 52.203–19, Prohibition on
Requiring Certain Internal
Confidentiality Agreements or
Statements, prescribed at FAR 3.909–3
to implement section 883 of the
National Defense Authorization Act for
Fiscal Year 2021.
4. Revise section 203.970 to read as
follows:
■
203.970
Contract clause.
Use the clause at 252.203–7002,
Requirement to Inform Employees of
Whistleblower Rights, in all
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
5. Amend section 212.301—
■ a. In paragraph (f)(i), by redesignating
paragraphs (f)(i)(C) and (D) as
paragraphs (f)(i)(D) and (E); and
■ b. By adding a new paragraph (f)(i)(C).
The addition reads as follows:
■
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
lotter on DSK11XQN23PROD with RULES4
*
*
*
*
*
(f) * * *
(i) * * *
(C) Use the clause at 252.203–7002,
Requirement to Inform Employees of
Whistleblower Rights, as prescribed in
203.970, to comply with 10 U.S.C. 2409.
*
*
*
*
*
[FR Doc. 2022–23281 Filed 10–27–22; 8:45 am]
BILLING CODE 5001–06–P
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[Docket DARS–2022–0023]
RIN 0750–AL58
Defense Federal Acquisition
Regulation Supplement: Repeal of
Preference for Fixed-Price Contracts
(DFARS Case 2022–D007)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
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 2022.
DATES: Effective October 28, 2022.
FOR FURTHER INFORMATION CONTACT: Ms.
Kimberly R. Ziegler, telephone 703–
901–3176.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DoD is issuing a final rule amending
the DFARS to implement section 817 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2022 (Pub.
L. 117–81), which repeals section 829 of
the NDAA for FY 2017 (Pub. L. 114–
328). This rule removes text that was
added to the DFARS associated with the
implementation of section 829.
DoD published a final rule in the
Federal Register at 84 FR 65304 on
November 27, 2019, to implement
section 829. Section 829 required
contracting officers to first consider
fixed-price contracts, including fixedprice incentive contracts, when
determining contract type and to obtain
approval from the head of the
contracting activity for certain costreimbursement contracts.
This final rule removes references,
policies, and limitations related to
section 829 at DFARS sections
216.102(1), 216.301–3(2), 216.401(d),
and 235.006(b)(i). Conforming changes
are made to revise two cross-references
at 235.006(b)(ii). At DFARS 216.102(3)
an obsolete reference to DFARS
225.7301–1 is removed, since the
requirement at 225.7301–1 was repealed
by section 888 of the NDAA for FY 2021
(Pub. L. 116–283); see the final rule for
DFARS Case 2021–D019 published in
the Federal Register at 86 FR 48339 on
August 30, 2021.
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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 41 U.S.C. 1707,
Publication of Proposed Regulations.
Subsection (a)(1) of the statute 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 this rule is updating
internal DoD operating procedures.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold, for Commercial Services,
and for Commercial Products,
Including Commercially Available Offthe-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 or their applicability to
contracts at or below the simplified
acquisition threshold, for commercial
services, or for commercial products
including COTS 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 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
E:\FR\FM\28OCR4.SGM
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Federal Register / Vol. 87, No. 208 / Friday, October 28, 2022 / Rules and Regulations
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
This 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 216 and
235
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, 48 CFR parts 216 and 235
are amended as follows:
■ 1. The authority citation for 48 CFR
parts 216 and 235 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
the National Emergencies Act (50 U.S.C.
1621) that includes the use of the
Armed Forces.
■ 4. Amend section 216.401 by revising
paragraph (d) to read as follows:
216.401
General.
*
*
*
*
*
(d) The determination and findings
justifying that the use of an incentiveor award-fee contract is in the best
interest of the Government, may be
signed by the head of contracting
activity or a designee—
(i) No lower than one level below the
head of the contracting activity for
award-fee contracts; or
(ii) One level above the contracting
officer for incentive-fee contracts.
*
*
*
*
*
PART 235—RESEARCH AND
DEVELOPMENT CONTRACTING
235.006
[Amended]
5. Amend section 235.006 by—
a. Removing paragraph (b)(i);
b. Redesignating paragraphs (b)(ii) and
(iii) as paragraphs (b)(i) and (ii),
respectively;
■ c. In the newly redesignated
paragraph (b)(ii)(A)(3), removing
‘‘(b)(iii)(A)(1) and (2)’’ and adding
‘‘(b)(ii)(A)(1) and (2)’’ in its place; and
■ d. In the newly redesignated
paragraph (b)(ii)(A)(3)(ii), removing
‘‘(b)(iii)(A)(3)(i)’’ and adding
‘‘(b)(ii)(A)(3)(i)’’ in its place.
■
■
■
[FR Doc. 2022–23283 Filed 10–27–22; 8:45 am]
BILLING CODE 5001–06–P
PART 216—TYPES OF CONTRACTS
DEPARTMENT OF DEFENSE
2. Revise section 216.102 to read as
follows:
■
216.102
48 CFR Parts 211, 212, and 252
Policies.
[Docket DARS–2022–0024]
In accordance with section 811 of the
National Defense Authorization Act for
Fiscal Year 2013 (Pub. L. 112–239), use
of any cost-reimbursement line item for
the acquisition of production of major
defense acquisition programs is
prohibited, unless the exception at
234.004(2)(ii) applies.
■ 3. Revise section 216.301–3 to read as
follows:
lotter on DSK11XQN23PROD with RULES4
216.301–3
Limitations.
For contracts in connection with a
military construction project or a
military family housing project,
contracting officers shall not use costplus-fixed-fee, cost-plus-award-fee, or
cost-plus-incentive-fee contract types
(10 U.S.C. 2306(c)). This applies
notwithstanding a declaration of war or
the declaration by the President of a
national emergency under section 201 of
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Defense Federal Acquisition
Regulation Supplement: Removal of
Passive Radio Frequency
Requirements (DFARS Case 2022–
D020)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to remove passive radio
frequency identification requirements.
DATES: Effective October 28, 2022.
FOR FURTHER INFORMATION CONTACT: Ms.
Kimberly R. Ziegler, telephone 703–
901–3176.
SUMMARY:
PO 00000
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65513
SUPPLEMENTARY INFORMATION:
I. Background
DoD is amending the DFARS to
remove requirements for the use of
passive radio frequency identification
(RFID) tags for shipments that meet the
criteria at DFARS 211.275–2. DoD no
longer requires the use of passive RFID
tags for shipments due to the use of
more cost-effective technologies.
Accordingly, this rule removes and
reserves the contract clause at DFARS
252.211–7006, Passive Radio Frequency
Identification, which requires
contractors to submit advance shipment
notices to associate the passive RFID tag
with the corresponding shipment, and
removes and reserves section 211.275,
Passive radio frequency identification.
DFARS sections 211.275–1, Definitions;
211.275–2, Policy; and 211.275–3,
Contract clause, are also removed.
DFARS clause 252.211–7006 is removed
from the list of solicitation provisions
and contract clauses for the acquisition
of commercial items at DFARS 212.301.
DoD issued the final rule for DFARS
Case 2004–D011 (70 FR 53955) on
September 13, 2005, to require that
contractors affix passive RFID tags at the
case and palletized unit load levels
when shipping packaged operational
rations, clothing, individual equipment,
tools, personal demand items, or
weapon system repair parts to two
specific Defense Distribution Depots.
The rule also required contractors to
send an advance shipment notice to
provide the association between the
unique identification encoded on the
passive tag(s) and the product
information at the applicable case and
palletized unit load level(s).
DoD later updated the passive RFID
requirements and the associated
contract clause at DFARS 252.211–7006
(76 FR 58142) on September 20, 2011,
to expand the use of the tags to
numerous sites and provide a new
website that enabled contractors to find
the RFID identifier for each specific DoD
ship-to address that used RFID
technology.
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 41 U.S.C. 1707,
Publication of Proposed Regulations.
Subsection (a)(1) of the statute 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
E:\FR\FM\28OCR4.SGM
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]]>Agencies
[Federal Register Volume 87, Number 208 (Friday, October 28, 2022)]
[Rules and Regulations]
[Pages 65512-65513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23283]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 216 and 235
[Docket DARS-2022-0023]
RIN 0750-AL58
Defense Federal Acquisition Regulation Supplement: Repeal of
Preference for Fixed-Price Contracts (DFARS Case 2022-D007)
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 2022.
DATES: Effective October 28, 2022.
FOR FURTHER INFORMATION CONTACT: Ms. Kimberly R. Ziegler, telephone
703-901-3176.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is issuing a final rule amending the DFARS to implement section
817 of the National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 2022 (Pub. L. 117-81), which repeals section 829 of the NDAA for
FY 2017 (Pub. L. 114-328). This rule removes text that was added to the
DFARS associated with the implementation of section 829.
DoD published a final rule in the Federal Register at 84 FR 65304
on November 27, 2019, to implement section 829. Section 829 required
contracting officers to first consider fixed-price contracts, including
fixed-price incentive contracts, when determining contract type and to
obtain approval from the head of the contracting activity for certain
cost-reimbursement contracts.
This final rule removes references, policies, and limitations
related to section 829 at DFARS sections 216.102(1), 216.301-3(2),
216.401(d), and 235.006(b)(i). Conforming changes are made to revise
two cross-references at 235.006(b)(ii). At DFARS 216.102(3) an obsolete
reference to DFARS 225.7301-1 is removed, since the requirement at
225.7301-1 was repealed by section 888 of the NDAA for FY 2021 (Pub. L.
116-283); see the final rule for DFARS Case 2021-D019 published in the
Federal Register at 86 FR 48339 on August 30, 2021.
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 41 U.S.C. 1707, Publication of Proposed
Regulations. Subsection (a)(1) of the statute 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 this rule is updating internal DoD operating procedures.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold, for Commercial Services, and for Commercial Products,
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 or their applicability to contracts at
or below the simplified acquisition threshold, for commercial services,
or for commercial products including COTS 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 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
[[Page 65513]]
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
This 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 216 and 235
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 216 and 235 are amended as follows:
0
1. The authority citation for 48 CFR parts 216 and 235 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 216--TYPES OF CONTRACTS
0
2. Revise section 216.102 to read as follows:
216.102 Policies.
In accordance with section 811 of the National Defense
Authorization Act for Fiscal Year 2013 (Pub. L. 112-239), use of any
cost-reimbursement line item for the acquisition of production of major
defense acquisition programs is prohibited, unless the exception at
234.004(2)(ii) applies.
0
3. Revise section 216.301-3 to read as follows:
216.301-3 Limitations.
For contracts in connection with a military construction project or
a military family housing project, contracting officers shall not use
cost-plus-fixed-fee, cost-plus-award-fee, or cost-plus-incentive-fee
contract types (10 U.S.C. 2306(c)). This applies notwithstanding a
declaration of war or the declaration by the President of a national
emergency under section 201 of the National Emergencies Act (50 U.S.C.
1621) that includes the use of the Armed Forces.
0
4. Amend section 216.401 by revising paragraph (d) to read as follows:
216.401 General.
* * * * *
(d) The determination and findings justifying that the use of an
incentive- or award-fee contract is in the best interest of the
Government, may be signed by the head of contracting activity or a
designee--
(i) No lower than one level below the head of the contracting
activity for award-fee contracts; or
(ii) One level above the contracting officer for incentive-fee
contracts.
* * * * *
PART 235--RESEARCH AND DEVELOPMENT CONTRACTING
235.006 [Amended]
0
5. Amend section 235.006 by--
0
a. Removing paragraph (b)(i);
0
b. Redesignating paragraphs (b)(ii) and (iii) as paragraphs (b)(i) and
(ii), respectively;
0
c. In the newly redesignated paragraph (b)(ii)(A)(3), removing
``(b)(iii)(A)(1) and (2)'' and adding ``(b)(ii)(A)(1) and (2)'' in its
place; and
0
d. In the newly redesignated paragraph (b)(ii)(A)(3)(ii), removing
``(b)(iii)(A)(3)(i)'' and adding ``(b)(ii)(A)(3)(i)'' in its place.
[FR Doc. 2022-23283 Filed 10-27-22; 8:45 am]
BILLING CODE 5001-06-P
