DPN20181031

DPN20181031

[Federal Register Volume 83, Number 211 (Wednesday, October 31, 2018)]

[Rules and Regulations]

[Pages 54676-54677]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2018-23678]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 211 and 252

[Docket DARS-2018-0048]

RIN 0750-AJ95

Defense Federal Acquisition Regulation Supplement: Repeal of

DFARS Clause ``Acquisition Streamlining'' (DFARS Case 2018-D033)

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 remove a clause that is no

longer necessary.

DATES: Effective October 31, 2018.

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

6093.

SUPPLEMENTARY INFORMATION:

I. Background

DoD is amending the DFARS to remove DFARS clause 252.211-7000,

Acquisition Streamlining, and the associated clause prescription at

DFARS 211.002-70. This clause is included in all solicitations and

contracts for systems acquisition programs and requires contractors to:

Prepare acquisition streamlining recommendations in accordance with the

performance work statement; format and submit the recommendations in

accordance with the contract data requirements list of the contract;

and include the clause in all subcontracts valued over $1.5 million

that are awarded in the performance of the contract. DoD may accept,

modify, or reject the contractor's recommendations.

This clause was added to the DFARS to implement a requirement of

DoD Directive (DoDD) 5000.43, Acquisition Streamlining. DoDD 5000.43

has been cancelled and replaced by DoD Instruction 5000.02, Operation

of the Defense Acquisition System, which requires contractors to submit

acquisition streamlining recommendations. Additionally, Federal

Acquisition Regulation (FAR) subpart 7.1, Acquisition Plans, already

includes acquisition streamlining and industry engagement as

considerations to be made when preparing a written acquisition plan. As

the implementing DoDD has been cancelled and FAR subpart 7.1 addresses

acquisition streamlining, this DFARS clause is unnecessary and can be

removed.

The removal of this DFARS text supports a recommendation from the

DoD Regulatory Reform Task Force. On February 24, 2017, the President

signed Executive Order (E.O.) 13777, ``Enforcing the Regulatory Reform

Agenda,'' which established a Federal policy ``to alleviate unnecessary

regulatory burdens'' on the American people. In accordance with E.O.

13777, DoD established a Regulatory Reform

[[Page 54677]]

Task Force to review and validate DoD regulations, including the DFARS.

A public notice of the establishment of the DFARS Subgroup to the DoD

Regulatory Reform Task Force, for the purpose of reviewing DFARS

provisions and clauses, was published in the Federal Register at 82 FR

35741 on August 1, 2017, and requested public input. The following

public comment was received on this clause:

Comment: The respondent states that the clause is ineffective,

because a contractor who has already been awarded a contract may have a

vested interest in preserving the contract, as awarded, and may not be

the best source for innovation. Instead, the respondent suggests that

targeted surveys sent to both successful and unsuccessful offerors

after award may be more effective than a mandatory clause for a single

awardee.

Response: DoD will continue to encourage industry participation

during the design and development of contract requirements and through

other methods.

The DoD Task Force reviewed the requirements of DFARS clause

252.211-7000, Acquisition Streamlining, and determined that the DFARS

coverage was unnecessary and recommended removal.

II. Applicability to Contracts at or Below the Simplified Acquisition

Threshold and for Commercial Items, Including Commercially Available

Off-the-Shelf Items

This rule only removes obsolete DFARS clause 252.211-7000,

Acquisition Streamlining. Therefore, the rule does not impose any new

requirements on contracts at or below the simplified acquisition

threshold and for commercial items, including commercially available

off-the-shelf items.

III. Publication of This Final Rule for Public Comment Is Not Required

by Statute

The statute that applies to the publication of the 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 merely

removes an obsolete requirement from the DFARS.

IV. Executive Orders 12866 and 13563

E.O. 12866, Regulatory Planning and Review, and E.O. 13563,

Improving Regulation and Regulatory Review, 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.

The Office of Management and Budget, Office of Information and

Regulatory Affairs, has determined that this is not a significant

regulatory action as defined under section 3(f) of E.O. 12866 and,

therefore, was not subject to review under section 6(b). This rule is

not a major rule as defined at 5 U.S.C. 804(2).

V. Executive Order 13771

This rule is not an E.O. 13771 regulatory action, because this rule

is not significant under E.O. 12866.

VI. Regulatory Flexibility Act

Because a notice of proposed rulemaking and an opportunity for

public comment are not required to be given for this rule under 41

U.S.C. 1707(a)(1) (see section III. 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 211 and 252

Government procurement.

Jennifer Lee Hawes,

Regulatory Control Officer, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 211 and 252 are amended as follows:

1. The authority citation for 48 CFR parts 211 and 252 continues to

read as follows:

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

PART 211--DESCRIBING AGENCY NEEDS

211.002-70 [Removed]

2. Remove section 211.002-70.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

252.211-7000 [Removed and Reserved]

3. Remove and reserve section 252.211-7000.

[FR Doc. 2018-23678 Filed 10-30-18; 8:45 am]

BILLING CODE 5001-06-P

Rules and Regulations]

[Pages 54677-54679]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2018-23673]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 219 and Appendix I to Chapter 2

[Docket DARS-2018-0019]

RIN 0750-AJ25

Defense Federal Acquisition Regulation Supplement: Mentor-Protege

Program Modifications (DFARS Case 2017-D016)

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 sections of the

National Defense Authorization Act for Fiscal Year 2017 that provide

modifications to the DoD Pilot Mentor-Prot[eacute]g[eacute] Program.

DATES: Effective October 31, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Jennifer D. Johnson, telephone

571-372-6100.

SUPPLEMENTARY INFORMATION:

I. Background

DoD published a proposed rule in the Federal Register at 83 FR

19677 on May 4, 2018, to implement section 1823 and paragraph (b) of

section 1813 of the National Defense Authorization Act (NDAA) for

Fiscal Year (FY) 2017. Sections 1823 and 1813 provide modifications to

the DoD Pilot Mentor-Prot[eacute]g[eacute] Program (``the Program'').

Section 1823 revises the definition and

[[Page 54678]]

requirements associated with affiliation between mentor firms and their

prot[eacute]g[eacute] firms. Both sections add new types of assistance

for mentor firms to provide to their prot[eacute]g[eacute] firms.

II. Discussion and Analysis

One respondent submitted a public comment in response to the

proposed rule. DoD reviewed the public comment in the development of

the final rule.

A. Summary of Significant Changes From the Proposed Rule

There are no changes made to the final rule as a result of the

public comment.

B. Analysis of Public Comments

Comment: The respondent recommended a change to the proposed text

in Appendix I, section I-107, paragraph (h). Specifically, the

respondent proposed limiting the assistance to be provided by the

mentor firm regarding Federal contract regulations to ``guidance in

obtaining training to enable understanding Federal contract

regulations'' instead of ``assistance the mentor will provide to the

prot[eacute]g[eacute] firm in understanding Federal contract

regulations'' as stated in the proposed rule. The rationale was that

the text in the proposed rule could potentially expose the mentor firm

to liability when inevitable misunderstandings occur due to the

complexity of the regulations.

Response: In drafting the text of I-107 paragraph (h), DoD used

language that was very close to the text of section 1813 of the NDAA

for FY 2017. The statutory language and, consequently, the draft DFARS

text add to the mentor-prot[eacute]g[eacute] agreement an element in

which the mentor will identify the assistance it will provide to the

prot[eacute]g[eacute] in an effort to facilitate the

prot[eacute]g[eacute]'s understanding of Federal contract regulations.

Such assistance could include guidance in obtaining training on the

regulations, but it also could include other forms of assistance.

C. Other Changes

The final rule includes a minor editorial change. In section I-111,

paragraph (e) is revised to update the reference to renumbered

paragraphs in I-107.

III. Applicability to Contracts at or Below the Simplified Acquisition

Threshold and for Commercial Items, Including Commercially Available

Off-the-Shelf Items

This final rule does not add any new provisions or clauses or

impact any existing provisions or clauses.

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. This rule is not a major rule

under 5 U.S.C. 804.

V. Executive Order 13771

This rule is not subject to E.O. 13771, because this rule is not a

significant regulatory action under E.O. 12866.

VI. 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 statutory modifications

to the DoD Pilot Mentor-Prot[eacute]g[eacute] Program (``the

Program''). This rule amends the Defense Federal Acquisition Regulation

Supplement (DFARS) to implement section 1823 and paragraph (b) of

section 1813 of the National Defense Authorization Act (NDAA) for

Fiscal Year (FY) 2017, which provide modifications to the Program.

Specifically, section 1823 revises the definition and requirements

associated with affiliation between mentor firms and their

prot[eacute]g[eacute] firms. Both sections add new types of assistance

for mentors to provide to their prot[eacute]g[eacute]s.

There were no issues raised by the public in response to the

initial regulatory flexibility analysis provided in the proposed rule.

The rule will apply to small entities that participate in the

Program. There are currently 72 small entities participating in the

Program as prot[eacute]g[eacute] firms and six small entities

participating as mentors.

The rule does not impose any reporting or recordkeeping

requirements on any small entities.

DoD has not identified any alternatives that would meet the

requirements of the applicable statute.

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 219 and Appendix I to Chapter 2

Government procurement.

Jennifer Lee Hawes,

Regulatory Control Officer, Defense Acquisition Regulations System.

Therefore, 48 CFR part 219 and appendix I to chapter 2 are amended

as follows:

1. The authority citation for 48 CFR part 219 and appendix I to chapter

2 continues to read as follows:

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

PART 219--SMALL BUSINESS PROGRAMS

219.7100 [Amended]

2. Amend section 219.7100 by removing ``November 25, 2015'' and adding

``December 23, 2016'' in its place.

3. Amend appendix I to chapter 2 as follows:

a. In section I-101 by--

i. Redesignating sections I-101.1 through I-101.6 as sections I-101.2

through I-101.7, respectively; and

ii. Adding new section I-101.1.

b. In section I-102 by--

i. Redesignating paragraphs (e) and (f) as paragraphs (f) and (g),

respectively;

ii. Adding new paragraph (e); and

iii. In newly redesignated paragraph (f), removing ``Subpart 9.4'' and

adding ``subpart 9.4'' in its place.

c. In section I-106 by adding paragraph (d)(6)(v).

d. In section I-107 by--

i. Redesignating paragraphs (h) through (o) as paragraphs (i) through

(p), respectively; and

ii. Adding new paragraph (h).

e. Amending section I-111 by removing ``I-107(k) through (m)'' from

paragraph (e) and adding ``I-107(l) through (n)'' in its place.

The additions read as follows:

Appendix I to Chapter 2--Policy and Procedures for the DoD Pilot Mentor

Prot[eacute]g[eacute] Program

* * * * *

I-101.1 Affiliation.

With respect to a relationship between a mentor firm and a

prot[eacute]g[eacute] firm, a relationship described under 13 CFR

121.103.

* * * * *

[[Page 54679]]

I-102 Participant eligibility.

* * * * *

(e) A mentor firm may not enter into an agreement with a

prot[eacute]g[eacute] firm if SBA has made a determination of

affiliation. If SBA has not made such a determination and if the DoD

Office of Small Business Programs (OSBP) has reason to believe,

based on SBA's regulations regarding affiliation, that the mentor

firm is affiliated with the prot[eacute]g[eacute] firm, then DoD

OSBP will request a determination regarding affiliation from SBA.

* * * * *

I-106 Development of mentor-prot[eacute]g[eacute] agreements.

* * * * *

(d) * * *

(6) * * *

(v) Women's business centers described in section 29 of the

Small Business Act (15 U.S.C. 656).

* * * * *

I-107 Elements of a mentor-prot[eacute]g[eacute] agreement.

* * * * *

(h) The assistance the mentor will provide to the

prot[eacute]g[eacute] firm in understanding Federal contract

regulations, including the FAR and DFARS, after award of a

subcontract under the Program, if applicable;

* * * * *

[FR Doc. 2018-23673 Filed 10-30-18; 8:45 am]

BILLING CODE 5001-06p-P

[Federal Register Volume 83, Number 211 (Wednesday, October 31, 2018)]

[Rules and Regulations]

[Pages 54679-54680]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2018-23679]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 228 and 252

[Docket DARS-2018-0049]

RIN 0750-AJ98

Defense Federal Acquisition Regulation Supplement: Repeal of

DFARS Provision ``Bonds or Other Security'' (DFARS Case 2018-D036)

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 remove a provision that is

no longer necessary.

DATES: Effective October 31, 2018.

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

6093.

SUPPLEMENTARY INFORMATION:

I. Background

DoD is amending the DFARS to remove DFARS provision 252.228-7004,

Bonds or Other Security, and the associated clause prescription at

DFARS 228.170. The Miller Act (40 U.S.C. 3131 to 3134) requires

contractors on certain construction contracts to post bonds that

guarantee performance of the contract and payment to subcontractors and

suppliers. Several Federal Acquisition Regulation (FAR) clauses are

available to implement these requirements on construction contracts.

While the guarantees of the Miller Act do not apply to contracts for

demolition, dismantling, or removal of improvements, FAR 37.302 permits

the contracting officer to require a performance bond or other

security, in accordance with FAR 28.103, on such contracts when it is

necessary to ensure completion of the work or protect property or

payment of suppliers.

For DoD, when performance bonds or other securities are necessary

for contracts that involve dismantling, demolition, or removal of

improvements, this DFARS provision is included in the solicitation. The

provision requires offerors to furnish a bid guarantee with their

offer; advises that, upon notice of award, the successful offeror shall

provide the Government with the performance bond and any payment due

within a set timeframe; and, identifies the acceptable sureties that

can be used to support the bond.

In reviewing existing FAR provisions and clauses, it was determined

that FAR clause 52.228-16, Performance and Payment Bonds--Other than

Construction, and FAR provision 52.228-1, Bid Guarantee, provide the

information contained in the DFARS provision and can be included in

solicitations and contracts that involve dismantling, demolition, or

removal of improvements. The FAR clause ensures completion of the work;

protects property associated with the contract effort; requires the

offeror to furnish a performance bond within a set amount of time after

receiving a notice of award; and, specifies that bonds must be

supported by specific sureties. The FAR provision requires offerors to

provide a bid guarantee prior to the opening of bids; includes the form

and amount of the guarantee to be provided; advises that a resultant

contract may be terminated for failure to provide an executed bond

after contract award; and, states that the bid guarantee will be used

to offset cost in the event of a termination for default. Since the FAR

provision and clause can be used to provide the same information

included in DFARS provision, this DFARS provision is no longer

necessary and can be removed.

The removal of this DFARS provision supports a recommendation from

the DoD Regulatory Reform Task Force. On February 24, 2017, the

President signed Executive Order (E.O.) 13777, ``Enforcing the

Regulatory Reform Agenda,'' which established a Federal policy ``to

alleviate unnecessary regulatory burdens'' on the American people. In

accordance with E.O. 13777, DoD established a Regulatory Reform Task

Force to review and validate DoD regulations, including the DFARS. A

public notice of the establishment of the DFARS Subgroup to the DoD

Regulatory Reform Task Force, for the purpose of reviewing DFARS

provisions and clauses, was published in the Federal Register at 82 FR

35741 on August 1, 2017, and requested public input. No public comments

were received on this provision. The DoD Task Force reviewed the

requirements of DFARS provision 252.228-7004, Bonds and Other Security,

and determined that the DFARS coverage was unnecessary and recommended

removal.

II. Applicability to Contracts at or Below the Simplified Acquisition

Threshold and for Commercial Items, Including Commercially Available

Off-the-Shelf Items

This rule only removes obsolete DFARS provision 252.228-7004, Bonds

or Other Security. Therefore, the rule does not impose any new

requirements on contracts at or below the simplified acquisition

threshold and for commercial items, including commercially available

off-the-shelf items.

III. Publication of This Final Rule for Public Comment Is Not Required

by Statute

The statute that applies to the publication of the FAR is 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 merely

removes an obsolete requirement from the DFARS.

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