[Federal Register Volume 64, Number 152 (Monday, August 9, 1999)]
[Rules and Regulations]
[Pages 43096-43098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20284]


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DEPARTMENT OF DEFENSE

48 CFR Parts 202 and 217

[DFARS Case 97-D308]


Defense Federal Acquisition Regulation Supplement; Multiyear 
Contracting

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: The Director of Defense Procurement has issued a final rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to update guidance pertaining to multiyear contracting. The rule 
contains statutory requirements related to the award of multiyear 
contracts for supplies, services, and weapon systems.

EFFECTIVE DATE: August 9, 1999.

FOR FURTHER INFORMATION CONTACT: Ms. Melissa Rider, Defense Acquisition 
Regulations Council, PDUSD (A&T) DP (DAR), IMD 3D139, 3062 Defense 
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-4245; telefax 
(703) 602-0350. Please cite DFARS Case 97-D308.

SUPPLEMENTARY INFORMATION: 

A. Background

    This final rule amends DFARS Subpart 217.1 to update guidance 
pertaining to the award of multiyear contracts. The rule adds 
requirements to reflect the provisions of 10 U.S.C. 2306(g)(2)(B), 10 
U.S.C. 2306b(i)(3), and Section 8008(b) of Public Law 105-56; updates 
other statutory references throughout the subpart; and makes editorial 
revisions for clarity. In addition, the rule adds a definition of 
``Congressional defense committees'' at DFARS 202.101
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    This final rule does not constitute a significant revision within 
the meaning of FAR 1.501 and Public Law 98-577 and publication for 
public comment is not required. However, comments from small entities 
concerning the affected DFARS subparts will be considered in accordance 
with 5 U.S.C. 610. Such comments should cite DFARS Case 97-D308.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not contain any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 48 CFR Parts 202 and 217

    Government procurement.
Michele P. Peterson,
Executive Director, Defense Acquisition Regulations Council.

    Therefore, 48 CFR Parts 202 and 217 are amended as follows:
    1. The authority citation for 48 CFR Parts 202 and 217 continues to 
read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 202--DEFINITIONS OF WORDS AND TERMS

    2. Section 202.101 is amended by adding, in alphabetical order, a 
definition of ``Congressional defense committees'' to read as follows:


Sec. 202.101  Definitions

    ``Congressional defense committees'' means--
    (1) The Committee on Armed Services of the Senate;
    (2) The Subcommittee on Defense of the Committee on Appropriations 
of the Senate;
    (3) The Committee on Armed Services of the House of 
Representatives; and
    (4) The Subcommittee on Defense of the Committee on Appropriations 
of the House of Representatives.
* * * * *

PART 217--SPECIAL CONTRACTING METHODS

    3. Sections 217.170 through 217.714 are revised to read as follows:


217.170  General

    (a) Before awarding a multiyear contract, the head of the agency 
must compare the cost of that contract to the cost of an annual 
procurement approach, using a present value analysis. Do not award the 
multiyear contract unless the analysis shows that the multiyear 
contract will result in the lower cost (10 U.S.C. 2306(1)(5)).
    (b) The head of the agency must provide written notice to the 
congressional defense committees at least 10 days before termination of 
any multiyear contract (10 U.S.C. 2306(1)(4)).
    (c) The Secretary of Defense may instruct the head of the agency 
proposing a multiyear contract to include in that contract negotiated 
priced options for varying the quantities of end items to be procured 
over the life of the contract (10 U.S.C. 2306b(j)).
    (d) Every multiyear contract must comply with FAR 17.104(c), unless 
an exception is approved through the budget process in coordination 
with the cognizant comptroller.
    (e)(1) DoD must receive authorization from, or provide notification 
to, Congress before entering into a multiyear contract for certain 
procurements, including those expected to--
    (i) Exceed $500 million for any particular system or system 
component (see 217.173(b)(4));
    (ii) Employ economic order quantity procurement in excess of $20 
million in any one year (see 217.174(a)(1));
    (iii) Employ an unfunded contingent liability in excess of $20 
million (see 217.172(c)); or
    (iv) Involve a contract for advance procurement leading to a 
multiyear contract that employs economic order quantity procurement in 
excess of $20 million in any one year (see 217.174(a)(2)).
    (2) A DoD component must submit a request for authority to enter 
into such multiyear contracts as part of the component's budget 
submission for the fiscal year in which the multiyear contract will be 
initiated. DoD will include the request, for each candidate it 
supports, as part of the President's Budget for that year and in the

[[Page 43097]]

Appendix to that budget as part of proposed legislative language for 
the appropriations bill for that year (Section 8008(b) of Pub. L. 105-
56).
    (3) If the advisability of using a multiyear contract becomes 
apparent too late to satisfy the requirements in paragraph (e)(2) of 
this section, the request for authority to enter into a multiyear 
contract must be--
    (i) Formally submitted by the President as a budget amendment; or
    (ii) Made by the Secretary of Defense, in writing, to the 
congressional defense committees (Section 8008(b) of Pub. L. 105-56).


217.171   Multiyear contracts for services.

    (a) 10 U.S.C. 2306(g).
    (1) The head of the agency may enter into multiyear contracts for 
the following types of services (and items of supply relating to such 
services), even though funds are limited by statute to obligation only 
during the fiscal year for which they were appropriated:
    (i) Operation, maintenance, and support of facilities and 
installations.
    (ii) Maintenance or modification of aircraft, ships, vehicles, and 
other highly complex military equipment.
    (iii) Specialized training requiring high quality instructor skills 
(e.g., training for pilots and other aircrew members or foreign 
language training).
    (iv) Base services (e.g., ground maintenance, in-plane refueling, 
bus transportation, and refuse collection and disposal).
    (2) The head of the agency may use this authority only if the term 
of the contract does not exceed 5 years. However, the head of the 
agency may extend the term of the contract by exercising an option that 
does not--
    (i) Exceed 3 years; or
    (ii) Include charges for plant, equipment, or other nonrecurring 
costs already amortized.
    (3) Before entering into a multiyear contract for services, the 
head of the agency must make a written determination that--
    (i) There will be a continuing need for the services and incidental 
supplies consistent with current plans for the proposed contract 
period;
    (ii) Furnishing the services and incidental supplies will require--
    (A) A substantial initial investment in plant or equipment; or
    (B) The incurrence of substantial contingent liabilities for the 
assembly, training, or transportation of a specialized work force; and
    (iii) Using a multiyear contract will be in the best interest of 
the United States by encouraging effective competition and promoting 
economical business operations (e.g., economic lot purchases and more 
efficient production rates).
    (b) 10 U.S.C. 2829.
    (1) The head of the agency may enter into multiyear contracts for 
supplies and services required for management, maintenance, and 
operation of military family housing and may pay the costs of such 
contracts for each year from annual appropriations for that year.
    (2) The head of the agency may use this authority only if the term 
of the contract does not exceed 4 years.


217.172  Multiyear contracts for supplies.

    (a) This section applies to all multiyear contracts for supplies, 
including weapon systems. For policies that apply only to multiyear 
contracts for weapon systems, see 217.173.
    (b) The head of the agency may enter into a multiyear contract for 
supplies if, in addition to the conditions listed in FAR 17.105-1(b), 
the use of such a contract will promote the national security of the 
United States.
    (c) The head of the agency must provide written notice to the 
congressional defense committees at least 30 days before the 
contracting officer awards a multiyear contract including an unfunded 
contingent liability in excess of $20 million (10 U.S.C. 
2306b(l)(1)(A)).
    (d) Agencies must establish reporting procedures to meet the 
requirements of paragraph (c) of this section. The head of the agency 
must submit copies of the notifications to the Director of Defense 
Procurement, Office of the Under Secretary of Defense (Acquisition and 
Technology) (OUSD(A&T)DP), and to the Deputy Under Secretary of Defense 
(Comptroller) (Program/Budget) (OUSD(C)(P/B)).


217.173  Multiyear contracts for weapon systems.

    (a) As authorized by 10 U.S.C. 2306b(h) and subject to the 
conditions in paragraph (b) of this section, the head of the agency may 
enter into a multiyear contract for--
    (1) A weapon system and associated items, services, and logistics 
support for a weapon system; and
    (2) Advance procurement of components, parts, and materials 
necessary to manufacture a weapon system, including advance procurement 
to achieve economic lot purchases or more efficient production rates 
(see 217.174 regarding economic order quantity procurement).
    (b) The head of the agency must ensure that the following 
conditions are satisfied before awarding a multiyear contract under the 
authority described in paragraph (a) of this section:

    (1) The multiyear exhibits required by DoD 7000.14-R, Financial 
Management Regulation, are included in the agency's budget estimate 
submission and the President's budget request.

    (2) The Secretary of Defense certifies to Congress that the current 
5-year defense program fully funds the support costs associated with 
the multiyear program (10 U.S.C. 2306b(i)(1)(A)). The head of the 
agency must submit information supporting this certification to USD(C) 
(P/B) for transmission to Congress through the Secretary of Defense.

    (3) The proposed multiyear contract provides for production at not 
less than minimum economic rates, given the existing tooling and 
facilities (10 U.S.C. 2306b(i)(1)(B)). The head of the agency must 
submit to USD(C) (P/B) information supporting the agency's 
determination that this requirement has been met.

    (4) If the value of a multiyear contract for a particular system or 
component exceeds $500 million, use of a multiyear contract is 
specifically authorized by--

    (i) An appropriations act (10 U.S.C. 2306b(l)(3)); and

    (ii) A law other than an appropriations act (10 U.S.C. 
2306b(i)(3)).

    (5) All other requirements of law are met and there are no other 
statutory restrictions on using a multiyear contract for the specific 
system or component (10 U.S.C. 2306b(i)(2)). One such restriction may 
be the achievement of specified cost savings. If the agency finds, 
after negotiations with the contractor(s), that the specified savings 
cannot be achieved, the head of the agency must assess the savings 
that, nevertheless, could be achieved by using a multiyear contract. If 
the savings are substantial, the head of the agency may request relief 
from the law's specific savings requirement. The request must--

    (i) Quantify the savings that can be achieved;

    (ii) Explain any other benefits to the Government of using the 
multiyear contract;

    (iii) Include details regarding the negotiated contract terms and 
conditions; and

    (iv) Be submitted to OUSD (A&T) DP for transmission to Congress via 
the Secretary of Defense and the President.


217.174   Multiyear contracts that employ economic order quantity 
procurement.

    (a) The head of the agency must provide written notice to the 
congressional defense committees at least 30 days before awarding--


[[Page 43098]]


    (1) A multiyear contract providing for economic order quantity 
procurement in excess of $20 million in any one year; or

    (2) A contract for advance procurement leading to a multiyear 
contract that employs economic order quantity procurement in excess of 
$20 million in any one year (10 U.S.C. 2306b(l)(1)(A)).

    (b) Before initiating an advance procurement, the contracting 
officer must verify that it is consistent with DoD policy (e.g., Part 3 
of DoD 5000.2-R, Mandatory Procedures for Major Defense Acquisition 
Programs (MDAPs) and Major Automated Information System (MAIS) 
Acquisition Programs, and the full funding policy in Volume 2A, Chapter 
1, of DoD 7000.14-R, Financial Management Regulation).

[FR Doc. 99-20284 Filed 8-6-99; 8:45 am]
BILLING CODE 5000-04-M