[Federal Register Volume 68, Number 190 (Wednesday, October 1, 2003)]
[Rules and Regulations]
[Pages 56563-56564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24627]


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DEPARTMENT OF DEFENSE

48 CFR Part 237

[DFARS Case 2002-D024]


Defense Federal Acquisition Regulation Supplement; Approval of 
Service Contracts and Task Orders

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD has issued an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement section 801(b) 
of the National Defense Authorization Act for Fiscal Year 2002. Section 
801(b) requires DoD to establish and implement a management structure 
for the procurement of services.

DATES: Effective date: October 1, 2003.
    Comment date: Comments on the interim rule should be submitted to 
the address shown below on or before December 1, 2003, to be considered 
in the formation of the final rule.

ADDRESSES: Respondents may submit comments directly on the World Wide 
Web at http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. As an 
alternative, respondents may e-mail comments to: [email protected]. 
Please cite DFARS Case 2002-D024 in the subject line of e-mailed 
comments.
    Respondents that cannot submit comments using either of the above 
methods may submit comments to: Defense Acquisition Regulations 
Council, Attn: Mr. Steven Cohen, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 
Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-0350. 
Please cite DFARS Case 2002-D024.
    At the end of the comment period, interested parties may view 
public comments on the World Wide Web at http://emissary.acq.osd.mil/dar/dfars.nsf.

FOR FURTHER INFORMATION CONTACT: Mr. Steven Cohen, (703) 602-0293.

SUPPLEMENTARY INFORMATION: 

A. Background

    This interim rule adds DFARS section 237.170, Approval of contracts 
and task orders for services, to implement Section 801(b) of the 
National Defense Authorization Act for Fiscal Year 2002 (Public Law 
107-107).
    Section 801 of Public Law 107-107 established a series of 
requirements impacting the acquisition of services in DoD. On May 31, 
2002, the Under Secretary of Defense (Acquisition, Technology, and 
Logistics) issued a policy memorandum that established a review 
structure and process for the acquisition of services in accordance 
with section 801(d). The policy memorandum is available on the World 
Wide Web at http://www.acq.osd.mil/dpap.
    This interim DFARS rule implements section 801(b) of Public Law 
107-107 by establishing approval requirements for contracts and task 
orders for services. The rule prohibits the acquisition of services 
through use of a DoD contract or task order that is not performance 
based, or through any contract or task order that is awarded by an 
agency other than DoD, unless certain approval requirements are met. 
With respect to services acquisitions through a contract or task order 
awarded by an agency other than DoD, the rule requires approval in 
accordance with department or agency procedures. Each of the three

[[Page 56564]]

military departments has developed a ``Management and Oversight of 
Acquisition of Services Process'' to provide a review structure for 
services acquisitions, as required by the May 31, 2002, memorandum. The 
military departments are working to implement this infrastructure, 
which will include approval levels for services acquired through 
another agency's contract.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD does not expect this 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 FAR part 37 
already requires the use of performance-based contracting to the 
maximum extent practicable. This DFARS rule establishes internal DoD 
approval requirements to manage compliance with the existing FAR 
requirements. Therefore, DoD has not performed an initial regulatory 
flexibility analysis. DoD invites comments from small businesses and 
other interested parties. DoD also will consider comments from small 
entities concerning the affected DFARS subpart in accordance with 5 
U.S.C. 610. Such comments should be submitted separately and should 
cite DFARS Case 2002-D024.

C. Paperwork Reduction Act

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

D. Determination to Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense that urgent and compelling reasons exist to publish an 
interim rule prior to affording the public an opportunity to comment. 
This interim rule implements section 801(b) of the National Defense 
Authorization Act for Fiscal Year 2002, which requires DoD to establish 
and implement a management structure for the procurement of services. 
Section 801(b) became effective upon enactment on December 28, 2001. 
Comments received in response to this interim rule will be considered 
in the formation of the final rule.

List of Subjects in 48 CFR Part 237

    Government procurement.

Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.

0
Therefore, 48 CFR part 237 is amended as follows:
0
1. The authority citation for 48 CFR Part 237 continues to read as 
follows:

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

PART 237--SERVICE CONTRACTING

0
2. Sections 237.170 through 237.170-3 are added to read as follows:


237.170  Approval of contracts and task orders for services.


237.1701-1  Scope.

    This section--
    (a) Implements 10 U.S.C. 2330; and
    (b) Applies to services acquired for DoD, regardless of whether the 
services are acquired through--
    (1) A DoD contract or task order; or
    (2) A contract or task order awarded by an agency other than DoD.


237.170-2  Prohibition on acquisition of services.

    Unless approval is obtained in accordance with 237.170-3, do not 
acquire services through use of a contract or task order that'
    (a) Is not performance based; or
    (b) Is awarded by an agency other than DoD.


237.170-3  Approval requirements.

    (a) Acquisition of services through a DoD contract or task order 
that is not performance based.
    (1) For acquisitions at or below $50,000,000, obtain the approval 
of the official designated by the department or agency.
    (2) For acquisitions exceeding $50,000,000, obtain the approval of 
the senior procurement executive.
    (b) Acquisition of services through any contract or task order 
awarded by an agency other than DoD. Obtain approval in accordance with 
department or agency procedures.
[FR Doc. 03-24627 Filed 9-30-03; 8:45 am]
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