[Federal Register Volume 73, Number 156 (Tuesday, August 12, 2008)]
[Rules and Regulations]
[Pages 46816-46817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18506]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 208

RIN 0750-AG03


Defense Federal Acquisition Regulation Supplement; Competition 
Requirements for Purchases From Federal Prison Industries (DFARS Case 
2008-D015)

AGENCY: Defense Acquisition Regulations System, 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 to implement Section 827 of the 
National Defense Authorization Act for Fiscal Year 2008. Section 827 
requires the use of competitive procedures in the acquisition of items 
for which Federal Prison Industries has a significant market share.

DATES: Effective date: August 12, 2008.
    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before October 14, 2008, to be 
considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2008-D015, 
using any of the following methods:
    [cir] Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    [cir] E-mail: [email protected]. Include DFARS Case 2008-D015 in the 
subject line of the message.
    [cir] Fax: 703-602-7887.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Mr. 
Michael Benavides, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense 
Pentagon, Washington, DC 20301-3062.
    [cir] Hand Delivery/Courier: Defense Acquisition Regulations 
System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
22202-3402.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Benavides, 703-602-1302.

SUPPLEMENTARY INFORMATION: 

A. Background

    Section 827 of the National Defense Authorization Act for Fiscal 
Year 2008 (Pub. L. 110-181) amended 10 U.S.C. 2410n to require the use 
of competitive procedures in the acquisition of items for which Federal 
Prison Industries (FPI) has a significant market share. Section 827 
provides that FPI shall be treated as having a significant share of the 
market for a product if DoD, in consultation with the Office of Federal 
Procurement Policy, determines that the FPI share of the DoD market for 
the category of products including that product is greater than 5 
percent.
    DoD has determined that FPI presently has a significant market 
share of the items in the following Federal Supply Classes (FSC). DoD 
will update the following list as necessary.

 
              FSC                              Description
 
3510                            Laundry and Dry Cleaning Equipment.
5340                            Miscellaneous Hardware.
5935                            Connectors, Electrical.
5975                            Electrical Hardware and Supplies.
5995                            Cable, cord, wire assemblies;
                                 communications equipment.
6145                            Wire and cable, Electrical.
7110                            Office Furniture.
7210                            Household Furnishings.
 

    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 has prepared an initial regulatory flexibility analysis 
consistent with 5 U.S.C. 603. A copy of the analysis may be obtained 
from the point of contact specified herein. The analysis is summarized 
as follows:
    The objective of the rule is to provide for competition in the 
acquisition of items for which FPI has a significant market share. The 
legal basis for the rule is 10 U.S.C. 2410n, as amended by Section 827 
of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 
110-181). The rule is expected to benefit small business concerns that 
offer items for which FPI has a significant market share, by permitting 
those concerns to compete for additional DoD contract awards. The rule 
also could adversely impact small business concerns that provide 
supplies and services to FPI relative to the affected items. The rule 
deviates from the policy in Subpart 8.6 of the Federal Acquisition 
Regulation with regard to the acquisition of items from FPI. This 
alternate DoD policy is necessary to implement Section 827 of Public 
Law 110-181.
    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 
2008-D015.

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

[[Page 46817]]

prior to affording the public an opportunity to comment. This interim 
rule implements Section 827 of the National Defense Authorization Act 
for Fiscal Year 2008 (Pub. L. 110-181). Section 827 requires DoD to use 
competitive procedures in the acquisition of items for which FPI has a 
significant share of the DoD market. 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 208

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR part 208 is amended as follows:

PART 208--REQUIRED SOURCES OF SUPPLIES AND SERVICES

0
1. The authority citation for 48 CFR part 208 continues to read as 
follows:

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


0
2. Subpart 208.6 is added to read as follows:

Subpart 208.6--Acquisition From Federal Prison Industries, Inc.


208.602-70  Acquisition of items for which FPI has a significant market 
share.

    (a) Scope. This subsection implements Section 827 of the National 
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
    (b) Definition. Item for which FPI has a significant market share, 
as used in this subsection, means an item for which FPI's share of the 
DoD market for the federal supply class including that item is greater 
than 5 percent, as determined by DoD in consultation with the Office of 
Federal Procurement Policy. A list of the federal supply classes of 
items for which FPI has a significant market share is maintained at 
http://www.acq.osd.mil/dpap/cpic/cp/specific_policy_areas.html#federal_prison.
    (c) Policy.
    (1) When acquiring an item for which FPI has a significant market 
share--
    (i) Acquire the item using--
    (A) Competitive procedures (e.g., the procedures in FAR 6.102, the 
set-aside procedures in FAR Subpart 19.5, or competition conducted in 
accordance with FAR Part 13); or
    (B) The fair opportunity procedures in FAR 16.505, if placing an 
order under a multiple award delivery-order contract; and
    (ii) Include FPI in the solicitation process, consider a timely 
offer from FPI, and make an award in accordance with the policy at FAR 
8.602(a)(4)(ii) through (v).
    (2) When acquiring an item for which FPI does not have a 
significant market share, acquire the item in accordance with the 
policy at FAR 8.602.

[FR Doc. E8-18506 Filed 8-11-08; 8:45 am]
BILLING CODE 5001-08-P