[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Rules and Regulations]
[Pages 13544-13546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04355]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 215, 225, and 252

RIN 0750-AH73


Defense Federal Acquisition Regulation Supplement: Acquisition of 
Tents and Other Temporary Structures (DFARS Case 2012-D015)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD has adopted as final, with changes, an interim rule 
amending the DFARS to implement sections of the National Defense 
Authorization Act for Fiscal Year 2012 that address the acquisition of 
tents and other temporary structures.

DATES: Effective February 28, 2013.

FOR FURTHER INFORMATION CONTACT: Fernell Warren, telephone 571-372-
6089.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published an interim rule in the Federal Register (77 FR 38734) 
on June

[[Page 13545]]

29, 2012, to implement sections 368 and 821 of the National Defense 
Authorization Act for Fiscal Year 2012 (Pub. L. 112-81). Section 368 
requires award of contracts that provide the best value, when acquiring 
tents and other temporary structures, regardless of whether purchased 
by DoD or by another agency on behalf of DoD. Section 821 amends 10 
U.S.C. 2533a (the ``Berry Amendment'') to extend the restriction 
requiring acquisition of domestic tents to include the structural 
components of tents, applicable to acquisitions that exceed the 
simplified acquisition threshold.
    No respondents submitted comments in response to the interim rule.

II. Discussion

    Although no written public comments were received, DoD has amended 
the final rule as follows in response to verbal questions, which 
indicated possible misinterpretation of the interim rule.

A. Tents and Structural Components of Tents

    Question: Does the term ``structural components'' apply just to 
tents, or also to tarpaulins and covers?
    Response: The vertical listing of the items at 225.7002-1(a)(3) and 
252.225-7012(b)(3) ensures clarity that the phrase ``structural 
components'' only applies to tents and not also to tarpaulins and 
covers.

B. Best Value When Acquiring Tents and Other Temporary Structures

    Question: Does the Berry Amendment now apply to temporary 
structures?
    Response: The interim rule addressed at DFARS 225.7002-1(a)(3)(i) 
the requirement to award contracts that provide best value, when 
acquiring tents and other temporary structures. DFARS 225.7002-1 
implements the domestic source restrictions of the Berry Amendment (10 
U.S.C. 2533a). However, temporary structures are not covered under the 
Berry Amendment. Therefore, this requirement relating to best value has 
been moved to DFARS 215.101, supplementing FAR 15.101, Best value 
continuum. This will remove any implication that temporary structures 
are covered by the Berry Amendment.

III. 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. 
The Office of Information and Regulatory Affairs has determined that 
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.

IV. Regulatory Flexibility Act

    DoD does not expect this final 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. However, a final 
regulatory flexibility analysis has been prepared and is summarized as 
follows:
    The objectives of this final rule are to--
     Require that contracts for the acquisition of tents and 
other temporary structures provide best value, regardless of whether 
purchased by DoD or by another agency on behalf of DoD; and
     Extend the domestic source restriction of 10 U.S.C. 2533a 
(the ``Berry Amendment'') to cover the structural components of tents, 
in order to promote the use of domestic materials and enhance growth of 
the United States economy.
    The legal basis for this final rule is sections 368 and 821 of the 
National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-
81). The requirement to award contracts that provide best value to the 
Government does not have any impact on small business entities, because 
that is already a general requirement for all acquisitions.
    The domestic source restriction on the structural components of 
tents does not apply below the simplified acquisition threshold. This 
restriction may affect approximately 40 or fewer small business 
concerns at the prime contract level. Review of the Fiscal Year 2011 
data on acquisition of items with product or service code 8340 (tents 
or tarpaulins) identified 49 actions with small business concerns 
(contracts or orders), estimated value of $48.6 million, of which about 
10 percent appeared to be for other than tents (e.g., prefabricated 
metal buildings and components, metal household furnishings, or 
electrical equipment). The Federal Procurement Data System does not 
provide data on components, so it is not known the extent to which the 
providers of tents currently utilize domestic or foreign structural 
components. An exception may be granted if a component is domestically 
nonavailable. However, this rule promotes the use of domestic 
components, and should, therefore, be favorable to small entities that 
provide domestic structural components of tents. The requirements of 
the rule for use of domestic components will not apply below the 
simplified acquisition threshold.
    This rule does not impose any reporting or recordkeeping 
requirements. The rule does not duplicate, overlap, or conflict with 
any other Federal rules.
    DoD did not identify any significant alternatives that would 
accomplish the stated objectives of the statute. The rule specifically 
implements the statutory requirement.

V. 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 215, 225, and 252

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.
    Accordingly, the interim rule amending 48 CFR parts 215, 225, and 
252 which was published at 77 FR 38734 on June 29, 2012, is adopted as 
a final rule with the following changes:

0
1. The authority citation for 48 CFR parts 215, 225, and 252 continues 
to read as follows:

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

PART 215--CONTRACTING BY NEGOTIATION

0
2. Subpart 215.1 is added to read as follows:

Subpart 215.1--Source Selection Processes and Techniques

Sec.
225.101 Best value continuum.
215.101-70 Best value when acquiring tents or other temporary 
structures.


215.101  Best value continuum.


215.101-70.  Best value when acquiring tents or other temporary 
structures.

    (a) In accordance with section 368 of the National Defense 
Authorization Act for Fiscal Year 2012 (Pub. L. 112-81), when acquiring 
tents or other temporary

[[Page 13546]]

structures for use by the Armed Forces, the contracting officer shall 
award contracts that provide the best value. Temporary structures 
covered by this paragraph are nonpermanent buildings, including 
tactical shelters, nonpermanent modular or pre-fabricated buildings, or 
portable or relocatable buildings, such as trailers or equipment 
configured for occupancy (see also 246.270-2). Determination of best 
value includes consideration of the total life-cycle costs of such 
tents or structures, including the costs associated with any equipment, 
fuel, or electricity needed to heat, cool, or light such tents or 
structures (see FAR 7.105(a)(3)(i) and PGI 207.105(a)(3)(i)).
    (b) The requirements of this section apply to any agency or 
department that acquires tents or other temporary structures on behalf 
of DoD (see FAR 17.503(d)(2)).

PART 225--FOREIGN ACQUISITION

0
3. Section 225.7002-1 is amended by revising paragraph (a)(3) to read 
as follows:


225.7002-1  Restrictions.

    (a) * * *
    (3)(i) Tents and the structural components of tents;
    (ii) Tarpaulins; or
    (iii) Covers.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.212-7001  [Amended]

0
4. Section 252.212-7001 is amended by removing the clause date ``(DEC 
2012)'' and adding ``(FEB 2013)'' in its place, and in paragraph (b)(9) 
removing ``(DEC 2012)'' and adding ``(FEB 2013)'' in its place.
0
5. Section 252.225-7012 is amended by removing the clause date ``(DEC 
2012)'' and adding ``(FEB 2013)'' in its place, and by revising 
paragraph (b)(3) to read as follows:


252.225-7012  Preference for certain domestic commodities.

* * * * *
    (b) * * *
    (3)(i) Tents and structural components of tents;
    (ii) Tarpaulins; or
    (iii) Covers.
* * * * *
[FR Doc. 2013-04355 Filed 2-27-13; 8:45 am]
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