[Federal Register Volume 80, Number 189 (Wednesday, September 30, 2015)]
[Proposed Rules]
[Pages 58669-58671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24787]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 219 and 252

[Docket No. DARS 2015-0044]
RIN 0750-AI68


Defense Federal Acquisition Regulation Supplement: Clauses With 
Alternates--Small Business Programs (DFARS Case 2015-D017)

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

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to clarify clauses and their 
prescriptions for small business programs and to create a basic and 
alternate clause structured in a manner to facilitate use of automated 
contract writing systems. The rule also includes the full text of the 
alternate, rather than only providing the paragraphs that differ from 
the basic clause. The rule also clarifies one clause that is an 
alternate to a Federal Acquisition Regulation (FAR) clause.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before November 30, 2015, to be 
considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2015-D017, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2015-D017'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2015-D017.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2015-D017'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2015-D017 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Julie 
Hammond, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Julie Hammond, telephone 571-372-
6174.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is issuing this proposed rule to clarify, in the small business 
programs clause prescriptions, the appropriate use of the basic clause 
and its alternate clause. This rule does not substantively change the 
text of any clause (basic or alternate) nor does it change the 
requirement for use of any clause.

II. Discussion and Analysis

    This proposed rule addresses one DFARS part 219 clause that has an 
alternate and one clause that is an alternate to a FAR clause. The 
affected clauses are 252.219-7003, Small Business Subcontracting Plan 
(DoD Contracts), with one alternate, and 252.219-7010, Alternate A.
    This proposed rule provides a basic clause in full text and the 
alternate to the basic clause in full text for DFARS clause 252.219-
7003 instead of only providing the paragraphs that are changed in the 
alternate. Each clause (basic and alternate) will have a separate 
prescription, stating the applicability of the clause. A separate DFARS 
clause has been modified to incorporate FAR clause 52.219-18 and its 
two alternates into 252.219-7010, now titled

[[Page 58670]]

``Notification of Competition Limited to Eligible 8(a) Concerns--
Partnership Agreement.''
    The proposed rule does not change the clause prescriptions, and 
only clarifies for contracting officers the applicability of the clause 
(basic and alternate). The introductory text for the alternate clause 
will continue to explain what portions of the alternate are different 
from the basic clause.

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. 
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 proposed 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 it merely revises the prescriptions for clarity and use of 
provisions and clauses in solicitation and contracts. The clauses with 
alternates are revised to include full text of the basic clause and the 
alternate clause for ease of use for the small businesses. However, an 
initial regulatory flexibility analysis has been performed and is 
summarized as follows: DFARS 252.219-7003 Small Business Subcontracting 
Plan (DoD Contracts) and its alternate are prescribed to be used with 
FAR 52.210-9 and its alternates. FAR 52.219-9 does not apply to small 
business concerns. Therefore there is no burden on any small business 
from this rule relative to the DFARS 252.219-7003 basic and alternate 
clauses.
    DFARS 252.219-7010, Alternate A, is the alternate for FAR 52.219-
18, Notification of Competition Limited to Eligible 8(a) Concerns. 
DFARS 252.219-7010 will affect only those 8(a) concerns when competing 
for an 8(a) award. Currently there are approximately 8,567 active small 
business concerns in the 8(a) program. However, these entities should 
not be economically impacted by the changes addressed in this proposed 
rule, since nothing substantive will change in solicitations or 
contracts for potential offerors, and only the appearance of how clause 
alternates are presented in solicitations and contracts will be 
changed. This rule should result in potential benefits to offerors, 
including small businesses, resulting in offerors expending less time 
to review and understand the solicitation and contract. The rule 
anticipates saving contractors' time by making all paragraph 
substitutions from the basic clause and by not requiring offerors to 
read inapplicable paragraphs contained in the basic clauses where 
alternates are also included in the solicitations and contracts.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D017), in 
correspondence.

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 219 and 252

    Government procurement.

Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 219 and 252 are proposed to be amended as 
follows:

0
1. The authority citation for parts 202 and 252 continues to read as 
follows:

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

PART 219--SMALL BUSINESS PROGRAMS

0
2. In section 219.708, revise paragraph (b)(1)(A) to read as follows:


219.708   Contract clauses.

    (b)(1)(A) Use the basic or alternate clause at 252.219-7003, Small 
Business Subcontracting Plan (DoD Contracts), in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, that contain the 
clause at FAR 52.219-9, Small Business Subcontracting Plan.
    (1) Use the basic clause at 252.219-7003, when using the basic, 
alternate I, or alternate II of FAR 52.219-9.
    (2) Use the alternate I clause at 252.219-7003, when using 
Alternate III of FAR 52.219-9.
* * * * *
0
3. In section 219.811-3, revise paragraph (2) to read as follows:


219.811-3   Contract clauses.

* * * * *
    (2) Use the clause at 252.219-7010, Notification of Competition 
Limited to Eligible 8(a) Concerns--Partnership Agreement, in lieu of 
the clause at FAR 52.219-18, Notification of Competition Limited to 
Eligible 8(a) Concerns, in competitive solicitations and contracts when 
the acquisition is accomplished using the procedures of FAR 19.805 and 
processed in accordance with the PA cited in 219.800.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Amend section 252.219-7003 by--
0
a. Revising the introductory text, clause title, and date;
0
b. In paragraph (c)(2), removing ``Section'' and adding ``section'' in 
its place; and
0
c. Revising Alternate I.
    The revisions read as follows:


252.219-7003   Small Business Subcontracting Plan (DoD Contracts).

    Basic. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(1), use the 
following clause:

Small Business Subcontracting Plan (DOD Contracts)--Basic (Date)

* * * * *
    Alternate I. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(2), 
use the following clause, which uses a different paragraph (f) than the 
basic clause.

Small Business Subcontracting Plan (DOD Contracts)--Alternate I (Date)

    This clause supplements the Federal Acquisition Regulation 
52.219-9, Small Business Subcontracting Plan, clause of this 
contract.
    (a) Definitions. Summary Subcontract Report (SSR) Coordinator, 
as used in this clause, means the individual at the department or 
agency level who is registered in eSRS and is responsible for 
acknowledging receipt or rejecting SSRs in eSRS for the department 
or agency.
    (b) Subcontracts awarded to workshops approved by the Committee 
for Purchase from People Who are Blind or Severely Disabled (41 
U.S.C. 8502-8504), may be counted toward the Contractor's small 
business subcontracting goal.
    (c) A mentor firm, under the Pilot Mentor-Protege Program 
established under section

[[Page 58671]]

831 of Public Law 101-510, as amended, may count toward its small 
disadvantaged business goal, subcontracts awarded to--
    (1) Protege firms which are qualified organizations employing 
the severely disabled; and
    (2) Former protege firms that meet the criteria in section 
831(g)(4) of Public Law 101-510.
    (d) The master plan is approved by the Contractor's cognizant 
contract administration activity.
    (e) In those subcontracting plans which specifically identify 
small businesses, the Contractor shall notify the Administrative 
Contracting Officer of any substitutions of firms that are not small 
business firms, for the small business firms specifically identified 
in the subcontracting plan. Notifications shall be in writing and 
shall occur within a reasonable period of time after award of the 
subcontract. Contractor-specified formats shall be acceptable.
    (f)(1) For DoD, the Contractor shall submit reports in eSRS as 
follows:
    (i) The Standard Form 294, Subcontracting Report for Individual 
Contracts, shall be submitted in accordance with the instructions on 
that form.
    (ii) An SSR for other than a commercial subcontracting plan, or 
construction and related maintenance repair contracts, shall be 
submitted in eSRS to the department or agency within DoD that 
administers the majority of the Contractor's individual 
subcontracting plans. An example would be Defense Finance and 
Accounting Service or Missile Defense Agency.
    (2) For DoD, the authority to acknowledge receipt or reject 
reports in eSRS is as follows:
    (i) Except as provided in paragraph (f)(2)(ii) of this clause, 
the authority to acknowledge receipt or reject SSRs in eSRS resides 
with the SSR Coordinator at the department or agency that 
administers the majority of the Contractor's individual 
subcontracting plans.
    (ii) The authority to acknowledge receipt or reject SSRs for 
construction and related maintenance and repair contracts resides 
with the SSR Coordinator for each department or agency.


(End of clause)
0
5. Revise section 252.219-7010 to read as follows:


252.219-7010   Notification of Competition Limited to Eligible 8(a) 
Concerns--Partnership Agreement.

    As prescribed in 219.811-3(2), use the following clause:

Notification of Competition Limited to Eligible 8(a) Concerns--
Partnership Agreement (Date)

    (a) Offers are solicited only from small business concerns 
expressly certified by the Small Business Administration (SBA) for 
participation in the SBA's 8(a) Program and which meet the following 
criteria at the time of submission of offer:
    (1) The Offeror is in conformance with the 8(a) support 
limitation set forth in its approved business plan.
    (2) The Offeror is in conformance with the Business Activity 
Targets set forth in its approved business plan or any remedial 
action directed by the SBA.
    (3) If the competition is to be limited to 8(a) concerns within 
one or more specific SBA regions or districts, then the offeror's 
approved business plan is on the file and serviced by _____.

[Contracting Officer completes by inserting the appropriate SBA 
District and/or Regional Office(s) as identified by the SBA.]
    (b) By submission of its offer, the Offeror represents that it 
meets all of the criteria set forth in paragraph (a) of this clause.
    (c) Any award resulting from this solicitation will be made 
directly by the Contracting Officer to the successful 8(a) offeror 
selected through the evaluation criteria set forth in this 
solicitation.
    (d)(1) Agreement. A small business concern submitting an offer 
in its own name shall furnish, in performing the contract, only end 
items manufactured or produced by small business concerns in the 
United States or its outlying areas, unless--
    (i) The Small Business Administration has determined that there 
are no small business manufactures or processors in the Federal 
market place in accordance with FAR 19.502-2(c);
    (ii) The acquisition is processed under simplified acquisition 
procedures and the total amount of this contract does not exceed 
$25,000, in which case a small business concern may furnish the 
product of any domestic firm; or
    (iii) The acquisition is a construction or service contract.
    (2) The _____ [insert name of SBA's contractor] will notify the 
_____ [insert name of contracting agency] Contracting Officer in 
writing immediately upon entering an agreement (either oral or 
written) to transfer all or part of its stock or other ownership 
interest to any other party.


(End of clause)

[FR Doc. 2015-24787 Filed 9-29-15; 8:45 am]
 BILLING CODE 5001-06-P