[Federal Register Volume 81, Number 58 (Friday, March 25, 2016)]
[Rules and Regulations]
[Pages 17045-17047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06722]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 219, and 252

[Docket 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: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to clarify clauses and their 
prescriptions for small business programs and to create basic and 
alternate clauses structured in a manner to facilitate use of automated 
contract writing systems.

DATES: Effective March 25, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Johnson, telephone 571-
372-6100.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published a proposed rule in the Federal Register at 80 FR 
58669 on September 30, 2015, to clarify, in the small business 
programs' clause prescriptions, the appropriate use of the basic clause 
and its alternate clause. This final rule provides the basic clause at 
252.219-7003, Small Business Subcontracting Plan (DoD Contracts), in 
full text as well as the alternate to the basic clause in full text, 
instead of only reflecting the paragraphs that are different. The 
clause at DFARS 252.219-7010, now titled ``Notification of Competition 
Limited to Eligible 8(a) Concerns--Partnership Agreement'' is modified 
to incorporate Federal Acquisition Regulation (FAR) clause 52.219-18 
and its two alternates into the existing clause at DFARS 252.219-7010. 
No public comments were received in response to the proposed rule. 
Three editorial changes were made to the proposed rule to (1) correct a 
typographical error, (2) update how the basic clause and alternate 
clause for 252.219-7003 are displayed at 212.301, and (3) spell out the 
acronym ``eSRS'' in the DFARS basic and alternate clause 252.219-7003.

II. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule does not change the prescription for DFAR clause 252.219-
7003, Small Business Subcontracting Plan (DoD Contracts); rather, the 
rule merely clarifies the use of the clause and the way it is displayed 
in the regulations. DFARS clause 252.219-7003 is used in conjunction 
with FAR clause 52.219-9, Small Business Subcontracting Plan, and 
applies to solicitations and contracts for commercial items, including 
commercially available off-the-shelf items. The clause is not 
applicable to acquisitions valued at or below the simplified 
acquisition threshold, because the FAR clause is only used in 
acquisitions expected to exceed $700,000.

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

    A final regulatory flexibility analysis has been prepared 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
and is summarized as follows:
    This final rule clarifies: (1) DFARS clause, 252.219-7003, Small 
Business Subcontracting Plan (DoD Contracts), which has an alternate, 
and (2) DFARS clause 252.219-7010, now titled ``Notification of 
Competition Limited to Eligible 8(a) Concerns--Partnership Agreement,'' 
which is an alternate to a FAR clause. The basic and alternate clauses 
will be full, separate clauses for ease of use by the contracting 
officers. This rule also explains the appropriate

[[Page 17046]]

use of the affected basic and alternate clauses for the small business 
programs. No substantial changes are being made to the clauses.
    The objective of this rule is to clarify the use of each clause by 
giving the basic and alternate clauses a separate prescription 
describing when to use the clause for the small business programs. This 
does not change the applicability of the basic or alternate clause. The 
basic and alternate clauses will each appear in full text, which will 
facilitate use of the automated contract writing systems.
    No comments were received from the public in response to the 
initial regulatory flexibility analysis.
    DFARS 252.219-7003, Small Business Subcontracting Plan (DoD 
Contracts), and its alternate are prescribed to be used with FAR 
52.219-9 and its alternates. FAR 52.219-9 does not apply to small 
business concerns; therefore, there is no burden on any small business 
for this rule.
    DFARS 252.219-7010, now titled ``Notification of Competition 
Limited to Eligible 8(a) Concerns--Partnership Agreement,'' is the 
alternate for FAR 52.219-18, Notification of Competition Limited to 
Eligible 8(a) Concerns. This clause only affects 8(a) concerns when 
competing for an 8(a) award. Currently, there are approximately 5,217 
active concerns registered in SAM that are certified in the 8(a) 
program. Nothing substantive will change in solicitations or contracts 
for potential offerors; only the way the clause alternates are 
presented in solicitations and contracts will be changed. This rule 
will result in potential offerors, including small businesses, 
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 used in the solicitations and contracts.
    The rule does not impose any additional reporting, recordkeeping, 
or other compliance requirements.
    No alternatives were identified that will accomplish the objectives 
of the rule.

V. Paperwork Reduction Act

    The rule contains information collection requirements that require 
the approval of the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act (44 U.S.C. chapter 35); however, these changes 
to the DFARS do not impose additional information collection 
requirement to the paperwork burden previously approved under OMB 
Control Number 0704-0386, entitled ``Small Business Programs and 
Associated Clauses in part 252.219.'' The rule merely clarifies the use 
of two DFARS clauses and the way the clauses are displayed in the 
regulation.

List of Subjects in 48 CFR Parts 212, 219, and 252

    Government procurement.

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

    Therefore, 48 CFR parts 212, 219, and 252 are amended as follows:

0
1. The authority citation for 48 CFR parts 212, 219, and 252 continues 
to read as follows:

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

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
2. In section 212.301, revise paragraph (f)(vii)(A) to read as follows:


212.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (f) * * *
    (vii) Part 219--Small Business Programs. (A) Use the clause at 
252.219-7003, Small Business Subcontracting Plan (DoD Contracts), to 
comply with 15 U.S.C. 637.
    (1) Use the basic clause as prescribed in 219.708(b)(1)(A)(1).
    (2) Use the alternate I clause as prescribed in 
219.708(b)(1)(A)(2).
* * * * *

PART 219--SMALL BUSINESS PROGRAMS

0
3. 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
4. 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
5. Amend section 252.219-7003 by--
0
a. Revising the introductory text, clause title, and date;
0
b. Amending paragraph (a) by removing ``eSRS'' and adding ``the 
Electronic Subcontracting Reporting System (eSRS)'' in its place;
0
c. 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 (MAR 2016)

* * * * *
    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 (MAR 
2016)

    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 the Electronic Subcontracting 
Reporting System (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 831 of Public Law 101-510, as amended, may

[[Page 17047]]

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
6. 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 (MAR 2016)

    (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 SBA has determined that there are no small business 
manufacturers 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. 2016-06722 Filed 3-24-16; 8:45 am]
 BILLING CODE 5001-06-P