[Federal Register Volume 81, Number 58 (Friday, March 25, 2016)]
[Proposed Rules]
[Pages 17050-17051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06725]
Federal Register / Vol. 81 , No. 58 / Friday, March 25, 2016 /
Proposed Rules
[[Page 17050]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 216 and 236
[Docket DARS-2016-0006]
RIN 0750-AI87
Defense Federal Acquisition Regulation Supplement: Prohibition on
Use of Any Cost-Plus System of Contracting for Military Construction
and Military Family Housing Projects (DFARS Case 2015-D040)
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 implement a section of the National
Defense Authorization Act for Fiscal Year 2012 that amended title 10 of
the United States Code by prohibiting any form of cost-plus contracting
for military construction projects or military family housing projects.
DATES: Comments on the proposed rule should be submitted in writing on
or before May 24, 2016, to be considered in the formation of a final
rule.
ADDRESSES: Submit comments identified by DFARS Case 2015-D040, 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-D040''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2015-D040.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``DFARS Case 2015-D040'' on your attached document.
[cir] Email: [email protected]. Include DFARS Case 2015-D040 in
the subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Mr.
Christopher Stiller, 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: Mr. Christopher Stiller, telephone
571-372-6176.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to implement section 2801 of
the National Defense Authorization Act for Fiscal Year 2012 (Pub. L.
112-81). Section 2801 entitled ``Prohibition on Use of Any Cost-Plus
System of Contracting for Military Construction and Military Family
Housing Projects'' amends section 2306 of title 10, United States Code
(U.S.C.), by prohibiting any form of cost-plus contracting for military
construction projects or military family housing projects.
II. Discussion and Analysis
The rule proposes to amend DFARS 216.301-3, Limitations, to
prohibit the use of any form of cost-plus contract type for contracts
in connection with a military construction project or military family
housing project. The placement of the text aligns with general
limitations provided at FAR 16.301-3 on cost-reimbursement contracts.
Because 10 U.S.C. 2306(c) prohibits several distinct kinds of cost-plus
type contracts, the prohibition does not align with any specific cost-
plus type as implemented at FAR 16.301-3.
The prohibition at 10 U.S.C. 2306(c) is broader in scope than the
prohibition currently implemented at DFARS 216.306; therefore, the
language at DFARS 216.306 is revised to add a cross reference to the
proposed revision at DFARS 216.301-3. The proposed rule adds a new
section at DFARS 236.215 to align with FAR 36.215 and provide a cross
reference to DFARS 216.301-3. Finally, a cross reference is also added
at DFARS 236.271 to 216.301-3.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This case does not add any new provisions or clauses or impact any
existing provisions or clauses.
IV. 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.
V. 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. However, an initial
regulatory flexibility analysis has been performed and is summarized as
follows.
DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement section 2801 of the National
Defense Authorization Act for Fiscal Year 2012, which amends 10 U.S.C.
2306, to prohibit any form of cost-plus contracting for military
construction projects or military family housing projects.
There is an existing prohibition at DFARS 216.306 on using certain
cost-plus-fixed-fee contracts funded by a military construction
appropriations acts. This proposed rule expands this prohibition to all
cost-plus contract types in connection with a military construction
project or military family housing project.
There is minimal impact anticipated on small entities as a result
of the proposed rule. Based on data available in the Federal
Procurement Data System, there were only 19 cost-reimbursement type
construction acquisitions awarded in fiscal year 2015, two of which
were awarded to small businesses. There is already a general
prohibition at DFARS 216.306 on certain cost-plus-fixed-fee contracts
funded by a military construction appropriations act. The proposed rule
expands this prohibition to all cost-plus contract types in connection
with a military construction project or a military family housing
project.
There are no new projected reporting, recordkeeping, and other
compliance requirements of the rule.
The rule does not duplicate, overlap, or conflict with any other
Federal rules. There are no known significant alternatives to this
rule.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
[[Page 17051]]
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-D040), in
correspondence.
VI. 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 216 and 236
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 216 and 236 are proposed to be amended as
follows:
0
1. The authority citation for 48 CFR parts 216 and 236 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Add section 216.301-3 to read as follows:
PART 216--TYPES OF CONTRACTS
216.301-3 Limitations.
Contracts in connection with a military construction project or a
military family housing project shall not use any form of a cost-plus
contract type (10 U.S.C. 2306(c)). This applies notwithstanding a
declaration of war or the declaration by the President of a national
emergency under section 201 of the National Emergencies Act (50 U.S.C.
1621) that includes the use of the armed forces.
0
3. Amend section 216.306 by adding introductory text to paragraph (c)
to read as follows:
216.306 Cost-plus-fixed-fee contracts.
(c) Limitations. For contracts in connection with a military
construction project or military family housing project, see the
prohibition at 216.301-3.
* * * * *
PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
0
4. Add section 236.215 to read as follows:
236.215 Special procedures for cost-reimbursement contracts for
construction.
See 216.301-3 for the prohibition on the use of any form of a cost-
plus contract in connection with a military construction project or a
military family housing project.
0
5. Revise section 236.271 to read as follows:
236.271 Cost-plus-fixed-fee contracts.
Annual military construction appropriations acts restrict the use
of cost-plus-fixed-fee contracts (see 216.306(c)). See also 216.301-3
regarding the prohibition against the use of any form of a cost-plus
contract in connection with a military construction project or military
family housing project.
[FR Doc. 2016-06725 Filed 3-24-16; 8:45 am]
BILLING CODE 5001-06-P