[Federal Register Volume 83, Number 72 (Friday, April 13, 2018)]
[Rules and Regulations]
[Pages 15995-15996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07732]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 207, 210, and 219
[Docket DARS-2018-0014]
RIN 0750-AJ43
Defense Federal Acquisition Regulation Supplement: Consolidation
of Contract Requirements (DFARS Case 2017-D004)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing a final rule to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to remove outdated coverage
of consolidation of contract requirements.
DATES: Effective April 13, 2018.
FOR FURTHER INFORMATION CONTACT: Ms. Jennifer D. Johnson, telephone
571-372-6100.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is amending the DFARS to remove outdated coverage of
consolidation of contract requirements, which is defined at DFARS
207.170 as ``the use of a solicitation to obtain offers for a single
contract or multiple award contract to satisfy two or more requirements
of a department, agency, or activity for supplies or services that
previously have been provided to, or performed for, that department,
agency, or activity under two or more separate contracts.'' This
coverage implemented 10 U.S.C. 2382, which was repealed by section 1671
of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L.
112-239). Section 1671 also amended section 44 of the Small Business
Act (15 U.S.C. 657q) to remove the requirement for DoD to comply with
10 U.S.C. 2382. As a result, DoD is now required to comply with 15
U.S.C. 657q.
10 U.S.C. 2382 imposed limitations on the use of acquisition
strategies involving consolidation, including requirements to identify
alternative approaches that would involve a lesser degree of
consolidation and to determine that consolidation is necessary and
justified. Section 44 of the Small Business Act (15 U.S.C. 657q)
contains similar limitations. The Federal Acquisition Regulation (FAR)
addresses consolidation, including the limitations of 15 U.S.C. 657q,
at FAR 7.107. By removing the outdated DFARS coverage of consolidation,
this rule will reduce confusion among the DoD contracting workforce
caused by differing requirements in the FAR and DFARS.
II. Discussion and Analysis
This rule deletes DFARS section 207.170 in its entirety to remove
the obsolete text on consolidation of contract requirements. In
addition, paragraphs (a)(i)(A) and (a)(ii)(A) of DFARS section 210.001
are also deleted to remove the reference to the deleted text at DFARS
207.170. In paragraph (c)(11)(A) of the DFARS section 219.201, the
reference to deleted text at DFARS 207.107 is replaced by a reference
to FAR 7.107, where contract consolidate and the limitations of 15
U.S.C. 657q are currently addressed.
III. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the Federal
Acquisition Regulation (FAR) is the Office of Federal Procurement
Policy statute (codified at title 41 of the United States Code).
Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy,
regulation, procedure or form (including an amendment or modification
thereof) must be published for public comment if it relates to the
expenditure of appropriated funds, and has either a significant effect
beyond the internal operating procedures of the agency issuing the
policy, regulation, procedure or form, or has a significant cost or
administrative impact on contractors or offerors. This final rule is
not required to be published for public comment because the rule merely
removes obsolete text from the DFARS, which affects only the internal
operating procedures of the Government.
[[Page 15996]]
IV. 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 create any new provisions or clauses nor impact
any existing provisions or clauses.
V. 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.
VI. Executive Order 13771
This rule is not subject to E.O. 13771, Reducing Regulation and
Controlling Regulatory Costs, because the rule relates to agency
organization, management, or personnel.
VII. Regulatory Flexibility Act
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule under 41
U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable. Accordingly, no regulatory flexibility analysis is
required and none has been prepared.
VIII. 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 207, 210, and 219
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR part 207, 210, and 219 are amended as follows:
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1. The authority citation for parts 207, 210, and 219 continues to read
as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 207--ACQUISITION PLANNING
207.170 [Removed and Reserved]
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2. Remove and reserve section 207.170.
207.170-1 [Removed]
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3. Remove section 207.170-1.
207.170-2 [Removed]
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4. Remove section 207.170-2.
207.170-3 [Removed]
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5. Remove section 207.170-3.
PART 210--MARKET RESEARCH
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6. Amend section 210.001 by revising paragraph (a) to read as follows:
210.001 Policy.
(a) In addition to the requirements of FAR 10.001(a), agencies
shall--
(i) Conduct market research appropriate to the circumstances before
issuing a solicitation with tiered evaluation of offers (section 816 of
Pub. L. 109-163); and
(ii) Use the results of market research to determine whether the
criteria in FAR part 19 are met for setting aside the acquisition for
small business or, for a task or delivery order, whether there are a
sufficient number of qualified small business concerns available to
justify limiting competition under the terms of the contract. If the
contracting officer cannot determine whether the criteria are met, the
contracting officer shall include a written explanation in the contract
file as to why such a determination could not be made (section 816 of
Pub. L. 109-163).
* * * * *
PART 219--SMALL BUSINESS PROGRAMS
219.201 [Amended]
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7. Amend section 219.201 in paragraph (c)(11)(A) by removing ``(see
207.170)'' and adding ``(see FAR 7.107)'' in its place.
[FR Doc. 2018-07732 Filed 4-12-18; 8:45 am]
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