[Federal Register Volume 83, Number 104 (Wednesday, May 30, 2018)]
[Rules and Regulations]
[Pages 24888-24890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11341]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 211, 215, 216, 218, and 225

[Docket DARS-2018-0026]
RIN 0750-AJ86


Defense Federal Acquisition Regulation Supplement: Delegation of 
Special Emergency Procurement Authority (DFARS Case 2018-D024)

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

ACTION: Final rule.

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SUMMARY: DoD is amending the Defense Federal Acquisition Regulation 
Supplement (DFARS) to delegate to the head of the contracting activity 
the decision authorities provided to the head of the agency by sections 
of the National Defense Authorization Act for Fiscal Year 2018 that 
provide new special emergency procurement authorities. This final rule 
also makes conforming changes to nonstatutory emergency acquisition 
flexibilities relating to item-unique identification, receipt of only 
one offer, and limitations on time-and-materials contracts.

DATES: Effective May 30, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, telephone 571-372-
6106.

SUPPLEMENTARY INFORMATION:

I. Background

    Sections 816 and 164 of the National Defense Authorization Act 
(NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91) add new special 
emergency procurement authorities to include acquisitions, as 
determined by the head of the agency, that facilitate defense against 
or recovery from cyber attack; facilitate the provision of 
international disaster assistance; or support response to an emergency 
or major disaster. These sections 816 and 1641 are being implemented in 
the Federal Acquisition Regulation (FAR) under FAR Case 2018-009.
    Prior to this final rule, DFARS 218.271 delegated to the head of 
the contracting activity the determination authority for application of 
the previously existing special emergency procurement authorities 
(support of a contingency operation or to facilitate defense against or 
recovery from nuclear, biological, chemical, or radiological attack). 
In addition, the DFARS has provided nonstatutory emergency acquisition 
flexibilities relating to item-unique identification, receipt of only 
one offer, and limitations on time-and-materials contracts in 
circumstances similar to, but somewhat more expansive than those 
covered by the statutory special emergency procurement authorities.

II. Discussion and Analysis

    This final rule delegates authority to the head of the contracting 
activity at DFARS 218.271 (redesignated 218.270) whatever special 
procurement authorities are specified in the FAR. This final rule also 
makes conforming changes to nonstatutory emergency acquisition 
flexibilities relating to item-unique identification (DFARS 211.274-
2(b)(1)), receipt of only one offer (DFARS 215.371-4(a)(2)), and 
limitations on time-and-materials contracts (DFARS 216.601(d)(i)(A)(3)) 
and the associated references in part 218.
    However, this final rule does not provide an exception at DFARS 
211.274-2(b)(1) to the requirement for item unique identification, for 
acquisitions that facilitate defense against or recovery from cyber 
attack, because one of the reasons for use of item-unique 
identification is to ensure item-level traceability throughout the 
lifecycle to enhance cyber security (DFARS 211.274-1(e)). Therefore, in

[[Page 24889]]

order to facilitate defense against or recovery from a cyber attack, 
item unique identification is particularly required for high-risk items 
identified by the requiring activity as a target of cyber threats, 
regardless of dollar value (DFARS 211.274-2(a)(3)(v)).
    In addition, the coverage at DFARS 218.270 of the increased 
simplified acquisition threshold when a humanitarian or peacekeeping 
operation is declared has been removed from DFARS, because it is now 
covered in the FAR in the definition of ``simplified acquisition 
threshold'' in FAR 2.101 and at DFARS 218.204.

III. 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 add any new solicitation provisions or contract 
clauses. It does add exceptions to the required use of the clause at 
DFARS 252.211-7003, Item Unique Identification and Valuation. The 
clause is not required when acquiring items to be used to support a 
humanitarian or peacekeeping operation or to facilitate the provision 
of international disaster assistance or to support response to an 
emergency or major disaster. This clause already applies to the 
acquisition of commercial items, but this rule will reduce the required 
usage of the clause.

IV. 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 
primarily affects the internal operating procedures of the Government. 
Specifically, this rule:
     Delegates the special emergency procurement authorities to 
the head of the contracting activity at DFARS 218.270.
     Makes conforming changes to the exception to the only one 
offer policy (DFARS 215.371-5) and the exception to the required 
approval of the determination and findings for time-and-materials or 
labor-hour contracts (DFARS 216.601(d)(i)(A)(3)) when the acquisition 
is to facilitate defense against or recovery from a cyber attack, to 
facilitate the provision of international disaster assistance, or to 
support response to an emergency or major disaster; and the 
corresponding references in DFARS part 218 and 225.
     Adds an exception to the policy at DFARS 211.274-2(b)(1) 
for providing DoD item unique identification when the acquisition is in 
support of a humanitarian or peacekeeping operation, facilitates the 
provision of international disaster assistance, or supports response to 
an emergency or major

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 an Executive Order (E.O.) 13771, Reducing 
Regulation and Controlling Regulatory Costs, regulatory action, 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 VI. 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 will result in a de minimis reduction of burden hours 
through slight reduction in use of DFARS clause 252.211-7003. When 
contractors utilize Wide Area Workflow in accordance with DFARS 
252.232-7003 and Appendix F, the item unique identification information 
required by DFARS 252.211-7003 is automatically transmitted to the IUID 
Registry. The burden imposed by DFARS 252.211-7003 is approved by the 
Office of Management and Budget under OMB clearance 0704-0248, Appendix 
F, Inspection and Receiving, in accordance with the Paperwork Reduction 
Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 211, 215, 216, 218, and 225

    Government procurement.

Amy G. Williams,
Deputy, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 211, 215, 216, 218, and 225 are amended as 
follows:

0
1. The authority citation for parts 211, 215, 216, 218, and 225 
continues to read as follows:

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

PART 211--DESCRIBING AGENCY NEEDS

0
2. In section 211.274-2, revise paragraph (b)(1) to read as follows:


211.274-2   Policy for item unique identification.

* * * * *
    (b) * * *
    (1) The items, as determined by the head of the contracting 
activity, are to be used to support a contingency or humanitarian or 
peacekeeping operation; to facilitate defense against or recovery from 
nuclear, biological, chemical, or radiological attack; to facilitate 
the provision of international disaster assistance; or to support 
response to an emergency or major disaster; or
* * * * *

PART 215--CONTRACTING BY NEGOTIATION

0
3. In section 215.371-4, revise paragraph (a)(2) to read as follows:


215.371-4   Exceptions.

    (a) * * *
    (2) Acquisitions, as determined by the head of the contracting 
activity, in support of contingency or humanitarian or peacekeeping 
operations; to facilitate defense against or recovery from cyber, 
nuclear, biological, chemical, or radiological attack; to facilitate 
the provision of international disaster

[[Page 24890]]

assistance; or to support response to an emergency or major disaster;
* * * * *

PART 216--TYPES OF CONTRACTS

0
4. In section 216.601, revise paragraph (d)(i)(A)(3) to read as 
follows:


216.601   Time-and-materials contracts.

    (d) * * *
    (i) * * *
    (A) * * *
    (3) Exception. The approval requirements in paragraphs (d)(i)(A)(1) 
and (2) of this section do not apply to contracts that, as determined 
by the head of the contracting activity--
    (i) Support contingency or humanitarian or peacekeeping operations;
    (ii) Facilitate defense against or recovery from conventional, 
cyber, nuclear, biological, chemical or radiological attack;
    (iii) Facilitate the provision of international disaster 
assistance; or
    (iv) Support response to an emergency or major disaster.
* * * * *

PART 218--EMERGENCY ACQUISITIONS

0
5. Amend section 218.201 by--
0
a. In paragraph (2), removing ``agency'' and adding ``contracting 
activity'' in its place;
0
b. Redesignating paragraphs (7) through (10) as paragraphs (9) through 
(12), respectively; and
0
c. Adding new paragraphs (7) and (8) to read as follows:


218.201  Contingency operation.

* * * * *
    (7) Only one offer. The requirements at sections 215.371-2 do not 
apply to acquisitions, as determined by the head of the contracting 
activity, in support of a contingency operation. See 215.371-4(a)(2).
    (8) Approval of determination and findings for time-and-materials 
or labor-hour contracts. The approval requirements in paragraphs 
(d)(i)(A)(1) and (2) of this section do not apply to contracts that, as 
determined by the head of the contracting activity, support 
contingency. See 216.601(d)(3).
* * * * *

0
6. Revise section 218.202 to read as follows:


218.202  Defense or recovery from certain events.

    For acquisitions that, as determined by the head of the contracting 
activity, are to facilitate defense against or recovery from cyber, 
nuclear, biological, chemical, or radiological attack; to facilitate 
provision of international disaster assistance; or to support response 
to an emergency or major disaster, the following requirements do not 
apply:
    (1) Policy for unique item identification at 211.274-2(a). 
Contractors are not required to provide DoD unique item identification 
if the items are to be used to facilitate defense against or recovery 
from nuclear, biological, chemical, or radiological attack. However, 
contractors are not exempt from this requirement if the items are to be 
used to facilitate defense against or recovery from cyber attack. See 
211.274-2(b).
    (2) Only one offer requirements at section 215.371-2. See 215.371-
4(a)(2).
    (3) Approval of determination and findings for time-and-materials 
or labor-hour contracts at 216.601(d)(i)(A)(1) and (2). See 
216.601(d)(3).

0
7. Add section 218.204 to read as follows:


218.204  Humanitarian or peacekeeping operation.

    The following requirements do not apply to acquisitions that, as 
determined by the head of the contracting activity, are in support of 
humanitarian or peacekeeping operations:
    (1) Policy for item unique identification at 211.274-2(a). See 
211.274-2(b).
    (2) Only one offer requirements at sections 215.371-2. See 215.371-
4(a)(2).
    (3) Approval of determination and findings for time-and-materials 
or labor-hour contracts at 216.601(d)(i)(A)(1) and (2). See 
216.601(d)(3).


218.270   [Removed]

0
8. Remove section 218.270.


218.271  [Redesignated as 218.270]

0
9. Redesignate section 218.271 as section 218.270 and revise the 
introductory text and paragraph (a) to read as follows:


218.270   Head of contracting activity determinations.

    The term ``head of the agency'' is replaced with ``head of the 
contracting activity,'' as defined in FAR 2.101, in the following 
locations:
    (a) FAR 2.101: definition of ``simplified acquisition threshold.''
* * * * *


218.272   [Redesignated as 218.271 and Amended]

0
10. Redesignate section 218.272 as section 218.271 and remove ``PGI 
218.272'' and add ``PGI 218.271'' in its place.

PART 225--FOREIGN ACQUISITION


225.374   [Amended]

0
11. Amend section 225.374 by removing ``See 218.272'' and adding ``See 
218.271'' in its place.
[FR Doc. 2018-11341 Filed 5-29-18; 8:45 am]
 BILLING CODE 5001-06-P