[Federal Register Volume 83, Number 126 (Friday, June 29, 2018)]
[Proposed Rules]
[Pages 30644-30645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14039]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 211
[Docket DARS-2018-0021]
RIN 0750-AJ23
Defense Federal Acquisition Regulation Supplement: Use of
Commercial or Non-Government Standards (DFARS Case 2017-D014)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) implement a section of the National
Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), which
requires DoD to revise the DFARS to encourage contractors to propose
commercial or non-Government standards and industry-wide practices that
meet the intent of military specifications and standards.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before August 28, 2018, to be considered
in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2017-D014, using
any of the following methods:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Search for ``DFARS Case 2017-D014.'' Select ``Comment Now'' and follow
the instructions provided to submit a comment. Please include ``DFARS
Case 2017-D014'' on any attached documents.
[cir] Email: [email protected]. Include DFARS Case 2017-D014 in
the subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Mr. Mark
Gomersall, OUSD(A&S)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 2 to 3 days after submission to verify posting (except
allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, telephone 571-372-
6099.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the DFARS to implement section 875(c) of
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017
(Pub. L. 114-328). Section 875(c) requires DoD to revise the DFARS to
encourage contractors to propose commercial or non-Government standards
and industry-wide practices that meet the intent of military
specifications and standards.
II. Discussion and Analysis
DoD is proposing to amend DFARS 211.107(b) to require the use of
Federal Acquisition Regulation (FAR) provision 52.211-7, Alternatives
to Government-Unique Standards, in DoD solicitations and contracts that
include military or Government-unique specifications and standards;
and, in so doing, encourage and permit offerors to propose alternatives
to Government-unique standards using an existing FAR provision.
The use of FAR provision 52.211-7 is optional for agencies that
report their use of voluntary consensus standards to the National
Institute of Standards and Technology using the categorical reporting
method. However, Office of Management and Budget (OMB) Circular A-119,
Federal Participation in the Development and Use of Voluntary Consensus
Standards and in Conformity Assessment Activities, requires, at
paragraph 12.a.(4), that agencies using the categorical method of
reporting method must ``Enable potential offerors to suggest voluntary
consensus standards that can replace Government-unique standards.'' Use
of this existing FAR provision will enable DoD to meet the intent of
section 875(c).
In response to OMB Circular A-119, the National Institute of
Standards and Technology collects reports from Federal Agencies on
their use of Government-unique standards, which is reported annually to
Congress. DoD statistics used for that report do not differentiate
among the many different types of Government-unique Standards. The
overriding conceptual approach is to reduce Government reliance on
standards produced by Government entities for their own use.
As a matter of existing policy, DoD discourages the use of military
specifications and standards in solicitations. As stated in DoD
Directive 5000.01: ``When using performance-based strategies, contract
requirements shall be stated in performance terms, limiting the use of
military specifications and standards to Government-unique requirements
only.'' However, to meet the intent of section 875(c) of the NDAA for
FY 2017, DoD is proposing to amend DFARS 211.107(b) to require the use
of FAR provision 52.211-7, Alternatives to Government-Unique Standards,
in DoD solicitations and contracts that include military or Government-
unique specifications and standards to encourage and permit offerors to
propose alternatives to Government-unique standards.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and Contracts for Commercial Items, Including
Commercially Available Off-the-Shelf (COTS) Items
The purpose of this rule is to implement section 875(c) of the NDAA
for FY 2017, which requires DoD to revise the DFARS to encourage
contractors to propose commercial or non-Government standards and
industry-wide practices that meet the intent of military specifications
and standards. DoD does not intend to apply the requirements of section
875(c) to solicitations for contracts valued at or below the SAT or to
contracts for commercial items, including COTS items, because such
contracts do not generally include or require use of military or
Government-unique standards or specifications.
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
[[Page 30645]]
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. Executive Order 13771
This rule is not an E.O. 13771, Reducing Regulation and Controlling
Regulatory Costs, regulatory action, because this rule is not
significant under E.O. 12866.
VI. 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, at 5 U.S.C. 601 et. seq.
However, an initial regulatory flexibility analysis has been prepared
and is summarized as follows:
This proposed rule implements section 875(c) of the National
Defense Authorization Act (NDAA) for FY 2017 (Pub. L. 114-328).
The objective of this rule is to clarify the use of FAR 52.211-7,
Alternatives to Government-Unique Standards, in DoD solicitations and
contracts that include military or Government-unique specifications and
standards. This will encourage and permit Offerors to propose
alternatives to Government-unique standards by using an existing FAR
provision. The legal basis for this rule is section 875(c) of the NDAA
for FY 2017 (Pub. L. 114-328).
The rule will apply to both large and small entities to the extent
that such entities receive Government solicitations containing
Government-unique standards and FAR provision 52.211-7, Alternatives to
Government-unique Standards. Such entities may already be familiar with
this provision as it has been in place since its publication in 1998
(63 FR 68344, December 10, 1998).
As a matter of policy, DoD discourages the use of military
specifications and standards in solicitations. As stated in DoD
Directive 5000.01: ``When using performance-based strategies, contract
requirements shall be stated in performance terms, limiting the use of
military specifications and standards to Government-unique requirements
only.''
In addition, between 1994 and 2000, over 29,000 military
specifications and standards were cancelled. Of those, 6,100 were
canceled without replacement, and 3,500 were superseded by
nongovernment standards. Moreover, DoD participates in over 120 private
sector standards-developing organizations such as ASTM, ANSI, ISO and
IEEE. Voluntary consensus standards adopted by DoD are also listed in
the Defense Logistics Agency ASSIST database to identify the source for
obtaining the adopted standards.
Based on Federal Procurement Data System data for product service
code (PSC) 5342 (hardware, weapon systems), this rule could potentially
apply to approximately 757 unique entities, of which 585 are small
businesses. This is based on the number of DoD contract awards in
fiscal year 2016 for PSC 5342. It cannot be discerned how many of the
contract awards required the use of a military specification or
standard. Further, given the DoD policy of discouraging the use of
military specifications and standards in solicitations, this rule would
likely impact no more than 40 offerors or potential contractors (the
approximate number of DoD contractors involved in major weapons
systems, which are more likely to require Government specifications).
Accordingly, DoD estimates that this rule will have limited
application. However, given the fact that some small number of DoD
solicitations may include a military specification or standard--
generally limited to those involving a major weapons system, this rule
would provide a permissive means for offerors to propose reducing
regulatory burden on a given solicitation.
This rule does not contain reporting and recordkeeping
requirements, since it merely revises guidance to contracting officers
for use of FAR clause 52.211-7, Alternatives to Government-unique
Standards.
As an alternative to this proposed rule, DoD could create a stand-
alone DoD provision. Such a provision, however, would largely
duplicate, overlap, and potentially conflict with the requirements of
the existing provision at FAR 52.211-7.
DoD does not expect this proposed rule to have a significant
economic impact on small entities. The rule will have a positive impact
on both large and small contractors, in that they will now be permitted
to propose alternatives to Government standards using an existing FAR
provision, the same provision used for other, i.e., non-DoD Government
solicitations.
The rule does not duplicate, overlap, or conflict with any other
Federal rules. There are no significant alternatives that meet the
requirement of the statute.
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 2017-D014), in
correspondence.
VII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The
rule contains information collection requirements. OMB has cleared this
information collection requirement under OMB control number 9000-0153,
titled, OMB Circular A-119; FAR Sections Affected: 52.211-7 and 53.105.
List of Subjects in 48 CFR Part 211
Government procurement.
Amy G. Williams,
Deputy, Defense Acquisition Regulations System.
Therefore, 48 CFR part 211 is proposed to be amended as follows:
PART 211--DESCRIBING AGENCY NEEDS
0
1. The authority citation for part 211 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Revise section 211.107 to read as follows:
211.107 Solicitation provision.
(b) Use the provision at FAR 52.211-7, Alternatives to Government-
Unique Standards, in DoD solicitations that include military or
Government-unique specifications and standards.
0
3. Revise section 211.201 to read as follows:
211.201 Identification and availability of specifications.
Follow the procedures at PGI 211.201 for obtaining specifications,
standards, and data item descriptions from the DLA ASSIST database,
including DoD adoption notices on voluntary consensus standards.
[FR Doc. 2018-14039 Filed 6-28-18; 8:45 am]
BILLING CODE 5000-06-P