[Federal Register Volume 83, Number 126 (Friday, June 29, 2018)]
[Proposed Rules]
[Pages 30659-30661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14040]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 217 and 252
[Docket DARS-2018-0036]
RIN 0750-AJ87
Defense Federal Acquisition Regulation Supplement: Modification
of DFARS Clause ``Surge Option'' (DFARS Case 2018-D025)
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) to revise a clause to reflect current
terminology and industry practices, pursuant to action taken by the
Regulatory Reform Task Force.
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 2018-D025, using
any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by entering ``DFARS Case
2018-D025'' under the heading ``Enter keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``DFARS Case 2018-D025.'' Follow the instructions provided at the
``Submit a Comment'' screen. Please include your name, company name (if
any), and ``DFARS Case 2018-D025'' on your attached document.
Email: [email protected]. Include DFARS Case 2018-D025 in
the subject line of the message.
Fax: 571-372-6094.
Mail: Defense Acquisition Regulations System, Attn: Carrie
Moore, 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: Ms. Carrie Moore, telephone 571-372-
6093.
[[Page 30660]]
SUPPLEMENTARY INFORMATION:
I. Background
This rule proposes to revise the DFARS by modifying DFARS clause
252.217-7001, Surge Option, to replace the term ``Production Surge Plan
(DI-MGMT-80969)'' with ``Capabilities Analysis Plan (CAP)'' and add
text to permit the option increase of supplies or services called for
under the clause to be expressed as a specific number. The associated
clause prescription at DFARS 217.208-70(b) is proposed to be amended to
reflect that the option increase of supplies or services may also be
expressed as a specific number.
This clause is incorporated into contracts that support industrial
planning for selected essential military items in the event of a
national emergency. Currently, the clause advises contractors that the
Government has the option to increase the supplies or services
delivered under the contract up to a specified percentage or accelerate
the rate of delivery. It also instructs contractors to follow the
Production Surge Plan (DI MGMT 80969) included in the contract or, if
no plan is in the contract, to provide a delivery schedule to the
Government within 30 days of contract award. A review of the clause
text indicates that it should be modified to reflect current practices
in the marketplace.
II. Discussion and Analysis
Paragraphs (b)(1) and (2) of DFARS clause 252.217-7001 include a
reference to a Production Surge Plan (DI MGMT 80969). DoD subject
matter experts advise that Production Surge Plan (DI MGMT 80969) is no
longer an up-to-date reference and that Capabilities Analysis Plan
(CAP) is the current terminology used in industrial planning efforts.
This rule will update the clause paragraphs to reflect the current
industry terminology.
Paragraph (a) of the DFARS clause provides contractors with a
maximum quantity of supplies or services by which the Government may
increase the contract in order to support a surge need. This quantity
is expressed as a percentage of the supplies or services currently
being provided for under the contract. Supply chains supporting surge
needs more commonly express increases of supplies or services as a
specific number of additional supplies or services to be provided under
the contract, as opposed to an additional percentage of the supplies or
services already being provided under the contract. In order to reflect
current supply chain practices, this rule proposes to permit the
contracting officer to express DoD's surge need as a specific quantity
of supplies or services needed, or utilize the existing method of
expressing the surge need as a percentage of contracted supplies or
services.
The proposed revision to this DFARS clause supports a
recommendation from the DoD Regulatory Reform Task Force. On February
24, 2017, the President signed Executive Order (E.O.) 13777,
``Enforcing the Regulatory Reform Agenda,'' which established a Federal
policy ``to alleviate unnecessary regulatory burdens'' on the American
people. In accordance with E.O. 13777, DoD established a Regulatory
Reform Task Force to review and validate DoD regulations, including the
DFARS. A public notice of the establishment of the DFARS Subgroup to
the DoD Regulatory Reform Task Force, for the purpose of reviewing
DFARS provisions and clauses, was published in the Federal Register at
82 FR 35741 on August 1, 2017, and requested public input. No public
comments were received on this clause. Subsequently, the DoD Task Force
reviewed the requirements of DFARS 252.217-7001, Surge Option, and
determined that the DFARS coverage should be revised to align with
industry practice.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-the-Shelf (COTS) Items
This rule does not propose to create any new provisions or clauses.
The proposed changes to DFARS clause 252.217-7001, Surge Option, are
minimal and reflect only updates required to mirror current industry
terminology and practice for support that may be required for
industrial planning for selected essential military items in the event
of a national emergency. The rule applies to contracts below the SAT,
however, the rule does not apply to commercial items and COTS items.
IV. Executive Orders 12866 and 13563
Executive Order (E.O.) 12866, Regulatory Planning and Review; and
E.O. 13563, Improving Regulation and Regulatory Review, 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. The Office of Management and Budget, Office of Information
and Regulatory Affairs (OIRA), has determined that this is not a
significant regulatory action as defined under section 3(f) of E.O.
12866 and, therefore, was not subject to review under section 6(b).
This rule is not a major rule as defined at 5 U.S.C. 804(2).
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, 5 U.S.C. 601 et seq.,
because the rule is only updating a term used in the clause and
However, an initial regulatory flexibility analysis has been performed
and is summarized as follows:
The Department of Defense is proposing to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to revise a clause to reflect
current terminology and industry practices, pursuant to action taken by
the Regulatory Reform Task Force.
The objective of this proposed rule is to improve the flexibility
offered to contractors when submitting pricing by giving the option to
quote prices by percentage or quantity increases and update the
terminology used from ``Production Surge Plan'' to ``Capability
Analysis Plan'' (CAP). The modification of this DFARS text supports a
recommendation from the DoD Regulatory Reform Task Force.
This rule is not expected 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. Based on fiscal year
2017 data from the Federal Procurement Data System, the Government
issued approximately 78 contract actions that cited mobilization as the
reason for other than full and open competition for the surge option.
Of the 78 total contract actions, approximately 33 awards were made to
24 unique small businesses entities.
This proposed rule does not include any new reporting,
recordkeeping, or other compliance requirements for small businesses.
This rule does not duplicate, overlap, or conflict with any other
Federal rules. There are no known significant alternative approaches to
the
[[Page 30661]]
proposed rule that would meet the proposed objectives.
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 217 and 252
Government procurement.
Amy G. Williams,
Deputy, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 217 and 252 are proposed to be amended as
follows:
0
1. The authority citation for parts 217 and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 217--SPECIAL CONTRACTING METHODS
217.208-70 [Amended]
0
2. In section 217.208-70, amend paragraph (b)(1), by removing
``percentage'' and adding ``percentage or quantity'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Amend section 252.217-7001 by--
0
a. Removing the clause date of ``(AUG 1992)'' and adding ``(DATE)'' in
its place;
0
b. Revising paragraph (a)(1);
0
c. In paragraph (b)(1), removing ``Production Surge Plan (DI-MGMT)''
and adding ``(Capabilities Analysis Plan (CAP)'' in its place; and
0
d. In paragraph (b)(2), removing ``Production Surge Plan'' and adding
``CAP'' in its place.
The revision reads as follows:
252.217-7001 Surge Option.
* * * * *
(a) * * *
(1) Increase the quantity of supplies or services called for under
this contract by no more than __ percent or __ [insert quantity and
description of services or supplies to be increased]; and/or
* * * * *
[FR Doc. 2018-14040 Filed 6-28-18; 8:45 am]
BILLING CODE 5001-06-P