[Federal Register Volume 83, Number 211 (Wednesday, October 31, 2018)]
[Proposed Rules]
[Pages 54696-54698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23676]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 206, 211, and 213

[Docket DARS-2018-0052]
RIN 0750-AJ50


Defense Federal Acquisition Regulation Supplement: Brand Name or 
Equal (DFARS Case 2017-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 2017 that requires the use of 
brand name or equivalent descriptions or proprietary specifications or 
standards in solicitations to be justified and approved.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before December 31, 2018, to be 
considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2017-D040, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: http://www.regulations.gov. 
Search for ``DFARS Case 2017-D040.'' Select ``Comment Now'' and follow 
the instructions provided to submit a comment. Please include ``DFARS 
Case 2017-D040'' on any attached documents.

[[Page 54697]]

    [cir] Email: osd.dfars@mail.mil. Include DFARS Case 2017-D040 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Carrie Moore, OUSD(A&S)DPC/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: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to revise the DFARS to implement section 888(a) of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 
(Pub. L. 114-328). Section 888(a) requires that competition on DoD 
contracts not be limited through the use of brand name or equivalent 
descriptions, or proprietary specifications or standards, in 
solicitations, unless a justification for such specification is 
provided and approved in accordance with 10 U.S.C. 2304(f). The 
requirements of 10 U.S.C. 2304(f) are implemented in Federal 
Acquisition Regulation (FAR) sections 6.303 and 6.304, which address 
the content, format, and approval authorities for justifications for 
other than full and open competition.

II. Discussion and Analysis

    Currently, FAR 6.302-1(c)(2) states that brand name or equal 
descriptions, and other purchase descriptions that permit prospective 
contractors to offer products other than those specifically referenced 
by brand-name, provide for full and open competition and do not require 
justifications and approvals to support their use. This rule proposes 
to amend DFARS 206.302-1 to add a new paragraph (c)(2) to advise 
contracting officers that, notwithstanding FAR 6.302-1(c)(2), a 
justification and approval described at FAR 6.303 is required when 
using brand name or equal descriptions. A new paragraph (S-70) is also 
added to provide a similar instruction for proprietary specifications 
or standards.
    FAR subpart 13.5 provides simplified procedures for certain 
commercial items. FAR 13.501(a) requires a justification and approval 
for sole source (including brand name) acquisitions. The content and 
approval requirements for these justifications are similar to those 
required under FAR 6.303, but cite to a different authority. This rule 
proposes to amend DFARS 213.501 to advise contracting officers that a 
justification and approval for brand name or equal descriptions or 
proprietary specifications or standards is required when using FAR 
subpart 13.5 simplified procedures for the acquisition of certain 
commercial items.
    In addition, FAR section 11.104 addresses requirements for the use 
of brand name or equal purchase descriptions. As such, this rule 
proposes to add DFARS section 211.104 to direct contracting officers to 
the new requirements at 206.302-1 and 213.501 to complete a 
justification and approval prior to using brand name or equal purchase 
descriptions. Similar direction for use of proprietary specifications 
and standards is also provided in new DFARS section 211.170.

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 propose to create any new DFARS clauses or amend 
any existing DFARS 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. Executive Order 13771

    This rule is not anticipated to be subject to E.O. 13771, because 
this rule is not a significant regulatory action 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 implementing changes to internal Government 
procedures. However, an initial regulatory flexibility analysis (IRFA) 
has been performed and is summarized as follows:
    DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement section 888(a) of the 
National Defense Authorization Act for Fiscal Year 2017. Section 888(a) 
requires that competition in DoD contracts not be limited through the 
use of brand name or equivalent descriptions, or proprietary 
specifications or standards, in solicitations unless a justification 
for such specification is provided and approved in accordance with 10 
U.S.C. 2304(f).
    The objective of this proposed rule is to ensure that contracting 
officers execute a justification and approval in accordance with FAR 
6.302-1 when including brand name or equal descriptions, or proprietary 
specifications or standards in a solicitation.
    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. The Federal 
Procurement Data System (FPDS) does not collect data on contracts 
awarded using brand name or equal descriptions or contracts that were 
competed and included proprietary specifications or standards. 
Currently, brand name or equal descriptions are procured through 
competitive procedures, but FPDS does not identify the subset of 
contracts that were awarded competitively using such descriptions.
    FPDS can provide the number of offers received in response to a 
solicitation. This subset can help DoD better identify the number of 
competitive requirements that may have used such descriptions, 
specifications, or standards, but only received one offer for various 
reasons. According to FPDS, there were 127,536 contracts and orders 
competed and awarded in FY 2017 that only received one offer. Of the 
127,536 new awards, 76,179 (60%) of these actions were awarded to 9,823 
unique small business entities. The proposed rule applies to all 
entities who do business with the Federal Government and is not 
expected to have a significant impact on these entities, regardless of 
business size.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small businesses. 
The proposed rule does not

[[Page 54698]]

duplicate, overlap, or conflict with any other Federal rules. There are 
no known significant alternative approaches to the proposed rule that 
would meet the proposed objectives.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    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-D040), in 
correspondence.

VII. 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 206, 211, and 213

    Government procurement.

Jennifer Lee Hawes,

Regulatory Control Officer, Defense Acquisition Regulations System.
    Therefore, 48 CFR parts 206, 211, and 213 are proposed to be 
amended as follows:

0
1. The authority citation for 48 CFR parts 206, 211, and 213 continues 
to read as follows:

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

PART 206--COMPETITION REQUIREMENTS

0
2. In section 206.302-1, paragraph (c) is added to read as follows:


206.302-1   Only one responsible source and no other supplies or 
services will satisfy agency requirements.

* * * * *
    (c) Application for brand-name descriptions. (2) Notwithstanding 
FAR 6.302-1(c)(2), in accordance with section 888(a) of the National 
Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), the 
justification and approval addressed in FAR 6.303 is required in order 
to use brand name or equal descriptions.
    (S-70) Application for proprietary specifications or standards. In 
accordance with section 888(a) of the National Defense Authorization 
Act for Fiscal Year 2017 (Pub. L. 114-328), the justification and 
approval addressed in FAR 6.303 is required in order to use proprietary 
specifications and standards.
* * * * *

PART 211--DESCRIBING AGENCY NEEDS

0
3. Section 211.104 is added to subpart 211.1 to read as follows:


211.104   Use of brand name or equal purchase descriptions.

    A justification and approval is required to use brand name or equal 
purchase descriptions.
    (1) See 206.302-1(c)(2) for justification requirements when using 
sealed bidding or negotiated acquisition procedures.
    (2) See 213.501(a)(ii) for justification requirement when using 
simplified procedures for certain commercial items.
0
4. Section 211.170 is added to subpart 211.1 to read as follows:


211.170   Use of proprietary specifications or standards.

    A justification and approval is required to use proprietary 
specifications and standards.
    (1) See 206.302-1(S-70) for justification requirements when using 
sealed bidding or negotiated acquisition procedures.
    (2) See 213.501(a)(ii) for justification requirements when using 
simplified procedures for certain commercial items.

PART 213--SIMPLIFIED ACQUISITION PROCEDURES

0
5. Section 213.501 is amended by--
0
a. Designating paragraph (a) as paragraph (i); and
0
b. Adding new paragraph (ii) to read as follows:


213.501   Special documentation requirements.

* * * * *
    (ii) In accordance with section 888(a) of the National Defense 
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), the 
justification and approval addressed in FAR 13.501(a) is required in 
order to use brand name or equal descriptions or proprietary 
specifications and standards.
[FR Doc. 2018-23676 Filed 10-30-18; 8:45 am]
 BILLING CODE 5001-06-P