[Federal Register Volume 83, Number 211 (Wednesday, October 31, 2018)]
[Proposed Rules]
[Pages 54698-54700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23677]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 206, 215, 234, and 235

[Docket DARS-2018-0053]
RIN 0750-AJ83


Defense Federal Acquisition Regulation Supplement: Amendments 
Related to General Solicitations (DFARS Case 2018-D021)

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 sections of the National 
Defense Authorization Act for Fiscal Year 2018 by expanding the 
definition of other competitive procedures, and extending the term and 
increasing the dollar value under the contract authority for advanced 
development of initial or additional prototype units.

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 2018-D021, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: http://www.regulations.gov. 
Search for ``DFARS Case 2018-D021.'' Select ``Comment Now'' and follow 
the instructions provided to submit a comment. Please include ``DFARS 
Case 2018-D021'' on any attached documents.
    Email: [email protected]. Include DFARS Case 2018-D021 in the 
subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Heather Kitchens, 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. Heather Kitchens, telephone 571-
372-6104.

[[Page 54699]]


SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is proposing to revise the DFARS to implement sections 221 and 
861 of the National Defense Authorization Act (NDAA) for Fiscal Year 
(FY) 2018 (Pub. L. 115-91).
    Section 221 amends 10 U.S.C. 2302(2)(B) to allow for an expanded 
application of other competitive procedures by replacing the words 
``basic research'' with ``science and technology''. Competitive 
procedures are defined in 10 U.S.C. 2302(2) as ``. . . procedures under 
which the head of an agency enters into a contract pursuant to full and 
open competition.'' Changing the words ``basic research'' to ``science 
and technology'' expands the authority to use other competitive 
procedures for ``advanced technology development'' and ``advanced 
component development and prototypes'' research proposals, in addition 
to the previously authorized ``basic research'' and ``applied 
research'' proposals. One of the solicitation methods for research and 
development proposals, a broad agency announcement (BAA), is defined in 
the Federal Acquisition Regulation (FAR) as ``a general announcement of 
an agency's research interest including criteria for selecting 
proposals and soliciting the participation of all offerors capable of 
satisfying the Government's needs.'' Section 221 permits the use of 
BAAs for competitive selection of science and technology proposals by 
authorizing the use of the competitive procedures at 10 U.S.C. 
2302(2)(B) that result from a general solicitation and peer or 
scientific review of such proposals--a key element of the BAA process.
    Section 861 amends 10 U.S.C. 2302e to allow for an extended term 
limit and increased dollar threshold under the contract authority for 
advanced development of initial or additional prototype units awarded 
from a competitive selection, as specified in 10 U.S.C. 2302(2)(B). The 
statutory term limit extends from 12 months to 2 years and the dollar 
threshold increases from $20 million to $100 million in fiscal year 
2017 constant dollars (10 U.S.C. 2302e). Section 861 also amends 10 
U.S.C. 2302e to repeal the obsolete authority implemented by section 
819 of the NDAA for FY 2010 (Pub. L. 111-84), thereby eliminating the 
expiration date of the authority.

II. Discussion and Analysis

    The proposed DFARS changes for the other competitive procedures 
authorized by section 221 and implemented at 10 U.S.C. 2302(2)(B) are 
as follows:
     DFARS section 206.102, Use of Competitive Procedures, is 
added with a statement at paragraph (d)(2) that, for DoD, the 
competitive selection of science and technology proposals resulting 
from a broad agency announcement with peer or scientific review, as 
described in 235.016(a), satisfies the requirement for full and open 
competition. This DFARS section is added, notwithstanding FAR 
6.102(d)(2), which limits other competitive procedures to basic and 
applied research proposals.
     DFARS 215.371-4(a)(4) is revised to provide an only-one-
offer exception for the acquisition of science and technology, as 
described in DFARS 235.016(a), instead of basic or applied research or 
development, as specified in FAR 35.016(a).
     DFARS 235.006-71 is added to direct contracting officers 
who are conducting acquisitions for research and development in 
accordance with FAR part 35 to DFARS 206.102(d)(2) regarding 
competitive procedures for science and technology proposals; and
     DFARS section 235.016, Broad Agency Announcement, is 
revised to provide that broad agency announcements with peer or 
scientific review may be used for science and technology proposals, 
including four categories of science and technology proposals and their 
corresponding budget activity codes.
    The proposed changes to DFARS 234.005-1, Competition, for the 
contract authority for advanced development of initial or additional 
prototype units, authorized by section 861 and implemented at 10 U.S.C. 
2302e, are as follows:
     The term ``general solicitation'' is replaced with ``broad 
agency announcement.''
     The term limit is changed from 12 months to 2 years.
     The dollar threshold is increased from $20 million to $100 
million in fiscal year 2017 constant dollars.
     The expiration date of September 30, 2019, is deleted.
    In summary, this proposed rule expands the application of other 
competitive procedures to include the competitive selection of science 
and technology proposals beyond ``basic research'' proposals. This 
proposed rule also expands the contract authority for advanced 
development of initial or additional prototype units. These procedures 
are internal to the Government with minimal impact to the public.

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 provisions or clauses 
or impact any existing provisions or clauses.

IV. Executive Orders 12866 and 13563

    Executive Order (E.O.s) 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. 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 is not a 
major rule under 5 U.S.C. 804.

V. Executive Order 13771

    This rule is not anticipated to be an E.O. 13771 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. This 
rule impact internal Government procedures by expanding the use of 
other competitive procedures to include the competitive selection of 
science and technology proposals and expands the contract authority for 
advanced development of initial or additional prototype units. However, 
an initial regulatory flexibility analysis has been performed and is 
summarized as follows:
    This rule proposes to amend the DFARS to implement sections 221 and 
861 of the National Defense Authorization Act (NDAA) for Fiscal Year 
(FY) 2018.
    Section 221 expands the definition of ``competitive procedures'' at 
10 U.S.C. 2302(2)(B) by removing the term ``basic research'' and adding 
``science and technology'' in its place. Section 861 implements a 
statutory modification to 10 U.S.C. 2302e to extend the term limit and 
dollar threshold for the contract authority for advanced development of

[[Page 54700]]

initial or additional prototype units from 12 months to 2 years and 
from $20 million to $100 million in fiscal year 2017 constant dollars 
(10 U.S.C. 2302e), respectively. The modification also repeals the 
obsolete authority of section 819 of the NDAA for FY 2010 (Pub. L. 111-
84), thereby eliminating the expiration date of September 30, 2019, for 
the contract authority for advanced development of initial or 
additional prototype units.
    The objective of this rule is to implement sections 221 and 861 to 
establish broad agency announcements as a competitive procedure that 
may be used to select science and technology proposals and to expand 
the term limit and dollar threshold for the contract authority for 
advanced development of initial or additional prototype units.
    In FY 2017, DoD awarded 1,853 contracts for research and 
development, excluding Small Business Innovation Research (SBIR) and 
Small Technology Transfer Research (STTR) program requirements. 
Approximately 53% of those new contract actions were awarded to 1,005 
of unique small business and nontraditional DoD entities. There were 
2,858 new contract awards for SBIR and STTR program requirements for 
DoD. Approximately 66% of those new contract actions were awarded to 
1,891 of unique small business and nontraditional DoD entities.
    This proposed rule does not include any new reporting or 
recordkeeping requirements for small entities.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no known significant alternative approaches to the 
proposed rule that would meet the requirements of the applicable 
statute.
    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 2018-D021), 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, 215, 234 and 235

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 206, 215, 234, and 235 are proposed to be 
amended as follows:

0
1. The authority citation for 48 CFR parts 206, 215, 234, and 235 
continues to read as follows:

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

PART 206--COMPETITION REQUIREMENTS

0
2. Subpart 206.1 is added to read as follows:

Subpart 206.1--Full and Open Competition


206.102   Use of competitive procedures.

    (d) Other competitive procedures. (2) In lieu of FAR 6.102(d)(2), 
competitive selection of science and technology proposals resulting 
from a broad agency announcement with peer or scientific review, as 
described in 235.016(a) (10 U.S.C. 2302(2)(B)).

PART 215--CONTRACTING BY NEGOTIATION

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


215.371-4  Exceptions.

    (a) * * *
    (4) Acquisitions of science and technology, as specified in 
235.016(a); or
* * * * *

PART 234--MAJOR SYSTEM ACQUISITION

0
4. Section 234.005-1 is amended by--
0
a. Removing paragraph (2);
0
b. Redesignating paragraph (1) as introductory text;
0
c. In the newly redesignated introductory text, removing ``general 
solicitation'' and adding ``broad agency announcement'' in its place;
0
d. Redesignating paragraphs (i), (ii), and (iii) as paragraphs (1), 
(2), and (3), respectively;
0
e. In the newly redesignated paragraph (2), removing ``12 months'' and 
adding ``2 years'' in its place; and
0
f. Revising the newly redesignated paragraph (3) to read as follows:


234.005-1  Competition.

* * * * *
    (3) The dollar value of the work to be performed pursuant to the 
contract line item or contract option shall not exceed $100 million in 
fiscal year 2017 constant dollars. (10 U.S.C. 2302e).

PART 235--RESEARCH AND DEVELOPMENT CONTRACTING

0
5. Section 235.006-71 is amended by--
0
a. Designating the text as paragraph (b); and
0
b. Adding a new paragraph (a) to read as follows:


235.006-71   Competition.

    (a) Use of a broad agency announcement with peer or scientific 
review for the award of science and technology proposals in accordance 
with 235.016(a) fulfills the requirement for full and open competition 
(see 206.102(d)(2)).
* * * * *
0
6. Section 235.016 is added to read as follows:


235.016   Broad agency announcement.

    (a) General. A broad agency announcement with peer or scientific 
review may be used for the award of science and technology proposals. 
Science and technology proposals include proposals for the following:
    (i) Basic research (budget activity 6.1).
    (ii) Applied research (budget activity 6.2).
    (iii) Advanced technology development (budget activity 6.3).
    (iv) Advanced component development and prototypes (budget activity 
6.4).

[FR Doc. 2018-23677 Filed 10-30-18; 8:45 am]
 BILLING CODE 5001-06-P