[Federal Register Volume 83, Number 245 (Friday, December 21, 2018)]
[Rules and Regulations]
[Pages 65559-65560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27560]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 216

[Docket DARS-2018-0058]
RIN 0750-AK21


Defense Federal Acquisition Regulation Supplement: Modification 
of the Limitations on Single-Source Task or Delivery Order Contracts 
(DFARS Case 2018-D060)

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

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement a section of the 
National Defense Authorization Act for Fiscal Year 2019 that modifies 
the limitations on awarding single-source task or delivery order 
contracts exceeding $112 million.

DATES: Effective December 21, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is amending the DFARS to implement section 816 of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019. Section 816 
amends 10 U.S.C. 2304a(d)(3)(A) by modifying the limitations on single-
source task or delivery order contracts. Currently, FAR 
16.504(c)(1)(ii)(D)(1)(i) prohibits the award of a task or delivery 
order contract in an amount exceeding $112 million to a single source 
unless the head of the agency determines that the orders expected under 
the contract are so integrally related that only a single source can 
reasonably perform the work. Section 816 amends this limitation in 10 
U.S.C. 2304a to require the head of the agency to determine that only a 
single source can ``efficiently perform the work,'' instead of 
``reasonably perform the work'' as required by 41 U.S.C. 4103. This 
rule adds text to DFARS 216.504 to require agency heads to make the 
determination required by section 816, in lieu of the determination at 
FAR 16.504(c)(1)(ii)(D)(1)(i). In addition, editorial changes are made 
in DFARS 215.504(c) to add paragraph headings and renumber 
subparagraphs to align with the FAR.

II. 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 create any new provisions or clauses or impact 
any existing provisions or clauses.

III. 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 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 it only 
impacts determination and documentation processes that are internal to 
the agency.

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, 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).

[[Page 65560]]

V. Executive Order 13771

    This rule is not an E.O. 13771 regulatory action, because this rule 
is not significant under E.O. 12866.

VI. 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 III. 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.

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 Part 216

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
    Therefore, 48 CFR part 216 is amended as follows:

PART 216--TYPES OF CONTRACTS

0
1. The authority citation for part 216 continues to read as follows:

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

0
2. Amend section 216.504 by--
0
a. Adding headings to paragraphs (c) and (c)(1); and
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b. Revising paragraph (c)(1)(ii)(D).
    The additions and revision read as follows:


216.504   Indefinite-quantity contracts.

    (c) Multiple award preference--(1) Planning the acquisition. 
(ii)(D) A copy of each determination made in accordance with FAR 
16.504(c)(1)(ii)(D) shall be submitted to the Director, Defense 
Procurement and Acquisition Policy, via the OUSD(AT&L)DPAP/CPIC email 
address at [email protected].
    (1) The authority to make the determination authorized in FAR 
16.504(c)(1)(ii)(D)(1) shall not be delegated below the level of the 
senior procurement executive.
    (i) In accordance with section 816 of the National Defense 
Authorization Act for Fiscal Year 2019 (Pub. L. 115-232), when making 
the determination at FAR 16.504(c)(1)(ii)(D)(1)(i), the agency head 
shall determine that the task or delivery orders expected under the 
contract are so integrally related that only a single source can 
``efficiently perform the work,'' instead of ``reasonably perform the 
work'' as required by the FAR.

[FR Doc. 2018-27560 Filed 12-20-18; 8:45 am]
 BILLING CODE 5001-06-P