[Federal Register Volume 84, Number 32 (Friday, February 15, 2019)]
[Rules and Regulations]
[Pages 4364-4366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02527]
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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: Final rule.
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SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement sections of the
National Defense Authorization Act for Fiscal Year 2018, which expand
the definition of ``competitive procedures'' in 10 U.S.C. 2302 and
extend the term and increase the dollar value under the contract
authority for advanced development of initial or additional prototype
units.
DATES: Effective February 15, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Heather Kitchens, telephone 571-
372-6104.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 83 FR
54698 on October 31, 2018, 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'' were defined in 10 U.S.C. 2302(2)(B) to include ``the
competitive selection for award of basic research proposals resulting
from a general solicitation, and the peer review or scientific review
(as appropriate) of such proposals.'' Changing the words ``basic
research'' to ``science and technology'' expands the meaning of other
competitive procedures to apply to ``advanced technology development''
and ``advanced component development and prototypes'' research
proposals, in addition to ``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.
One respondent submitted a public comment on the proposed rule.
II. Discussion and Analysis
DoD reviewed the public comment in the development of the final
rule. A discussion of the comment received and any changes made to the
rule is provided as follows:
A. Summary of Significant Changes
DoD did not make any changes to the proposed rule as a result of
the public comment.
B. Analysis of Public Comment
Comment: The respondent recommended the proposed rule update
213.106-1(b) to address documentation requirements related to
competition for actions not exceeding the simplified acquisition
threshold (SAT).
Response: Since there is no DFARS 213.106-1(b) section, DoD
reviewed FAR 13.106-1(b), Soliciting Competition, which allows
contracting officers to solicit from a single source, for purchases not
exceeding the SAT, if the contracting officer determines that
circumstances deem only one source reasonably available. This rule
relates to soliciting proposals using other competitive procedures
(such as a broad agency announcement) and is not related to
solicitations of a single source for purchases not exceeding the SAT;
[[Page 4365]]
therefore, DoD determined that the public comment is outside the scope
of this rule.
C. Other Changes
One minor editorial change is made to the final rule. DoD compared
the proposed rule to the current version of the DFARS text and noted
the need to correct a typo at DFARS 215.371-4(a) by changing the word
``sections'' to ``section''.
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 add 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 final rule is not an E.O. 13771 regulatory action, because
this rule is not significant under E.O. 12866.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis has been prepared 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
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. This
rule impacts internal Government procedures by expanding the meaning 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.
There were no public comments concerning the initial regulatory
flexibility analysis.
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 final rule does not include any new reporting or recordkeeping
requirements for small entities.
There are no known significant alternative approaches to the final
rule that would meet the requirements of the applicable statute.
VI. Paperwork Reduction Act
This final 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 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
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2. Subpart 206.1, consisting of 206.102, 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. Section 215.371-4 is amended by revising paragraph (a)(4) 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);
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b. Redesignating paragraph (1) and (1)(i) through (iii) as introductory
text and paragraphs (1), (2), and (3), respectively;
0
c. In the newly redesignated introductory text, removing ``general
solicitation'' and adding ``broad agency announcement'' in its place;
0
d. In the newly redesignated paragraph (2) removing ``12 months'' and
adding ``2 years'' in its place; and
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e. 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
[[Page 4366]]
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. Redesignating the introductory text as paragraph (b); and
0
b. Adding paragraph (a).
The addition reads 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. 2019-02527 Filed 2-14-19; 8:45 am]
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