[Federal Register Volume 84, Number 62 (Monday, April 1, 2019)]
[Rules and Regulations]
[Pages 12140-12141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06250]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 244

[Docket DARS-2019-0006]
RIN 0750-AK24


Defense Federal Acquisition Regulation Supplement: Consent To 
Subcontract (DFARS Case 2018-D065)

AGENCY: Defense Acquisition Regulation 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 to require, for 
DoD contracts with contractors that have approved purchasing systems, 
that a contracting officer have written approval from the program 
manager prior to withholding a consent to subcontract.

DATES: Effective April 1, 2019.

FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Bass, telephone 571-372-
6174.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is issuing a final rule to amend the DFARS to implement section 
824 of the National Defense Authorization Act (NDAA) for Fiscal Year 
(FY) 2019, which amends section 893 of the NDAA for FY 2011 (Pub. L. 
111-383) regarding consent to subcontract requirements. Specifically, 
section 893 requires contracting officers to have written approval from 
the program manager prior to withholding consent to subcontract for DoD 
contracts with contractors that have approved purchasing systems, as 
defined in Federal Acquisition Regulation (FAR) 44.101.

II. Discussion and Analysis

    This rule proposes to add a new paragraph (a) at DFARS 244.201-1 to 
include the new requirement for contracting officers to obtain written 
approval from the program manager prior to withholding a consent to 
subcontract for DoD contracts with contractors that have an approved 
purchasing system. Conforming changes are made to the existing text at 
244.201-1, by renumbering the existing text as paragraph (S-70).

[[Page 12141]]

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 create any new provisions or clauses or impact 
any existing provisions or clauses. The rule only impacts the internal 
operating procedures of the agency. As such, the rule does not impose 
any new requirements on contracts at or below the simplified 
acquisition threshold or for commercial items, including commercially 
available off-the-shelf items.

IV. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the FAR is 41 U.S.C. 
1707 entitled ``Publication of Proposed Regulations.'' Paragraph (a)(1) 
of the statute 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 this rule 
merely establishes internal Government procedures for contracting 
officers to obtain written approval from the program manager prior to 
withholding a consent to subcontract on a contract with a contractor 
with an approved purchasing system.

V. Executive Order 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, 
or reducing costs, or 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.

VI. Executive Order 13771

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

VII. 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 IV. of this preamble), the analytical 
requirement 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.

VIII. 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 244

    Government procurement.

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

    Therefore, 48 CFR part 244 is amended as follows:

PART 244--SUBCONTRACTING POLICIES AND PROCEDURES

0
1. The authority citation for part 244 continues to read as follows:

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

0
2. Amend section 244.201-1 by--
0
a. Designating the existing text as paragraph (S-70); and
0
b. Adding a paragraph (a) to start the section.
    The addition reads as follows:


244.201-1   Consent requirements.

    (a) In accordance with section 824 of the National Defense 
Authorization Act for Fiscal Year 2019 (Pub. L. 115-232), 
notwithstanding the requirements in FAR 44.201-1(a), the contracting 
officer shall not withhold consent to subcontract without the written 
approval of the program manager, or comparable requiring activity 
official exercising program management responsibilities, if the 
contractor has an approved purchasing system, as defined in FAR 44.101.
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[FR Doc. 2019-06250 Filed 3-29-19; 8:45 am]
 BILLING CODE 5006-01-P