[Federal Register Volume 84, Number 62 (Monday, April 1, 2019)]
[Rules and Regulations]
[Pages 12139-12140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06251]



Defense Acquisition Regulations System

48 CFR Part 216

[Docket DARS-2019-0007]
RIN 0750-AK45

Defense Federal Acquisition Regulation Supplement: Repeal of 
Congressional Notification for Certain Task- and Delivery-Order 
Contracts (DFARS Case 2018-D076)

AGENCY: Defense Acquisition Regulations System, Department of Defense 

ACTION: Final rule.


SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to make clarifications and 
updates associated with determinations to award task- or delivery-order 
contracts estimated to exceed $112 million to a single source.

DATES: Effective April 1, 2019.

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


I. Background

    DoD is amending the DFARS to clarify that the Congressional 
notification required at Federal Acquisition Regulation (FAR) 
16.504(c)(1)(ii)(D)(2) does not apply to DoD acquisitions. Currently, 
FAR 16.504(c)(1)(ii)(D)(2) requires the head of the agency to notify 
Congress within 30 days after making a determination that it is in the 
public interest to award a task- or delivery-order contract in an 
amount exceeding $112 million to a single source due to exceptional 
circumstances. This notification requirement is codified at 41 U.S.C. 
4103(d)(3)(B). 41 U.S.C. 4103 does not apply to DoD; therefore, the 
DFARS is being amended to clarify that this reporting requirement does 
not apply to DoD acquisitions.
    Additionally, DFARS 216.504(c)(1)(ii)(D) requires that a copy of a 
written determination, made in accordance with FAR 16.504(c)(1)(ii)(D), 
to award a task- or delivery-order contract with a value greater than 
$112 million to a single source be submitted to the Director, Defense 
Pricing and Contracting (DPC). DFARS 216.504(c)(1)(ii)(D)(1) prohibits 
these determinations from being made by an individual below the level 
of the senior procurement official.
    The statutory requirements for DoD to report or provide 
notifications on these determinations have been rescinded and, as a 
result, there is no longer a need for a copy of these determinations to 
be submitted to DPC or to restrict delegation of this the authority. 
Therefore, this rule removes the text at DFARS 216.504(c)(1)(ii)(D) and 
modifies the text at DFARS 216.504(c)(1)(ii)(D)(1) to remove the 
restriction on the delegation of authority to make the determination.

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 FAR is the 
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 simply amends and clarifies 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).

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:


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

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

2. Revise 216.504 to read as follows:

216.504  Indefinite-quantity contracts.

    (c) Multiple award preference--(1) Planning the acquisition. 
(ii)(D)(1) The

[[Page 12140]]

senior procurement executive has the authority to make the 
determination authorized in FAR 16.504(c)(1)(ii)(D)(1).
    (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 senior 
procurement executive 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.
    (2) The congressional notification requirement at FAR 
16.504(c)(1)(ii)(D)(2) does not apply to DoD.

[FR Doc. 2019-06251 Filed 3-29-19; 8:45 am]