[Federal Register Volume 84, Number 83 (Tuesday, April 30, 2019)]
[Proposed Rules]
[Pages 18228-18230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08484]



Defense Acquisition Regulations System

48 CFR Parts 239 and 252

[Docket DARS-2019-0017]
RIN 0750-AK10

Defense Federal Acquisition Regulation Supplement: Modification 
of DFARS Clause ``Orders for Facilities and Services'' (DFARS Case 

AGENCY: Defense Acquisition Regulations System, Department of Defense 

ACTION: Proposed rule.


SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to modify the text of an existing DFARS 
clause to include the text of another DFARS clause on the same subject 
in an effort to streamline contract terms and conditions for 
contractors, pursuant to action taken by the DoD Regulatory Reform Task 

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before July 1, 2019, to be considered in 
the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2018-D045, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Search for 
``DFARS Case 2018-D045.'' Select ``Comment Now'''' and follow the 
instructions provided to submit a comment. Please include ``DFARS Case 
2018-D045'' on any attached documents.
    [cir] Email: [email protected]. Include DFARS Case 2018-D045 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Carrie 
Moore, OUSD(AT&L)DPAP/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,

[[Page 18229]]

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. Carrie Moore, telephone 571-372-


I. Background

    This rule proposes to modify the DFARS clause 252.239-7004, Orders 
for Facilities and Services, to incorporate the information currently 
included in DFARS clause 252.239-7005, Rates, Charges, and Services, 
and make minor changes to simplify the clause text. Combining these 
clauses will result in 252.239-7005 being removed from the DFARS.

II. Discussion and Analysis

    The clauses at DFARS 252.239-7004 and 252.239-7005 are both 
included in all solicitations, contracts, and basic agreements for 
telecommunications services. The clause at 252.239-7004 specifies how 
contractors shall acknowledge the receipt orders under the contract or 
agreement, while the clause at 252.239-7005 provides contractors with 
terms and conditions regarding charges for facilities and services 
being provided in accordance with the contract or agreement. Since both 
clauses are included in all of the same contracts as DFARS clause 
252.239-7004 and both clauses provide terms and conditions pertaining 
to telecommunications services, the text of the two clauses can be 
combined, without changing the intent of either one of the clauses. 
This will help minimize the number of clauses in the contract and 
streamline contract terms and conditions for contractors.
    The modification of this DFARS text supports a recommendation from 
the DoD Regulatory Reform Task Force. On February 24, 2017, the 
President signed Executive Order (E.O.) 13777, ``Enforcing the 
Regulatory Reform Agenda,'' which established a Federal policy ``to 
alleviate unnecessary regulatory burdens'' on the American people. In 
accordance with E.O. 13777, DoD established a Regulatory Reform Task 
Force to review and validate DoD regulations, including the DFARS. A 
public notice of the establishment of the DFARS Subgroup to the DoD 
Regulatory Reform Task Force, for the purpose of reviewing DFARS 
provisions and clauses, was published in the Federal Register at 82 FR 
35741 on August 1, 2017, and requested public input. No public comments 
were received on these clauses. Subsequently, the DoD Task Force 
reviewed the requirements of DFARS clause 252.239-7004 and 252.239-7005 
and determined that the clauses could be combined.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-The-Shelf Items

    This proposed rule does not create any new provisions or clauses. 
The rule combines two clauses on the same topic into a single clause 
and makes minor modifications to simplify clause text. This rule does 
not change the applicability of the affected clauses, which are 
included in solicitations and contracts for telecommunications 
services, including those valued at or below the SAT or for commercial 

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 subject to Executive Order (E.O.) 13771, because 
this rule is not a significant regulatory action 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., 
because the rule is not creating any new requirements or changing any 
existing requirements for contractors. However, an initial regulatory 
flexibility analysis has been performed and is summarized as follows:
    The Department of Defense is proposing to amend the Defense Federal 
Acquisition Regulation Supplement (DFARS) to modify the text of DFARS 
clause 252.239-7004, Orders for Facilities and Services, to include the 
text of DFARS clause 252.239-7005, Rates, Charges, and Services. 
Combining the requirements of these two clauses permits DFARS 252.239-
7005 to be removed from the DFARS.
    The objective of this proposed rule is to streamline contract terms 
and conditions pertaining to telecommunications services. The 
modification of these DFARS clauses supports a recommendation from the 
DoD Regulatory Reform Task Force.
    This rule is not expected 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., because it is simply 
combining two existing clauses that address the same topic into a 
single comprehensive clause.
    Based on fiscal year (FY) 2018 data from the Federal Procurement 
Data System, the Government awarded approximately 8,670 contracts and 
orders for services under the Product and Supply Code (PSC) D3--
Information Technology and Telecommunications. Of the 8,670 contracts 
and orders awarded, approximately 28% of the awards were made to 1,050 
unique small businesses entities. The PSC D3 does not break down 
further into information technology services and telecommunications 
services; therefore, the number of contracts and orders awarded in FY 
2018 exclusively for telecommunications services is estimated to be 
fewer than the number awarded in FY 2018 under PSC D3 in its entirety.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small businesses. 
This 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 proposed objectives.
    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-D035) 
in correspondence.

[[Page 18230]]

VI. 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 239 and 252

    Government procurement.

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

    Therefore, 48 CFR part 239 and 252 are proposed to be amended as 

1. The authority citation for parts 239 and 252 continues to read as 

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


2. Amend section 239.7411 by--
a. In paragraph (a) introductory text, removing the em dash and 
replacing it with a period;
b. In paragraphs (a)(1) and (2), removing the semicolons and adding 
periods in their places;
c. Removing paragraph (a)(3);
d. Redesignating paragraphs (a)(4) through (6) as paragraphs (a)(3) 
through (5), respectively; and
e. In redesignated paragraphs (a)(3) and (4), removing the semicolons 
and adding periods in their places.


3. Revise section 252.239-7004 to read as follows:

252.239-7004  Orders for Facilities and Services.

    As prescribed in 239.7411(a), use the following clause:

Orders for Facilities and Services (Date)

    (a) Definitions: As used in this clause--
    Governmental regulatory body means the Federal Communications 
Commission, any statewide regulatory body, or any body with less 
than statewide jurisdiction when operating under the state 
authority. Regulatory bodies whose decisions are not subject to 
judicial appeal, and regulatory bodies that regulate a company owned 
by the same entity that creates the regulatory body are not 
governmental regulatory bodies.
    (b) The Contractor shall acknowledge a communication service 
authorization or other type order for supplies and facilities by--
    (1) Commencing performance after receipt of an order; or
    (2) Written acceptance by a duly authorized representative.
    (c) The Contractor shall furnish the services and facilities 
under this agreement/contract in accordance with all applicable 
tariffs, rates, charges, regulations, requirements, terms, and 
conditions of--
    (1) Service and facilities furnished or offered by the 
Contractor to the general public or the Contractor's subscribers; or
    (2) Service as lawfully established by a governmental regulatory 
    (d) The Government will not prepay for services.
    (e) For nontariffed services, the Contractor shall charge the 
Government at the lowest rate and under the most favorable terms and 
conditions for similar service and facilities offered to any other 
    (f) Recurring charges for services and facilities shall, in each 
case, start with the satisfactory beginning of service or provision 
of facilities or equipment and are payable monthly in arrears.
    (g) Expediting charges are costs necessary to get services 
earlier than normal. Examples are overtime pay or special shipment. 
When authorized, expediting charges shall be the additional costs 
incurred by the Contractor and the subcontractor. The Government 
shall pay expediting charges only when--
    (1) They are provided for in the tariff established by a 
governmental regulatory body; or
    (2) They are authorized in a communication service authorization 
or other contractual document.
    (h) When services normally provided are technically unacceptable 
and the development, fabrication, or manufacture of special 
equipment is required, the Government may--
    (1) Provide the equipment; or
    (2) Direct the Contractor to acquire the equipment or 
facilities. If the Contractor acquires the equipment or facilities, 
the acquisition shall be competitive, if practicable.
    (i) If at any time the Government defers or changes its orders 
for any of the services but does not cancel or terminate them, the 
amount paid or payable to the Contractor for the services deferred 
or modified shall be equitably adjusted under applicable tariffs 
filed by the Contractor with the regulatory commission in effect at 
the time of deferral or change. If no tariffs are in effect, the 
Government and the Contractor shall equitably adjust the rates by 
mutual agreement. Failure to agree on any adjustment shall be a 
dispute concerning a question of fact within the meaning of the 
Disputes clause of this contract.

252.239-7005   [Removed and Reserved]

4. Remove and reserve section 252.239-7005.

[FR Doc. 2019-08484 Filed 4-29-19; 8:45 am]