[Federal Register Volume 84, Number 125 (Friday, June 28, 2019)]
[Proposed Rules]
[Pages 30984-30986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13744]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 207, 215, 216, and 234
[Docket DARS-2019-0026]
RIN 0750-AK38
Defense Federal Acquisition Regulation Supplement: Reliability
and Maintainability in Weapon System Design (DFARS Case 2019-D003)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: DOD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement a section of the National
Defense Authorization Act for Fiscal Year 2018 that requires the use of
reliability and maintainability sustainment factors in weapon system
design.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before August 27, 2019, to be considered
in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2019-D003, using
any of the following methods:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by entering ``DFARS
Case 2019-D003'' under the heading ``Enter keyword or ID'' and
selecting ``Search.'' Select the link ``Submit a Comment'' that
corresponds with ``DFARS Case 2019-D003.'' Follow the instructions
provided at the ``Submit a Comment'' screen. Please include your name,
company name (if any), and ``DFARS Case 2019-D003'' on your attached
document.
[cir] Email: [email protected]. Include DFARS Case 2019-D003 in
the subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms.
Kimberly Bass, OUSD(A&S)DPC/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,
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. Kimberly Bass, telephone 571-372-
6174.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the DFARS to implement section 834 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018
(Pub. L. 115-91). Section 834 amends title 10, United States Code
(U.S.C.), to add section 2443, sustainment factors in weapon system
design, which requires program managers or comparable requiring
activity officials exercising program management responsibilities to
ensure that reliability and maintainability are included in the
performance attributes of the key performance parameters on sustainment
during the development of capabilities requirements for major weapon
systems design and contracts for the--
Engineering and manufacturing development of a weapon
system, including embedded software; or
Production of a weapon system, including embedded
software.
As a matter of policy, the Under Secretary of Defense for
Acquisition and Sustainment directed application of the requirements of
10 U.S.C. 2443 to the technical maturation and risk reduction phase.
II. Discussion and Analysis
The following changes to the DFARS are proposed to implement 10
U.S.C. 2443:
DFARS 207.106(S-70)(2)(ii)(A) implements 10 U.S.C. 2443 as an
additional requirement for major systems, and provides guidance to the
acquisition team during acquisition planning to ensure that reliability
and maintainability are included in the performance attributes of the
key performance parameters on sustainment during the development of
capabilities requirements.
DFARS 207.106(S-72)(5) informs the contracting officer to ensure
best
[[Page 30985]]
practices are used during the development of performance measures for
use in responding to the negative or positive contractor performance in
meeting the contract requirements for sustainment for a weapon system
as defined in 10 U.S.C. 2302 and 2303d during acquisition planning. The
contracting officer is to encourage the use of incentive fees and
penalties as appropriate and allow the program manager or requiring
activity official performing program management responsibilities to
base determination of contractor performance on reliability and
maintainability data collected during the program. The data collected
must be described in detail and shared with appropriate contract and
Government organizations to the maximum extent practicable.
DFARS 215.304(c)(vi) informs the contracting officer that, in
coordination with the program manager or comparable requiring activity
official performing program management responsibilities, source
selections must emphasize sustainment factors and objective reliability
and maintainability evaluation criteria in competitive contracts for
the technical maturation and risk reduction phase, and engineering and
manufacturing development of a weapon system, including embedded
software; or the production of a weapon system, including embedded
software. Application of this requirement to competitive contracts for
the technical maturation and risk reduction phase is a matter of
policy, whereas application to the engineering and manufacturing
development and production of a weapon system, including embedded
software, is required by statute.
DFARS 216.402-2(2) requires contracting officers to ensure that
information about incentive fees, or the imposition of penalties, are
included in the solicitation for covered contracts if the program
manager or requiring official includes provisions for the payment of
incentive fees to the contractor for achievement of design
specifications for reliability and maintainability or the imposition of
penalties to be paid by the contractor to the Government for failure to
achieve the design specifications.
DFARS 234.004 informs the contracting officer to: (1) Include
clearly defined measurable criteria for engineering activities and
design specifications for reliability and maintainability provided by
the program manager, or comparable requiring activity official
performing program management responsibilities; or (2) ensure a copy of
the justification for the decision not to include the criteria, is
included in the contract file as provided by the program manager or
requiring activity official.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rulemaking does not propose to create any new provisions or
clauses or impact any existing provisions or clauses.
IV. Executive Orders 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,
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 rule is not a major rule
under 5 U.S.C. 804.
V. Executive Order 13771
This proposed rule is not expected to be an E.O. 13771 regulatory
action, because this rule is not significant 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 requires contracting officers and program managers or
requiring office officials to give emphasis to sustainment factors in
weapon system design. However, an initial regulatory flexibility
analysis has been performed and is summarized as follows:
DOD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement section 834 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018. Section 834
amends Title 10, United States Code, to add section 2443, Sustainment
factors in weapon system design, which requires program managers or
comparable requiring activity officials exercising program management
responsibilities to ensure that reliability and maintainability are
included in the performance attributes of the key performance
parameters on sustainment during the development of capabilities
requirements for major weapon systems design and contracts for the
technical maturation and risk reduction and engineering and
manufacturing development of a weapon system, including embedded
software; or production of a weapon system.
The objective of this proposed rule is to require contracting
officers, in coordination with program managers or requiring office
officials, to ensure that reliability and maintainability are included
in the performance attributes of the key performance parameter on
sustainment during the development of capabilities requirements.
According to information available in the Federal Procurement Data
System for fiscal years 2016 through 2018, DoD made a total of 200
contract awards under various product service codes for research and
engineering development under the product service group AC, Research
and Development-Defense Systems. The award data included task and
delivery orders under single award indefinite delivery indefinite
quantity contracts and basic ordering agreements. Of the total 200
awards for the three-year period cited, 79 awards (approximately 40
percent) were made to 71 unique small business entities.
This proposed rule does not include any new reporting,
recordkeeping, or other compliance requirements for small businesses.
The proposed 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 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 2019-D003), in correspondence.
This action is necessary to implement section 834 of the NDAA for
FY 2018.
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).
[[Page 30986]]
List of Subjects in 48 CFR Parts 207, 215, 216, and 234
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 207, 215, 216, and 234 are proposed to be
amended as follows:
0
1. The authority citation for 48 CFR parts 207, 215, 216, and 234
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 207--ACQUISITION PLANNING
0
2. Amend section 207.106 by--
0
a. In paragraph (S-70)(1), removing ``Section 802(a)'' and adding
``section 802(a)'' in its place;
0
b. Redesignating paragraphs (S-70)(2)(ii) through (iv) as paragraphs
(iii) through (v), respectively;
0
c. Adding a new paragraph (S-70)(2)(ii); and
0
d. Adding paragraph (S-72)(5).
The additions read as follows:
207.106 Additional requirements for major systems.
* * * * *
(S-70) * * *
(2) * * *
(ii) In accordance with 10 U.S.C. 2443, to emphasize reliability
and maintainability in weapon system design, ensure that reliability
and maintainability are included in the performance attributes of the
key performance parameters on sustainment during the development of
capabilities requirements. For additional guidance see PGI
207.105(b)(14)(ii)(2);
* * * * *
(S-72) * * *
(5) In accordance with 10 U.S.C. 2443, acquisition plans for
engineering manufacturing and development and production of major
systems as defined in 10 U.S.C. 2302 and 2302d and for major defense
acquisition programs as defined in 202.101, shall include performance
measures that are developed using best practices for responding to the
positive or negative performance of a contractor for the engineering
and manufacturing development or production of a weapon system,
including embedded software. At a minimum the contracting officer
shall--
(i) Encourage the use of incentive fees and penalties as
appropriate; and
(ii) Allow the program manager or comparable requiring activity
official exercising program management responsibilities, to base
determinations of a contractor's performance on reliability and
maintainability data collected during the program. Such data collection
and associated evaluation metrics shall be described in detail in the
contract; and to the maximum extent practicable, the data shall be
shared with appropriate contractor and Government organizations.
* * * * *
PART 215--CONTRACTING BY NEGOTIATION
0
3. Amend section 215.304 by adding paragraph (c)(vi) to read as
follows:
215.304 Evaluation factors and significant subfactors.
(c) * * *
(vi) Ensure source selections emphasize sustainment factors and
objective reliability and maintainability evaluation criteria in
competitive contracts for the--
(A) Technical maturation and risk reduction phase of weapon system
design (see guidance at PGI 207.105(b)(14)(ii)(2));
(B) Engineering and manufacturing development phase of a weapon
system, including embedded software (10 U.S.C. 2443); or
(C) Production and deployment phase of a weapon system, including
embedded software (10 U.S.C. 2443).
PART 216--TYPES OF CONTRACTS
0
4. Amend section 216.402-2 by--
0
a. Designating the text as paragraph (1); and
0
b. Adding paragraph (2).
The addition reads as follows:
216.402-2 Technical performance incentives.
* * * * *
(2) Contracting officers shall ensure requirements about the
payment of incentive fees or the imposition of penalties are included
in the solicitation for a contract for the engineering and
manufacturing development or production of a weapon system, including
embedded software, if the program manager or comparable requiring
activity official exercising program manager responsibilities
includes--
(i) Provisions for the payment of incentive fees to the contractor,
based on achievement of design specification requirements for
reliability and maintainability of weapons systems under the contract;
or
(ii) The imposition of penalties to be paid by the contractor to
the Government for failure to achieve such design specification
requirements (10 U.S.C. 2443).
PART 234--MAJOR SYSTEM ACQUISITION
0
5. Amend section 234.004 by adding paragraph (3) to read as follows:
234.004 Acquisition strategy.
* * * * *
(3) The contracting officer shall include in solicitations for
contracts for the technical maturation and risk reduction phase,
engineering and manufacturing development phase or production phase of
a weapon system, including embedded software--
(i) Clearly defined measurable criteria for engineering activities
and design specifications for reliability and maintainability provided
by the program manager, or the comparable requiring activity official
performing program management responsibilities; or
(ii) Ensure a copy of the justification, executed by the program
manager or the comparable requiring activity official performing
program management responsibilities for the decision that engineering
activities and design specifications for reliability and
maintainability should not be a requirement, is included in the
contract file (10 U.S.C. 2443).
[FR Doc. 2019-13744 Filed 6-27-19; 8:45 am]
BILLING CODE 5001-06-P