[Federal Register Volume 84, Number 154 (Friday, August 9, 2019)]
[Proposed Rules]
[Pages 39256-39258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16764]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 219

[Docket DARS-2019-0034]
RIN 0750-AK43


Defense Federal Acquisition Regulation Supplement: Review of 
Defense Solicitations by Procurement Center Representatives (DFARS Case 
2019-D008)

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 2017 that provides limits on 
the scope of review by the Small Business Administration's procurement 
center representatives for certain solicitations awarded by or for DoD.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before October 8, 2019, to be considered 
in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2019-D008, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: http://www.regulations.gov. 
Search for ``DFARS Case 2019-D008.'' Select ``Comment Now'' and follow 
the instructions provided to submit a comment. Please include ``DFARS 
Case 2019-D008'' on any attached documents.
    [cir] Email: [email protected]. Include DFARS Case 2019-D008 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Jennifer D. Johnson, 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. Jennifer D. Johnson, telephone 
571-372-6100.

SUPPLEMENTARY INFORMATION: 

I. Background

    This rule proposes to revise the DFARS to implement section 1811 of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 
(Pub. L. 114-328) and the Small Business Administration (SBA) proposed 
rule published in the Federal Register on December 4, 2018, at 83 FR 
62516. Section 1811 provides limits on the scope of review by SBA's 
procurement center representatives for certain solicitations awarded by 
or for DoD.
    Specifically, section 1811 limits the scope of review by 
procurement center representatives, unless DoD requests a review, if 
the solicitation is awarded by or for DoD and--
     Is conducted pursuant to section 22 of the Arms Export 
Control Act (22 U.S.C. 2762);
     Is a humanitarian operation as defined in 10 U.S.C. 
401(e);
     Is a contingency operation as defined in 10 U.S.C. 
101(a)(13);
     Is to be awarded pursuant to an agreement with the 
government of a foreign country in which U.S. Armed Forces are 
deployed; or
     Both the place of award and place of performance outside 
the United States and its territories.
    SBA's proposed rule states that, unless the contracting agency 
requests a review, procurement center representatives will not review 
such procurements. Additionally, section 1811 excludes these 
procurements from DoD's small business goals.

II. Discussion and Analysis

    This rule proposes to amend DFARS part 219 to implement section 
1811 of the NDAA for FY 2017 and SBA's proposed rule. Specifically, the 
rule proposes to add text at DFARS 219.402 to inform contracting 
officers that procurement center representatives will not review 
acquisitions conducted by or for DoD, unless the contracting activity 
requests a review, if the acquisition is--
     For foreign military sales (see DFARS 225.7300);
     In support of humanitarian and civic assistance;
     In support of a contingency operation;
     Awarded pursuant to a Status of Forces Agreement or other 
agreement with the government of a foreign country in which U.S. Armed 
Forces are deployed; or
     Both awarded and performed outside the United States and 
its outlying areas.
    The proposed text includes a definition of ``humanitarian and civic 
assistance'' that applies only to the implementation of section 1811. 
Both section 1811 and SBA's proposed rule refer to ``a humanitarian 
operation as defined in section 401(e) of title 10, United States 
Code.'' Although the term ``humanitarian operation'' is used, the type 
of activities it covers are quite different from the ``humanitarian or 
peacekeeping operation'' defined in Federal Acquisition Regulation 
2.101 and currently used in the DFARS. In 10 U.S.C. 401(e), the term 
``humanitarian and civic assistance'' is used to refer to specific 
activities carried out in conjunction with authorized military 
operations in a foreign country. Examples of such assistance include 
construction of rudimentary surface transportation systems, well 
drilling, and construction of basic sanitation facilities. Therefore, 
this proposed rule includes a definition to avoid confusion among the 
contracting workforce.
    This rule also proposes to add a reference in DFARS subpart 219.5, 
Set-Asides for Small Business, to the exclusions in DFARS 219.402.

[[Page 39257]]

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 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 rule is not expected to be subject to 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 it is expected to impact primarily Government operations. 
However, an initial regulatory flexibility analysis has been performed 
and is summarized as follows:
    This rule proposes to revise the DFARS to implement section 1811 of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 
(Pub. L. 114-328) and the SBA proposed rule published in the Federal 
Register on December 4, 2018, at 83 FR 62516. Specifically, the rule 
informs contracting officers that procurement center representatives 
will not review acquisitions conducted by or for DoD, unless the 
contracting activity requests a review, if the acquisition is--
     For foreign military sales (see DFARS 225.7300);
     In support of humanitarian and civic assistance;
     In support of a contingency operation;
     Awarded pursuant to a Status of Forces Agreement or other 
agreement with the government of a foreign country in which U.S. Armed 
Forces are deployed; or
     Both awarded and performed outside the United States and 
its outlying areas.
    Additionally, section 1811 of the NDAA for FY 2017 excludes these 
procurements from DoD's small business goals.
    The objective of this rule is to implement, in the DFARS, the 
limits on the scope of review by procurement center representatives. 
The legal basis for the rule is section 1811 of the NDAA for FY 2017.
    This rule may impact small entities that are interested in 
performing the types of DoD contracts listed in section 1811 of the 
NDAA for FY 2017. According to the Federal Procurement Data System 
(FPDS), DoD awarded an average of 12,658 contracts and orders for 
performance outside the United States to approximately 1,292 unique 
small entities per year in FY 2016, 2017, and 2018. Approximately 4 
percent of those small entities received awards for foreign military 
sales. About 8 percent received awards in support of a contingency 
operation. Approximately 81 percent received awards made pursuant to an 
agreement such as a Status of Forces Agreement.
    FPDS does not currently collect data on the type of humanitarian 
operation identified in section 1811, which is very different from the 
``humanitarian or peacekeeping'' operation defined in Federal 
Acquisition Regulation (FAR) 2.101 and used in the DFARS. FPDS does 
collect data on humanitarian or peacekeeping operations, as defined in 
FAR 2.101, showing that about 1% of the small entities, performing 
contracts or orders outside the United States, received awards for 
humanitarian or peacekeeping operations. The data collected may provide 
some indication of the number of small entities that could perform 
contracts or orders for the type of humanitarian operation identified 
in section 1811.
    This rule does not impose any new reporting, recordkeeping or other 
compliance requirements for small entities.
    This rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no known alternatives which would accomplish the stated 
objectives of the applicable statute.
    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 2019-D008), in 
correspondence.

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 219

    Government procurement.

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

    Therefore, 48 CFR part 219 is proposed to be amended as follows:

PART 219--SMALL BUSINESS PROGRAMS

0
1. The authority citation for 48 CFR part 219 continues to read as 
follows:

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

0
2. Add section 219.402 to subpart 219.4 to read as follows:


219.402   Small Business Administration procurement center 
representatives.

    (c)(i) Authority. This section implements section 1811 of the 
National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-
328).
    (ii) Definition. As used in this section, ``humanitarian and civic 
assistance'' (10 U.S.C. 401(e)) means any of the following activities 
carried out in conjunction with authorized military operations in a 
foreign country:
    (A) Medical, surgical, dental, and veterinary care provided in 
areas of a country that are rural or underserved by professionals in 
those fields, including education, training, and technical assistance 
related to the care provided.
    (B) Construction of rudimentary surface transportation systems.
    (C) Well drilling and construction of basic sanitation facilities.
    (D) Rudimentary construction and repair of public facilities.
    (iii) Exclusions. Unless the contracting activity requests a 
review, SBA procurement center representatives will not review 
acquisitions conducted by or for DoD if the acquisition is--
    (A) For foreign military sales (see 225.7300);
    (B) In support of humanitarian and civic assistance;
    (C) In support of a contingency operation;
    (D) Awarded pursuant to a Status of Forces Agreement or other 
agreement

[[Page 39258]]

with the government of a foreign country in which U.S. Armed Forces are 
deployed; or
    (E) Both awarded and performed outside the United States and its 
outlying areas.
0
3. Revise section 219.502-1 to read as follows:


219.502-1   Requirements for setting aside acquisitions.

    Do not set aside acquisitions--
    (a) For supplies that were developed and financed, in whole or in 
part, by Canadian sources under the U.S.-Canadian Defense Development 
Sharing Program; or
    (b) Excluded from procurement center representative review (see 
219.402(c)(iii)).

[FR Doc. 2019-16764 Filed 8-8-19; 8:45 am]
 BILLING CODE 5001-06-P