[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.
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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