[Federal Register Volume 84, Number 178 (Friday, September 13, 2019)]
[Rules and Regulations]
[Pages 48498-48499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19558]



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: Final rule.


SUMMARY: DoD is issuing a final rule amending 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 Regulatory 
Reform Task Force.

DATES: Effective September 13, 2019.

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


I. Background

    DoD published a proposed rule in the Federal Register at 84 FR 
18228 on April 30, 2019, to modify the DFARS clause 252.239-7004, 
Orders for Facilities and Services, to incorporate the information in 
DFARS clause 252.239-7005, Rates, Charges, and Services, and make minor 
changes to simplify the clause text. Combining these clauses results in 
252.239-7005 being removed from the DFARS. The rule implements a 
recommendation of the DoD Regulatory Reform Task Force established 
under Executive Order (E.O.) 13777, ``Enforcing the Regulatory Reform 
    No public comments were received in response to the proposed rule. 
No changes from the proposed rule are made in the final rule.

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. The rule 
combines two clauses into a single clause and makes minor modifications 
to simplify clause text. This rule does not change the applicability of 
the affected clauses.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and E.O. 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.

IV. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866.

V. Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) has been prepared 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. 
The FRFA is summarized as follows:
    DoD is amending 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 these two clauses permits DFARS 
252.239-7005 to be removed from the DFARS.
    The objective of this 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. The modification of these DFARS clauses 
implements a recommendation from the DoD Regulatory Reform Task Force 
under E.O. 13771.
    No public comments were received in response to the initial 
regulatory flexibility analysis.
    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 breakdown 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 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 rule that would meet 
the stated objectives. This rule is not expected to have a significant 
economic impact on small entities.

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 parts 239 and 252 are amended as follows:

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

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


239.7411   [Amended]

2. Amend section 239.7411 by--
a. Removing paragraph (a)(3); and

[[Page 48499]]

b. Redesignating paragraphs (a)(4) and (5) as paragraphs (a)(3) and 
(4), respectively.


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:


    (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 which 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.

(End of clause)

252.239-7005  [Removed and Reserved]

4. Remove and reserve section 252.239-7005.

[FR Doc. 2019-19558 Filed 9-12-19; 8:45 am]