[Federal Register Volume 84, Number 211 (Thursday, October 31, 2019)]
[Rules and Regulations]
[Pages 58331-58332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23802]
[[Page 58331]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204, 209, 212, and 252
[Docket DARS-2019-0065]
RIN 0750-AK58
Defense Federal Acquisition Regulation Supplement: Repeal of
DFARS Provision Related to Disclosure of Information for Litigation
Support (DFARS Case 2019-D021)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to remove a provision that is
no longer necessary, pursuant to action taken by the Regulatory Reform
Task Force.
DATES: Effective October 31, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is amending the DFARS to remove DFARS provision 252.204-7013,
Limitations on the Use or Disclosure of Information by Litigation
Support Contractors, its associated prescription at 204.7403 and
related text at 209.505-4(b)(ii) and 212.301. This provision is
included in solicitations for the acquisition of litigation support
services. The provision includes a representation that, by submission
of its offer, the offeror agrees to handle and protect all litigation
information and documentation as described in the provision, indemnify
the Government from any liability or claim that arises from the
offeror's misuse of the litigation information, and ensure its
employees are subject to the same use and nondisclosure obligations
stated in the provision prior to accessing any litigation information.
The provision also notifies offerors that third parties holding
proprietary rights or any other legally protectable interest in the
provided litigation information have the right of direct action against
the offeror for any unauthorized use or disclosure by the offeror.
DFARS provision 252.204-7013 is unnecessary. The same information
is provided to offerors by including DFARS clause 252.204-7014,
Limitations on the Use or Disclosure of Information by Litigation
Support Contractors, in a solicitation.
II. Discussion and Analysis
DFARS clause 252.204-7014 implements the authority and requirements
of 10 U.S.C. 129d, which permits DoD to disclose information to a
litigation support contractor if the disclosure is for the sole purpose
of providing administrative, technical, or professional services to DoD
in anticipation of or during litigation. The statute also requires
that, under a contract, the contractor agree to and acknowledge
specific terms and conditions on the use and disclosure of the
information, and that any violation of these terms and conditions is a
basis for termination of the litigation support contract. DFARS clause
252.204-7014 is included in all solicitations and contracts that
involve litigation support services. The clause contains all of the
information in DFARS provision 252.204-7013, as well as a statement
that violation of the terms and conditions of the clause is a basis for
termination of the contract. As such, the DFARS provision is redundant
and can be removed from the DFARS.
The repeal of the DFARS provision implements 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 the provision. Subsequently, the DoD Task Force
reviewed the requirements of DFARS provision 252.204-7013 and
determined that it could be repealed.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule only removes obsolete DFARS provision 252.204-7013,
Limitations on the Use or Disclosure of Information by Litigation
Support Contractors. This rule does not create any new provisions or
clauses or impose any new requirements on contracts at or below the
simplified acquisition threshold and for commercial items, including
commercially available off-the-shelf items.
IV. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the Federal
Acquisition Regulation (FAR) is Office of Federal Procurement Policy
statute (codified at title 41 of the United States Code). Specifically,
41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation,
procedure or form (including an amendment or modification thereof) must
be published for public comment if it relates to the expenditure of
appropriated funds, and has either a significant effect beyond the
internal operating procedures of the agency issuing the policy,
regulation, procedure, or form, or has a significant cost or
administrative impact on contractors or offerors. This final rule is
not required to be published for public comment, because DoD is not
issuing a new regulation; rather, this rule is merely removing an
unnecessary provision from the DFARS.
V. 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.
VI. 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.
VI. Regulatory Flexibility Act
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule under 41
U.S.C.
[[Page 58332]]
1707(a)(1) (see section IV. of this preamble), the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable. Accordingly, no regulatory flexibility analysis is
required, and none has been prepared.
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 Parts 204, 209, 212, and 252
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 204, 209, 212, and 252 are amended as
follows:
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1. The authority citation for 48 CFR parts 204, 209, 212, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 204--ADMINISTRATIVE AND INFORMATION MATTERS
204.7403 [Amended]
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2. Amend section 204.7403 by--
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a. In the section heading, removing ``Solicitation provision and
contract'' and adding ``Contract'' in its place;
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b. Removing paragraph (a); and
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c. Redesignating paragraphs (b) and (c) as paragraphs (a) and (b),
respectively.
PART 209--CONTRACTOR QUALIFICATIONS
0
3. Revise section 209.505-4(b)(ii) to read as follows:
209.505-4 Obtaining access to proprietary information.
(b) * * *
(ii) For litigation support contractors accessing litigation
information, including that originating from third parties, use and
non-disclosure requirements are addressed through the use of the clause
at 252.204-7014, as prescribed at 204.7403(a). Pursuant to the clause,
litigation support contractors are not required to enter into non-
disclosure agreements directly with any third party asserting
restrictions on any litigation information.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
212.301 [Amended]
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4. Amend section 212.301 by--
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a. Removing paragraph (f)(ii)(E);
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b. Redesignating paragraphs (f)(ii)(F) and (G) as paragraphs (f)(ii)(E)
and (F), respectively;
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c. In the newly redesignated (f)(ii)(E) removing ``204.7403(b)'' and
adding ``204.7403(a)'' in its place; and
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d. In the newly redesignated (f)(ii)(F) removing ``204.7403(c)'' and
adding ``204.7403(b)'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.204-7013 [Removed and Reserved]
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5. Remove and reserve section 252.204-7013.
252.204-7014 [Amended]
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6. Amend section 252.204-7014, in the introductory text, by removing
``204.7403(b)'' and adding ``204.7403(a)'' in its place.
252.204-7015 [Amended]
0
7. Amend section 252.204-7015, in the introductory text, by removing
``204.7403(c)'' and adding ``204.7403(b)'' in its place.
[FR Doc. 2019-23802 Filed 10-30-19; 8:45 am]
BILLING CODE 5001-06-P