[Federal Register Volume 84, Number 211 (Thursday, October 31, 2019)]
[Rules and Regulations]
[Pages 58332-58334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23812]
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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: Final rule.
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SUMMARY: DOD is issuing a final rule amending 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: Effective October 31, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Bass, telephone 571-372-
6174.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 84 FR 125
on June 28, 2019, to implement section 834 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2018. Section 834 of the
NDAA for FY 2018 amends 10 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 the application of the
requirements of 10 U.S.C. 2443 to the technical maturation and risk
reduction phase. No public comments were received on the proposed rule,
and no changes 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 propose to create any new provisions or clauses
or impact any existing provisions or clauses.
III. 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.
[[Page 58333]]
IV. Executive Order 13771
This final 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:
This final rule is necessary to implement section 834 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018.
Section 834 of the NDAA for FY 2018 amends Title 10, United States
Code, to add section 2443, Sustainment factors in weapon system design.
Section 2443 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 final rule is to implement section 834 of the NDAA
for FY 2018.
There were no issues raised by the public in response to the
initial regulatory flexibility analysis provided in the proposed rule.
The final rule will apply to all small entities that have been or
will be awarded contracts for the development of major weapon systems.
Small business statistics were obtained from the Federal Procurement
Data System for FY 2018 data identifying the DoD research and
development engineering development awards issued, including task and
delivery orders under single-award indefinite delivery indefinite
quantity contracts and Basic Ordering Agreements as of February 26,
2019. Of the 78 contract awards, 15 awards or approximately 19 percent
were made to unique small business entities.
This rule does not include any new reporting, recordkeeping, or
other compliance requirements for small businesses.
There are no known significant alternative approaches to the
proposed rule that would meet the proposed objectives of the statute.
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 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 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
[[Page 58334]]
(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. 2019-23812 Filed 10-30-19; 8:45 am]
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