[Federal Register Volume 84, Number 250 (Tuesday, December 31, 2019)]
[Rules and Regulations]
[Pages 72561-72563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27827]
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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: 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 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: Effective December 31, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Jennifer D. Johnson, telephone
571-372-6100.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 84 FR
39256 on
[[Page 72562]]
August 9, 2019, 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
limits the scope of review of DoD solicitations by SBA procurement
center representatives. Additionally, section 1811 excludes these
procurements from DoD's small business goals.
This final DFARS rule informs contracting officers that SBA
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.
SBA's final rule, published in the Federal Register on November 29,
2019, at 84 FR 65647, states that, unless the contracting agency
requests a review, procurement center representatives will not review
such procurements.
There were no public comments submitted in response to the proposed
rule. The final rule includes a minor change to the paragraph numbers
in DFARS 219.502-1.
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 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.
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:
This rule revises the Defense Federal Acquisition Regulation
Supplement (DFARS) to implement section 1811 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328)
and the SBA final rule published in the Federal Register on November
29, 2019, at 84 FR 65647. Specifically, the rule informs contracting
officers that SBA 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.
In addition, section 1811 of the NDAA for FY 2017 excludes these
procurements from DoD's small business goals.
This rule is necessary to implement section 1811 of the NDAA for FY
2017. The objective of this rule is to implement, in the DFARS, the
limits provided in section 1811 on the scope of review by SBA
procurement center representatives.
No public comments were received in response to the initial
regulatory flexibility analysis.
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 (i.e., humanitarian and civic
assistance), 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. FPDS
shows that about 1 percent 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.
There are no known, significant alternatives that would meet the
requirements of the applicable 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 Part 219
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR part 219 is 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
[[Page 72563]]
Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328).
(ii) Definition. As used in this section--
Humanitarian and civic assistance 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. (10
U.S.C. 401(e))
(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 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--
(1) 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
(2) Excluded from procurement center representative review (see
219.402(c)(iii)).
[FR Doc. 2019-27827 Filed 12-30-19; 8:45 am]
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