[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]
 BILLING CODE 5001-06-P