[Federal Register Volume 85, Number 68 (Wednesday, April 8, 2020)]
[Proposed Rules]
[Pages 19721-19722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06730]
[[Page 19721]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 211 and 252
[Docket DARS-2019-0056]
RIN 0750-AK59
Defense Federal Acquisition Regulation Supplement: Repeal of
DFARS Provision ``Alternate Preservation, Packaging, and Packing''
(DFARS Case 2019-D022)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: DoD is proposing to amend 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: Comments on the proposed rule should be submitted in writing to
the address shown below on or before June 8, 2020, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2019-D022, using
any of the following methods:
[cir] Regulations.gov: http://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by entering ``DFARS Case 2019-D022''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2019-D022.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include ``DFARS Case 2019-D022'' on any
attached document.
[cir] Email: [email protected]. Include DFARS Case 2019-D022 in
the subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Carrie
Moore, OUSD(A&S)DPC/DARS, Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.
SUPPLEMENTARY INFORMATION:
I. Background
This rule proposes to remove the DFARS provision 252.211-7004,
Alternate Preservation, Packaging, and Packing, from the DFARS as the
provision is no longer necessary. DFARS provision 252.211-7004 is
included in solicitations that include military preservation,
packaging, or packing specifications when it is feasible to evaluate
and award using commercial or industrial preservation, packaging, or
packing methods. The provision: (1) Notifies offerors that they may
submit two prices for the item--one based on the military requirements
and one based on commercial standards; (2) specifies the information to
be provided with the proposed commercial alternative; and (3) requires
the offeror to agree to use the military requirements if the proposed
commercial standards are not accepted by the contracting officer.
Since the implementation of the provision, acquisition reform
efforts have provided additional latitude to contracting officers to
use performance and commercial specifications and standards, in lieu of
military specifications and standards. As a result, contracting
officers regularly rely on commercial preservation, packaging, and
packing standards, unless the use of other specifications and standards
is essential to the acquisition.
Additionally, agency acquisition officials have broad discretion to
develop and apply factors that support a meaningful comparison between
proposals. If the use of military versus commercial preservation,
packaging, and packing standards shall be evaluated as part of a
contract award, then the solicitation will include an evaluation factor
for such criteria to be considered in the source selection decision.
The ability to make tradeoffs between commercial standards and military
specifications and cost or price already exists for acquisition
officials as part of acquisition planning; therefore, this provision is
no longer necessary.
II. Discussion and Analysis
The removal of this DFARS provision supports 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 this clause. The DoD Regulatory Reform Task Force
reviewed the requirements of DFARS clause 252.211-7004, determined that
the DFARS coverage was unnecessary, and recommended its removal from
the DFARS.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This proposed rule only removes the obsolete solicitation provision
at DFARS 252.211-7004. The rule does not impose any new requirements on
contracts at or below the simplified acquisition threshold or for
commercial items, including commercially available off-the-shelf items.
IV. Executive Orders 12866 and 13563
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.
V. Executive Order 13771
This rule is not expected to be subject to E.O. 13771, because this
rule is not subject to E.O. 12866.
VI. Regulatory Flexibility Act
DoD does not expect this proposed rule 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 the rule is not creating any new requirements for contractors
or changing any existing policies and practices. However, an initial
regulatory flexibility analysis has been performed and is summarized as
follows:
The Department of Defense is proposing to repeal DFARS provision
[[Page 19722]]
252.211-7004, Alternate Preservation, Packaging, and Packing, as the
provision is no longer necessary. This repeal is pursuant to action
taken by the Regulatory Reform Task Force. The objective of this
proposed rule is to reduce regulatory burden on the public. The repeal
of this DFARS clause supports a recommendation from the DoD Regulatory
Reform Task Force.
DoD does not collect data on the number of small businesses that
respond to a solicitation that includes DFARS clause 252.211-7004 or
the number of small businesses responding to such a solicitation with
alternative preservation, packaging, or packing methods. Instead, DoD
subject matter experts advise that approximately 375 solicitations are
issued each year that contain military preservation, packaging, or
packing requirements where commercial or industrial methods may also be
acceptable. DoD estimates that it receives 1.5 responses to each
solicitation, for a total of 563 offers received in response to the
solicitation. This total estimated number of responses does not
delineate between the business size of the offerors or those offerors
that did and did not proposed alternative methods for preservation,
packaging, or packing in lieu of military specifications. Based on the
information available, DoD does not anticipate that this rule will
significantly impact small business entities.
This proposed rule does not include any new reporting,
recordkeeping, or other compliance requirements for small businesses.
Rather, this rule proposes to eliminate a reporting requirement. This
rule does not duplicate, overlap, or conflict with any other Federal
rules. There are no known alternative to the rule that will meet the
stated objectives or minimize the impact on of the rule on small
entities.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities. DoD will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (DFARS Case 2019-D022)
in correspondence.
VII. Paperwork Reduction Act
This rule removes the burden associated with DFARS 252.211-7004
from the information collection requirement currently approved under
OMB Control Number 0704-0398, entitled DFARS Part 211, Describing
Agency Needs, and Related Clauses at DFARS 252.211. This reduction is
reflected in the proposed revision to and extension of the information
collection, as published in the Federal Register on February 27, 2020,
at 85 FR 11351.
List of Subjects in 48 CFR Parts 211 and 252
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 211 and 252 are proposed to be amended as
follows:
0
1. The authority citation for 48 CFR parts 211 and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 211--DESCRIBING AGENCY NEEDS
211.272 [Removed and Reserved]
0
2. Remove and reserve section 211.272.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.211-7004 [Removed and Reserved]
0
3. Remove and reserve section 252.211-7004.
[FR Doc. 2020-06730 Filed 4-7-20; 8:45 am]
BILLING CODE 5001-06-P