[Federal Register Volume 85, Number 169 (Monday, August 31, 2020)]
[Rules and Regulations]
[Pages 53683-53684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18642]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 251
[Docket DARS-2020-0029]
RIN 0750-AK90
Defense Federal Acquisition Regulation Supplement: Use of Defense
Logistics Agency Energy as a Source of Fuel (DFARS Case 2020-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 permit the use Defense
Logistics Agency Energy as a source of fuel for contractors performing
under certain contracts.
DATES: Effective August 31, 2020.
FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to permit contracting
officers to authorize contractors to use Defense Logistics Agency (DLA)
Energy as a source for Defense Working Capital Fund fuel in the
performance of other than cost-reimbursement contracts. Supplemental
guidance and information, on the internal procedures a contracting
officer must follow to provide this authorization, are being
implemented in DFARS Procedures, Guidance, and Information.
DoD contractors provide supplies and services that require the use
of ground, aviation, or marine fuels in performance of their contracts.
In some instances, these supplies and services are required in
locations where there are no commercial fuel sources available, the
quality of fuel is degraded, or the commercial fuel supply is
inadequate. As a result, the availability of reliable and quality fuel
becomes critical for contract performance.
DLA Energy has a worldwide bulk-fuel supply chain that can provide
military specification fuels, as well as most commercial specification
ground fuels (e.g., gasoline, diesel, and heating fuel), on military
bases. As an acquisition policy, Federal Acquisition Regulation (FAR)
51.1 permits contracting officers to authorize contractors to use
Government supply sources in the performance of cost-reimbursement
contracts.
The use of fixed-price contracts has increased as a result of
statutory and policy acquisition requirements that attempt to reduce
risk to the Government. For example, 41 U.S.C. 3307(e)(4)(A)(i)
requires commercial supplies and services to be acquired via fixed-
price or time-and-materials contracts. As a result, many of the
requirements that need to use DLA Energy ground, aviation, or marine
fuels are now being awarded as fixed-price contracts and, therefore,
are not eligible to authorize the use Government supply sources in
performance of the contract, in accordance with FAR 51.1.
DoD mission-critical supplies and services are provided by
contractors
[[Page 53684]]
under fixed-price contracts that rely on the ability to utilize fuels
for successful contract performance. As a result, this rule intends to
help stabilize contractor's fuel costs and supply chain for fuel, as
well as reduce contract performance risk by providing contractors with
an adequate and reliable source of fuel, when applicable and necessary.
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 new provisions or clauses or impact any
existing provisions or clauses.
III. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the FAR is the
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
updating internal operating procedures to permit and advise contracting
officers on the procedures to follow when authorizing contractors, as
necessary, to use DLA Energy as a source of fuel in performance of
certain contracts.
IV. 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.
V. 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. 1707(a)(1) (see section III. 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 Part 251
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR part 251 is amended as follows:
PART 251--USE OF GOVERNMENT SOURCES BY CONTRACTORS
0
1. The authority citation for 48 CFR part 251 is revised to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Section 252.101 is added to read as follows:
251.101 Policy.
(a)(1) Notwithstanding the restriction at FAR 51.101(a)(1),
contracting officers may authorize contractors to use Defense Logistics
Agency Energy as a source of fuel in performance of other than cost-
reimbursement contracts, when the fuel is funded by the Defense Working
Capital Fund. When providing this authorization to contractors, follow
the procedures at PGI 251.101.
[FR Doc. 2020-18642 Filed 8-28-20; 8:45 am]
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