[Federal Register Volume 85, Number 189 (Tuesday, September 29, 2020)]
[Rules and Regulations]
[Page 60922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21250]

[[Page 60922]]



Defense Acquisition Regulations System

48 CFR Part 216

[Docket DARS-2020-0032]
RIN 0750-AL02

Defense Federal Acquisition Regulation Supplement: Modification 
of Determination Requirement for Certain Task- or Delivery-Order 
Contracts (DFARS Case 2020-D016)

AGENCY: Defense Acquisition Regulations System, Department of Defense 

ACTION: Final rule.


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 2020 that revises 
contract file documentation requirements when awarding a task- or 
delivery order-contract in excess of $100 million to a single source.

DATES: Effective October 1, 2020.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-


I. Background

    DoD is issuing a final rule amending the DFARS to implement section 
816 of the National Defense Authorization Act (NDAA) for Fiscal Year 
(FY) 2020 (Pub. L. 116-92). Section 816 amends 10 U.S.C. 2304a to 
permit the award of a DoD task- or delivery-order contract estimated to 
exceed $100 million (including all options) to a single source without 
a written determination by the head of the agency, if the head of the 
agency made a written determination that other than competitive 
procedures were authorized for the award of such contract.
    The requirement for the written determination required by 10 U.S.C. 
2304a is implemented at Federal Acquisition Regulation (FAR) 
16.504(c)(1)(ii)(D), which prohibits the award of a task- or delivery-
order contract in excess of $100 million to a single source, unless the 
head of the agency makes a written determination that the acquisition 
meets one of four specific circumstances that necessitate an award to a 
single source.
    To implement 10 U.S.C. 2304a, as amended by section 816, this final 
rule amends DFARS section 216.504 to advise DoD contracting officers 
that the determination from the head of the agency pursuant to FAR 
16.504(c)(1)(ii)(D)(1) is no longer required for a single-award task- 
or delivery-order contract valued at greater than $100 million, if a 
justification for the use of other than full and open competition has 
been executed in accordance with FAR subpart 6.3 and DFARS subpart 

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 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 that require contracting 
officers to obtain certain internal documentation and authorizations 
prior to awarding a contract under certain acquisitions.

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 216

    Government procurement.

Jennifer D. Johnson,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, DoD is amending 48 CFR part 216 as set forth below:


1. The authority citation for 48 CFR part 216 continues to read as 

    Authority:  10 U.S.C. 1303 and 48 CFR chapter 1.

2. Amend section 216.504 by adding new paragraph (c)(1)(ii)(D)(3)(i) to 
read as follows:

216.504   Indefinite-quantity contracts.

    (c) * * *
    (1) * * *
    (ii) * * *
    (D) * * *
    (3)(i) In accordance with section 816 of the National Defense 
Authorization Act for Fiscal Year 2020 (Pub. L. 116-92), the 
determination at FAR 16.504(c)(1)(ii)(D) is not required if a 
justification has been executed, in accordance with FAR subpart 6.3 and 
subpart 206.3.
[FR Doc. 2020-21250 Filed 9-28-20; 8:45 am]