[Federal Register Volume 86, Number 207 (Friday, October 29, 2021)]
[Proposed Rules]
[Pages 59951-59953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23459]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 217, 234, and 235
[Docket DARS-2021-0020]
RIN 0750-AL49
Defense Federal Acquisition Regulation Supplement: Contract
Authority for Development and Demonstration of Prototypes (DFARS Case
2021-D025)
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 implement a section of the National
Defense Authorization Act for Fiscal Year 2021 that amends the types of
line items and contract options that may be included, subject to
limitations, in certain contracts initially awarded pursuant to
competitive solicitations.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before December 28, 2021, to be
considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2021-D025, using
any of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for ``DFARS Case 2021-D025'' in the search box and select
``Search.'' Select ``Comment'' and follow the instructions to submit a
comment. Please include your name, company name (if any), and ``DFARS
Case 2021-D025'' on any attached document.
[cir] Email: [email protected]. Include DFARS Case 2021-D025 in
the subject line of the message.
Comments received generally will be posted without change to
https://www.regulations.gov, including any personal information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Carrie Moore, telephone 571-372-6093.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to implement paragraph (a)(2)
of section 831 of the National Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2021 (Pub. L. 116-283). Section 831(a)(2) amends 10
U.S.C. 2302e(a) to revise the type of contract line items or options
that may be included, without additional competition, in contracts
initially awarded from the competitive selection of a proposal
resulting from a broad agency announcement (BAA).
When awarding a contract that results from the competitive
selection of a proposal received in response to a BAA, 10 U.S.C.
2302e(a) permits the inclusion of certain contract line items or
contract options that would not otherwise be covered under the general
solicitation authority of a BAA. These contract line items or contract
options: (1) Must be for certain services related to the technology
developed under the contract, or the delivery of initial or additional
items created as a result of the work performed under the contract; and
(2) are subject to the quantity, term, and dollar value limitations
expressed at 10 U.S.C. 2302e(b).
10 U.S.C. 2302e is intended to help streamline the process for
moving technologies from science and technology into production and to
enable the transition of technology for faster fielding by allowing the
performance of certain work to continue while a follow-on or production
contract is awarded.
II. Discussion and Analysis
Section 831(a)(2) amends 10 U.S.C. 2302e to replace ``provision of
advanced component development, prototype'' with ``development and
demonstration.'' As a result, when awarding a contract that results
from the competitive selection of a proposal received in response to a
BAA, contracting officers may now include a contract line item or
contract option for the ``development and demonstration'' of technology
developed under the contract. This revision provides a broader scope of
effort and funding for which these contract line items and contract
options can be awarded.
This proposed rule reflects the authority provided by section
831(a)(2) and clarifies for contracting officers that a contract line
item or contract option included in an award pursuant to 10 U.S.C.
2302e is not limited to the funding types used for the general
solicitation authority of a BAA, which are listed at DFARS 235.016.
[[Page 59952]]
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-the-Shelf (COTS) Items
This rule does not create any new solicitation provisions or
contract clauses. It does not impact any existing solicitation
provisions or contract clauses.
IV. Expected Impact of the Rule
The proposed rule impacts DoD acquisition planning decisions for
contract awards that will result from the competitive selection of a
proposal in response to a BAA for which DoD intends to include a
contract line item or option for the development and demonstration of
technology developed under the contract. The proposed rule broadens the
scope of effort for which these contract line items and contract
options can be awarded and the type of funding that may be used to fund
these line items or options. This proposed rule also helps streamline
the process for moving technologies developed under such contracts from
science and technology into production.
V. 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.
VI. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. This rule is not
anticipated to be a major rule under 5 U.S.C. 804.
VII. 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 primarily affects the acquisition planning decisions
made internally by DoD. However, an initial regulatory flexibility
analysis has been performed and is summarized as follows:
The reason for this proposed rule is to implement paragraph (a)(2)
of section 831 of the National Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2021 (Pub. L. 116-283).
The objective of this rule is to revise the type of contract line
items or options that may be included, without additional competition,
in contracts initially awarded from the competitive selection of a
proposal resulting from a broad agency announcement (BAA). When
awarding such a contract, contracting officers may now include a
contract line item or contract option for the ``development and
demonstration'' of technology developed under the contract. This
revision provides a broader scope of effort and funding for which these
contract line items and contract options can be awarded, which in turn
helps streamline the process for moving technologies developed under
such contracts from science and technology into production. The legal
basis for the rule is paragraph (a)(2) of section 831 of the NDAA for
FY 2021.
Based on data from the Federal Procurement Data System for FY 2018
through FY 2020, on average, DoD annually awards 300 contracts to 200
unique small entities using the competitive selection of proposals
resulting from a BAA.
This rule does not impose any new reporting, recordkeeping, or
other compliance requirements. This rule does not duplicate, overlap,
or conflict with any other Federal rules. There are no significant
alternatives to this rule that would accomplish the objective of the
statute.
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 2021-D025), in
correspondence.
VIII. 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 Parts 217, 234, and 235
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 217, 234, and 235 are proposed to be
amended as follows:
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1. The authority citation for 48 CFR parts 217, 234, and 235 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 217--SPECIAL CONTRACTING METHODS
0
2. Amend section 217.202 by revising paragraph (2) to read as follows:
217.202 Use of options.
* * * * *
(2) For a contract that is initially awarded from the competitive
selection of a proposal resulting from a broad agency announcement, see
234.005-1 for the use of contract options for the development and
demonstration or initial production of technology developed under the
contract or the delivery of initial or additional items.
PART 234--MAJOR SYSTEM ACQUISITION
0
3. Amend section 234.005-1 by revising the introductory text and
paragraph (1) to read as follows:
234.005-1 Competition.
A contract that is initially awarded from the competitive selection
of a proposal resulting from a broad agency announcement (see 235.016)
may contain a contract line item or contract option using funds not
limited to those identified in 235.016 for the development and
demonstration or initial production of technology developed under the
contract, or the delivery of initial or additional items if the item or
a prototype thereof is created as the result of work performed under
the contract, only when it adheres to the following limitations:
(1) The contract line item or contract option shall be limited to
the delivery of the minimal amount of initial or additional items or
prototypes that will allow for timely competitive solicitation
[[Page 59953]]
and award of a follow-on development or production contract for those
items.
* * * * *
PART 235--RESEARCH AND DEVELOPMENT CONTRACTING
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4. Amend section 235.006-71 by revising paragraph (b) to read as
follows:
235.006-71 Competition.
* * * * *
(b) For a contract that is initially awarded from the competitive
selection of a proposal resulting from a broad agency announcement, see
234.005-1 for the use of contract line items or contract options for
the development and demonstration or initial production of technology
developed under the contract or the delivery of initial or additional
items.
[FR Doc. 2021-23459 Filed 10-28-21; 8:45 am]
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