[Federal Register Volume 86, Number 227 (Tuesday, November 30, 2021)]
[Rules and Regulations]
[Pages 67876-67877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25733]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 201 and 237
[Docket DARS-2021-0023]
RIN 0750-AK77
Defense Federal Acquisition Regulation Supplement: Peer Reviews
of Contracts for Supplies and Services (DFARS Case 2019-D037)
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 modify internal processes
for the conduct of peer reviews.
DATES: Effective November 30, 2021.
FOR FURTHER INFORMATION CONTACT: Ms. Barbara J. Trujillo, telephone
571-372-6102.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is amending the DFARS to revise the policies at DFARS 201.170
for the conduct of peer reviews by the Office of the Principal
Director, Defense Pricing and Contracting (DPC). The rule removes the
requirement for DPC-led, preaward peer reviews of competitive
procurements valued at $1 billion or more unless the Under Secretary of
Defense for Acquisition and Sustainment (USD(A&S)) is the milestone
decision authority or unless USD(A&S) designates a competitive
procurement as requiring a peer review, regardless of dollar value.
Additionally, DoD components may request DPC-led peer reviews for
competitive acquisitions valued below the $1 billion threshold. DPC
will conduct the reviews upon approval by the Director, DPC (Contract
Policy).
The threshold for DPC-led, preaward peer reviews of noncompetitive
procurements is increased from $500 million to $1 billion.
Additionally, the requirement for DPC-led peer reviews of
noncompetitive procurements will include any other contract actions
USD(A&S) designates as requiring a peer review, regardless of dollar
value. DoD components may request DPC-led peer reviews for
noncompetitive acquisitions valued below the $1 billion threshold. DPC
will conduct the reviews upon approval by the Director, DPC (Price,
Cost and Finance).
The rule includes clarification of the types of contract actions
included in preaward peer reviews for noncompetitive procurements and
guidance on how to identify the contract actions that are subject to
preaward peer reviews for competitive and noncompetitive procurements.
DoD components establish procedures to conduct preaward peer reviews of
competitive and noncompetitive procurements that do not meet the
criteria for a DPC-led review. The rule also removes DPC-led, postaward
peer reviews of acquisitions for services from the DFARS, and the
cross-reference at DFARS 237.102-76 has been removed.
II. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the Federal
Acquisition Regulation (FAR) is 41 U.S.C. 1707, Publication of Proposed
Regulations. Subsection (a)(1) of the statute 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 the rule concerns DoD's internal review processes and does not
have a significant cost or administrative impact on contractors or
offerors.
III. 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 or revise any solicitation provisions or
contract clauses. It does not impact any existing solicitation
provisions or contract clauses or their applicability to contracts
valued at or below the simplified acquisition threshold or for
commercial items, including commercially available off-the-shelf items.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.) 12866 and E.O. 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
[[Page 67877]]
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.
V. 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. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule because
this final rule does not constitute a significant DFARS revision within
the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require
publication for public comment.
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 Parts 201 and 237
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 201 and 237 are amended as follows:
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1. The authority citation for 48 CFR parts 201 and 237 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 201--FEDERAL ACQUISITION REGULATIONS SYSTEM
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2. Revise section 201.170 to read as follows:
201.170 Peer reviews.
(a) DPC peer reviews. (1) The Office of the Principal Director,
Defense Pricing and Contracting (DPC), using the procedures at PGI
201.170, will organize teams of reviewers and facilitate peer reviews
for solicitations and contracts as follows:
(i) DPC will conduct the preaward peer reviews for competitive
procurements prior to the three phases of the acquisition (see PGI
201.170-2(a)) for all procurements with an estimated value of $1
billion or more under major defense acquisition programs for which the
Under Secretary of Defense for Acquisition and Sustainment (USD(A&S))
is the milestone decision authority or USD(A&S) designates as requiring
a peer review regardless of value. DoD components may request DPC-led
peer reviews for acquisitions valued below the $1 billion threshold.
DPC will conduct these reviews upon approval by the Director, Defense
Pricing and Contracting (Contract Policy).
(ii) DPC will conduct the preaward peer reviews for noncompetitive
procurements prior to the two phases of the acquisition (see PGI
201.170-2(b)) for contract actions, e.g., new contracts, modifications
to existing contracts, requests for equitable adjustment, claims valued
at $1 billion or more, or for any other contract action USD(A&S)
designates as requiring a peer review regardless of value. DoD
components may request DPC-led peer reviews for contract actions valued
below the $1 billion threshold. DPC will conduct these reviews upon
approval by the Director, Defense Pricing and Contracting (Price, Cost
and Finance).
(iii) Use the following criteria to identify actions that are
subject to peer review (see also FAR 1.108(c), Dollar thresholds):
(A) If the not-to-exceed amount for an undefinitized contract
action or an unpriced change order exceeds the peer review threshold,
then the resultant definitization modification(s) will be subject to
peer review regardless of actual performance up to the point of
definitization.
(B) For indefinite delivery indefinite quantity (IDIQ) contracts
that will establish pricing terms that apply to orders, use the total
maximum dollar value for purposes of the peer review threshold. IDIQ
contracts that will not establish pricing terms in the basic contract
are not subject to peer review, but individual orders that exceed the
threshold are subject to peer review.
(C) For noncompetitive contract actions, use the greater of the
following when considering the firm requirement for all supplies or
services:
(1) The approved Government objective amount.
(2) The contractor proposed amount.
(2) To facilitate planning for peer reviews, the military
departments and defense agencies shall provide a rolling annual
forecast of acquisitions that will be subject to DPC peer reviews at
the end of each quarter (i.e., March 31; June 30; September 30;
December 31).
(i) Military departments and defense agencies shall submit
quarterly forecasts for competitive peer reviews to the Director,
Defense Pricing and Contracting (Contract Policy), at
[email protected].
(ii) Military departments and defense agencies shall submit
quarterly forecasts for noncompetitive peer reviews to the Director,
Defense Pricing and Contracting (Price, Cost and Finance), at
[email protected].
(b) Component peer reviews. The military departments and defense
agencies shall establish procedures for--
(1) Preaward peer reviews of solicitations for competitive
procurements not subject to paragraph (a)(1)(i) of this section; and
(2) Preaward peer reviews of noncompetitive procurements not
subject to paragraph (a)(1)(ii) of this section.
PART 237--SERVICE CONTRACTING
237.102-76 [Removed and Reserved]
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3. Remove and reserve section 237.102-76.
[FR Doc. 2021-25733 Filed 11-29-21; 8:45 am]
BILLING CODE 5001-06-P