[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:

0
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

0
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]

0
3. Remove and reserve section 237.102-76.

[FR Doc. 2021-25733 Filed 11-29-21; 8:45 am]
BILLING CODE 5001-06-P