80 FR 72675 - Defense Federal Acquisition Regulation Supplement: Contract Term Limit for Shared Energy Savings Contract Services (DFARS Case 2015-D018)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 80, Issue 224 (November 20, 2015)

DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the contract term for shared energy savings contract services.

[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)]
[Proposed Rules]
[Pages 72675-72676]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-29553]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 241

[Docket DARS-2015-0050]
RIN 0750-AI74


Defense Federal Acquisition Regulation Supplement: Contract Term 
Limit for Shared Energy Savings Contract Services (DFARS Case 2015-
D018)

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 clarify the contract term for shared 
energy savings contract services.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before January 19, 2016, to be considered 
in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2015-D018, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2015-D018'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2015-D018.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2015-D018'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2015-D018 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Janetta L. Brewer, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense 
Pentagon, Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Janetta L. Brewer, telephone 571-
372-6104.

[[Page 72676]]


SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to revise the DFARS to clarify the contract term 
for contracts awarded under the statutory authority of 10 U.S.C. 2913. 
Section 2913 requires DoD to develop a simplified method of contracting 
for shared energy savings contract services that will accelerate the 
use of such contracts. DoD is authorized by section 2913 to contract 
with utility service providers to implement energy conservation 
measures on military bases. Section 2913 does not indicate a term limit 
for contracts executed under this authority.

II. Discussion and Analysis

    The proposed rule revises DFARS 241.103 by adding paragraph (2) to 
state that contracting officers may enter into a shared energy savings 
contract under 10 U.S.C. 2913 for a period not-to-exceed 25 years. 
Experience has indicated that a period of less than 25 years is 
frequently insufficient to amortize the capital cost. Twenty-five years 
allows a greater volume and variety of energy conservation measures, 
and is consistent with non-DoD agency practice for similar contracts.

III. 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.

IV. 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 only seeks to clarify the contract term for contracts 
awarded under the statutory authority of 10 U.S.C. 2913. However, an 
initial regulatory flexibility analysis has been performed and is 
summarized as follows:
    DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to clarify the contract term for 
contracts awarded under the statutory authority of 10 U.S.C. 2913. 
Section 2913 requires DoD to develop a simplified method of contracting 
for shared energy savings contract services that will accelerate the 
use of such contracts. DoD is authorized by section 2913 to contract 
with utility service providers to implement energy conservation 
measures on military bases. Section 2913 does not indicate a term limit 
for contracts executed under this authority, and this has created 
ambiguity and inconsistency throughout DoD on the term limit that is 
imposed on contracts awarded under the authority. Additionally, the 
ambiguity has resulted in a hesitation to enter shared energy savings 
contracts, contrary to the intent of section 2913.
    The proposed rule is not anticipated to have a significant economic 
impact on small business entities. The number of contract awards made 
under the authority of 10 U.S.C. 2913 is not currently tracked by DoD's 
business systems. However, it is estimated that approximately 25 shared 
energy savings projects are initiated across DoD each year, with 
approximately 17 being awarded annually. It is believed that most 
awards are made to large utility providers, with generally 25% or more 
of the renovation and operations & maintenance work executed under the 
awards being subcontracted to local small business by the utility 
provider.
    This rule does not impose new recordkeeping or reporting 
requirements. This rule only serves to clarify the maximum contract 
term that may be authorized for these awards. Any burden caused by this 
rule is expected to be minimal and will not be any greater on small 
entities than it is on large businesses.
    The rule does not impose any additional reporting, recordkeeping, 
and other compliance requirements. The rule does not duplicate, 
overlap, or conflict with any other Federal rules. There are no known 
significant alternatives to this rule.
    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 2015-D018), in 
correspondence.

V. 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 241

    Government procurement.

Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 241 is proposed to be amended to read as 
follows:

PART 241--ACQUISITION OF UTILITY SERVICES

0
1. The authority citation for part 241 continues to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

0
2. Amend section 241.103 by redesignating paragraphs (2) and (3) as 
paragraphs (3) and (4) and adding a new paragraph (2) to read as 
follows:


241.103  Statutory and delegated authority.

* * * * *
    (2) The contracting officer may enter into a shared energy savings 
contract under 10 U.S.C. 2913 for a period not to exceed 25 years.
* * * * *
[FR Doc. 2015-29553 Filed 11-19-15; 8:45 am]
BILLING CODE 5001-06-P