81 FR 17050 - Defense Federal Acquisition Regulation Supplement: Prohibition on Use of Any Cost-Plus System of Contracting for Military Construction and Military Family Housing Projects (DFARS Case 2015-D040)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 81, Issue 58 (March 25, 2016)
Defense Acquisition Regulations System
Federal Register Volume 81, Issue 58 (March 25, 2016)
| Page Range | 17050-17051 | |
| FR Document | 2016-06725 |
[Federal Register Volume 81, Number 58 (Friday, March 25, 2016)] [Proposed Rules] [Pages 17050-17051] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-06725] Federal Register / Vol. 81 , No. 58 / Friday, March 25, 2016 / Proposed Rules [[Page 17050]] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 216 and 236 [Docket DARS-2016-0006] RIN 0750-AI87 Defense Federal Acquisition Regulation Supplement: Prohibition on Use of Any Cost-Plus System of Contracting for Military Construction and Military Family Housing Projects (DFARS Case 2015-D040) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule. ----------------------------------------------------------------------- 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 2012 that amended title 10 of the United States Code by prohibiting any form of cost-plus contracting for military construction projects or military family housing projects. DATES: Comments on the proposed rule should be submitted in writing on or before May 24, 2016, to be considered in the formation of a final rule. ADDRESSES: Submit comments identified by DFARS Case 2015-D040, 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-D040'' under the heading ``Enter keyword or ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 2015-D040.'' Follow the instructions provided at the ``Submit a Comment'' screen. Please include your name, company name (if any), and ``DFARS Case 2015-D040'' on your attached document. [cir] Email: [email protected]. Include DFARS Case 2015-D040 in the subject line of the message. [cir] Fax: 571-372-6094. [cir] Mail: Defense Acquisition Regulations System, Attn: Mr. Christopher Stiller, 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: Mr. Christopher Stiller, telephone 571-372-6176. SUPPLEMENTARY INFORMATION: I. Background DoD is proposing to revise the DFARS to implement section 2801 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81). Section 2801 entitled ``Prohibition on Use of Any Cost-Plus System of Contracting for Military Construction and Military Family Housing Projects'' amends section 2306 of title 10, United States Code (U.S.C.), by prohibiting any form of cost-plus contracting for military construction projects or military family housing projects. II. Discussion and Analysis The rule proposes to amend DFARS 216.301-3, Limitations, to prohibit the use of any form of cost-plus contract type for contracts in connection with a military construction project or military family housing project. The placement of the text aligns with general limitations provided at FAR 16.301-3 on cost-reimbursement contracts. Because 10 U.S.C. 2306(c) prohibits several distinct kinds of cost-plus type contracts, the prohibition does not align with any specific cost- plus type as implemented at FAR 16.301-3. The prohibition at 10 U.S.C. 2306(c) is broader in scope than the prohibition currently implemented at DFARS 216.306; therefore, the language at DFARS 216.306 is revised to add a cross reference to the proposed revision at DFARS 216.301-3. The proposed rule adds a new section at DFARS 236.215 to align with FAR 36.215 and provide a cross reference to DFARS 216.301-3. Finally, a cross reference is also added at DFARS 236.271 to 216.301-3. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items This case does not add any new provisions or clauses or impact any existing provisions or clauses. 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. Regulatory Flexibility Act DoD does not expect this 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. 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 implement section 2801 of the National Defense Authorization Act for Fiscal Year 2012, which amends 10 U.S.C. 2306, to prohibit any form of cost-plus contracting for military construction projects or military family housing projects. There is an existing prohibition at DFARS 216.306 on using certain cost-plus-fixed-fee contracts funded by a military construction appropriations acts. This proposed rule expands this prohibition to all cost-plus contract types in connection with a military construction project or military family housing project. There is minimal impact anticipated on small entities as a result of the proposed rule. Based on data available in the Federal Procurement Data System, there were only 19 cost-reimbursement type construction acquisitions awarded in fiscal year 2015, two of which were awarded to small businesses. There is already a general prohibition at DFARS 216.306 on certain cost-plus-fixed-fee contracts funded by a military construction appropriations act. The proposed rule expands this prohibition to all cost-plus contract types in connection with a military construction project or a military family housing project. There are no new projected reporting, recordkeeping, and other compliance requirements of the rule. 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. [[Page 17051]] 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-D040), in correspondence. VI. 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 216 and 236 Government procurement. Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR parts 216 and 236 are proposed to be amended as follows: 0 1. The authority citation for 48 CFR parts 216 and 236 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 0 2. Add section 216.301-3 to read as follows: PART 216--TYPES OF CONTRACTS 216.301-3 Limitations. Contracts in connection with a military construction project or a military family housing project shall not use any form of a cost-plus contract type (10 U.S.C. 2306(c)). This applies notwithstanding a declaration of war or the declaration by the President of a national emergency under section 201 of the National Emergencies Act (50 U.S.C. 1621) that includes the use of the armed forces. 0 3. Amend section 216.306 by adding introductory text to paragraph (c) to read as follows: 216.306 Cost-plus-fixed-fee contracts. (c) Limitations. For contracts in connection with a military construction project or military family housing project, see the prohibition at 216.301-3. * * * * * PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS 0 4. Add section 236.215 to read as follows: 236.215 Special procedures for cost-reimbursement contracts for construction. See 216.301-3 for the prohibition on the use of any form of a cost- plus contract in connection with a military construction project or a military family housing project. 0 5. Revise section 236.271 to read as follows: 236.271 Cost-plus-fixed-fee contracts. Annual military construction appropriations acts restrict the use of cost-plus-fixed-fee contracts (see 216.306(c)). See also 216.301-3 regarding the prohibition against the use of any form of a cost-plus contract in connection with a military construction project or military family housing project. [FR Doc. 2016-06725 Filed 3-24-16; 8:45 am] BILLING CODE 5001-06-P
![17050 Federal Register / Vol. 81, No. 58 / Friday, March 25, 2016 / Proposed Rules
DEPARTMENT OF DEFENSE allow 30 days for posting of comments equity). E.O. 13563 emphasizes the
submitted by mail). importance of quantifying both costs
Defense Acquisition Regulations FOR FURTHER INFORMATION CONTACT: Mr. and benefits, of reducing costs, of
System Christopher Stiller, telephone 571–372– harmonizing rules, and of promoting
6176. flexibility. This is not a significant
48 CFR Parts 216 and 236 SUPPLEMENTARY INFORMATION: regulatory action and, therefore, was not
[Docket DARS–2016–0006] subject to review under section 6(b) of
I. Background E.O. 12866, Regulatory Planning and
RIN 0750–AI87 DoD is proposing to revise the DFARS Review, dated September 30, 1993. This
to implement section 2801 of the rule is not a major rule under 5 U.S.C.
Defense Federal Acquisition National Defense Authorization Act for 804.
Regulation Supplement: Prohibition on Fiscal Year 2012 (Pub. L. 112–81).
Use of Any Cost-Plus System of V. Regulatory Flexibility Act
Section 2801 entitled ‘‘Prohibition on
Contracting for Military Construction Use of Any Cost-Plus System of DoD does not expect this rule to have
and Military Family Housing Projects Contracting for Military Construction a significant economic impact on a
(DFARS Case 2015–D040) and Military Family Housing Projects’’ substantial number of small entities
AGENCY: Defense Acquisition amends section 2306 of title 10, United within the meaning of the Regulatory
Regulations System, Department of States Code (U.S.C.), by prohibiting any Flexibility Act, 5 U.S.C. 601, et seq.
Defense (DoD). form of cost-plus contracting for However, an initial regulatory flexibility
ACTION: Proposed rule.
military construction projects or analysis has been performed and is
military family housing projects. summarized as follows.
SUMMARY: DoD is proposing to amend II. Discussion and Analysis DoD is proposing to amend the
the Defense Federal Acquisition Defense Federal Acquisition Regulation
Regulation Supplement (DFARS) to The rule proposes to amend DFARS Supplement (DFARS) to implement
implement a section of the National 216.301–3, Limitations, to prohibit the section 2801 of the National Defense
Defense Authorization Act for Fiscal use of any form of cost-plus contract Authorization Act for Fiscal Year 2012,
Year 2012 that amended title 10 of the type for contracts in connection with a which amends 10 U.S.C. 2306, to
United States Code by prohibiting any military construction project or military prohibit any form of cost-plus
form of cost-plus contracting for family housing project. The placement contracting for military construction
military construction projects or of the text aligns with general projects or military family housing
military family housing projects. limitations provided at FAR 16.301–3 projects.
on cost-reimbursement contracts. There is an existing prohibition at
DATES: Comments on the proposed rule
Because 10 U.S.C. 2306(c) prohibits DFARS 216.306 on using certain cost-
should be submitted in writing on or
several distinct kinds of cost-plus type plus-fixed-fee contracts funded by a
before May 24, 2016, to be considered
contracts, the prohibition does not align military construction appropriations
in the formation of a final rule.
with any specific cost-plus type as acts. This proposed rule expands this
ADDRESSES: Submit comments implemented at FAR 16.301–3.
identified by DFARS Case 2015–D040, prohibition to all cost-plus contract
The prohibition at 10 U.S.C. 2306(c) types in connection with a military
using any of the following methods: is broader in scope than the prohibition
Æ Regulations.gov: http:// construction project or military family
currently implemented at DFARS housing project.
www.regulations.gov. Submit comments 216.306; therefore, the language at
via the Federal eRulemaking portal by There is minimal impact anticipated
DFARS 216.306 is revised to add a cross
entering ‘‘DFARS Case 2015–D040’’ on small entities as a result of the
reference to the proposed revision at
under the heading ‘‘Enter keyword or proposed rule. Based on data available
DFARS 216.301–3. The proposed rule
ID’’ and selecting ‘‘Search.’’ Select the in the Federal Procurement Data
adds a new section at DFARS 236.215
link ‘‘Submit a Comment’’ that System, there were only 19 cost-
to align with FAR 36.215 and provide a
corresponds with ‘‘DFARS Case 2015– reimbursement type construction
cross reference to DFARS 216.301–3.
D040.’’ Follow the instructions provided acquisitions awarded in fiscal year
Finally, a cross reference is also added
at the ‘‘Submit a Comment’’ screen. 2015, two of which were awarded to
at DFARS 236.271 to 216.301–3.
Please include your name, company small businesses. There is already a
name (if any), and ‘‘DFARS Case 2015– III. Applicability to Contracts at or general prohibition at DFARS 216.306
D040’’ on your attached document. Below the Simplified Acquisition on certain cost-plus-fixed-fee contracts
Æ Email: osd.dfars@mail.mil. Include Threshold and for Commercial Items, funded by a military construction
DFARS Case 2015–D040 in the subject Including Commercially Available Off- appropriations act. The proposed rule
line of the message. the-Shelf Items expands this prohibition to all cost-plus
Æ Fax: 571–372–6094. This case does not add any new contract types in connection with a
Æ Mail: Defense Acquisition provisions or clauses or impact any military construction project or a
Regulations System, Attn: Mr. existing provisions or clauses. military family housing project.
Christopher Stiller, OUSD(AT&L)DPAP/ There are no new projected reporting,
DARS, Room 3B941, 3060 Defense IV. Executive Orders 12866 and 13563 recordkeeping, and other compliance
requirements of the rule.
srobinson on DSK5SPTVN1PROD with PROPOSALS2
Pentagon, Washington, DC 20301–3060. Executive Orders (E.O.s) 12866 and
Comments received generally will be 13563 direct agencies to assess all costs The rule does not duplicate, overlap,
posted without change to http:// and benefits of available regulatory or conflict with any other Federal rules.
www.regulations.gov, including any alternatives and, if regulation is There are no known significant
personal information provided. To necessary, to select regulatory alternatives to this rule.
confirm receipt of your comment(s), approaches that maximize net benefits DoD invites comments from small
please check www.regulations.gov, (including potential economic, business concerns and other interested
approximately two to three days after environmental, public health and safety parties on the expected impact of this
submission to verify posting (except effects, distributive impacts, and rule on small entities.
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![Federal Register / Vol. 81, No. 58 / Friday, March 25, 2016 / Proposed Rules 17051
DoD will also consider comments contract in connection with a military Æ Fax: 571–372–6094.
from small entities concerning the construction project or a military family Æ Mail: Defense Acquisition
existing regulations in subparts affected housing project. Regulations System, Attn: Ms. Jo Ann
by this rule in accordance with 5 U.S.C. ■ 5. Revise section 236.271 to read as Reilly, OUSD(AT&L)DPAP/DARS, Room
610. Interested parties must submit such follows: 3B941, 3060 Defense Pentagon,
comments separately and should cite 5 Washington, DC 20301–3060.
236.271 Cost-plus-fixed-fee contracts.
U.S.C 610 (DFARS Case 2015–D040), in Comments received generally will be
correspondence. Annual military construction posted without change to http://
appropriations acts restrict the use of www.regulations.gov, including any
VI. Paperwork Reduction Act cost-plus-fixed-fee contracts (see personal information provided. To
The rule does not contain any 216.306(c)). See also 216.301–3 confirm receipt of your comment(s),
information collection requirements that regarding the prohibition against the use please check www.regulations.gov,
require the approval of the Office of of any form of a cost-plus contract in approximately two to three days after
Management and Budget under the connection with a military construction submission to verify posting (except
Paperwork Reduction Act (44 U.S.C. project or military family housing allow 30 days for posting of comments
chapter 35). project. submitted by mail).
[FR Doc. 2016–06725 Filed 3–24–16; 8:45 am]
List of Subjects in 48 CFR Parts 216 and FOR FURTHER INFORMATION CONTACT: Ms.
BILLING CODE 5001–06–P
236 Jo Ann Reilly, telephone 571–372–6176.
Government procurement. SUPPLEMENTARY INFORMATION:
DEPARTMENT OF DEFENSE
Jennifer L. Hawes, I. Background
Editor, Defense Acquisition Regulations Defense Acquisition Regulations DoD is proposing to revise Appendix
System. System F of the DFARS to add instructions for
Therefore, 48 CFR parts 216 and 236 the use, preparation, and distribution of
are proposed to be amended as follows: 48 CFR Chapter 2 the Wide Area WorkFlow (WAWF)
■ 1. The authority citation for 48 CFR [Docket DARS–2016–0001] Reparable Receiving Report (RRR) that
parts 216 and 236 continues to read as has been created to differentiate
RIN 0750–AI83 between deliveries of new Government
follows:
assets (new procurements) and the
Authority: 41 U.S.C. 1303 and 48 CFR Defense Federal Acquisition
return of Government property that has
chapter 1. Regulation Supplement: Instructions
been repaired or overhauled. The
■ 2. Add section 216.301–3 to read as for the Wide Area WorkFlow Reparable
WAWF RRR creates an acceptance
follows: Receiving Report (DFARS Case 2016–
transaction for use in paying for the
D004)
PART 216—TYPES OF CONTRACTS repair service and property transfers,
AGENCY: Defense Acquisition moving the asset back to the
216.301–3 Limitations. Regulations System, Department of Government, and reporting the
Contracts in connection with a Defense (DoD). movement to the Item Unique
military construction project or a ACTION: Proposed rule. Identification (IUID) registry. Without
military family housing project shall not the RRR, the contractor would have to
use any form of a cost-plus contract type SUMMARY: DoD is proposing to amend take multiple actions to comply with the
(10 U.S.C. 2306(c)). This applies the Defense Federal Acquisition DFARS clauses at 252.232–7003,
notwithstanding a declaration of war or Regulation Supplement (DFARS) to add Electronic Submission of Payment
the declaration by the President of a instructions for utilizing the Wide Area Requests and Receiving Reports;
national emergency under section 201 of WorkFlow Reparable Receiving Report. 252.211–7003, Item Unique
the National Emergencies Act (50 U.S.C. DATES: Comments on the proposed rule Identification and Valuation; and
1621) that includes the use of the armed should be submitted in writing to the 252.211–7007, Reporting of
forces. address shown below on or before May Government-Furnished Property. In
■ 3. Amend section 216.306 by adding 24, 2016, to be considered in the addition, this proposed rule would
introductory text to paragraph (c) to formation of a final rule. improve reporting efficiency by
read as follows: ADDRESSES: Submit comments eliminating manual intervention that is
identified by DFARS Case 2016–D004, currently required to ensure accurate
216.306 Cost-plus-fixed-fee contracts. information flow between different
using any of the following methods:
(c) Limitations. For contracts in Æ Regulations.gov: http:// Government reporting systems.
connection with a military construction www.regulations.gov. Submit comments
project or military family housing II. Discussion and Analysis
via the Federal eRulemaking portal by
project, see the prohibition at 216.301– entering ‘‘DFARS Case 2016–D004’’ DoD is proposing to make the
3. under the heading ‘‘Enter keyword or following changes to DFARS Appendix
* * * * * ID’’ and selecting ‘‘Search.’’ Select the F to provide guidance on the use of the
link ‘‘Submit a Comment’’ that WAWF RRR as follows:
PART 236—CONSTRUCTION AND • F–101—states that the WAWF RRR
srobinson on DSK5SPTVN1PROD with PROPOSALS2
corresponds with ‘‘DFARS Case 2016–
ARCHITECT–ENGINEER CONTRACTS D004.’’ Follow the instructions provided is the electronic equivalent of the DD
■ 4. Add section 236.215 to read as at the ‘‘Submit a Comment’’ screen. Form 250 for repair, maintenance, or
follows: Please include your name, company overhaul of Government furnished
name (if any), and ‘‘DFARS Case 2016– property (GFP).
236.215 Special procedures for cost- D004’’ on your attached document. • F–103—adds new guidance on the
reimbursement contracts for construction. Æ Email: osd.dfars@mail.mil. Include use of the WAWF RRR as a
See 216.301–3 for the prohibition on DFARS Case 2016–D004 in the subject multipurpose report. Adds a new
the use of any form of a cost-plus line of the message. paragraph (e)(3) to state that use of the
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Document Created: 2018-02-02 15:17:36
Document Modified: 2018-02-02 15:17:36
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments on the proposed rule should be submitted in writing on or before May 24, 2016, to be considered in the formation of a final rule. | |
| Contact | Mr. Christopher Stiller, telephone 571-372-6176. | |
| FR Citation | 81 FR 17050 | |
| RIN Number | 0750-AI87 | |
| CFR Citation | 48
CFR
216 48 CFR 236 |
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