81 FR 28733 - Defense Federal Acquisition Regulation Supplement: Contract Term Limit for Energy Savings Contracts (DFARS Case 2015-D018)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 81, Issue 90 (May 10, 2016)
Defense Acquisition Regulations System
Federal Register Volume 81, Issue 90 (May 10, 2016)
| Page Range | 28733-28735 | |
| FR Document | 2016-10824 |
[Federal Register Volume 81, Number 90 (Tuesday, May 10, 2016)] [Rules and Regulations] [Pages 28733-28735] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-10824] ----------------------------------------------------------------------- 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 Energy Savings Contracts (DFARS Case 2015-D018) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the contract term for energy savings contracts awarded under 10 U.S.C. 2913. DATES: Effective May 10, 2016. FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, telephone 571-372- 6106. SUPPLEMENTARY INFORMATION: I. Background DoD published a proposed rule in the Federal Register at 80 FR 72675 on November 20, 2015, to clarify the contract term for contracts awarded under the statutory authority of 10 U.S.C. 2913. Ten respondents submitted public comments in response to the proposed rule. [[Page 28734]] II. Discussion and Analysis DoD reviewed the public comments in the development of the final rule. A discussion of the comments received and the changes made to the rule as a result of those comments follows: A. Summary of Significant Changes From the Proposed Rule The final rule has been revised at DFARS 241.103(2) to provide that the contracting officer may enter into an energy savings contract under 10 U.S.C. 2913 for a period not to exceed 25 years. This change to ``energy savings contract'' from ``shared energy savings contract'' brings the term limit for all activities authorized by section 2913 under the final rule. B. Analysis of Public Comments 1. General Support for the Rule Comment: Several respondents expressed support for the changes in the proposed rule, indicating that the term limit of 25 years would promote the use of shared energy savings contracts, have a positive benefit on small businesses, facilitate greater partnerships between utilities and DoD customers, and increase competition. One respondent indicated that the term limit of 25 years would lead to several benefits including deeper retrofits, elimination of cream skimming, effectively leveraging private sector funding, and accomplishing the President's Performance Contracting Challenge goals. Response: Noted. 2. Clarification of the Contract Period Comment: One respondent requested clarification of the date that the contract period commences. The respondent stated that the rule would most effectively accomplish its goal of accommodating project financing needs if the contract period were tied to the payment term, and suggested that the rule be revised to state the following: ``The contracting officer may enter into a shared energy savings contract under 10 U.S.C. 2913 for a `payment term' not to exceed 25 years.'' Response: Payment term is interpreted as the performance period of the contract, which is not to exceed 25 years. The contract period will include the entire performance period, including construction, if any. 3. Inclusion of Water-Related Projects Comment: One respondent expressed concern that the rule's failure to address water-related projects authorized by 10 U.S.C. 2866 would result in ambiguity and confusion with regard to the term limit for such contracts. The respondent suggested that the rule be revised to state the following: ``The contracting officer may enter into a contract under 10 U.S.C. 2913 or 10 U.S.C. 2866 for a period not to exceed 25 years.'' Response: The recommendation is beyond the scope of the case. 4. Application of 10 U.S.C. 2913 to Agreements With Gas or Electric Utilities Comment: One respondent stated that 10 U.S.C. 2913 applies not only to shared energy savings contracts, but also to agreements with gas or electric companies, and recommended removing the reference to shared energy savings contracts. Response: The final rule has been revised at 241.103(2) to provide that the contracting officer may enter into an energy savings contract under 10 U.S.C. 2913 for a period not to exceed 25 years. 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 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 A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows: This final rule amends 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 or activities 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. No comments were received from the public regarding the initial regulatory flexibility analysis. The 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 and maintenance work executed under the awards being subcontracted to local small business by the utility provider. This rule does not create any new reporting or recordkeeping requirements. There are no known significant alternatives to the rule. 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 Part 241 Government procurement. Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR part 241 is amended 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-- 0 a. Redesignating paragraphs (2) and (3) as paragraphs (3) and (4); and 0 b. Adding a new paragraph (2). [[Page 28735]] The addition reads as follows: 241.103 Statutory and delegated authority. * * * * * (2) The contracting officer may enter into an energy savings contract under 10 U.S.C. 2913 for a period not to exceed 25 years. * * * * * [FR Doc. 2016-10824 Filed 5-9-16; 8:45 am] BILLING CODE 5001-06-P
![Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations 28733
SUMMARY: DoD is issuing a final rule Regulation Supplement (DFARS) to add Long-haul telecommunications means
amending the Defense Federal a definition of ‘‘long-haul all general and special purpose long-
Acquisition Regulation Supplement telecommunications’’ and provide a distance telecommunications facilities
(DFARS) to add a definition of ‘‘long- pointer to DFARS Procedures, and services (including commercial
haul telecommunications.’’ Guidance, and Information for satellite services, terminal equipment
DATES: Effective May 10, 2016. procedures internal to DoD. and local circuitry supporting the long-
No comments were received from the haul service) to or from the post, camp,
FOR FURTHER INFORMATION CONTACT: Mr.
public regarding the initial regulatory base, or station switch and/or main
Christopher Stiller, telephone 571–372–
flexibility analysis. distribution frame (except for trunk
6176.
The requirements under this rule will lines to the first-serving commercial
SUPPLEMENTARY INFORMATION: apply to long-haul telecommunications central office for local communications
I. Background (Product Service Code D304) services).
requirements as defined in the DoD * * * * *
DoD published a proposed rule in the Directive 5105.19, Defense Information
Federal Register at 80 FR 72674 on ■ 3. Amend section 239.7402 by adding
Systems Agency. According to data
November 20, 2015, to revise DFARS paragraph (d) to read as follows:
available in the Federal Procurement
subpart 239.74 to add ‘‘long-haul Data System-Next Generation (FPDS– 239.7402 Policy.
telecommunications’’ to the NG) for fiscal year 2014 through July 31,
telecommunications services definitions * * * * *
2015, DoD awarded 13,596 new long- (d) Long-haul telecommunications
and identify Defense Information haul telecommunications contracts.
Systems Agency as the procurer of long- services. When there is a requirement
Approximately 3 percent (451) of the for procurement of long-haul
haul telecommunications services for total were awarded to small entities
DoD, as mentioned in DoD Directive telecommunications services, follow
(comprised of 222 unique small PGI 239.7402(d).
5105.19, Defense Information Systems entities).
Agency. There were no public This rule does not create any new
[FR Doc. 2016–10825 Filed 5–9–16; 8:45 am]
comments submitted in response to the reporting or recordkeeping BILLING CODE 5001–06–P
proposed rule. There are no changes requirements.
from the proposed rule made in the final There are no known significant
rule. DEPARTMENT OF DEFENSE
alternatives to the rule. The impact of
II. Applicability to Contracts at or this rule on small entities is not Defense Acquisition Regulations
Below the Simplified Acquisition expected to be significant because it System
Threshold and for Commercial Items, only affects DoD internal operating
Including Commercially Available Off- procedures. 48 CFR Part 241
the-Shelf Items V. Paperwork Reduction Act [Docket DARS–2015–0050]
This case does not add any new The rule does not contain any
provisions or clauses or impact any RIN 0750–AI74
information collection requirements that
existing provisions or clauses. require the approval of the Office of Defense Federal Acquisition
III. Executive Orders 12866 and 13563 Management and Budget under the Regulation Supplement: Contract Term
Paperwork Reduction Act (44 U.S.C. Limit for Energy Savings Contracts
Executive Orders (E.O.s) 12866 and chapter 35).
13563 direct agencies to assess all costs (DFARS Case 2015–D018)
and benefits of available regulatory List of Subjects in 48 CFR Part 239 AGENCY: Defense Acquisition
alternatives and, if regulation is Government procurement. Regulations System, Department of
necessary, to select regulatory Defense (DoD).
approaches that maximize net benefits Jennifer L. Hawes,
Editor, Defense Acquisition Regulations ACTION: Final rule.
(including potential economic,
environmental, public health and safety System.
SUMMARY: DoD is issuing a final rule
effects, distributive impacts, and Therefore, 48 CFR part 239 is amending the Defense Federal
equity). E.O. 13563 emphasizes the amended as follows: Acquisition Regulation Supplement
importance of quantifying both costs (DFARS) to clarify the contract term for
and benefits, of reducing costs, of PART 239—ACQUISITION OF energy savings contracts awarded under
harmonizing rules, and of promoting INFORMATION TECHNOLOGY 10 U.S.C. 2913.
flexibility. This is not a significant DATES: Effective May 10, 2016.
regulatory action and, therefore, was not ■ 1. The authority citation for part 239
continues to read as follows: FOR FURTHER INFORMATION CONTACT: Ms.
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and Authority: 41 U.S.C. 1303 and 48 CFR Amy Williams, telephone 571–372–
Review, dated September 30, 1993. This chapter 1. 6106.
rule is not a major rule under 5 U.S.C. ■ 2. Amend section 239.7401 by— SUPPLEMENTARY INFORMATION:
804. ■ a. Removing the alphabetical I. Background
IV. Regulatory Flexibility Act paragraph designation from each
definition; and DoD published a proposed rule in the
A final regulatory flexibility analysis ■ b. Adding, in alphabetical order, a Federal Register at 80 FR 72675 on
ehiers on DSK5VPTVN1PROD with RULES
(FRFA) has been prepared consistent new definition for ‘‘Long-haul November 20, 2015, to clarify the
with the Regulatory Flexibility Act, 5 telecommunications’’. contract term for contracts awarded
U.S.C. 601, et seq. The FRFA is The addition reads as follows: under the statutory authority of 10
summarized as follows: U.S.C. 2913. Ten respondents submitted
The purpose of this final rule is to 239.7401 Definitions. public comments in response to the
amend the Defense Federal Acquisition * * * * * proposed rule.
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![Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations 28735
The addition reads as follows: (2) The contracting officer may enter U.S.C. 2913 for a period not to exceed
into an energy savings contract under 10 25 years.
241.103 Statutory and delegated authority.
* * * * *
* * * * * [FR Doc. 2016–10824 Filed 5–9–16; 8:45 am]
BILLING CODE 5001–06–P
ehiers on DSK5VPTVN1PROD with RULES
VerDate Sep<11>2014 15:17 May 09, 2016 Jkt 238001 PO 00000 Frm 00047 Fmt 4700 Sfmt 9990 E:\FR\FM\10MYR1.SGM 10MYR1](https://thefederalregister.org/doc/81_FR_28823/page/3.svg)
Document Created: 2016-05-10 05:18:31
Document Modified: 2016-05-10 05:18:31
| 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 | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective May 10, 2016. | |
| Contact | Ms. Amy Williams, telephone 571-372- 6106. | |
| FR Citation | 81 FR 28733 | |
| RIN Number | 0750-AI74 |
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