83 FR 15995 - Defense Federal Acquisition Regulation Supplement: Consolidation of Contract Requirements (DFARS Case 2017-D004)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 83, Issue 72 (April 13, 2018)

Page Range		15995-15996
FR Document		2018-07732

DoD is issuing a final rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to remove outdated coverage of consolidation of contract requirements.

Federal Register, Volume 83 Issue 72 (Friday, April 13, 2018)

[Federal Register Volume 83, Number 72 (Friday, April 13, 2018)]
[Rules and Regulations]
[Pages 15995-15996]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-07732]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 207, 210, and 219

[Docket DARS-2018-0014]
RIN 0750-AJ43


Defense Federal Acquisition Regulation Supplement: Consolidation 
of Contract Requirements (DFARS Case 2017-D004)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD is issuing a final rule to amend the Defense Federal 
Acquisition Regulation Supplement (DFARS) to remove outdated coverage 
of consolidation of contract requirements.

DATES: Effective April 13, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Jennifer D. Johnson, telephone 
571-372-6100.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is amending the DFARS to remove outdated coverage of 
consolidation of contract requirements, which is defined at DFARS 
207.170 as ``the use of a solicitation to obtain offers for a single 
contract or multiple award contract to satisfy two or more requirements 
of a department, agency, or activity for supplies or services that 
previously have been provided to, or performed for, that department, 
agency, or activity under two or more separate contracts.'' This 
coverage implemented 10 U.S.C. 2382, which was repealed by section 1671 
of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 
112-239). Section 1671 also amended section 44 of the Small Business 
Act (15 U.S.C. 657q) to remove the requirement for DoD to comply with 
10 U.S.C. 2382. As a result, DoD is now required to comply with 15 
U.S.C. 657q.
    10 U.S.C. 2382 imposed limitations on the use of acquisition 
strategies involving consolidation, including requirements to identify 
alternative approaches that would involve a lesser degree of 
consolidation and to determine that consolidation is necessary and 
justified. Section 44 of the Small Business Act (15 U.S.C. 657q) 
contains similar limitations. The Federal Acquisition Regulation (FAR) 
addresses consolidation, including the limitations of 15 U.S.C. 657q, 
at FAR 7.107. By removing the outdated DFARS coverage of consolidation, 
this rule will reduce confusion among the DoD contracting workforce 
caused by differing requirements in the FAR and DFARS.

II. Discussion and Analysis

    This rule deletes DFARS section 207.170 in its entirety to remove 
the obsolete text on consolidation of contract requirements. In 
addition, paragraphs (a)(i)(A) and (a)(ii)(A) of DFARS section 210.001 
are also deleted to remove the reference to the deleted text at DFARS 
207.170. In paragraph (c)(11)(A) of the DFARS section 219.201, the 
reference to deleted text at DFARS 207.107 is replaced by a reference 
to FAR 7.107, where contract consolidate and the limitations of 15 
U.S.C. 657q are currently addressed.

III. 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 the Office of Federal Procurement 
Policy statute (codified at title 41 of the United States Code). 
Specifically, 41 U.S.C. 1707(a)(1) 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 merely 
removes obsolete text from the DFARS, which affects only the internal 
operating procedures of the Government.

[[Page 15996]]

IV. 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 any new provisions or clauses nor impact 
any existing provisions or clauses.

V. 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.

VI. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and 
Controlling Regulatory Costs, because the rule relates to agency 
organization, management, or personnel.

VII. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required and none has been prepared.

VIII. 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 207, 210, and 219

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 207, 210, and 219 are amended as follows:

0
1. The authority citation for parts 207, 210, and 219 continues to read 
as follows:

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

PART 207--ACQUISITION PLANNING


207.170   [Removed and Reserved]

0
2. Remove and reserve section 207.170.


207.170-1   [Removed]

0
3. Remove section 207.170-1.


207.170-2   [Removed]

0
4. Remove section 207.170-2.


207.170-3   [Removed]

0
5. Remove section 207.170-3.

PART 210--MARKET RESEARCH

0
6. Amend section 210.001 by revising paragraph (a) to read as follows:


210.001  Policy.

    (a) In addition to the requirements of FAR 10.001(a), agencies 
shall--
    (i) Conduct market research appropriate to the circumstances before 
issuing a solicitation with tiered evaluation of offers (section 816 of 
Pub. L. 109-163); and
    (ii) Use the results of market research to determine whether the 
criteria in FAR part 19 are met for setting aside the acquisition for 
small business or, for a task or delivery order, whether there are a 
sufficient number of qualified small business concerns available to 
justify limiting competition under the terms of the contract. If the 
contracting officer cannot determine whether the criteria are met, the 
contracting officer shall include a written explanation in the contract 
file as to why such a determination could not be made (section 816 of 
Pub. L. 109-163).
* * * * *

PART 219--SMALL BUSINESS PROGRAMS


219.201   [Amended]

0
7. Amend section 219.201 in paragraph (c)(11)(A) by removing ``(see 
207.170)'' and adding ``(see FAR 7.107)'' in its place.

[FR Doc. 2018-07732 Filed 4-12-18; 8:45 am]
 BILLING CODE 5001-06-P

Federal Register / Vol. 83, No. 72 / Friday, April 13, 2018 / Rules and Regulations 15995

analysis is required and none has been surveillance), peripheral equipment 10 U.S.C. 2382 imposed limitations
prepared. designed to be controlled by the central on the use of acquisition strategies
processing unit of a computer, software, involving consolidation, including
VII. Paperwork Reduction Act
firmware and similar procedures, requirements to identify alternative
The rule does not contain any services (including support services), approaches that would involve a lesser
information collection requirements that and related resources. degree of consolidation and to
require the approval of the Office of (3) The term ‘‘information determine that consolidation is
Management and Budget under the technology’’ does not include any necessary and justified. Section 44 of
Paperwork Reduction Act (44 U.S.C. equipment acquired by a contractor the Small Business Act (15 U.S.C. 657q)
chapter 35). incidental to a contract. contains similar limitations. The
List of Subjects in 48 CFR Parts 202 and * * * * * Federal Acquisition Regulation (FAR)
[FR Doc. 2018–07734 Filed 4–12–18; 8:45 am]
239 addresses consolidation, including the
BILLING CODE 5001–06–P
Government procurement. limitations of 15 U.S.C. 657q, at FAR
7.107. By removing the outdated DFARS
Jennifer Lee Hawes, coverage of consolidation, this rule will
Regulatory Control Officer, Defense
DEPARTMENT OF DEFENSE
reduce confusion among the DoD
Acquisition Regulations System. contracting workforce caused by
Defense Acquisition Regulations
Therefore, 48 CFR parts 202 and 239 System differing requirements in the FAR and
are amended as follows: DFARS.
■ 1. The authority citation for parts 202 48 CFR Parts 207, 210, and 219
II. Discussion and Analysis
and 239 continues to read as follows: [Docket DARS–2018–0014]
Authority: 41 U.S.C. 1303 and 48 CFR This rule deletes DFARS section
RIN 0750–AJ43
chapter 1. 207.170 in its entirety to remove the
Defense Federal Acquisition obsolete text on consolidation of
PART 202—DEFINITIONS OF WORDS contract requirements. In addition,
AND TERMS Regulation Supplement: Consolidation
of Contract Requirements (DFARS paragraphs (a)(i)(A) and (a)(ii)(A) of
202.101 [Amended] Case 2017–D004) DFARS section 210.001 are also deleted
to remove the reference to the deleted
■ 2. Amend section 202.101 by AGENCY: Defense Acquisition text at DFARS 207.170. In paragraph
removing the definition of ‘‘Information Regulations System, Department of (c)(11)(A) of the DFARS section 219.201,
technology.’’ Defense (DoD). the reference to deleted text at DFARS
ACTION: Final rule. 207.107 is replaced by a reference to
PART 239—ACQUISITION OF
INFORMATION TECHNOLOGY SUMMARY: DoD is issuing a final rule to FAR 7.107, where contract consolidate
amend the Defense Federal Acquisition and the limitations of 15 U.S.C. 657q are
■ 3. Amend section 239.7301 by adding currently addressed.
Regulation Supplement (DFARS) to
the definition of ‘‘Information
remove outdated coverage of III. Publication of This Final Rule for
technology’’ in alphabetical order to
consolidation of contract requirements. Public Comment Is Not Required by
read as follows:
DATES: Effective April 13, 2018. Statute
239.7301 Definitions. FOR FURTHER INFORMATION CONTACT: Ms.
* * * * * Jennifer D. Johnson, telephone 571– The statute that applies to the
Information technology (see 40 U.S.C 372–6100. publication of the Federal Acquisition
11101(6)) means, in lieu of the SUPPLEMENTARY INFORMATION: Regulation (FAR) is the Office of Federal
definition at FAR 2.1, any equipment, or Procurement Policy statute (codified at
interconnected system(s) or I. Background title 41 of the United States Code).
subsystem(s) of equipment, that is used DoD is amending the DFARS to Specifically, 41 U.S.C. 1707(a)(1)
in the automatic acquisition, storage, remove outdated coverage of requires that a procurement policy,
analysis, evaluation, manipulation, consolidation of contract requirements, regulation, procedure or form (including
management, movement, control, which is defined at DFARS 207.170 as an amendment or modification thereof)
display, switching, interchange, ‘‘the use of a solicitation to obtain offers must be published for public comment
transmission, or reception of data or for a single contract or multiple award if it relates to the expenditure of
information by the agency. contract to satisfy two or more appropriated funds, and has either a
(1) For purposes of this definition, requirements of a department, agency, significant effect beyond the internal
equipment is used by an agency if the or activity for supplies or services that operating procedures of the agency
equipment is used by the agency previously have been provided to, or issuing the policy, regulation, procedure
directly or is used by a contractor under performed for, that department, agency, or form, or has a significant cost or
a contract with the agency that or activity under two or more separate administrative impact on contractors or
requires— contracts.’’ This coverage implemented offerors. This final rule is not required
(i) Its use; or 10 U.S.C. 2382, which was repealed by
to be published for public comment
(ii) To a significant extent, its use in section 1671 of the National Defense
because the rule merely removes
the performance of a service or the Authorization Act for Fiscal Year 2013
daltland on DSKBBV9HB2PROD with RULES

obsolete text from the DFARS, which
furnishing of a product. (Pub. L. 112–239). Section 1671 also
(2) The term ‘‘information amended section 44 of the Small affects only the internal operating
technology’’ includes computers, Business Act (15 U.S.C. 657q) to remove procedures of the Government.
ancillary equipment (including imaging the requirement for DoD to comply with
peripherals, input, output, and storage 10 U.S.C. 2382. As a result, DoD is now
devices necessary for security and required to comply with 15 U.S.C. 657q.

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15996 Federal Register / Vol. 83, No. 72 / Friday, April 13, 2018 / Rules and Regulations

IV. Applicability to Contracts at or ■ 1. The authority citation for parts 207, DEPARTMENT OF DEFENSE
Below the Simplified Acquisition 210, and 219 continues to read as
Threshold and for Commercial Items, follows: Defense Acquisition Regulations
Including Commercially Available Off- System
Authority: 41 U.S.C. 1303 and 48 CFR
the-Shelf Items chapter 1.
48 CFR Parts 211, 215, 219, 242, and
This rule does not create any new 252
provisions or clauses nor impact any PART 207—ACQUISITION PLANNING
existing provisions or clauses. [Docket DARS–2016–0027]
207.170 [Removed and Reserved]
V. Executive Orders 12866 and 13563 RIN 0750–AJ00
■ 2. Remove and reserve section
Executive Orders (E.O.s) 12866 and 207.170. Defense Federal Acquisition
13563 direct agencies to assess all costs Regulation Supplement: Temporary
and benefits of available regulatory 207.170–1 [Removed] Extension of Test Program for
alternatives and, if regulation is Comprehensive Small Business
necessary, to select regulatory ■ 3. Remove section 207.170–1. Subcontracting Plans (DFARS Case
approaches that maximize net benefits 207.170–2 [Removed] 2015–D013)
(including potential economic,
environmental, public health and safety ■ 4. Remove section 207.170–2. AGENCY: Defense Acquisition
effects, distributive impacts, and Regulations System, Department of
equity). E.O. 13563 emphasizes the 207.170–3 [Removed] Defense (DoD).
importance of quantifying both costs ACTION: Final rule.
■ 5. Remove section 207.170–3.
and benefits, of reducing costs, of
SUMMARY: DoD is issuing a final rule
harmonizing rules, and of promoting PART 210—MARKET RESEARCH amending the Defense Federal
flexibility. This is not a significant
Acquisition Regulation Supplement
regulatory action and, therefore, was not
■ 6. Amend section 210.001 by revising (DFARS) to implement sections of the
subject to review under section 6(b) of
paragraph (a) to read as follows: National Defense Authorization Acts for
E.O. 12866, Regulatory Planning and
Fiscal Years 2015, 2016, and 2017 to
Review, dated September 30, 1993. This 210.001 Policy. provide revisions to the Test Program
rule is not a major rule under 5 U.S.C.
(a) In addition to the requirements of for Negotiation of Comprehensive Small
804.
FAR 10.001(a), agencies shall— Business Subcontracting Plans.
VI. Executive Order 13771 DATES: Effective April 13, 2018.
(i) Conduct market research
This rule is not subject to E.O. 13771, FOR FURTHER INFORMATION CONTACT: Ms.
appropriate to the circumstances before
Reducing Regulation and Controlling issuing a solicitation with tiered Jennifer Johnson, telephone 571–372–
Regulatory Costs, because the rule 6100.
evaluation of offers (section 816 of Pub.
relates to agency organization, L. 109–163); and SUPPLEMENTARY INFORMATION:
management, or personnel.
(ii) Use the results of market research I. Background
VII. Regulatory Flexibility Act to determine whether the criteria in DoD published a proposed rule in the
Because a notice of proposed FAR part 19 are met for setting aside the Federal Register at 81 FR 65606 on
rulemaking and an opportunity for acquisition for small business or, for a September 23, 2016, to implement
public comment are not required to be task or delivery order, whether there are section 821 of the National Defense
given for this rule under 41 U.S.C. a sufficient number of qualified small Authorization Act (NDAA) for Fiscal
1707(a)(1) (see section III. of this business concerns available to justify Year (FY) 2015 (Pub. L. 113–291) and
preamble), the analytical requirements limiting competition under the terms of section 872 of the NDAA for FY 2016
of the Regulatory Flexibility Act (5 the contract. If the contracting officer (Pub. L. 114–92), to revise the Test
U.S.C. 601 et seq.) are not applicable. cannot determine whether the criteria Program for Negotiation of
Accordingly, no regulatory flexibility are met, the contracting officer shall Comprehensive Small Business
analysis is required and none has been include a written explanation in the Subcontracting Plans (‘‘the Test
prepared. contract file as to why such a Program’’).
determination could not be made Section 821 of the NDAA for FY 2015
VIII. Paperwork Reduction Act
(section 816 of Pub. L. 109–163). provides for contractors participating in
The rule does not contain any the Test Program to report, on a
information collection requirements that * * * * *
semiannual basis, specific information
require the approval of the Office of related to their comprehensive
PART 219—SMALL BUSINESS
Management and Budget under the subcontracting plans. This information
PROGRAMS
Paperwork Reduction Act (44 U.S.C. is expected to assist in determining if
chapter 35). 219.201 [Amended] Test Program participants have achieved
List of Subjects in 48 CFR Parts 207, cost savings while enhancing
■ 7. Amend section 219.201 in opportunities for small businesses.
210, and 219 paragraph (c)(11)(A) by removing ‘‘(see In addition, section 821—
• Repeals section 402 of Public Law
daltland on DSKBBV9HB2PROD with RULES

Government procurement. 207.170)’’ and adding ‘‘(see FAR 7.107)’’
in its place. 101–574, which suspended liquidated
Jennifer Lee Hawes,
[FR Doc. 2018–07732 Filed 4–12–18; 8:45 am] damages under comprehensive small
Regulatory Control Officer, Defense business subcontracting plans;
Acquisition Regulations System. BILLING CODE 5001–06–P
• Requires consideration, as part of
Therefore, 48 CFR part 207, 210, and the past performance evaluation of an
219 are amended as follows: offeror, of any failure to make a good

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Document Created: 2018-04-13 00:18:05
Document Modified: 2018-04-13 00:18:05

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 April 13, 2018.
Contact		Ms. Jennifer D. Johnson, telephone 571-372-6100.
FR Citation		83 FR 15995
RIN Number		0750-AJ43
CFR Citation		48 CFR 207 48 CFR 210 48 CFR 219

83 FR 15995 - Defense Federal Acquisition Regulation Supplement: Consolidation of Contract Requirements (DFARS Case 2017-D004)

DEPARTMENT OF DEFENSEDefense Acquisition Regulations System

Federal Register Volume 83, Issue 72 (April 13, 2018)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System