83 FR 15996 - Defense Federal Acquisition Regulation Supplement: Temporary Extension of Test Program for Comprehensive Small Business Subcontracting Plans (DFARS Case 2015-D013)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

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

Page Range		15996-16000
FR Document		2018-07730

DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement sections of the National Defense Authorization Acts for Fiscal Years 2015, 2016, and 2017 to provide revisions to the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans.

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

[Federal Register Volume 83, Number 72 (Friday, April 13, 2018)]
[Rules and Regulations]
[Pages 15996-16000]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-07730]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 211, 215, 219, 242, and 252

[Docket DARS-2016-0027]
RIN 0750-AJ00

Defense Federal Acquisition Regulation Supplement: Temporary
Extension of Test Program for Comprehensive Small Business
Subcontracting Plans (DFARS Case 2015-D013)

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 implement sections of the
National Defense Authorization Acts for Fiscal Years 2015, 2016, and
2017 to provide revisions to the Test Program for Negotiation of
Comprehensive Small Business Subcontracting Plans.

DATES: Effective April 13, 2018.

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

SUPPLEMENTARY INFORMATION:

I. Background

DoD published a proposed rule in the Federal Register at 81 FR
65606 on September 23, 2016, to implement section 821 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 (Pub. L.
113-291) and section 872 of the NDAA for FY 2016 (Pub. L. 114-92), to
revise the Test Program for Negotiation of Comprehensive Small Business
Subcontracting Plans (``the Test Program'').
Section 821 of the NDAA for FY 2015 provides for contractors
participating in the Test Program to report, on a semiannual basis,
specific information related to their comprehensive subcontracting
plans. This information is expected to assist in determining if Test
Program participants have achieved cost savings while enhancing
opportunities for small businesses.
In addition, section 821--
Repeals section 402 of Public Law 101-574, which suspended
liquidated damages under comprehensive small business subcontracting
plans;
Requires consideration, as part of the past performance
evaluation of an offeror, of any failure to make a good

[[Page 15997]]

faith effort to comply with its comprehensive subcontracting plan;
Extends the Test Program from December 14, 2014, through
December 31, 2017;
Increases the threshold for participation in the Test
Program from $5 million to $100 million; and
Prohibits negotiation of comprehensive subcontracting
plans with contractors who failed to meet the subcontracting goals of
their comprehensive subcontracting plan for the prior fiscal year.
Section 872 of the NDAA for FY 2016 removes the prohibition on
negotiation of comprehensive subcontracting plans with contractors who
failed to meet the subcontracting goals of their comprehensive
subcontracting plan for the prior fiscal year.
This final rule also implements section 826 of the NDAA for FY 2017
(Pub. L. 114-328), which further extends the Test Program through
December 31, 2027.

II. Discussion and Analysis

One respondent submitted a public comment in response to the
proposed rule. DoD reviewed the public comment in the development of
the final rule.

A. Summary of Significant Changes From the Proposed Rule

There are no changes made to the final rule as a result of the
public comment; however, other conforming changes are made.

B. Analysis of Public Comment

Comment: The respondent urged DoD to state in its regulations that
any civilian injured through exposure to toxic substances at a military
installation would be considered a service-disabled veteran for
purposes of eligibility for DoD programs.
Response: The comment is outside the scope of this case.

C. Other Changes From the Proposed Rule

The text at DFARS 219.702-70(f) is revised to reflect the
expiration date for the Test Program of December 31, 2027, to implement
section 826 of the NDAA for FY 2017. References in DFARS clause
252.219-7004 to the ``Data Universal Numbering System (DUNS) number''
are revised to read ``unique entity identifier''. Paragraph headers are
added at DFARS 219.702-70(a) and 252.219-7004(b) and (e).

III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items

This rule applies the requirements of section 821 of the NDAA for
FY 2015 to contracts for the acquisition of commercial items, including
commercially available off-the-shelf (COTS) items. The rule is not
applicable to the contracts at or below the simplified acquisition
threshold. Accordingly, the Director, DPAP, has signed a determination
and finding to apply this rule to contracts for the acquisition of
commercial items, including COTS items, for DFARS clauses 252.219-7003,
Small Business Subcontracting Plan (DoD Contracts), and 252.219-7004,
Small Business Subcontracting Plan (Test Program).

IV. Expected Cost Savings

This final rule amends the DFARS to implement section 821 of the
NDAA for FY 2015, section 872 of the NDAA for FY 2016, and section 826
of NDAA for FY 2017, all of which provide revisions to the Test Program
for Negotiation of Comprehensive Small Business Subcontracting Plans.
Section 826 extended the Test Program through December 31, 2027.
Customarily, an individual small business subcontracting plan is
required to be negotiated by large business firms for each contract
above $700,000. Under the Test Program, participants negotiate a
comprehensive subcontracting plan (CSP) to cover all applicable
contacts, in lieu of providing a separate plan for each individual
contract. To be eligible for the Test Program, the program participants
are required to be accepted into the program and to have at least three
DoD contracts during the preceding year with an aggregate value of at
least $100 million. There are currently nine large business firms that
are currently participating in the Test Program. The CSPs for these
nine large businesses cover approximately 8,000 contracts.
This rule revises DFARS clause 252.219-7004, Small Business
Subcontracting Plan (Test Program), to require the nine Test Program
participants to report, on a semiannual basis, specific information
related to their CSPs. This information is expected to assist DoD in
determining if the participants have achieved cost savings while
enhancing opportunities for small businesses. Contracting officers
conduct compliance reviews each year; and, if it is determined that the
contractor failed to make a good faith effort to comply with the CSPs,
the contracting officer may assess liquidated damages. Any failure to
meet negotiated goals will also be considered as part of the evaluation
of the participant firm's past performance. However, very few, if any,
failures are expected in the Test Program.
Over the next 10 years, significant cost savings are expected to
accrue to the public and the Government through use of CSPs by greatly
reducing administrative burdens, while also advancing the interests of
small business subcontractors. Use of CSPs may also foster an
environment that provides visibility to a firm of its overall
subcontracting program, thereby potentially providing greater
opportunities to ensure equitable consideration on an enterprise-wide
basis for business opportunities for all its subcontractors.
DoD has performed a regulatory cost analysis on this rule. The
following is a summary of the estimated public annualized cost savings
in millions, calculated in 2016 dollars at a 7-percent discount rate in
perpetuity:

Annualized at 7%................................................ $2.1
Present Value at 7%............................................. 29.8

To access the full Regulatory Cost Analysis for this rule, go to
the Federal eRulemaking Portal at www.regulations.gov, search for
``DFARS Case 2015-D013,'' click ``Open Docket,'' and view ``Supporting
Documents.''

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.
The Office of Management and Budget, Office of Information and
Regulatory Affairs, has determined that this is not a significant
regulatory action as defined under section 3(f) of E.O. 12866 and,
therefore, was not subject to review under section 6(b). This rule is
not a major rule under 5 U.S.C. 804(2).

VI. Executive Order 13771

This final rule is considered to be an E.O. 13771 deregulatory
action. Details on the estimated cost savings can be found in section
IV. of this preamble.

[[Page 15998]]

VII. 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:
DoD is issuing a final rule to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement section 821 of
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015
(Pub. L. 113-291), section 872 of the NDAA for FY 2016 (Pub. L. 114-
92), and section 826 of the NDAA for FY 2017 (Pub. L. 114-328). Section
821 of the NDAA for FY 2015 provides several changes to the Test
Program for Negotiation of Comprehensive Small Business Subcontracting
Plans (Test Program), including new reporting and eligibility
requirements, an extension of the Test Program, and authority to assess
liquidated damages. Section 872 of the NDAA for FY 2016 removes one of
the eligibility requirements. Section 826 of the NDAA for FY 2017
extends the Test Program through December 31, 2027. The objectives of
this rule are to collect data to assist in assessing the successes or
shortcomings of the Test Program and to provide the means to hold Test
Program participants accountable for failure to make a good faith
effort to comply with their comprehensive subcontracting plans.
There were no issues raised by the public in response to the
initial regulatory flexibility analysis provided in the proposed rule.
The rule will not apply to small entities. Therefore, the rule does
not impose any reporting or recordkeeping requirements on any small
entities.
DoD has not identified any alternatives that are consistent with
the stated objectives of the applicable statutes. However, DoD notes
that the rule may have a positive economic impact on small entities
because the rule encourages Test Program participants to make a good
faith effort to comply with their comprehensive subcontracting plans.

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), because the rule
does not impose a collection of information on ten or more members of
the public.

List of Subjects in 48 CFR Parts 211, 215, 219, 242, and 252

Government procurement.

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

Therefore, 48 CFR parts 211, 215, 219, 242, and 252 are amended as
follows:

0
1. The authority citation for parts 211, 215, 219, 242, and 252
continues to read as follows:

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

PART 211--DESCRIBING AGENCY NEEDS

0
2. Add section 211.500 to subpart 211.5 to read as follows:

211.500 Scope.

This subpart and FAR subpart 11.5 do not apply to liquidated
damages for comprehensive subcontracting plans under the Test Program
for Negotiation of Comprehensive Small Business Subcontracting Plans.
See 219.702-70 for coverage of liquidated damages for comprehensive
subcontracting plans.

PART 215--CONTRACTING BY NEGOTIATION

0
3. Amend section 215.305(a)(2) by--
0
a. Designating the text as paragraph (a)(2)(A); and
0
b. Adding paragraph (a)(2)(B).
The addition reads as follows:

215.305 Proposal evaluation.

(a)(2) * * *
(B) Contracting officers shall consider an offeror's failure to
make a good faith effort to comply with its comprehensive
subcontracting plan under the Test Program described at 219.702-70 as
part of the evaluation of the past performance.

PART 219--SMALL BUSINESS PROGRAMS

219.702 [Redesignated as 219.702-70]

0
4. Redesignate section 219.702 as 219.702-70; and revise it to read as
follows:

219.702-70 Statutory requirements for the Test Program for Negotiation
of Comprehensive Small Business Subcontracting Plans.

(a) Test Program. In accordance with 15 U.S.C. 637 note, DoD has
established a test program to determine whether comprehensive
subcontracting plans on a corporate, division, or plant-wide basis will
reduce administrative burdens while enhancing subcontracting
opportunities for small and small disadvantaged business concerns. This
program is referred to as the Test Program for Negotiation of
Comprehensive Small Business Subcontracting Plans (Test Program).
(b) Eligibility requirements. To become and remain eligible to
participate in the Test Program, a business concern is required to have
furnished supplies or services (including construction) under at least
three DoD contracts during the preceding fiscal year, having an
aggregate value of at least $100 million.
(c) Comprehensive subcontracting plans. (1) The Defense Contract
Management Agency will designate the contracting officer who shall
negotiate and approve comprehensive subcontracting plans with eligible
participants on an annual basis.
(2) Test Program participants use their comprehensive
subcontracting plans, in lieu of individual subcontracting plans, when
performing any DoD contract or subcontract that requires a
subcontracting plan.
(d) Assessment. The contracting officer designated to manage the
comprehensive subcontracting plan shall conduct a compliance review
during the fiscal year after the close of the fiscal year for which the
plan is applicable. The contracting officer shall compare the approved
percentage or dollar goals to the total, actual subcontracting dollars
covered by the comprehensive subcontracting plan.
(1) If the contractor has failed to meet its approved
subcontracting goal(s), the contracting officer shall give the
contractor written notice specifying the failure, advising of the
potential for assessment of liquidated damages, permitting the
contractor to demonstrate what good faith efforts have been made, and
providing a period of 15 working days (or longer period at the
contracting officer's discretion) within which to respond. The
contracting officer may take the contractor's failure to respond to the
notice as an admission that no valid explanation exists.
(2) The contracting officer shall review all available information
to determine whether the contractor has failed to make a good faith
effort to comply with the plan.
(3) If, after consideration of all relevant information, the
contracting officer determines that the contractor failed to make a
good faith effort to comply with the comprehensive subcontracting plan,
the contracting officer shall issue a final decision. The contracting
officer's final decision shall include the right of the contractor to
appeal under the Disputes clause. The contracting officer shall
distribute a

[[Page 15999]]

copy of the final decision to all cognizant contracting officers for
the contracts covered under the plan.
(e) Liquidated damages. The amount of liquidated damages shall be
the amount of anticipated damages sustained by the Government,
including but not limited to additional expenses of administration,
reporting, and contract monitoring, and shall be identified in the
comprehensive subcontracting plan. Liquidated damages shall be in
addition to any other remedies the Government may have.
(f) Expiration date. The Test Program expires on December 31, 2017.

0
5. Amend section 219.708 by--
0
a. Revising paragraph (b)(1)(B);
0
b. Revising paragraph (b)(2); and
0
c. Removing from paragraph (c)(1) ``test program described in 219.702''
and adding ``Test Program described in 219.702-70'' in its place.
The revisions read as follows:

219.708 Contract clauses.

(b)(1) * * *
(B) In contracts with contractors that have comprehensive
subcontracting plans approved under the Test Program described in
219.702-70, including contracts using FAR part 12 procedures for the
acquisition of commercial items, use the clause at 252.219-7004, Small
Business Subcontracting Plan (Test Program), instead of the clauses at
252.219-7003, Small Business Subcontracting Plan (DoD Contracts), FAR
52.219-9, Small Business Subcontracting Plan, and FAR 52.219-16,
Liquidated Damages--Subcontracting Plan.
(2) In contracts with contractors that have comprehensive
subcontracting plans approved under the Test Program described in
219.702-70, do not use the clause at FAR 52.219-16, Liquidated
Damages--Subcontracting Plan.
* * * * *

PART 242--CONTRACT ADMINISTRATION AND AUDIT SERVICES

0
6. Add subpart 242.15 to read as follows:
Subpart 242.15--Contractor Performance Information
Sec.
242.1502 Policy.

Subpart 242.15--Contractor Performance Information

242.1502 Policy.

(g) Past performance evaluations in the Contractor Performance
Assessment Reporting System shall include an assessment of the
contractor's performance against, and efforts to achieve, the goals
identified in its comprehensive small business subcontracting plan when
the contract contains the clause at 252.219-7004, Small Business
Subcontracting Plan (Test Program).

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
7. Amend section 252.219-7003 by--
0
a. Revising the section heading and introductory text;
0
b. Removing the clause date of ``(MAR 2016)'' and adding ``(APR 2018)''
in its place;
0
c. Adding paragraph (g); and
0
d. In Alternate I--
0
i. Revising the introductory text;
0
ii. Removing the clause date of ``(MAR 2016)'' and adding ``(APR
2018)'' in its place; and
0
iii. Adding paragraph (g).
The revision and additions read as follows:

252.219-7003 Small Business Subcontracting Plan (DoD Contracts).

Basic. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(1), use the
following clause:
* * * * *
(g) Include the clause at 252.219-7004, Small Business
Subcontracting Plan (Test Program), in subcontracts with subcontractors
that participate in the Test Program described in DFARS 219.702-70,
where the subcontract is expected to exceed $700,000 ($1.5 million for
construction of any public facility) and to have further subcontracting
opportunities.
* * * * *
Alternate I. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(2),
use the following clause, which uses a different paragraph (f) than the
basic clause.
* * * * *
(g) Include the clause at 252.219-7004, Small Business
Subcontracting Plan (Test Program), in subcontracts with subcontractors
that participate in the Test Program described in DFARS 219.702-70,
where the subcontract is expected to exceed $700,000 ($1.5 million for
construction of any public facility) and to have further subcontracting
opportunities.
* * * * *

0
8. Revise section 252.219-7004 to read as follows:

252.219-7004 Small business subcontracting plan (Test Program).

As prescribed in 219.708(b)(1)(B), use the following clause:

Small Business Subcontracting Plan (Test Program) (APR 2018)

(a) Definitions. As used in this clause--
Covered small business concern means a small business concern,
veteran-owned small business concern, service-disabled veteran-owned
small business concern, HUBZone small business concern, women-owned
small business concern, or small disadvantaged business concern, as
these terms are defined in FAR 2.101.
Electronic Subcontracting Reporting System (eSRS) means the
Governmentwide, electronic, web-based system for small business
subcontracting program reporting. The eSRS is located at http://www.esrs.gov.
Failure to make a good faith effort to comply with a comprehensive
subcontracting plan means a willful or intentional failure to perform
in accordance with the requirements of the Contractor's approved
comprehensive subcontracting plan or willful or intentional action to
frustrate the plan.
Subcontract means any agreement (other than one involving an
employer-employee relationship) entered into by a Federal Government
prime Contractor or subcontractor calling for supplies or services
required for performance of the contract or subcontract.
(b) Test Program. The Contractor's comprehensive small business
subcontracting plan and its successors, which are authorized by and
approved under the Test Program of 15 U.S.C. 637 note, as amended,
shall be included in and made a part of this contract. Upon expulsion
from the Test Program or expiration of the Test Program, the Contractor
shall negotiate an individual subcontracting plan for all future
contracts that meet the requirements of 15 U.S.C. 637(d).
(c) Eligibility requirements. To become and remain eligible to
participate in the Test Program, a business concern is required to have
furnished supplies or services (including construction) under at least
three DoD contracts during the preceding fiscal year, having an
aggregate value of at least $100 million.
(d) Reports. (1) The Contractor shall report semiannually for the
6-month periods ending March 31 and September 30, the information in
paragraphs (d)(1)(i) through (v) of this section within 30 days after
the end of the reporting period. Submit the report at https://www.esrs.gov.
(i) A list of contracts covered under its comprehensive small
business subcontracting plan, to include the Commercial and Government
Entity

[[Page 16000]]

(CAGE) code and unique entity identifier.
(ii) The amount of first-tier subcontract dollars awarded during
the 6-month period covered by the report to covered small business
concerns, with the information set forth separately by--
(A) North American Industrial Classification System (NAICS) code;
(B) Major defense acquisition program, as defined in 10 U.S.C.
2430(a);
(C) Contract number, if the contract is for maintenance, overhaul,
repair, servicing, rehabilitation, salvage, modernization, or
modification of supplies, systems, or equipment, and the total value of
the contract, including options, exceeds $100 million; and
(D) Military department.
(iii) Total number of subcontracts active under the Test Program
that would have otherwise required a subcontracting plan.
(iv) Costs incurred in negotiating, complying with, and reporting
on its comprehensive subcontracting plan.
(v) Costs avoided through the use of a comprehensive subcontracting
plan.
(2) The Contractor shall--
(i) Ensure that subcontractors with subcontracting plans agree to
submit an Individual Subcontract Report (ISR) and/or Summary
Subcontract Report (SSR) using the Electronic Subcontracting Reporting
System (eSRS).
(ii) Provide its contract number, its unique entity identifier, and
the email address of the Contractor's official responsible for
acknowledging or rejecting the ISR to all first-tier subcontractors,
who will be required to submit ISRs, so they can enter this information
into the eSRS when submitting their reports.
(iii) Require that each subcontractor with a subcontracting plan
provide the prime contract number, its own unique entity identifier,
and the email address of the subcontractor's official responsible for
acknowledging or rejecting the ISRs to its subcontractors with
subcontracting plans who will be required to submit ISRs.
(iv) Acknowledge receipt or reject all ISRs submitted by its
subcontractors using eSRS.
(3) The Contractor shall submit SSRs using eSRS at http://www.esrs.gov. The reports shall provide information on subcontract
awards to small business concerns, veteran-owned small business
concerns, service-disabled veteran-owned small business concerns,
HUBZone small business concerns, small disadvantaged business concerns,
and women-owned small business concerns. Purchases from a corporation,
company, or subdivision that is an affiliate of the prime Contractor or
subcontractor are not included in these reports. Subcontract award data
reported by prime contractors and subcontractors shall be limited to
awards made to their immediate next-tier subcontractors. Credit cannot
be taken for awards made to lower-tier subcontractors unless the
Contractor or subcontractor has been designated to receive a small
business or small disadvantaged business credit from a member firm of
the Alaska Native--Corporations or an Indian tribe. Only subcontracts
involving performance in the U.S. or its outlying areas should be
included in these reports.
(i) This report may be submitted on a corporate, company, or
subdivision (e.g., plant or division operating as a separate profit
center) basis, as negotiated in the comprehensive subcontracting plan
with the Defense Contract Management Agency.
(ii) This report encompasses all subcontracting under prime
contracts and subcontracts with the Department of Defense, regardless
of the dollar value of the subcontracts, and is based on the negotiated
comprehensive subcontracting plan.
(iii) The report shall be submitted semiannually for the six months
ending March 31 and the twelve months ending September 30. Reports are
due 30 days after the close of each reporting period.
(iv) The authority to acknowledge receipt of or reject the SSR
resides with the Defense Contract Management Agency.
(e) Failure to comply. The failure of the Contractor or
subcontractor to comply in good faith with the clause of this contract
entitled ``Utilization of Small Business Concerns,'' or an approved
plan required by this clause, shall be a material breach of the
contract.
(f) Liquidated damages. The Contracting Officer designated to
manage the comprehensive subcontracting plan will exercise the
functions of the Contracting Officer, as identified in paragraphs
(f)(1) through (4) of this clause, on behalf of all DoD departments and
agencies that awarded contracts covered by the Contractor's
comprehensive subcontracting plan.
(1) To determine the need for liquidated damages, the Contracting
Officer will conduct a compliance review during the fiscal year after
the close of the fiscal year for which the plan is applicable. The
Contracting Officer will compare the approved percentage or dollar
goals to the total, actual subcontracting dollars covered by the plan.
(2) If the Contractor has failed to meet its approved
subcontracting goal(s), the Contracting Officer will provide the
Contractor written notice specifying the failure, advising of the
potential for assessment of liquidated damages, and permitting the
Contractor to demonstrate what good faith efforts have been made. The
Contracting Officer may take the Contractor's failure to respond to the
notice within 15 working days (or longer period at the Contracting
Officer's discretion) as an admission that no valid explanation exists.
(3) If, after consideration of all relevant information, the
Contracting Officer determines that the Contractor failed to make a
good faith effort to comply with the comprehensive subcontracting plan,
the Contracting Officer will issue a final decision to the Contractor
to that effect and require the Contractor to pay liquidated damages to
the Government in the amount identified in the comprehensive
subcontracting plan.
(4) The Contractor shall have the right of appeal under the clause
in this contract entitled ``Disputes'' from any final decision of the
Contracting Officer.
(g) Subcontracts. The Contractor shall include in subcontracts that
offer subcontracting opportunities, are expected to exceed $700,000
($1.5 million for construction of any public facility), and are
required to include the clause at 52.219-8, Utilization of Small
Business Concerns, the clauses at--
(1) FAR 52.219-9, Small Business Subcontracting Plan, and 252.219-
7003, Small Business Subcontracting Plan (DoD Contracts)--Basic;
(2) FAR 52.219-9, Small Business Subcontracting Plan, with its
Alternate III, and 252.219-7003, Small Business Subcontracting Plan
(DoD Contracts)--Alternate I, to allow for submission of SF 294s in
lieu of ISRs; or
(3) 252.219-7004, Small Business Subcontracting Plan (Test
Program), in subcontracts with subcontractors that participate in the
Test Program described in DFARS 219.702-70.
(End of clause)
[FR Doc. 2018-07730 Filed 4-12-18; 8:45 am]
BILLING CODE 5001-06-P

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
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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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Federal Register / Vol. 83, No. 72 / Friday, April 13, 2018 / Rules and Regulations 15999

copy of the final decision to all performance against, and efforts to Small Business Subcontracting Plan
cognizant contracting officers for the achieve, the goals identified in its (Test Program) (APR 2018)
contracts covered under the plan. comprehensive small business (a) Definitions. As used in this
(e) Liquidated damages. The amount subcontracting plan when the contract clause—
of liquidated damages shall be the contains the clause at 252.219–7004, Covered small business concern
amount of anticipated damages Small Business Subcontracting Plan means a small business concern,
sustained by the Government, including (Test Program). veteran-owned small business concern,
but not limited to additional expenses of service-disabled veteran-owned small
administration, reporting, and contract PART 252—SOLICITATION
business concern, HUBZone small
monitoring, and shall be identified in PROVISIONS AND CONTRACT
business concern, women-owned small
the comprehensive subcontracting plan. CLAUSES
business concern, or small
Liquidated damages shall be in addition disadvantaged business concern, as
to any other remedies the Government ■ 7. Amend section 252.219–7003 by—
■ a. Revising the section heading and these terms are defined in FAR 2.101.
may have. Electronic Subcontracting Reporting
(f) Expiration date. The Test Program introductory text;
■ b. Removing the clause date of ‘‘(MAR System (eSRS) means the
expires on December 31, 2017. Governmentwide, electronic, web-based
2016)’’ and adding ‘‘(APR 2018)’’ in its
■ 5. Amend section 219.708 by— system for small business
place;
■ a. Revising paragraph (b)(1)(B); subcontracting program reporting. The
■ c. Adding paragraph (g); and
■ b. Revising paragraph (b)(2); and ■ d. In Alternate I— eSRS is located at http://www.esrs.gov.
■ c. Removing from paragraph (c)(1)
■ i. Revising the introductory text; Failure to make a good faith effort to
‘‘test program described in 219.702’’ and ■ ii. Removing the clause date of ‘‘(MAR comply with a comprehensive
adding ‘‘Test Program described in 2016)’’ and adding ‘‘(APR 2018)’’ in its subcontracting plan means a willful or
219.702–70’’ in its place. place; and intentional failure to perform in
The revisions read as follows: ■ iii. Adding paragraph (g). accordance with the requirements of the
219.708 Contract clauses. The revision and additions read as Contractor’s approved comprehensive
follows: subcontracting plan or willful or
(b)(1) * * *
(B) In contracts with contractors that 252.219–7003 Small Business
intentional action to frustrate the plan.
have comprehensive subcontracting Subcontracting Plan (DoD Contracts). Subcontract means any agreement
plans approved under the Test Program (other than one involving an employer-
Basic. As prescribed in
described in 219.702–70, including employee relationship) entered into by
219.708(b)(1)(A) and (b)(1)(A)(1), use
contracts using FAR part 12 procedures a Federal Government prime Contractor
the following clause:
for the acquisition of commercial items, or subcontractor calling for supplies or
* * * * * services required for performance of the
use the clause at 252.219–7004, Small (g) Include the clause at 252.219–
Business Subcontracting Plan (Test contract or subcontract.
7004, Small Business Subcontracting (b) Test Program. The Contractor’s
Program), instead of the clauses at Plan (Test Program), in subcontracts
252.219–7003, Small Business comprehensive small business
with subcontractors that participate in subcontracting plan and its successors,
Subcontracting Plan (DoD Contracts), the Test Program described in DFARS
FAR 52.219–9, Small Business which are authorized by and approved
219.702–70, where the subcontract is under the Test Program of 15 U.S.C. 637
Subcontracting Plan, and FAR 52.219– expected to exceed $700,000 ($1.5
16, Liquidated Damages— note, as amended, shall be included in
million for construction of any public and made a part of this contract. Upon
Subcontracting Plan. facility) and to have further
(2) In contracts with contractors that expulsion from the Test Program or
subcontracting opportunities. expiration of the Test Program, the
have comprehensive subcontracting
plans approved under the Test Program * * * * * Contractor shall negotiate an individual
Alternate I. As prescribed in subcontracting plan for all future
described in 219.702–70, do not use the
219.708(b)(1)(A) and (b)(1)(A)(2), use contracts that meet the requirements of
clause at FAR 52.219–16, Liquidated
the following clause, which uses a 15 U.S.C. 637(d).
Damages—Subcontracting Plan.
different paragraph (f) than the basic (c) Eligibility requirements. To
* * * * * clause. become and remain eligible to
PART 242—CONTRACT * * * * * participate in the Test Program, a
ADMINISTRATION AND AUDIT (g) Include the clause at 252.219– business concern is required to have
SERVICES 7004, Small Business Subcontracting furnished supplies or services
Plan (Test Program), in subcontracts (including construction) under at least
■ 6. Add subpart 242.15 to read as with subcontractors that participate in three DoD contracts during the
follows: the Test Program described in DFARS preceding fiscal year, having an
219.702–70, where the subcontract is aggregate value of at least $100 million.
Subpart 242.15—Contractor Performance
Information expected to exceed $700,000 ($1.5 (d) Reports. (1) The Contractor shall
million for construction of any public report semiannually for the 6-month
Sec.
facility) and to have further periods ending March 31 and September
242.1502 Policy.
subcontracting opportunities. 30, the information in paragraphs
Subpart 242.15—Contractor * * * * * (d)(1)(i) through (v) of this section
within 30 days after the end of the
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Performance Information ■ 8. Revise section 252.219–7004 to
read as follows: reporting period. Submit the report at
242.1502 Policy. https://www.esrs.gov.
(g) Past performance evaluations in 252.219–7004 Small business (i) A list of contracts covered under its
the Contractor Performance Assessment subcontracting plan (Test Program). comprehensive small business
Reporting System shall include an As prescribed in 219.708(b)(1)(B), use subcontracting plan, to include the
assessment of the contractor’s the following clause: Commercial and Government Entity

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Document Created: 2018-04-13 00:18:14
Document Modified: 2018-04-13 00:18:14

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 Johnson, telephone 571- 372-6100.
FR Citation		83 FR 15996
RIN Number		0750-AJ00
CFR Citation		48 CFR 211 48 CFR 215 48 CFR 219 48 CFR 242 48 CFR 252

83 FR 15996 - Defense Federal Acquisition Regulation Supplement: Temporary Extension of Test Program for Comprehensive Small Business Subcontracting Plans (DFARS Case 2015-D013)

DEPARTMENT OF DEFENSEDefense Acquisition Regulations System

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

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System