83 FR 16001 - Defense Federal Acquisition Regulation Supplement: Competition for Religious-Related Services Contracts (DFARS Case 2016-D015)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 83, Issue 72 (April 13, 2018)
Defense Acquisition Regulations System
Federal Register Volume 83, Issue 72 (April 13, 2018)
| Page Range | 16001-16003 | |
| FR Document | 2018-07731 |
[Federal Register Volume 83, Number 72 (Friday, April 13, 2018)] [Rules and Regulations] [Pages 16001-16003] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-07731] [[Page 16001]] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 212, 213, 219, 237, and 252 [Docket DARS-2016-0034] RIN 0750-AJ06 Defense Federal Acquisition Regulation Supplement: Competition for Religious-Related Services Contracts (DFARS Case 2016-D015) 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 implement a section of the National Defense Authorization Act for Fiscal Year 2016, clarifying the competition requirements for the acquisition of religious-related services contracts on a United States military installation. DATES: Effective April 13, 2018. FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372- 6093. SUPPLEMENTARY INFORMATION: I. Background DoD published a proposed rule in the Federal Register at 81 FR 93875 on December 22, 2016, recommending revisions to the DFARS to implement section 898 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92). Section 898 requires that DoD not preclude a nonprofit organization from competing for a contract for religious-related services on a United States military installation. The proposed revisions set forth policy and procedures that allow nonprofit organizations to participate in small business set-asides and directed contracting officers not to use the sole source authorities at FAR 6.302-5(b)(4) through (7) when acquiring religious- related services on a United States military installation. The proposed rule also contained a new provision to ensure that potential offerors are aware that a nonprofit organization will not be precluded from competing for a contract for religious-related services under a small business set-aside, notwithstanding that it is not one of the small business types identified in FAR 19.000(a)(3). The comment period for the proposed rule closed on February 21, 2017. There were no public comments submitted in response to the proposed rule. II. Discussion and Analysis There are no changes made in the final rule from the proposed rule. 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 898 of the NDAA for FY 2016 to contracts at or below the simplified acquisition threshold (SAT), and to contracts for the acquisition of commercial items. The rule is not applicable to the contracts for the acquisition of commercially available off-the-shelf (COTS) items. Accordingly, the Director, DPAP, has signed a determination and finding to apply this rule to contracts or subcontracts in amounts not greater than the SAT and the acquisition of commercial items, excluding COTS items, for DFARS clause 252.219-7012, Competition for Religious-Related Services. 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 a 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. Executive Order 13771 This rule is not subject to E.O. 13771 (82 FR 9339, February 3, 2017), because this rule is not a significant regulatory action. VI. 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: The objective of this final is to implement section 898 of the National Defense Authorization Act for Fiscal Year 2016. The rule does so by amending the DFARS to establish the policy and procedures necessary to ensure nonprofit entities, such as religious organizations, are not precluded from participating in acquisitions for religious related services on U.S. military installations. There were no public comments received in response to the initial regulatory flexibility analysis. This rule may have a significant economic impact on a substantial number of small businesses that typically compete for contracts for the covered services, since most of the contracts awarded for religious- related services fall within the dollar range reserved exclusively for small business participation (over the micro-purchase threshold, but no more than the simplified acquisition threshold (SAT)). The rule may also have a significant economic impact on nonprofit organizations, since these entities are normally precluded from competing for such acquisitions that are reserved for small business concerns. However, the impact is also bounded as this is a small sector in terms of the numbers of purchase orders DoD awards in a year for these requirements, and the dollar value of these orders is relatively low. According to data obtained from the Federal Procurement Data System (FPDS) for FY 2015, DoD awarded 290 contracts to 232 unique businesses for religious-related services under the product services code for Chaplain Services (G002), the majority of which (95 percent) are valued below the SAT. Of those 290 contracts, approximately 160 contracts were awarded to 130 unique small business concerns (56 percent). The FPDS data further indicates that of the 160 contracts awarded to small business, 137 of the contracts were awarded on the basis of a total small business set-aside, including one total set-aside to women-owned small business concerns. In addition, in order to carry out the Congressional mandate of section 898, this rule restricts the use of the sole source authorities at FAR 6.302-5(b)(4) through (7) when contracting for religious-related services on U.S. military installations; as a result, such solicitations would have to be competed in a manner that allows nonprofit organizations to participate. Analysis of FPDS data for FY 2015 reveals that four contracts were awarded to a HUBZone small business concern on a sole source basis. Additional FPDS data was obtained for FY 2016, which showed DoD awarded 256 contracts to 212 unique businesses for religious-related services under product service code G002, of which the majority (91 percent) were [[Page 16002]] valued below the SAT. Of those 256 contracts, 158 contracts (62 percent) were awarded to 130 unique small business concerns (63 percent). 116 contracts were solicited using a total small business set-aside. Again, as a result of this rule, such solicitations could not preclude a nonprofit organization from submitting an offer and being considered for award. Six contracts were awarded on a sole source basis under the Small Business Act 8(a) Business Development Program (8(a) Program); however, this rule restricts DoD contracting officers from using the sole source authority at FAR 6.302-5(b)(4) for the 8(a) Program to procure religious-related services to be performed on a U.S. military installation. In order to comply with section 898, any requirements currently in the 8(a) program would be required, upon renewal, to be solicited in a manner that does not preclude a nonprofit organization from the competition. There are no reporting, recordkeeping, or compliance requirements associated with this rule. There are no significant alternative approaches to the rule that would minimize the impact on small entities and meet the stated objectives of the statute. VII. 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 212, 213, 219, 237, and 252 Government procurement. Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System. Therefore, 48 CFR parts 212, 213, 219, 237, and 252 are amended as follows: 0 1. The authority citation for parts 212, 213, 219, 237, and 252 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. PART 212--ACQUISITION OF COMMERCIAL ITEMS 0 2. Amend section 212.301 by adding new paragraph (f)(vii)(D) to read as follows: 212.301 Solicitation provisions and contract clauses for the acquisition of commercial items. * * * * * (f) * * * (vii) * * * (D) Use the provision at 252.219-7012, Competition for Religious- Related Services, as prescribed in 219.270-3. * * * * * PART 213--SIMPLIFIED ACQUISITION PROCEDURES 0 3. Amend section 213.7001 by-- 0 a. Redesignating paragraphs (a)(1) and (2) as paragraphs (a)(1)(i) and (ii), respectively; 0 b. Redesignating the introductory text as paragraph (a)(1); 0 c. Redesignating paragraph (b) as paragraph (a)(2); and 0 d. Adding a new paragraph (b). The addition reads as follows: 213.7001 Procedures. * * * * * (b) To comply with section 898 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92), contracting officers shall not use the sole source authority at FAR 6.302-5(b)(4) to purchase religious-related services to be performed on a U.S. military installation. For competitive purchases under the 8(a) program, contracting officers shall not exclude a nonprofit organization from the competition. See 219.270 for additional procedures. PART 219--SMALL BUSINESS PROGRAMS 0 4. Add sections 219.270, 219.270-1, 219.270-2, and 219.270-3 to subpart 219.2 to read as follows: 219.270 Religious-related services--inclusion of nonprofit organizations. 219.270-1 Definition. As used in this section-- Nonprofit organization means any organization that is-- (1) Described in section 501(c) of the Internal Revenue Code of 1986; and (2) Exempt from tax under section 501(a) of that Code. 219.270-2 Procedures. (a) To comply with section 898 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92), when acquiring religious-related services to be performed on a U.S. military installation-- (1) Do not preclude a nonprofit organization from competing, even when the acquisition is set aside for small businesses as identified in FAR 19.000(a)(3); and (2) Do not use any of the sole source exceptions at FAR 6.302- 5(b)(4) through (7) for such acquisitions. (b) If the apparently successful offeror has not represented in its quotation or offer that it is one of the small business concerns identified in FAR 19.000(a)(3), the contracting officer shall verify that the offeror is registered in the System for Award Management database as a nonprofit organization. 219.270-3 Solicitation provision. Use the provision 252.219-7012, Competition for Religious-Related Services, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for the acquisition of religious-related services to be performed on U.S. military installations, when the acquisition is set aside for any of the small business concerns identified in FAR 19.000(a)(3). PART 237--SERVICE CONTRACTING 0 5. Add new subpart 237.77 to read as follows: Subpart 237.77--Competition for Religious-Related Services Sec. 237.7700 Scope of subpart. 237.7701 Definition. 237.7702 Policy. Subpart 237.77--Competition for Religious-Related Services 237.7700 Scope of subpart. This subpart provides policy and guidance for the acquisition of religious-related services to be performed on a U.S. military installation in accordance with section 898 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92). 237.7701 Definition. As used in this subpart-- Nonprofit organization means any organization that is-- (1) Described in section 501(c) of the Internal Revenue Code of 1986; and (2) Exempt from tax under section 501(a) of that Code. 237.7702 Policy. (a) A nonprofit organization shall not be precluded from competing for a contract for religious-related services to be performed on a U.S. military installation. (b) See 219.270 when an acquisition for religious-related services to be performed on a U.S. military installation is set aside for any of the small business concerns identified in FAR 19.000(a)(3). [[Page 16003]] PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 6. Add section 252.219-7012 to read as follows: 252.219-7012 Competition for Religious-Related Services. As prescribed in 219.270-3, use the following provision: Competition for Religious-Related Services (APR 2018) (a) Definition. As used in this provision-- Nonprofit organization means any organization that is-- (1) Described in section 501(c) of the Internal Revenue Code of 1986; and (2) Exempt from tax under section 501(a) of that Code. (b) A nonprofit organization is not precluded from competing for a contract for religious-related services to be performed on a U.S. military installation notwithstanding that a nonprofit organization is not a small business concern as identified in FAR 19.000(a)(3). (c) If the apparently successful offeror has not represented in its offer or quotation that it is a small business concern identified in FAR 19.000(a)(3), as appropriate to the solicitation, the Contracting Officer will verify that the offeror is registered in the System for Award Management (SAM) database as a nonprofit organization. (End of provision) [FR Doc. 2018-07731 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 16001
DEPARTMENT OF DEFENSE were no public comments submitted in policy and procedures necessary to
response to the proposed rule. ensure nonprofit entities, such as
Defense Acquisition Regulations religious organizations, are not
System II. Discussion and Analysis
precluded from participating in
There are no changes made in the acquisitions for religious related
48 CFR Parts 212, 213, 219, 237, and final rule from the proposed rule. services on U.S. military installations.
252 III. Applicability to Contracts at or There were no public comments
Below the Simplified Acquisition received in response to the initial
[Docket DARS–2016–0034] regulatory flexibility analysis.
Threshold and for Commercial Items,
RIN 0750–AJ06 This rule may have a significant
Including Commercially Available Off-
economic impact on a substantial
the-Shelf Items
Defense Federal Acquisition number of small businesses that
Regulation Supplement: Competition This rule applies the requirements of typically compete for contracts for the
for Religious-Related Services section 898 of the NDAA for FY 2016 to covered services, since most of the
Contracts (DFARS Case 2016–D015) contracts at or below the simplified contracts awarded for religious-related
acquisition threshold (SAT), and to services fall within the dollar range
AGENCY: Defense Acquisition contracts for the acquisition of reserved exclusively for small business
Regulations System, Department of commercial items. The rule is not participation (over the micro-purchase
Defense (DoD). applicable to the contracts for the threshold, but no more than the
ACTION: Final rule. acquisition of commercially available simplified acquisition threshold (SAT)).
off-the-shelf (COTS) items. Accordingly, The rule may also have a significant
SUMMARY: DoD is issuing a final rule the Director, DPAP, has signed a economic impact on nonprofit
amending the Defense Federal determination and finding to apply this organizations, since these entities are
Acquisition Regulation Supplement rule to contracts or subcontracts in normally precluded from competing for
(DFARS) to implement a section of the amounts not greater than the SAT and such acquisitions that are reserved for
National Defense Authorization Act for the acquisition of commercial items, small business concerns. However, the
Fiscal Year 2016, clarifying the excluding COTS items, for DFARS impact is also bounded as this is a small
competition requirements for the clause 252.219–7012, Competition for sector in terms of the numbers of
acquisition of religious-related services Religious-Related Services. purchase orders DoD awards in a year
contracts on a United States military for these requirements, and the dollar
installation. IV. Executive Orders 12866 and 13563 value of these orders is relatively low.
DATES: Effective April 13, 2018. Executive Orders (E.O.s) 12866 and According to data obtained from the
13563 direct agencies to assess all costs Federal Procurement Data System
FOR FURTHER INFORMATION CONTACT: Ms. and benefits of available regulatory (FPDS) for FY 2015, DoD awarded 290
Carrie Moore, telephone 571–372–6093. alternatives and, if regulation is contracts to 232 unique businesses for
SUPPLEMENTARY INFORMATION: necessary, to select regulatory religious-related services under the
I. Background approaches that maximize net benefits product services code for Chaplain
(including potential economic, Services (G002), the majority of which
DoD published a proposed rule in the environmental, public health and safety (95 percent) are valued below the SAT.
Federal Register at 81 FR 93875 on effects, distributive impacts, and Of those 290 contracts, approximately
December 22, 2016, recommending equity). E.O. 13563 emphasizes the 160 contracts were awarded to 130
revisions to the DFARS to implement importance of quantifying both costs unique small business concerns (56
section 898 of the National Defense and benefits, of reducing costs, of percent). The FPDS data further
Authorization Act (NDAA) for Fiscal harmonizing rules, and of promoting indicates that of the 160 contracts
Year (FY) 2016 (Pub. L. 114–92). Section flexibility. This is a not a significant awarded to small business, 137 of the
898 requires that DoD not preclude a regulatory action and, therefore, was not contracts were awarded on the basis of
nonprofit organization from competing subject to review under section 6(b) of a total small business set-aside,
for a contract for religious-related E.O. 12866, Regulatory Planning and including one total set-aside to women-
services on a United States military Review, dated September 30, 1993. This owned small business concerns. In
installation. The proposed revisions set rule is not a major rule under 5 U.S.C. addition, in order to carry out the
forth policy and procedures that allow 804. Congressional mandate of section 898,
nonprofit organizations to participate in this rule restricts the use of the sole
small business set-asides and directed V. Executive Order 13771 source authorities at FAR 6.302–5(b)(4)
contracting officers not to use the sole This rule is not subject to E.O. 13771 through (7) when contracting for
source authorities at FAR 6.302–5(b)(4) (82 FR 9339, February 3, 2017), because religious-related services on U.S.
through (7) when acquiring religious- this rule is not a significant regulatory military installations; as a result, such
related services on a United States action. solicitations would have to be competed
military installation. The proposed rule in a manner that allows nonprofit
also contained a new provision to VI. Regulatory Flexibility Act organizations to participate. Analysis of
ensure that potential offerors are aware A final regulatory flexibility analysis FPDS data for FY 2015 reveals that four
that a nonprofit organization will not be (FRFA) has been prepared consistent contracts were awarded to a HUBZone
precluded from competing for a contract with the Regulatory Flexibility Act, 5 small business concern on a sole source
for religious-related services under a
daltland on DSKBBV9HB2PROD with RULES
U.S.C. 601, et seq. The FRFA is basis.
small business set-aside, summarized as follows: Additional FPDS data was obtained
notwithstanding that it is not one of the The objective of this final is to for FY 2016, which showed DoD
small business types identified in FAR implement section 898 of the National awarded 256 contracts to 212 unique
19.000(a)(3). Defense Authorization Act for Fiscal businesses for religious-related services
The comment period for the proposed Year 2016. The rule does so by under product service code G002, of
rule closed on February 21, 2017. There amending the DFARS to establish the which the majority (91 percent) were
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![Federal Register / Vol. 83, No. 72 / Friday, April 13, 2018 / Rules and Regulations 16003
PART 252—SOLICITATION FOR FURTHER INFORMATION CONTACT: E.O. 12866, Regulatory Planning and
PROVISIONS AND CONTRACT Ms. Amy Williams, telephone 571–372– Review, dated September 30, 1993. This
CLAUSES 6106. rule is not a major rule under 5 U.S.C.
SUPPLEMENTARY INFORMATION: 804.
■ 6. Add section 252.219–7012 to read
as follows: I. Background V. Executive Order 13771
DoD is amending the DFARS to
252.219–7012 Competition for Religious- This rule is not subject to E.O. 13771,
Related Services.
implement section 1216 of the National
Defense Authorization Act (NDAA) for Reducing Regulation and Controlling
As prescribed in 219.270–3, use the Fiscal Year (FY) 2017 (Pub. L. 114–328). Regulatory Costs, because the rule
following provision: Section 1216 requires that funding relates to agency organization,
Competition for Religious-Related amounts available to the Department of management, or personnel.
Services (APR 2018) Defense may not be obligated or VI. Publication of This Final Rule for
expended for a construction or other Public Comment Is Not Required by
(a) Definition. As used in this provision—
Nonprofit organization means any infrastructure program or project of the Statute
organization that is— Department in Afghanistan if military or
(1) Described in section 501(c) of the civilian personnel of the United States The statute that applies to the
Internal Revenue Code of 1986; and Government, or their representatives publication of the Federal Acquisition
(2) Exempt from tax under section 501(a) with authority to conduct oversight of Regulation is codified at Title 41 of the
of that Code. such program or project, cannot safely United States Code (formerly known as
(b) A nonprofit organization is not access such program or project. The
precluded from competing for a contract for the Office of Federal Procurement
prohibition may be waived with an Policy Act). Specifically, 41 U.S.C
religious-related services to be performed on
a U.S. military installation notwithstanding
approved determination. 1707(a)(1) requires that a procurement
that a nonprofit organization is not a small II. Discussion and Analysis policy, regulation, procedure or form
business concern as identified in FAR (including an amendment or
19.000(a)(3). To implement section 1216, this rule
adds a new DFARS section 225.7705, modification thereof) must be published
(c) If the apparently successful offeror has
not represented in its offer or quotation that Prohibition on use of funds for contracts for public comment if it relates to the
it is a small business concern identified in of certain programs and projects in expenditure of appropriated funds, and
FAR 19.000(a)(3), as appropriate to the Afghanistan that cannot be safely has either a significant effect beyond the
solicitation, the Contracting Officer will accessed. The procedures provided in internal operating procedures of the
verify that the offeror is registered in the this new section are strictly internal to agency issuing the policy, regulation,
System for Award Management (SAM) procedure or form, or has a significant
the Government, in that they instruct
database as a nonprofit organization.
the contracting officer to not obligate cost or administrative impact on
(End of provision)
funds on the covered contracts, unless contractors or offerors. This final rule is
[FR Doc. 2018–07731 Filed 4–12–18; 8:45 am] (1) Government personnel can safely not required to be published for public
BILLING CODE 5001–06–P access the project, or (2) a determination comment, because it only provides
is approved by the appropriate authority procedures for United States
to waive this restriction, as outlined in Government personnel to follow for
DEPARTMENT OF DEFENSE the statute. certain programs and projects in
Defense Acquisition Regulations III. Applicability to Contracts at or Afghanistan that cannot be safely
System Below the Simplified Acquisition accessed. These requirements affect
Threshold and for Commercial Items, only the internal operating procedures
48 CFR Part 225 Including Commercially Available Off- of the Government.
the-Shelf Items
[Docket DARS–2018–D007] VII. Regulatory Flexibility Act
This rule does not add any new
RIN 0750–AJ38 Because a notice of proposed
burdens or impact applicability of
Defense Federal Acquisition clauses and provisions at or below the rulemaking and an opportunity for
Regulation Supplement: Safe Access simplified acquisition threshold, or to public comment are not required to be
to Projects in Afghanistan (DFARS acquisition of commercial items. given for this rule under 41 U.S.C.
Case 2017–D032) IV. Executive Orders 12866 and 13563 1707(a)(1) (see section VI. of this
preamble), the analytical requirements
AGENCY: Defense Acquisition Executive Orders (E.O.s) 12866 and of the Regulatory Flexibility Act
Regulations System, Department of 13563 direct agencies to assess all costs (5 U.S.C. 601 et seq.) are not applicable.
Defense (DoD). and benefits of available regulatory Accordingly, no regulatory flexibility
ACTION: Final rule. alternatives and, if regulation is
analysis is required and none has been
necessary, to select regulatory
SUMMARY: DoD is amending the Defense prepared.
approaches that maximize net benefits
Federal Acquisition Regulation (including potential economic, VIII. Paperwork Reduction Act
Supplement (DFARS) to implement a environmental, public health and safety
section of the National Defense effects, distributive impacts, and The rule does not contain any
Authorization Act for Fiscal Year 2017 equity). E.O. 13563 emphasizes the information collection requirements that
daltland on DSKBBV9HB2PROD with RULES
that prohibits use of funds for certain importance of quantifying both costs require the approval of the Office of
programs and projects of the and benefits, of reducing costs, of Management and Budget under the
Department of Defense in Afghanistan harmonizing rules, and of promoting Paperwork Reduction Act (44 U.S.C.
that cannot be safely accessed by United flexibility. This is a significant chapter 35).
States Government personnel. regulatory action and, therefore, was
DATES: Effective April 13, 2018. subject to review under section 6(b) of
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Document Created: 2018-04-13 00:18:16
Document Modified: 2018-04-13 00:18:16
| 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. Carrie Moore, telephone 571-372- 6093. | |
| FR Citation | 83 FR 16001 | |
| RIN Number | 0750-AJ06 | |
| CFR Citation | 48
CFR
212 48 CFR 213 48 CFR 219 48 CFR 237 48 CFR 252 |
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