83 FR 24892 - Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Clause “Right of First Refusal of Employment-Closure of Military Installations” (DFARS Case 2018-D002)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 83, Issue 104 (May 30, 2018)

DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove a clause that is duplicative of an existing Federal Acquisition Regulation (FAR) clause that requires a contractor to give Government personnel the right of first refusal for employment openings in certain situations.

[Federal Register Volume 83, Number 104 (Wednesday, May 30, 2018)]
[Rules and Regulations]
[Pages 24892-24894]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-11346]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 222, 237, and 252

[Docket DARS-2018-0032]
RIN 0750-AJ54


Defense Federal Acquisition Regulation Supplement: Repeal of 
DFARS Clause ``Right of First Refusal of Employment-Closure of Military 
Installations'' (DFARS Case 2018-D002)

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 remove a clause that is 
duplicative of an existing Federal Acquisition Regulation (FAR) clause 
that requires a contractor to give Government personnel the right of 
first refusal for employment openings in certain situations.

DATES: Effective May 30, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION: 

[[Page 24893]]

I. Background

    DoD is amending the DFARS to remove DFARS clause 252.222-7001, 
Right of First Refusal of Employment-Closure of Military Installations, 
the associated clause prescription at DFARS 222.7102, the policy 
guidance at DFARS 222.7101, and a cross-reference at DFARS 237.7401 to 
subpart 222.71. In the event of a closure of a military installation, 
the DoD 4165.66-M, Base Redevelopment and Realignment Manual, advises 
that Government employees at closing installations have the right of 
first refusal for certain jobs with contractors hired to prepare the 
installation for closure or to maintain it after closure. Generally, 
these jobs are in areas of environmental restoration, utilities 
modification, roads and grounds work, security, and fire protection.
    The DFARS clause and associated guidance restates the information 
from DoD 4165.66-M. The clause also advises that Government personnel 
seeking preference in such situations must provide evidence of their 
eligibility to the contractor. The DFARS clause prescription requires 
the clause be included in all solicitations and contracts arising from 
the closure of the military installation where the contract will be 
performed.
    FAR clause 52.207-3, Right of First Refusal of Employment, is 
required in solicitations and contracts that will result in a 
conversion of work currently being performed by the Government to work 
being performed under contract. Like the DFARS clause, the FAR clause 
advises contractors that Government personnel who have been or will be 
adversely affected by award of the contract have the right of first 
refusal for jobs created under the contract for which they are 
qualified. The FAR clause also requires the Government to provide the 
contractor with a list of Government personnel who have been or will be 
adversely affected by the contract award and requires the contractor to 
report to the Government the names of any listed individuals who are 
hired after contract performance begins.
    The DFARS clause is no longer necessary, because the FAR clause 
applies to the situations in which the DFARS clause is prescribed for 
use and covers the information contained in the DFARS clause. As such, 
this DFARS clause is now redundant and can be removed.
    The removal of this DFARS text supports a recommendation from the 
DoD Regulatory Reform Task Force. On February 24, 2017, the President 
signed Executive Order (E.O.) 13777, ``Enforcing the Regulatory Reform 
Agenda,'' which established a Federal policy ``to alleviate unnecessary 
regulatory burdens'' on the American people. In accordance with E.O. 
13777, DoD established a Regulatory Reform Task Force to review and 
validate DoD regulations, including the DFARS. A public notice of the 
establishment of the DFARS Subgroup to the DoD Regulatory Reform Task 
Force, for the purpose of reviewing DFARS provisions and clauses, was 
published in the Federal Register at 82 FR 35741 on August 1, 2017, and 
requested public input. No public comments were received on this 
provision. Subsequently, the DoD Task Force reviewed the requirements 
of DFARS clause 252.222-7001, Right of First Refusal of Employment-
Closure of Military Installations, determined that the DFARS coverage 
was redundant, and recommended removal.

II. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

    This rule only removes obsolete DFARS provision 252.222-7001, Right 
of First Refusal of Employment-Closure of Military Installations. 
Therefore, the rule does not impose any new requirements on contracts 
at or below the SAT and for commercial items, including COTS items.

III. Executive Orders 12866 and 13563

    E.O. 12866, Regulatory Planning and Review; and E.O. 13563, 
Improving Regulation and Regulatory Review, 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 (OIRA), 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 as defined at 5 U.S.C. 804(2).

IV. Executive Order 13771

    This final rule is not an E.O. 13771, Reducing Regulation and 
Controlling Regulatory Costs, regulatory action, because this rule is 
not significant under E.O. 12866.

V. Publication of This Final Rule for Public Comment Is Not Required by 
Statute

    The statute that applies to the publication of the 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 DoD is not issuing a new regulation; rather, this rule merely 
removes an obsolete clause from the DFARS.

VI. 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 V. 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.

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 222, 237, and 252

    Government procurement.


Amy G. Williams,
Deputy, Defense Acquisition Regulations System.

    Therefore, parts 222, 237, and 252 are amended as follows:

0
1. The authority citation for parts 222, 237, and 252 continues to read 
as follows:

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

[[Page 24894]]

PART 222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 222.71 [Removed and Reserved]

0
2. Remove and reserve subpart 222.71, consisting of sections 222.7101 
and 222.7102.

PART 237--SERVICE CONTRACTING


237.7401   [Amended]

0
3. Amend section 237.7401 by removing paragraph (d).

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.222-7001   [Removed and Reserved]

0
4. Remove and reserve section 252.222-7001.

[FR Doc. 2018-11346 Filed 5-29-18; 8:45 am]
 BILLING CODE 5001-06-P