83 FR 30659 - Defense Federal Acquisition Regulation Supplement: Modification of DFARS Clause “Surge Option” (DFARS Case 2018-D025)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 83, Issue 126 (June 29, 2018)
Defense Acquisition Regulations System
Federal Register Volume 83, Issue 126 (June 29, 2018)
| Page Range | 30659-30661 | |
| FR Document | 2018-14040 |
[Federal Register Volume 83, Number 126 (Friday, June 29, 2018)] [Proposed Rules] [Pages 30659-30661] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-14040] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 217 and 252 [Docket DARS-2018-0036] RIN 0750-AJ87 Defense Federal Acquisition Regulation Supplement: Modification of DFARS Clause ``Surge Option'' (DFARS Case 2018-D025) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to revise a clause to reflect current terminology and industry practices, pursuant to action taken by the Regulatory Reform Task Force. DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before August 28, 2018, to be considered in the formation of a final rule. ADDRESSES: Submit comments identified by DFARS Case 2018-D025, using any of the following methods:Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering ``DFARS Case 2018-D025'' under the heading ``Enter keyword or ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 2018-D025.'' Follow the instructions provided at the ``Submit a Comment'' screen. Please include your name, company name (if any), and ``DFARS Case 2018-D025'' on your attached document. Email: [email protected]. Include DFARS Case 2018-D025 in the subject line of the message. Fax: 571-372-6094. Mail: Defense Acquisition Regulations System, Attn: Carrie Moore, OUSD (A&S) DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060. Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately 2 to 3 days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372- 6093. [[Page 30660]] SUPPLEMENTARY INFORMATION: I. Background This rule proposes to revise the DFARS by modifying DFARS clause 252.217-7001, Surge Option, to replace the term ``Production Surge Plan (DI-MGMT-80969)'' with ``Capabilities Analysis Plan (CAP)'' and add text to permit the option increase of supplies or services called for under the clause to be expressed as a specific number. The associated clause prescription at DFARS 217.208-70(b) is proposed to be amended to reflect that the option increase of supplies or services may also be expressed as a specific number. This clause is incorporated into contracts that support industrial planning for selected essential military items in the event of a national emergency. Currently, the clause advises contractors that the Government has the option to increase the supplies or services delivered under the contract up to a specified percentage or accelerate the rate of delivery. It also instructs contractors to follow the Production Surge Plan (DI MGMT 80969) included in the contract or, if no plan is in the contract, to provide a delivery schedule to the Government within 30 days of contract award. A review of the clause text indicates that it should be modified to reflect current practices in the marketplace. II. Discussion and Analysis Paragraphs (b)(1) and (2) of DFARS clause 252.217-7001 include a reference to a Production Surge Plan (DI MGMT 80969). DoD subject matter experts advise that Production Surge Plan (DI MGMT 80969) is no longer an up-to-date reference and that Capabilities Analysis Plan (CAP) is the current terminology used in industrial planning efforts. This rule will update the clause paragraphs to reflect the current industry terminology. Paragraph (a) of the DFARS clause provides contractors with a maximum quantity of supplies or services by which the Government may increase the contract in order to support a surge need. This quantity is expressed as a percentage of the supplies or services currently being provided for under the contract. Supply chains supporting surge needs more commonly express increases of supplies or services as a specific number of additional supplies or services to be provided under the contract, as opposed to an additional percentage of the supplies or services already being provided under the contract. In order to reflect current supply chain practices, this rule proposes to permit the contracting officer to express DoD's surge need as a specific quantity of supplies or services needed, or utilize the existing method of expressing the surge need as a percentage of contracted supplies or services. The proposed revision to this DFARS clause 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 clause. Subsequently, the DoD Task Force reviewed the requirements of DFARS 252.217-7001, Surge Option, and determined that the DFARS coverage should be revised to align with industry practice. III. 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 does not propose to create any new provisions or clauses. The proposed changes to DFARS clause 252.217-7001, Surge Option, are minimal and reflect only updates required to mirror current industry terminology and practice for support that may be required for industrial planning for selected essential military items in the event of a national emergency. The rule applies to contracts below the SAT, however, the rule does not apply to commercial items and COTS items. IV. Executive Orders 12866 and 13563 Executive Order (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). V. Executive Order 13771 This 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. VI. Regulatory Flexibility Act DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because the rule is only updating a term used in the clause and However, an initial regulatory flexibility analysis has been performed and is summarized as follows: The Department of Defense is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to revise a clause to reflect current terminology and industry practices, pursuant to action taken by the Regulatory Reform Task Force. The objective of this proposed rule is to improve the flexibility offered to contractors when submitting pricing by giving the option to quote prices by percentage or quantity increases and update the terminology used from ``Production Surge Plan'' to ``Capability Analysis Plan'' (CAP). The modification of this DFARS text supports a recommendation from the DoD Regulatory Reform Task Force. This rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Based on fiscal year 2017 data from the Federal Procurement Data System, the Government issued approximately 78 contract actions that cited mobilization as the reason for other than full and open competition for the surge option. Of the 78 total contract actions, approximately 33 awards were made to 24 unique small businesses entities. This proposed rule does not include any new reporting, recordkeeping, or other compliance requirements for small businesses. This rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternative approaches to the [[Page 30661]] proposed rule that would meet the proposed objectives. VI. Paperwork Reduction Act The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). List of Subjects in 48 CFR Parts 217 and 252 Government procurement. Amy G. Williams, Deputy, Defense Acquisition Regulations System. Therefore, 48 CFR parts 217 and 252 are proposed to be amended as follows: 0 1. The authority citation for parts 217 and 252 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. PART 217--SPECIAL CONTRACTING METHODS 217.208-70 [Amended] 0 2. In section 217.208-70, amend paragraph (b)(1), by removing ``percentage'' and adding ``percentage or quantity'' in its place. PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 3. Amend section 252.217-7001 by-- 0 a. Removing the clause date of ``(AUG 1992)'' and adding ``(DATE)'' in its place; 0 b. Revising paragraph (a)(1); 0 c. In paragraph (b)(1), removing ``Production Surge Plan (DI-MGMT)'' and adding ``(Capabilities Analysis Plan (CAP)'' in its place; and 0 d. In paragraph (b)(2), removing ``Production Surge Plan'' and adding ``CAP'' in its place. The revision reads as follows: 252.217-7001 Surge Option. * * * * * (a) * * * (1) Increase the quantity of supplies or services called for under this contract by no more than __ percent or __ [insert quantity and description of services or supplies to be increased]; and/or * * * * * [FR Doc. 2018-14040 Filed 6-28-18; 8:45 am] BILLING CODE 5001-06-P
![Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 30659
data to determine a fair and reasonable exceeds the certified cost of pricing data DEPARTMENT OF DEFENSE
price. If the acquisition exceeds the threshold and an exception to the
certified cost or pricing data threshold requirement for certified cost or pricing Defense Acquisition Regulations
and an exception to the requirement for data at FAR 15.403–1(b)(2) through (5) System
certified cost or pricing data at FAR does not apply, certify all cost or pricing
15.403–1(b)(2) through (5) does not data in accordance with paragraph (c) of 48 CFR Parts 217 and 252
apply, the cost or pricing data shall be provision 252.215–7010, Requirements [Docket DARS–2018–0036]
certified. for Certified Cost or Pricing Data and
(c) If the contracting officer is still Data Other Than Certified Cost or RIN 0750–AJ87
unable to determine that the offered Pricing Data, of this solicitation.
price is fair and reasonable, the Defense Federal Acquisition
* * * * * Regulation Supplement: Modification
contracting officer shall enter into (c) Subcontracts. Unless the Offeror is
negotiations with the offeror to establish of DFARS Clause ‘‘Surge Option’’
the Canadian Commercial Corporation, (DFARS Case 2018–D025)
a fair and reasonable price. The the Offeror shall insert the substance of
negotiated price should not exceed the this provision, including this paragraph AGENCY: Defense Acquisition
offered price. (c), in all subcontracts exceeding the Regulations System, Department of
(d) If the contracting officer is unable simplified acquisition threshold defined Defense (DoD).
to negotiate a fair and reasonable price, in FAR part 2. ACTION: Proposed rule.
see FAR 15.405(d).
(End of provision)
■ 3. Amend section 215.408 by— SUMMARY: DoD is proposing to amend
■ a. Revising paragraph (3); and ■ 5. Amend section 252.215–7010 by—
the Defense Federal Acquisition
■ b. In paragraph (5) introductory text, ■ a. In the basic provision—
Regulation Supplement (DFARS) to
removing ‘‘required’’ and adding ■ i. Removing the provision date of
revise a clause to reflect current
‘‘required or when using the provision ‘‘(JAN 2018)’’ and adding ‘‘(DATE)’’ in terminology and industry practices,
at DFARS 252.215–7008’’ in its place. its place; pursuant to action taken by the
The revision reads as follows: ■ ii. In paragraph (c), adding new Regulatory Reform Task Force.
paragraph (3); DATES: Comments on the proposed rule
215.408 Solicitation provisions and
■ b. In the Alternate I clause— should be submitted in writing to the
contract clauses.
■ i. Removing the provision date of address shown below on or before
* * * * *
‘‘(JAN 2018)’’ and adding ‘‘(DATE)’’ in August 28, 2018, to be considered in the
(3) Use the provision at 252.215–7008,
its place; and formation of a final rule.
Only One Offer, in competitive
■ ii. In paragraph (c), adding new ADDRESSES: Submit comments
solicitations that exceed the simplified
acquisition threshold, including paragraph (3). identified by DFARS Case 2018–D025,
solicitations using FAR part 12 The additions read as follows: using any of the following methods:
procedures for the acquisition of 252.215–7010 Requirements for Certified • Regulations.gov: http://
commercial items. Cost or Pricing Data and Data Other Than www.regulations.gov. Submit comments
* * * * * Certified Cost or Pricing Data. via the Federal eRulemaking portal by
* * * * * entering ‘‘DFARS Case 2018–D025’’
PART 252—SOLICITATION under the heading ‘‘Enter keyword or
(c) * * *
PROVISIONS AND CONTRACT ID’’ and selecting ‘‘Search.’’ Select the
(3) The Offeror is responsible for link ‘‘Submit a Comment’’ that
CLAUSES
determining whether a subcontractor corresponds with ‘‘DFARS Case 2018–
■ 4. Amend section 252.215–7008 by— qualifies for an exception from the D025.’’ Follow the instructions provided
■ a. Removing the provision date ‘‘(OCT requirement for submission of certified at the ‘‘Submit a Comment’’ screen.
2013)’’ and adding ‘‘(DATE)’’ in its cost or pricing data on the basis of Please include your name, company
place; adequate price competition, i.e. two or name (if any), and ‘‘DFARS Case 2018–
■ b. Revising paragraph (a); more responsible offerors, competing D025’’ on your attached document.
■ c. Removing paragraphs (b) and (d); independently, submit responsive and • Email: osd.dfars@mail.mil. Include
■ d. Redesignating paragraph (c) as viable offers in accordance with FAR DFARS Case 2018–D025 in the subject
paragraph (b); and 15.403–1(c)(1)(ii).
■ e. Adding a new paragraph (c).
line of the message.
The revision and addition read as
* * * * * • Fax: 571–372–6094.
Alternate I. * * * • Mail: Defense Acquisition
follows:
Regulations System, Attn: Carrie Moore,
252.215–7008 Only One Offer. * * * * * OUSD (A&S) DPAP/DARS, Room
* * * * * (c) * * * 3B941, 3060 Defense Pentagon,
(a) After initial submission of offers, (3) The Offeror is responsible for Washington, DC 20301–3060.
if the Contracting Officer notifies the determining whether a subcontractor Comments received generally will be
Offeror that only one offer was received, qualifies for an exception from the posted without change to http://
the Offeror agrees to— requirement for submission of certified www.regulations.gov, including any
(1) Submit any additional cost or cost or pricing data on the basis of personal information provided. To
sradovich on DSK3GMQ082PROD with PROPOSALS
pricing data that is required in order to adequate price competition, i.e. two or confirm receipt of your comment(s),
determine whether the price is fair and more responsible offerors, competing please check www.regulations.gov,
reasonable or to comply with the independently, submit responsive and approximately 2 to 3 days after
statutory requirement for certified cost viable offers in accordance with FAR submission to verify posting (except
or pricing data (10 U.S.C. 2306a and 15.403–1(c)(1)(ii). allow 30 days for posting of comments
FAR 15.403–3); and * * * * * submitted by mail).
(2) Except as provided in paragraph [FR Doc. 2018–14062 Filed 6–28–18; 8:45 am] FOR FURTHER INFORMATION CONTACT: Ms.
(b) of this provision, if the acquisition BILLING CODE 5001–06–P Carrie Moore, telephone 571–372–6093.
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![Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 30661
proposed rule that would meet the DEPARTMENT OF DEFENSE I. Background
proposed objectives. This proposed rule clarifies and,
Defense Acquisition Regulations
VI. Paperwork Reduction Act where necessary, updates policies and
System
procedures for providing electronic
The rule does not contain any payment-related documents and for
information collection requirements that 48 CFR Parts 232, 246, 252, and
processing payment requests and
require the approval of the Office of Appendix F to Chapter 2
receiving reports in Wide Area
Management and Budget under the WorkFlow (WAWF). Title 10 of the
Paperwork Reduction Act (44 U.S.C. [Docket DARS–2018–0037] United States Code (U.S.C.), section
chapter 35). 2227, Electronic Submission and
RIN 0750–AJ44 Processing of Claims for Contract
List of Subjects in 48 CFR Parts 217 and
Payments, requires that any claim for
252 Defense Federal Acquisition
payment under a DoD contract be in
Regulation Supplement: Electronic
Government procurement. electronic format. If electronic
Submission and Processing of
submission is unduly burdensome, 10
Amy G. Williams, Payment Requests and Receiving
U.S.C. 2227 allows an exemption. DoD
Deputy, Defense Acquisition Regulations Reports (DFARS Case 2016–D032)
published a final rule in the Federal
System. AGENCY: Defense Acquisition Register at 77 FR 38731 on June 29,
Regulations System, Department of 2012 (DFARS Case 2011–D027), to
Therefore, 48 CFR parts 217 and 252
Defense (DoD). update DFARS policies and procedures
are proposed to be amended as follows:
ACTION: Proposed rule. for electronic submission of payment
■ 1. The authority citation for parts 217 requests and receiving reports and
and 252 continues to read as follows: SUMMARY: DoD is proposing to amend established WAWF as the accepted DoD
Authority: 41 U.S.C. 1303 and 48 CFR the Defense Federal Acquisition system for processing invoices and
chapter 1. Regulation Supplement (DFARS) to receiving reports.
clarify policies and procedures for Some contractors have been
PART 217—SPECIAL CONTRACTING submission of payment requests and prevented from using WAWF for some
METHODS receiving reports in electronic form. contracts because of a misinterpretation
DATES: Comments on the proposed rule of the exemptions in DFARS subpart
217.208–70 [Amended] 232.70, Electronic Submission and
should be submitted in writing to the
■ 2. In section 217.208–70, amend address shown below on or before Processing of Payment Requests and
paragraph (b)(1), by removing August 28, 2018, to be considered in the Receiving Reports. This proposed rule
‘‘percentage’’ and adding ‘‘percentage or formation of a final rule. clarifies those exemptions and allows
quantity’’ in its place. contractors to request permission from
ADDRESSES: Submit comments
the contracting officer, in writing, to
identified by DFARS Case 2016–D032,
PART 252—SOLICITATION submit payment requests and receiving
using any of the following methods:
reports using temporary alternative
PROVISIONS AND CONTRACT • Federal eRulemaking Portal: http://
CLAUSES methods, other than in electronic form.
www.regulations.gov. Search for
‘‘DFARS Case 2016–D032.’’ Select II. Discussion and Analysis
■ 3. Amend section 252.217–7001 by— ‘‘Comment Now’’ and follow the DoD is proposing to amend DFARS
■ a. Removing the clause date of ‘‘(AUG instructions provided to submit a parts 232, 246, 252, and Appendix F to
1992)’’ and adding ‘‘(DATE)’’ in its comment. Please include ‘‘DFARS Case clarify and, where necessary, update the
place; 2016–D032’’ on any attached policies and procedures for electronic
■ b. Revising paragraph (a)(1); documents. submission of payment requests and
• Email: osd.dfars@mail.mil. Include receiving reports. The following is a
■ c. In paragraph (b)(1), removing
DFARS Case 2016–D032 in the subject summary of the proposed changes:
‘‘Production Surge Plan (DI–MGMT)’’ line of the message.
and adding ‘‘(Capabilities Analysis Plan • DFARS subpart 232.70, Electronic
• Fax: 571–372–6094. Submission and Processing of Payment
(CAP)’’ in its place; and • Mail: Defense Acquisition Requests and Receiving Reports.
■ d. In paragraph (b)(2), removing Regulations System, Attn: Ms. Jennifer Definitions of the terms ‘‘electronic
‘‘Production Surge Plan’’ and adding D. Johnson, OUSD (A&S) DPAP/DARS, form,’’ ‘‘payment request,’’ and
‘‘CAP’’ in its place. Room 3B941, 3060 Defense Pentagon, ‘‘receiving report’’ are inserted in their
The revision reads as follows: Washington, DC 20301–3060. entirety in lieu of the reference stating
Comments received generally will be that the terms are defined in the clause
252.217–7001 Surge Option. posted without change to http:// at DFARS 252.232–7003, Electronic
* * * * * www.regulations.gov, including any Submission of Payment Requests. The
personal information provided. To policy on exceptions to submission of
(a) * * *
confirm receipt of your comment(s), payment requests in electronic form is
(1) Increase the quantity of supplies or please check www.regulations.gov, clarified by deleting the current list of
sradovich on DSK3GMQ082PROD with PROPOSALS
services called for under this contract by approximately 2 to 3 days after
no more than ll percent or ll exceptions at DFARS 232.7002(a)(ii) and
submission to verify posting (except providing a more general exception for
[insert quantity and description of allow 30 days for posting of comments
services or supplies to be increased]; cases in which contractor submission of
submitted by mail). electronic payment requests is not
and/or FOR FURTHER INFORMATION CONTACT: Ms. feasible (e.g., when contract
* * * * * Jennifer D. Johnson, telephone 571– performance is in a contingency or
[FR Doc. 2018–14040 Filed 6–28–18; 8:45 am] 372–6100. austere environment where internet
BILLING CODE 5001–06–P SUPPLEMENTARY INFORMATION: connectivity is not available). This
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Document Created: 2018-06-29 01:13:07
Document Modified: 2018-06-29 01:13:07
| 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 | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments on the proposed rule should be submitted in writing to | |
| Contact | Ms. Carrie Moore, telephone 571-372- 6093. | |
| FR Citation | 83 FR 30659 | |
| RIN Number | 0750-AJ87 | |
| CFR Citation | 48
CFR
217 48 CFR 252 |
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