83 FR 54680 - Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Clause “Option for Supervision and Inspection Services” (DFARS Case 2018-D041)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 83, Issue 211 (October 31, 2018)

Page Range		54680-54681
FR Document		2018-23680

DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove a clause that is no longer necessary.

Federal Register, Volume 83 Issue 211 (Wednesday, October 31, 2018)

[Federal Register Volume 83, Number 211 (Wednesday, October 31, 2018)]
[Rules and Regulations]
[Pages 54680-54681]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-23680]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 236 and 252

[Docket DARS-2018-0050]
RIN 0750-AK03


Defense Federal Acquisition Regulation Supplement: Repeal of 
DFARS Clause ``Option for Supervision and Inspection Services'' (DFARS 
Case 2018-D041)

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 remove a clause that is no 
longer necessary.

DATES: Effective October 31, 2018.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is amending the DFARS to remove the DFARS clause 252.236-7009, 
Option for Supervision and Inspection Services, remove the associated 
clause prescription at DFARS 236.609-70(a)(1), and revise a cross 
reference in the introductory text to DFARS clause 252.236-7011. DFARS 
clause 252.236-7009 is used in fixed-price solicitations and contracts 
for architect-engineering services when the architect may also be 
required to provide supervision and inspection services during 
construction. The clause advises contractors that the Government may, 
at its option, direct the contractor to perform supervision and 
inspection services for the construction contract. If the need for such 
services arises, the Government will notify the contractor in writing 
and the contractor shall proceed with the services upon receipt of the 
written notification. A description of the scope of the supervision and 
inspection services is included as an appendix to the contract.
    The need for architect-engineers to perform supervision and 
inspection services during construction is uncommon. When it is 
necessary, an option that accurately describes the scope of services 
can be included in the contract, pursuant to Federal Acquisition 
Regulation subpart 17.2, Options. Contracting activities can better 
address these services, to the extent they are needed and the 
procedures applicable to the requirement, within the scope of a 
contract. As such, this DFARS clause is unnecessary and can be removed.
    The removal of 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 clause 252.236-7009, Option for Supervision and Inspection 
Services, and determined that the DFARS coverage was unnecessary and 
recommended removal.

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

    This rule only removes obsolete DFARS clause 252.236-7009, Option 
for Supervision and Inspection Services. Therefore, the rule does not 
impose any new requirements on contracts at or below the simplified 
acquisition threshold and for commercial items, including commercially 
available off-the-shelf items.

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

    The statute that applies to the publication of the FAR is Office of

[[Page 54681]]

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 requirement from the DFARS.

IV. 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, 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 regulatory action, because this rule 
is not significant under E.O. 12866.

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 III. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required, and none has been prepared.

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 236 and 252

    Government procurement.

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

    Therefore, 48 CFR parts 236 and 252 are amended as follows:

0
1. The authority citation for 48 CFR parts 236 and 252 continues to 
read as follows:

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

PART 236--CONSTRUCTION AND ARCHITECT--ENGINEER CONTRACTS


236.609-70   [Amended]

0
2. Amend section 236.609-70 by--
0
a. In the section heading, removing ``and clause'';
0
b. Removing paragraph (a); and
0
c. Redesignating the introductory text of paragraph (b) as introductory 
text to the section.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.236--7009   [Removed and Reserved]

0
3. Remove and reserve section 252.236-7009.


252.236-7011   [Amended]

0
4. Amend section 252.236-7011, in the introductory text, by removing 
``236.609-70(b)'' and adding ``236.609-70'' in its place.

[FR Doc. 2018-23680 Filed 10-30-18; 8:45 am]
 BILLING CODE 5001-06-P

54680 Federal Register / Vol. 83, No. 211 / Wednesday, October 31, 2018 / Rules and Regulations

IV. Executive Orders 12866 and 13563 PART 228—BONDS AND INSURANCE with the services upon receipt of the
written notification. A description of the
E.O. 12866, Regulatory Planning and 228.170 [Removed] scope of the supervision and inspection
Review, and E.O. 13563, Improving ■ 2. Remove section 228.170. services is included as an appendix to
Regulation and Regulatory Review, the contract.
direct agencies to assess all costs and PART 252—SOLICITATION The need for architect-engineers to
benefits of available regulatory PROVISIONS AND CONTRACT perform supervision and inspection
alternatives and, if regulation is CLAUSES services during construction is
necessary, to select regulatory uncommon. When it is necessary, an
approaches that maximize net benefits 252.228–7004 [Removed and Reserved] option that accurately describes the
(including potential economic, ■ 3. Remove and reserve section scope of services can be included in the
environmental, public health and safety 252.228–7004. contract, pursuant to Federal
effects, distributive impacts, and [FR Doc. 2018–23679 Filed 10–30–18; 8:45 am] Acquisition Regulation subpart 17.2,
equity). E.O. 13563 emphasizes the BILLING CODE 5001–06p–P
Options. Contracting activities can
importance of quantifying both costs better address these services, to the
and benefits, of reducing costs, of extent they are needed and the
harmonizing rules, and of promoting DEPARTMENT OF DEFENSE procedures applicable to the
flexibility. The Office of Management requirement, within the scope of a
and Budget, Office of Information and Defense Acquisition Regulations contract. As such, this DFARS clause is
Regulatory Affairs, has determined that System unnecessary and can be removed.
this is not a significant regulatory action The removal of this DFARS clause
as defined under section 3(f) of E.O. 48 CFR Parts 236 and 252 supports a recommendation from the
12866 and, therefore, was not subject to DoD Regulatory Reform Task Force. On
[Docket DARS–2018–0050]
review under section 6(b). This rule is February 24, 2017, the President signed
not a major rule as defined at 5 U.S.C. RIN 0750–AK03 Executive Order (E.O.) 13777,
804(2). ‘‘Enforcing the Regulatory Reform
Defense Federal Acquisition Agenda,’’ which established a Federal
V. Executive Order 13771 Regulation Supplement: Repeal of policy ‘‘to alleviate unnecessary
This rule is not an E.O. 13771 DFARS Clause ‘‘Option for Supervision regulatory burdens’’ on the American
regulatory action, because this rule is and Inspection Services’’ (DFARS Case people. In accordance with E.O. 13777,
not significant under E.O. 12866. 2018–D041) DoD established a Regulatory Reform
AGENCY: Defense Acquisition Task Force to review and validate DoD
VI. Regulatory Flexibility Act regulations, including the DFARS. A
Regulations System, Department of
Because a notice of proposed Defense (DoD). public notice of the establishment of the
rulemaking and an opportunity for DFARS Subgroup to the DoD Regulatory
ACTION: Final rule.
public comment are not required to be Reform Task Force, for the purpose of
given for this rule under 41 U.S.C. SUMMARY: DoD is issuing a final rule reviewing DFARS provisions and
1707(a)(1) (see section III. of this amending the Defense Federal clauses, was published in the Federal
preamble), the analytical requirements Acquisition Regulation Supplement Register at 82 FR 35741 on August 1,
of the Regulatory Flexibility Act (5 (DFARS) to remove a clause that is no 2017, and requested public input. No
U.S.C. 601 et seq.) are not applicable. longer necessary. public comments were received on this
Accordingly, no regulatory flexibility DATES: Effective October 31, 2018.
clause. Subsequently, the DoD Task
analysis is required, and none has been Force reviewed the requirements of
FOR FURTHER INFORMATION CONTACT: Ms.
prepared. DFARS clause 252.236–7009, Option for
Carrie Moore, telephone 571–372–6093. Supervision and Inspection Services,
VII. Paperwork Reduction Act SUPPLEMENTARY INFORMATION: and determined that the DFARS
I. Background coverage was unnecessary and
The rule does not contain any recommended removal.
information collection requirements that DoD is amending the DFARS to
require the approval of the Office of remove the DFARS clause 252.236– II. Applicability to Contracts at or
Management and Budget under the 7009, Option for Supervision and Below the Simplified Acquisition
Paperwork Reduction Act (44 U.S.C. Inspection Services, remove the Threshold and for Commercial Items,
chapter 35). associated clause prescription at DFARS Including Commercially Available Off-
236.609–70(a)(1), and revise a cross the-Shelf Items
List of Subjects in 48 CFR Parts 228 and
reference in the introductory text to This rule only removes obsolete
252
DFARS clause 252.236–7011. DFARS DFARS clause 252.236–7009, Option for
Government procurement. clause 252.236–7009 is used in fixed- Supervision and Inspection Services.
price solicitations and contracts for Therefore, the rule does not impose any
Jennifer Lee Hawes, architect-engineering services when the new requirements on contracts at or
Regulatory Control Officer, Defense architect may also be required to below the simplified acquisition
Acquisition Regulations System. provide supervision and inspection threshold and for commercial items,
Therefore, 48 CFR parts 228 and 252 services during construction. The clause including commercially available off-
advises contractors that the Government the-shelf items.
amozie on DSK3GDR082PROD with RULES

are amended as follows:
may, at its option, direct the contractor
■ 1. The authority citation for 48 CFR to perform supervision and inspection III. Publication of This Final Rule for
parts 228 and 252 continues to read as services for the construction contract. If Public Comment Is Not Required by
follows: the need for such services arises, the Statute
Authority: 41 U.S.C. 1303 and 48 CFR Government will notify the contractor in The statute that applies to the
chapter 1. writing and the contractor shall proceed publication of the FAR is Office of

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Federal Register / Vol. 83, No. 211 / Wednesday, October 31, 2018 / Rules and Regulations 54681

Federal Procurement Policy statute Management and Budget under the Regulation Supplement (DFARS) to
(codified at title 41 of the United States Paperwork Reduction Act (44 U.S.C. remove an obsolete requirement from a
Code). Specifically, 41 U.S.C. 1707(a)(1) chapter 35). DFARS clause.
requires that a procurement policy, DATES: Effective October 31, 2018.
List of Subjects in 48 CFR Parts 236 and
regulation, procedure, or form FOR FURTHER INFORMATION CONTACT: Ms.
252
(including an amendment or Jennifer D. Johnson, telephone 571–
modification thereof) must be published Government procurement.
372–6100.
for public comment if it relates to the Jennifer Lee Hawes, SUPPLEMENTARY INFORMATION:
expenditure of appropriated funds, and Regulatory Control Officer, Defense
has either a significant effect beyond the Acquisition Regulations System. I. Background
internal operating procedures of the DoD is amending the DFARS to
agency issuing the policy, regulation, Therefore, 48 CFR parts 236 and 252
are amended as follows: remove an obsolete requirement from
procedure, or form, or has a significant the clause at DFARS 252.219–7009,
cost or administrative impact on ■ 1. The authority citation for 48 CFR
parts 236 and 252 continues to read as Section 8(a) Direct Award. The clause
contractors or offerors. This final rule is currently requires 8(a) contractors to
not required to be published for public follows:
obtain written approval from the Small
comment, because DoD is not issuing a Authority: 41 U.S.C. 1303 and 48 CFR Business Administration (SBA) and the
new regulation; rather, this rule merely chapter 1.
contracting officer prior to
removes an obsolete requirement from subcontracting the performance of any
the DFARS. PART 236—CONSTRUCTION AND
ARCHITECT—ENGINEER CONTRACTS contract requirements. This requirement
IV. Executive Orders 12866 and 13563 no longer exists in SBA’s regulations on
E.O. 12866, Regulatory Planning and 236.609–70 [Amended] the 8(a) Business Development Program
Review, and E.O. 13563, Improving ■ 2. Amend section 236.609–70 by— at 13 CFR part 124.
Regulation and Regulatory Review, ■ a. In the section heading, removing II. Discussion and Analysis
direct agencies to assess all costs and ‘‘and clause’’;
■ b. Removing paragraph (a); and This rule deletes paragraph (c)(2) of
benefits of available regulatory
■ c. Redesignating the introductory text the clause at DFARS 252.219–7009. This
alternatives and, if regulation is
of paragraph (b) as introductory text to paragraph contains the obsolete
necessary, to select regulatory
the section. requirement for an 8(a) contractor to
approaches that maximize net benefits
obtain written approval from SBA and
(including potential economic,
PART 252—SOLICITATION the contracting officer prior to
environmental, public health and safety
PROVISIONS AND CONTRACT subcontracting performance of contract
effects, distributive impacts, and
CLAUSES requirements. The remaining paragraphs
equity). E.O. 13563 emphasizes the
(c) and (c)(1) are combined into a single
importance of quantifying both costs 252.236—7009 [Removed and Reserved] paragraph (c). This rule also updates an
and benefits, of reducing costs, of
■ 3. Remove and reserve section outdated reference in paragraph (c)(1)
harmonizing rules, and of promoting
252.236–7009. and makes other minor editorial
flexibility. The Office of Management
changes.
and Budget, Office of Information and 252.236–7011 [Amended]
Regulatory Affairs, has determined that ■ 4. Amend section 252.236–7011, in III. Applicability to Contracts at or
this is not a significant regulatory action the introductory text, by removing Below the Simplified Acquisition
as defined under section 3(f) of E.O. ‘‘236.609–70(b)’’ and adding ‘‘236.609– Threshold and for Commercial Items,
12866 and, therefore, was not subject to 70’’ in its place. Including Commercially Available Off-
review under section 6(b). This rule is the-Shelf Items
[FR Doc. 2018–23680 Filed 10–30–18; 8:45 am]
not a major rule as defined at 5 U.S.C. This rule revises the clause at DFARS
804(2). BILLING CODE 5001–06–P
252.219–7009, Section 8(a) Direct
V. Executive Order 13771 Award. This clause currently applies to
This rule is not an E.O. 13771 DEPARTMENT OF DEFENSE solicitations and contracts below the
regulatory action, because this rule is simplified acquisition threshold (SAT)
not significant under E.O. 12866. Defense Acquisition Regulations and to the acquisition of commercial
System items, including commercially available
VI. Regulatory Flexibility Act off-the-shelf (COTS) items, as defined at
Because a notice of proposed 48 CFR Part 252 Federal Acquisition Regulation (FAR)
rulemaking and an opportunity for [Docket DARS–2018–0051]
2.101.
public comment are not required to be DoD is continuing to apply this clause
given for this rule under 41 U.S.C. RIN 0750–AK34 to solicitations and contracts below the
1707(a)(1) (see section III. of this SAT and to the acquisition of
Defense Federal Acquisition commercial items, including COTS
preamble), the analytical requirements
Regulation Supplement: Update of items. This rule merely removes an
of the Regulatory Flexibility Act (5
Clause on Section 8(a) Direct Award obsolete requirement to obtain approval
U.S.C. 601 et seq.) are not applicable.
(DFARS Case 2018–D052) from the contracting officer and SBA
Accordingly, no regulatory flexibility
analysis is required, and none has been Defense Acquisition prior to subcontracting work under an
amozie on DSK3GDR082PROD with RULES

AGENCY:
prepared. Regulations System, Department of 8(a) contract. Not applying this
Defense (DoD). guidance to contracts below the SAT
VII. Paperwork Reduction Act and to the acquisition of commercial
ACTION: Final rule.
The rule does not contain any items, including COTS items, would
information collection requirements that SUMMARY: DoD is issuing a final rule to exclude contracts with 8(a) Program
require the approval of the Office of amend the Defense Federal Acquisition participants that are intended to be

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Document Created: 2018-10-31 00:33:50
Document Modified: 2018-10-31 00:33:50

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 October 31, 2018.
Contact		Ms. Carrie Moore, telephone 571-372- 6093.
FR Citation		83 FR 54680
RIN Number		0750-AK03
CFR Citation		48 CFR 236 48 CFR 252

83 FR 54680 - Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Clause “Option for Supervision and Inspection Services” (DFARS Case 2018-D041)

DEPARTMENT OF DEFENSEDefense Acquisition Regulations System

Federal Register Volume 83, Issue 211 (October 31, 2018)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System