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)

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, 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]


-----------------------------------------------------------------------

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