83 FR 54681 - Defense Federal Acquisition Regulation Supplement: Update of Clause on Section 8(a) Direct Award (DFARS Case 2018-D052)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 83, Issue 211 (October 31, 2018)
Defense Acquisition Regulations System
Federal Register Volume 83, Issue 211 (October 31, 2018)
| Page Range | 54681-54682 | |
| FR Document | 2018-23681 |
[Federal Register Volume 83, Number 211 (Wednesday, October 31, 2018)] [Rules and Regulations] [Pages 54681-54682] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-23681] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 252 [Docket DARS-2018-0051] RIN 0750-AK34 Defense Federal Acquisition Regulation Supplement: Update of Clause on Section 8(a) Direct Award (DFARS Case 2018-D052) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: DoD is issuing a final rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to remove an obsolete requirement from a DFARS clause. DATES: Effective October 31, 2018. FOR FURTHER INFORMATION CONTACT: Ms. Jennifer D. Johnson, telephone 571-372-6100. SUPPLEMENTARY INFORMATION: I. Background DoD is amending the DFARS to remove an obsolete requirement from the clause at DFARS 252.219-7009, Section 8(a) Direct Award. The clause currently requires 8(a) contractors to obtain written approval from the Small Business Administration (SBA) and the contracting officer prior to subcontracting the performance of any contract requirements. This requirement no longer exists in SBA's regulations on the 8(a) Business Development Program at 13 CFR part 124. II. Discussion and Analysis This rule deletes paragraph (c)(2) of the clause at DFARS 252.219- 7009. This paragraph contains the obsolete requirement for an 8(a) contractor to obtain written approval from SBA and the contracting officer prior to subcontracting performance of contract requirements. The remaining paragraphs (c) and (c)(1) are combined into a single paragraph (c). This rule also updates an outdated reference in paragraph (c)(1) and makes other minor editorial changes. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items This rule revises the clause at DFARS 252.219-7009, Section 8(a) Direct Award. This clause currently applies to solicitations and contracts below the simplified acquisition threshold (SAT) and to the acquisition of commercial items, including commercially available off- the-shelf (COTS) items, as defined at Federal Acquisition Regulation (FAR) 2.101. DoD is continuing to apply this clause to solicitations and contracts below the SAT and to the acquisition of commercial items, including COTS items. This rule merely removes an obsolete requirement to obtain approval from the contracting officer and SBA prior to subcontracting work under an 8(a) contract. Not applying this guidance to contracts below the SAT and to the acquisition of commercial items, including COTS items, would exclude contracts with 8(a) Program participants that are intended to be [[Page 54682]] covered by this rule and undermine the overarching purpose of the rule. Consequently, DoD plans to apply the rule to contracts below the SAT and to the acquisition of commercial items, including COTS items. IV. Expected Cost Savings This rule impacts only 8(a) Program participants who do business, or want to do business, with DoD. Currently, 8(a) Program participants who have DoD contracts must obtain written approval from SBA and the contracting officer before subcontracting the performance of any contract requirements in accordance with DFARS clause 252.219-7009. Removal of the requirement to obtain this approval is expected to result in savings for DoD contractors who are 8(a) Program participants. The following is a summary of the estimated public and Government cost savings calculated in perpetuity in 2016 dollars at a 7-percent discount rate: ---------------------------------------------------------------------------------------------------------------- Summary Public Government Total ---------------------------------------------------------------------------------------------------------------- Present Value.......................................... ($9,713,886) ($4,856,943) ($14,570,829) Annualized Costs....................................... (679,972) (339,986) (1,019,958) Annualized Value Costs (as of 2016 if Year 1 is 2019).. (555,060) (277,530) (832,590) ---------------------------------------------------------------------------------------------------------------- To access the full Regulatory Cost Analysis for this rule, go to the Federal eRulemaking Portal at www.regulations.gov, search for ``DFARS Case 2018-D052,'' click ``Open Docket,'' and view ``Supporting Documents.'' V. 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 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. VI. Executive Order 13771 This final rule is considered to be an E.O. 13771 deregulatory action. The total annualized value of the cost savings is $832,590. Details on the estimated cost savings can be found in section IV. of this preamble. VII. 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 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, updates an outdated reference and makes minor editorial changes. VIII. 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 VII. 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. IX. 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 Part 252 Government procurement. Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System. Therefore, 48 CFR part 252 is amended as follows: PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 1. The authority citation for part 252 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 0 2. Amend section 252.219-7009 by-- 0 a. Removing the clause date of ``(SEP 2007)'' and adding ``(OCT 2018)'' in its place; 0 b. In paragraph (a), removing ``Partnership Agreement dated'' and adding ``Partnership Agreement'' in its place; and 0 c. Revising paragraph (c) to read as follows: 252.219-7009 Section 8(a) direct award. * * * * * (c.) The 8(a) Contractor agrees that it will notify the Contracting Officer, simultaneous with its notification to the SBA (as required by SBA's 8(a) regulations at 13 CFR 124.515), when the owner or owners upon whom 8(a) eligibility is based plan to relinquish ownership or control of the concern. Consistent with section 407 of Public Law 100- 656, transfer of ownership or control shall result in termination of the contract for convenience, unless the SBA waives the requirement for termination prior to the actual relinquishing of ownership and control. * * * * * [FR Doc. 2018-23681 Filed 10-30-18; 8:45 am] BILLING CODE 5001-06-P
![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
VerDate Sep<11>2014 16:24 Oct 30, 2018 Jkt 247001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\31OCR1.SGM 31OCR1](https://thefederalregister.org/doc/83_FR_54892/page/1.svg)
![54682 Federal Register / Vol. 83, No. 211 / Wednesday, October 31, 2018 / Rules and Regulations
covered by this rule and undermine the do business, with DoD. Currently, 8(a) expected to result in savings for DoD
overarching purpose of the rule. Program participants who have DoD contractors who are 8(a) Program
Consequently, DoD plans to apply the contracts must obtain written approval participants.
rule to contracts below the SAT and to from SBA and the contracting officer The following is a summary of the
the acquisition of commercial items, before subcontracting the performance estimated public and Government cost
including COTS items. of any contract requirements in savings calculated in perpetuity in 2016
IV. Expected Cost Savings accordance with DFARS clause dollars at a 7-percent discount rate:
252.219–7009. Removal of the
This rule impacts only 8(a) Program
requirement to obtain this approval is
participants who do business, or want to
Summary Public Government Total
Present Value ............................................................................................................ ($9,713,886) ($4,856,943) ($14,570,829)
Annualized Costs ....................................................................................................... (679,972) (339,986) (1,019,958)
Annualized Value Costs (as of 2016 if Year 1 is 2019) ............................................ (555,060) (277,530) (832,590)
To access the full Regulatory Cost expenditure of appropriated funds, and Authority: 41 U.S.C. 1303 and 48 CFR
Analysis for this rule, go to the Federal has either a significant effect beyond the chapter 1.
eRulemaking Portal at internal operating procedures of the
www.regulations.gov, search for agency issuing the policy, regulation, ■ 2. Amend section 252.219–7009 by—
‘‘DFARS Case 2018–D052,’’ click ‘‘Open procedure, or form, or has a significant ■ a. Removing the clause date of ‘‘(SEP
Docket,’’ and view ‘‘Supporting cost or administrative impact on 2007)’’ and adding ‘‘(OCT 2018)’’ in its
Documents.’’ contractors or offerors. This final rule is place;
not required to be published for public ■ b. In paragraph (a), removing
V. Executive Orders 12866 and 13563
comment, because DoD is not issuing a ‘‘Partnership Agreement dated’’ and
Executive Orders (E.O.s) 12866 and new regulation; rather, this rule merely adding ‘‘Partnership Agreement’’ in its
13563 direct agencies to assess all costs removes an obsolete requirement from
and benefits of available regulatory place; and
the DFARS, updates an outdated
alternatives and, if regulation is reference and makes minor editorial ■ c. Revising paragraph (c) to read as
necessary, to select regulatory changes. follows:
approaches that maximize net benefits
(including potential economic, VIII. Regulatory Flexibility Act 252.219–7009 Section 8(a) direct award.
environmental, public health and safety Because a notice of proposed * * * * *
effects, distributive impacts, and rulemaking and an opportunity for (c.) The 8(a) Contractor agrees that it
equity). E.O. 13563 emphasizes the public comment are not required to be will notify the Contracting Officer,
importance of quantifying both costs given for this rule under 41 U.S.C. simultaneous with its notification to the
and benefits, of reducing costs, of 1707(a)(1) (see section VII. of this SBA (as required by SBA’s 8(a)
harmonizing rules, and of promoting preamble), the analytical requirements regulations at 13 CFR 124.515), when
flexibility. This is not a significant of the Regulatory Flexibility Act (5 the owner or owners upon whom 8(a)
regulatory action and, therefore, was not U.S.C. 601 et seq.) are not applicable. eligibility is based plan to relinquish
subject to review under section 6(b) of Accordingly, no regulatory flexibility ownership or control of the concern.
E.O. 12866, Regulatory Planning and analysis is required, and none has been Consistent with section 407 of Public
Review, dated September 30, 1993. This prepared.
rule is not a major rule under 5 U.S.C. Law 100–656, transfer of ownership or
804. IX. Paperwork Reduction Act control shall result in termination of the
contract for convenience, unless the
VI. Executive Order 13771 The rule does not contain any
information collection requirements that SBA waives the requirement for
This final rule is considered to be an require the approval of the Office of termination prior to the actual
E.O. 13771 deregulatory action. The Management and Budget under the relinquishing of ownership and control.
total annualized value of the cost Paperwork Reduction Act (44 U.S.C. * * * * *
savings is $832,590. Details on the chapter 35). [FR Doc. 2018–23681 Filed 10–30–18; 8:45 am]
estimated cost savings can be found in BILLING CODE 5001–06–P
section IV. of this preamble. List of Subjects in 48 CFR Part 252
VII. Publication of This Final Rule for Government procurement.
Public Comment Is Not Required by Jennifer Lee Hawes,
Statute Regulatory Control Officer, Defense
The statute that applies to the Acquisition Regulations System.
publication of the FAR is Office of Therefore, 48 CFR part 252 is
Federal Procurement Policy statute amended as follows:
(codified at title 41 of the United States
amozie on DSK3GDR082PROD with RULES
Code). Specifically, 41 U.S.C. 1707(a)(1) PART 252—SOLICITATION
requires that a procurement policy, PROVISIONS AND CONTRACT
regulation, procedure, or form CLAUSES
(including an amendment or
modification thereof) must be published ■ 1. The authority citation for part 252
for public comment if it relates to the continues to read as follows:
VerDate Sep<11>2014 16:24 Oct 30, 2018 Jkt 247001 PO 00000 Frm 00020 Fmt 4700 Sfmt 9990 E:\FR\FM\31OCR1.SGM 31OCR1](https://thefederalregister.org/doc/83_FR_54892/page/2.svg)
Document Created: 2018-10-31 00:33:40
Document Modified: 2018-10-31 00:33:40
| 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. Jennifer D. Johnson, telephone 571-372-6100. | |
| FR Citation | 83 FR 54681 | |
| RIN Number | 0750-AK34 |
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