83 FR 54696 - Defense Federal Acquisition Regulation Supplement: Brand Name or Equal (DFARS Case 2017-D040)
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 | 54696-54698 | |
| FR Document | 2018-23676 |
[Federal Register Volume 83, Number 211 (Wednesday, October 31, 2018)] [Proposed Rules] [Pages 54696-54698] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-23676] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 206, 211, and 213 [Docket DARS-2018-0052] RIN 0750-AJ50 Defense Federal Acquisition Regulation Supplement: Brand Name or Equal (DFARS Case 2017-D040) 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 implement a section of the National Defense Authorization Act for Fiscal Year 2017 that requires the use of brand name or equivalent descriptions or proprietary specifications or standards in solicitations to be justified and approved. DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before December 31, 2018, to be considered in the formation of a final rule. ADDRESSES: Submit comments identified by DFARS Case 2017-D040, using any of the following methods: [cir] Federal eRulemaking Portal: http://www.regulations.gov. Search for ``DFARS Case 2017-D040.'' Select ``Comment Now'' and follow the instructions provided to submit a comment. Please include ``DFARS Case 2017-D040'' on any attached documents. [[Page 54697]] [cir] Email: [email protected]. Include DFARS Case 2017-D040 in the subject line of the message. [cir] Fax: 571-372-6094. [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Carrie Moore, OUSD(A&S)DPC/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 two to three 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. SUPPLEMENTARY INFORMATION: I. Background DoD is proposing to revise the DFARS to implement section 888(a) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328). Section 888(a) requires that competition on DoD contracts not be limited through the use of brand name or equivalent descriptions, or proprietary specifications or standards, in solicitations, unless a justification for such specification is provided and approved in accordance with 10 U.S.C. 2304(f). The requirements of 10 U.S.C. 2304(f) are implemented in Federal Acquisition Regulation (FAR) sections 6.303 and 6.304, which address the content, format, and approval authorities for justifications for other than full and open competition. II. Discussion and Analysis Currently, FAR 6.302-1(c)(2) states that brand name or equal descriptions, and other purchase descriptions that permit prospective contractors to offer products other than those specifically referenced by brand-name, provide for full and open competition and do not require justifications and approvals to support their use. This rule proposes to amend DFARS 206.302-1 to add a new paragraph (c)(2) to advise contracting officers that, notwithstanding FAR 6.302-1(c)(2), a justification and approval described at FAR 6.303 is required when using brand name or equal descriptions. A new paragraph (S-70) is also added to provide a similar instruction for proprietary specifications or standards. FAR subpart 13.5 provides simplified procedures for certain commercial items. FAR 13.501(a) requires a justification and approval for sole source (including brand name) acquisitions. The content and approval requirements for these justifications are similar to those required under FAR 6.303, but cite to a different authority. This rule proposes to amend DFARS 213.501 to advise contracting officers that a justification and approval for brand name or equal descriptions or proprietary specifications or standards is required when using FAR subpart 13.5 simplified procedures for the acquisition of certain commercial items. In addition, FAR section 11.104 addresses requirements for the use of brand name or equal purchase descriptions. As such, this rule proposes to add DFARS section 211.104 to direct contracting officers to the new requirements at 206.302-1 and 213.501 to complete a justification and approval prior to using brand name or equal purchase descriptions. Similar direction for use of proprietary specifications and standards is also provided in new DFARS section 211.170. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items This rule does not propose to create any new DFARS clauses or amend any existing DFARS clauses. IV. 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. V. Executive Order 13771 This rule is not anticipated to be subject to E.O. 13771, because this rule is not a significant regulatory action 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 implementing changes to internal Government procedures. However, an initial regulatory flexibility analysis (IRFA) has been performed and is summarized as follows: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 888(a) of the National Defense Authorization Act for Fiscal Year 2017. Section 888(a) requires that competition in DoD contracts not be limited through the use of brand name or equivalent descriptions, or proprietary specifications or standards, in solicitations unless a justification for such specification is provided and approved in accordance with 10 U.S.C. 2304(f). The objective of this proposed rule is to ensure that contracting officers execute a justification and approval in accordance with FAR 6.302-1 when including brand name or equal descriptions, or proprietary specifications or standards in a solicitation. DoD does not expect this 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. The Federal Procurement Data System (FPDS) does not collect data on contracts awarded using brand name or equal descriptions or contracts that were competed and included proprietary specifications or standards. Currently, brand name or equal descriptions are procured through competitive procedures, but FPDS does not identify the subset of contracts that were awarded competitively using such descriptions. FPDS can provide the number of offers received in response to a solicitation. This subset can help DoD better identify the number of competitive requirements that may have used such descriptions, specifications, or standards, but only received one offer for various reasons. According to FPDS, there were 127,536 contracts and orders competed and awarded in FY 2017 that only received one offer. Of the 127,536 new awards, 76,179 (60%) of these actions were awarded to 9,823 unique small business entities. The proposed rule applies to all entities who do business with the Federal Government and is not expected to have a significant impact on these entities, regardless of business size. This proposed rule does not include any new reporting, recordkeeping, or other compliance requirements for small businesses. The proposed rule does not [[Page 54698]] duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternative approaches to the proposed rule that would meet the proposed objectives. DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2017-D040), in correspondence. 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 206, 211, and 213 Government procurement. Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System. Therefore, 48 CFR parts 206, 211, and 213 are proposed to be amended as follows: 0 1. The authority citation for 48 CFR parts 206, 211, and 213 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. PART 206--COMPETITION REQUIREMENTS 0 2. In section 206.302-1, paragraph (c) is added to read as follows: 206.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements. * * * * * (c) Application for brand-name descriptions. (2) Notwithstanding FAR 6.302-1(c)(2), in accordance with section 888(a) of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), the justification and approval addressed in FAR 6.303 is required in order to use brand name or equal descriptions. (S-70) Application for proprietary specifications or standards. In accordance with section 888(a) of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), the justification and approval addressed in FAR 6.303 is required in order to use proprietary specifications and standards. * * * * * PART 211--DESCRIBING AGENCY NEEDS 0 3. Section 211.104 is added to subpart 211.1 to read as follows: 211.104 Use of brand name or equal purchase descriptions. A justification and approval is required to use brand name or equal purchase descriptions. (1) See 206.302-1(c)(2) for justification requirements when using sealed bidding or negotiated acquisition procedures. (2) See 213.501(a)(ii) for justification requirement when using simplified procedures for certain commercial items. 0 4. Section 211.170 is added to subpart 211.1 to read as follows: 211.170 Use of proprietary specifications or standards. A justification and approval is required to use proprietary specifications and standards. (1) See 206.302-1(S-70) for justification requirements when using sealed bidding or negotiated acquisition procedures. (2) See 213.501(a)(ii) for justification requirements when using simplified procedures for certain commercial items. PART 213--SIMPLIFIED ACQUISITION PROCEDURES 0 5. Section 213.501 is amended by-- 0 a. Designating paragraph (a) as paragraph (i); and 0 b. Adding new paragraph (ii) to read as follows: 213.501 Special documentation requirements. * * * * * (ii) In accordance with section 888(a) of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), the justification and approval addressed in FAR 13.501(a) is required in order to use brand name or equal descriptions or proprietary specifications and standards. [FR Doc. 2018-23676 Filed 10-30-18; 8:45 am] BILLING CODE 5001-06-P
![54696 Federal Register / Vol. 83, No. 211 / Wednesday, October 31, 2018 / Proposed Rules
health consequences of exposure to IV. Statutory Authority Subpart WW—Washington
elevated levels of nitrogen dioxide); 75 The statutory authority for this
FR 35,520 (regarding the specific human ■ 4. In § 52.2497, add paragraph (d) to
proposed action is provided by sections read as follows:
health consequences of exposure to 110, 301 and 164 of the CAA as
elevated levels of sulfur dioxide). amended (42 U.S.C. 7410, 7601, and § 52.2497 Significant deterioration of air
7474) and 40 CFR part 52. quality.
I. Executive Order 13211: Actions That
Significantly Affect Energy Supply, * * * * *
List of Subjects
Distribution, or Use (d) The regulations at 40 CFR
40 CFR Part 49 49.10191 through 49.10220 contain the
This proposed action is not subject to Environmental protection, Federal Implementation Plan for the
Executive Order 13211, because it is not Administrative practice and procedure, Kalispel Indian Community of the
a significant regulatory action under Air pollution control, Incorporation by Kalispel Reservation, Washington. The
Executive Order 12866. reference, Indians, Intergovernmental regulation at 40 CFR 49.10198(b)
relations, Particulate matter, Reporting designates the original Kalispel
J. National Technology Transfer and Reservation, as established by Executive
Advancement Act and recordkeeping requirements.
Order No. 1904, signed by President
40 CFR Part 52 Woodrow Wilson on March 23, 1914, as
This proposed action does not involve
Environmental protection, Air a Class I area for purposes of prevention
technical standards. This action merely
pollution control, Incorporation by of significant deterioration of air quality.
proposes to redesignate the Kalispel
Reservation as a Class I area for the reference, Intergovernmental relations, [FR Doc. 2018–23474 Filed 10–30–18; 8:45 am]
purposes of the PSD permitting Lead, Nitrogen dioxide, Ozone, BILLING CODE 6560–50–P
requirements. Particulate matter, Reporting and
recordkeeping requirements, Sulfur
K. Executive Order 12898: Federal oxides, Volatile organic compounds. DEPARTMENT OF DEFENSE
Actions To Address Environmental Dated: October 17, 2018.
Justice in Minority Populations and Defense Acquisition Regulations
Chris Hladick,
Low-Income Populations System
Regional Administrator, Region 10.
The EPA believes that this proposed For the reasons stated in the 48 CFR Parts 206, 211, and 213
action does not have disproportionately preamble, 40 CFR parts 49 and 52 are
high and adverse human health or [Docket DARS–2018–0052]
proposed to be amended as follows:
environmental effects on minority RIN 0750–AJ50
populations, low-income populations PART 49—INDIAN COUNTRY: AIR
and/or indigenous peoples, as specified QUALITY PLANNING AND Defense Federal Acquisition
in Executive Order 12898 (59 FR 7629, MANAGEMENT Regulation Supplement: Brand Name
February 16, 1994). Prior to this or Equal (DFARS Case 2017–D040)
proposal, the EPA reviewed population ■ 1. The authority citation for part 49
continues to read as follows: AGENCY: Defense Acquisition
centers within and around the Kalispel Regulations System, Department of
Indian Reservation to identify areas Authority: 42 U.S.C. 7401, et seq. Defense (DoD).
with environmental justice concerns.
Subpart M—Implementation Plans for ACTION: Proposed rule.
The results of this review are included
in the docket for this proposed action. Tribes—Region X
SUMMARY: DoD is proposing to amend
Redesignating the Kalispel Indian ■ 2. Revise § 49.10198 to read as the Defense Federal Acquisition
Reservation will not have an adverse follows: Regulation Supplement (DFARS) to
human health or environmental effect implement a section of the National
§ 49.10198 Permits to construct. Defense Authorization Act for Fiscal
on residents within the Reservation or
in the surrounding community. On the (a) Permits to construct are required Year 2017 that requires the use of brand
contrary, by lowering the applicable for new major stationary sources and name or equivalent descriptions or
PSD increments, the redesignation will major modifications to existing proprietary specifications or standards
be more protective of air quality. The stationary sources pursuant to 40 CFR in solicitations to be justified and
following pollutants are subject to the 52.21. approved.
(b) In accordance with section 164 of
increment requirement: Fine Particulate DATES: Comments on the proposed rule
the Clean Air Act and the provisions of
Matter (PM2.5), Coarse Particulate Matter should be submitted in writing to the
40 CFR 52.21(g), the original Kalispel
(PM10), Sulfur Dioxide (SO2), and address shown below on or before
Reservation, as established by Executive
Nitrogen Dioxide (NO2). Exposure to December 31, 2018, to be considered in
Order No. 1904, signed by President
these pollutants is known to have a the formation of a final rule.
Woodrow Wilson on March 23, 1914, is
causal relationship with adverse health designated as a Class I area for the ADDRESSES: Submit comments
effects, such as premature mortality purposes of prevention of significant identified by DFARS Case 2017–D040,
(PM2.5, PM10, SO2), exacerbation of deterioration of air quality. using any of the following methods:
amozie on DSK3GDR082PROD with PROPOSALS1
asthma (NO2 and SO2), and other Æ Federal eRulemaking Portal: http://
respiratory effects (NO2 and SO2). See PART 52—APPROVAL AND www.regulations.gov. Search for
78 FR 3086, 82 FR 34,792, and 75 FR PROMULGATION OF ‘‘DFARS Case 2017–D040.’’ Select
35,520. Therefore, a reduction of the IMPLEMENTATION PLANS ‘‘Comment Now’’ and follow the
allowable emissions of these pollutants instructions provided to submit a
in this area lowers the risk to the ■ 3. The authority citation for part 52 comment. Please include ‘‘DFARS Case
surrounding communities of adverse continues to read as follows: 2017–D040’’ on any attached
health effects. Authority: 42 U.S.C. 7401 et seq. documents.
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![54698 Federal Register / Vol. 83, No. 211 / Wednesday, October 31, 2018 / Proposed Rules
duplicate, overlap, or conflict with any proprietary specifications and DEPARTMENT OF DEFENSE
other Federal rules. There are no known standards.
significant alternative approaches to the * * * * * Defense Acquisition Regulations
proposed rule that would meet the System
proposed objectives. PART 211—DESCRIBING AGENCY
DoD invites comments from small NEEDS 48 CFR Parts 206, 215, 234, and 235
business concerns and other interested [Docket DARS–2018–0053]
parties on the expected impact of this ■ 3. Section 211.104 is added to subpart
rule on small entities. RIN 0750–AJ83
211.1 to read as follows:
DoD will also consider comments Defense Federal Acquisition
from small entities concerning the 211.104 Use of brand name or equal
purchase descriptions. Regulation Supplement: Amendments
existing regulations in subparts affected Related to General Solicitations
by this rule in accordance with 5 U.S.C. A justification and approval is (DFARS Case 2018–D021)
610. Interested parties must submit such required to use brand name or equal
comments separately and should cite 5 purchase descriptions. AGENCY: Defense Acquisition
U.S.C. 610 (DFARS Case 2017–D040), in Regulations System, Department of
(1) See 206.302–1(c)(2) for Defense (DoD).
correspondence.
justification requirements when using
ACTION: Proposed rule.
VII. Paperwork Reduction Act sealed bidding or negotiated acquisition
The rule does not contain any procedures. SUMMARY: DoD is proposing to amend
information collection requirements that (2) See 213.501(a)(ii) for justification the Defense Federal Acquisition
require the approval of the Office of requirement when using simplified Regulation Supplement (DFARS) to
Management and Budget under the procedures for certain commercial implement sections of the National
Paperwork Reduction Act (44 U.S.C. items. Defense Authorization Act for Fiscal
chapter 35). Year 2018 by expanding the definition
■ 4. Section 211.170 is added to subpart of other competitive procedures, and
List of Subjects in 48 CFR Parts 206, 211.1 to read as follows: extending the term and increasing the
211, and 213 dollar value under the contract
211.170 Use of proprietary specifications
Government procurement. or standards. authority for advanced development of
initial or additional prototype units.
Jennifer Lee Hawes, A justification and approval is DATES: Comments on the proposed rule
Regulatory Control Officer, Defense required to use proprietary should be submitted in writing to the
Acquisition Regulations System. specifications and standards. address shown below on or before
Therefore, 48 CFR parts 206, 211, and (1) See 206.302–1(S–70) for December 31, 2018, to be considered in
213 are proposed to be amended as justification requirements when using the formation of a final rule.
follows: sealed bidding or negotiated acquisition ADDRESSES: Submit comments
■ 1. The authority citation for 48 CFR procedures. identified by DFARS Case 2018–D021,
parts 206, 211, and 213 continues to (2) See 213.501(a)(ii) for justification using any of the following methods:
read as follows: Æ Federal eRulemaking Portal: http://
requirements when using simplified
www.regulations.gov. Search for
Authority: 41 U.S.C. 1303 and 48 CFR procedures for certain commercial
‘‘DFARS Case 2018–D021.’’ Select
chapter 1. items. ‘‘Comment Now’’ and follow the
PART 206—COMPETITION PART 213—SIMPLIFIED ACQUISITION instructions provided to submit a
REQUIREMENTS comment. Please include ‘‘DFARS Case
PROCEDURES
2018–D021’’ on any attached
■ 2. In section 206.302–1, paragraph (c) ■ 5. Section 213.501 is amended by— documents.
is added to read as follows: Email: osd.dfars@mail.mil. Include
■ a. Designating paragraph (a) as DFARS Case 2018–D021 in the subject
206.302–1 Only one responsible source paragraph (i); and line of the message.
and no other supplies or services will Æ Fax: 571–372–6094.
■ b. Adding new paragraph (ii) to read
satisfy agency requirements. Æ Mail: Defense Acquisition
as follows:
* * * * * Regulations System, Attn: Ms. Heather
(c) Application for brand-name 213.501 Special documentation Kitchens, OUSD (A&S) DPC/DARS,
descriptions. (2) Notwithstanding FAR requirements. Room 3B941, 3060 Defense Pentagon,
6.302–1(c)(2), in accordance with * * * * * Washington, DC 20301–3060.
section 888(a) of the National Defense Comments received generally will be
(ii) In accordance with section 888(a)
Authorization Act for Fiscal Year 2017 posted without change to http://
of the National Defense Authorization
(Pub. L. 114–328), the justification and www.regulations.gov, including any
Act for Fiscal Year 2017 (Pub. L. 114– personal information provided. To
approval addressed in FAR 6.303 is
required in order to use brand name or 328), the justification and approval confirm receipt of your comment(s),
amozie on DSK3GDR082PROD with PROPOSALS1
equal descriptions. addressed in FAR 13.501(a) is required please check www.regulations.gov,
in order to use brand name or equal approximately two to three days after
(S–70) Application for proprietary
specifications or standards. In descriptions or proprietary submission to verify posting (except
accordance with section 888(a) of the specifications and standards. allow 30 days for posting of comments
[FR Doc. 2018–23676 Filed 10–30–18; 8:45 am] submitted by mail).
National Defense Authorization Act for
Fiscal Year 2017 (Pub. L. 114–328), the BILLING CODE 5001–06–P FOR FURTHER INFORMATION CONTACT: Ms.
justification and approval addressed in Heather Kitchens, telephone 571–372–
FAR 6.303 is required in order to use 6104.
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Document Created: 2018-10-31 00:32:47
Document Modified: 2018-10-31 00:32:47
| 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 54696 | |
| RIN Number | 0750-AJ50 | |
| CFR Citation | 48
CFR
206 48 CFR 211 48 CFR 213 |
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