83 FR 54698 - Defense Federal Acquisition Regulation Supplement: Amendments Related to General Solicitations (DFARS Case 2018-D021)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

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

Page Range		54698-54700
FR Document		2018-23677

DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement sections of the National Defense Authorization Act for Fiscal Year 2018 by expanding the definition of other competitive procedures, and extending the term and increasing the dollar value under the contract authority for advanced development of initial or additional prototype units.

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

[Federal Register Volume 83, Number 211 (Wednesday, October 31, 2018)]
[Proposed Rules]
[Pages 54698-54700]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-23677]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 206, 215, 234, and 235

[Docket DARS-2018-0053]
RIN 0750-AJ83

Defense Federal Acquisition Regulation Supplement: Amendments
Related to General Solicitations (DFARS Case 2018-D021)

AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement sections of the National
Defense Authorization Act for Fiscal Year 2018 by expanding the
definition of other competitive procedures, and extending the term and
increasing the dollar value under the contract authority for advanced
development of initial or additional prototype units.

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 2018-D021, using
any of the following methods:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Search for ``DFARS Case 2018-D021.'' Select ``Comment Now'' and follow
the instructions provided to submit a comment. Please include ``DFARS
Case 2018-D021'' on any attached documents.
Email: osd.dfars@mail.mil. Include DFARS Case 2018-D021 in the
subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms.
Heather Kitchens, 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. Heather Kitchens, telephone 571-
372-6104.

[[Page 54699]]

SUPPLEMENTARY INFORMATION:

I. Background

DoD is proposing to revise the DFARS to implement sections 221 and
861 of the National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 2018 (Pub. L. 115-91).
Section 221 amends 10 U.S.C. 2302(2)(B) to allow for an expanded
application of other competitive procedures by replacing the words
``basic research'' with ``science and technology''. Competitive
procedures are defined in 10 U.S.C. 2302(2) as ``. . . procedures under
which the head of an agency enters into a contract pursuant to full and
open competition.'' Changing the words ``basic research'' to ``science
and technology'' expands the authority to use other competitive
procedures for ``advanced technology development'' and ``advanced
component development and prototypes'' research proposals, in addition
to the previously authorized ``basic research'' and ``applied
research'' proposals. One of the solicitation methods for research and
development proposals, a broad agency announcement (BAA), is defined in
the Federal Acquisition Regulation (FAR) as ``a general announcement of
an agency's research interest including criteria for selecting
proposals and soliciting the participation of all offerors capable of
satisfying the Government's needs.'' Section 221 permits the use of
BAAs for competitive selection of science and technology proposals by
authorizing the use of the competitive procedures at 10 U.S.C.
2302(2)(B) that result from a general solicitation and peer or
scientific review of such proposals--a key element of the BAA process.
Section 861 amends 10 U.S.C. 2302e to allow for an extended term
limit and increased dollar threshold under the contract authority for
advanced development of initial or additional prototype units awarded
from a competitive selection, as specified in 10 U.S.C. 2302(2)(B). The
statutory term limit extends from 12 months to 2 years and the dollar
threshold increases from $20 million to $100 million in fiscal year
2017 constant dollars (10 U.S.C. 2302e). Section 861 also amends 10
U.S.C. 2302e to repeal the obsolete authority implemented by section
819 of the NDAA for FY 2010 (Pub. L. 111-84), thereby eliminating the
expiration date of the authority.

II. Discussion and Analysis

The proposed DFARS changes for the other competitive procedures
authorized by section 221 and implemented at 10 U.S.C. 2302(2)(B) are
as follows:
DFARS section 206.102, Use of Competitive Procedures, is
added with a statement at paragraph (d)(2) that, for DoD, the
competitive selection of science and technology proposals resulting
from a broad agency announcement with peer or scientific review, as
described in 235.016(a), satisfies the requirement for full and open
competition. This DFARS section is added, notwithstanding FAR
6.102(d)(2), which limits other competitive procedures to basic and
applied research proposals.
DFARS 215.371-4(a)(4) is revised to provide an only-one-
offer exception for the acquisition of science and technology, as
described in DFARS 235.016(a), instead of basic or applied research or
development, as specified in FAR 35.016(a).
DFARS 235.006-71 is added to direct contracting officers
who are conducting acquisitions for research and development in
accordance with FAR part 35 to DFARS 206.102(d)(2) regarding
competitive procedures for science and technology proposals; and
DFARS section 235.016, Broad Agency Announcement, is
revised to provide that broad agency announcements with peer or
scientific review may be used for science and technology proposals,
including four categories of science and technology proposals and their
corresponding budget activity codes.
The proposed changes to DFARS 234.005-1, Competition, for the
contract authority for advanced development of initial or additional
prototype units, authorized by section 861 and implemented at 10 U.S.C.
2302e, are as follows:
The term ``general solicitation'' is replaced with ``broad
agency announcement.''
The term limit is changed from 12 months to 2 years.
The dollar threshold is increased from $20 million to $100
million in fiscal year 2017 constant dollars.
The expiration date of September 30, 2019, is deleted.
In summary, this proposed rule expands the application of other
competitive procedures to include the competitive selection of science
and technology proposals beyond ``basic research'' proposals. This
proposed rule also expands the contract authority for advanced
development of initial or additional prototype units. These procedures
are internal to the Government with minimal impact to the public.

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 provisions or clauses
or impact any existing provisions or clauses.

IV. Executive Orders 12866 and 13563

Executive Order (E.O.s) 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. 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 is not a
major rule under 5 U.S.C. 804.

V. Executive Order 13771

This rule is not anticipated to be an E.O. 13771 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. This
rule impact internal Government procedures by expanding the use of
other competitive procedures to include the competitive selection of
science and technology proposals and expands the contract authority for
advanced development of initial or additional prototype units. However,
an initial regulatory flexibility analysis has been performed and is
summarized as follows:
This rule proposes to amend the DFARS to implement sections 221 and
861 of the National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 2018.
Section 221 expands the definition of ``competitive procedures'' at
10 U.S.C. 2302(2)(B) by removing the term ``basic research'' and adding
``science and technology'' in its place. Section 861 implements a
statutory modification to 10 U.S.C. 2302e to extend the term limit and
dollar threshold for the contract authority for advanced development of

[[Page 54700]]

initial or additional prototype units from 12 months to 2 years and
from $20 million to $100 million in fiscal year 2017 constant dollars
(10 U.S.C. 2302e), respectively. The modification also repeals the
obsolete authority of section 819 of the NDAA for FY 2010 (Pub. L. 111-
84), thereby eliminating the expiration date of September 30, 2019, for
the contract authority for advanced development of initial or
additional prototype units.
The objective of this rule is to implement sections 221 and 861 to
establish broad agency announcements as a competitive procedure that
may be used to select science and technology proposals and to expand
the term limit and dollar threshold for the contract authority for
advanced development of initial or additional prototype units.
In FY 2017, DoD awarded 1,853 contracts for research and
development, excluding Small Business Innovation Research (SBIR) and
Small Technology Transfer Research (STTR) program requirements.
Approximately 53% of those new contract actions were awarded to 1,005
of unique small business and nontraditional DoD entities. There were
2,858 new contract awards for SBIR and STTR program requirements for
DoD. Approximately 66% of those new contract actions were awarded to
1,891 of unique small business and nontraditional DoD entities.
This proposed rule does not include any new reporting or
recordkeeping requirements for small entities.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no known significant alternative approaches to the
proposed rule that would meet the requirements of the applicable
statute.
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 2018-D021), 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, 215, 234 and 235

Government procurement.

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

Therefore, 48 CFR parts 206, 215, 234, and 235 are proposed to be
amended as follows:

0
1. The authority citation for 48 CFR parts 206, 215, 234, and 235
continues to read as follows:

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

PART 206--COMPETITION REQUIREMENTS

0
2. Subpart 206.1 is added to read as follows:

Subpart 206.1--Full and Open Competition

206.102 Use of competitive procedures.

(d) Other competitive procedures. (2) In lieu of FAR 6.102(d)(2),
competitive selection of science and technology proposals resulting
from a broad agency announcement with peer or scientific review, as
described in 235.016(a) (10 U.S.C. 2302(2)(B)).

PART 215--CONTRACTING BY NEGOTIATION

0
3. In section 215.371-4, paragraph (a)(4) is revised to read as
follows:

215.371-4 Exceptions.

(a) * * *
(4) Acquisitions of science and technology, as specified in
235.016(a); or
* * * * *

PART 234--MAJOR SYSTEM ACQUISITION

0
4. Section 234.005-1 is amended by--
0
a. Removing paragraph (2);
0
b. Redesignating paragraph (1) as introductory text;
0
c. In the newly redesignated introductory text, removing ``general
solicitation'' and adding ``broad agency announcement'' in its place;
0
d. Redesignating paragraphs (i), (ii), and (iii) as paragraphs (1),
(2), and (3), respectively;
0
e. In the newly redesignated paragraph (2), removing ``12 months'' and
adding ``2 years'' in its place; and
0
f. Revising the newly redesignated paragraph (3) to read as follows:

234.005-1 Competition.

* * * * *
(3) The dollar value of the work to be performed pursuant to the
contract line item or contract option shall not exceed $100 million in
fiscal year 2017 constant dollars. (10 U.S.C. 2302e).

PART 235--RESEARCH AND DEVELOPMENT CONTRACTING

0
5. Section 235.006-71 is amended by--
0
a. Designating the text as paragraph (b); and
0
b. Adding a new paragraph (a) to read as follows:

235.006-71 Competition.

(a) Use of a broad agency announcement with peer or scientific
review for the award of science and technology proposals in accordance
with 235.016(a) fulfills the requirement for full and open competition
(see 206.102(d)(2)).
* * * * *
0
6. Section 235.016 is added to read as follows:

235.016 Broad agency announcement.

(a) General. A broad agency announcement with peer or scientific
review may be used for the award of science and technology proposals.
Science and technology proposals include proposals for the following:
(i) Basic research (budget activity 6.1).
(ii) Applied research (budget activity 6.2).
(iii) Advanced technology development (budget activity 6.3).
(iv) Advanced component development and prototypes (budget activity
6.4).

[FR Doc. 2018-23677 Filed 10-30-18; 8:45 am]
BILLING CODE 5001-06-P

Federal Register / Vol. 83, No. 211 / Wednesday, October 31, 2018 / Proposed Rules 54699

SUPPLEMENTARY INFORMATION: • DFARS section 206.102, Use of III. Applicability to Contracts at or
Competitive Procedures, is added with Below the Simplified Acquisition
I. Background
a statement at paragraph (d)(2) that, for Threshold and for Commercial Items,
DoD is proposing to revise the DFARS DoD, the competitive selection of Including Commercially Available Off-
to implement sections 221 and 861 of science and technology proposals the-Shelf Items
the National Defense Authorization Act resulting from a broad agency This rule does not propose to create
(NDAA) for Fiscal Year (FY) 2018 (Pub. announcement with peer or scientific any new provisions or clauses or impact
L. 115–91). review, as described in 235.016(a),
Section 221 amends 10 U.S.C. any existing provisions or clauses.
satisfies the requirement for full and
2302(2)(B) to allow for an expanded open competition. This DFARS section IV. Executive Orders 12866 and 13563
application of other competitive is added, notwithstanding FAR Executive Order (E.O.s) 12866,
procedures by replacing the words 6.102(d)(2), which limits other Regulatory Planning and Review; and
‘‘basic research’’ with ‘‘science and competitive procedures to basic and E.O. 13563, Improving Regulation and
technology’’. Competitive procedures applied research proposals. Regulatory Review, direct agencies to
are defined in 10 U.S.C. 2302(2) as ‘‘. . .
procedures under which the head of an • DFARS 215.371–4(a)(4) is revised to assess all costs and benefits of available
provide an only-one-offer exception for regulatory alternatives and, if regulation
agency enters into a contract pursuant to is necessary, to select regulatory
full and open competition.’’ Changing the acquisition of science and
technology, as described in DFARS approaches that maximize net benefits
the words ‘‘basic research’’ to ‘‘science (including potential economic,
and technology’’ expands the authority 235.016(a), instead of basic or applied
research or development, as specified in environmental, public health and safety
to use other competitive procedures for effects, distributive impacts, and
‘‘advanced technology development’’ FAR 35.016(a).
equity). E.O. 13563 emphasizes the
and ‘‘advanced component development • DFARS 235.006–71 is added to importance of quantifying both costs
and prototypes’’ research proposals, in direct contracting officers who are and benefits, of reducing costs, of
addition to the previously authorized conducting acquisitions for research and harmonizing rules, and of promoting
‘‘basic research’’ and ‘‘applied research’’ development in accordance with FAR flexibility. This is not a significant
proposals. One of the solicitation part 35 to DFARS 206.102(d)(2) regulatory action and, therefore, was not
methods for research and development regarding competitive procedures for subject to review under section 6(b) of
proposals, a broad agency science and technology proposals; and E.O. 12866, Regulatory Planning and
announcement (BAA), is defined in the • DFARS section 235.016, Broad Review, dated September 30, 1993. This
Federal Acquisition Regulation (FAR) as Agency Announcement, is revised to is not a major rule under 5 U.S.C. 804.
‘‘a general announcement of an agency’s provide that broad agency
research interest including criteria for announcements with peer or scientific V. Executive Order 13771
selecting proposals and soliciting the review may be used for science and This rule is not anticipated to be an
participation of all offerors capable of technology proposals, including four E.O. 13771 regulatory action, because
satisfying the Government’s needs.’’ categories of science and technology this rule is not significant under E.O.
Section 221 permits the use of BAAs for proposals and their corresponding 12866.
competitive selection of science and budget activity codes.
technology proposals by authorizing the VI. Regulatory Flexibility Act
The proposed changes to DFARS DoD does not expect this proposed
use of the competitive procedures at 10
234.005–1, Competition, for the contract rule to have a significant economic
U.S.C. 2302(2)(B) that result from a
authority for advanced development of impact on a substantial number of small
general solicitation and peer or
initial or additional prototype units, entities within the meaning of the
scientific review of such proposals—a
authorized by section 861 and Regulatory Flexibility Act, 5 U.S.C. 601,
key element of the BAA process.
Section 861 amends 10 U.S.C. 2302e implemented at 10 U.S.C. 2302e, are as et seq. This rule impact internal
to allow for an extended term limit and follows: Government procedures by expanding
increased dollar threshold under the • The term ‘‘general solicitation’’ is the use of other competitive procedures
contract authority for advanced replaced with ‘‘broad agency to include the competitive selection of
development of initial or additional announcement.’’ science and technology proposals and
prototype units awarded from a • The term limit is changed from 12 expands the contract authority for
competitive selection, as specified in 10 months to 2 years. advanced development of initial or
U.S.C. 2302(2)(B). The statutory term • The dollar threshold is increased additional prototype units. However, an
limit extends from 12 months to 2 years from $20 million to $100 million in initial regulatory flexibility analysis has
and the dollar threshold increases from fiscal year 2017 constant dollars. been performed and is summarized as
$20 million to $100 million in fiscal follows:
year 2017 constant dollars (10 U.S.C. • The expiration date of September This rule proposes to amend the
2302e). Section 861 also amends 10 30, 2019, is deleted. DFARS to implement sections 221 and
U.S.C. 2302e to repeal the obsolete In summary, this proposed rule 861 of the National Defense
authority implemented by section 819 of expands the application of other Authorization Act (NDAA) for Fiscal
the NDAA for FY 2010 (Pub. L. 111–84), competitive procedures to include the Year (FY) 2018.
thereby eliminating the expiration date competitive selection of science and Section 221 expands the definition of
amozie on DSK3GDR082PROD with PROPOSALS1

of the authority. technology proposals beyond ‘‘basic ‘‘competitive procedures’’ at 10 U.S.C.
research’’ proposals. This proposed rule 2302(2)(B) by removing the term ‘‘basic
II. Discussion and Analysis also expands the contract authority for research’’ and adding ‘‘science and
The proposed DFARS changes for the advanced development of initial or technology’’ in its place. Section 861
other competitive procedures additional prototype units. These implements a statutory modification to
authorized by section 221 and procedures are internal to the 10 U.S.C. 2302e to extend the term limit
implemented at 10 U.S.C. 2302(2)(B) are Government with minimal impact to the and dollar threshold for the contract
as follows: public. authority for advanced development of

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Document Created: 2018-10-31 00:33:08
Document Modified: 2018-10-31 00:33:08

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. Heather Kitchens, telephone 571- 372-6104.
FR Citation		83 FR 54698
RIN Number		0750-AJ83
CFR Citation		48 CFR 206 48 CFR 215 48 CFR 234 48 CFR 235

83 FR 54698 - Defense Federal Acquisition Regulation Supplement: Amendments Related to General Solicitations (DFARS Case 2018-D021)

DEPARTMENT OF DEFENSEDefense Acquisition Regulations System

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

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System