83 FR 62498 - Defense Federal Acquisition Regulation Supplement: Sunset of Provision Relating to the Procurement of Certain Goods (DFARS Case 2018-D007)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 83, Issue 233 (December 4, 2018)
Defense Acquisition Regulations System
Federal Register Volume 83, Issue 233 (December 4, 2018)
| Page Range | 62498-62501 | |
| FR Document | 2018-26305 |
[Federal Register Volume 83, Number 233 (Tuesday, December 4, 2018)] [Rules and Regulations] [Pages 62498-62501] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-26305] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 212, 225, and 252 [Docket DARS-2018-0028] RIN 0750-AJ71 Defense Federal Acquisition Regulation Supplement: Sunset of Provision Relating to the Procurement of Certain Goods (DFARS Case 2018-D007) 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 implement a section of the National Defense Authorization Act for Fiscal Year 2018 that repeals the Fiscal Year 2015 restrictions on the source of photovoltaic devices in contracts awarded by DoD that result in DoD ownership of photovoltaic devices by means other than DoD purchase of the photovoltaic devices as end products. DATES: Effective December 5, 2018. FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571- 372-6106. SUPPLEMENTARY INFORMATION: I. Background DoD published a proposed rule in the Federal Register at 83 FR 42822 on August 24, 2018, to implement section 813(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91). Section 813(b) repeals section 858 of the NDAA for FY 2015 (Pub. L. 113-291), but does not repeal section 846 of the NDAA for FY 2011 (Pub. L. 111-383), with regard to sources of photovoltaic devises purchased by contractors that become property of DoD. There were no public comments submitted in response to the proposed rule. There are no changes from the proposed rule in the final rule. II. 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 affect the applicability of DFARS clause 252.225-7017, Photovoltaic Devices, and DFARS provision 252.225-7018, Photovoltaic Devices--Certification. A determination was signed by the Director, Defense Procurement and Acquisition Policy, on October 13, 2011, to not apply the requirements of section 846 of the NDAA for FY 2011 to contracts at or below the simplified acquisition threshold, but to apply the rule to contracts for the acquisition of commercial items, including commercially available off-the-shelf items. III. 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, [[Page 62499]] 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. IV. Executive Order 13771 This rule is not an E.O. 13771 regulatory action, because this final rule is not significant under E.O. 12866. V. Regulatory Flexibility Act A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows: This rule implements section 813(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91), which repealed of section 858 of the National Defense Authorization Act (NDAA) for FY 2015 (Pub. L. 113-291), while retaining the requirements of section 846 of the NDAA for FY 2011 (Pub. L. 111-383), with regard to sources of photovoltaic devices purchased by contractors that become the property of DoD. The objective of this rule is to revert to the regulations on photovoltaic devices that were in effect prior to superimposing the additional regulations required by section 858 on November 20, 2015 (80 FR 72599). By restoring the tie to the Buy American statute, this rule reinstates the Buy American exceptions for acquisitions of photovoltaic devices below the micro-purchase threshold, nonavailability, unreasonable cost, and public interest, including the DoD class determinations that exempt U.S.-made and qualifying country photovoltaic devices from the requirements of the Buy American statute, as well as the Governmentwide determination that removes the component test for commercially available off-the-shelf items. No significant issues were raised by the public comments in response to the initial regulatory flexibility analysis. No public comments were received. This rule generally applies at the prime contract level to other than small entities. When purchasing renewable power generated via onsite photovoltaic devices, DoD can either purchase the photovoltaic devices and thereby own, operate, and maintain the devices for their full economic life (already covered in DFARS part 225 under standard Buy American statute/Trade Agreements regulations) or, for example, may do some variation of the following: a. Enter into an energy savings performance contract, which is a contracting method in which the contractor provides capital to facilitate energy conservation measures and maintains them in exchange for a portion of the energy savings generated. Under this arrangement, the Government would take title to the devices during contract performance or at the conclusion of the contract. For example, DoD uses either the master indefinite delivery-indefinite quantity contract of the Department of Energy or the Army Corps of Engineers and awards task orders off one of those contracts. Generally, the same approved contractors are on each contract. Of the approved contractors, all but one are large businesses. There are subcontracting goals that each contractor has to meet, but the ultimate task order award is most often made to a large business. b. Enter into a power purchase agreement, also referred to as a utility service contract, for the purchase of the power output of photovoltaic devices that are installed on DoD land or buildings, but owned, operated, and maintained by the contractor. At the conclusion of the contract, DoD would either require the contractor to dismantle and remove the photovoltaic equipment or abandon the equipment in place. Prime contractors for this type of contract would generally be large businesses, based on the capital costs involved in these projects. However, many developers tend to subcontract out the majority of the work to smaller companies. There are approximately 80 manufacturers of photovoltaic devices. We do not currently have data available on whether any of the manufacturers of photovoltaic devices are small entities, because the Federal Procurement Data System does not collect such data on subcontractors. There are no new reporting burdens under this rule. In fact, there is a de minimis reduction in burden, because no certification will be required if the value of the photovoltaic devices does not exceed the micro-purchase threshold, and identification of country of origin will no longer be required if the photovoltaic devices are domestic or U.S.- made. Furthermore, since the prime contractors subject to this rule are other than small businesses, the existing reporting requirements do not impact small entities. DoD did not identify any significant alternatives that meet the requirements of the statute and would have less impact on small entities. The overall effect of this rule is deregulatory and it does not have significant impact on small entities. VI. Paperwork Reduction Act The rule contains 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); however, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 0704- 0229, entitled ``Defense Federal Acquisition Regulation Supplement (DFARS) Part 225, Foreign Acquisition, and related clauses at DFARS 252.225.'' List of Subjects in 48 CFR Parts 212, 225, and 252 Government procurement. Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System. Therefore, 48 CFR parts 212, 225, and 252 are amended as follows: 0 1. The authority citation for 48 CFR parts 212, 225, and 252 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 chapter 1. PART 212--ACQUISITION OF COMMERCIAL ITEMS 0 2. Amend section 212.301 by revising paragraphs (f)(ix)(J) and (K) to read as follows: 212.301 Solicitation provisions and contract clauses for the acquisition of commercial items. * * * * * (f) * * * (ix) * * * (J) Use the clause at 252.225-7017, Photovoltaic Devices, as prescribed in 225.7017-4(a), to comply with section 846 of Public Law 111-383. (K) Use the provision at 252.225-7018, Photovoltaic Devices-- Certificate, as prescribed in 225.7017-4(b), to comply with section 846 of Public Law 111-383. * * * * * PART 225--FOREIGN ACQUISITION 0 3. Amend section 225.7017-1 by revising the definitions of ``covered contract'' and ``domestic photovoltaic device'' to read as follows: [[Page 62500]] 225.7017-1 Definitions. * * * * * Covered contract means an energy savings performance contract, a utility services contract, or a private housing contract awarded by DoD, to be performed in the United States, if such contract results in DoD ownership of photovoltaic devices, by means other than DoD purchase as end products. DoD is deemed to own a photovoltaic device if the device is-- (1) Installed in the United States on DoD property or in a facility owned by DoD; and (2) Reserved for the exclusive use of DoD in the United States for the full economic life of the device. * * * * * Domestic photovoltaic device means a photovoltaic device that is manufactured in the United States. * * * * * 0 4. Revise section 225.7017-2 to read as follows: 225.7017-2 Restriction. In accordance with section 846 of the National Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111-383), photovoltaic devices provided under any covered contract shall comply with 41 U.S.C. chapter 83, Buy American, subject to the exceptions to that statute provided in the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.). 0 5. Revise section 225.7017-3 to read as follows: 225.7017-3 Exceptions. DoD requires the contractor to utilize domestic photovoltaic devices in covered contracts that exceed the simplified acquisition threshold, with the following exceptions: (a) Qualifying country. Qualifying country photovoltaic devices may be utilized in any covered contract, because 225.103(a)(i)(A) provides an exception to the Buy American statute for products of qualifying countries, as defined in 225.003. (b) Buy American--unreasonable cost. For a covered contract that utilizes photovoltaic devices valued at less than $180,000, the exception for unreasonable cost may apply (see FAR 25.103(c). If the cost of a foreign photovoltaic device plus 50 percent is less than the cost of a domestic photovoltaic device, then the foreign photovoltaic device may be utilized. (c) Trade agreements--(1) Free Trade Agreements. For a covered contract that utilizes photovoltaic devices valued at $25,000 or more, photovoltaic devices may be utilized from a country covered under the acquisition by a Free Trade Agreement, depending upon dollar threshold (see FAR subpart 25.4). (2) World Trade Organization--Government Procurement Agreement. For covered contracts that utilize photovoltaic devices that are valued at $180,000 or more, only U.S.-made photovoltaic devices, designated country photovoltaic devices, or qualifying country photovoltaic devices may be utilized. 225.7017-4. [Removed] 0 6. Remove section 225.7017-4. 225.7017-5 [Redesignated as 225.7017-4] 0 7. Redesignate section 225.7017-5 as 225.7017-4 and in the newly redesignated section 225.7017-4, revise paragraph (a)(1) to read as follows: 225.7017-4 Solicitation provision and contract clause. (a)(1) Use the clause at 252.225-7017, Photovoltaic Devices, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a contract expected to exceed the simplified acquisition threshold that may be a covered contract, i.e., an energy savings performance contract, a utility service contract, or a private housing contract awarded by DoD, if such contract will result in DoD ownership of photovoltaic devices, by means other than DoD purchase as end products. * * * * * PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 8. Amend section 252.225-7017 by-- 0 a. In the introductory text, removing ``225.7017-5(a)'' and adding ``225.7017-4(a)'' in its place; 0 b. Removing the clause date ``(JAN 2018)'' and adding ``(DEC 2018)'' in its place; 0 c. In paragraph (a)-- 0 i. Removing subparagraph designations ``(i)'' and ``(ii)'' and adding ``(1)'' and (2)'' in their places wherever they appear; 0 ii. Removing subparagraph designations ``(iii)'' and ``(iv)'' and adding ``(3)'' and ``(4)'' in their places wherever they appear; 0 iii. Revising the definition of ``domestic photovoltaic device''; 0 d. In paragraph (b), removing ``858 of the National Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291)'' and adding ``846 of the National Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111-383)'' in its place; and 0 e. In paragraph (c)-- 0 i. Revising paragraph (c)(1); 0 ii. In paragraph (c)(2), removing ``photovoltaic device as specified, or,'' and adding ``photovoltaic device, or,'' in its place; and 0 iii. Revising paragraphs (c)(3), (4), and (5). The revisions read as follows: 252.225-7017 Photovoltaic Devices. (a) * * * Domestic photovoltaic device means a photovoltaic device that is manufactured in the United States. * * * * * (c) * * * (1) More than the micro-purchase threshold but less than $25,000, then the Contractor shall utilize only domestic photovoltaic devices unless, in its offer, it specified utilization of qualifying country or other foreign photovoltaic devices in paragraph (d)(2) of the Photovoltaic Devices--Certificate provision of the solicitation. * * * * * (3) $80,317 or more but less than $100,000, then the Contractor shall utilize under this contract only domestic photovoltaic devices, unless, in its offer, it specified utilization of Free Trade Agreement country photovoltaic devices (other than Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic devices), qualifying country photovoltaic devices, or other foreign photovoltaic devices in paragraph (d)(4) of the Photovoltaic Devices--Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device, then the Contractor shall utilize a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device; or, at the Contractor's option, a domestic photovoltaic device; (4) $100,000 or more but less than $180,000, then the Contractor shall utilize under this contract only domestic photovoltaic devices, unless, in its offer it specified utilization of Free Trade Agreement country photovoltaic devices (other than Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic devices), qualifying country photovoltaic devices, or other foreign photovoltaic devices in paragraph (d)(5) of the Photovoltaic Devices--Certificate provision of the solicitation. If the Contractor certified in [[Page 62501]] its offer that it will utilize a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device, then the Contractor shall utilize a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device; or, at the Contractor's option, a domestic photovoltaic device; or (5) $180,000 or more, then the Contractor shall utilize under this contract only U.S.-made, designated country, or qualifying country photovoltaic devices. * * * * * 0 9. Amend section 252.225-7018 by-- 0 a. In the introductory text, removing ``225.7017-5(b)'' and adding ``225.7017-4(b)'' in its place; 0 b. Removing clause date ``(JAN 2018)'' and adding ``(DEC 2018)'' in its place; 0 c. Revising paragraphs (b)(1) and (2); and 0 d. Revising paragraphs (d)(1), (d)(2) introductory text, and (d)(3) through (6). The revisions read as follows: 252.225-7018 Photovoltaic Devices--Certificate. * * * * * (b) * * * (1) If more than the micro-purchase threshold but less than $180,000, then the Government will not accept an offer specifying the use of other foreign photovoltaic devices in paragraph (d)(2)(ii), (d)(3)(ii), (d)(4)(ii), or (d)(5)(ii) of this provision, unless the offeror documents to the satisfaction of the Contracting Officer that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device. (2) If $180,000 or more, then the Government will consider only offers that utilize photovoltaic devices that are U.S.-made, qualifying country, or designated country photovoltaic devices. * * * * * (d) * * * __ (1) No photovoltaic devices will be utilized in performance of the contract, or such photovoltaic devices have an estimated value that does not exceed the micro-purchase threshold. (2) If more than the micro-purchase threshold but less than $25,000-- * * * * * (3) If $25,000 or more but less than $80,317-- __ (i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device; __ (ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a Canadian photovoltaic device or a qualifying country photovoltaic device [Offeror to specify country of origin___]; or __ (iii) The foreign (other than Canadian or qualifying country) photovoltaic devices to be utilized in performance of the contract are the product of ___. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e. that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.] (4) If $80,317 or more but less than $100,000-- __ (i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device; __ (ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device [Offeror to specify country of origin___]; or __ (iii) The offered foreign photovoltaic devices (other than those from countries listed in paragraph (d)(4)(ii) of this provision) are the product of ___. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e. that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.] (5) If $100,000 or more but less than $180,000-- __ (i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device; __ (ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) or a qualifying country photovoltaic device [Offeror to specify country of origin___]; or __ (iii) The offered foreign photovoltaic devices (other than those from countries listed in paragraph (d)(5)(ii) of this provision) are the product of ___. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e. that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.] (6) If $180,000 or more, the Offeror certifies that each photovoltaic device to be used in performance of the contract is-- __ (i) A U.S.-made photovoltaic device; or __ (ii) A designated country photovoltaic device or a qualifying country photovoltaic device. [Offeror to specify country of origin___.] * * * * * [FR Doc. 2018-26305 Filed 12-3-18; 8:45 am] BILLING CODE 5001-06-P
![62498 Federal Register / Vol. 83, No. 233 / Tuesday, December 4, 2018 / Rules and Regulations
contained in this final rule do not § 156.50 Financial support. ACTION: Final rule.
pertain to hospitals. * * * * *
Section 202 of the Unfunded (d) * * * * * SUMMARY: DoD is issuing a final rule
Mandates Reform Act of 1995 also (3) If the requirements set forth in amending the Defense Federal
requires that agencies assess anticipated paragraph (d)(2) of this section are met, Acquisition Regulation Supplement
costs and benefits before issuing any the participating issuer will be provided (DFARS) to implement a section of the
rule that may result in expenditure in a reduction in its obligation to pay the National Defense Authorization Act for
any 1 year by state, local, or tribal Federally-facilitated Exchange user fee Fiscal Year 2018 that repeals the Fiscal
governments, in the aggregate, or by the specified in paragraph (c) of this section Year 2015 restrictions on the source of
private sector, of $100 million in 1995 equal in value to the sum of the photovoltaic devices in contracts
dollars, updated annually for inflation. following: awarded by DoD that result in DoD
In 2018, that threshold is approximately (i) The total dollar amount of the ownership of photovoltaic devices by
$150 million. HHS anticipates this rule payments for contraceptive services means other than DoD purchase of the
would not impact state governments or submitted by the applicable third-party photovoltaic devices as end products.
the private sector. administrators, as described in DATES: Effective December 5, 2018.
Executive Order 13132 establishes paragraph (d)(2)(iii)(D) of this section; FOR FURTHER INFORMATION CONTACT: Ms.
certain requirements that an agency and Amy G. Williams, telephone 571–372–
must meet when it issues a proposed (ii) An allowance for administrative 6106.
rule (and subsequent final rule) that costs and margin. The allowance will be
imposes substantial direct requirement SUPPLEMENTARY INFORMATION:
no less than 10 percent of the total
costs on state and local governments, dollar amount of the payments for I. Background
preempts state law, or otherwise has contraceptive services specified in
federalism implications. HHS does not DoD published a proposed rule in the
paragraph (d)(3)(i) of this section. HHS Federal Register at 83 FR 42822 on
anticipate this rule would impose direct will specify the allowance for a
requirement costs on state or local August 24, 2018, to implement section
particular calendar year in the annual 813(b) of the National Defense
governments, preempt state law, or HHS notice of benefit and payment
otherwise have federalism implications. Authorization Act (NDAA) for Fiscal
parameters. Year (FY) 2018 (Pub. L. 115–91). Section
List of Subjects in 45 CFR Part 156 (4) If the amount of the adjustment 813(b) repeals section 858 of the NDAA
Administrative appeals, under paragraph (d)(3) of this section is for FY 2015 (Pub. L. 113–291), but does
Administrative practice and procedure, greater than the amount of the not repeal section 846 of the NDAA for
Advertising, Advisory Committees, participating issuer’s obligation to pay FY 2011 (Pub. L. 111–383), with regard
American Indian/Alaska Natives, the Federally-facilitated Exchange user to sources of photovoltaic devises
Brokers, Conflict of interest, Consumer fee in a particular month, the purchased by contractors that become
protection, Cost-sharing reductions, participating issuer will be provided a property of DoD. There were no public
Grant programs-health, Grants credit in succeeding months in the comments submitted in response to the
administration, Health care, Health amount of the excess. proposed rule. There are no changes
insurance, Health maintenance * * * * * from the proposed rule in the final rule.
organization (HMO), Health records, Dated: November 16, 2018.
Hospitals, Individuals with disabilities, II. Applicability to Contracts at or
Seema Verma, Below the Simplified Acquisition
Loan programs-health, Organization and Administrator, Centers for Medicare &
functions (Government agencies), Threshold and for Commercial Items,
Medicaid Services. Including Commercially Available Off-
Medicaid, Payment and collections Dated: November 20, 2018.
reports, Public assistance programs, the-Shelf Items
Alex M. Azar II,
Reporting and recordkeeping This rule does not affect the
requirements, State and local Secretary, Department of Health and Human applicability of DFARS clause 252.225–
Services.
governments, Sunshine Act, Taxes, 7017, Photovoltaic Devices, and DFARS
[FR Doc. 2018–26332 Filed 11–30–18; 4:15 pm]
Technical assistance, Women, and provision 252.225–7018, Photovoltaic
Youth. BILLING CODE 4120–01–P Devices—Certification. A determination
For the reasons set forth in the was signed by the Director, Defense
preamble, the Department of Health and Procurement and Acquisition Policy, on
Human Services amends 45 CFR part DEPARTMENT OF DEFENSE October 13, 2011, to not apply the
156 as set forth below: requirements of section 846 of the
Defense Acquisition Regulations NDAA for FY 2011 to contracts at or
PART 156—HEALTH INSURANCE System below the simplified acquisition
ISSUER STANDARDS UNDER THE threshold, but to apply the rule to
AFFORDABLE CARE ACT, INCLUDING 48 CFR Parts 212, 225, and 252 contracts for the acquisition of
STANDARDS RELATED TO [Docket DARS–2018–0028] commercial items, including
EXCHANGES commercially available off-the-shelf
RIN 0750–AJ71
items.
■ 1. The authority citation for part 156
is revised to read as follows: Defense Federal Acquisition III. Executive Orders 12866 and 13563
Authority: 42 U.S.C. 18021–18024, 18031–
Regulation Supplement: Sunset of
Provision Relating to the Procurement Executive Orders (E.O.s) 12866 and
18032, 18041–18042, 18044, 18054, 18061, 13563 direct agencies to assess all costs
18063, 18071, 18082, 26 U.S.C. 36B, and 31 of Certain Goods (DFARS Case 2018–
D007) and benefits of available regulatory
U.S.C. 9701.
alternatives and, if regulation is
■ 2. Section 156.50 is amended by AGENCY: Defense Acquisition necessary, to select regulatory
revising paragraphs (d)(3) and (4) to Regulations System, Department of approaches that maximize net benefits
read as follows: Defense (DoD). (including potential economic,
VerDate Sep<11>2014 16:14 Dec 03, 2018 Jkt 247001 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 E:\FR\FM\04DER1.SGM 04DER1](https://thefederalregister.org/doc/83_FR_62731/page/1.svg)
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225.7017–1 Definitions. Agreement, depending upon dollar ■ ii. In paragraph (c)(2), removing
* * * * * threshold (see FAR subpart 25.4). ‘‘photovoltaic device as specified, or,’’
Covered contract means an energy (2) World Trade Organization— and adding ‘‘photovoltaic device, or,’’ in
savings performance contract, a utility Government Procurement Agreement. its place; and
services contract, or a private housing For covered contracts that utilize ■ iii. Revising paragraphs (c)(3), (4), and
contract awarded by DoD, to be photovoltaic devices that are valued at (5).
performed in the United States, if such $180,000 or more, only U.S.-made The revisions read as follows:
contract results in DoD ownership of photovoltaic devices, designated
country photovoltaic devices, or 252.225–7017 Photovoltaic Devices.
photovoltaic devices, by means other
than DoD purchase as end products. qualifying country photovoltaic devices (a) * * *
DoD is deemed to own a photovoltaic may be utilized. Domestic photovoltaic device means a
device if the device is— photovoltaic device that is
225.7017–4. [Removed] manufactured in the United States.
(1) Installed in the United States on
DoD property or in a facility owned by ■ 6. Remove section 225.7017–4. * * * * *
DoD; and (c) * * *
225.7017–5 [Redesignated as 225.7017–4]
(2) Reserved for the exclusive use of (1) More than the micro-purchase
DoD in the United States for the full ■ 7. Redesignate section 225.7017–5 as threshold but less than $25,000, then
economic life of the device. 225.7017–4 and in the newly the Contractor shall utilize only
* * * * * redesignated section 225.7017–4, revise domestic photovoltaic devices unless, in
Domestic photovoltaic device means a paragraph (a)(1) to read as follows: its offer, it specified utilization of
photovoltaic device that is qualifying country or other foreign
225.7017–4 Solicitation provision and
manufactured in the United States. contract clause.
photovoltaic devices in paragraph (d)(2)
* * * * * of the Photovoltaic Devices—Certificate
(a)(1) Use the clause at 252.225–7017, provision of the solicitation.
■ 4. Revise section 225.7017–2 to read Photovoltaic Devices, in solicitations,
as follows: including solicitations using FAR part * * * * *
12 procedures for the acquisition of (3) $80,317 or more but less than
225.7017–2 Restriction.
commercial items, for a contract $100,000, then the Contractor shall
In accordance with section 846 of the expected to exceed the simplified utilize under this contract only
National Defense Authorization Act for acquisition threshold that may be a domestic photovoltaic devices, unless,
Fiscal Year 2011 (Pub. L. 111–383), covered contract, i.e., an energy savings in its offer, it specified utilization of
photovoltaic devices provided under performance contract, a utility service Free Trade Agreement country
any covered contract shall comply with contract, or a private housing contract photovoltaic devices (other than
41 U.S.C. chapter 83, Buy American, awarded by DoD, if such contract will Bahrainian, Korean, Moroccan,
subject to the exceptions to that statute result in DoD ownership of photovoltaic Panamanian, or Peruvian photovoltaic
provided in the Trade Agreements Act devices, by means other than DoD devices), qualifying country
of 1979 (19 U.S.C. 2501 et seq.). purchase as end products. photovoltaic devices, or other foreign
■ 5. Revise section 225.7017–3 to read photovoltaic devices in paragraph (d)(4)
* * * * * of the Photovoltaic Devices—Certificate
as follows:
PART 252—SOLICITATION provision of the solicitation. If the
225.7017–3 Exceptions. Contractor certified in its offer that it
PROVISIONS AND CONTRACT
DoD requires the contractor to utilize CLAUSES will utilize a Free Trade Agreement
domestic photovoltaic devices in country photovoltaic device (other than
covered contracts that exceed the ■ 8. Amend section 252.225–7017 by— a Bahrainian, Korean, Moroccan,
simplified acquisition threshold, with ■ a. In the introductory text, removing Panamanian, or Peruvian photovoltaic
the following exceptions: ‘‘225.7017–5(a)’’ and adding ‘‘225.7017– device) or a qualifying country
(a) Qualifying country. Qualifying 4(a)’’ in its place; photovoltaic device, then the Contractor
country photovoltaic devices may be ■ b. Removing the clause date ‘‘(JAN shall utilize a Free Trade Agreement
utilized in any covered contract, 2018)’’ and adding ‘‘(DEC 2018)’’ in its country photovoltaic device (other than
because 225.103(a)(i)(A) provides an place; a Bahrainian, Korean, Moroccan,
exception to the Buy American statute ■ c. In paragraph (a)— Panamanian, or Peruvian photovoltaic
for products of qualifying countries, as ■ i. Removing subparagraph device) or a qualifying country
defined in 225.003. designations ‘‘(i)’’ and ‘‘(ii)’’ and adding photovoltaic device; or, at the
(b) Buy American—unreasonable cost. ‘‘(1)’’ and (2)’’ in their places wherever Contractor’s option, a domestic
For a covered contract that utilizes they appear; photovoltaic device;
photovoltaic devices valued at less than ■ ii. Removing subparagraph (4) $100,000 or more but less than
$180,000, the exception for designations ‘‘(iii)’’ and ‘‘(iv)’’ and $180,000, then the Contractor shall
unreasonable cost may apply (see FAR adding ‘‘(3)’’ and ‘‘(4)’’ in their places utilize under this contract only
25.103(c). If the cost of a foreign wherever they appear; domestic photovoltaic devices, unless,
photovoltaic device plus 50 percent is ■ iii. Revising the definition of in its offer it specified utilization of Free
less than the cost of a domestic ‘‘domestic photovoltaic device’’; Trade Agreement country photovoltaic
photovoltaic device, then the foreign ■ d. In paragraph (b), removing ‘‘858 of devices (other than Bahrainian,
photovoltaic device may be utilized. the National Defense Authorization Act Moroccan, Panamanian, or Peruvian
(c) Trade agreements—(1) Free Trade for Fiscal Year 2015 (Pub. L. 113–291)’’ photovoltaic devices), qualifying
Agreements. For a covered contract that and adding ‘‘846 of the National Defense country photovoltaic devices, or other
utilizes photovoltaic devices valued at Authorization Act for Fiscal Year 2011 foreign photovoltaic devices in
$25,000 or more, photovoltaic devices (Pub. L. 111–383)’’ in its place; and paragraph (d)(5) of the Photovoltaic
may be utilized from a country covered ■ e. In paragraph (c)— Devices—Certificate provision of the
under the acquisition by a Free Trade ■ i. Revising paragraph (c)(1); solicitation. If the Contractor certified in
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![Federal Register / Vol. 83, No. 233 / Tuesday, December 4, 2018 / Rules and Regulations 62501
its offer that it will utilize a Free Trade performance of the contract is a from countries listed in paragraph
Agreement country photovoltaic device domestic photovoltaic device; (d)(5)(ii) of this provision) are the
(other than a Bahrainian, Moroccan, ll (ii) The offeror certifies that each product of lll. [Offeror to specify
Panamanian, or Peruvian photovoltaic photovoltaic device to be utilized in country of origin, if known, and provide
device) or a qualifying country performance of the contract is a documentation that the cost of a
photovoltaic device, then the Contractor Canadian photovoltaic device or a domestic photovoltaic device would be
shall utilize a Free Trade Agreement qualifying country photovoltaic device unreasonable in comparison to the cost
country photovoltaic device (other than [Offeror to specify country of of the proposed foreign photovoltaic
a Bahrainian, Moroccan, Panamanian, or originlll]; or device, i.e. that the price of the foreign
Peruvian photovoltaic device) or a ll (iii) The foreign (other than photovoltaic device plus 50 percent is
qualifying country photovoltaic device; Canadian or qualifying country) less than the price of a comparable
or, at the Contractor’s option, a domestic photovoltaic devices to be utilized in domestic photovoltaic device.]
photovoltaic device; or performance of the contract are the (6) If $180,000 or more, the Offeror
(5) $180,000 or more, then the product of lll. [Offeror to specify certifies that each photovoltaic device to
Contractor shall utilize under this country of origin, if known, and provide be used in performance of the contract
contract only U.S.-made, designated documentation that the cost of a is—
country, or qualifying country domestic photovoltaic device would be ll (i) A U.S.-made photovoltaic
photovoltaic devices. unreasonable in comparison to the cost device; or
* * * * * of the proposed foreign photovoltaic ll (ii) A designated country
device, i.e. that the price of the foreign photovoltaic device or a qualifying
■ 9. Amend section 252.225–7018 by—
photovoltaic device plus 50 percent is country photovoltaic device. [Offeror to
■ a. In the introductory text, removing
less than the price of a comparable specify country of originlll.]
‘‘225.7017–5(b)’’ and adding ‘‘225.7017–
domestic photovoltaic device.] * * * * *
4(b)’’ in its place; (4) If $80,317 or more but less than
■ b. Removing clause date ‘‘(JAN 2018)’’ [FR Doc. 2018–26305 Filed 12–3–18; 8:45 am]
$100,000—
and adding ‘‘(DEC 2018)’’ in its place; ll (i) The offeror certifies that each
BILLING CODE 5001–06–P
■ c. Revising paragraphs (b)(1) and (2);
photovoltaic device to be utilized in
and performance of the contract is a
■ d. Revising paragraphs (d)(1), (d)(2)
DEPARTMENT OF DEFENSE
domestic photovoltaic device;
introductory text, and (d)(3) through (6). ll (ii) The offeror certifies that each Defense Acquisition Regulations
The revisions read as follows: photovoltaic device to be utilized in System
252.225–7018 Photovoltaic Devices— performance of the contract is a Free
Certificate. Trade Agreement country photovoltaic 48 CFR Part 217
* * * * * device (other than a Bahrainian, Korean,
[Docket DARS–2018–0054]
(b) * * * Moroccan, Panamanian, or Peruvian
(1) If more than the micro-purchase photovoltaic device) or a qualifying RIN 0750–AK27
threshold but less than $180,000, then country photovoltaic device [Offeror to
specify country of originlll]; or Defense Federal Acquisition
the Government will not accept an offer
specifying the use of other foreign ll (iii) The offered foreign Regulation Supplement:
photovoltaic devices (other than those Documentation for Interagency
photovoltaic devices in paragraph
from countries listed in paragraph Contracts (DFARS Case 2018–D073)
(d)(2)(ii), (d)(3)(ii), (d)(4)(ii), or (d)(5)(ii)
of this provision, unless the offeror (d)(4)(ii) of this provision) are the AGENCY: Defense Acquisition
documents to the satisfaction of the product of lll. [Offeror to specify Regulations System, Department of
Contracting Officer that the price of the country of origin, if known, and provide Defense (DoD).
foreign photovoltaic device plus 50 documentation that the cost of a
ACTION: Final rule.
percent is less than the price of a domestic photovoltaic device would be
comparable domestic photovoltaic unreasonable in comparison to the cost SUMMARY: DoD is issuing a final rule
device. of the proposed foreign photovoltaic amending the Defense Federal
(2) If $180,000 or more, then the device, i.e. that the price of the foreign Acquisition Regulation Supplement
Government will consider only offers photovoltaic device plus 50 percent is (DFARS) to implement a section of the
that utilize photovoltaic devices that are less than the price of a comparable National Defense Authorization Act for
U.S.-made, qualifying country, or domestic photovoltaic device.] Fiscal Year 2019 that removes the
(5) If $100,000 or more but less than requirement to make a best procurement
designated country photovoltaic
$180,000— approach determination to use an
devices.
ll (i) The offeror certifies that each
* * * * * interagency acquisition.
photovoltaic device to be utilized in
(d) * * * performance of the contract is a DATES: Effective December 4, 2018.
ll (1) No photovoltaic devices will domestic photovoltaic device; FOR FURTHER INFORMATION CONTACT: Ms.
be utilized in performance of the ll (ii) The offeror certifies that each Carrie Moore, telephone 571–372–6093.
contract, or such photovoltaic devices photovoltaic device to be utilized in SUPPLEMENTARY INFORMATION:
have an estimated value that does not performance of the contract is a Free
exceed the micro-purchase threshold. Trade Agreement country photovoltaic I. Background
(2) If more than the micro-purchase device (other than a Bahrainian, DoD is amending the DFARS to
threshold but less than $25,000— Moroccan, Panamanian, or Peruvian implement section 875 of the National
* * * * * photovoltaic device) or a qualifying Defense Authorization Act (NDAA) for
(3) If $25,000 or more but less than country photovoltaic device [Offeror to Fiscal Year (FY) 2019 (Pub. L. 115–232).
$80,317— specify country of originlll]; or Section 875 amends section 865 of the
ll (i) The offeror certifies that each ll (iii) The offered foreign NDAA for FY 2009 (Pub. L. 110–417) by
photovoltaic device to be utilized in photovoltaic devices (other than those removing the requirement for agencies,
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Document Created: 2018-12-04 00:42:00
Document Modified: 2018-12-04 00:42:00
| 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 December 5, 2018. | |
| Contact | Ms. Amy G. Williams, telephone 571- 372-6106. | |
| FR Citation | 83 FR 62498 | |
| RIN Number | 0750-AJ71 | |
| CFR Citation | 48
CFR
212 48 CFR 225 48 CFR 252 |
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