83 FR 62502 - Defense Federal Acquisition Regulation Supplement: Modification of DFARS Clause “Surge Option” (DFARS Case 2018-D025)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 83, Issue 233 (December 4, 2018)

DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to revise a clause to reflect current terminology and industry practices, pursuant to action taken by the DoD Regulatory Reform Task Force.

[Federal Register Volume 83, Number 233 (Tuesday, December 4, 2018)]
[Rules and Regulations]
[Pages 62502-62503]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-26307]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 217 and 252

[Docket DARS-2018-D036]
RIN 0750-AJ87


Defense Federal Acquisition Regulation Supplement: Modification 
of DFARS Clause ``Surge Option'' (DFARS Case 2018-D025)

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

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to revise a clause to reflect 
current terminology and industry practices, pursuant to action taken by 
the DoD Regulatory Reform Task Force.

DATES: Effective December 4, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD published a proposed rule in the Federal Register at 83 FR 
30659 on June 29, 2018, to modify DFARS clause 252.217-7001, Surge 
Option, to replace the term ``Production Surge Plan (DI-MGMT-80969)'' 
with ``Capabilities Analysis Plan (CAP)'' and add text to permit the 
option increase of supplies or services called for under the clause to 
be expressed as a specific number. The associated clause prescription 
at DFARS 217.208-70(b) is amended to reflect that the option increase 
of supplies or services may also be expressed as a specific number. 
This rule supports a recommendation from the DoD Regulatory Reform Task 
Force under Executive Order (E.O.) 13777, Enforcing the Regulatory 
Reform Agenda.
    One respondent submitted a public comment in response to the 
proposed

[[Page 62503]]

rule. The comment is outside the scope of this case and no changes are 
made 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 propose to create any new provisions or clauses. 
The proposed changes to DFARS clause 252.217-7001, Surge Option, are 
minimal and reflect only updates required to mirror current industry 
terminology and practice for support that may be required for 
industrial planning for selected essential military items in the event 
of an emergency. The rule continues to apply to contracts below the 
simplified acquisition threshold, however, the rule does not apply to 
commercial items, including commercially available off-the-shelf items.

III. Executive Orders 12866 and 13563

    E.O. 12866, Regulatory Planning and Review; and E.O. 13563, 
Improving Regulation and Regulatory Review, direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
The Office of Management and Budget, Office of Information and 
Regulatory Affairs (OIRA), has determined that this is not a 
significant regulatory action as defined under section 3(f) of E.O. 
12866 and, therefore, was not subject to review under section 6(b). 
This rule is not a major rule as defined at 5 U.S.C. 804(2).

IV. Executive Order 13771

    This final rule is not subject to E.O. 13771, because this 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:
    The Department of Defense is amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to revise a clause to reflect 
current terminology and industry practices. The objective of this rule 
is to improve the flexibility offered to contractors submitting pricing 
for surge options by giving them the option to quote prices by 
percentage or quantity increases, and to update the terminology used 
from ``Production Surge Plan'' to ``Capability Analysis Plan'' (CAP), 
since this is the most current and accurate term for this type of plan. 
The modification of this DFARS text supports a recommendation from the 
DoD Regulatory Reform Task Force under E.O. 13777, Enforcing the 
Regulatory Reform Agenda.
    No public comments were received in response to the initial 
regulatory flexibility analysis.
    This rule is not expected 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 scope of 
the rule limits the application of the reporting requirement to a small 
number of service contracts. Based on fiscal year 2017 data from the 
Federal Procurement Data System, the Government issued approximately 78 
contract actions that used mobilization or essential research and 
development as the reason for other than full and open competition. Of 
the 78 contract actions, approximately 33 awards were made to 24 unique 
small entities.
    This rule does not include any new reporting, recordkeeping, or 
other compliance requirements for small businesses.
    There are no known significant alternative approaches to the rule 
that would meet the proposed objectives.

VI. 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 217 and 252

    Government procurement.

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

    Therefore, 48 CFR parts 217 and 252 are amended as follows: 1. The 
authority citation for parts 217 and 252 continues to read as follows:

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

PART 217--SPECIAL CONTRACTING METHODS


217.208-70  [Amended]

0
2. In section 217.208-70, amend paragraph (b)(1), by removing 
``percentage'' and adding ``percentage or quantity'' in its place.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Amend section 252.217-7001 by--
0
a. Removing the clause date of ``(AUG 1992)'' and adding ``(DEC 2018)'' 
in its place;
0
b. Revising paragraph (a)(1);
0
c. In paragraph (b)(1), removing ``Production Surge Plan (DI-MGMT 
80969)'' and adding ``Capabilities Analysis Plan (CAP)'' in its place; 
and
0
d. In paragraph (b)(2), removing ``Production Surge Plan'' and adding 
``CAP'' in its place.
    The revision reads as follows:


252.217-7001.   Surge option.

* * * * *
    (a) * * *
    (1) Increase the quantity of supplies or services called for under 
this contract by no more than __percent or __[insert quantity and 
description of services or supplies to be increased]; and/or
* * * * *
[FR Doc. 2018-26307 Filed 12-3-18; 8:45 am]
 BILLING CODE 5001-06-P