[Federal Register Volume 78, Number 120 (Friday, June 21, 2013)]
[Rules and Regulations]
[Pages 37684-37686]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-14613]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 4 and 17
[FAC 2005-67; FAR Case 2012-010; Item IV; Docket 2012-0010, Sequence 1]
RIN 9000-AM36
Federal Acquisition Regulation; Interagency Acquisitions:
Compliance by Nondefense Agencies With Defense Procurement Requirements
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: DoD, GSA, and NASA are adopting as final, with changes, an
interim rule amending the Federal Acquisition Regulation (FAR) to add
new requirements specific to the acquisition of supplies and services
by nondefense agencies on behalf of DoD. This rule implements a section
of the National Defense Authorization Act (NDAA) for Fiscal Year (FY)
2008, with later amendments; and section 801 of the NDAA for FY 2013,
Public Law 112-239.
DATES: Effective Date: July 22, 2013.
FOR FURTHER INFORMATION CONTACT: Ms. Patricia Corrigan, Procurement
Analyst, at 202-208-1963 for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAC 2005-67, FAR Case 2012-
010.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 77 FR 69720 on November 20, 2012, to implement the
requirements of section 801 of the NDAA for FY 2008 (Pub. L. 110-181)
as amended, (10 U.S.C. 2304 note). The interim rule made the following
changes:
Clarified FAR 4.603(c) regarding the allocation of
socioeconomic credit to the requesting agency for assisted
acquisitions.
Created a new FAR subpart 17.7, which establishes the
policy related to internal controls and compliance certification under
which nondefense agencies may procure supplies and services on behalf
of DoD and identified DoD acquisition official responsibilities to
identify DoD unique requirements. The new FAR subpart 17.7 cross-
references and is cross-referenced at FAR subpart 17.5, Interagency
Acquisitions.
To implement the NDAA for FY 2013, this final rule changes
``defense'' to ``applicable'' in FAR 17.703(a) and (b).
Three respondents submitted comments on the interim rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the comments in the
development of the final rule. A discussion of the comments and the
changes made to the rule as a result of those comments are provided as
follows:
A. Summary of Significant Changes
No significant changes have been made in the final rule. However,
the following minor changes have been made:
(1) References to the term ``defense procurement'' have been
changed to ``applicable procurement'' in order to implement section 801
of the NDAA FY 2013, Pub. L. 112-239.
(2) Based on public comment, DoD class deviations have been
included in
[[Page 37685]]
the list of laws and regulations that apply to procurements of supplies
and services made by DoD through other Federal agencies in FAR
17.703(b)(2).
B. Analysis of Public Comments
1. Location of Coverage
Comment: Suggest that this coverage be moved to a new section
within FAR subpart 17.5 (e.g., FAR 17.505). This way, the rule would be
where readers would reasonably expect it to be and they would not have
to move back and forth between subparts, which are typically located on
different Web pages.
Response: To simplify locating the required regulations, a cross
reference to FAR subpart 17.7 is included at FAR 17.500 and another
cross reference to FAR subpart 17.5 is included at FAR 17.700.
2. Compliance With DoD Class Deviations
Comment: FAR 17.703(b)(2) does not mention DoD class deviations to
the FAR and Defense Federal Acquisition Regulation Supplement (DFARS).
If nondefense agencies will be required to comply with DoD class
deviations, it is suggested that this be explicitly stated along with a
Web address where they can be found.
Response: The rule was amended to reference DoD class deviations
and the Web address where they can be found.
3. Definition of DoD ``Acquisition Official''
Comment: The commenter knew what a contracting officer is, but
wondered what a DoD ``acquisition official'' other than a contracting
officer might be. The commenter added that ``all approvals should be
routed through the office of the contracting division that would
otherwise write the contract.''
Response: The term ``Department of Defense (DoD) acquisition
official'' is defined in FAR 17.701, consistent with statute, and is
used throughout FAR subpart 17.7. Specific guidance regarding
designation of agency acquisition officials, their delegated authority,
and routing of contractual documents is more suitable for inclusion in
agency regulations rather than the FAR.
4. Frequency of Nondefense Agency Compliance Certifications
Comment: The commenter sees no benefit in adhering to an ``annual''
fiscal year self-certification requirement that ensures a nondefense
agency is compliant with defense procurement requirements. The
commenter recommends, as a means of eliminating non-value-added
paperwork for all parties and procurement delays, that DoD seek
approval to change the nondefense agency self-certification requirement
from ``each fiscal year'' to ``every five years.''
Response: The annual certification requirement for nondefense
agencies that acquire supplies and services on behalf of DoD included
in FAR subpart 17.7 is prescribed by law. The suggestion submitted by
the commenter requires a statutory change that is beyond the scope of
this FAR case.
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, 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. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is summarized as follows:
Implementation of section 801 of the NDAA for FY 2008 (Pub. L.
110-181), section 806 of the NDAA for FY 2010 (Pub. L. 111-84),
section 817 of the NDAA for FY 2012 (Pub. L. 112-81), and section
801 of the NDAA for FY 2013 (Pub. L. 112-239) address requirements
specific to the acquisition of property and services by non-defense
agencies on behalf of DoD, and are therefore, internal to the
Government.
However, this rule also amends the FAR to include a
clarification at 4.603(c), restating existing Office of Federal
Procurement Policy (OFPP) and Federal Procurement Data System (FPDS)
policy regarding the allocation of socio-economic credit for
assisted acquisitions, i.e., ``for assisted acquisitions, the
requesting agency will receive socio-economic credit for meeting
small business goals, where applicable.''
Although we do not expect the clarification to have a direct
economic impact on a substantial number of small entities, there is
the possibility that the regulatory clarification may improve the
accuracy of FPDS data submissions allocating socio-economic credit
to agencies for contracts and orders awarded to a substantial number
of small entities. Improved data accuracy can have a positive impact
on agencies' annual small business goals.
The interim rule was published as part of FAC 2005-62 on
November 20, 2012 (77 FR 69720). None of the comments received
concerned the initial regulatory flexibility analysis.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy
of the FRFA to the Chief Counsel for Advocacy of the Small Business
Administration.
V. Paperwork Reduction Act
The final 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 4 and 17
Government procurement.
Dated: June 13, 2013.
William Clark,
Acting Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Interim Rule Adopted as Final With Changes
Accordingly, the interim rule amending 48 CFR parts 4 and 17, which
was published in the Federal Register at 77 FR 69720, November 20,
2012, is adopted as final with the following change:
PART 17--SPECIAL CONTRACTING METHODS
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1. The authority citation for 48 CFR part 17 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
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2. Amend section 17.703 by--
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a. Removing from paragraph (a) and the introductory text of paragraph
(b) ``with defense'' and adding ``with applicable'' in its place; and
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b. Revising paragraph (b)(2).
The revised text reads as follows:
17.703 Policy.
* * * * *
(b) * * *
(2) Laws and regulations that apply to procurements of supplies and
services made by DoD through other Federal agencies, including DoD
financial management regulations, the Defense Federal Acquisition
Regulation Supplement (DFARS), DoD class deviations, and the DFARS
Procedures, Guidance, and Information (PGI). (The DFARS, DoD class
deviations, and PGI
[[Page 37686]]
are accessible at: http://www.acq.osd.mil/dpap/dars).
* * * * *
[FR Doc. 2013-14613 Filed 6-20-13; 8:45 am]
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