[Federal Register Volume 78, Number 211 (Thursday, October 31, 2013)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2013-25728]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 215, 225, and 252

RIN 0750-AH89

Defense Federal Acquisition Regulation Supplement: Only One Offer--Further Implementation (DFARS Case 2013-D001)

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 further implement DoD policy relating to competitive acquisitions in which only one offer is received, providing additional exceptions, and further addressing requests for data other than certified cost or pricing data from the Canadian Commercial Corporation.

DATES: Effective October 31, 2013.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, telephone 571-372-6106.

SUPPLEMENTARY INFORMATION:

I. Background

DoD published a proposed rule in the Federal Register at 78 FR 28785 on May 16, 2013, to further implement policy with regard to acquisitions in which only one offer is received and requests for data other than certified cost or pricing data from the Canadian Commercial Corporation. This case is a follow-on to DFARS final rules published in the Federal Register under DFARS Case 2011-D013, Only One Offer (77 FR 39126 on June 29, 2012), and DFARS Case 2011-D049, Contracting with the Canadian Commercial Corporation (77 FR 43470 on July 24, 2012).

II. Applicability

The final rule applies to solicitations (including solicitations for task orders and delivery orders) issued on or after the publication date of the final rule.

III. Discussion and Analysis

No public comments were received. There are only minor editorial changes from the proposed rule that were made in the final rule. Revisions include:

Renumbering section 12.301(f) subparagraphs due to DFARS baseline changes.

Correcting, in section 12.301(f), prescription references cited for two provisions: 252.215-7007, Notice of Intent to Resolicit; and 252.215-7008, Only One Offer. Extraneous verbiage was removed from the prescription for 252.215-7004, Requirement for Submission of Data Other Than Certified Cost or Pricing Data--Modifications--Canadian Commercial Corporation.

Revising the prescription at 215.371-6 to include a statement that provision 252.215-7007, Notice of Intent to Resolicit, should be included in solicitations for the acquisition of commercial items using Far part 12 procedures. This provision is included in the list at 212.301(f) as being applicable to solicitations for commercial items; however, the prescription at 215.371-6 inadvertently omitted restating applicability of the provision to FAR part 12 solicitations.

Revising two prescriptions at 215.408(3) to include a statement that the provisions should be included in solicitations for the acquisition of commercial items using FAR part 12 procedures. The provisions are: 252.215-7003, Requirement for Data Other Than Certified Cost or Pricing Data--Canadian Commercial Corporation, and 252.215-7004, Requirement for Data Other Than Certified Cost or Pricing Data--Modifications--Canadian Commercial Corporation. These two provisions are included in the list at 212.301(f) as being applicable to solicitations for commercial items; however, the prescriptions at 215.408(3) inadvertently omitted restating applicability of the provisions to FAR part 12 solicitations.

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.

IV. Regulatory Flexibility Act

A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows:

This rule further implements DoD policy relating to competitive acquisitions in which only one offer is received, providing additional exceptions, and further addressing requests for data other than certified cost or pricing data from the Canadian Commercial Corporation, especially relating to competitive solicitations when only one offer is received from the Canadian Commercial Corporation. The objective of the rule is to promote competition and ensure fair and reasonable prices by implementing DoD policy with regard to acquisitions when only one offer is received, including the Canadian Commercial Corporation.

There were no public comments in response to the proposed rule. There were no comments filed by the Chief Counsel for Advocacy of the Small Business Administration.

The final regulatory flexibility analysis for the final rule under FARS case 2011-D013, Only One Offer, was addressed in the Federal Register notice published in the Federal Register (77 FR 39126) on June 29, 2012). With regard to DFARS Case 2011-D049, Contracting with the Canadian Commercial Corporation (77 FR 43470 on July 24, 2012), DoD certified that there was no 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 it only impacted Canadian business concerns. The changes proposed in this rule are not expected to impact a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the only changes impacting domestic entities are the added exceptions for architect-engineer services and the 8(a) program, which are more in the nature of a clarification than a change.

Architect-engineer services are purchased under the Brooks Act. The final rule for Only One Offer was not made applicable to part 36. This rule specifically clarifies that it is inapplicable.

The final rule for Only One Offer was not made applicable to set-asides under FAR part 19. The final rule specifically excluded small business set-asides and set asides under the HUBZone Program, the Service-Disabled Veteran-Owned Small Business Procurement Program, and the Women-Owned Small Business Program. The 8(a) Program was inadvertently omitted from the list of specific exclusions. In accordance with FAR 19.805-1, an acquisition offered to the SBA shall be awarded on the basis of competition limited to eligible 8(a) firms if two conditions are met: (1) the anticipated total value of the contract exceeds the thresholds at FAR 19.805-1(a)(2); and (2) there must be a reasonable expectation that at least two eligible and responsible 8(a) firms will submit offers and that award can be made at a fair and reasonable price.

The final rule imposes no new reporting, recordkeeping, or other information collection requirements. The submission of certified cost or pricing data or data other than certified cost or pricing data is covered in FAR 15.4 and associated clauses in 52.215, OMB clearance 9000-013.

There are no known significant alternatives to the rule that would adequately implement the DoD policy. There is no significant economic impact on a substantial number of small entities.

V. Paperwork Reduction Act

The final rule does not impose any additional information collection requirements that require approval under the Paperwork Reduction Act (5 U.S.C. chapter 35). The submission of certified cost or pricing data or data other than certified cost or pricing data required for negotiation is covered in FAR 15.4 and associated clauses in FAR 52.215, and in OMB clearance 9000-013, Cost or Pricing Data Requirements and Information Other Than Cost or Pricing Data, in the amount of 10,101,684 hours.

List of Subjects in 48 CFR Parts 212, 215, 225, and 252

Government procurement.

Manuel Quinones,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 212, 215, 225, and 252 are amended as follows:

1. The authority citation for 48 CFR parts 212, 215, 225, and 252 continues to read as follows:

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

PART 212--ACQUISITION OF COMMERCIAL ITEMS

2. Section 212.301 is amended by--

a. Redesignating paragraphs (f)(xi) through (lxii) as (f)(xiii) through (lxv), respectively;

b. Adding new paragraphs (f)(xi), (xii), and (xiv); and

c. Revising newly designated paragraph (f)(xiii).

The additions and revision read as follows:

212.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

(f) * * *

(xi) Use the provision at 252.215-7003, Requirements for Submission of Data Other Than Certified Cost or Pricing Data--Canadian Commercial Corporation, as prescribed at 215.408(3)(i).

(xii) Use the clause at 252.215-7004, Requirement for Submission of Data other Than Certified Cost or Pricing Data--Modifications--Canadian Commercial Corporation, as prescribed at 215.408(3)(ii).

(xiii) Use the provision at 252.215-7007, Notice of Intent to Resolicit, as prescribed at 215.371-6.

(xiv) Use the provision 252.215-7008, Only One Offer, as prescribed at 215.408(4).

* * * * *

PART 215--CONTRACTING BY NEGOTIATION

215.371-3 [Amended]

3. Section 215.371-3 is amended--

a. In paragraph (a), by adding elipses ``. . .'' after the words ``reasonable expectation'' and before the words ``that two or more offerors,'', and removing ``at one level'' and adding ``at a level'' in its place.;

b. In paragraph (b) introductory text, by removing ``215.371-4(b) and adding ``215.371-4(a)(3);

c. In paragraph (b)(1), removing ``at one level'' and adding ``at a level'' in its place; and

d. In paragraph (b)(2)(i), removing ``, in accordance with FAR provision 52.215-20'' and removing ``FAR 15.403-1(c)'' and adding ``FAR 15.403-1(b)'' in its place.

4. Section 215.371-4 is revised to read as follows:

215.371-4 Exceptions.

(a) The requirements at section 215.371-2 do not apply to--

(1) Acquisitions at or below the simplified acquisition threshold;

(2) Acquisitions in support of contingency, humanitarian or peacekeeping operations, or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack;

(3) Small business set-asides under FAR subpart 19.5, set asides offered and accepted into the 8(a) Program under FAR subpart 19.8, or set-asides under the HUBZone Program (see FAR 19.1305(c)), the Service-Disabled Veteran-Owned Small Business Procurement Program (see FAR 19.1405(c)), or the Women-Owned Small Business Program (see FAR 19.1505(d));

(4) Acquisitions of basic or applied research or development, as specified in FAR 35.016(a), that use a broad agency announcement; or

(5) Acquisitions of architect-engineer services (see FAR 36.601-2).

(b) The applicability of an exception in paragraph (a) of this

section does not eliminate the need for the contracting officer to seek maximum practicable competition and to ensure that the price is fair and reasonable.

5. Section 215.371-6 is added to read as follows:

215.371-6 Solicitation provision.

Use the provision at 252.215-7007, Notice of Intent to Resolicit, in competitive solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that will be solicited for fewer than 30 days, unless an exception at 215.371-4 applies or the requirement is waived in accordance with 215.371-5.

215.403-1 [Amended]

6. Section 215.403-1 is amended by--

a. In second sentence of paragraph (c)(1)(A)(1), removing ``price analysis.'' and adding ``price analysis; and'' in its place.

b. In paragraph (c)(4)(C), removing ``215.408(5)'' and adding ``215.408(3)'' in its place.

7. Section 215.408 is amended by--

a. Revising paragraph (3);

b. In paragraph (4)(i), removing ``215.371-4(a)(1)'' and adding ``215.371-4(a)'' in its place;

c. In paragraph (4)(ii), removing ``but that provision will only take effect as specified in 252.215-7008'' and adding ``if the contracting officer is requesting submission of data other than certified cost or pricing data with the offer'' in its place;

d. Removing paragraph (5); and

e. Redesignating paragraph (6) as paragraph (5).

The revision reads as follows:

215.408 Solicitation provisions and contract clauses.

* * * * *

(3) When contracting with the Canadian Commercial Corporation--

(i)(A) Use the provision at 252.215-7003, Requirement for Data Other Than Certified Cost or Pricing Data--Canadian Commercial Corporation--

(1) In lieu of FAR 52.215-20, Requirement for Data Other Than Certified Cost or Pricing Data, in a solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a sole source acquisition from the Canadian Commercial Corporation that is--

(i) Cost-reimbursement, if the contract value is expected to exceed $700,000; or

(ii) Fixed-price, if the contract value is expected to exceed $500 million; or

(2) In lieu of FAR 52.215-20, in a solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a sole source acquisition from the Canadian Commercial Corporation that does not meet the thresholds specified in paragraph (3)(i)(A)(1), if approval is obtained as required at 225.870-4(c)(2)(ii); and

(B) Do not use 252.225-7003 in lieu of FAR 52.215-20 in competitive acquisitions. The contracting officer may use FAR 52.215-20 with its Alternate IV, as prescribed at 15.408(l)(3), even if offers from the Canadian Commercial Corporation are anticipated; and

(ii)(A) Use the clause at 252.215-7004, Requirement for Data Other Than Certified Cost or Pricing Data--Modifications--Canadian Commercial Corporation--

(1) In a solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a sole source acquisition, from the Canadian Commercial Corporation and resultant contract that is--

(i) Cost-reimbursement, if the contract value is expected to exceed $700,000; or

(ii) Fixed-price, if the contract value is expected to exceed $500 million;

(2) In a solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a sole source acquisition from the Canadian Commercial Corporation and resultant contract that does not meet the thresholds specified in paragraph (3)(ii)(A) (1), if approval is obtained as required at 225.870-4(c)(2)(ii); or

(3)(i) In a solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a competitive acquisition that includes FAR 52.215-21, Requirement for Data Other Than Certified Cost or Pricing Data--Modifications, or that meets the thresholds specified in paragraph (3)(ii)(A) (1).

(ii) The contracting officer shall then select the appropriate clause to include in the contract (52.215-21 only if award is not to the Canadian Commercial Corporation; or 252.215-7004 if award is to the Canadian Commercial Corporation and necessary approval is obtained in accordance with 225.870-4(c)(2)(ii)); and

(B) The contracting officer may specify a higher threshold in paragraph (b) of the clause 252.215-7004.

* * * * *

PART 225--FOREIGN ACQUISITION

8. Section 225.870-4 is amended by--

a. Revising paragraph (c)(2);

b. In paragraph (c)(3), removing ``215.408(5)(i)'' and adding ``215.408(3)(i)'' in its place.

The revision reads as follows:

225.870-4 Contracting procedures.

* * * * *

(c) * * *

(2) The Canadian Commercial Corporation is not exempt from the requirement to submit data other than certified cost or pricing data, as defined in FAR 2.101. In accordance with FAR 15.403-3(a)(1)(ii), the contracting officer shall require submission of data other than certified cost or pricing data from the offeror, to the extent necessary to determine a fair and reasonable price.

(i) No further approval is required to request data other than certified cost or pricing data from the Canadian Commercial Corporation in the following circumstances:

(A) In a solicitation for a sole source acquisition that is--

(1) Cost-reimbursement, if the contract value is expected to exceed $700,000; or

(2) Fixed-price, if the contract value is expected to exceed $500 million.

(B) If the Canadian Commercial Corporation submits the only offer in response to a competitive solicitation that meets the thresholds specified in paragraph (c)(2)(i)(A) of this section.

(C) For modifications that exceed $150,000 in contracts that meet the criteria in paragraph (c)(2)(i)(A) or (B) of this section.

(D) In competitive solicitations in which data other than certified cost or pricing data are required from all offerors.

(ii) In any circumstances other than those specified in paragraph (c)(2)(i) of this section, the contracting officer shall only require data other than certified cost or pricing data from the Canadian Commercial Corporation if the head of the contracting activity, or designee no lower than two levels above the contracting officer, determines that data other than certified cost or pricing data are needed (or in the case of modifications that it is reasonably certain that data other than certified cost or pricing data will be needed) in order to determine that the price is fair and reasonable) (see FAR 15.403-3(a).

* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

252.215-7003 [Amended]

9. Section 252.215-7003 is amended by, in the introductory text, removing ``215.408(5)(i)'' and adding ``215.408(3)(i)'' in its place.

10. Section 252.215-7004 is amended--

a. In the introductory text, by removing ``215.408(5)(ii)'' and adding ``215.408(3)(ii)'' in its place;

b. By removing the clause date of ``(JUL 2012)'' and adding ``(OCT 2013)'' in its place;

c. In paragraph (b) introductory text, by removing ``the simplified acquisition threshold'' and adding ``$150,000'' in its place; and

d. By adding introductory text after the clause date and before paragraph (a) to read as follows:

252.215-7004 Requirement for Submission of Data Other Than Certified Cost or Pricing Data--Modifications--Canadian Commercial Corporation.

* * * * *

This clause, in lieu of FAR 52.215-21, applies only if award is to the Canadian Commercial Corporation.

* * * * *

252.215-7007 [Amended]

11. Section 252.215-7007 is amended by, in the introductory text, removing ``215.408(3)'' and adding ``215.371-6'' in its place.

12. Section 252.215-7008 is revised to read as follows:

252.215-7008 Only One Offer.

As prescribed at 215.408(4), use the following provision:

Only One Offer (Oct 2013)

(a) After initial submission of offers, the Offeror agrees to submit any subsequently requested additional cost or pricing data if the Contracting Officer notifies the Offeror that--

(1) Only one offer was received; and

(2) Additional cost or pricing data is required in order to determine whether the price is fair and reasonable or to comply with the statutory requirement for certified cost or pricing data (10 U.S.C. 2306a and FAR 15.403-3).

(b) Requirement for submission of additional cost or pricing data. Except as provided in paragraph (c) of this provision, the Offeror shall submit additional cost or pricing data as follows:

(1) If the Contracting Officer notifies the Offeror that additional cost or pricing data are required in accordance with paragraph (a) of this clause, the data shall be certified unless an exception applies (FAR 15.403-1(b)).

(2) Exceptions from certified cost or pricing data. In lieu of submitting certified cost or pricing data, the Offeror may submit a written request for exception by submitting the information described in the following paragraphs. The Contracting Officer may require additional supporting information, but only to the extent necessary to determine whether an exception should be granted, and whether the price is fair and reasonable.

(i) Identification of the law or regulation establishing the price offered. If the price is controlled under law by periodic rulings, reviews, or similar actions of a governmental body, attach a copy of the controlling document, unless it was previously submitted to the contracting office.

(ii) Commercial item exception. For a commercial item exception, the Offeror shall submit, at a minimum, information on prices at which the same item or/similar items have previously been sold in the commercial market that is adequate for evaluating the reasonableness of the price for this acquisition. Such information may include--

(A) For catalog items, a copy of or identification of the catalog and its date, or the appropriate pages for the offered items, or a statement that the catalog is on file in the buying office to which the proposal is being submitted. Provide a copy or describe current discount policies and price lists (published or unpublished), e.g., wholesale, original equipment manufacturer, or reseller. Also explain the basis of each offered price and its relationship to the established catalog price, including how the proposed price relates to the price of recent sales in quantities similar to the proposed quantities;

(B) For market-priced items, the source and date or period of the market quotation or other basis for market price, the base amount, and applicable discounts. In addition, describe the nature of the market; or

(C) For items included on an active Federal Supply Service Multiple Award Schedule contract, proof that an exception has been granted for the schedule item.

(3) The Offeror grants the Contracting Officer or an authorized representative the right to examine, at any time before award, books, records, documents, or other directly pertinent records to verify any request for an exception under this provision, and the reasonableness of price. For items priced using catalog or market prices, or law or regulation, access does not extend to cost or profit information or other data relevant solely to the Offeror's determination of the prices to be offered in the catalog or marketplace.

(4) Requirements for certified cost or pricing data. If the Offeror is not granted an exception from the requirement to submit certified cost or pricing data, the following applies:

(i) The Offeror shall prepare and submit certified cost or pricing data and supporting attachments in accordance with the instructions contained in Table 15-2 of FAR 15.408, which is incorporated by reference with the same force and effect as though it were inserted here in full text. The instructions in Table 15-2 are incorporated as a mandatory format to be used, unless the Contracting Officer and the Offeror agree to a different format.

(ii) As soon as practicable after agreement on price, but before contract award (except for unpriced actions such as letter contracts), the offeror shall submit a Certificate of Current Cost or Pricing Data, as prescribed by FAR 15.406-2.

(c) If the Offeror is the Canadian Commercial Corporation, certified cost or pricing data are not required. If the Contracting Officer notifies the Canadian Commercial Corporation that additional data other than certified cost or pricing data are required in accordance with 225.870-4(c), the Canadian Commercial Corporation shall obtain and provide the following:

(1) Profit rate or fee (as applicable).

(2) Analysis provided by Public Works and Government Services Canada to the Canadian Commercial Corporation to determine a fair and reasonable price (comparable to the analysis required at FAR 15.404-1).

(3) Data other than certified cost or pricing data necessary to permit a determination by the U.S. Contracting Officer that the proposed price is fair and reasonable [U.S. Contracting Officer to provide description of the data required in accordance with FAR 15.403-3(a)(1) with the notification].

(4) As specified in FAR 15.403-3(a)(4), an offeror who does not comply with a requirement to submit data that the U.S. Contracting Officer has deemed necessary to determine price reasonableness or cost realism is ineligible for award unless the head of the contracting activity determines that it is in the best interest of the Government to make the award to that offeror.

(d) If negotiations are conducted, the negotiated price should not exceed the offered price.

(End of provision)

252.215-7009 [Amended]

13. Section 252.215-7009 is amended by, in the introductory text, removing ``215.408(6)'' and adding ``215.408(5)'' in its place.

[FR Doc. 2013-25728 Filed 10-30-13; 8:45 am]

BILLING CODE 5001-06-P

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[Federal Register Volume 78, Number 211 (Thursday, October 31, 2013)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2013-25727]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 237

RIN 0750-AI05

Defense Federal Acquisition Regulation Supplement: Private Sector Notification Requirements of In-Sourcing Actions DFARS Case 2012-D036

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

ACTION: Interim rule.

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SUMMARY: DoD is issuing an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act regarding private sector notification of in-sourcing actions.

DATES: Effective date: October 31, 2013.

Comment date: Comments on the interim rule should be submitted in writing to the address shown below on or before December 30, 2013, to be considered in the formation of a final rule.''

ADDRESSES: Submit comments identified by DFARS Case 2012-D036 using any of the following methods:

[cir] Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering ``DFARS Case 2012-D036'' under the heading ``Enter keyword or ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 2012-D036.'' Follow the instructions provided at the ``Submit a Comment'' screen. Please include your name, company name (if any), and ``DFARS Case 2012-D036 on your attached document.

[cir] Email: dfars@osd.mil. Include DFARS Case 2012-D036 in the subject line of the message.

[cir] Fax: 571-372-6094.

[cir] Mail: Defense Acquisition Regulations System, Attn: Annette Gray, OUSD(AT&L)DPAP/DARS, Room 3B855, 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: Annette Gray, Defense Acquisition Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6093; facsimile 571-372-6101.

SUPPLEMENTARY INFORMATION:

I. Background

This interim rule revises DFARS 237.102-79 to implement section 938 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012 regarding private sector notification of in-sourcing actions.

II. Discussion and Analysis

Section 938 of the NDAA requires the Secretary of Defense to establish procedures for the timely notification of any contractor who performs a function that the Secretary plans to convert (in-source) to performance by DoD civilian employees. A written notification will be provided to affected incumbent contractors within 20 business days of the contracting officer's receipt of a decision by the cognizant component in-sourcing program official to in-source services. The notification will summarize why the services are being insourced and must be coordinated with the component's in-sourcing program official. A copy of the notification will be provided to the congressional defense committees.

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 does not expect this interim 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 it impacts only those incumbent contractors for which an in-sourcing determination has been made. The DFARS change relates solely to a notification requirement of a decision, made outside of acquisition regulatory channels, to convert a contracted function to performance by DoD civilian employees. The impact of this interim rule will be to heighten the awareness of impacted firms. An initial regulatory flexibility analysis has been performed and is summarized as follows:

This action implements section 938 of the National Defense Authorization Act (NDAA) for Fiscal Year 2012 regarding private sector notification of in-sourcing actions. Section 938 of the NDAA requires the Secretary of Defense to establish procedures for the timely notification of any contractor that performs a function that the Secretary plans to convert (in-source) to performance by DoD civilian employees and to also provide the congressional defense committees a copy of any such notification.

The interim rule will apply to all small business concerns that have contracts with DoD agencies that are being in-sourced. The most recent data from the DoD Office of Small Business Programs for fiscal years 2009 thru 2012 shows an average of 59,362 small business concerns have contracts with DoD. The degree of potential impact of this rule to those concerns, however, is unknown since there is no way to gauge in advance the extent of any future in-sourcing decisions.

There are no projected reporting, recordkeeping, and other compliance requirements associated with this rule. The rule does not duplicate, overlap, or conflict with any other Federal rules. DoD has not identified any alternatives that would fulfill the requirements of the statute and reduce impact on small businesses. Any impact of the rule is expected to be beneficial to small businesses, by giving them timely notification of planned in-sourcing actions.

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 2012-D036), in correspondence.

V. 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).

VI. Determination To Issue an Interim Rule

A determination has been made under the authority of the Secretary of Defense, pursuant to 41 U.S.C. 1707(d), that urgent and compelling reasons exist to promulgate this rule on an interim basis without prior opportunity for public comment. This action is necessary to implement section 938 of the National Defense Authorization Act (NDAA) for Fiscal Year 2012, which requires DoD to provide notification to the private sector of in-sourcing action determinations. Section 938 requires the Secretary of Defense to establish procedures for the timely notification of any incumbent contractor who performs a function that the Secretary plans to convert (in-source) to performance by DoD civilian employees. The notification must also be provided to the congressional defense committees. In-sourcing decisions may have a significant economic effect on firms that have contracts with DoD. Firms that are not notified on a timely basis of an in-sourcing determination that impacts them have less time to prepare for lost revenue and to make staffing adjustments. The rule, in addition to ensuring that there will be timely notification to affected contractors, should help facilitate a more seamless transition in services when implementing in-sourcing requirements. Nonetheless, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD will consider public comments received in response to this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Part 237

Government procurement.

Manuel Quinones,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 237 are amended as follows:

PART 237--SERVICE CONTRACTING

1. The authority citation for 48 CFR part 237 continues to read as follows:

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

2. Section 237.102-79 is revised to read as follows:

237.102-79 Private sector notification requirements in support of in-sourcing actions.

In accordance with 10 U.S.C. 2463, contracting officers shall provide written notification to affected incumbent contractors of Government in-sourcing determinations. Notification shall be provided within 20 business days of the contracting officer's receipt of a decision from the cognizant component in-sourcing program official. The notification will summarize the requiring official's final determination as to why the service is being in-sourced and shall be coordinated with the component's in-sourcing program official. No formal hiring or contract-related actions may be initiated prior to such notification, except for preliminary internal actions associated with hiring or contract modification. The memorandum on private sector notification requirements in support of in-sourcing actions is available at PGI 237.1, under the Supplemental Information tab.

[FR Doc. 2013-25727 Filed 10-30-13; 8:45 am]

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[Federal Register Volume 78, Number 211 (Thursday, October 31, 2013)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2013-25729]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 245

RIN 0750-AI03

Defense Federal Acquisition Regulation Supplement: Approval of Rental Waiver Requests (DFARS Case 2013-D006)

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 remove the Director of Defense Security Cooperation Agency from the approval process for waiver or reduction of charges for the use of Government property on work for foreign governments or international organizations.

DATES: Effective October 31, 2013.

FOR FURTHER INFORMATION CONTACT: Annette Gray, telephone 571-372-6093.

SUPPLEMENTARY INFORMATION:

I. Discussion

DoD is revising the DFARS to implement a policy that will allow contracting officers to approve requests for waiver or reduction of rental charges for the use of Government property on work for foreign governments or international organizations. Over the past year the Director of Defense Security Cooperation Agency (DSCA) has seen a significant increase in the number of requests with extremely low dollar values over the rental period. Currently, DSCA is required to approve requests in which the agency has no equities. This final rule will allow the contracting officer to process the request for waiver or reduction of charges for the use of Government property on work for foreign governments or international organizations without a separate review by DSCA. Removing DSCA from the approval process will expedite contractors' requests, while still protecting the interests of the Government.

II. Publication of This Final Rule for Public Comment Is Not Required by Statute

Publication of proposed regulations, 41 U.S.C. 1707, is the statute, which applies to the publication of the Federal Acquisition Regulation. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because the changes are not substantive and only modify the internal operating procedures of DoD.

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

The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.

V. 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 Part 245

Government procurement.

Manuel Quinones,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 245 is amended as follows:

PART 245--GOVERNMENT PROPERTY

1. The authority citation for 48 CFR part 245 continues to read as follows:

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

2. Section 245.302 is amended by revising paragraph (3)(ii) to read as follows:

245.302 Contracts with foreign governments or international organizations.

* * * * *

(3) * * *

(ii) Requests for waiver or reduction of charges for the use of Government property on work for foreign governments or international organizations shall be submitted to the contracting officer, who is authorized to approve the requests in consultation with the appropriate functional specialist.

[FR Doc. 2013-25729 Filed 10-30-13; 8:45 am]

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[Federal Register Volume 78, Number 211 (Thursday, October 31, 2013)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2013-25730]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 252

RIN 0750-AI09

Defense Federal Acquisition Regulation Supplement: New Designated Country--Croatia (DFARS Case 2013-D031)

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

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to add Croatia as a new designated country under the World Trade Organization Government Procurement Agreement (WTO GPA). Croatia joined the European Union, which is a party to the WTO GPA, on July 1, 2013.

DATES: Effective October 31, 2013.

FOR FURTHER INFORMATION CONTACT: Ms. Annette Gray, Defense Acquisition Regulations System, OUSD (AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6093; facsimile 571-372-6101.

SUPPLEMENTARY INFORMATION:

I. Background

The European Union is a party to the WTO GPA and has assumed rights and obligations under the WTO GPA on behalf of its member states. On July 1, 2013, Croatia became a member of the European Union. Therefore, the European Union has committed to assume rights and obligations on behalf of Croatia under the WTO GPA. On June 27, 2012, the WTO Committee on Government Procurement accepted the European Union notification indicating Croatia's coverage. The United States, which is also a party to the WTO GPA, has agreed to waive discriminatory purchasing requirements for eligible products and suppliers of Croatia (78 FR 60368).

Therefore, this rule adds Croatia to the list of World Trade Organization Government Procurement Agreement countries wherever it appears in the DFARS, as part of the definition of ``designated country.''

II. Publication of This Final Rule for Public Comment Is Not Required by Statute

``Publication of proposed regulations'', 41 U.S.C. 1707, is the statute which applies to the publication of the Federal Acquisition Regulation. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it is just updating the lists of designated countries in order to reflect the fact that Croatia is now a member of the European Union.

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

The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.

V. Paperwork Reduction Act

The Paperwork Reduction Act does apply, because the rule affects the response of an offeror that is offering a product of Croatia to the information collection requirements in the provisions at DFARS 252.225-7020, due to the changed definition of ``designated country'' at DFARS 252.225-7021. The offeror no longer needs to list a product from Croatia under ``other end products,'' because Croatia is now a designated country. This information collection requirement is currently approved under OMB clearances 0704-0229. The impact, however, is negligible.

List of Subjects in 48 CFR Part 252

Government procurement.

Manuel Quinones,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 252 is amended as follows:

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

1. The authority citation for 48 CFR part 252 continues to read as follows:

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

252.225-7017 [Amended]

2. Amend section 252.225-7017 by--

a. Removing the clause date ``(AUG 2013)'' and adding ``(OCT 2013)'' in its place; and

b. In paragraph (a), in the definition of ``Designated country'' in paragraph (i) adding, in alphabetical order, the country of ``Croatia''.

252.225-7021 [Amended]

3. Amend section 252.225-7021 by--

a. Removing the clause date ``(AUG 2013)'' and adding ``(OCT 2013)'' in its place; and

b. In paragraph (a), in the definition of ``Designated country'' in paragraph (i) adding, in alphabetical order, the country of ``Croatia''.

252.225-7045 [Amended]

4. Amend section 252.225-7045 by--

a. Removing the date ``(AUG 2013)'' and adding ``(OCT 2013)'' in its place; and

b. In paragraph (a), in the definition of ``Designated country'' in paragraph (1), adding, in alphabetical order, the country of ``Croatia''.

[FR Doc. 2013-25730 Filed 10-30-13; 8:45 am]

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[Federal Register Volume 78, Number 211 (Thursday, October 31, 2013)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2013-25726]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 252

RIN 0750-AH79

Defense Federal Acquisition Regulation Supplement: New Free Trade Agreement--Panama (DFARS Case 2012-D044)

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

ACTION: Final rule.

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SUMMARY: DoD has adopted as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement the United States--Panama Trade Promotion Agreement. This Trade Promotion Agreement is a free trade agreement that provides for mutually non-discriminatory treatment of eligible products and services from Panama.

DATES: Effective October 31, 2013.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Telephone 571-372-6106.

SUPPLEMENTARY INFORMATION:

I. Background

DoD published an interim rule in the Federal Register at 77 FR 68699 on November 16, 2012, to implement the United States--Panama Trade Promotion Agreement. No respondents submitted public comments in response to the interim rule; however, a conforming change was made to the Duty-Free Entry clause, an amendment was made to the Photovoltaic Devices--Certificate clause to correct the electronic Code of Federal Regulations, and a correction was made to Alternate I of the Buy American Act-Free Trade Agreements-Balance of Payments Program Certificate. Therefore, DoD is converting the interim rule to a final rule with changes.

II. 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.

III. Regulatory Flexibility Act

DoD certifies that this final rule will not 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 Department of Defense only applies the trade agreements to the non-defense items listed at DFARS 225.401-70, and acquisitions that are set aside or provide other forms of preference for small businesses are exempt. FAR 19.502-2 states that acquisitions that do not exceed $150,000 (with some exceptions) are automatically reserved exclusively for small business concerns.

IV. Paperwork Reduction Act

This rule affects the certification and information collection requirements in the provisions at DFARS 252.225-7020 and 252.225-7035 and the clause at 252.225-7013, currently approved under OMB Control Number 0704-229, titled Defense Federal Acquisition Regulation Supplement part 225, Foreign Acquisition, and related clauses, in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is negligible, because it is just a question of under which category offered goods from Panama would be listed and inclusion of products of Panama in the definition of ``eligible products'' in acquisitions that are equal to or exceed $202,000. The rule also affects DFARS 252.225-7018, which is a variant of the Buy American-trade agreements certifications already approved, which was issued as an interim rule under DFARS Case 2011-D046 (76 FR 78858, December 20, 2011).

List of Subjects in 48 CFR Part 252

Government procurement.

Manuel Quinones,

Editor, Defense Acquisition Regulations System.

Accordingly, the interim rule amending 48 CFR part 252, which was published at 77 FR 68699 on November 16, 2012, is adopted as a final rule with the following changes:

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

1. The authority citation for 48 CFR part 252 continues to read as follows:

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

2. Section 252.225-7013 is amended--

a. By removing the clause date ``(JUN 2012)'' and adding ``(OCT 2013)'' in its place;

b. By revising the paragraph (a) definition for ``Eligible product''; and

c. By amending the paragraph (a) definition for ````Qualifying country'' and ``qualifying country end product'''' by adding the term ``,basic or alternate'' at the end of the sentence.

The revision reads as follows:

252.225-7013 Duty-Free Entry

* * * * *

(a) * * *

Eligible product means--

(i) Designated country end product as defined in the Trade Agreements clause of this contract;

(ii) Free Trade Agreement country end product, other than a Bahrainian end product, a Moroccan end product, a Panamanian end product, or a Peruvian end product, as defined in the Buy American--Free Trade Agreements--Balance of Payments Program clause of this contract, basic or its Alternate II;

(iii) Canadian end product as defined in Alternate I or Alternate III of the Buy American--Free Trade Agreements--Balance of Payments Program clause of this contract; or

(iv) Free Trade Agreement country end product other than a Bahrainian end product, Korean end product, Moroccan end product, Panamanian end product, or Peruvian end product as defined in Alternate IV or Alternate V of the Buy American--Free Trade Agreements--Balance of Payments Program clause of this contract.

* * * * *

252.225-7018 [Amended]

3. Section 252.225-7018 paragraph (c)(6) is amended by removing ``$203,000'' and adding ``$202,000'' in its place.

4. Section 252.225-7035, Alternate I is revised as follows:

252.225-7035 Buy American--Free Trade Agreements--Balance of Payments Program Certificate.

* * * * *

ALTERNATE I (OCT 2013)

As prescribed in 225.1101(9)(ii), substitute the phrase ``Canadian end product'' for the phrases ``Bahrainian end product,'' ``Free Trade Agreement country,'' ``Free Trade Agreement country end product,'' ``Moroccan end product,'' ``Panamanian end product,'' and ``Peruvian end products'' in paragraph (a) of the basic provision; substitute the phrase ``Canadian end products'' for the phrase ``Free Trade Agreement country end products other than Bahrainian end products, Moroccan end products, Panamanian end products, or Peruvian end products'' in paragraphs (b)(2) and (c)(2)(ii) of the basic provision; and delete the phrase ``Australian or'' from paragraph (c)(2)(i) of the basic provision.

* * * * *

[FR Doc. 2013-25726 Filed 10-30-13; 8:45 am]

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