Rule2023-11140
Defense Federal Acquisition Regulation Supplement: Modification of Authority of the Department of Defense To Carry Out Certain Prototype Projects (DFARS Case 2023-D006)
Primary source
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Published
May 25, 2023
Effective
May 25, 2023
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
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 2023.
Full Text
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<title>Federal Register, Volume 88 Issue 101 (Thursday, May 25, 2023)</title>
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[Federal Register Volume 88, Number 101 (Thursday, May 25, 2023)]
[Rules and Regulations]
[Pages 33834-33835]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-11140]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 206
[Docket DARS-2023-0021]
RIN 0750-AL79
Defense Federal Acquisition Regulation Supplement: Modification
of Authority of the Department of Defense To Carry Out Certain
Prototype Projects (DFARS Case 2023-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 implement a section of the
National Defense Authorization Act for Fiscal Year 2023.
DATES: Effective May 25, 2023.
FOR FURTHER INFORMATION CONTACT: Ms. Kimberly R. Ziegler, telephone
703-901-3176.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is amending the DFARS to implement section 842 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023 (Pub. L.
117-263), which amends 10 U.S.C. 4022(f)(2) to permit the award of a
follow-on production contract without the use of competitive
procedures, even if explicit notification was not listed within the
request for proposal for the prototype project transaction. This
revision modifies the criteria required to award a follow-on production
contract without the use of competitive procedures at DFARS 206.001-
70(a), which requires other transaction solicitations and agreements to
include provisions for a follow-on contract in order to qualify for an
exception to competition requirements.
The statutory revision to the criteria does not implement new
requirements; instead it removes one of the requirements. The statutes
and regulations that implement DoD's other transactions authority
permit DoD to provide, in the agreement, for the award of a follow-on
production contract to a participant in the prototype project.
Agreements made under DoD's other transactions authority are not
subject to the Federal Acquisition Regulation (FAR) or DFARS; however,
the award of a follow-on production contract resulting from such an
other transaction agreement is subject to these acquisition
regulations.
DoD issued a final rule for DFARS case 2019-D031 (87 FR 10989) on
February 28, 2022, to implement section 815 of the NDAA for FY 2016
(Pub. L. 114-92), which modified the criteria required to exempt from
competition certain follow-on production contracts at DFARS 206.001-
70(a)(1) and (2).
This final rule removes from DFARS 206.001-70(a)(1) the other
transaction solicitation requirement and clarifies that an other
transaction agreement is still statutorily required (10 U.S.C.
4022(f)(1)) to provide for the award of a follow-on production contract
in order for a contracting officer to award the follow-on production
contract without obtaining competition. DFARS 206.001-70(a)(2) is
revised to require documentation from the agreements officer for the
other transaction agreement that, where applicable for the prototype
project, the threshold at 10 U.S.C. 4022(a)(2)(C) and the requirements
at 10 U.S.C. 4022(f)(2)(A) and (B) have been met. These and additional
revisions in 206.001-70(a) are intended to ensure an accurate
interpretation of the statutory requirements of 10 U.S.C. 4022 that are
subject to the DFARS.
II. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the FAR is 41 U.S.C.
1707, Publication of Proposed Regulations. Subsection (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 DoD is removing a requirement
that is no longer mandated by statute and that affects only the
internal operating procedures of DoD.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Services and for Commercial Products,
Including Commercially Available Off-the-Shelf (COTS) Items
This rule does not impose any new requirements on contracts at or
below the simplified acquisition threshold, for commercial services, or
for commercial products, including commercially available off-the-shelf
items.
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.
V. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
Under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and to the Comptroller General of the United
States. A major rule under the
[[Page 33835]]
Congressional Review Act cannot take effect until 60 days after it is
published in the Federal Register. The Office of Information and
Regulatory Affairs has determined that this rule is not a major rule as
defined by 5 U.S.C. 804.
VI. 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.
VII. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Part 206
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR part 206 is amended as follows:
PART 206--COMPETITION REQUIREMENTS
0
1. The authority citation for 48 CFR part 206 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Revise section 206.001-70 to read as follows:
206.001-70 Exception for prototype projects for follow-on production
contracts.
(a) Also excepted from this part are follow-on production contracts
for products developed pursuant to the ``other transactions'' authority
of 10 U.S.C. 4022 for prototype projects, when the contracting officer
receives sufficient documentation from the agreements officer issuing
the other transaction agreement for the prototype project that--
(1) The other transaction agreement included provisions for a
follow-on production contract (10 U.S.C. 4022(f)(1)); and
(2) Where applicable, the threshold at 10 U.S.C. 4022(a)(2)(C) and
the requirements at 10 U.S.C. 4022(f)(2)(A) and (B) have been met.
(b) See PGI 206.001-70 for additional guidance.
[FR Doc. 2023-11140 Filed 5-24-23; 8:45 am]
BILLING CODE 5001-06-P
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