2010-13525. Defense Federal Acquisition Regulation Supplement; Limitations on Procurements With Non-Defense Agencies (DFARS Case 2009-D027)

AGENCY:

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

ACTION:

Interim rule with request for comments.

SUMMARY:

DoD is issuing an interim rule to implement section 806 of the National Defense Authorization Act for Fiscal Year 2010 authorizing the placing of contracts for property and services in excess of the simplified acquisition threshold by certain non-DoD agencies for the performance of a joint program conducted to meet the needs of DoD and the non-DoD agency.

DATES:

Effective Date: June 8, 2010.

Comment Date: Comments on the interim rule should be submitted in writing to the address shown below on or before August 9, 2010, to be considered in the formation of the final rule.

ADDRESSES:

Submit comments identified by DFARS Case 2009-D027, using any of the following methods:

○ Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

○ E-mail: [e-mail]. Include DFARS Case 2009-D027 in the subject line of the message.

○ Fax: [phone].

○ Mail: Defense Acquisition Regulations System, Attn: Meredith Murphy, OUSD(AT&L)DPAP(DARS), 3060 Defense Pentagon, Room 3B855, Washington, DC 20301-3060.

Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT:

Ms. Meredith Murphy, Telephone [phone].

SUPPLEMENTARY INFORMATION:

A. Background

Section 854 of the National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375) prescribed policy for the acquisition of supplies and services through the use of contracts or orders issued by non-DoD agencies. Section 801(b) of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181) authorized a DoD acquisition official to procure property and services in excess of the simplified acquisition threshold through a non-DoD agency only if: (1) The non-DoD agency agreed to adhere to defense procurement requirements; or (2) the Under Secretary of Defense (AT&L) certified that the procurement is in the best interest of DoD.

Section 806 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84) amended the limitations placed on procurements by non-DoD agencies by exempting such procurements that are (a) entered into by a non-DoD agency that is an element of the intelligence community and (b) when the procurement is for the performance of a joint program conducted to meet the needs of DoD and the non-DoD agency. Section 806 referred to section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)) to identify non-DoD agencies that are an element of the intelligence community.

B. Discussion

The National Security Act of 1947 defines the term “intelligence community” to include a number of defense and non-defense agencies and portions of such agencies. The definition of “non-DoD agency that is an element of the intelligence community” replicates the statutory list, absent the DoD agencies.

DFARS subpart 217.78 is amended by adding the definition at 217.7801 and excluding such agencies from the requirements of 217.7802(a) when the procurement is for performance of a joint program conducted to meet the needs of DoD and the non-DoD agency.

This is not a significant regulatory action, and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 604.

C. 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 section 806 affects only internal government operations and procedures. The interim rule does not impose any additional requirements on small businesses. Therefore, an Initial Regulatory Flexibility Analysis has not been performed. 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 2009-D027) in correspondence.

D. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to the DFARS do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

E. Determination To Issue an Interim Rule

A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because the statute became effective upon enactment, and it is imperative that DoD contracting officers be aware of the limitations on interagency procurements and the circumstances under which certain programs need not be delayed by such limitations. However, pursuant to 41 U.S.C. 418b and FAR 1.501-3, 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 217

• Government procurement

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 217 is amended as follows:

PART 217—SPECIAL CONTRACTING METHODS

1. The authority citation for 48 CFR part 217 continues to read as follows:

Authority: 41 U.S.C. 421 and 48 CFR chapter 1.

2. Section 217.7800 is amended by revising paragraph (a) to read as follows:

217.7800

Scope of subpart.

* * * * *

(a) Implements section 854 of the National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375), section 801 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), and section 806 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84); and

* * * * *

3. Section 217.7801 is amended by adding the following definition in appropriate alphabetical order:

217.7801

Definitions.

* * * * *

Non-DoD agency that is an element of the intelligence community means the Office of the Director of National Intelligence; the Central Intelligence Agency; the intelligence elements of the Federal Bureau of Investigation; the intelligence elements of the Department of Energy; the Bureau of Intelligence and Research of the Department of State; the Office of Intelligence and Analysis of the Department of the Treasury; and the elements of the Department of Homeland Security concerned with the analysis of intelligence information, including the Office of Intelligence of the Coast Guard.

4. Section 217.7802 is amended by adding paragraph (a)(3) to read as follows:

217.7802

Policy.

(a) * * *

(3) The limitation in paragraph (a) of this section does not apply to contracts entered into by a non-DoD agency that is an element of the intelligence community for the performance of a joint program conducted to meet the needs of DoD and the non-DoD agency.

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