[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Rules and Regulations]
[Pages 13544-13546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04355]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 215, 225, and 252
RIN 0750-AH73
Defense Federal Acquisition Regulation Supplement: Acquisition of
Tents and Other Temporary Structures (DFARS Case 2012-D015)
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 DFARS to implement sections of the National Defense
Authorization Act for Fiscal Year 2012 that address the acquisition of
tents and other temporary structures.
DATES: Effective February 28, 2013.
FOR FURTHER INFORMATION CONTACT: Fernell Warren, telephone 571-372-
6089.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published an interim rule in the Federal Register (77 FR 38734)
on June
[[Page 13545]]
29, 2012, to implement sections 368 and 821 of the National Defense
Authorization Act for Fiscal Year 2012 (Pub. L. 112-81). Section 368
requires award of contracts that provide the best value, when acquiring
tents and other temporary structures, regardless of whether purchased
by DoD or by another agency on behalf of DoD. Section 821 amends 10
U.S.C. 2533a (the ``Berry Amendment'') to extend the restriction
requiring acquisition of domestic tents to include the structural
components of tents, applicable to acquisitions that exceed the
simplified acquisition threshold.
No respondents submitted comments in response to the interim rule.
II. Discussion
Although no written public comments were received, DoD has amended
the final rule as follows in response to verbal questions, which
indicated possible misinterpretation of the interim rule.
A. Tents and Structural Components of Tents
Question: Does the term ``structural components'' apply just to
tents, or also to tarpaulins and covers?
Response: The vertical listing of the items at 225.7002-1(a)(3) and
252.225-7012(b)(3) ensures clarity that the phrase ``structural
components'' only applies to tents and not also to tarpaulins and
covers.
B. Best Value When Acquiring Tents and Other Temporary Structures
Question: Does the Berry Amendment now apply to temporary
structures?
Response: The interim rule addressed at DFARS 225.7002-1(a)(3)(i)
the requirement to award contracts that provide best value, when
acquiring tents and other temporary structures. DFARS 225.7002-1
implements the domestic source restrictions of the Berry Amendment (10
U.S.C. 2533a). However, temporary structures are not covered under the
Berry Amendment. Therefore, this requirement relating to best value has
been moved to DFARS 215.101, supplementing FAR 15.101, Best value
continuum. This will remove any implication that temporary structures
are covered by the Berry Amendment.
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.
The Office of Information and Regulatory Affairs has determined that
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 final 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. However, a final
regulatory flexibility analysis has been prepared and is summarized as
follows:
The objectives of this final rule are to--
Require that contracts for the acquisition of tents and
other temporary structures provide best value, regardless of whether
purchased by DoD or by another agency on behalf of DoD; and
Extend the domestic source restriction of 10 U.S.C. 2533a
(the ``Berry Amendment'') to cover the structural components of tents,
in order to promote the use of domestic materials and enhance growth of
the United States economy.
The legal basis for this final rule is sections 368 and 821 of the
National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-
81). The requirement to award contracts that provide best value to the
Government does not have any impact on small business entities, because
that is already a general requirement for all acquisitions.
The domestic source restriction on the structural components of
tents does not apply below the simplified acquisition threshold. This
restriction may affect approximately 40 or fewer small business
concerns at the prime contract level. Review of the Fiscal Year 2011
data on acquisition of items with product or service code 8340 (tents
or tarpaulins) identified 49 actions with small business concerns
(contracts or orders), estimated value of $48.6 million, of which about
10 percent appeared to be for other than tents (e.g., prefabricated
metal buildings and components, metal household furnishings, or
electrical equipment). The Federal Procurement Data System does not
provide data on components, so it is not known the extent to which the
providers of tents currently utilize domestic or foreign structural
components. An exception may be granted if a component is domestically
nonavailable. However, this rule promotes the use of domestic
components, and should, therefore, be favorable to small entities that
provide domestic structural components of tents. The requirements of
the rule for use of domestic components will not apply below the
simplified acquisition threshold.
This rule does not impose any reporting or recordkeeping
requirements. The rule does not duplicate, overlap, or conflict with
any other Federal rules.
DoD did not identify any significant alternatives that would
accomplish the stated objectives of the statute. The rule specifically
implements the statutory requirement.
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 Parts 215, 225, and 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations System.
Accordingly, the interim rule amending 48 CFR parts 215, 225, and
252 which was published at 77 FR 38734 on June 29, 2012, is adopted as
a final rule with the following changes:
0
1. The authority citation for 48 CFR parts 215, 225, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 215--CONTRACTING BY NEGOTIATION
0
2. Subpart 215.1 is added to read as follows:
Subpart 215.1--Source Selection Processes and Techniques
Sec.
225.101 Best value continuum.
215.101-70 Best value when acquiring tents or other temporary
structures.
215.101 Best value continuum.
215.101-70. Best value when acquiring tents or other temporary
structures.
(a) In accordance with section 368 of the National Defense
Authorization Act for Fiscal Year 2012 (Pub. L. 112-81), when acquiring
tents or other temporary
[[Page 13546]]
structures for use by the Armed Forces, the contracting officer shall
award contracts that provide the best value. Temporary structures
covered by this paragraph are nonpermanent buildings, including
tactical shelters, nonpermanent modular or pre-fabricated buildings, or
portable or relocatable buildings, such as trailers or equipment
configured for occupancy (see also 246.270-2). Determination of best
value includes consideration of the total life-cycle costs of such
tents or structures, including the costs associated with any equipment,
fuel, or electricity needed to heat, cool, or light such tents or
structures (see FAR 7.105(a)(3)(i) and PGI 207.105(a)(3)(i)).
(b) The requirements of this section apply to any agency or
department that acquires tents or other temporary structures on behalf
of DoD (see FAR 17.503(d)(2)).
PART 225--FOREIGN ACQUISITION
0
3. Section 225.7002-1 is amended by revising paragraph (a)(3) to read
as follows:
225.7002-1 Restrictions.
(a) * * *
(3)(i) Tents and the structural components of tents;
(ii) Tarpaulins; or
(iii) Covers.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.212-7001 [Amended]
0
4. Section 252.212-7001 is amended by removing the clause date ``(DEC
2012)'' and adding ``(FEB 2013)'' in its place, and in paragraph (b)(9)
removing ``(DEC 2012)'' and adding ``(FEB 2013)'' in its place.
0
5. Section 252.225-7012 is amended by removing the clause date ``(DEC
2012)'' and adding ``(FEB 2013)'' in its place, and by revising
paragraph (b)(3) to read as follows:
252.225-7012 Preference for certain domestic commodities.
* * * * *
(b) * * *
(3)(i) Tents and structural components of tents;
(ii) Tarpaulins; or
(iii) Covers.
* * * * *
[FR Doc. 2013-04355 Filed 2-27-13; 8:45 am]
BILLING CODE 5001-06-P