Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 30659 

data to determine a fair and reasonable 

price. If the acquisition exceeds the 

certified cost or pricing data threshold 

and an exception to the requirement for 

certified cost or pricing data at FAR 

15.403–1(b)(2) through (5) does not 

apply, the cost or pricing data shall be 

certified. 

(c) If the contracting officer is still 

unable to determine that the offered 

price is fair and reasonable, the 

contracting officer shall enter into 

negotiations with the offeror to establish 

a fair and reasonable price. The 

negotiated price should not exceed the 

offered price. 

(d) If the contracting officer is unable 

to negotiate a fair and reasonable price, 

see FAR 15.405(d). 

■ 3. Amend section 215.408 by— 

■ a. Revising paragraph (3); and 

■ b. In paragraph (5) introductory text, 

removing ‘‘required’’ and adding 

‘‘required or when using the provision 

at DFARS 252.215–7008’’ in its place. 

The revision reads as follows: 

215.408 Solicitation provisions and 

contract clauses. 

* * * * * 

(3) Use the provision at 252.215–7008, 

Only One Offer, in competitive 

solicitations that exceed the simplified 

acquisition threshold, including 

solicitations using FAR part 12 

procedures for the acquisition of 

commercial items. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 4. Amend section 252.215–7008 by— 

■ a. Removing the provision date ‘‘(OCT 

2013)’’ and adding ‘‘(DATE)’’ in its 

place; 

■ b. Revising paragraph (a); 

■ c. Removing paragraphs (b) and (d); 

■ d. Redesignating paragraph (c) as 

paragraph (b); and 

■ e. Adding a new paragraph (c). 

The revision and addition read as 

follows: 

252.215–7008 Only One Offer. 

* * * * * 

(a) After initial submission of offers, 

if the Contracting Officer notifies the 

Offeror that only one offer was received, 

the Offeror agrees to— 

(1) Submit any additional cost or 

pricing data that 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); and 

(2) Except as provided in paragraph 

(b) of this provision, if the acquisition 

exceeds the certified cost of pricing data 

threshold and an exception to the 

requirement for certified cost or pricing 

data at FAR 15.403–1(b)(2) through (5) 

does not apply, certify all cost or pricing 

data in accordance with paragraph (c) of 

provision 252.215–7010, Requirements 

for Certified Cost or Pricing Data and 

Data Other Than Certified Cost or 

Pricing Data, of this solicitation. 

* * * * * 

(c) Subcontracts. Unless the Offeror is 

the Canadian Commercial Corporation, 

the Offeror shall insert the substance of 

this provision, including this paragraph 

(c), in all subcontracts exceeding the 

simplified acquisition threshold defined 

in FAR part 2. 

(End of provision) 

■ 5. Amend section 252.215–7010 by— 

■ a. In the basic provision— 

■ i. Removing the provision date of 

‘‘(JAN 2018)’’ and adding ‘‘(DATE)’’ in 

its place; 

■ ii. In paragraph (c), adding new 

paragraph (3); 

■ b. In the Alternate I clause— 

■ i. Removing the provision date of 

‘‘(JAN 2018)’’ and adding ‘‘(DATE)’’ in 

its place; and 

■ ii. In paragraph (c), adding new 

paragraph (3). 

The additions read as follows: 

252.215–7010 Requirements for Certified 

Cost or Pricing Data and Data Other Than 

Certified Cost or Pricing Data. 

* * * * * 

(c) * * * 

(3) The Offeror is responsible for 

determining whether a subcontractor 

qualifies for an exception from the 

requirement for submission of certified 

cost or pricing data on the basis of 

adequate price competition, i.e. two or 

more responsible offerors, competing 

independently, submit responsive and 

viable offers in accordance with FAR 

15.403–1(c)(1)(ii). 

* * * * * 

Alternate I. * * * 

* * * * * 

(c) * * * 

(3) The Offeror is responsible for 

determining whether a subcontractor 

qualifies for an exception from the 

requirement for submission of certified 

cost or pricing data on the basis of 

adequate price competition, i.e. two or 

more responsible offerors, competing 

independently, submit responsive and 

viable offers in accordance with FAR 

15.403–1(c)(1)(ii). 

* * * * * 

[FR Doc. 2018–14062 Filed 6–28–18; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 217 and 252 

[Docket DARS–2018–0036] 

RIN 0750–AJ87 

Defense Federal Acquisition 

Regulation Supplement: Modification 

of DFARS Clause ‘‘Surge Option’’ 

(DFARS Case 2018–D025) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

revise a clause to reflect current 

terminology and industry practices, 

pursuant to action taken by the 

Regulatory Reform Task Force. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

August 28, 2018, to be considered in the 

formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2018–D025, 

using any of the following methods: 

• Regulations.gov: http://

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

entering ‘‘DFARS Case 2018–D025’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2018– 

D025.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2018– 

D025’’ on your attached document. 

• Email: osd.dfars@mail.mil. Include 

DFARS Case 2018–D025 in the subject 

line of the message. 

• Fax: 571–372–6094. 

• Mail: Defense Acquisition 

Regulations System, Attn: Carrie Moore, 

OUSD (A&S) DPAP/DARS, Room 

3B941, 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 2 to 3 days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Carrie Moore, telephone 571–372–6093. 


sradovich on DSK3GMQ082PROD with PROPOSALS
30660 Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 

SUPPLEMENTARY INFORMATION: 

I. Background 

This rule proposes to revise the 

DFARS by modifying DFARS clause 

252.217–7001, Surge Option, to replace 

the term ‘‘Production Surge Plan (DI– 

MGMT–80969)’’ with ‘‘Capabilities 

Analysis Plan (CAP)’’ and add text to 

permit the option increase of supplies or 

services called for under the clause to be 

expressed as a specific number. The 

associated clause prescription at DFARS 

217.208–70(b) is proposed to be 

amended to reflect that the option 

increase of supplies or services may also 

be expressed as a specific number. 

This clause is incorporated into 

contracts that support industrial 

planning for selected essential military 

items in the event of a national 

emergency. Currently, the clause 

advises contractors that the Government 

has the option to increase the supplies 

or services delivered under the contract 

up to a specified percentage or 

accelerate the rate of delivery. It also 

instructs contractors to follow the 

Production Surge Plan (DI MGMT 

80969) included in the contract or, if no 

plan is in the contract, to provide a 

delivery schedule to the Government 

within 30 days of contract award. A 

review of the clause text indicates that 

it should be modified to reflect current 

practices in the marketplace. 

II. Discussion and Analysis 

Paragraphs (b)(1) and (2) of DFARS 

clause 252.217–7001 include a reference 

to a Production Surge Plan (DI MGMT 

80969). DoD subject matter experts 

advise that Production Surge Plan (DI 

MGMT 80969) is no longer an up-todate reference and that Capabilities 

Analysis Plan (CAP) is the current 

terminology used in industrial planning 

efforts. This rule will update the clause 

paragraphs to reflect the current 

industry terminology. 

Paragraph (a) of the DFARS clause 

provides contractors with a maximum 

quantity of supplies or services by 

which the Government may increase the 

contract in order to support a surge 

need. This quantity is expressed as a 

percentage of the supplies or services 

currently being provided for under the 

contract. Supply chains supporting 

surge needs more commonly express 

increases of supplies or services as a 

specific number of additional supplies 

or services to be provided under the 

contract, as opposed to an additional 

percentage of the supplies or services 

already being provided under the 

contract. In order to reflect current 

supply chain practices, this rule 

proposes to permit the contracting 

officer to express DoD’s surge need as a 

specific quantity of supplies or services 

needed, or utilize the existing method of 

expressing the surge need as a 

percentage of contracted supplies or 

services. 

The proposed revision to this DFARS 

clause supports a recommendation from 

the DoD Regulatory Reform Task Force. 

On February 24, 2017, the President 

signed Executive Order (E.O.) 13777, 

‘‘Enforcing the Regulatory Reform 

Agenda,’’ which established a Federal 

policy ‘‘to alleviate unnecessary 

regulatory burdens’’ on the American 

people. In accordance with E.O. 13777, 

DoD established a Regulatory Reform 

Task Force to review and validate DoD 

regulations, including the DFARS. A 

public notice of the establishment of the 

DFARS Subgroup to the DoD Regulatory 

Reform Task Force, for the purpose of 

reviewing DFARS provisions and 

clauses, was published in the Federal 

Register at 82 FR 35741 on August 1, 

2017, and requested public input. No 

public comments were received on this 

clause. Subsequently, the DoD Task 

Force reviewed the requirements of 

DFARS 252.217–7001, Surge Option, 

and determined that the DFARS 

coverage should be revised to align with 

industry practice. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Items, Including Commercially 

Available Off-the-Shelf (COTS) Items 

This rule does not propose to create 

any new provisions or clauses. The 

proposed changes to DFARS clause 

252.217–7001, Surge Option, are 

minimal and reflect only updates 

required to mirror current industry 

terminology and practice for support 

that may be required for industrial 

planning for selected essential military 

items in the event of a national 

emergency. The rule applies to contracts 

below the SAT, however, the rule does 

not apply to commercial items and 

COTS items. 

IV. Executive Orders 12866 and 13563 

Executive Order (E.O.) 12866, 

Regulatory Planning and Review; and 

E.O. 13563, Improving Regulation and 

Regulatory Review, 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 Management 

and Budget, Office of Information and 

Regulatory Affairs (OIRA), has 

determined that this is not a significant 

regulatory action as defined under 

section 3(f) of E.O. 12866 and, therefore, 

was not subject to review under section 

6(b). This rule is not a major rule as 

defined at 5 U.S.C. 804(2). 

V. Executive Order 13771 

This rule is not an E.O. 13771, 

Reducing Regulation and Controlling 

Regulatory Costs, regulatory action, 

because this rule is not significant under 

E.O. 12866. 

VI. Regulatory Flexibility Act 

DoD does not expect this proposed 

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 the rule is only updating 

a term used in the clause and However, 

an initial regulatory flexibility analysis 

has been performed and is summarized 

as follows: 

The Department of Defense is 

proposing to amend the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to revise a clause to reflect 

current terminology and industry 

practices, pursuant to action taken by 

the Regulatory Reform Task Force. 

The objective of this proposed rule is 

to improve the flexibility offered to 

contractors when submitting pricing by 

giving the option to quote prices by 

percentage or quantity increases and 

update the terminology used from 

‘‘Production Surge Plan’’ to ‘‘Capability 

Analysis Plan’’ (CAP). The modification 

of this DFARS text supports a 

recommendation from the DoD 

Regulatory Reform Task Force. 

This rule is not expected 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. 

Based on fiscal year 2017 data from the 

Federal Procurement Data System, the 

Government issued approximately 78 

contract actions that cited mobilization 

as the reason for other than full and 

open competition for the surge option. 

Of the 78 total contract actions, 

approximately 33 awards were made to 

24 unique small businesses entities. 

This proposed rule does not include 

any new reporting, recordkeeping, or 

other compliance requirements for small 

businesses. This rule does not duplicate, 

overlap, or conflict with any other 

Federal rules. There are no known 

significant alternative approaches to the 


sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 30661 

proposed rule that would meet the 

proposed objectives. 

VI. 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 217 and 

252 

Government procurement. 

Amy G. Williams, 

Deputy, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 217 and 252 

are proposed to be amended as follows: 

■ 1. The authority citation for parts 217 

and 252 continues to read as follows: 

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

chapter 1. 

PART 217—SPECIAL CONTRACTING 

METHODS 

217.208–70 [Amended] 

■ 2. In section 217.208–70, amend 

paragraph (b)(1), by removing 

‘‘percentage’’ and adding ‘‘percentage or 

quantity’’ in its place. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Amend section 252.217–7001 by— 

■ a. Removing the clause date of ‘‘(AUG 

1992)’’ and adding ‘‘(DATE)’’ in its 

place; 

■ b. Revising paragraph (a)(1); 

■ c. In paragraph (b)(1), removing 

‘‘Production Surge Plan (DI–MGMT)’’ 

and adding ‘‘(Capabilities Analysis Plan 

(CAP)’’ in its place; and 

■ d. In paragraph (b)(2), removing 

‘‘Production Surge Plan’’ and adding 

‘‘CAP’’ in its place. 

The revision reads as follows: 

252.217–7001 Surge Option. 

* * * * * 

(a) * * * 

(1) Increase the quantity of supplies or 

services called for under this contract by 

no more than ll percent or ll

[insert quantity and description of 

services or supplies to be increased]; 

and/or 

* * * * * 

[FR Doc. 2018–14040 Filed 6–28–18; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 232, 246, 252, and 

Appendix F to Chapter 2 

[Docket DARS–2018–0037] 

RIN 0750–AJ44 

Defense Federal Acquisition 

Regulation Supplement: Electronic 

Submission and Processing of 

Payment Requests and Receiving 

Reports (DFARS Case 2016–D032) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

clarify policies and procedures for 

submission of payment requests and 

receiving reports in electronic form. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

August 28, 2018, to be considered in the 

formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2016–D032, 

using any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for 

‘‘DFARS Case 2016–D032.’’ Select 

‘‘Comment Now’’ and follow the 

instructions provided to submit a 

comment. Please include ‘‘DFARS Case 

2016–D032’’ on any attached 

documents. 

• Email: osd.dfars@mail.mil. Include 

DFARS Case 2016–D032 in the subject 

line of the message. 

• Fax: 571–372–6094. 

• Mail: Defense Acquisition 

Regulations System, Attn: Ms. Jennifer 

D. Johnson, OUSD (A&S) DPAP/DARS, 

Room 3B941, 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 2 to 3 days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Jennifer D. Johnson, telephone 571– 

372–6100. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This proposed rule clarifies and, 

where necessary, updates policies and 

procedures for providing electronic 

payment-related documents and for 

processing payment requests and 

receiving reports in Wide Area 

WorkFlow (WAWF). Title 10 of the 

United States Code (U.S.C.), section 

2227, Electronic Submission and 

Processing of Claims for Contract 

Payments, requires that any claim for 

payment under a DoD contract be in 

electronic format. If electronic 

submission is unduly burdensome, 10 

U.S.C. 2227 allows an exemption. DoD 

published a final rule in the Federal 

Register at 77 FR 38731 on June 29, 

2012 (DFARS Case 2011–D027), to 

update DFARS policies and procedures 

for electronic submission of payment 

requests and receiving reports and 

established WAWF as the accepted DoD 

system for processing invoices and 

receiving reports. 

Some contractors have been 

prevented from using WAWF for some 

contracts because of a misinterpretation 

of the exemptions in DFARS subpart 

232.70, Electronic Submission and 

Processing of Payment Requests and 

Receiving Reports. This proposed rule 

clarifies those exemptions and allows 

contractors to request permission from 

the contracting officer, in writing, to 

submit payment requests and receiving 

reports using temporary alternative 

methods, other than in electronic form. 

II. Discussion and Analysis 

DoD is proposing to amend DFARS 

parts 232, 246, 252, and Appendix F to 

clarify and, where necessary, update the 

policies and procedures for electronic 

submission of payment requests and 

receiving reports. The following is a 

summary of the proposed changes: 

• DFARS subpart 232.70, Electronic 

Submission and Processing of Payment 

Requests and Receiving Reports. 

Definitions of the terms ‘‘electronic 

form,’’ ‘‘payment request,’’ and 

‘‘receiving report’’ are inserted in their 

entirety in lieu of the reference stating 

that the terms are defined in the clause 

at DFARS 252.232–7003, Electronic 

Submission of Payment Requests. The 

policy on exceptions to submission of 

payment requests in electronic form is 

clarified by deleting the current list of 

exceptions at DFARS 232.7002(a)(ii) and 

providing a more general exception for 

cases in which contractor submission of 

electronic payment requests is not 

feasible (e.g., when contract 

performance is in a contingency or 

austere environment where internet 

connectivity is not available). This 


sradovich on DSK3GMQ082PROD with PROPOSALS