Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 10989 

TABLE 1 TO 180.910 

Inert ingredients Limits 

(%) Uses 

*******

Fatty acids, tall-oil, esters with triethanolamine, ethoxylated (CAS Reg. No. 68605–38–9) .................................. 10 Surfactant. 

Fatty acids, C8–18 and C18-unsatd., esters with polyethylene glycol ether with triethanolamine (3:1) (CAS Reg. 

No. 2464873–19–4).

10 Surfactant. 

*******

[FR Doc. 2022–04123 Filed 2–25–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 206 

[Docket DARS–2019–0051] 

RIN 0750–AK67 

Defense Federal Acquisition 

Regulation Supplement: Exception to 

Competition for Certain Follow-On 

Production Contracts (DFARS Case 

2019–D031) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

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 2016 that modifies the 

criteria required to exempt from 

competition certain follow-on 

production contracts. 

DATES: Effective February 28, 2022. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Kimberly R. Ziegler, telephone 571– 

372–6095. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 84 FR 50811 on 

September 26, 2019, to amend DFARS 

206.001 to implement section 815 of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2016 (Pub. 

L. 114–92). Section 815 repeals and 

replaces section 845 of the NDAA for FY 

1994 (Pub. L. 103–160; 10 U.S.C. 2371 

note) with 10 U.S.C. 2371b, which 

modifies the authority of DoD to carry 

out other transaction (OT) agreements 

for prototype projects, as well as the 

criteria required to award an associated 

follow-on production contract to the 

participants in the other transaction 

agreement without the use of 

competitive procedures. One 

respondent submitted comments on the 

proposed rule. 

II. Discussion and Analysis 

A. Summary of Significant Changes 

The purpose of this rule is to provide 

contracting officers with updated 

internal guidance when awarding a 

follow-on production contract that is 

exempt from the competitive procedures 

of Federal Acquisition Regulation part 

6, as set forth in 10 U.S.C. 2371b. The 

rule is not intended to implement 

policy, regulation, or guidance on DoD’s 

authority to enter into OT prototype 

agreements at 10 U.S.C. 2371b. As such, 

this final rule changes the rule text to 

specify that the agreements officer for 

the OT agreement for the prototype 

project is responsible for providing to 

the contracting officer information that 

confirms the requirements to award a 

noncompetitive follow-on production 

contract, as specified in 10 U.S.C. 2371b 

and DoD OT agreement policy, have 

been met. 

B. Analysis of Public Comments 

DoD reviewed the public comments in 

the development of the final rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments is provided, as follows: 

Comment: The respondent advised 

that DoD should provide clear guidance 

on what constitutes ‘‘successful 

completion’’ of a prototype transaction; 

the rule text should be clarified to 

explain what it means to award a 

follow-on production contract to ‘‘the 

participants in the transaction,’’ as 

contracts are usually made between the 

Government and a single entity; the rule 

should clarify what a ‘‘participant’’ is, 

given that not all parties to a transaction 

necessarily participate in the project. 

The respondent also advised that the 

rule should be revised to clarify the 

prerequisites for awarding the OT for 

the prototype project and the 

prerequisites for awarding a follow-on 

production contract. Specifically, one of 

the criteria for awarding a follow-on 

production contract is that the OT for 

the prototype project is based on 

specific determinations made by certain 

acquisition officials according to 

different threshold values. The 

proposed rule, however, applies these 

determination requirements only to the 

follow-on production contract, when 

they should instead apply only to the 

initial OT agreement. Response: This rule is not intended to 

implement policy, regulation, or 

guidance on DoD’s authority to enter 

into OT prototype agreements at 10 

U.S.C. 2371b. Instead, the Office of the 

Under Secretary of Defense for 

Acquisition and Sustainment 

(OUSD(A&S)) is the organization 

responsible for promulgation of policy 

for OT agreements, which can be 

viewed at https://aaf.dau.edu/aaf/otguide/. As a result, this rule is modified 

to clarify that the contracting officer 

does not make the determination that 

the prototype project was successfully 

completed and, instead, should receive 

that information from the agreements 

officer for the OT agreement. Comment: The respondent advised 

that 32 CFR part 3 should be updated 

to reflect the current authority at 10 

U.S.C. 2371b. 

Response: This comment is outside 

the scope of this rule, which amends 48 

CFR chapter 2. 

C. Other Changes 

The proposed numbering of the 

DFARS text is redesignated as DFARS 

206.001–70 from 206.001(S–70) to align 

with FAR system drafting conventions. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold, for Commercial Products 

Including Commercially Available Offthe-Shelf Items, and for Commercial 

Services 

This rule only impacts the internal 

operating procedures of the agency. The 

rule does not impose any new 

requirements on contracts at or below 


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10990 Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 

the simplified acquisition threshold, for 

commercial products including 

commercially available off-the-shelf 

items, or for commercial services. 

IV. Executive Orders 12866 and 13563 

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 the 

Comptroller General of the United 

States. A major rule under the 

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 

A final regulatory flexibility analysis 

(FRFA) has been prepared consistent 

with the Regulatory Flexibility Act, 5 

U.S.C. 601, et seq. The FRFA is 

summarized as follows: 

The Department of Defense is 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement section 815 of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2016 (Pub. 

L. 114–92), which repeals and replaces 

section 845 of the NDAA for FY 1994 

(Pub. L. 103–160; 10 U.S.C. 2371 note) 

with 10 U.S.C. 2371b. 

The objective of this rule is to provide 

contracting officers with updated 

internal guidance when awarding a 

follow-on production contract that is 

exempt from the competitive procedures 

of Federal Acquisition Regulation part 

6, as set forth in 10 U.S.C. 2371b. 

No public comments were received in 

response to the initial regulatory 

flexibility analysis. 

DoD does not collect data on the 

number of follow-on production 

contracts that are awarded annually and 

associated with a prototype project 

transaction agreement made under the 

authority of 10 U.S.C. 2371b; therefore, 

DoD is unable to estimate the number of 

small entities that will be impacted by 

this rule. However, DoD does not expect 

small entities to be significantly 

impacted by this rule, because the rule 

does not change any existing processes 

or impose any additional burdens. 

Instead, the rule simply clarifies 

instructions to contracting officers on 

the criteria that must be met in order to 

award an associated follow-on 

production contract without using 

competitive procedures. 

This rule does not include any new 

reporting, recordkeeping, or other 

compliance requirements for small 

entities. This rule does not duplicate, 

overlap, or conflict with any other 

Federal rules. There are no known 

alternative approaches to the rule that 

would meet the stated objectives. 

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 

■ 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. 

206.001 [Amended] 

■ 2. Amend section 206.001 by 

removing paragraph (S–70). 

■ 3. Add 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. 2371b for prototype projects 

when— 

(1) The other transaction solicitation 

and agreement included provisions for a 

follow-on production contract; and 

(2) The contracting officer receives 

sufficient documentation from the 

agreements officer of the other 

transaction agreement for the prototype 

project that the requirements of 10 

U.S.C. 2371b sections (f)(2)(A) and (B) 

and, when applicable, section (a)(2), 

have been met. 

(b) See PGI 206.001–70(b) for 

additional guidance. 

[FR Doc. 2022–04011 Filed 2–25–22; 8:45 am] 

BILLING CODE 5001–06–P 


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