Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Rules and Regulations 15813 

(DFARS) to implement section 820 of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2021 (Pub. 

L. 116–283). Section 820 expands the 

application of the expedited contract 

closeout authority of section 836 of the 

NDAA for FY 2017, implemented at 

DFARS 204.804(3)(i)(A), to certain 

contracts or groups of contracts that 

were awarded at least 7 to 10 FYs before 

the current FY and have completed 

performance or delivery at least 4 years 

prior to the current FY. The new 10-year 

standard will apply to contracts or 

groups of contracts for military 

construction, as defined in 10 U.S.C. 

2801, or shipbuilding, while the 7-year 

standard will apply to all other 

contracts. 

The objective of the rule is to 

implement the requirements of section 

820, which expands the application of 

the expedited contract closeout 

authority of section 836 of the NDAA for 

FY 2017 to more recent, physically 

complete contracts. The legal basis of 

the rule is section 820 of the NDAA for 

FY 2021. 

There were no significant issues 

raised by the public in response to the 

initial regulatory flexibility analysis. 

This rule will likely affect small 

entities that have been or will be 

awarded DoD contracts, including those 

under FAR part 12 procedures for the 

acquisition of commercial products, 

including commercially available offthe-shelf items, and commercial 

services. Data was obtained from the 

Electronic Data Access module of the 

Procurement Integrated Enterprise 

Environment for contracts that were 

physically completed at least 4 years 

ago and are eligible for closeout between 

the new standard of 7 or 10 years and 

the previous standard of at least 17 

fiscal years after award. These numbers 

were then compared to the Federal 

Procurement Data System (FPDS) to 

estimate the number of contracts 

awarded to small entities. Contracts 

subject to the previous standard of 17 

years are included in this estimate. 

As of April 2021, the FPDS data 

indicate that approximately 29,200 

contracts, eligible for expedited closeout 

under the 7-year standard, were 

awarded to an estimated 4,490 unique 

small entities. An additional estimated 

1,775 contracts, subject to the 10-year 

standard, were awarded to 

approximately 576 small entities. As a 

result, DoD estimates that 

approximately 5,066 small entities will 

have the opportunity to benefit from the 

expanded expedited contract authorities 

provided in this rule. 

The rule does not impose any new 

reporting, recordkeeping, or compliance 

requirements. 

There are no practical alternatives 

that will accomplish the objectives of 

the statute. 

VIII. Paperwork Reduction Act 

This rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Part 204 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, 48 CFR part 204 is 

amended as follows: 

PART 204—ADMINISTRATIVE AND 

INFORMATION MATTERS 

■ 1. The authority citation for 48 CFR 

part 204 continues to read as follows: 

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

chapter 1. 

■ 2. Amend section 204.804 by revising 

paragraph (3)(i) to read as follows: 

204.804 Closeout of contract files. 

* * * * * 

(3)(i) In accordance with section 836 

of the National Defense Authorization 

Act for Fiscal Year 2017 (Pub. L. 114– 

328), section 824 of the National 

Defense Authorization Act for Fiscal 

Year 2018 (Pub. L. 115–91), and section 

820 of the National Defense 

Authorization Act for Fiscal Year 2021 

(Pub. L. 116–283), contracting officers 

may close out contracts or groups of 

contracts through issuance of one or 

more modifications to such contracts 

without completing a reconciliation 

audit or other corrective action in 

accordance with FAR 4.804–5(a)(3) 

through (15), as appropriate, if each 

contract— 

(A)(1) For military construction (as 

defined at 10 U.S.C. 2801) or 

shipbuilding, was awarded at least 10 

fiscal years before the current fiscal 

year; or 

(2) For all other contracts, was 

awarded at least 7 fiscal years before the 

current fiscal year; 

(B) The performance or delivery was 

completed at least 4 years prior to the 

current fiscal year; and 

(C) Has been determined by a 

contracting official, at least one level 

above the contracting officer, to be not 

otherwise reconcilable, because— 

(1) The contract or related payment 

records have been destroyed or lost; or 

(2) Although contract or related 

payment records are available, the time 

or effort required to establish the exact 

amount owed to the U.S. Government or 

amount owed to the contractor is 

disproportionate to the amount at issue. 

* * * * * 

[FR Doc. 2022–05532 Filed 3–17–22; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

48 CFR Parts 215 and 252 

[Docket DARS–2022–0005] 

RIN 0750–AL31 

Defense Federal Acquisition 

Regulation Supplement: Evaluation 

Factor for Employing or 

Subcontracting With Members of the 

Selected Reserve (DFARS Case 2021– 

D013) 

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 2021. 

DATES: Effective March 18, 2022. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Kimberly R. Ziegler, Telephone 571– 

372–6095. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is amending the DFARS to 

implement section 821 of the National 

Defense Authorization Act (NDAA) for 

Fiscal Year (FY) 2021 (Pub. L. 116–283) 

that removes the burden of proof at 10 

U.S.C. 2305 note when using an 

evaluation factor for employing or 

subcontracting with members of the 

Selected Reserve. Accordingly, this rule 

removes DFARS solicitation provision 

252.215–7005, Evaluation Factor for 

Employing or Subcontracting with 

Members of the Selected Reserve, and 

makes conforming changes to the 

associated provision and clause 

prescriptions at DFARS 215.370–3. 

DFARS provision 252.215–7005 is 

included in solicitations that contain an 

evaluation factor that considers whether 

an offeror intends to perform the 

contract using employees or individual 

subcontractors who are members of the 

Selected Reserve. If an offeror intends to 

use such employees or subcontractors, 

the provision requires the offeror to 

submit certain documentation as proof 


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15814 Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Rules and Regulations 

of its intent with its response to the 

solicitation. 

II. Publication of This Final Rule for 

Public Comment Is Not Required by 

Statute 

The statute that applies to the 

publication of the Federal Acquisition 

Regulation (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 not issuing a 

new regulation; rather, this rule is 

merely removing an unneeded 

solicitation provision from the DFARS. 

The rule primarily impacts internal 

operating procedures and has no 

significant cost or administrative impact 

on contractors or offerors. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT), for Commercial 

Products Including Commercially 

Available Off-the-Shelf (COTS) Items, 

and for Commercial Services 

This rule removes DFARS provision 

252.215–7005, Evaluation Factor for 

Employing or Subcontracting with 

Members of the Selected Reserve, and 

the associated prescription at DFARS 

215.370–3. The rule does not impose 

any new requirements on contracts at or 

below the simplified acquisition 

threshold, for commercial products 

including commercially available offthe-shelf items, or for commercial 

services. 

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 

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 

This rule removes the information 

collection requirements associated with 

the provision at DFARS 252.215–7005, 

Evaluation Factor for Employing or 

Subcontracting with Members of the 

Selected Reserve, currently approved 

under Office of Management and Budget 

(OMB) Control Number 0704–0446, 

entitled ‘‘Defense Federal Acquisition 

Regulation Supplement (DFARS) 

Evaluation Factor for Use of Members of 

the Armed Forces Selected Reserve’’. 

Accordingly, DoD submitted, and OMB 

approved, the following reduction of the 

annual reporting burden and OMB 

inventory of hours under OMB Control 

Number 0704–0446 as follows: 

Respondents: 13. 

Responses per respondent: 1. 

Total annual responses: 13. 

Hours per response: 20. 

Total response burden hours: 260. 

List of Subjects in 48 CFR Parts 215 and 

252 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, 48 CFR parts 215 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 215 and 252 continues to read as 

follows: 

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

chapter 1. 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 2. Revise section 215.370–1 to read as 

follows: 

215.370–1 Definition. 

As used in this section— 

Selected Reserve has the meaning 

given that term in 10 U.S.C. 10143. 

Selected Reserve members normally 

attend regular drills throughout the year 

and are the group of Reserves most 

readily available to the President. 

■ 3. Revise section 215.370–3 to read as 

follows: 

215.370–3 Contract clause. 

Use the clause at 252.215–7006, Use 

of Employees or Individual 

Subcontractors Who Are Members of the 

Selected Reserve, in solicitations and 

resulting contracts that include an 

evaluation factor considering whether 

an offeror intends to perform the 

contract using employees or individual 

subcontractors who are members of the 

Selected Reserve. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.215–7005 [Removed and Reserved] 

■ 4. Remove and reserve section 

252.215–7005. 

■ 5. Amend section 252.215–7006 by— 

■ a. In the introductory text, removing 

‘‘215.370–3(b)’’ and adding ‘‘215.370–3’’ 

in its place; and 

■ b. Revising the clause date and 

paragraph (a). 

The revisions read as follows: 

252.215–7006 Use of Employees or 

Individual Subcontractors Who Are 

Members of the Selected Reserve. 

* * * * * 

Use of Employees or Individual 

Subcontractors Who Are Members of the 

Selected Reserve (Mar 2022) 

(a) Definition. As used in this clause— 

Selected Reserve has the meaning given 

that term in 10 U.S.C. 10143. Selected 

Reserve members normally attend regular 

drills throughout the year and are the group 

of Reserves most readily available to the 

President. 

* * * * * 

[FR Doc. 2022–05533 Filed 3–17–22; 8:45 am] 

BILLING CODE 5001–06–P 


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