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[Federal Register Volume 79, Number 108 (Thursday, June 5, 2014)]
[Proposed Rules]
[Pages 32522-32525]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-12810]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 237, and 252

RIN 0750-AI24

Defense Federal Acquisition Regulation Supplement: Service 
Contract Reporting (DFARS Case 2012-D051)

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

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement a section of the National 
Defense Authorization Act for Fiscal Year 2008. The rule proposes to 
require contractors to annually report, using an online DoD database, 
service contract data at the end of the Government fiscal year or at 
the end of contract performance, whichever comes first.

DATES: Comment Date: Comments on the proposed rule should be submitted 
in writing to the address shown below on or before August 4, 2014, to 
be considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2012-D051, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2012-D051'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2012-D051.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2012-D051'' on your attached document.
    [cir] Email: osd.dfars@mail.mil. Include DFARS Case 2012-D051 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Janetta Brewer, OUSD(AT&L)DPAP/DARS, Room 3B855, 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 two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Janetta Brewer, Defense 
Acquisition Regulations System, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 
Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6104.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to revise the DFARS to implement section 807 of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 
2008, Public Law 110-181 (10 U.S.C. 2330a), which requires the 
Secretary of Defense to submit to Congress an annual inventory of the 
activities performed during the preceding fiscal year pursuant to 
contracts for services for or on behalf of the DoD, to include direct 
labor hours and cost data collected from contractors.

II. Discussion

    This rule proposes to require contractors to report service 
contract direct labor and corresponding dollar value data for prime 
contractors and subcontractors in the Enterprise-wide Contractor 
Manpower Reporting Application (ECMRA) database annually or at the end 
of contract performance, whichever comes first. Data collected via the 
ECMRA database will enable DoD to identify and track the services 
provided by contractors and comply with section 807 of the NDAA for FY 
2008.
    The rule proposes to amend DFARS parts 212, 237, and 252 as 
follows:
     At DFARS 212.301, the proposed DFARS clause 252.237-70XX, 
Service Contract Reporting Requirements, is added to apply to 
solicitations and contracts for the acquisition of commercial items.
     At DFARS 237.17X, a new section is added that provides the 
scope and applicability of the DoD service contract

[[Page 32523]]

reporting requirement. Additionally, the contracting officer's or 
contracting officer's representative's duties for ensuring and 
documenting compliance are outlined. The reporting requirements 
contained in the proposed rule apply to all solicitations, contracts, 
and task and delivery orders, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items if 
the acquisition is for the provision of (1) services with a total 
estimated value exceeding the simplified acquisition threshold, or (2) 
supplies that contain separate line items for services with a total 
estimated value exceeding the simplified acquisition threshold. 
Exceptions are provided for construction of structures and facilities, 
lease/rental of equipment or facilities, utilities, freight and 
shipping, and classified services.
     A new clause is added, 252.237-XX, Service Contract 
Reporting Requirements, which contains the DoD service contract 
reporting requirement. Data subject to this clause must be entered into 
the ECMRA database no later than October 31st each year or at the end 
of the contract performance period, whichever comes first. Contractors 
are required to include the substance of the clause in subcontracts 
that may include services.

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. 
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 proposed rule to have a significant 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 data 
collection requirement has been tailored to maximize the use of 
existing records already maintained by contractors. However, an Initial 
Regulatory Flexibility Act analysis has been prepared and is summarized 
as follows:
    This DFARS case was initiated to implement the contractual 
reporting requirements that originate from Title 10, United States Code 
(U.S.C.), section 2330a titled Procurement of Services: Tracking of 
Purchases. Section 2330a requires the Secretary of Defense to submit to 
Congress, no later than June 30th of each fiscal year, an annual 
inventory of service contracts performed during the preceding fiscal 
year.
    This rule establishes the contractual requirement for contractors 
to report manpower data for prime contractors and subcontractors for 
each purchase of services in excess of the simplified acquisition 
threshold on an annual basis or at the end of contract performance, 
whichever comes first. To streamline reporting, the rule incorporates 
the use of a DoD-developed software application, Enterprise-wide 
Contractor Manpower Reporting Application (ECMRA). The rule exempts the 
following from reporting:

--Construction of structures and facilities.
--Lease and rentals of equipment or facilities.
--Utilities.
--Freight and shipping.
--Classified services.
    DoD will use the reported manpower data to fulfill its statutory 
reporting requirement to Congress pursuant to 10 U.S.C. 2330a. Access 
to this data will provide DoD with the ability to identify and report 
the inventory of contractor full-time equivalent direct labor and 
associated costs for service contract actions. As an adjunct, the 
information will support DoD's total force management and in making 
strategic workforce planning decisions pursuant to 10 U.S.C. 129a. The 
information will also enable DoD to comply with 10 U.S.C. 235. The 
information collection stemming from DFARS clause, 252.237-70XX, 
Service Contract Reporting Requirements, requires contractors to enter 
manpower reporting data into ECMRA. The contractor data entry includes 
contract and order details, such as location of services including 
product service codes, and direct labor hours and dollars invoiced 
amounts for each reportable contract action.
    The reporting requirement applies to all classes of small business 
concerns with DoD contracts or subcontracts that contain service 
requirements that exceed the simplified acquisition threshold. Based on 
a review of Fiscal Year 2013 data from the Federal Procurement Data 
System (FPDS), it is estimated that the total number of small 
businesses that will be impacted by this rule is 7,962. This 
requirement is not expected to impose a significant economic burden on 
small business concerns.
    The burden applied to small businesses is the minimum consistent 
with applicable laws, Executive Orders, regulations and prudent 
business practices. The information collection requirement has been 
refined to maximize the use of existing records already maintained by 
contractors and by the Government. To further minimize the impact, the 
information will be collected electronically, help-desk support will be 
provided to users, and reporting requirements will be limited to a 
small number of easy-to-obtain data elements. The ECMRA database makes 
maximum use of drop-down menus and pre-populated data fields. For 
example, award information such as whether the contract or order is 
performance based, the extent of competition, or award made to a small 
business, contract funding and organization information will be pre-
populated by the COR. No additional alternatives were identified that 
would that would reduce impact on small business and still accomplish 
the objectives of the statute and the policies.
    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 2012-D051), in 
correspondence.

V. Paperwork Reduction Act

    The rule contains 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). Accordingly, DoD has submitted a 
request for approval of a new information collection requirement 
concerning DFARS Case 2012-D051, DoD Service Contract Reporting 
Requirements, to the Office of Management and Budget. Once cleared by 
OMB, the information collection associated with DFARS Case 2012-D051 
will supersede OMB Control Number 0704-0491 titled DoD Inventory of 
Contracts for Services Compliance, which expires on May 31, 2015, and 
which is not associated with rulemaking.
    A. Public reporting burden for this collection of information is 
estimated to average 1.4 hours per response,

[[Page 32524]]

including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information.
    The annual reporting burden estimated as follows:
    Respondents: 13,269.
    Responses per respondent: approximately 4.1.
    Total annual responses: 54,234.
    Average hours per response: 1.4 hours.
    Total response Burden Hours: 76,141.
    B. Request for Comments Regarding Paperwork Burden. Written 
comments and recommendations on the proposed information collection, 
including suggestions for reducing this burden, should be sent to Ms. 
Jasmeet Seehra at the Office of Management and Budget, Desk Officer for 
DoD, Room 10236, New Executive Office Building, Washington, DC 20503, 
or email Jasmeet_K._Seehra@omb.eop.gov, with a copy to the Defense 
Acquisition Regulations System, Attn: Ms. Janetta Brewer, 
OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 
20301-3060. Comments can be received from 30 to 60 days after the date 
of this notice, but comments to OMB will be most useful if received by 
OMB within 30 days after the date of this notice.
    Public comments are particularly invited on: Whether this 
collection of information is necessary for the proper performance of 
functions of the DFARS, and will have practical utility; whether our 
estimate of the public burden of this collection of information is 
accurate, and based on valid assumptions and methodology; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways in which we can minimize the burden of the 
collection of information on those who are to respond, through the use 
of appropriate technological collection techniques or other forms of 
information technology.
    To request more information on this proposed information collection 
or to obtain a copy of the proposal and associated collection 
instruments, please write to the Defense Acquisition Regulations 
System, Attn: Ms. Janetta Brewer, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 
Defense Pentagon, Washington, DC 20301-3060, or email 
osd.dfars@mail.mil. Include DFARS Case 2012-D051 in the subject line of 
the message.

List of Subjects in 48 CFR Parts 212, 237, and 252

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 212, 237, and 252 are proposed to be 
amended as follows:

0
1. The authority citation for parts 212, 237, and 252 continues to read 
as follows:

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
2. Section 212.301 is amended by--
0
a. Redesignating paragraphs (f)(lvii) through (lxx) as (f)(lviii) 
through (lxxi); and
0
b. Adding a new paragraph (f)(lvii) to read as follows:

212.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

    (f) * * *
    (lvii) Use the clause at 252.237-70XX, Service Contract Reporting 
Requirements, as prescribed in 237.17X-5.
* * * * *

PART 237--SERVICE CONTRACTING

0
3. Amend subpart 237.1 by adding section 237.17X to read as follows:
* * * * *

237.17X  Service contract reporting.

237.17X-1  Scope.

    This section implements section 807 of the National Defense 
Authorization Act for Fiscal Year 2008, Public Law 110-181 (10 U.S.C. 
2330a), which requires the Secretary of Defense to annually report to 
Congress an inventory of the activities performed during the preceding 
fiscal year pursuant to contracts for services for or on behalf of the 
DoD.

237.17X-2  Applicability.

    (a) Except as identified in paragraph (b), this section applies to 
service contracts and orders with a total estimated value exceeding the 
simplified acquisition threshold, and supply contracts and orders with 
separate line items for services with a total estimated value exceeding 
the simplified acquisition threshold.
    (b) This section does not apply to separate line items in contracts 
and orders for--
    (1) Construction of structures and facilities (product or service 
code (PSC) Group Y);
    (2) Lease/rental of equipment or facilities (PSC Groups W and X);
    (3) Utilities (PSC Group S1);
    (4) Freight and shipping (PSC Groups V0, V1, and V2); and
    (5) Classified services.

237.17X-3  Service contract reporting requirements.

    (a) The contracting officer's representative (COR), when appointed, 
or the contracting officer, if no COR is appointed, is responsible for 
ensuring the contractor has completed the reporting requirement in the 
clause at 252.237-70XX. Contracting officers shall verify that the 
contractor's ECMRA compliance is documented.
    (b) Waiver. (1) The contracting officer shall prepare a 
determination and findings when data required to comply with the clause 
at 252.237-70XX cannot reasonably be made available in a timely manner. 
The determination and findings shall be approved at one level above the 
contracting officer.
    (2) Upon approval, the contracting officer shall notify the 
requiring activity and the contractor.

237.17X-4  Contract clause.

    Use the clause at 252.237-70XX, Service Contract Reporting 
Requirements, in solicitations, contracts, and task or delivery orders, 
including those using FAR part 12 procedures for the acquisition of 
commercial items, if--
    (a) The acquisition is for the provision of services with a total 
estimated value exceeding the simplified acquisition threshold; or
    (b) The acquisition is for the provision of supplies that contain 
separate line items for services with a total estimated value exceeding 
the simplified acquisition threshold.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Add section 252.237-70XX to read as follows:

252.237-70XX  Service Contract Reporting Requirements.

    As prescribed in 237.17X-5, use the following clause, and if not 
all line items are covered, indicate in the Schedule which line items 
are covered by the clause:

SERVICE CONTRACT REPORTING REQUIREMENTS (DATE)

    (a) Except as provided in paragraph (c) of this clause, the 
Contractor shall--

[[Page 32525]]

    (1) Report all required prime contract and subcontract data, or 
require any subcontractors to report separately, using the 
Enterprise-wide Contractor Manpower Reporting Application (ECMRA) 
database, and
    (2) Enter data for all line items subject to this clause into 
the ECMRA at the end of each Government fiscal year and not later 
than October 31 or at the end of the contract performance period, 
whichever comes first.
    (b) Information regarding ECMRA is available on the Internet at 
http://www.ecmra.mil.
    (c) The Contractor may request a waiver if the data required to 
comply with the clause cannot reasonably be made available in a 
timely manner. See Defense Federal Acquisition Regulation Supplement 
237.17X-3.
    (d) Subcontractor information. The Contractor shall include the 
substance of this clause, including this paragraph (c), in 
subcontracts that may include services.

    (End of clause)

[FR Doc. 2014-12810 Filed 6-4-14; 8:45 am]
BILLING CODE 5001-06-P
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