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[Federal Register Volume 78, Number 235 (Friday, December 6, 2013)]
[Proposed Rules]
[Pages 73475-73477]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-29155]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 235 and 252

RIN 0750-AI10

Defense Federal Acquisition Regulation Supplement: Clauses With 
Alternates--Research and Development Contracting (DFARS Case 2013-D026)

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 create an overarching prescription for 
the research and development-related clause with an alternate. The rule 
also proposes to add a separate prescription for the basic clause and 
for the alternate, and to include in the regulation the full text of 
the alternate clause.

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

ADDRESSES: Submit comments identified by DFARS Case 2013-D026, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2013-D026'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2013-D026.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2013-D026'' on your attached document.
    [cir] Email: dfars@mail.mil. Include DFARS Case 2013-D026 in the 
subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: (Ms. 
Annette Gray, 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. Annette Gray, Defense Acquisition 
Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060. Telephone 571-372-6093; facsimile 
571-372-6101.

SUPPLEMENTARY INFORMATION:

I. Background

    In order to facilitate use of automated contract writing systems, 
DoD is processing multiple cases, by DFARS part, to modify the naming 
convention for clauses with alternates, revise the clause prescriptions 
and clause prefaces, and provide each alternate clause in full text in 
the regulation.
    The inclusion of the full text of the alternate clause in the 
regulation should make the terms of the alternate clearer to 
contractors and to DoD contracting officers. The current convention for 
alternate clauses is to show only the paragraphs that differ from from 
the basic clause. Placing the alternate clause in full text in the 
regulation will clarify paragraph substitutions. As a result, 
inapplicable paragraphs from the basic clause that are superseded by 
the alternate will not be included in solicitations or contracts, 
reducing the potential for confusion.

II. Discussion and Analysis

    This proposed rule addresses clause 252.235-7003, Frequency 
Authorization, and its alternate. The rule does not revise the 
prescriptions in any substantive way or change the applicability of the 
basic clause or the alternate. The rule proposes to make the following 
changes:
     Amend section 235.072, Additional Contract Clauses, to 
reflect the restructuring of 252.235-7003, Frequency Authorization, 
into basic and alternate clauses with corresponding distinctive clause 
prescriptions for each clause. The new basic clause title is 
``Frequency Authorization--Basic''. Similarly, the title of the 
alternate

[[Page 73476]]

clause is ``Frequency Authorization--Alternate''. The specific 
prescriptions for the basic clause and the alternate clause address the 
requirements for their individual use to enable proper selection of 
either the basic clause or the alternate clause as appropriate.
     Revise clause 252.235-7003 to reflect the inclusion of the 
full text of the alternate clause in addition to the full text of the 
basic clause. The preface for clause 252.235-7003 is revised to add 
paragraph (a) for the basic clause, which refers to the prescrition at 
235.072(b)(1) for use of the basic clause. Likewise, the paragraph (b) 
preface has been added to refer to the prescription for the alternate 
clause and also expanded to address the difference between the 
alternate clause and the basic clause. The preface at paragraph (b) for 
the alternate clause reads as follows: ``(b) Frequency Authorization--
Alternate. For the specific prescription for use of the alternate, see 
235.072(b)(2). The alternate uses a different paragraph (c) than the 
basic clause.'' The proposed changes will increase the clarity and ease 
of use of the basic clause and alternate clause, but will not revise 
the applicability of the clauses in any way. The text of the alternate 
clause will no longer consist solely of paragraph (c), and instead will 
include the entire text of 252.235-7003 (basic clause) along with 
paragraph (c) substituted for the corresponding paragraph of the basic 
clause.

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 
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 it merely revises the prescriptions and reformats a clause with 
an alternate. However, an initial regulatory flexibility analysis has 
been performed and is summarized as follows:
    The purpose of this case is to amend the Defense Federal 
Acquisition Regulation Supplement (DFARS) to create prescriptions for 
the basic and alternate versions of DFARS clause 252.235-7003, 
Frequency Authorization, and to include the full text of the clause 
alternate.
    The use of stand-alone basic and alternate clauses and tailored 
prescriptions for the basic and alternate versions of the DFARS clause 
will facilitate use of automated contract writing systems. The prior 
convention required the prescription for the basic clause to address 
all the possibilities covered by the alternate, and then the 
prescription for the alternate addressed only those differences for the 
use of that particular alternate. This rule will revise the 
prescriptions so that the regulation will contain the full text of the 
basic and alternate clause and each will stand on its own. The 
prescriptions will not be revised in any way to change the 
applicability.
    Additionally, the inclusion of the full text of the alternate 
clause should make the terms of the alternate clause clearer to 
offerors and contractors, as well as to DoD contracting officers. 
Instead of the current convention for the alternate to show only 
paragraphs that differ from the basic clause, this rule proposes to 
include the full text of each version of the clause in the regulation. 
This will assist in making the terms of the clauses clearer, because 
all paragraph substitutions will be identified. Inapplicable paragraphs 
from the basic version of the clause that are superseded by the 
alternate will not be included in solicitations or contracts and this 
should prevent confusion.
    Potential offerors, including small businesses, may be affected by 
this rule by seeing an unfamiliar format for clause alternates in 
solicitations and contracts issued by DoD contracting activities. 
According to the Federal Procurement Data System, in Fiscal Year 2012, 
DoD made approximately 270,000 contract awards (not including 
modifications and orders) that exceeded the micro-purchase threshold, 
of which approximately 180,000 (67%) were awarded to about 35,000 
unique small business entities. It is unknown how many of these 
contracts were awarded that included an alternate to a DFARS provision 
or clause. Nothing substantive will change in solicitations or 
contracts for potential offerors, and only the appearance of how clause 
alternates are presented in the solicitations and contracts will be 
changed. This rule may result in potential offerors, including small 
businesses, expending more time to become familiar with and to 
understand the new format of the clause alternates in full text 
contained in contracts issued by any DoD contracting activity. The rule 
also anticipates saving contractors time by making all paragraph 
substitutions from the basic version of the clause and not requiring 
the contractors to read inapplicable paragraphs contained in the basic 
version of the clause where the alternate is also included in the 
solicitation and contract. The overall burden caused by this rule is 
expected to be negligible and will not be any greater on small 
businesses than it is on large businesses.
    This rule does not add any new information collection requirements. 
The rule does not duplicate, overlap, or conflict with any other 
Federal rules. No alternatives were identified that will accomplish the 
objectives of the rule.
    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 2013-D026), in 
correspondence.

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 Part 235 and 252

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.
    Therefore, 48 CFR parts 235 and 252 are proposed to be amended as 
follows:

0
1. The authority citation for parts 235 and 252 continues to read as 
follows:

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

PART 235--RESEARCH AND DEVELOPMENT CONTRACTING

0
2. Section 235.072 paragraph (b) is revised to read as follows: 235.

235.072  Additional contract clauses.

* * * * *
    (b) Use the basic or the alternate of the clause at 252.235-7003, 
Frequency

[[Page 73477]]

Authorization, in solicitations and contracts for developing, 
producing, constructing, testing, or operating a device requiring a 
frequency authorization.
    (1) Use the clause Frequency Authorization-Basic if agency 
procedures do not authorize the use of DD Form 1494, Application for 
Equipment Frequency Allocation, to obtain radio frequency 
authorization.
    (2) Use the clause Frequency Authorization-Alternate if agency 
procedures authorize the use of DD Form 1494, Application for Equipment 
Frequency Allocation, to obtain frequency authorization.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Section 252.235-7003 is revised to read as follows:

252.235-7003  Frequency authorization.

    As prescribed in 235.072(b), use one of the following clauses:
    (a) Frequency Authorization--Basic. For the specific prescription 
for use of the basic clause, see 235.072(b)(1).

FREQUENCY AUTHORIZATION--BASIC (DATE)

    (a) The Contractor shall obtain authorization for radio 
frequencies required in support of this contract.
    (b) For any experimental, developmental, or operational 
equipment for which the appropriate frequency allocation has not 
been made, the Contractor shall provide the technical operating 
characteristics of the proposed electromagnetic radiating device to 
the Contracting Officer during the initial planning, experimental, 
or developmental phase of contract performance.
    (c) The Contracting Officer shall furnish the procedures for 
obtaining radio frequency authorization.
    (d) The Contractor shall include this clause, including this 
paragraph (d), in all subcontracts requiring the development, 
production, construction, testing, or operation of a device for 
which a radio frequency authorization is required.

(End of clause)

    (b) Frequency Authorization--Alternate. For the specific 
prescription for use of the alternate, see 235.072(b)(2). The alternate 
uses a different paragraph (c) than the basic clause.

FREQUENCY AUTHORIZATION-ALTERNATE (DATE)

    (a) The Contractor shall obtain authorization for radio 
frequencies required in support of this contract.
    (b) For any experimental, developmental, or operational 
equipment for which the appropriate frequency allocation has not 
been made, the Contractor shall provide the technical operating 
characteristics of the proposed electromagnetic radiating device to 
the Contracting Officer during the initial planning, experimental, 
or developmental phase of contract performance.
    (c) The contractor shall use DD Form 1494, Application for 
Equipment Frequency Allocation, to obtain radio frequency 
authorization.
    (d) The Contractor shall include this clause, including this 
paragraph (d), in all subcontracts requiring the development, 
production, construction, testing, or operation of a device for 
which a radio frequency authorization is required.

(End of clause)
[FR Doc. 2013-29155 Filed 12-5-13; 8:45 am]
BILLING CODE 5001-06-P
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