[Federal Register Volume 78, Number 120 (Friday, June 21, 2013)]
[Rules and Regulations]
[Pages 37684-37686]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-14613]





48 CFR Parts 4 and 17

[FAC 2005-67; FAR Case 2012-010; Item IV; Docket 2012-0010, Sequence 1]
RIN 9000-AM36

Federal Acquisition Regulation; Interagency Acquisitions: 
Compliance by Nondefense Agencies With Defense Procurement Requirements

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.


SUMMARY: DoD, GSA, and NASA are adopting as final, with changes, an 
interim rule amending the Federal Acquisition Regulation (FAR) to add 
new requirements specific to the acquisition of supplies and services 
by nondefense agencies on behalf of DoD. This rule implements a section 
of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 
2008, with later amendments; and section 801 of the NDAA for FY 2013, 
Public Law 112-239.

DATES: Effective Date: July 22, 2013.

FOR FURTHER INFORMATION CONTACT: Ms. Patricia Corrigan, Procurement 
Analyst, at 202-208-1963 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAC 2005-67, FAR Case 2012-


I. Background

    DoD, GSA, and NASA published an interim rule in the Federal 
Register at 77 FR 69720 on November 20, 2012, to implement the 
requirements of section 801 of the NDAA for FY 2008 (Pub. L. 110-181) 
as amended, (10 U.S.C. 2304 note). The interim rule made the following 
     Clarified FAR 4.603(c) regarding the allocation of 
socioeconomic credit to the requesting agency for assisted 
     Created a new FAR subpart 17.7, which establishes the 
policy related to internal controls and compliance certification under 
which nondefense agencies may procure supplies and services on behalf 
of DoD and identified DoD acquisition official responsibilities to 
identify DoD unique requirements. The new FAR subpart 17.7 cross-
references and is cross-referenced at FAR subpart 17.5, Interagency 
    To implement the NDAA for FY 2013, this final rule changes 
``defense'' to ``applicable'' in FAR 17.703(a) and (b).
    Three respondents submitted comments on the interim rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the 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 are provided as 

 A. Summary of Significant Changes

    No significant changes have been made in the final rule. However, 
the following minor changes have been made:
    (1) References to the term ``defense procurement'' have been 
changed to ``applicable procurement'' in order to implement section 801 
of the NDAA FY 2013, Pub. L. 112-239.
    (2) Based on public comment, DoD class deviations have been 
included in

[[Page 37685]]

the list of laws and regulations that apply to procurements of supplies 
and services made by DoD through other Federal agencies in FAR 

 B. Analysis of Public Comments

1. Location of Coverage
    Comment: Suggest that this coverage be moved to a new section 
within FAR subpart 17.5 (e.g., FAR 17.505). This way, the rule would be 
where readers would reasonably expect it to be and they would not have 
to move back and forth between subparts, which are typically located on 
different Web pages.
    Response: To simplify locating the required regulations, a cross 
reference to FAR subpart 17.7 is included at FAR 17.500 and another 
cross reference to FAR subpart 17.5 is included at FAR 17.700.
2. Compliance With DoD Class Deviations
    Comment: FAR 17.703(b)(2) does not mention DoD class deviations to 
the FAR and Defense Federal Acquisition Regulation Supplement (DFARS). 
If nondefense agencies will be required to comply with DoD class 
deviations, it is suggested that this be explicitly stated along with a 
Web address where they can be found.
    Response: The rule was amended to reference DoD class deviations 
and the Web address where they can be found.
3. Definition of DoD ``Acquisition Official''
    Comment: The commenter knew what a contracting officer is, but 
wondered what a DoD ``acquisition official'' other than a contracting 
officer might be. The commenter added that ``all approvals should be 
routed through the office of the contracting division that would 
otherwise write the contract.''
    Response: The term ``Department of Defense (DoD) acquisition 
official'' is defined in FAR 17.701, consistent with statute, and is 
used throughout FAR subpart 17.7. Specific guidance regarding 
designation of agency acquisition officials, their delegated authority, 
and routing of contractual documents is more suitable for inclusion in 
agency regulations rather than the FAR.
4. Frequency of Nondefense Agency Compliance Certifications
    Comment: The commenter sees no benefit in adhering to an ``annual'' 
fiscal year self-certification requirement that ensures a nondefense 
agency is compliant with defense procurement requirements. The 
commenter recommends, as a means of eliminating non-value-added 
paperwork for all parties and procurement delays, that DoD seek 
approval to change the nondefense agency self-certification requirement 
from ``each fiscal year'' to ``every five years.''
    Response: The annual certification requirement for nondefense 
agencies that acquire supplies and services on behalf of DoD included 
in FAR subpart 17.7 is prescribed by law. The suggestion submitted by 
the commenter requires a statutory change that is beyond the scope of 
this FAR case.

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, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA is summarized as follows:

    Implementation of section 801 of the NDAA for FY 2008 (Pub. L. 
110-181), section 806 of the NDAA for FY 2010 (Pub. L. 111-84), 
section 817 of the NDAA for FY 2012 (Pub. L. 112-81), and section 
801 of the NDAA for FY 2013 (Pub. L. 112-239) address requirements 
specific to the acquisition of property and services by non-defense 
agencies on behalf of DoD, and are therefore, internal to the 
    However, this rule also amends the FAR to include a 
clarification at 4.603(c), restating existing Office of Federal 
Procurement Policy (OFPP) and Federal Procurement Data System (FPDS) 
policy regarding the allocation of socio-economic credit for 
assisted acquisitions, i.e., ``for assisted acquisitions, the 
requesting agency will receive socio-economic credit for meeting 
small business goals, where applicable.''
    Although we do not expect the clarification to have a direct 
economic impact on a substantial number of small entities, there is 
the possibility that the regulatory clarification may improve the 
accuracy of FPDS data submissions allocating socio-economic credit 
to agencies for contracts and orders awarded to a substantial number 
of small entities. Improved data accuracy can have a positive impact 
on agencies' annual small business goals.
    The interim rule was published as part of FAC 2005-62 on 
November 20, 2012 (77 FR 69720). None of the comments received 
concerned the initial regulatory flexibility analysis.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy 
of the FRFA to the Chief Counsel for Advocacy of the Small Business 

V. Paperwork Reduction Act

    The final 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 4 and 17

    Government procurement.

    Dated: June 13, 2013.
William Clark,
Acting Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.

Interim Rule Adopted as Final With Changes

    Accordingly, the interim rule amending 48 CFR parts 4 and 17, which 
was published in the Federal Register at 77 FR 69720, November 20, 
2012, is adopted as final with the following change:


1. The authority citation for 48 CFR part 17 continues to read as 

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

2. Amend section 17.703 by--
a. Removing from paragraph (a) and the introductory text of paragraph 
(b) ``with defense'' and adding ``with applicable'' in its place; and
b. Revising paragraph (b)(2).
    The revised text reads as follows:

17.703  Policy.

* * * * *
    (b) * * *
    (2) Laws and regulations that apply to procurements of supplies and 
services made by DoD through other Federal agencies, including DoD 
financial management regulations, the Defense Federal Acquisition 
Regulation Supplement (DFARS), DoD class deviations, and the DFARS 
Procedures, Guidance, and Information (PGI). (The DFARS, DoD class 
deviations, and PGI

[[Page 37686]]

are accessible at: http://www.acq.osd.mil/dpap/dars).
* * * * *
[FR Doc. 2013-14613 Filed 6-20-13; 8:45 am]