Defense Federal Acquisition Regulation Supplement; Multiyear Procurement Authority for Environmental Services for Military Installations

AGENCY:

Department of Defense (DoD).

ACTION:

Final rule.

SUMMARY:

DoD has adopted as final, without change, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 827 of the National Defense Authorization Act for Fiscal Year 2003. Section 827 authorizes DoD to enter into multiyear contracts for environmental remediation services for military installations.

EFFECTIVE DATE:

May 13, 2004.

FOR FURTHER INFORMATION CONTACT:

Mr. Euclides Barrera, Defense Acquisition Regulations Council, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0296; facsimile (703) 602-0350. Please cite DFARS Case 2003-D004.

SUPPLEMENTARY INFORMATION:

A. Background

DoD published an interim rule at 68 FR 43332 on July 22, 2003, to implement Section 827 of the National Defense Authorization Act for Fiscal Year 2003 (Public Law 107-314). Section 827 amended 10 U.S.C. 2306c to provide authority for DoD to enter into multiyear contracts for environmental remediation services for military installations. Two sources submitted comments on the interim rule. A discussion of the comments is provided below.

1. Comment: The interim rule is a major step forward for environmental remediation that can be accomplished within 5 years. However, the rule should provide for limited authority beyond 5 years where practicable and in the best interest of the Government.

DoD Response: The recommended change is not feasible, since 10 U.S.C. 2306c limits multiyear contracting authority for services to not more than 5 years.

2. Comment: DFARS 232.703-1(1)(iii), which addresses incremental funding, must be sustained and clarified to provide the ability to cash flow expensive remedial projects that cannot be fully funded within a single year appropriation.

DoD Response: No change to the incremental funding policy in DFARS 232.703-1(1)(iii) is necessary for implementation of this rule.

3. Comment: There is confusion within DoD as to what constitutes environmental services and environmental construction. DoD should clarify that all actions taken to remediate contamination under the DERA program constitute environmental services.

DoD Response: The recommended clarification is outside the scope of this DFARS case.

4. Comment: The definition of “military installation” or the list in DFARS 217.171(a)(1)(v) should specifically include industrial property to remove any question as to whether the remediation services can be used at both active and former government-owned-contractor-operated industrial plants currently or previously owned by DoD.

DoD Response: The definition of “military installation” in DFARS 217.103 and the list in DFARS 217.171(a)(1)(v) are consistent with the provisions of 10 U.S.C. 2306c as amended by Section 827 of Public Law 107-314. The multiyear contracting authority provided by the rule applies to environmental remediation services that meet the criteria at DFARS 217.171(a)(1)(v).

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

DoD certifies that this final rule will not 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 application of the rule is limited to contracts for environmental remediation services at military installations or sites formerly used by DoD. Before using the multiyear contracting authority provided by the rule, the head of the agency must determine that certain conditions exist, to include a determination that use of a multiyear contract will promote the best interests of the United States by encouraging effective competition and promoting economies in operations.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 217

• Government procurement

Interim Rule Adopted as Final Without Change

Accordingly, the interim rule amending 48 CFR Part 217, which was published at 68 FR 43332 on July 22, 2003, is adopted as a final rule without change.