[Federal Register Volume 68, Number 97 (Tuesday, May 20, 2003)]
[Proposed Rules]
[Pages 27497-27498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12554]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 3
RIN 0790-AG97
Transactions Other than Contracts, Grants, or Cooperative
Agreements for Prototype Projects
AGENCY: Office of the Secretary, DoD.
ACTION: Proposed rule.
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SUMMARY: This document proposes to implement section 822 of the
National Defense Authorization Act for Fiscal Year 2002, Public Law
107-107, 115 Stat. 1182. Section 822 provides for award of a follow-on
production contract to traditional Defense contractors, without further
competition, when the other transaction (OT) agreement for the
prototype project provided for at least one-third non-Federal cost-
share, consistent with law, and the OT agreement for the prototype
project satisfies certain additional conditions of law.
DATES: Comments on the proposed rule must be received in writing to the
address specified below by July 21, 2003, to be considered in the
formation of the final rule.
ADDRESSES: Interested parties should submit written comments on the
proposed rule to: Office of the Director, Defense Procurement, Attn:
Mr. David Boyd, OUSD(AT&L)/DPAP(P), 3060 Defense Pentagon, Washington,
DC 20301-3060. Telefax (703) 614-1254.
FOR FURTHER INFORMATION CONTACT: David Boyd, (703) 697-6710.
SUPPLEMENTARY INFORMATION:
Background and Purpose
Section 845 of the National Defense Authorization Act for Fiscal
Year 1994, Public Law 103-160, 107 Stat. 1721, as amended, authorizes
the Secretary of a Military Department, the Director of Defense
Advanced Research Projects Agency and any other official designated by
the Secretary of Defense, to enter into transactions other than
contracts, grants or cooperative agreements in certain situations for
prototype projects that are directly relevant to weapons or weapon
systems proposed to be acquired or developed by the Department of
Defense. Such transactions are commonly referred to as ``other
transaction'' agreements for prototype projects. To the extent that a
particular statute or regulation is limited in its applicability to the
use of a procurement contract, it would generally not apply to ``other
transactions'' for prototype projects.
Use of OT authority is authorized by law in the absence of the
significant participation of a nontraditional Defense contractor, when
at least one-third of the costs of the prototype project are to be
provided by non-Federal parties to the agreement. The authority granted
by section 822 of the National Defense Authorization Act for Fiscal
Year 2002 provides for the authority to continue such prototype
projects into production without competition in certain circumstances.
The circumstances are identified in this rule. Additionally, a rule
will be issued to the Defense Federal Acquisition Regulation Supplement
that exempts such production contracts from further competition,
notwithstanding the requirements of section 2304 of title 10, United
States Code.
In implementing the law, the Department clarifies that the number
of production units and target prices proposed for production must be
evaluated during the competition for the prototype project. This is
consistent with the law's competition requirement and is the basis for
being exempted from the need for further competition for the stated
production quantity.
Regulatory Evaluation
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that this rule is not a significant rule as
defined under section 3(f)(1) through 3(f)(4) of Executive Order 12866.
Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)
It has been certified that this rule does not contain a Federal
mandate that may
[[Page 27498]]
result in the expenditure by State, local and tribal governments, in
aggregate, or by the private sector, of $100 million or more in any one
year.
Pub. L. 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because it would not,
if promulgated, have a significant economic impact on a substantial
number of small entities. The rule does not require additional record
keeping or other significant expense by project participants.
Pub. L. 96-511, ``Paperwork Reduction Act of 1995'' (44 U.S.C. 3501 et
seq.)
It has been certified that this rule does not impose any reporting
or record keeping requirements under the Paperwork Reduction Act of
1995.
Federalism (Executive Order 13132)
It has been certified that this rule does not have federalism
implications, as set forth in Executive Order 13132.
List of Subjects in 32 CFR Part 3
Government procurement, Transactions for prototype projects.
Accordingly, 32 CFR part 3 is proposed to be amended to read as
follows:
PART 3--TRANSACTIONS OTHER THAN CONTRACTS, GRANTS, OR COOPERATIVE
AGREEMENTS FOR PROTOTYPE PROJECTS
1. The authority citation for 32 CFR part 3 continues to read as
follows:
Authority: Section 845 of Public Law 103-160, 107 Stat. 1721, as
amended.
2. Section 3.4 is amended to add new definitions in alphabetical
order to read as follows:
Project Manager. The government manager for the prototype project.
Contracting Officer. A person with the authority to enter into,
administer, and/or terminate contracts and make related determinations
and findings as defined in chapter 1 of title 48, CFR, Federal
Acquisition Regulation, part 2.101(b).
3. New Sec. 3.9 is added to read as follows:
Sec. 3.9 Follow-on production contracts.
(a) Authority. A competitively awarded OT agreement for a prototype
project that satisfies the condition set forth in law that requires
non-Federal parties to the OT agreement to provide at least one-third
of the costs of the prototype project may provide for the award of a
follow-on production contract to the awardee of the OT prototype
agreement for a specific number of units at specific target prices,
without further competition.
(b) Conditions. The Agreements Officer must do the following in the
award of the prototype project:
(1) Ensure non-Federal parties to the OT prototype agreement offer
at least-one third of the costs of the prototype project pursuant to
subsection (d)(1)(B)(i), 10 U.S.C. 2371 note.
(2) Use competition to select parties for participation in the OT
prototype agreement and evaluate the proposed quantity and target
prices for the follow-on production units as part of that competition.
(3) Determine the production quantity that may be procured without
further competition, by balancing of the level of the investment made
in the project by the non-Federal parties with the interest of the
Federal Government in having competition among sources in the
acquisition of the product or products prototyped under the project.
(4) Specify the production quantity and target prices in the OT
prototype agreement and stipulate in the agreement that the Contracting
Officer for the follow-on contract may award a production contract
without further competition if the awardee successfully completes the
prototype project and agrees to production quantities and prices that
do not exceed those specified in the OT prototype agreement (see part
206.001 of the Defense Federal Acquisition Regulation Supplement).
(c) Limitation. As a matter of policy, establishing target prices
for production units should only be considered when the risk of the
prototype project permits realistic production pricing without placing
undue risks on the awardee.
(d) Documentation. (1) The Agreements Officer will need to provide
information to the Contracting Officer from the agreement and award
file that the conditions set forth in paragraph (b) of this section
have been satisfied.
(2) The information shall contain, at a minimum:
(i) The competitive procedures used;
(ii) How the production quantities and target prices were evaluated
in the competition;
(iii) The percentage of cost-share; and
(iv) The production quantities and target prices set forth in the
OT agreement.
(3) The Project Manager will provide evidence of successful
completion of the prototype project to the Contracting Officer.
Dated: May 12, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-12554 Filed 5-19-03; 8:45 am]
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