Defense Federal Acquisition Regulation Supplement: Modification of Notification of Intent To Transport Supplies by Sea (DFARS Case 2020-D026)
| Published date | 26 March 2024 |
| Record Number | 2024-06004 |
| Citation | 89 FR 20924 |
| Court | Defense Acquisition Regulations System |
| Section | Proposed rules |
Federal Register, Volume 89 Issue 59 (Tuesday, March 26, 2024)
[Federal Register Volume 89, Number 59 (Tuesday, March 26, 2024)]
[Proposed Rules]
[Pages 20924-20927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06004]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204, 212, 247, and 252
[Docket DARS-2024-0007]
RIN 0750-AL12
Defense Federal Acquisition Regulation Supplement: Modification
of Notification of Intent To Transport Supplies by Sea (DFARS Case
2020-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 remove a DFARS solicitation provision
and modify the text of an existing DFARS contract clause to include the
operative text of that DFARS provision.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before May 28, 2024, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2020-D026, using
either of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for DFARS Case 2020-D026. Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2020-
D026'' on any attached document.
[cir] Email: [email protected]. Include DFARS Case 2020-D026 in
the subject line of the message.
Comments received generally will be posted without change to
https://www.regulations.gov, including any personal information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: David Johnson, telephone 202-913-5764.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to remove the solicitation
provision at DFARS 252.247-7022, Representation of Extent of
Transportation By Sea, and to revise the contract clause at DFARS
252.247-7023, Transportation of Supplies by Sea, accordingly, to effect
the purpose of the provision using only the clause. This change will
streamline instructions to contractors regarding required notifications
to the Government of transportation of supplies by sea.
II. Discussion and Analysis
Currently, DFARS provision 252.247-7022 and DFARS clause 252.247-
7023 are included in all solicitations with an anticipated value
greater than the simplified acquisition threshold, except solicitations
for direct purchase of ocean transportation services. The provision
requires the offeror to represent whether supplies will or will not be
transported by sea in performance of the contract or any subcontract.
The clause notifies offerors of their responsibilities when
transporting supplies by sea, which include the use of U.S. flag
vessels, unless certain situations apply; the submission of a
certification with a final invoice; and submission of bills of lading
to the contracting officer and to the U.S. Department of Transportation
Maritime Administration (MARAD).
The provision's notification requirement was intended to aid
acquisition personnel in carrying out their responsibilities under the
clause. By effecting the notification via a solicitation provision, a
representation is required from all offerors rather than just the
awardee. Given the offeror's representation has no bearing on its
eligibility or selection for award, the notification is better suited
to be a requirement in the clause, where only the awardee must notify
the contracting officer, as well as MARAD, only if transportation of
supplies by sea will occur. Including MARAD on the notification
provides all impacted parties with situational awareness and an ability
to be proactive in ensuring compliance with the clause requirements.
Given that DFARS clause 252.247-7023 is included in nearly all
contracts, and DFARS provision 252.247-7022 is associated with the
requirements of 252.247-7023, the text of the clause and provision can
be combined. The result reduces the number of provisions required to be
used in solicitations and the number of representations offerors must
provide, while still maintaining the effect of DFARS provision 252.247-
7022.
Consequent to removing DFARS clause 252.247-7022, this rule removes
the clause prescription at DFARS 247.574(a) as well as direction at
DFARS 204.1202 and 212.301 relating to the provision.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), and for Commercial Services
This rule removes the provision at DFARS 252.247-7022, along with
its prescription at DFARS 247.574(a), and amends the clause at DFARS
252.247-7032 accordingly to include the substance of the provision.
However, this proposed rule does not impose any new requirements on
contracts at or below the SAT, for commercial products including COTS
items, or for commercial services. The clause will continue to apply to
acquisitions at or below the SAT, to acquisitions of commercial
products including COTS items, and to acquisitions of commercial
services.
IV. Expected Impact of the Rule
This change is expected to streamline instructions to contractors
regarding notifications of transportation of supplies by sea.
Presently, DFARS
[[Page 20925]]
provision 252.247-7022 is included in nearly all solicitations and
DFARS clause 252.247-7023 is included in nearly all contracts. By
effectively combining the provision and the clause, this proposed rule
will reduce the number of provisions required to be used in
solicitations and the number of representations offerors must provide,
while still maintaining the effect of DFARS provision 252.247-7022.
Therefore, this proposed rule is expected to reduce administrative
burden on contractors, including small businesses.
V. 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, as amended.
VI. Regulatory Flexibility Act
DoD does not expect this proposed rule, when finalized, 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 the rule does not create any new requirements or add to
any existing requirements for contractors. However, an initial
regulatory flexibility analysis has been performed and is summarized as
follows:
DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to remove a solicitation provision and
accordingly to modify the text of an existing DFARS contract clause to
include the operative text of that DFARS provision.
The objective of this proposed rule is to streamline the
instructions to contractors pertaining to the transportation of
supplies by sea. The legal basis for the proposed rule is 41 U.S.C.
1303.
This proposed rule will likely affect small entities that will be
awarded contract actions that include DFARS clause 252.247-7023,
Transportation of Supplies by Sea. Data was obtained from the
Procurement Business Intelligence Service for all contracts and
modifications that include DFARS clause 252.247-7023 for fiscal years
2020 through 2022. DoD awarded on average 642,310 contract actions per
year that included DFARS clause 252.247-7023 to 30,680 unique entities,
of which approximately 359,315 contract awards (56 percent) were made
to 21,070 unique small entities (69 percent).
The proposed rule does not impose any new reporting, recordkeeping,
or compliance requirements.
The proposed rule does not duplicate, overlap, or conflict with any
other Federal rules.
There are no known significant alternatives that would accomplish
the objectives of the proposed rule.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this proposed 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 2020-D026), in
correspondence.
VII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies to this
proposed rule. However, these changes to the DFARS do not impose
additional information collection requirements to the paperwork burden
previously approved by the Office of Management and Budget (OMB) under
OMB Control Number 0704-0245, entitled Defense Federal Acquisition
Regulation Supplement (DFARS) Part 247, Transportation and Related
Clauses.
List of Subjects in 48 CFR Parts 204, 212, 247, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 204, 212, 247, and 252 are proposed to be
amended as follows:
0
1. The authority citation for parts 204, 212, 247, and 252 continue to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 204--ADMINISTRATIVE AND INFORMATION MATTERS
204.1202 [Amended]
0
2. Amend section 204.1202 by removing paragraph (2)(xv).
PART 212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES
0
3. Amend section 212.301 by revising paragraph (f)(xxi) to read as
follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
* * * * *
(f) * * *
(xxi) Part 247--Transportation.
(A) Use the clause at 252.247-7003, Pass-Through of Motor Carrier
Fuel Surcharge Adjustment to the Cost Bearer, as prescribed in 247.207,
to comply with section 884 of Public Law 110-417.
(B) Use the basic or one of the alternates of the clause at
252.247-7023, Transportation of Supplies by Sea, as prescribed in
247.574(a), to comply with the Cargo Preference Act of 1904 (10 U.S.C.
2631(a)).
(1) Use the basic clause as prescribed in 247.574(a)(1).
(2) Use the alternate I clause as prescribed in 247.574(a)(2).
(3) Use the alternate II clause as prescribed in 247.574(a)(3).
(C) Use the clause 252.247-7025, Reflagging or Repair Work, as
prescribed in 247.574(b), to comply with 10 U.S.C. 2631(b).
(D) Use the provision at 252.247-7026, Evaluation Preference for
Use of Domestic Shipyards--Applicable to Acquisition of Carriage by
Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade, as
prescribed in 247.574(c), to comply with section 1017 of Public Law
109-364.
(E) Use the clause at 252.247-7027, Riding Gang Member
Requirements, as prescribed in 247.574(d), to comply with section 3504
of the National Defense Authorization Act for Fiscal Year 2009 (Pub. L.
110-417).
(F) Use the clause at 252.247-7028, Application for U.S. Government
Shipping Documentation/Instructions, as prescribed in 247.207.
PART 247--TRANSPORTATION
247.574 [Amended]
0
4. Amend section 247.574--
0
a. By removing paragraph (a);
0
b. By redesignating paragraphs (b) through (e) as paragraphs (a)
through (d);
0
c. In newly redesignated paragraph (a) introductory text, by removing
``all''; and
0
d. In newly redesignated paragraph (d), by removing ``under chapter 121
of title 46 U.S.C.'' and adding ``46 U.S.C. chapter 121.'' in its
place.
[[Page 20926]]
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.204-7007 [Amended]
0
5. Amend section 252.204-7007 by--
0
a. Removing the provision date of ``NOV 2023'' and adding ``DATE'' in
its place; and
0
b. Removing paragraph (d)(1)(viii).
252.247-7022 [Removed and Reserved]
0
6. Remove and reserve section 252.247-7022.
0
7. Amend section 252.247-7023--
0
a. By revising the introductory text and the clause date;
0
b. By redesignating paragraphs (b) through (i) as paragraphs (c)
through (j);
0
c. By adding a new paragraph (b);
0
d. In the newly redesignated paragraph (e)(2) by removing ``Required
shipping date'' and adding ``Required shipping date(s) and required
delivery date(s)'' in its place;
0
e. By revising the newly redesignated paragraph (f) introductory text;
0
f. By revising the newly redesignated paragraph (i);
0
g. In the newly redesignated paragraph (j) introductory text by
removing ``(b)(2)'' and adding ``(c)(2)'' in its place;
0
h. In the newly redesignated paragraph (j)(1) by removing ``paragraph
(i)'' and adding ``paragraph (j)'' in its place; and
0
i. In the newly redesignated paragraph (j)(2) by removing ``paragraphs
(a) through (e)'' and ``paragraph (i)'' and adding ``paragraphs (a)
through (f)'' and ``paragraph (j)'' in their places, respectively.
0
j. In Alternate I--
0
i. By revising the introductory text and the clause date;
0
ii. By redesignating paragraphs (b) through (i) as paragraphs (c)
through (j);
0
iii. By adding a new paragraph (b);
0
iv. In the newly redesignated paragraph (e)(2) by removing ``Required
shipping date'' and adding ``Required shipping date(s) and required
delivery date(s)'' in its place;
0
v. By revising the newly redesignated paragraph (f) introductory text;
0
vi. By revising the newly redesignated paragraph (i);
0
vii. In the newly redesignated paragraph (j) introductory text by
removing ``(b)(2)'' and adding ``(c)(2)'' in its place;
0
viii. In the newly redesignated paragraph (j)(1) by removing
``paragraph (i)'' and adding ``paragraph (j)'' in its place;
0
ix. In the newly redesignated paragraph (j)(2) by removing ``paragraphs
(a) through (e)'' and ``paragraph (i)'' and adding ``paragraphs (a)
through (f)'' and ``paragraph (j) in their places, respectively; and
0
x. By adding ``(End of clause)'' after newly redesignated paragraph
(j)(2).
0
k. In Alternate II--
0
i. By revising the introductory text and the clause date;
0
ii. By redesignating paragraphs (b) through (i) as paragraphs (c)
through (j);
0
iii. By adding a new paragraph (b);
0
iv. In the newly redesignated paragraph (e)(2) by removing ``Required
shipping date'' and adding ``Required shipping date(s) and required
delivery date(s)'' in its place;
0
v. By revising the newly redesignated paragraph (f) introductory text;
0
vi. By revising the newly redesignated paragraph (i);
0
vii. In the newly redesignated paragraph (j) introductory text by
removing ``(b)(2)'' and adding ``(c)(2)'' in its place;
0
viii. In the newly redesignated paragraph (j)(1) by removing
``paragraph (i)'' and adding ``paragraph (j)'' in its place;
0
ix. In the newly redesignated paragraph (j)(2) by removing ``paragraphs
(a) through (e)'' and ``paragraph (i)'' and adding ``paragraphs (a)
through (f)'' and ``paragraph (j)'' in their places, respectively; and
0
x. By adding ``(End of clause)'' after newly redesignated paragraph
(j)(2).
The revisions and additions read as follows:
252.247-7023 Transportation of Supplies by Sea.
Basic. As prescribed in 247.574(a) and (a)(1), use the following
clause:
Transportation of Supplies by Sea--Basic (Date)
* * * * *
(b) If the transportation of supplies by sea is anticipated under
this contract, the Contractor shall--
(1) Notify the Contracting Officer and Maritime Administration
(MARAD) at [email protected]--
(i) Within 3 business days after contract award; or
(ii) Immediately prior to the shipment departure date necessary to
meet delivery schedules, whichever is earlier; and
(2) Include in the notification--
(i) A statement of the Contractor's intent to transport supplies by
sea;
(ii) The contract number; and
(iii) The task-order or delivery-order number, when applicable.
* * * * *
(f) The Contractor shall, within 30 days after each shipment
covered by this clause, provide the Contracting Officer and MARAD at
[email protected], Attention: Military Team, one copy of the rated on
board vessel operating carrier's ocean bill of lading, which shall
contain the following information:
* * * * *
(i) If the Contractor did not anticipate transporting any supplies
by sea at the time of contract award and, therefore, did not provide
the notification required by paragraph (b) of this clause, but prior to
shipment of supplies, the Contractor learns that supplies will be
transported by sea, the Contractor shall--
(1) Provide the notification required by paragraph (b) of this
clause to the Contracting Officer and MARAD as soon as it is known that
supplies will be transported by sea; and
(2) Comply with all the terms and conditions of this clause.
* * * * *
Alternate I. As prescribed in 247.574(a) and (a)(2), use the
following clause, which uses a different paragraph (c) than the basic
clause:
Transportation of Supplies by Sea--Alternate I (Date)
* * * * *
(b) If the transportation of supplies by sea is anticipated under
this contract, the Contractor shall--
(1) Notify the Contracting Officer and Maritime Administration
(MARAD) at [email protected]--
(i) Within 3 business days after contract award; or
(ii) Immediately prior to the shipment departure date necessary to
meet delivery schedules, whichever is earlier; and
(2) Include in the notification--
(i) A statement of the Contractor's intent to transport supplies by
sea;
(ii) The contract number; and
(iii) The task-order or delivery-order number, when applicable.
* * * * *
(f) The Contractor shall, within 30 days after each shipment
covered by this clause, provide the Contracting Officer and MARAD at
[email protected], Attention: Military Team, one copy of the rated on
board vessel operating carrier's ocean bill of lading, which shall
contain the following information:
* * * * *
(i) If the Contractor did not anticipate transporting any supplies
by sea at the time of contract award and, therefore, did not provide
the notification required by paragraph (b) of this clause, but prior to
shipment of the supplies, the Contractor learns that supplies will be
transported by sea, the Contractor shall--
[[Page 20927]]
(1) Provide the notification required by paragraph (b) of this
clause to the Contracting Officer and MARAD as soon as it is known that
supplies will be transported by sea; and
(2) Comply with all the terms and conditions of this clause.
* * * * *
Alternate II. As prescribed in 247.574(a) and (a)(3), use the
following clause, which uses a different paragraph (c) than the basic
clause:
Transportation of Supplies by Sea--Alternate II (date)
* * * * *
(b) If the transportation of supplies by sea is anticipated under
this contract, the Contractor shall--
(1) Notify the Contracting Officer and Maritime Administration
(MARAD) at [email protected]--
(i) Within 3 business days after contract award; or
(ii) Immediately prior to the shipment departure date necessary to
meet delivery schedules, whichever is earlier; and
(2) Include in the notification--
(i) A statement of the Contractor's intent to transport supplies by
sea;
(ii) The contract number; and
(iii) The task-order or delivery-order number, when applicable.
* * * * *
(f) The Contractor shall, within 30 days after each shipment
covered by this clause, provide the Contracting Officer and MARAD at
[email protected], Attention: Military Team, one copy of the rated on
board vessel operating carrier's ocean bill of lading, which shall
contain the following information:
* * * * *
(i) If the Contractor did not anticipate transporting any supplies
by sea at the time of contract award, and, therefore, did not provide
the notification required by paragraph (b) of this clause, but prior to
shipment of the supplies, the Contractor learns after the award of the
contract that supplies will be transported by sea, the Contractor
shall--
(1) Provide the notification required by paragraph (b) of this
clause to the Contracting Officer and MARAD as soon as it is known that
supplies will be transported by sea; and
(2) Comply with all the terms and conditions of this clause.
* * * * *
0
8. Amend section 252.247-7025--
0
a. By revising the section heading; and
0
b. In the introductory text by removing ``247.574(c)'' and adding
``247.574(b)'' in its place.
The revision reads as follows:
252.247-7025 Reflagging or Repair Work.
* * * * *
252.247-7026 [Amended]
0
9. Amend section 252.247-7026 introductory text by removing
``247.574(d)'' and adding ``247.574(c)'' in its place.
0
10. Amend section 252.247-7027--
0
a. By revising the section heading; and
0
b. In the introductory text by removing ``247.574(e)'' and adding
``247.574(d)'' in its place.
The revision reads as follows:
252.247-7027 Riding Gang Member Requirements.
* * * * *
[FR Doc. 2024-06004 Filed 3-25-24; 8:45 am]
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