[Federal Register: February 24, 2010 (Volume 75, Number 36)]
[Rules and Regulations]               
[Page 8272-8273]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Defense Acquisition Regulations System

48 CFR Part 207

[DFARS Case 2009-D014]
RIN 0750-AG61

Defense Federal Acquisition Regulation Supplement; Acquisition 
Strategies To Ensure Competition Throughout the Life Cycle of Major 
Defense Acquisition Programs

AGENCY: Defense Acquisition Regulations System, Department of Defense 

ACTION: Interim rule with request for comments.


SUMMARY: DoD is issuing an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement the Weapon 
Systems Acquisition Reform Act of 2009, section 202, Acquisition 
Strategies to Ensure Competition throughout the Lifecycle of Major 
Defense Acquisition Programs.

DATES: Effective Date: February 24, 2010.
    Comment Date: Comments on this interim rule should be submitted in 
writing to the address shown below on or before April 26, 2010, to be 
considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2009-D014, 
using any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: dfars@osd.mil. Include DFARS Case 2009-D014 in the subject 
line of the message.
    Fax: 703-602-0350.
    Mail: Defense Acquisition Regulations System, Attn: Ms. Meredith 
Murphy, OUSD (AT&L) DPAP (DARS), 3060 Defense Pentagon, Room 3B855, 
Washington, DC 20301-3060.
    Hand Delivery/Courier: Defense Acquisition Regulations System, 
Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-
    Comments received generally will be posted without change to http:/
/www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT:  Ms. Meredith Murphy, 703-602-1302.


A. Background

    On May 22, 2009, The Weapon Systems Acquisition Reform Act (Pub. L. 
111-23) was enacted to improve the organization and procedures of DoD 
for the acquisition of major weapon systems. This law establishes new 
oversight entities within DoD, as well as new and varied weapon system 
acquisition and management reporting requirements.
    Section 202 directs the Secretary of Defense (SECDEF) to ensure 
that the acquisition strategy for each MDAP includes: (1) Measures to 
ensure competition at both the prime contract and subcontract level of 
the MDAP throughout its life cycle as a means to improve contractor 
performance; and (2) adequate documentation of the rationale for 
selection of the

[[Page 8273]]

subcontractor tier or tiers. It also outlines measures to ensure such 
competition. Furthermore, it requires the SECDEF: (1) To take specified 
actions to ensure fair and objective ``make-buy'' decisions by prime 
contractors on MDAPs; and (2) whenever a decision regarding the source 
of repair results in a plan to award a contract for performance of 
maintenance and sustainment of a major weapon system, to ensure that 
such contract is awarded on a competitive basis with full consideration 
of all sources.

B. Regulatory Flexibility Act

    DoD does not expect this interim 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 the change is to internal Government operating procedures. 
Therefore, an Initial Regulatory Flexibility Analysis has not been 
performed. DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
    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 2009-D014) in 

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.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD) that urgent and compelling reasons exist to promulgate 
this interim rule without prior opportunity for public comments. This 
action is necessary because section 202 of the Weapon Systems 
Acquisition Reform Act of 2009 became effective upon enactment on May 
22, 2009. However, pursuant to 41 U.S.C. 418b, DoD will consider public 
comments received in response to this interim rule in the formation of 
the final rule.

List of Subjects in 48 CFR Part 207

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 207 is amended as follows:
1. The authority citation for 48 CFR part 207 continues to read as 

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.


2. Section 207.106 is amended by adding a new paragraph (S-72) to read 
as follows:

207.106  Additional requirements for major systems.

* * * * *
    (S-72)(1) In accordance with section 202 of the Weapon Systems 
Acquisition Reform Act of 2009 (Pub. L. 111-23), acquisition plans for 
major defense acquisition programs as defined in 10 U.S.C. 2430, shall 
include measures that--
    (i) Ensure competition, or the option of competition, at both the 
prime contract level and subcontract level (at such tier or tiers as 
are appropriate) throughout the program life cycle as a means to 
improve contractor performance; and
    (ii) Document the rationale for the selection of the appropriate 
subcontract tier or tiers under paragraph (S-72)(1)(i) of this section, 
and the measures which will be employed to ensure competition, or the 
option of competition.
    (2) Measures to ensure competition, or the option of competition, 
may include, but are not limited to, cost-effective measures intended 
to achieve the following:
    (i) Competitive prototyping.
    (ii) Dual-sourcing.
    (iii) Unbundling of contracts.
    (iv) Funding of next-generation prototype systems or subsystems.
    (v) Use of modular, open architectures to enable competition for 
    (vi) Use of build-to-print approaches to enable production through 
multiple sources.
    (vii) Acquisition of complete technical data packages.
    (viii) Periodic competitions for subsystem upgrades.
    (ix) Licensing of additional suppliers.
    (x) Periodic system or program reviews to address long-term 
competitive effects of program decisions.
    (3) In order to ensure fair and objective ``make-or-buy'' decisions 
by prime contractors, acquisition strategies and resultant 
solicitations and contracts shall--
    (i) Require prime contractors to give full and fair consideration 
to qualified sources other than the prime contractor for the 
development or construction of major subsystems and components of major 
weapon systems;
    (ii) Provide for Government surveillance of the process by which 
prime contractors consider such sources and determine whether to 
conduct such development or construction in-house or through a 
subcontract; and
    (iii) Provide for the assessment of the extent to which the prime 
contractor has given full and fair consideration to qualified sources 
in sourcing decisions as a part of past performance evaluations.
    (4) Whenever a source-of-repair decision results in a plan to award 
a contract for the performance of maintenance and sustainment services 
on a major weapon system, to the maximum extent practicable and 
consistent with statutory requirements, the acquisition plan shall 
prescribe that award will be made on a competitive basis after giving 
full consideration to all sources (including sources that partner or 
subcontract with public or private sector repair activities).

[FR Doc. 2010-3713 Filed 2-23-10; 8:45 am]