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Federal Register / Vol. 86, No. 129 / Friday, July 9, 2021 / Rules and Regulations
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applies to solicitations, contracts other than indefinite-delivery contracts, and task orders awarded under non-DoD
indefinite-delivery contracts; and an alternate clause that applies to DoD
issued solicitations and contracts for indefinite-delivery type contracts. The basic clause and the alternate clause implement the reporting requirement for contracts and/or task orders that have a total estimated value, including options, exceeding $3 million and are for services in the four specified service acquisition portfolio groups. The basic clause advises contractors to report on the effort performed under the contract or the task order awarded under a nonDoD contract. The alternate clause advises the contractor to report on the effort performed under each task order awarded under a DoD indefinitedelivery contract that meets the criteria and threshold for service contract reporting.
Comment: One respondent suggested that the rule include a link to the product service code PSC manual available at www.acquisition.gov, to aid contracting personnel in determining the types of services to which the proposed rule applies or does not apply.
Response: The applicable PSCs will be identified in the DFARS Procedures, Guidance, and Information upon publication of the final rule.
Comment: One respondent suggested that the rule require the contracting officer to prepare a determination designating specifically the services to which the ECMRA reporting requirement would apply.
Response: It is not necessary for the contracting officer to prepare such a determination or provide further clarification to the contractor. The proposed rule for DFARS Case 2018
D063 only applies the requirement to report in SAM, via the DFARS clause, to those contracts and orders that meet the thresholds and criteria for service contract reporting, as expressed in 10
U.S.C. 2330a.
H. Definition Clarification Comment: One respondent noted that many terms, including direct labor hours and cost data, are not defined in the proposed rule.
Response: This proposed rule only uses the term direct labor hours, which is defined in FAR 2.101.
Comment: Two respondents recommended that the term services be better defined for the purposes of informing both the Government and contractor when the proposed rule for DFARS Case 2012D051 applies and when the contractor is responsible for entering data into ECMRA.

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Response: The proposed rule for DFARS Case 2018D063 only applies the requirement to report in SAM, via the DFARS clause, to those contracts and orders that meet or are expected to meet the thresholds and criteria for service contract reporting, as expressed in 10 U.S.C. 2330a. When awarded a contract, or task order placed under a non-DoD contract, this rule proposes a basic clause to notify contractors of the requirement to report in SAM on the effort performed under the award. When awarded an indefinite-delivery contract under which orders will be placed that may meet the thresholds and criteria for service contract reporting, this rule proposes an alternate clause to notify contractors of the requirement to report in SAM on the effort performed for a task order issued under the contract that meets the service contract reporting thresholds and criteria.
I. Major Rule Comment: One respondent suggested that the Government reconsider whether this is a major rule. Title 5 U.S.C. 804
defines a major rule as one which the Office of Management and Budget OMB determines will cause a major increase in costs or prices for individual industries, or have a significant adverse effect on competition, employment, investment, productivity, or innovation.
This rule imposes new reporting requirements, particularly for commercial item contractors that provide professional services and supplies. These contractors would not have been previously subject to the type of manpower reporting required by this rule. For small businesses, the need to build compliant procedures and automated systems could be a barrier to participating in the federal market. This is particularly the case when the cumulative effect of multiple and duplicative data reporting requirements is considered. The ultimate result over time will be a decrease in competition and innovation in the Federal market.
Response: This rule is not a major rule in that it does not have a significant impact on competition, employment, investment, productivity, innovation, or on the ability of U.S. enterprises to compete with foreign enterprises.
Similar reporting requirements for civilian agencies have appeared in FAR
subpart 4.17 since 2014, so many contractors already have experience with this type of reporting requirement.
The scope of this rule has been decreased, because 10 U.S.C. 2330a, as amended by section 812 of the NDAA
for FY 2017, limits data collection to four service acquisition portfolios and applies only to contracts and task orders
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exceeding $3 million in total estimated value, including options.
J. Initial Regulatory Flexibility Analysis Comment: Two respondents stated that the proposed reporting system did not have a goal of minimizing the burden to small business and that the constant flow of new regulations to businesses have little regard for the benefit to the Government or burden on businesses.
Response: The burden applied to small businesses is the minimum consistent with applicable laws, Executive orders, regulations, and prudent business practices. The information collection requirement has been narrowly tailored to maximize the use of existing records already maintained by contractors and by the Government. To further minimize the impact, DoD is adopting the existing system and process used by the rest of the Government to obtain the requisite information from contractors, which maintains a familiar and consistent reporting requirement for contractors;
and the information is collected electronically, help-desk support and user guides are available for SAM, and reporting requirements will be limited to a small number of data elements to facilitate ease of reporting and reduce contractor burden. In addition, the NDAA for FY 2017 raised the threshold for reporting to $3 million from the SAT
and limited the data reporting to four service acquisition portfolio groups.
K. Paperwork Reduction Act 1. Government Systems Already in Place Comment: Two respondents stated that the Government has systems in place for collecting the required data and the rule would require duplicative contractor reporting that is not necessary for compliance. Two respondents noted that there will be two rules, one for DoD and the other nonDoD, which could potentially apply under a single contract vehicle and that determining which set of rules apply will be burdensome.
Response: The rule will not require duplicative reporting by contractors.
The DoD and non-DoD reporting requirements are based on separate statutes. Further, the information collection requirement associated with this DFARS Case 2018D063, once cleared by OMB, will supersede the reporting requirements approved under OMB Control Number 07040491, entitled DoD Inventory of Contracts for Services Compliance. Contracts awarded by DoD, or on behalf of DoD,
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