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Federal Register / Vol. 86, No. 129 / Friday, July 9, 2021 / Rules and Regulations
requires reporting for only four service acquisition portfolio groups: Logistics management services, equipment related services, knowledge-based services, and electronics and communications services. No further exemptions are available under the law.
Comment: Several respondents recommended that contracted services that meet the definition of commercial items be exempt from ECMRA reporting.
Response: An exception for services that meet the definition of a commercial item would exclude significant sums expended by DoD on commercial service acquisitions intended to be covered by the law. The intent of the statute is to enhance DoDs ability to manage the total force, inclusive of military, civilian, and contractor personnel. Specifically, section 2330a requires the military departments and defense agencies to ensure that the inventory of contracts for services required by the statute is used to inform strategic workforce planning decisions under 10 U.S.C. 129a, develop budget justification materials for services in accordance with 10 U.S.C. 235, and ensure services contracts are not for the performance of inherently governmental functions. Therefore, services meeting the definition of a commercial item are not exempt from the reporting requirement.
Comment: Several respondents recommended that firm fixed-price service contracts be exempt from the ECMRA reporting requirement, because these contracts acquire services in their entirety, not as individuals full-time equivalents.
Response: In accordance with paragraph b of 10 U.S.C. 2330a, the data required to be collected under the statute includes service contracts and orders that contain firm fixed-prices for the specific tasks to be performed.
Therefore, firm fixed-price contracts for the applicable services are not exempt under the proposed rule for DFARS
Case 2018D063.
Comment: One respondent recommended that the rule exempt DoD
intelligence community agency contracts, because the existing exemption for classified services is not sufficient to cover the exempt contracts entered into by DoD
intelligence community agencies.
Response: The statute does not provide for exemptions to the reporting requirement; therefore, the proposed rule for DFARS Case 2012D051 does not provide for exemptions, in order to comply with the law.
Comment: One respondent recommended that, due to the difficulty in tracking labor for service contracts
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where contractor employees may spend only small fractions of their time servicing the Government contract such as refuse collection and software as a service, the rule should be changed to exempt such contracts by using the criteria similar to the Service Contract Labor Standards exemptions see FAR
22.10034d1.
Response: Title 10 U.S.C. 2330a, as amended by section 812 of the NDAA
for FY 2017, now limits data collection to four service acquisition portfolio groups: Logistics management services, equipment related services, knowledgebased services, and electronics and communications services. Under the proposed rule for DFARS Case 2018
D063, only service contracts with a total estimated value exceeding $3 million that are for services in one of the four portfolio groups must be reported in SAM.
Comment: One respondent questioned whether Congress intended DoD to report contracts for services that are integrally related to supplies, or contracts where the services are a relatively small dollar value in relation to the supplies.
Response: Title 10 U.S.C. 2330a requires the collection of data on each purchase of services by a military department or Defense Agency that meets a certain dollar threshold and is for certain services. The proposed rule for DFARS Case 2018D063 clarifies that the requirement applies to contracts or orders that have a total estimated value, including options, exceeding $3
million and are for services in one of the four service acquisition portfolio groups.
B. Expansion of Reporting Requirement Comment: Two respondents suggested that the ECMRA reporting requirement be extended to contracts for services valued at or below the simplified acquisition threshold SAT. Doing so would be consistent with the congressional intent in 10 U.S.C. 2330a for DoD to provide a total inventory of contracted services.
Response: Title 10 U.S.C. 2330aa, as amended by section 812 of the NDAA
for FY 2017, now only requires the collection of data on service contracts, under certain portfolio groups, that exceed $3 million. The proposed rule for DFARS Case 2018D063 implements the statutory threshold. Applying the rule to service contracts below $3
million is not necessary to implement the statute and would impose an unnecessary burden on the public and DoD.
Comment: One respondent suggested that the final rule clarify that services
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provided ancillary to a lease or rental contract such as auto repair and maintenance services incidental to a vehicle lease are subject to ECMRA
reporting requirement. The respondent also recommended that the final rule clarify that the ECMRA reporting requirements apply to contracts for destruction, demolition, and removal.
Response: Title 10 U.S.C. 2330aa, as amended by section 812 of the NDAA
for FY 2017, specifies that the service acquisition portfolio group for equipment related services is included in the required reporting group. It is expected that contracts for equipmentrelated services with a total estimated value, including options, exceeding $3
million will be reported in SAM.
C. Duplicative of Existing Systems Comment: Two respondents indicated that the rule is duplicative of the existing FAR rule on service contract reporting that applies to civilian agencies see FAR subpart 4.17.
Respondents stated that there should not be two parallel systems, one for civilian agencies and another for defense agencies, because this situation causes confusion and compliance problems within industry.
Response: FAR subpart 4.17 does not apply to DoD. The proposed rule for DFARS Case 2018D063 enables DoD to fulfill its obligation under 10 U.S.C.
2330a. Since publication of the proposed rule under DFARS Case 2012
D051, DoD has adopted the use of FPDS
to collect a majority of the required data, in an effort to standardize the reporting process for contractors across the Federal Government.
Comment: Several respondents suggested that the ECMRA system is duplicative of other Government systems, such as FPDS, which can also be used to estimate the data provided in the annual inventory of contracts for services.
Response: DoD has adopted the service contract reporting process used by other Federal agencies and no longer requires contractor reporting in ECMRA.
This rule will enable DoD to use FPDS
to obtain a majority of the information required by 10 U.S.C. 2330a. FPDS does not provide data on the direct labor hours expended and dollar amounts invoiced for contracted services.
Therefore, the proposed rule for DFARS
Case 2018D063 requires applicable contractors to enter the labor hours and dollar amounts in SAM, which is the process used by other Federal agencies, in accordance with FAR subpart 4.17.
Comment: Two respondents suggested that the separate instances of ECMRA
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