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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Proposed Rules End of clause
I. Background
FR Doc. 202120938 Filed 92821; 8:45 am
This rule proposes to amend DFARS
subpart 225.70 to implement section 817 of the National Defense Authorization Act NDAA for Fiscal Year FY 2021 Pub. L. 116283.
Section 817 amends 10 U.S.C. 2533a commonly known as the Berry Amendment, by reducing the dollar threshold at which an acquisition is excepted from the source restrictions of the Berry Amendment from the simplified acquisition threshold SAT
to an amount not to exceed $150,000.
DFARS 225.7002 identifies the domestic source restrictions of 10 U.S.C.
2533a on food, clothing, fabrics, fibers, hand or measuring tools, and flags, unless an exception applies. DFARS
225.70022, Exceptions, has historically referred to actions at or below the small purchase threshold, rather than a specific dollar value, as an exception to the domestic source restrictions of the Berry Amendment. As a result, each time the SAT increased, the exception threshold also increased to align with the new SAT, to include the most recent SAT increase to $250,000. Federal Acquisition Regulation FAR Case 2018004, published July 2, 2020 85 FR
40064 raised the SAT at FAR 2.101
from $150,000 to $250,000.

BILLING CODE 500106P

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System 48 CFR Parts 225 and 252
Docket DARS20210018
RIN 0750AL29

Defense Federal Acquisition Regulation Supplement: Modification of Small Purchase Threshold Exceptions DFARS Case 2021D010
Defense Acquisition Regulations System, Department of Defense DoD.
ACTION: Proposed rule.
AGENCY:

DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2021, which reduces the dollar threshold at which an acquisition is excepted from certain source restrictions.

SUMMARY:

Comments on the proposed rule should be submitted in writing to the address shown below on or before November 29, 2021, to be considered in the formation of the final rule.
ADDRESSES: Submit comments identified by DFARS Case 2021D010, using any of the following methods:
Federal eRulemaking Portal:
https www.regulations.gov. Search for DFARS Case 2021D010. Select Comment and follow the instructions to submit a comment. Please include your name, company name if any, and DFARS Case 2021D010 on any attached documents.
Email: osd.dfars@mail.mil. Include DFARS Case 2021D010 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 comments, please check https
www.regulations.gov, approximately two to three days after submission to verify posting.
FOR FURTHER INFORMATION CONTACT: Ms.
Kimberly R. Ziegler, telephone 571
3726095.
SUPPLEMENTARY INFORMATION:
DATES:

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II. Discussion and Analysis
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The proposed rule implements section 817 of the NDAA for FY 2021 by revising the exception at DFARS
225.70022a from at or below the simplified acquisition threshold to not exceeding $150,000. The net effect of this revision will be to increase the number of acquisitions subject to the domestic source requirements at DFARS
225.7002. Conforming changes will also be made at DFARS 225.70022j2, 225.70023b and c, and the associated contract clause 252.225
7012, Preference for Certain Domestic Commodities.
While the statute reduces the dollar value of the current exception threshold, it also authorizes the adjustment of this statutory threshold for inflation every five years, in accordance with 41 U.S.C. 1908.
III. Applicability to Contracts at or Below the Simplified Acquisition Threshold SAT and for Commercial Items, Including Commercially Available Off-the-Shelf COTS Items This rule proposes to amend the applicability of the following DFARS
clauses: 1 252.2257006, Acquisition of the American Flag; 2 252.2257012, Preference for Certain Domestic Commodities; and 3 252.2257015,
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Restriction on Acquisition of Hand or Measuring Tools. DoD does intend to apply the rule to contracts valued above $150,000 but at or below the SAT. The clauses impacted by the rule are already prescribed for use in solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, including COTS items.
A. Applicability to Contracts at or Below the Simplified Acquisition Threshold 41 U.S.C. 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the simplified acquisition threshold. It is intended to limit the applicability of laws to such contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the Federal Acquisition Regulatory Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The Principal Director, Defense Pricing and Contracting DPC, is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations. DoD
does intend to make that determination.
Therefore, this rule will apply below the simplified acquisition threshold.
B. Determination DoD plans to apply the rule to contracts valued above $150,000 but at or below the SAT for the following DFARS clauses: 1 252.2257006, Acquisition of the American Flag; 2
252.2257012, Preference for Certain Domestic Commodities; and 3
252.2257015, Restriction on Acquisition of Hand or Measuring Tools.
Not applying these clauses to contracts valued above $150,000 but at or below the SAT would exclude contracts intended to be covered by this rule and undermine the overarching purpose of the rule, which is to increase the number of acquisitions subject to the domestic source restrictions at DFARS
225.7002 by reducing the volume of procurements subject to the exception at DFARS 225.70022a. The clauses already apply to commercial items, including COTS items.
IV. Expected Impact of the Rule DFARS 225.7002 identifies the domestic source restrictions of 10 U.S.C.
2533a on food, clothing, fabrics, fibers, hand or measuring tools, and flags, unless an exception at DFARS
225.70022 applies. Acquisitions valued
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