[Federal Register Volume 60, Number 68 (Monday, April 10, 1995)]
[Rules and Regulations]
[Pages 18030-18032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8748]



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DEPARTMENT OF ENERGY

48 CFR Parts 915, 916 and 970

RIN 1991-AB19


Acquisition Regulation: Certified Cost or Pricing Data Threshold 
and Requirements for a Determination and Findings for Use of Cost-
Reimbursement Contracts

AGENCY: Department of Energy.

ACTION: Interim rule and request for comment.

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SUMMARY: The Department of Energy is issuing an interim rule increasing 
the threshold for certified cost or pricing data from $100,000 to 
$500,000 and deleting the requirement for determinations and findings 
for use of cost reimbursement contracts. These changes are required by 
the Federal Acquisition Streamlining Act of 1994 and subsequent changes 
to the Federal Acquisition Regulation (FAR).

DATES: Effective Date: April 10, 1995.
    Comment Date: Written comments must be submitted no later than June 
9, 1995.

ADDRESSES: Comments should be addressed to: Terrence D. Sheppard, 
Business and Financial Policy Division (HR-521.2), Office of 
Procurement and Assistance Management, Department of Energy, 1000 
Independence Avenue SW., Washington, D.C. 20585.

FOR FURTHER INFORMATION CONTACT: Terrence D. Sheppard, (202) 586-8174.

SUPPLEMENTARY INFORMATION:
I. Background
II. Public Comments
III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12778
    C. Review Under the Paperwork Reduction Act [[Page 18031]] 
    D. Review Under the National Environmental Policy Act
    E. Review Under Executive Order 12612

I. Background

    Pursuant to section 644 of the Department of Energy Organization 
Act (Pub. L. 95-91, 42 U.S.C. 7254), the Secretary of Energy is 
authorized to prescribe such procedural rules and regulations as may be 
deemed necessary or appropriate to accomplish the functions vested in 
the Secretary. In accordance with this authority, the Department of 
Energy Acquisition Regulation (DEAR) (48 CFR Chapter 9) was promulgated 
with an effective date of April 1, 1984 (49 FR 11922, March 28, 1984).
    The Federal Acquisition Streamlining Act of 1994 (the Act) (Pub. L. 
103-355) provides authorities that streamline the acquisition process 
and minimize burdensome government-unique requirements. This notice 
announces an interim rule which amends the DEAR based on certain 
provisions in the Act. In particular, Section 1251 of the Act, which 
was implemented in the FAR under FAR Case 94-720 (59 FR 62498, December 
5, 1994), increases the threshold for obtaining certified cost or 
pricing data from $100,000 to $500,000, and section 1071 of the Act, 
which was implemented in the FAR under FAR Case 94-700, (59 FR 64784, 
December 15, 1994), repealed the requirement for a determination and 
finding regarding use of a cost-type or incentive contract. This 
interim rule is intended solely to make the changes necessary to 
implement those limited portions of the Act. More extensive changes to 
implement other portions of the Act will be made subsequently.
    A detailed list of changes follows:
    1. The authority for Parts 915 and 916 is restated.
    2. Subsection 915.804-70 is amended by deleting the parenthetical 
``(proposals of $100,000 or less).'' There is no need to specify the 
new threshold ($500,000), because it is stated in the FAR and is the 
same for all federal agencies. In addition, the FAR provides that this 
threshold will be subject to adjustment effective October 1, 1995 and 
every five years thereafter.
    3. Subsection 916.301-3 is deleted in its entirety as the statutory 
requirement to prepare a determination and finding has been repealed by 
Section 1071 of the Act.
    4. The authority for Part 970 is amended by deleting the references 
to 41 U.S.C. 420 and 42 U.S.C. 7256a. The former was repealed by 
Section 2191 of the Act and the latter is unnecessary in light of the 
authority provided by 42 U.S.C. 2201 and 42 U.S.C. 7254.
    5. Subsection 970.5204-24 is amended by deleting the specific 
references to the $100,000 threshold and replacing it with references 
to the FAR cost or pricing data threshold established in FAR 15.804-
2(a)(1). Affected paragraphs are (a), (a)(2), (c), (d), (f), and NOTE 
(b).
    6. Subsection 970.7104-11 is amended at paragraphs (a)(1)(i) and 
(ii) by deleting the specific dollar threshold and substituting a 
reference to the FAR threshold.

II. Public Comments

    The regulatory changes described above are not discretionary with 
the Department. Accordingly, the Department has not published a general 
notice of proposed rulemaking. Nevertheless, the Department is 
providing an opportunity to comment on any relevant matter that may 
have been overlooked. Interested persons are invited to participate by 
submitting data, views, or arguments with respect to the interim final 
Department of Energy Acquisition Regulation amendments set forth in 
this notice. Three copies of written comments should be submitted to 
the address indicated in the ``ADDRESSES'' section of this notice. All 
comments received will be available for public inspection in the DOE 
Reading Room, Room 1E-190, Forrestal Building, 1000 Independence 
Avenue, SW., Washington, DC 20585, between the hours of 9 a.m. and 4 
p.m., Monday through Friday, except Federal holidays. All written 
comments received by the date indicated in the ``DATES'' section of 
this notice and all other relevant information in the record will be 
carefully assessed and fully considered prior to publication of the 
final rule. Any information considered to be confidential must be so 
identified and submitted in writing, one copy only. DOE reserves the 
right to determine the confidential status of the information and to 
treat it according to our determination (See 10 CFR 1004.11).

III. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993). 
Accordingly, this action was not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs of the Office 
of Management and Budget (OMB).

B. Review Under Executive Order 12778

    Section 2 of Executive Order 12778 instructs agencies to adhere to 
certain requirements in promulgating new regulations and reviewing 
existing regulations. These requirements, set forth in Sections 2 (a) 
and (b), include eliminating drafting errors and needless ambiguity, 
drafting the regulations to minimize litigation, providing clear and 
certain legal standards for affected conduct, and promoting 
simplification and burden reduction. Agencies are also instructed to 
make every reasonable effort to ensure that the regulation: Specifies 
clearly any preemptive effect; describes any administrative proceedings 
to be available prior to judicial review and any provisions for the 
exhaustion of such administrative proceedings; and defines key terms. 
DOE certifies that today's interim final rule meets the requirements of 
sections 2 (a) and (b) of Executive Order 12778.

C. Review Under the Paperwork Reduction Act

    No new information or recordkeeping requirements are imposed by 
this rulemaking. Accordingly, no OMB clearance is required under the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

D. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions which would not individually or cumulatively have 
significant impact on the human environment, as determined by DOE's 
regulations (10 CFR Part 1021, Subpart D) implementing the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). 
Specifically, this rule is categorically excluded from NEPA review 
because the amendments to the DEAR do not change the environmental 
effect of the rule being amended (categorical exclusion A5). Therefore, 
this rule does not require an environmental impact statement or 
environmental assessment pursuant to NEPA.

E. Review Under Executive Order 12612

    Executive Order 12612 (52 FR 41685, October 30, 1987) requires that 
regulations, rules, legislation, and any other policy actions be 
reviewed for any substantial direct effects on States, on the 
relationship between the National Government and the States, or in the 
distribution of power and responsibilities among the various levels of 
Government. If there are sufficient substantial direct effects, then 
the Executive Order requires the preparation of a federalism assessment 
[[Page 18032]] to be used in all decisions involved in promulgating and 
implementing a policy action. This interim final rule, when finalized, 
will revise certain policy and procedural requirements. States which 
contract with DOE will be subject to this rule. However, DOE has 
determined that this rule will not have a substantial direct effect on 
the institutional interests or traditional functions of the States.

List of Subjects in 48 CFR Parts 915, 916, and 970

    Government procurement.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.

    For the reasons set out in the preamble, Chapter 9 of Title 48 of 
the Code of Federal Regulations is amended as set forth below.
    1. The authority citations for Parts 915 and 916 continue to read 
as follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).

PART 915--CONTRACTING BY NEGOTIATION

    2. Subsection 915.804-70 is revised to read as set forth below:


915.804-70  Uncertified cost or pricing data.

    Anytime an offeror or contractor is not required to submit 
certified cost or pricing data, the contracting officer may require the 
offeror or contractor to submit uncertified cost or pricing data. The 
amount of data required to be submitted should be limited to that data 
necessary to allow the contracting officer to determine the 
reasonableness of the price.

PART 916--TYPES OF CONTRACTS


916.301-3  [Removed]

    3. Subsection 916.301-3, Limitations, is removed.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

    4. The authority citation for Part 970 is revised to read as 
follows:

    Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 
2201), sec. 644 of the Department of Energy Organization Act, Public 
Law 95-91 (42 U.S.C. 7254).

    5. Subsection 970.5204-24 is amended by revising paragraphs (a), 
(a)(2), (c), (d), (f), (g), and paragraph (b) following ``NOTE'' at the 
end of the clause to read as set forth below:


970.5204-24  Subcontractor cost or pricing data.

* * * * *
    (a) The following clause shall be inserted in all subcontracts 
where such subcontracts, and any modifications thereto, exceed the 
cost or pricing data threshold at FAR 15.804-2(a)(1), even though 
the original amount of the subcontract was below the threshold.
* * * * *
    (2) Except as provided in (a)(3) of this clause, certified cost 
or pricing data shall be submitted prior to (i) award of each sub-
subcontract, the price of which is expected to exceed the cost or 
pricing data threshold at FAR 15.804-2(a)(1), and (ii) the 
negotiation of the price of each change or modification to the sub-
subcontract under this subcontract for which the price adjustment is 
expected to exceed the cost or pricing data threshold at FAR 15.804-
2(a)(1).
* * * * *
    (c) For purposes of verifying that certified cost or pricing 
data submitted in conjunction with the negotiation of this 
subcontract change or other modification involving an amount in 
excess of the cost or pricing data threshold at FAR 15.804-2(a)(1) 
were accurate, complete, and current, DOE shall, until the 
expiration of 3 years from the date of final payment under this 
subcontract, have the right to examine those books, records, 
documents, papers, and other supporting data which involve 
transactions related to this subcontract or which will permit 
adequate evaluation of the cost or pricing data submitted, along 
with the computations and projections used therein.
    (d) If the original price of this subcontract exceeds the cost 
or pricing data threshold at FAR 15.804-2(a)(1) or the price of any 
change or other modification to this subcontract is expected to 
exceed the cost or pricing data threshold at FAR 15.804-2(a)(1), the 
subcontractor agrees to furnish the contractor certified cost or 
pricing data, using the certificate set forth in paragraph (b) of 
this clause, unless the price is based on adequate price 
competition, established catalog or market prices of commercial 
items sold in substantial quantities to the general public, or 
prices set by law or regulation.
* * * * *
    (f) The subcontractor agrees to insert paragraph (c) of this 
clause, without change, and the substance of paragraphs (a), (b), 
(d), (e), and (f) of this clause in each sub-subcontract hereunder 
in excess of the cost or pricing data threshold at FAR 15.804-
2(a)(1) and in each sub-subcontract that is less than the threshold 
when making a change or other modification thereto in excess of the 
cost or pricing data threshold at FAR 15.804-2(a)(1).
    (g) If the prime contractor determines that any price, including 
profit or fee, negotiated in connection with this subcontract or any 
cost reimbursable under this subcontract was increased by any 
significant sum because the subcontractor or any sub-subcontractor, 
pursuant to this clause or any sub-subcontract clause herein 
required, furnished incomplete or inaccurate cost or pricing data or 
data not current as certified in the subcontractor's certificate of 
current cost or pricing data, then such price or cost shall be 
reduced accordingly and the contract shall be modified in writing to 
reflect such reduction.
* * * * *
    Note. * * *

    (b) This clause may also be used for subcontracts in which the 
amount of the subcontract is less than the cost or pricing data 
threshold at FAR 15.804-2(a)(1), if a certificate of cost or pricing 
data is obtained; if so used, the amount stated in the clause should 
be modified appropriately.
* * * * *
    6. Subsection 970.7104-11 is amended by revising paragraphs 
(a)(1)(i) and (ii) to read as set forth below:


970.7104-11  Cost or pricing data.

    (a) * * *
    (1) * * *
    (i) Award of a negotiated subcontract when the price is expected to 
exceed the threshold for cost or pricing data at 48 CFR (FAR) 15.804-
2(a)(1), or
    (ii) Modifications of any subcontract when the price adjustment is 
expected to exceed the threshold for cost or pricing data at 48 CFR 
(FAR) 15.804-2(a)(1), unless unrelated and separately priced changes, 
for which certified cost or pricing data would not otherwise be 
required, are included.
* * * * *
[FR Doc. 95-8748 Filed 4-7-95; 8:45 am]
BILLING CODE 6450-01-P