[Federal Register Volume 60, Number 204 (Monday, October 23, 1995)]
[Proposed Rules]
[Pages 54326-54328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26159]
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DEPARTMENT OF DEFENSE
48 CFR Parts 204, 215, 216, 232, 233, 235, 239, 246, 252, 253, and
Appendix C to Chapter 2
[DFARS Case 95-D708]
Defense Federal Acquisition Regulation Supplement; Truth in
Negotiations Act and Related Changes
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comment.
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SUMMARY: The Director of Defense Procurement is proposing to amend the
Defense Federal Acquisition Regulation Supplement (DFARS) to reflect
recent amendments to the Federal Acquisition Regulation pertaining to
cost or pricing data requirements.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before December 22, 1995 to be considered
in the formulation of the final rule.
ADDRESSES: Interested parties should submit written comments to:
Defense Acquisition Regulations Council, PDUSD(A&T)DP(DAR), IMD 3D139,
3062 Defense Pentagon, Washington, DC 20301-3062. Telefax number (703)
602-0350. Please cite DFARS Case 95-D708 in all correspondence related
to this issue.
FOR FURTHER INFORMATION CONTACT:
Mr. Al Winston, Truth in Negotiations Act Team Leader, at (703) 602-
2119. Please cite DFARS Case 95-D708.
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355
(the Act), provides authorities that streamline the acquisition process
and minimize burdensome government-unique requirements. Item I of
Federal Acquisition Circular (FAC) 90-32, published at 60 FR 48206 on
September 18, 1995, amended the Federal Acquisition Regulation to
implement requirements of the Act pertaining to the submission of cost
or pricing data. This rule proposes amendments to the DFARS to conform
to the FAR amendments published as Item I of FAC 90-32. This rule also
proposes to delete DFARS language pertaining to work measurement
systems, as Section 2201(b) of the Act repealed 10 U.S.C. 2406, the
primary statute covering work measurement systems.
B. Regulatory Flexibility Act
The proposed rule is not expected 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 rule
primarily consists of conforming DFARS amendments to reflect existing
FAR requirements for submission of cost or pricing data. An initial
regulatory flexibility analysis, therefore, has not been performed.
Comments from small entities concerning the affected DFARS subparts
will be considered in accordance with Section 610 of the Act. Such
comments must be submitted separately and cite DFARS Case 95-D708 in
correspondence.
C. The Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
rule does not impose recordkeeping or information collection
requirements which require the approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 204, 215, 216, 232, 233, 235, 239,
246, 252, 253, and Appendix C
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, it is proposed that 48 CFR Parts 204, 215, 216, 232,
233, 235, 239, 246, 252, 253, and Appendix C be amended as follows:
1. The authority citation for 48 CFR Parts 204, 215, 216, 232, 233,
235, 239, 246, 252, 253, and Appendix C continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 204--ADMINISTRATIVE MATTERS
2. Section 204.805 is amended by revising paragraph (5) to read as
follows:
204.805 Disposal of contract files.
* * * * *
(5) Retain pricing review files, containing documents related to
reviews of the contractor's price proposals, subject to cost or pricing
data (see FAR 15.804-2), for six years. It if is impossible to
determine the final payment date in order to measure the six-year
period, retain the files for nine years.
PART 215--CONTRACTING BY NEGOTIATION
215.801 [Removed]
3. Section 215.801 is removed.
4. Sections 215.804 and 215.804-1 are revised to read as follows:
215.804 Cost or pricing data and information other than cost or
pricing data.
215.804-1 Prohibition of obtaining cost or pricing data.
(b) Standards for exceptions from cost or pricing data
requirements. (1) Adequate price competition. (A) An example of a price
``based on'' adequate price competition is exercise of a priced option
in a contract where adequate price competition existed, if the
contracting officer has determined that the option price is reasonable
under FAR 17.207(d)
(B) Dual or multiple source programs.
(1) In dual or multiple source programs, the determination of
adequate price competition must be made on a case-by-case basis.
Contracting officers must exercise deliberation and thorough review in
making the determination. Even when adequate price competition exists,
in certain cases it may be appropriate to obtain some data to assist in
price analysis.
[[Page 54327]]
(2) Adequate price competition normally exists when--
(i) Price are solicited across a full range of step quantities,
normally including a 0-100 percent split, from at least two offerors
who are individually capable of producing the full quantity; and
(ii) The price reasonableness of all prices awarded in clearly
established on the basis of price analysis (see FAR 15.805-2).
(3) If price reasonableness cannot be determined on the basis of
price analysis, including the results of negotiations, the exception at
FAR 15.804-1(a)(1)(i) from submission of cost or pricing data shall not
apply.
(5) Exceptional cases.
(A) The DoD has exempted the Canadian Commercial Corporation and
its subcontractors from submission of cost or pricing data on all
acquisitions.
(B) The DoD has waived cost or pricing data requirements for
nonprofit organizations (including educational institutions) on cost-
reimbursement-no-fee contracts. However, the contracting officer shall
require--
(1) Submission of information other than cost or pricing data to
the extent necessary to determine reasonableness of the price and cost
realism; and
(2) Cost or pricing data from subcontractors which are not
nonprofit organizations.
215.804-3 [Removed]
5. Section 215.804-3 is removed.
215.804-6 [Amended]
6. Section 215.804-6 is amended by redesignating paragraph
(b)(2)(A) as (b)(1)(A).
215.804-8 [Amended]
7. Section 215.804-8 is amended by removing paragraph (1); by
removing the paragraph (2) designation; and by redesignating paragraphs
(i) and (ii) as (1) and (2) respectively.
8. Section 215.805-5 is amended by revising paragraph (a)(1)(A) to
read as follows:
215.805-5 Field pricing support.
(a)(1)(A) Contracting officers shall request field pricing reports
for--
(1) Fixed-price proposals exceeding the cost or pricing data
threshold;
(2) Cost-type proposals exceeding the cost or pricing data
threshold from offerors with significant estimating system deficiencies
(see 215.811-70(a) (3) and (c)(2) (i)); or
* * * * *
9. Section 215.805-70 is amended by revising paragraph (b)(2) to
read as follows:
215.805-70 Cost realism analysis.
* * * * *
(b) * * *
(2) Do not request submission of cost or pricing data.
215.811-70 [Amended]
10. Section 2125.811-70 is amended by removing the word
``certified'' in paragraphs (b)(2)(i), (b)(2)(ii), and (h); and by
removing the last sentence of paragraph (g)(3)(ii).
215.872 [Removed and Reserved]
11. Section 215.872 is removed and reserved.
215.872-1, 215.872-2, 215.872-3, and 215.872-4 Removed]
12. Sections 215.872-1, 215.872-2, 215.872-3, and 215.872-4 are
removed.
PART 216--TYPES OF CONTRACTS
216.203-4 [Amended]
13. Section 216.203-4 is amended in the first sentence of paragraph
(d)(xvi) by revising the reference ``Far 15.804-3'' to read ``FAR
15.804-1''.
216.203-4-70 [Amended]
14. Section 216.203-4-70 is amended in paragraph (a)(1)(ii) by
revising the reference ``FAR 15.804-3(c)'' to read ``FAR 15.804-
1(b)(2)''; and in paragraphs (a)(2), (b)(4), and (b)(6) by revising the
reference ``FAR 15.804-3'' to read ``FAR 15.804-1''.
PART 232--CONTRACT FINANCING
232.502-1-71 [Amended]
15. Section 232.502-1-71 is amended in paragraph (b)(3) by removing
the word ``certified'' and by revising the reference ``FAR 15.804-2''
to read ``FAR 15.801''.
PART 233--PROTESTS, DISPUTES, AND APPEALS
233.7000 [Amended]
16. Section 233.7000 is amended in paragraph (d) by revising the
reference ``FAR 15.804-2(a)(1)(ii)'' to read ``FAR 15.804-
2(a)(1)(iii)''.
PART 235--RESEARCH AND DEVELOPMENT CONTRACTING
17. Section 235.015-71 is amended in paragraph (i)(4) by revising
the entry FAR 52.215-27 to read as follows:
235.015-71 Short form research contract (SFRC).
(i) * * *
(4) * * *
FAR 52.215-27 Termination of Defined Benefit Pension Plans (Applies
if cost or pricing data are required and cost determinations are
subject to FAR subpart 31.2)
* * * * *
PART 239--ACQUISITION OF INFORMATION RESOURCES
18. Section 239.7406 is amended by revising paragraph (c) and the
double asterisked statement at the end of paragraph (f) to read as
follows:
239.7406 Cost or pricing data.
* * * * *
(c) Unless prohibited by FAR 15.804-1, contracting officers shall
obtain certified cost or pricing data when unable to determine that the
prices are reasonable on the basis of price analysis (see FAR 15.805-
2). * * *
(f) * * *
* * * Insert the day, month, and year when price negotiations were
concluded and price agreement was reached or, if applicable, another
data agreed upon between the parties.
* * * * *
PART 246--QUALITY ASSURANCE
246.770-1 [Amended]
19. Section 246.770-1 is amended in paragraph (f)(2)(i) by revising
the reference ``FAR 15.804-3(c)'' to read ``FAR 15.804-1(a)(1)(ii)''.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.215-7000 [Removed and Reserved]
20. Section 252.215-7000 is removed and reserved.
252.215-7002 [Amended]
21. Section 252.215-7002 is amended in paragraphs (c)(1) and
(c)(2)(i) by removing the word ``certified''.
252.216-7000 [Amended]
22. Section 252.216-7000 is amended in paragraph (a)(2) by revising
the reference ``FAR 15.804-3'' to read ``FAR 15.804-1''.
252.216-7001 [Amended]
23. Section 252.216-7001 is amended in paragraph (a)(1)(ii) by
revising the reference ``FAR 15.804-3'' to read ``FAR 15.804-1''.
24. Section 252.243-7000 is amended by revising paragraph (c) to
read as follows:
252.243-7000 Engineering change proposals.
* * * * *
(c) When the price** of the engineering change is equal to or
greater than the cost or pricing data threshold, the Contractor shall
submit--
[[Page 54328]]
(1) A completed SF 1411, Contract Pricing Proposal Cover Sheet
(Cost or Pricing Data Required), and
(2) At the time of agreement on price*, or on another date agreed
upon between the parties, a signed Certificate of Current Cost or
Pricing Data.
PART 253--FORMS
25. Section 253.204-70 is amended by revising paragraph (c)(4)(xi)
(A), (B) and (C) to read as follows:
253.204-70 DD Form 350, Individual Contracting Action Report.
* * * * *
(c) * * *
(4) * * *
(xi) Block C11, Cost or Pricing Data. * * *
(A) Code Y--Yes--Obtained. Enter code Y when cost or pricing data
were obtained for the contracting action (see FAR 15.804-2).
(B) Code N--No--Not Obtained. Enter code N when cost or pricing
data were not obtained because data were not required (see FAR 15.804-
2) or an exception was granted (see FAR 15.804-1).
(C) Code W--Not Obtained--Waived. Enter Code W when cost or pricing
data were not obtained because the requirement was waived (see FAR
15.804-1(a)(3) and 215.804-1(b)(5)).
* * * * *
Appendix C--Contractor Purchasing System Reviews
26. In Appendix C to Chapter 2, Section C-208.3 is amended in the
second sentence of paragraph (a) by revising the reference ``FAR
15.804-3(b)'' to read ``FAR 15.804-1(b)''.
[FR Doc. 95-26159 Filed 10-20-95; 8:45 am]
BILLING CODE 5000-04-M