[Federal Register Volume 62, Number 2 (Friday, January 3, 1997)]
[Proposed Rules]
[Pages 374-375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-43]


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DEPARTMENT OF DEFENSE

48 CFR Parts 225, 231, and 242

[DFARS Case 95-D040]


Defense Federal Acquisition Regulation Supplement; Independent 
Research and Development/Bid and Proposal Costs for FY96 and Beyond

AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comment.

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SUMMARY: The Department of Defense is proposing to amend the Defense 
Federal Acquisition Regulation Supplement (DFARS) to reflect proposed 
changes to the Federal Acquisition Regulation (FAR) to treat 
Independent Research and Development and Bid and Proposal cost for 
fiscal year 1996 and beyond as fully allowable, subject only to the FAR 
normal standards of reasonableness and allocability.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before March 4, 1997, to be considered in 
the formulation of the final rule.

ADDRESSES: Interested parties should submit written comments to, 
Defense Acquisition Regulations Council, Attn: Ms. Sandra G. Haberlin, 
PDUSD (A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 
20301-3062, telefax number (703) 602-0350. Please cite DFARS Case 95-
D040 in all correspondence related to this issue.
FOR FURTHER INFORMATION CONTACT:
Ms. Sandra Haberlin, at (703) 602-0131. Please cite DFARS Case 95-D040.

SUPPLEMENTARY INFORMATION: 

A. Background

    The current Independent Research and Development (IR&D)/Bid and 
Proposal (B&P) cost principle at DFARS 231.205-18 covers the limited 
allowability of IR&D/B&P costs for major contractors through a 3-year 
transition period (fiscal years 1993-1995), based on the requirements 
of section 802 of the National Defense Authorization Act for fiscal 
years 1992 and 1993 (Pub. L. 102-190). Section 802 does not address the 
allowability of IR&D/B&P costs after fiscal year 1995. This proposed 
DFARS rule supplements a proposed FAR rule (FAR Case 95-032), which 
treats IR&D/B&P costs for fiscal year 1996 and beyond as 100 percent 
allowable for all contractors, subject only to the FAR normal standards 
of reasonableness and allocability. The proposed FAR rule was published 
in the Federal Register on November 14, 1996 (61 FR 58452). In 
addition, this DFARS rule continues to require, in accordance with 10 
U.S.C. 2372, that IR&D/B&P activities of major contractors have a 
potential interest to DoD for the costs to be allowable.
    The proposed DFARS rule revises 231.205-18 and 242.771 to delete 
(1) the requirement for advance agreement negotiations or formal IR&D 
technical reviews and evaluations after contractors' fiscal year 1992; 
and (2) the limited allowability restriction of IR&D/B&P costs for 
fiscal years 1993-1995. Also, the rule revises 225.7303-2(c) to 
indicate that the ``potential interest to DoD'' requirement of DFARS 
231.205-18(c)(3) does not apply to contracts for foreign military 
sales.

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 most 
contracts awarded to small entities use simplified acquisition 
procedures or are awarded on a competitive fixed-price basis and do not 
require application of the cost principle contained in this rule. An 
initial regulatory flexibility analysis, therefore, has not been 
performed. Comments are invited from small businesses and other 
interested parties. Comments from small entities concerning the 
affected DFARS subparts also will be considered in accordance with 
Section 610 of the Act. Such comments must be submitted separately and 
cite DFARS Case 95-D040 in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
rule does not impose any new recordkeeping, information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public 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 225, 231, and 242

    Government procurement
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
    Therefore, it is proposed that 48 CFR Parts 225, 231, and 242 be 
amended as follows:
    1. The authority citation for 48 CFR Parts 225, 231, and 242 
continues to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 225--FOREIGN ACQUISITION
    2. Section 225.7303-2 is amended by revising paragraph (c) to read 
as follows:


225.7303-2  Cost of doing business with a foreign government or an 
international organization.

* * * * *
    (c) The cost limitation for major contractors on independent 
research and development and bid and proposal (IR&D/B&P) costs for 
projects which are of potential interest to DoD, in 231.205-18(c)(iii), 
does not apply to foreign military sale contracts, except as provided 
in 225.7303-5. The

[[Page 375]]

allowability of IR&D/B&P costs on contracts for foreign military sales 
not wholly paid for from funds made available on a nonrepayable basis 
shall be limited to the contract's allocable share of the contractor's 
total IR&D/B&P expenditures. In pricing contracts for such foreign 
military sales--
    (1) Use the best estimate of reasonable costs in forward pricing.
    (2) Use actual expenditures, to the extent that they are 
reasonable, in determining final cost.
* * * * *

PART 231--CONTRACT COST PRINCIPLES AND PROCEDURES

    3. Section 231.205-18 is revised to read as follows:


231.205-18  Independent research and development and bid and proposal 
costs.

    (a) Definition. Major contractor, as used in this subsection, means 
a contractor with more than $11,000,000 in IR&D/B&P costs in the 
preceding fiscal year allocated to DoD prime contracts and subcontracts 
whose values exceed the simplified acquisition threshold, except for 
fixed-price contracts and subcontracts without cost incentives.
    (c) Allowability. (i) Departments/agencies shall not supplement 
this regulation in any way that limits IR&D/B&P cost allowability.
    (ii) See 225.7303-2(c) for allowability provisions affecting 
foreign military sale contracts.
    (iii) For major contractors (see paragraph (a) of this subsection), 
the following limitation applies--
    (A) The amount of IR&D/B&P costs allowable under DoD contracts 
shall not exceed the lesser of--
    (1) Such contracts' allocable share of total incurred IR&D/B&P 
costs; or
    (2) The amount of incurred IR&D/B&P costs for projects having 
potential interest to DoD.
    (B) Allowable IR&D/B&P costs are limited to those for projects 
which are of potential interest to the DoD, including activities 
intended to accomplish any of the following--
    (1) Enable superior performance of future U.S. weapon systems and 
components;
    (2) Reduce acquisition costs and life-cycle costs of military 
systems;
    (3) Strengthen the defense industrial and technology base of the 
United States;
    (4) Enhance the industrial competitiveness of the United States;
    (5) Promote the development of technologies identified as critical 
under 10 U.S.C. 2522;
    (6) Increase the development and promotion of efficient and 
effective applications of dual-use technologies;
    (7) Provide efficient and effective technologies for achieving such 
environmental benefits as: improved environmental data gathering, 
environmental cleanup and restoration, pollution reduction in 
manufacturing, environmental conservation, and environmentally safe 
management of facilities.
    (iv) For major contractors, the contracting officer will--
    (i) Determine whether IR&D/B&P projects are of potential interest 
to DoD; and
    (ii) Provide the results of the determination to the contractor.
    (v) The cognizant contract administration office shall furnish 
contractors with guidance on financial information needed to support 
IR&D/B&P costs and on technical information needed from major 
contractors to support the potential interest to DoD determination (see 
also 242.771-3(a)).

PART 242--CONTRACT ADMINISTRATION

    4. Sections 242.771 through 242.771-3 are revised to read as 
follows:


242.771  Independent research and development/bid and proposal.


242.771-1  Scope of subpart.

    This section implements 10 U.S.C. 2372, Independent research and 
development and bid and proposal costs: payments to contractors.


242.771-2  Policy.

    Defense contractors are encouraged to engage in IR&D/B&P activities 
of potential interest to DoD, including activities cited in 231.205-
18(c)(iii)(B).


242.771-3  Responsibilities.

    (a) The cognizant administrative contracting officer (ACO) or 
corporate ACO shall--
    (1) Determine cost allowability of IR&D/B&P costs as set forth in 
231.205-18 and FAR 31.205-18.
    (2) Determine whether IR&D/B&P projects performed by major 
contractors (see 231.205-18(a)) are of potential interest to DoD. 
Notify the contractor promptly of any IR&D/B&P activities which are not 
of potential interest to DoD.
    (b) The Defense Contract Management Command of the Defense 
Logistics Agency or the Military Department responsible for performing 
contract administration functions is responsible for--
    (1) Providing contractors with guidance on financial information 
needed to support IR&D/B&P costs.
    (2) Providing Defense Contract Audit Agency (DCAA) with IR&D/B&P 
statistical information, as necessary, to assist DCAA in its annual 
reporting requirement (see paragraph (c) of this subsection).
    (c) The Defense Contract Audit Agency is responsible for submitting 
an annual report to the Director of Defense Procurement (USD (A&T) DP) 
setting forth required statistical information relating to the DoD-wide 
IR&D/B&P program.
    (d) The Director, Defense Research and Engineering (USD (A&T) 
DDR&E), is responsible for establishing a regular method for 
communication--
    (1) From DoD to contractors, of timely and comprehensive 
information regarding planned or expected DoD future needs; and
    (2) From contractors to DoD, of brief technical descriptions of 
contractor IR&D projects.
[FR Doc. 97-43 Filed 1-2-97; 8:45 am]
BILLING CODE 5000-04-M