[Federal Register Volume 64, Number 42 (Thursday, March 4, 1999)]
[Rules and Regulations]
[Pages 10544-10545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5207]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 15

[FAC 97-11; FAR Case 98-302; Item V]
RIN 9000-AI31


Federal Acquisition Regulation; Waiver of Cost or Pricing Data 
for Subcontracts

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed on a final rule amending 
the Federal Acquisition Regulation (FAR) to implement Section 805 of 
the Strom Thurmond National Defense Authorization Act for Fiscal Year 
1999 (Pub. L. 105-261).

EFFECTIVE DATE: May 3, 1999.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS

[[Page 10545]]

Building, Washington, DC 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202) 
501-1758. Please cite FAC 97-11, FAR case 98-302.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 805 of Public Law 105-261 clarifies that waivers of 
requirements for submittal of prime contractor cost or pricing data do 
not automatically waive requirements for subcontractors to submit cost 
or pricing data. Although this is consistent with the current 
requirements of FAR 15.403-1(c)(4), the final rule clarifies the 
requirement to provide rationale supporting any waiver of subcontracts.
    Pursuant to the House of Representatives Conference Report (H.R. 
Conf. Rep. No. 736, 105th Cong., 2nd Sess. 1998) which addresses 
Section 805, the executive branch is working to clarify situations in 
which an exceptional circumstance waiver of requirements for submission 
of certified cost or pricing data may be granted. This will be the 
subject of an independent FAR case.
    This regulatory action was not subject to Office of Management and 
Budget review under Executive Order 12866, dated September 30, 1993, 
and is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The final rule does not constitute a significant FAR revision 
within the meaning of FAR 1.501 and Public Law 98-577, and publication 
for public comments is not required. However, comments from small 
entities concerning the affected FAR subpart will be considered in 
accordance with 5 U.S.C. 610. Such comments must be submitted 
separately and should cite 5 U.S.C. 601, et seq. (FAC 97-11, FAR case 
98-302), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

List of Subjects in 48 CFR Part 15

    Government procurement.

    Dated: February 25, 1999.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, 48 CFR Part 15 is amended as set forth below:

PART 15--CONTRACTING BY NEGOTIATION

    1. The authority citation for 48 CFR Part 15 continues to read as 
follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

    2. Section 15.403-1 is amended by revising paragraph (c)(4) to read 
as follows:


15.403-1  Prohibition on obtaining cost or pricing data (10 U.S.C. 
2306a and 41 U.S.C. 254b).

* * * * *
    (c) * * *
    (4) Waivers. The head of the contracting activity (HCA) may, 
without power of delegation, waive the requirement for submission of 
cost or pricing data in exceptional cases. The authorization for the 
waiver and the supporting rationale shall be in writing. The HCA may 
consider waiving the requirement if the price can be determined to be 
fair and reasonable without submission of cost or pricing data. For 
example, if cost or pricing data were furnished on previous production 
buys and the contracting officer determines such data are sufficient, 
when combined with updated information, a waiver may be granted. If the 
HCA has waived the requirement for submission of cost or pricing data, 
the contractor or higher-tier subcontractor to whom the waiver relates 
shall be considered as having been required to provide cost or pricing 
data. Consequently, award of any lower-tier subcontract expected to 
exceed the cost or pricing data threshold requires the submission of 
cost or pricing data unless--
    (i) An exception otherwise applies to the subcontract; or
    (ii) The waiver specifically includes the subcontract and the 
rationale supporting the waiver for that subcontract.

[FR Doc. 99-5207 Filed 3-3-99; 8:45 am]
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