[Federal Register Volume 64, Number 43 (Friday, March 5, 1999)]
[Rules and Regulations]
[Page 10573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5484]



[[Page 10573]]

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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 1815


Waiver of Submission of Cost or Pricing Data for Acquisitions 
With the Canadian Commercial Corporation and for Small Business 
Innovation Research Phase II Contracts

AGENCY: Office of Procurement, Contract Management Division, National 
Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: This rule amends the NASA Federal Acquisition Regulation 
Supplement (NFS) to provide a class waiver from the FAR 15.403-4 
requirement for the submission of cost or pricing data for Small 
Business Innovation Research (SBIR) program Phase II contracts. A 
waiver is permitted by FAR 15.403-1(c)(4). The rule also deletes the 
end date for the existing waiver of the submission of cost or pricing 
data for acquisitions with the Canadian Commercial Corporation (CCC). 
In addition, this rule clarifies that assurances of price fairness and 
reasonableness by the CCC should be relied on, but that contracting 
officers are to ensure that the appropriate level of information other 
than cost or pricing data is submitted by subcontractors to perform any 
required proposal analysis, including a technical analysis and a cost 
realism analysis.

EFFECTIVE DATE: March 5, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. Joseph Le Cren, NASA Headquarters, 
Code HK, Washington, DC 20546, telephone: (202) 358-0444, email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    FAR 15.403-4 requires that cost or pricing data be submitted for 
contract awards and modifications in excess of $500,000 unless one of 
the exceptions at FAR 15.403-1(b) apply. One of the exceptions listed 
there are waivers granted under FAR 15.403-1(c)(4). Waivers may be 
granted under FAR 15.403-1(c)(4) by the head of the contracting 
activity if the price can be determined to be fair and reasonable 
without the submission of cost or pricing data.
    NASA SBIR Phase II contract awards, which are generally limited to 
$600,000, do not meet the FAR 15.403-1(b) adequate price competition, 
prices set by law or regulation, or commercial item exceptions. 
However, a class waiver is considered to be in the Government's 
interest to promote maximum small business participation in the SBIR 
program and increase the number of small businesses participating in 
Federal R&D contracts. The Government's payment of fair and reasonable 
prices under SBIR Phase II contracts is ensured without the submission 
of cost or pricing data by (i) contracting officers having access to 
adequate information in the offerors' proposals; (ii) Phase II 
proposals being subjected to multiple technical reviews; and (iii) 
contracting officers having the ability under FAR 15.403-5(a)(3) to 
request information other than cost or pricing data if additional 
information is needed.
    A class waiver for SBIR Phase II contracts would result in 
consistent practices among NASA centers, thereby eliminating the 
possible confusion encountered by contractors that deal with more than 
one center for Phase II contracts. In addition, the value of the cost 
or pricing data for SBIR Phase II contracts generally has been minimal 
and has been found to result in delays in awards as the small 
businesses often cannot provide the data quickly.
    The elimination of the end date for the waiver of submission of 
cost or pricing data from the CCC makes NASA's waiver consistent with 
the one between the Department of Defense and the CCC. The current rule 
states that the CCC will provide assurance of the fairness and 
reasonableness of the proposed prices. This has been interpreted by 
some to mean that no additional analysis is necessary. The revised rule 
clarifies that, while this assurance is to be relied on, it may be 
necessary to obtain information other than cost or pricing data from 
subcontractors to the CCC in order to perform any required proposal 
analysis, including a technical analysis and a cost realism analysis.

Impact

Regulatory Flexibility Act

    This final rule does not constitute a significant revision within 
the meaning of FAR 1.501 and Pub. L. 98-577, and publication for public 
comments is not required. However, comments from small entities 
concerning the affected NFS 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.

Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the NFS do not impose recordkeeping or 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 Part 1815

    Government procurement.
Tom Luedtke,
Acting Associate Administrator for Procurement.

    Accordingly, 48 CFR Part 1815 is amended as follows:

PART 1815--CONTRACTING BY NEGOTIATION

    1. The authority citation for 48 CFR Part 1815 continues to read as 
follows:

    Authority: 42 U.S.C. 2473(c)(1).

    2. Section 1815.403-170 is revised to read as follows:


1815.403-170  Waivers of cost or pricing data.

    (a) NASA has waived the requirement for the submission of cost or 
pricing data when contracting with the Canadian Commercial Corporation 
(CCC). This waiver applies to the CCC and its subcontractors. The CCC 
will provide assurance of the fairness and reasonableness of the 
proposed price. This assurance should be relied on; however, 
contracting officers shall ensure that the appropriate level of 
information other than cost or pricing data is submitted by 
subcontractors to support any required proposal analysis, including a 
technical analysis and a cost realism analysis. The CCC also will 
provide for follow-up audit activity to ensure that any excess profits 
are found and refunded to NASA.
    (b) NASA has waived the requirement for the submission of cost or 
pricing data when contracting for Small Business Innovation Research 
(SBIR) program Phase II contracts. However, contracting officers shall 
ensure that the appropriate level of information other than cost or 
pricing data is submitted to determine price reasonableness and cost 
realism.

[FR Doc. 99-5484 Filed 3-4-99; 8:45 am]
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