[Federal Register Volume 85, Number 109 (Friday, June 5, 2020)]
[Rules and Regulations]
[Pages 34530-34532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11748]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 210, 212, 215, and 234

[Docket DARS-2019-0050]
RIN 0750-AK65


Defense Federal Acquisition Regulation Supplement: Market 
Research and Consideration of Value for the Determination of Price 
(DFARS Case 2019-D027)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement several sections 
of the National Defense Authorization Act for Fiscal Year 2017 to 
address how contracting officers may require the offeror to submit 
relevant information to support market research for price analysis, and 
allow an offeror to submit information relating to the value of a 
commercial item to aid in the determination of the reasonableness of 
the price of such item.

DATES: Effective June 5, 2020.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, telephone 571-372-
6106.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD published a proposed rule in the Federal Register at 84 FR 
50812 on September 26, 2019, to implement sections 871 and 872 of the 
National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-
328). Section 871 modifies 10 U.S.C. 2377, Preference for acquisition 
of commercial items, to state that, to the extent necessary to support 
market research for determination of the reasonableness of the price of 
commercial items, the contracting officer shall use the information 
submitted under 10 U.S.C. 2379(d) in the case of major weapon systems 
acquired as commercial items; and in the case of other items, the 
contracting officer may require the offeror to submit relevant 
information. Section 872 modifies 10 U.S.C. 2379, Requirement for 
determination by Secretary of Defense and notification to Congress 
before procurement of major weapon systems as commercial items, to 
allow an offeror to submit information or analysis relating to the 
value of a commercial item. One respondent submitted public comments in 
response to the proposed rule.

II. Discussion and Analysis

    DoD reviewed the public comments in the development of the final 
rule. A discussion of the comments and the changes made to the rule as 
a result of those comments are provided as follows:

A. Summary of Significant Changes

    The final rule removes the discussion of value analysis at DFARS 
234.7002(d)(5) and the associated definition of ``value analysis'' at 
DFARS 234.7001 from the proposed rule.

B. Analysis of Public Comments

    Comment: The respondent supports the proposed rule, with a few 
exceptions. The respondent stated that in the proposed definition of 
``value analysis'' at DFARS 234.7001, ``cost''

[[Page 34531]]

should be replaced with ``price.'' According to the respondent, this is 
consistent with the Contract Pricing Reference Guide, which states, ``A 
value analysis estimate results from a specialized analysis of the 
function of a product and its related price.''
    In addition, the respondent recommended that the word 
``legitimate'' should be removed from the proposed DFARS 
234.7002(d)(5), because ``legitimate'' is a subjective term that cannot 
be measured. According to the respondent, the policy should leave the 
determination of value to the discretion of the contracting officer.
    Response: The final rule deletes the discussion of the use of value 
analysis and the associated definition. This discussion and definition 
are not necessary for implementation of the statute, which provides 
that an offeror may submit information or analysis relating to the 
value of a commercial item to aid in the determination of the 
reasonableness of the price of such item and that the contracting 
officer may consider such information or analysis in addition to other 
information submitted. The final rule still provides a reference to 
guidance at DFARS Procedures Guidance and Information 234.7003(d)(5), 
which in turn references to the Department of Defense Guidebook for 
Acquiring Commercial Items, Part B, Commercial Item Pricing--the more 
current guidebook.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule does not propose to add or modify any provisions, 
clauses, or the prescriptions for any provisions or clauses.

IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

V. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not 
significant regulatory action under E.O. 12866.

VI. Regulatory Flexibility Act

    DoD does not expect this final rule 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. However, a final 
regulatory flexibility analysis has been prepared and is summarized as 
follows:
    This final rule is issued in order to implement sections 871 and 
872 of the National Defense Authorization Act (NDAA) for Fiscal Year 
(FY) 2017 (Pub. L. 114-328). The objective of this rule is to address 
the use of market research and consideration of value to support the 
determination of price reasonableness when acquiring commercial items. 
The legal basis of the rule is sections 871 and 872 of the NDAA for FY 
2017.
    There were no public comments in response to the initial regulatory 
flexibility analysis.
    Based on data from the Federal Procurement Data System, DoD awarded 
38,000 new commercial contracts to 16,429 small entities in FY 2018. 
There are an additional unknown number of small entities that submitted 
offers and did not receive awards (estimated at several thousand).
    This rule does not impose any new reporting, recordkeeping, or 
other compliance requirements on small entities. DFARS 252.215-7010, 
Requirements for Certified Cost or Pricing Data, and Data Other Than 
Certified Cost or Pricing Data, already requires offerors to provide 
information necessary to determine that the price is fair and 
reasonable. Offerors are allowed, but not required, to submit 
information or analysis relating to the value of a commercial item for 
consideration by the contracting officer in determining price 
reasonableness.
    DoD did not identify any significant alternatives that would 
minimize or reduce the significant economic impact, because there is no 
significant impact on small entities.

VII. Paperwork Reduction Act

    The rule does not contain any new information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35) or 
impact any existing information collection requirements.

List of Subjects in 48 CFR Parts 210, 212, 215, and 234

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 210, 212, 215, and 234 are amended as 
follows:

0
1. The authority citation for 48 CFR parts 210, 212, 215, and 234 
continues to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 210--MARKET RESEARCH

0
2. Amend section 210.001 by--
0
a. In paragraph (a) introductory text removing ``, agencies shall'';
0
b. Redesignating paragraphs (a)(i) and (ii) as paragraphs (a)(i)(A) and 
(B), respectively;
0
c. In the newly redesignated paragraph (a)(i)(A) removing ``Conduct'' 
and adding ``Agencies shall conduct'' in its place;
0
d. In the newly redesignated paragraph (a)(i)(B) removing the period 
and adding ``; and'' in its place; and
0
e. Adding a new paragraph (a)(ii).
    The addition reads as follows:


210.001  Policy.

* * * * *
    (a) * * *
    (ii) Contracting officers shall use market research, where 
appropriate, to inform price reasonableness determinations (see 212.209 
and 234.7002).
* * * * *

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
3. Amend section 212.209 by revising paragraph (a) to read as follows:


212.209  Determination of price reasonableness.

    (a) In accordance with 10 U.S.C. 2377(d), agencies shall conduct or 
obtain market research to support the determination of the 
reasonableness of price for commercial items contained in any bid or 
offer submitted in response to an agency solicitation. To the extent 
necessary to support such market research, the contracting officer--
    (1) In the case of major weapon systems items acquired as 
commercial items in accordance with subpart 234.70, shall use 
information submitted under 234.7002(d); and
    (2) In the case of other items, may require the offeror to submit 
other relevant information.
* * * * *

[[Page 34532]]

PART 215--CONTRACTING BY NEGOTIATION

0
4. Amend section 215.403-3 by adding paragraph (c) to read as follows:


215.403-3  Requiring data other than certified cost or pricing data.

* * * * *
    (c) Commercial items. For determinations of price reasonableness of 
major weapon systems acquired as commercial items, see 234.7002(d).

PART 234--MAJOR SYSTEM ACQUISITION

0
5. Revise section 234.7001 to read as follows:


234.7001  Definition.

    As used in this subpart--
    Major weapon system means a weapon system acquired pursuant to a 
major defense acquisition program.

0
6. Amend section 234.7002 by revising paragraph (d) introductory text 
and adding paragraph (d)(5) to read as follows:


234.7002  Policy.

* * * * *
    (d) * * * See 212.209(a) for requirements of 10 U.S.C. 2377 with 
regard to market research.
* * * * *
    (5) An offeror may submit information or analysis relating to the 
value of a commercial item to aid in the determination of the 
reasonableness of the price of such item. A contracting officer may 
consider such information or analysis in addition to the information 
submitted pursuant to paragraphs (d)(1) and (2) of this section. For 
additional guidance see PGI 234.7002(d)(5).

[FR Doc. 2020-11748 Filed 6-4-20; 8:45 am]
 BILLING CODE 5001-06-P