[Federal Register Volume 86, Number 165 (Monday, August 30, 2021)]
[Proposed Rules]
[Pages 48368-48370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18339]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 215 and 242

[Docket DARS-2021-0015]
RIN 0750-AK95


Defense Federal Acquisition Regulation Supplement: Requiring Data 
Other Than Certified Cost or Pricing Data (DFARS Case 2020-D008)

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

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement a section of the National 
Defense Authorization Act for Fiscal Year 2020 that provides additional 
requirements relating to the submission of data other than certified 
cost or pricing data.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before October 29, 2021, to be considered 
in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2020-D008, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 
Search for ``DFARS Case 2020-D008.'' Select ``Comment'' and follow the 
instructions to submit a comment. Please include your name, company 
name (if any), and ``DFARS Case 2020-D008'' on any attached document.
    [cir] Email: [email protected]. Include DFARS Case 2020-D008 in 
the subject line of the message.
    Comments received generally will be posted without change to 
https://www.regulations.gov, including any personal information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission 
to verify posting.

FOR FURTHER INFORMATION CONTACT: Mr. David E. Johnson, telephone 571-
372-6115.

SUPPLEMENTARY INFORMATION:

[[Page 48369]]

I. Background

    DoD is proposing to amend the DFARS to implement section 803 of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020 
(Pub. L. 116-92), which amends 10 U.S.C. 2306a(d) as follows: To 
prohibit contracting officers from determining that the price of a 
contract or subcontract is fair and reasonable based solely on 
historical prices paid by the Government; and, when an offeror fails to 
make a good faith effort to comply with a reasonable request to submit 
data, to state that an offeror is ineligible for award if the 
contracting officer is unable to determine, by any other means, that 
the proposed prices are fair and reasonable, unless the head of the 
contracting activity (HCA) determines that it is in the best interest 
of the Government to make the award to that offeror.

II. Discussion and Analysis

    This rule proposes changes to DFARS 215.403-3(a). The amendment to 
10 U.S.C. 2306a(d)(1) is implemented in DFARS 215.403-3(a)(1), by 
prohibiting contracting officers from basing the determination that the 
price of a contract is fair and reasonable solely on historical prices 
paid by the Government.
    The new paragraph (d)(2) at 10 U.S.C. 2306a states that offerors 
who fail to comply with a reasonable request to submit data needed to 
determine price reasonableness are ineligible for award, unless the HCA 
determines that it is in the best interest of the Government to make 
the award. This requirement is already implemented in the Federal 
Acquisition Regulation (FAR) at 15.403-3(a)(4). However, the criteria 
in 10 U.S.C. 2306a(d)(2) for the determination made by the HCA are 
included in DFARS 215.403-3(a)(4), in lieu of the criteria in the FAR, 
because the criteria for DoD are not the same as the criteria for the 
civilian agencies.
    In accordance with 10 U.S.C. 2306a(d)(2)(B)(ii), this proposed rule 
amends DFARS 242.1502(g), to add the requirement that, unless exempted 
by the HCA, a notation is required in the Contractor Performance 
Assessment Reporting System that, despite receiving an award, the 
contractor has denied multiple requests for submission of data other 
than certified cost or pricing data over the preceding three-year 
period.
    This proposed amendment to the DFARS also makes conforming changes 
to 215.404-1.

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

    This rule does not propose to create any new solicitation 
provisions or contract clauses. It does not impact any existing 
solicitation provisions or contract clauses or their applicability to 
contracts valued at or below the simplified acquisition threshold or 
for commercial items, including COTS items.

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.

V. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD will submit a copy of 
the interim or final rule with the form, Submission of Federal Rules 
under the Congressional Review Act, to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule under the Congressional Review Act cannot take effect until 
60 days after it is published in the Federal Register. This rule is not 
anticipated to be a major rule under 5 U.S.C. 804.

VI. Regulatory Flexibility Act

    DoD does not expect this proposed 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., 
because it does not add any new compliance requirements on small 
entities. However, an initial regulatory flexibility analysis has been 
performed and is summarized as follows:
    This proposed rule is necessary in order to implement section 803 
of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 
2020, which amends 10 U.S.C. 2306a(d).
    The objective of this rule is to implement section 803 of the NDAA 
for FY 2020, which is the legal basis for this rule. Section 803 
provides additional requirements for contracting officers and the head 
of the contracting activity relating to obtaining data other than 
certified cost or pricing data.
    This rule does not directly impose requirements on small entities. 
The requirement making certain offerors ineligible for award is already 
in the Federal Acquisition Regulation (FAR). This rule impacts: (1) The 
contracting officer's need for data other than historical prices paid 
by the Government, unless there is adequate price competition; and (2) 
the criteria for use by the head of the contracting activity for a 
determination to make an award. In some cases, the contracting 
officer's need for data other than historical prices paid by the 
Government may result in a request for additional data from an offeror. 
Based on data from the Federal Procurement Data System for FY 2018 
through FY 2020, DoD estimates that 1,672 small entities may receive a 
request for additional data.
    There are no new reporting, recordkeeping, or other compliance 
requirements on small entities.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no significant alternatives, which would accomplish the 
stated objectives of the rule and minimize the impact on small 
entities. However, the rule has no significant economic impact on small 
entities.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2020-D008), in 
correspondence.

VII. Paperwork Reduction Act

    The rule does not contain any 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).

[[Page 48370]]

List of Subjects in 48 CFR Parts 215 and 242

    Government procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 215 and 242 are proposed to be amended as 
follows:

0
1. The authority citation for parts 215 and 242 continues to read as 
follows:

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

PART 215--CONTRACTING BY NEGOTIATION

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


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

* * * * *
    (a)(1) Contracting officers shall not determine the price of a 
contract to be fair and reasonable based solely on historical prices 
paid by the Government (see PGI 215.403-3(4)) (10 U.S.C. 2306a(d)).
    (4) In accordance with 10 U.S.C. 2306a(d) and in lieu of the 
factors for consideration listed in FAR 15.403-3(a)(4), a determination 
by the head of the contracting activity that it is in the best interest 
of the Government to make the award to an offeror that does not comply 
with a requirement to submit data other than certified cost or pricing 
data shall be based on consideration of pertinent factors, including 
the following:
    (A) The effort to obtain the data.
    (B) Availability of other sources of supply of the item or service.
    (C) The urgency or criticality of the Government's need for the 
item or service.
    (D) Reasonableness of the price of the contract, subcontract, or 
modification of the contract or subcontract based on information 
available to the contracting officer.
    (E) Rationale or justification made by the offeror for not 
providing the requested data.
    (F) Risk to the Government if award is not made.
* * * * *
0
3. Amend section 215.404-1 by revising paragraphs (b)(ii) and (v) 
introductory text to read as follows:


Sec.  215.404-1  Proposal analysis techniques.

* * * * *
    (b) * * *
    (ii) If the contracting officer determines that the information 
obtained through market research is insufficient to determine the 
reasonableness of price, the contracting officer shall consider 
information submitted by the offeror of recent purchase prices paid by 
the Government and commercial customers for the same or similar 
commercial items under comparable terms and conditions in establishing 
price reasonableness on a subsequent purchase if the contracting 
officer is satisfied that the prices previously paid remain a valid 
reference for comparison. Price reasonableness shall not be based 
solely on historical prices paid by the Government (see 215.403-
3(a)(1)). The contracting officer shall consider the totality of other 
relevant factors such as the time elapsed since the prior purchase and 
any differences in the quantities purchased (10 U.S.C. 2306a(b)(5)).
* * * * *
    (v) When evaluating pricing data, the contracting officer shall 
consider materially differing terms and conditions, quantities, and 
market and economic factors (see PGI 215.404-1(b)(v)). For similar 
items, the contracting officer shall also consider material differences 
between the similar item and the item being procured (see FAR 15.404-
1(b)(2)(ii)(B)). Material differences are those that could reasonably 
be expected to influence the contracting officer's determination of 
price reasonableness. The contracting officer shall consider the 
following factors when evaluating the relevance of the information 
available:
* * * * *

PART 242--CONTRACT ADMINISTRATION AND AUDIT SERVICES

0
4. Revise section 242.1502 to read as follows:


Sec.  242.1502  Policy.

    (g) Past performance evaluations in the Contractor Performance 
Assessment Reporting System--
    (i) Shall include an assessment of the contractor's performance 
against, and efforts to achieve, the goals identified in its 
comprehensive small business subcontracting plan when the contract 
contains the clause at 252.219-7004, Small Business Subcontracting Plan 
(Test Program); and
    (ii) Shall, unless exempted by the head of the contracting 
activity, include a notation on contractors that have denied multiple 
requests for submission of data other than certified cost or pricing 
data over the preceding 3-year period, but nevertheless received an 
award (10 U.S.C. 2306a(d)(2)(B)(ii)).

[FR Doc. 2021-18339 Filed 8-27-21; 8:45 am]
BILLING CODE 5001-06-P