Federal Acquisition Regulation; FAR Case 2008-012, Clarification of Submission of Cost or Pricing Data on Non-Commercial Modifications of Commercial Items, 13414-13415 [2010-5986]
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13414
Federal Register / Vol. 75, No. 53 / Friday, March 19, 2010 / Rules and Regulations
and Budget under 44 U.S.C. chapter 35,
et seq.
List of Subjects in 48 CFR Part 13
Government procurement.
Dated: March 15, 2010.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA
amend 48 CFR part 13 as set forth
below:
■
PART 13—SIMPLIFIED ACQUISITION
PROCEDURES
1. The authority citation for 48 CFR
part 13 continues to read as follows:
■
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
13.500
[Amended]
2. Amend section 13.500 by removing
from paragraph (d) ‘‘January 1, 2010’’
and adding ‘‘January 1, 2012’’ in its
place.
■
[FR Doc. 2010–5985 Filed 3–18–10; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Part 15
[FAC 2005–39; FAR Case 2008–012; Item
II; Docket 2008–0001, Sequence 23]
RIN 9000–AL12
Federal Acquisition Regulation; FAR
Case 2008–012, Clarification of
Submission of Cost or Pricing Data on
Non-Commercial Modifications of
Commercial Items
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCIES:
The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have adopted as final, with
minor changes, an interim rule which
amended the Federal Acquisition
Regulation (FAR) to implement section
814 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2008. Section 814 required
the harmonization of the thresholds for
cost or pricing data. Specifically, section
814 required alignment of the threshold
for cost or pricing data on noncommercial modifications of
erowe on DSK5CLS3C1PROD with RULES_2
SUMMARY:
VerDate Nov<24>2008
14:19 Mar 18, 2010
Jkt 220001
commercial items with the Truth In
Negotiation Act (TINA) threshold for
cost or pricing data.
DATES: Effective Date: March 19, 2010.
FOR FURTHER INFORMATION CONTACT: Mr.
Edward Chambers, Procurement
Analyst, at (202) 501–3221 for
clarification of content. For information
pertaining to status or publication
schedules, contact the FAR Secretariat
at (202) 501–4755. Please cite FAC
2005–39, FAR case 2008–012.
SUPPLEMENTARY INFORMATION:
estimated total value of orders for the
specified period at the time of contract
award, as well as the individual value
of any subsequent discrete orders, to
which the TINA thresholds apply.
Consequently, the final rule language
reflects only minor editorial changes.
This is a significant regulatory action
and therefore, was subject to review
under Section 6(b) of Executive Order
12866, Regulatory Planning and Review,
dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
A. Background
DoD, GSA, and NASA published an
interim rule in the Federal Register at
74 FR 11826 on March 19, 2009, to
implement section 814 of the NDAA for
FY 2008. Section 814 implemented two
areas of clarification with regards to the
submission of cost or pricing data on
non-commercial modifications of
commercial items.
The comment period closed on May
18, 2009, with one comment received.
The respondent opined that the addition
of the new FAR text ‘‘at the time of
contract award’’ was unclear. The
respondent indicated that a contract’s
initial price subsequently changes based
upon modifications and inquired if the
total price ‘‘at time of contract award’’
included subsequent modifications that
changed the initial contract price. The
respondent also highlighted the
example of an indefinite deliveryindefinite quantity (IDIQ) contract
where orders are issued and inquired
whether ‘‘at the time of contract award’’
related to issuance of the IDIQ contract
or individual orders placed under this
IDIQ contract. The respondent also
offered examples of possible revised
language.
The Councils believe that, with minor
changes, the language in the interim
rule is appropriate. Section 814 of the
NDAA for FY 2008 required the
insertion of the language ‘‘at time of
contract award’’ after the language ‘‘total
price of contract’’, which is already
contained in FAR 15.403–1. This
language is being added to clarify at
what point during the life of the
contract that the cost or pricing
threshold should be applied under FAR
15.403–1. The Councils believe that the
language ‘‘at the time of contract award’’
clearly indicates that subsequent
modifications, other than those which
meet the triggering thresholds of TINA
themselves, that change a contract’s
price are not factored into determining
when the cost or pricing threshold
should be applied under FAR 15.403–1.
In the case of IDIQ contracts, it is
commonly understood that it is the
B. Regulatory Flexibility Act
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
The Department of Defense, the
General Services Administration, and
the National Aeronautics and Space
Administration certify that this rule will
not 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.,
since it is harmonizing FAR 15.403–1
with other parts of the FAR and should
actually reduce the administrative
burden on contractors by not requiring
them to track two separate dollar
thresholds for submitting cost or pricing
data. It is also increasing this dollar
threshold relative to the submittal of
cost or pricing data in this situation and
thus contractors will experience a
reduced administrative burden since
they no longer will be required to
submit cost or pricing data on this lower
threshold amount.
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. chapter 35,
et seq.
List of Subjects in 48 CFR Part 15
Government procurement.
Dated: March 15, 2010.
Al Matera,
Director, Acquisition Policy Division.
Accordingly, the interim rule
published in the Federal Register at 74
FR 11826 on March 19, 2009, is adopted
as a final rule with the following
changes:
■
PART 15—CONTRACTING BY
NEGOTIATION
1. The authority citation for 48 CFR
part 15 continues to read as follows:
■
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 15.403–1 by
revising paragraphs (c)(3)(iii)(B) and
(c)(3)(iii)(C) to read as follows:
■
E:\FR\FM\19MRR2.SGM
19MRR2
Federal Register / Vol. 75, No. 53 / Friday, March 19, 2010 / Rules and Regulations
15.403–1 Prohibition on obtaining cost or
pricing data (10 U.S.C. 2306a and 41 U.S.C.
254b).
*
*
*
*
*
(c) * * *
(3) * * *
(iii) * * *
(B) For acquisitions funded by DoD,
NASA, or the Coast Guard, such
modifications of a commercial item are
exempt from the requirement for
submission of cost or pricing data
provided the total price of all such
modifications under a particular
contract action does not exceed the
greater of the threshold for obtaining
cost or pricing data in 15.403–4 or 5
percent of the total price of the contract
at the time of contract award.
(C) For acquisitions funded by DoD,
NASA, or the Coast Guard, such
modifications of a commercial item are
not exempt from the requirement for
submission of cost or pricing data on the
basis of the exemption provided for at
FAR 15.403–1(c)(3) if the total price of
all such modifications under a
particular contract action exceeds the
greater of the threshold for obtaining
cost or pricing data in 15.403–4 or 5
percent of the total price of the contract
at the time of contract award.
*
*
*
*
*
[FR Doc. 2010–5986 Filed 3–18–10; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 15 and 53
[FAC 2005–39; FAR Case 2008–040; Item
III; Docket 2010–0081, Sequence 1]
RIN 9000–AL48
Federal Acquisition Regulation; FAR
Case 2008–040, Use of Standard Form
26 - Award/Contract
erowe on DSK5CLS3C1PROD with RULES_2
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on a final rule
amending the Federal Acquisition
Regulation (FAR) to revise FAR parts 15
and 53 instructions for use of the
Standard Form (SF) 26 to strengthen the
prohibition against using block 18 of the
VerDate Nov<24>2008
14:19 Mar 18, 2010
Jkt 220001
form when awarding a negotiated
procurement and emphasize that block
18 should only be checked when
awarding a sealed bid contract. In
addition, the final sentence of the
current FAR 53.214 is being amended
because the updated SF 26 was issued
in April 2008, making the sentence
unnecessary.
DATES: Effective Date: April 19, 2010.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Mr.
Michael O. Jackson, Procurement
Analyst, at (202) 208–4949. For
information pertaining to status or
publication schedules, contact the FAR
Secretariat at (202) 501–4755. Please
cite FAC 2005–39, FAR Case 2008–040.
SUPPLEMENTARY INFORMATION:
A. Background
This case was initiated to clarify an
inconsistency in the use of the SF 26 by
contracting officers. The SF 26 requires
the contracting officer to complete block
17 for negotiated or sealed bid
procurements or block 18 for sealed bid
procurements, as applicable. Although
block 18 of the form is intended for use
only with sealed bid procurements, it is
regularly (and improperly) being used
with negotiated procurements. This has
resulted in negotiated procurements
being awarded unilaterally without
proper documentation.
FAR 53.214(a) prescribes the SF 26 for
use in contracting for supplies and
services by sealed bidding (except for
construction and architect-engineer
services). The SF 26 is used to award
sealed bid contracts after obtaining bids
using a SF 33, Solicitation, Offer, and
Award. FAR 14.408–1(d)(1) specifies
that, if an offer made using a SF 33 leads
to further changes, the resulting contract
must be prepared as a bilateral
document using the SF 26.
This case is intended to address those
instances where contracting officers
have mistakenly checked block 18 to
award negotiated, not sealed bid,
contracts. This error can create the
potential for disputes in those situations
where the Government’s intent was not
to accept the terms of the offer in its
entirety, as the current wording of block
18 may imply.
The Councils believe that revisions to
instructions for use of the form, at FAR
subparts 15.5 and 53.2, along with
improved training and emphasis on the
proper use of the SF 26, will eliminate
the issue. Thus, FAR 15.509 is being
revised to add ‘‘Note however, if using
the SF 26 for a negotiated procurement,
block 18 is not to be used.’’ FAR
53.214(a) is revised by deleting the nolonger-necessary phrase ‘‘Pending
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
13415
issuance of a new edition of the form,
the reference in ‘block 1’ should be
amended to read ‘15 CFR 700’’’ and
adding ‘‘Block 18 may only be used for
sealed-bid procurements.’’ In addition, a
sentence is added at FAR 53.215–1(a) to
read ‘‘Block 18 may not be used for
negotiated procurements.’’ This change
does not prohibit the use of the SF 26
for awarding negotiated procurements,
it only prohibits the use of block 18 of
the SF 26 when awarding negotiated
procurements. The Councils have
opened a separate FAR case to address
the actual changes to the SF 26 form.
FAR Case 2009–029 is a proposed rule
on which the public will have the
opportunity to comment.
Decision to Issue a Final Rule
This case does not change the current
uses of the SF 26. It merely clarifies the
existing instructions for use of the form.
Therefore, because there is no change in
policy or procedure, the Councils
determined to issue a final rule without
public comment.
This is not a significant regulatory
action and, therefore, was not subject to
review under Section 6 of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act does
not apply to this rule. This final rule
does not constitute a significant FAR
revision within the meaning of FAR
1.501 and Pub. L. 98–577, and
publication for public comments is not
required.
The Councils will consider comments
from small entities concerning the
existing regulations in parts 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 (FAC 2005–39, FAR Case
2008–040) in all 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. chapter 35,
et seq.
List of Subjects in 48 CFR Parts 15 and
53
Government procurement.
E:\FR\FM\19MRR2.SGM
19MRR2
]]>Agencies
[Federal Register Volume 75, Number 53 (Friday, March 19, 2010)]
[Rules and Regulations]
[Pages 13414-13415]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-5986]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 15
[FAC 2005-39; FAR Case 2008-012; Item II; Docket 2008-0001, Sequence
23]
RIN 9000-AL12
Federal Acquisition Regulation; FAR Case 2008-012, Clarification
of Submission of Cost or Pricing Data on Non-Commercial Modifications
of Commercial Items
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have adopted as final, with
minor changes, an interim rule which amended the Federal Acquisition
Regulation (FAR) to implement section 814 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2008. Section 814
required the harmonization of the thresholds for cost or pricing data.
Specifically, section 814 required alignment of the threshold for cost
or pricing data on non-commercial modifications of commercial items
with the Truth In Negotiation Act (TINA) threshold for cost or pricing
data.
DATES: Effective Date: March 19, 2010.
FOR FURTHER INFORMATION CONTACT: Mr. Edward Chambers, Procurement
Analyst, at (202) 501-3221 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAC 2005-39, FAR case
2008-012.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 74 FR 11826 on March 19, 2009, to implement section 814 of
the NDAA for FY 2008. Section 814 implemented two areas of
clarification with regards to the submission of cost or pricing data on
non-commercial modifications of commercial items.
The comment period closed on May 18, 2009, with one comment
received. The respondent opined that the addition of the new FAR text
``at the time of contract award'' was unclear. The respondent indicated
that a contract's initial price subsequently changes based upon
modifications and inquired if the total price ``at time of contract
award'' included subsequent modifications that changed the initial
contract price. The respondent also highlighted the example of an
indefinite delivery-indefinite quantity (IDIQ) contract where orders
are issued and inquired whether ``at the time of contract award''
related to issuance of the IDIQ contract or individual orders placed
under this IDIQ contract. The respondent also offered examples of
possible revised language.
The Councils believe that, with minor changes, the language in the
interim rule is appropriate. Section 814 of the NDAA for FY 2008
required the insertion of the language ``at time of contract award''
after the language ``total price of contract'', which is already
contained in FAR 15.403-1. This language is being added to clarify at
what point during the life of the contract that the cost or pricing
threshold should be applied under FAR 15.403-1. The Councils believe
that the language ``at the time of contract award'' clearly indicates
that subsequent modifications, other than those which meet the
triggering thresholds of TINA themselves, that change a contract's
price are not factored into determining when the cost or pricing
threshold should be applied under FAR 15.403-1. In the case of IDIQ
contracts, it is commonly understood that it is the estimated total
value of orders for the specified period at the time of contract award,
as well as the individual value of any subsequent discrete orders, to
which the TINA thresholds apply. Consequently, the final rule language
reflects only minor editorial changes.
This is a significant regulatory action and therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
rule will not 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., since it is harmonizing FAR
15.403-1 with other parts of the FAR and should actually reduce the
administrative burden on contractors by not requiring them to track two
separate dollar thresholds for submitting cost or pricing data. It is
also increasing this dollar threshold relative to the submittal of cost
or pricing data in this situation and thus contractors will experience
a reduced administrative burden since they no longer will be required
to submit cost or pricing data on this lower threshold amount.
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.
chapter 35, et seq.
List of Subjects in 48 CFR Part 15
Government procurement.
Dated: March 15, 2010.
Al Matera,
Director, Acquisition Policy Division.
0
Accordingly, the interim rule published in the Federal Register at 74
FR 11826 on March 19, 2009, is adopted as a final rule with the
following changes:
PART 15--CONTRACTING BY NEGOTIATION
0
1. The authority citation for 48 CFR part 15 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
0
2. Amend section 15.403-1 by revising paragraphs (c)(3)(iii)(B) and
(c)(3)(iii)(C) to read as follows:
[[Page 13415]]
15.403-1 Prohibition on obtaining cost or pricing data (10 U.S.C.
2306a and 41 U.S.C. 254b).
* * * * *
(c) * * *
(3) * * *
(iii) * * *
(B) For acquisitions funded by DoD, NASA, or the Coast Guard, such
modifications of a commercial item are exempt from the requirement for
submission of cost or pricing data provided the total price of all such
modifications under a particular contract action does not exceed the
greater of the threshold for obtaining cost or pricing data in 15.403-4
or 5 percent of the total price of the contract at the time of contract
award.
(C) For acquisitions funded by DoD, NASA, or the Coast Guard, such
modifications of a commercial item are not exempt from the requirement
for submission of cost or pricing data on the basis of the exemption
provided for at FAR 15.403-1(c)(3) if the total price of all such
modifications under a particular contract action exceeds the greater of
the threshold for obtaining cost or pricing data in 15.403-4 or 5
percent of the total price of the contract at the time of contract
award.
* * * * *
[FR Doc. 2010-5986 Filed 3-18-10; 8:45 am]
BILLING CODE 6820-EP-S
