Defense Federal Acquisition Regulation Supplement: Only One Offer-Further Implementation (DFARS Case 2013-D001), 28785-28790 [2013-11399]
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Federal Register / Vol. 78, No. 95 / Thursday, May 16, 2013 / Proposed Rules
Significant deficiency means a shortcoming
in the system that materially affects the
ability of officials of the Department of
Defense to rely upon information produced
by the system that is needed for management
purposes.
(b) General. The Contractor shall establish
and maintain an acceptable purchasing
system. Failure to maintain an acceptable
purchasing system, as defined in this clause,
may result in disapproval of the system by
the Contracting Officer and/or withholding of
payments.
(c) System criteria. The Contractor’s
purchasing system shall—
(1) Establish and maintain policies and
procedures to ensure purchase orders and
subcontracts contain mandatory and
applicable flowdown clauses, as required by
the FAR and DFARS, including terms and
conditions required by the prime contract
and any clauses required to carry out the
requirements of the prime contract, including
the requirements of 252.246–70XX,
Contractor Counterfeit Electronic Part
Avoidance and Detection System;
(2) Provide for an organizational and
administrative structure that ensures
effective and efficient procurement of
required quality materials and parts at the
best value from responsible and reliable
sources, including the requirements of
252.246–70XX, Contractor Counterfeit
Electronic Part Avoidance and Detection
System; and
(3) Establish and maintain selection
processes to ensure the most responsive and
responsible sources for furnishing required
quality parts and materials and to promote
competitive sourcing among dependable
suppliers so that purchases are from sources
that meet contractor quality requirements,
including the requirements of 252.246–70XX,
Contractor Counterfeit Electronic Part
Avoidance and Detection System.
(d) Significant deficiencies. (1) The
Contracting Officer will provide notification
of initial determination to the Contractor, in
writing, of any significant deficiencies. The
initial determination will describe the
deficiency in sufficient detail to allow the
Contractor to understand the deficiency.
(2) The Contractor shall respond within 30
days to a written initial determination from
the Contracting Officer that identifies
significant deficiencies in the Contractor’s
purchasing system. If the Contractor
disagrees with the initial determination, the
Contractor shall state, in writing, its rationale
for disagreeing.
(3) The Contracting Officer will evaluate
the Contractor’s response and notify the
Contractor, in writing, of the Contracting
Officer’s final determination concerning—
(i) Remaining significant deficiencies;
(ii) The adequacy of any proposed or
completed corrective action; and
(iii) System disapproval, if the Contracting
Officer determines that one or more
significant deficiencies remain.
(e) If the Contractor receives the
Contracting Officer’s final determination of
significant deficiencies, the Contractor shall,
within 45 days of receipt of the final
determination, either correct the significant
deficiencies or submit an acceptable
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corrective action plan showing milestones
and actions to eliminate the deficiencies.
(f) Withholding payments. If the
Contracting Officer makes a final
determination to disapprove the Contractor’s
purchasing system, and the contract includes
the clause at 252.242–7005, Contractor
Business Systems, the Contracting Officer
will withhold payments in accordance with
that clause.
(End of clause)
■ 9. Amend subpart 252.2 by adding
new section 252.246–70XX to read as
follows:
252.246–70XX Contractor Counterfeit
Electronic Part Avoidance and Detection
System.
As prescribed in 246.870–3, use the
following clause:
Contractor Counterfeit Electronic Part
Avoidance and Detection System (Date)
(a) Definitions. As used in this clause—
Counterfeit part means—
(1) An unauthorized copy or substitute part
that has been identified, marked, and/or
altered by a source other than the part’s
legally authorized source and has been
misrepresented to be from a legally
authorized source;
(2) An item misrepresented to be an
authorized item of the legally authorized
source; or
(3) A new, used, outdated, or expired item
from a legally authorized source that is
misrepresented by any source to the end-user
as meeting the performance requirements for
the intended use.
Counterfeit electronic part avoidance and
detection system means the Contractor’s
system or systems for eliminating counterfeit
electronic parts from the supply chain.
Legally authorized source means the
current design activity or the original
manufacturer or a supplier authorized by the
current design activity or the original
manufacturer to produce an item.
Suspect counterfeit part means a part for
which visual inspection, testing, or other
information provide reason to believe that a
part may be a counterfeit part.
(b) General. The Contractor shall establish
and maintain an acceptable counterfeit
electronic part avoidance and detection
system. Failure to maintain an acceptable
counterfeit electronic part avoidance and
detection system, as defined in this clause,
may result in disapproval of the purchasing
system by the Contracting Officer and/or
withholding of payments.
(c) System criteria. The Contractor’s
counterfeit electronic part avoidance and
detection system shall develop and
implement policies and procedures that
address—
(i) The training of personnel;
(ii) The inspection and testing of electronic
parts, including criteria for acceptance and
rejection;
(iii) Processes to abolish counterfeit parts
proliferation;
(iv) Mechanisms to enable traceability of
parts to suppliers;
(v) Use and qualification of trusted
suppliers;
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(vi) The reporting and quarantining of
counterfeit electronic parts and suspect
counterfeit electronic parts;
(vii) Methodologies to identify suspect
counterfeit parts and to rapidly determine if
a suspect counterfeit part is, in fact,
counterfeit;
(viii) The design, operation, and
maintenance of systems to detect and avoid
counterfeit electronic parts and suspect
counterfeit electronic parts; and
(ix) The flow down of counterfeit
avoidance and detection requirements to
subcontractors.
(d) Government review and evaluation of
the Contractor’s policies and procedures will
be accomplished as part of the evaluation of
the Contractor’s purchasing system in
accordance with 252.244–7001, Contractor
Purchasing System Administration.
(End of clause)
[FR Doc. 2013–11400 Filed 5–15–13; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212, 215, 225, and 252
RIN 0750–AH89
Defense Federal Acquisition
Regulation Supplement: Only One
Offer—Further Implementation (DFARS
Case 2013–D001)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
further implement DoD policy relating
to competitive acquisitions in which
only one offer is received, providing
additional exceptions, and further
addressing requests for data other than
certified cost or pricing data from the
Canadian Commercial Corporation.
DATES: Comment date: Comments on the
proposed rule should be submitted in
writing to the address shown below on
or before July 15, 2013, to be considered
in the formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2013–D001,
using any of the following methods:
Æ Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
entering ‘‘DFARS Case 2013–D001’’
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2013–
D001.’’ Follow the instructions provided
SUMMARY:
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at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘DFARS Case 2013–
D001’’ on your attached document.
Æ Email: dfars@osd.mil. Include
DFARS Case 2013–D001 in the subject
line of the message.
Æ Fax: 571–362–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Amy
Williams, OUSD(AT&L)DPAP/DARS,
Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
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 www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, Defense Acquisition
Regulations System,
OUSD(AT&L)DPAP/DARS, Room
3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Telephone 571–372–6106.
SUPPLEMENTARY INFORMATION:
II. Applicability
I. Background
DoD is proposing to revise the DFARS
to further implement policy with regard
to acquisitions in which only one offer
is received and requests for data other
than certified cost or pricing data from
the Canadian Commercial Corporation.
This case is a follow-on to DFARS final
rules published in the Federal Register
under DFARS Case 2011–D013, Only
One Offer (77 FR 39126 on June 29,
2012), and DFARS Case 2011–D049,
Contracting with the Canadian
Commercial Corporation (77 FR 43470
on July 24, 2012).
DFARS Case 2011–D013 was initiated
to implement the initiative on
promoting real competition that was
presented by the Under Secretary of
Defense for Acquisition, Technology &
Logistics in a memorandum dated
November 3, 2010, Implementation
Directive for Better Buying Power—
Obtaining Greater Efficiency and
Productivity in Defense Spending.
DFARS Case 2011–D049 was initiated to
clarify the requirements for the
Canadian Commercial Corporation to
submit data other than certified cost or
pricing data. Because these two cases
were developed in parallel, the
interrelationship between the two cases
could not be incorporated into either
final rule. Therefore, DoD is proposing
to revise the DFARS to further
implement both rules, in particular as
they relate to each other.
The rule proposes two additional
exceptions to the policy on only one
offer, because the acquisition
procedures used for such acquisitions
are not compatible with the
requirements for handling the receipt of
only one offer in response to a
competitive solicitation at DFARS
215.371–2, i.e., to promote competition
through review of requirements, and
resolicitation, allowing an additional
period of at least 30 days for receipt of
offer. The two proposed new exceptions
are as follows:
1. Architect-engineer services (see
FAR subpart 36.6, and DFARS subpart
236.6).
2. Set-asides offered to and accepted
by the Small Business Administration
(SBA) into the 8(a) Program (see FAR
subpart 19.8 and DFARS subpart 219.8).
All exceptions are revised to state that
there is no exception to the
requirements to ensure that prices are
fair and reasonable.
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The final rule will apply to
solicitations (including solicitations for
task orders and delivery orders) issued
on or after the publication date of the
final rule.
III. Discussion
This rule proposes the following
changes:
A. Applicability to commercial items.
The rule proposes clarification at
DFARS 212.301(f)(iv)(G), Solicitation
provisions and contract clauses for the
acquisition of commercial items, that
the provision at DFARS 252.215–7003,
Requirements for Data Other Than
Certified Cost or Pricing Data—
Canadian Commercial Corporation, or
the clause at DFARS 252.215–7004,
Requirement for Data other Than
Certified Cost or Pricing Data—
Modifications—Canadian Commercial
Corporation, shall be used in
acquisitions of commercial items when
necessary to determine the price
reasonableness of commercial items for
acquisitions from the Canadian
Commercial Corporation.
B. Exceptions
C. Provision and Clause Prescriptions
1. The prescription for the provision
at DFARS 252.215–7007, Notice of
Intent to Resolicit, has been moved from
DFARS 215.408 to DFARS 215.371–6,
because it does not relate to pricing.
2. The remaining provision and clause
prescriptions at 215.408 are re-ordered
to be in numerical order of the
provisions and clauses. The
prescriptions for DFARS 252.215–7003,
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Requirement for Data Other Than
Certified Cost or Pricing Data—
Canadian Commercial Corporation and
252.215–7004, Requirement for Data
Other Than Certified Cost or Pricing
Data—Modifications—Canadian
Commercial Corporation, are revised
consistent with DFARS 225.870–4(c)
and relocated to DFARS 215.408(3).
3. Approval authorities for use of
252.215–7003 and 252.215–7004 are
removed from the clause prescription
and relocated to DFARS 225.870–4.
4. The use of DFARS 252.215–7004 in
competitive solicitations is addressed.
In competitive solicitations, if approval
has been obtained as required at DFARS
225.870–4(c)(2)(ii), the solicitation may
include both FAR 52.215–21,
Requirements for Certified Cost or
Pricing Data and Data Other Than
Certified Cost or Pricing Data—
Modifications, and DFARS 252.215–
7004 to provide for the possibility of
future modifications to the contract. The
contracting officer shall then select the
appropriate clause to include in the
contract, depending on whether or not
contract award is to the Canadian
Commercial Corporation.
5. In order to accommodate the
circumstance in which a contracting
officer may require offerors to provide
data other than certified cost or pricing
data with each offer in a competitive
acquisition, the statement that the
provision FAR 52.215–20, Requirements
for Certified Cost or Pricing Data and
Data Other Than Certified Cost or
Pricing Data, will only take effect as
specified in 252.215–7008, Only One
Offer, has been deleted. Rather, the
prescription allows use of both 252.215–
7008 and 52.215–20, if the contracting
officer is requesting submission of data
other than certified cost or pricing data
with the offer.
D. Approval Authorities for Requesting
Data From the Canadian Commercial
Corporation
Discussion of contracting procedures
when contracting with the Canadian
Commercial Corporation at DFARS
225.870–4 has been amplified with
regulations relating when approval is
required to request data from the
Canadian Commercial Corporation
(moved from the prescriptions at
DFARS 215.408). The rule also proposes
that no further approval is required to
request data in competitive solicitations
if—
• Data other than certified cost or
pricing data are required from all
offerors; or
• The Canadian Commercial
Corporation submits the only offer in
response to a competitive solicitation
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that meets the thresholds at 225.870–
4(2)(i)(A) or (B), applicable to sole
source acquisitions from the Canadian
Commercial Corporation.
E. ‘‘Only One Offer’’ Provision
The rule proposes to amend the
provision at DFARS 252.215–7008, Only
One Offer, to remove the requirement to
submit data requested by the contracting
officer after receipt of only one offer in
accordance with FAR 52.215–20.
Rather, the provision incorporates the
appropriate requirements of FAR
52.215–20 if the offeror is other than the
Canadian Commercial Corporation and
then separately addresses the
requirements for submission of data if
the sole offeror is the Canadian
Commercial Corporation.
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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. Regulatory Flexibility Act
DoD does not expect this 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, an initial regulatory flexibility
analysis has been performed and is
summarized as follows:
This rule further implements DoD
policy relating to competitive
acquisitions in which only one offer is
received, providing additional
exceptions, and further addressing
requests for data other than certified
cost or pricing data from the Canadian
Commercial Corporation, especially
relating to competitive solicitations
when only one offer is received from the
Canadian Commercial Corporation.
The objective of the rule is to promote
competition and ensure fair and
reasonable prices by implementing DoD
policy with regard to acquisitions when
only one offer is received, including the
Canadian Commercial Corporation.
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The legal basis is 41 U.S.C. 421 and
48 CFR Chapter 1.
The final regulatory flexibility
analysis for the final rule under FARS
case 2011–D013, Only One Offer, was
addressed in the Federal Register notice
published in the Federal Register (77
FR 39126) on June 29, 2012). With
regard to DFARS Case 2011–D049,
Contracting with the Canadian
Commercial Corporation (77 FR 43470
on July 24, 2012), DoD certified that
there was no 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 only impacted
Canadian business concerns. The
changes proposed in this rule are not
expected to impact a significant number
of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C.
601, et seq., because the only changes
impacting domestic entities are the
added exceptions for architect-engineer
services and the 8(a) Program, which are
more in the nature of a clarification than
a change.
Architect-engineer services are
purchased under the Brooks Act. The
final rule for Only One Offer was not
made applicable to FAR part 36. This
rule specifically clarifies that it is
inapplicable.
The final rule for Only One Offer was
not made applicable to set-asides under
FAR part 19. The final rule specifically
excluded small business set-asides and
set asides under the HUBZone Program,
the Service-Disabled Veteran-Owned
Small Business Procurement Program,
and the Women-Owned Small Business
Program. The 8(a) Program was
inadvertently omitted from the list of
specific exclusions. In accordance with
FAR 19.805–1, an acquisition offered to
the SBA shall be awarded on the basis
of competition limited to eligible 8(a)
firms if two conditions are met: (1) the
anticipated total value of the contract
exceeds the thresholds at FAR 19.805–
1(a)(2); and (2) there must be a
reasonable expectation that at least two
eligible and responsible 8(a) firms will
submit offers and that award can be
made at a fair and reasonable price.
The proposed rule imposes no new
reporting, recordkeeping, or other
information collection requirements.
The submission of certified cost or
pricing data or data other than certified
cost or pricing data is covered in FAR
15.4 and associated clauses in 52.215,
OMB clearances 9000–013.
The rule does not duplicate, overlap,
or conflict with any other Federal rules.
There are no known significant
alternatives to the rule that would
adequately implement the DoD policy.
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There is no significant economic impact
on a substantial number of 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 2013–D001), in
correspondence.
VI. Paperwork Reduction Act
The proposed rule does not impose
any additional information collection
requirements that require approval
under the Paperwork Reduction Act (5
U.S.C. chapter 35). The submission of
certified cost or pricing data or data
other than certified cost or pricing data
required for negotiation is covered in
FAR 15.4 and associated clauses in FAR
52.215, OMB clearance 9000–013, Cost
or Pricing Data Requirements and
Information Other Than Cost or Pricing
Data, in the amount of 10,101,684 hours.
List of Subjects in 48 CFR Parts 212,
215, 225, and 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 212, 215, 225,
and 252 are proposed to be amended as
follows:
■ 1. The authority citation for 48 CFR
parts 212, 215, 225, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
2. Amend section 212.301 by—
a. Redesignating paragraphs (f)(iv)(G)
and f)(iv)(H) through (R) as (f)(iv)(I) and
f)(iv)(K) through (U) resepctively;
■ b. Adding new paragraphs (f)(iv)(G),
(H), and (J);
■ c. Revising newly designated
paragraph (f)(iv)(I).
The added and revised text reads as
follows:
■
■
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
*
*
*
*
*
(f) * * *
(iv) * * *
(G) Use the provision at 252.215–
7003, Requirements for Submission of
Data Other Than Certified Cost or
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Pricing Data—Canadian Commercial
Corporation, as prescribed at
215.408(3)(i).
(H) Use the clause at 252.215–7004,
Requirement for Submission of Data
other Than Certified Cost or Pricing
Data—Modifications—Canadian
Commercial Corporation, when
necessary to determine the price
reasonableness of commercial items as
prescribed at 215.408((3)(ii).
(I) Use the provisions at 252.215–
7007, Notice of Intent to Resolicit, as
prescribed at 215.408.
(J) Use the provision 252.215–7008,
Only One Offer, as prescribed at
215.371–6.
*
*
*
*
*
PART 215—CONTRACTING BY
NEGOTIATION
3. Amend section 215.371–3 by—
a. In paragraph (a), removing ‘‘at one
level’’ and adding ‘‘at a level’’ in its
place.
■ b. In paragraph (b) introductory text,
removing ‘‘215.371–4(b)’’ and adding
‘‘215.371–4(a)(3)’’ in its place.
■ c. In paragraph (b)(1), removing ‘‘at
one level’’ and adding ‘‘at a level’’ in its
place.
■ d. In paragraph (b)(2)(i) removing ‘‘, in
accordance with FAR provision 52.215–
20’’ and removing ‘‘FAR 15.403–1(c)’’
and adding ‘‘FAR 15.403–1(b)’’ in its
place.
■ 4. Revise section 215.371–4 to read as
follows:
■
■
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215.371–4
Exceptions.
(a) The requirements at sections
215.371–2 do not apply to—
(1) Acquisitions at or below the
simplified acquisition threshold;
(2) Acquisitions in support of
contingency, humanitarian or
peacekeeping operations, or to facilitate
defense against or recovery from
nuclear, biological, chemical, or
radiological attack;
(3) Small business set-asides under
FAR subpart 19.5, set asides offered and
accepted into the 8(a) Program under
FAR subpart 19.8, or set-asides under
the HUBZone Program (see FAR
19.1305(c)), the Service-Disabled
Veteran-Owned Small Business
Procurement Program (see FAR
19.1405(c)), or the Women-Owned
Small Business Program (see FAR
19.1505(d));
(4) Acquisitions of basic or applied
research or development, as specified in
FAR 35.016(a), that use a broad agency
announcement; or
(5) Acquisitions of architect-engineer
services (see FAR 36.601–2).
(b) The applicability of an exception
in paragraph (a) of this section does not
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eliminate the need for the contracting
officer to seek maximum practicable
competition and to ensure that the price
is fair and reasonable.
■ 5. Add section 215.371–6 to read as
follows:
215.371–6
Solicitation provision.
Use the provision at 252.215–7007,
Notice of Intent to Resolicit, in
competitive solicitations that will be
solicited for fewer than 30 days, unless
an exception at 215.371–4 applies or the
requirement is waived in accordance
with 215.371–5.
215.403–1
[Amended]
6. Amend section 215.403–1 by—
a. In second sentence of paragraph
(c)(1)(A)(1), removing ‘‘price analysis.’’
and adding ‘‘price analysis; and’’ in its
place.
■ b. In paragraph (c)(4)(C), removing
‘‘215.408(5)’’ and adding ‘‘215.408(3)’’
in its place.
■ 7. Amend section 215.408 by—
■ a. Revising paragraph (3);
■ b. In paragraph (4)(i), removing
‘‘215.371–4(a)(1) applies.’’ and adding
‘‘215.371–4(a) applies.’’ in its place.
■ c. In paragraph (4)(ii), removing ‘‘but
that provision will only take effect as
specified in 252.215–7008’’ and adding
‘‘if the contracting officer is requesting
submission of data other than certified
cost or pricing data with the offer’’ in its
place.
■ d. Removing paragraph (5).
The revised text reads as follows:
■
■
215.408 Solicitation provisions and
contract clauses.
*
*
*
*
*
(3) When contracting with the
Canadian Commercial Corporation—
(i)(A) Use the provision at 252.215–
7003, Requirement for Data Other Than
Certified Cost or Pricing Data—
Canadian Commercial Corporation—
(1) In lieu of FAR 52.215–20,
Requirement for Data Other Than
Certified Cost or Pricing Data, in a
solicitation for a sole source acquisition
from the Canadian Commercial
Corporation that is—
(i) Cost-reimbursement, if the contract
value is expected to exceed $700,000; or
(ii) Fixed-price, if the contract value is
expected to exceed $500 million; or
(2) In lieu of FAR 52.215–20, in a sole
source acquisition from the Canadian
Commercial Corporation that does not
meet the thresholds specified in
paragraph (3)(i)(A)(1), if approval is
obtained as required at 225.870–
4(c)(2)(ii); and
(B) Do not use 252.225–7003 in lieu
of FAR 52.215–20 in competitive
acquisitions. The contracting officer
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may use FAR 52.215–20 with its
Alternate IV, as prescribed at
15.408(l)(3), even if offers from the
Canadian Commercial Corporation are
anticipated; and
(ii)(A) Use the clause at 252.215–
7004, Requirement for Data Other Than
Certified Cost or Pricing Data—
Modifications—Canadian Commercial
Corporation—
(1) In a solicitation for a sole source
acquisition from the Canadian
Commercial Corporation and resultant
contract that is—
(i) Cost-reimbursement, if the contract
value is expected to exceed $700,000; or
(ii) Fixed-price, if the contract value is
expected to exceed $500 million;
(2) In a solicitation for a sole source
acquisition from the Canadian
Commercial Corporation and resultant
contract that does not meet the
thresholds specified in paragraph
(3)(ii)(A)(1) of this section, if approval is
obtained as required at 225.870–
4(c)(2)(ii); or
(3)(i) In a solicitation for a
competitive acquisition that includes
FAR 52.215–21, Requirement for Data
Other Than Certified Cost or Pricing
Data—Modifications, or that meets the
thresholds specified in paragraph
(3)(ii)(A)(1) of this section.
(ii) The contracting officer shall then
select the appropriate clause to include
in the contract (52.215–21 only if award
is not to the Canadian Commercial
Corporation; or 252.215–7004 if award
is to the Canadian Commercial
Corporation and necessary approval is
obtained in accordance with 225.870–
4(c)(2)(ii)); and
(B) The contracting officer may
specify a higher threshold in paragraph
(b) of the clause 252.215–7004.
*
*
*
*
*
PART 225—FOREIGN ACQUISITION
8. Amend section 225.870–4 by—
a. Revising paragraph (c)(2).
b. In paragraph (c)(3), removing
‘‘215.408(5)(i)’’ and adding
‘‘215.408(3)(i)’’ in its place.
The revision reads as follows:
■
■
■
25.870–4
Contracting procedures.
*
*
*
*
*
(c) * * *
(2) The Canadian Commercial
Corporation is not exempt from the
requirement to submit data other than
certified cost or pricing data, as defined
in FAR 2.101. In accordance with FAR
15.403–3(a)(1)(ii), the contracting officer
shall require submission of data other
than certified cost or pricing data from
the offeror, to the extent necessary to
determine a fair and reasonable price.
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(i) No further approval is required to
request data other than certified cost or
pricing data from the Canadian
Commercial Corporation in the
following circumstances:
(A) In a solicitation for a sole source
acquisitions that is—
(1) Cost-reimbursement, if the
contract value is expected to exceed
$700,000; or
(2) Fixed-price, if the contract value is
expected to exceed $500 million.
(B) If the Canadian Commercial
Corporation submits the only offer in
response to a competitive solicitation
that meets the thresholds specified in
paragraph (c)(2)(i)(A) of this section.
(C) For modifications that exceed
$150,000 in contracts that meet the
criteria in paragraph (c)(2)(i)(A) or (B) of
this section.
(D) In competitive solicitations in
which data other than certified cost or
pricing data are required from all
offerors.
(ii) In any circumstances other than
those specified in paragraph (c)(2)(i) of
this section, the contracting officer shall
only require data other than certified
cost or pricing data from the Canadian
Commercial Corporation if the head of
the contracting activity, or designee no
lower than two levels above the
contracting officer, determines that data
other than certified cost or pricing data
are needed (or in the case of
modifications that it is reasonably
certain that data other than certified cost
or pricing data will be needed) in order
to determine that the price is fair and
reasonable) (see FAR 15.403–3(a).
*
*
*
*
*
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.215.7003
[Amended]
9. Amend section 252.215–7003 by, in
the introductory text, removing ‘‘As
prescribed at 215.408(5)(i),’’ and adding
‘‘As prescribed at 215.408(3)(i),’’ in its
place.
■ 10. Amend section 252.215–7004 by—
■ a. In the introductory text, removing
‘‘As prescribed at 215.408(5)(ii),’’ and
adding ‘‘As prescribed at
215.408(3)(ii),’’ in its place.
■ b. Removing the clause date of ‘‘(JUL
2012)’’ and adding ‘‘(DATE)’’ in its
place.
■ c. In paragraph (b) introductory text,
removing ‘‘the simplified acquisition
threshold’’ and adding ‘‘$150,000’’ in its
place.
■ d. Adding introductory text after the
clause date and before paragraph (a) to
read as follows:
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■
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252.215.7004 Requirement for Submission
of Data Other Than Certified Cost or Pricing
Data—Modifications—Canadian
Commercial Corporation.
*
*
*
*
*
This clause, in lieu of FAR 52.215–21,
applies only if award is to the Canadian
Commercial Corporation.
*
*
*
*
*
252.215–7007
[Amended]
11. Amend section 252.215–7007 by,
in the introductory text, removing ‘‘As
prescribed at 215.408(3),’’ and adding
‘‘As prescribed at 215.371–6,’’ in its
place.
■
252.215–7008
12. Revise section 252.215–7008 to
read as follows:
■
252.215–7008
Only one offer.
As prescribed at 215.408(4), use the
following provision:
ONLY ONE OFFER (DATE)
(a) After initial submission of offers, the
Offeror agrees to submit any subsequently
requested additional cost or pricing data if
the Contracting Officer notifies the Offeror
that—
(1) Only one offer was received; and
(2) Additional cost or pricing data is
required in order to determine whether the
price is fair and reasonable or to comply with
the statutory requirement for certified cost or
pricing data (10 U.S.C. 2306a and FAR
15.403–3).
(b) Requirement for submission of
additional cost or pricing data. Except as
provided in paragraph (c) of this provision,
the Offeror shall submit additional cost or
pricing data as follows:
(1) If the Contracting Officer notifies the
Offeror that additional cost or pricing data
are required in accordance with paragraph (a)
of this clause, the data shall be certified
unless an exception applies (FAR 15.403–
1(b)).
(2) Exceptions from certified cost or pricing
data. In lieu of submitting certified cost or
pricing data, the Offeror may submit a
written request for exception by submitting
the information described in the following
paragraphs. The Contracting Officer may
require additional supporting information,
but only to the extent necessary to determine
whether an exception should be granted, and
whether the price is fair and reasonable.
(i) Identification of the law or regulation
establishing the price offered. If the price is
controlled under law by periodic rulings,
reviews, or similar actions of a governmental
body, attach a copy of the controlling
document, unless it was previously
submitted to the contracting office.
(ii) Commercial item exception. For a
commercial item exception, the Offeror shall
submit, at a minimum, information on prices
at which the same item or similar items have
previously been sold in the commercial
market that is adequate for evaluating the
reasonableness of the price for this
acquisition. Such information may include—
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28789
(A) For catalog items, a copy of or
identification of the catalog and its date, or
the appropriate pages for the offered items,
or a statement that the catalog is on file in
the buying office to which the proposal is
being submitted. Provide a copy or describe
current discount policies and price lists
(published or unpublished), e.g., wholesale,
original equipment manufacturer, or reseller.
Also explain the basis of each offered price
and its relationship to the established catalog
price, including how the proposed price
relates to the price of recent sales in
quantities similar to the proposed quantities;
(B) For market-priced items, the source and
date or period of the market quotation or
other basis for market price, the base amount,
and applicable discounts. In addition,
describe the nature of the market; or
(C) For items included on an active Federal
Supply Service Multiple Award Schedule
contract, proof that an exception has been
granted for the schedule item.
(3) The Offeror grants the Contracting
Officer or an authorized representative the
right to examine, at any time before award,
books, records, documents, or other directly
pertinent records to verify any request for an
exception under this provision, and the
reasonableness of price. For items priced
using catalog or market prices, or law or
regulation, access does not extend to cost or
profit information or other data relevant
solely to the Offeror’s determination of the
prices to be offered in the catalog or
marketplace.
(4) Requirements for certified cost or
pricing data. If the Offeror is not granted an
exception from the requirement to submit
certified cost or pricing data, the following
applies:
(i) The Offeror shall prepare and submit
certified cost or pricing data and supporting
attachments in accordance with the
instructions contained in Table 15–2 of FAR
15.408, which is incorporated by reference
with the same force and effect as though it
were inserted here in full text. The
instructions in Table 15–2 are incorporated
as a mandatory format to be used, unless the
Contracting Officer and the Offeror agree to
a different format.
(ii) As soon as practicable after agreement
on price, but before contract award (except
for unpriced actions such as letter contracts),
the offeror shall submit a Certificate of
Current Cost or Pricing Data, as prescribed by
FAR 15.406–2.
(c) If the Offeror is the Canadian
Commercial Corporation, certified cost or
pricing data are not required. If the
Contracting Officer notifies the Canadian
Commercial Corporation that additional data
other than certified cost or pricing data are
required in accordance with 225.870–4(c),
the Canadian Commercial Corporation shall
obtain and provide the following:
(1) Profit rate or fee (as applicable).
(2) Analysis provided by Public Works and
Government Services Canada to the Canadian
Commercial Corporation to determine a fair
and reasonable price (comparable to the
analysis required at FAR 15.404–1).
(3) Data other than certified cost or pricing
data necessary to permit a determination by
the U.S. Contracting Officer that the
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proposed price is fair and reasonable [U.S.
Contracting Officer to provide description of
the data required in accordance with FAR
15.403–3(a)(1) with the notification].
(4) As specified in FAR 15.403–3(a)(4), an
offeror who does not comply with a
requirement to submit data that the U.S.
Contracting Officer has deemed necessary to
determine price reasonableness or cost
realism is ineligible for award unless the
head of the contracting activity determines
that it is in the best interest of the
Government to make the award to that
offeror.
(d) If negotiations are conducted, the
negotiated price should not exceed the
offered price.
(End of provision)
[FR Doc. 2013–11399 Filed 5–15–13; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 215
RIN 0750–AH86
Defense Federal Acquisition
Regulation Supplement; Forward
Pricing Rate Proposal Adequacy
Checklist (DFARS Case 2012–D035)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
provide guidance to contractors for the
submittal of forward pricing rate
proposals to ensure the adequacy of
forward pricing rate proposals
submitted to the Government.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before July
15, 2013, to be considered in the
formation of the final rule.
ADDRESSES: Submit comments,
identified by DFARS Case 2012–D035,
using any of the following methods:
Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inserting ‘‘DFARS Case 2012–D035’’
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2012–
D035.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘DFARS Case 2012–
D035’’ on your attached document.
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SUMMARY:
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Follow the instructions for submitting
comments.
Email: dfars@osd.mil. Include DFARS
Case 2012–D035 in the subject line of
the message.
Fax: 571–372–6094.
Mail: Defense Acquisition Regulations
System, Attn: Mr. Mark Gomersall,
OUSD(AT&L)DPAP(DARS), Room
3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
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 www.regulations.gov
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Mr.
Mark Gomersall, 571–372–6099.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS
at 215.403–5 by adding instructions to
contracting officers to request
contractors to submit the proposed
forward pricing rate proposal adequacy
checklist at Table 215–XX with forward
pricing rate proposals. This proposed
rule provides guidance to contractors for
the submittal of forward pricing rate
proposals by requesting that contractors
submit a proposed forward pricing rate
proposal adequacy checklist with their
forward pricing rate proposals to ensure
submission of thorough, accurate, and
complete proposals.
II. 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.
III. 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
PO 00000
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Sfmt 4702
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. However, an initial regulatory
flexibility analysis has been performed
and is summarized as follows:
This rule amends the DFARS at
215.403–5 by adding instructions to
contracting officers to request
contractors to submit the proposed
forward pricing rate proposal adequacy
checklist with forward pricing rate
proposals. The objective is to provide
guidance to contractors for the submittal
of forward pricing rate proposals.
DoD does not expect this proposed
rule to have a significant economic
impact on a substantial number of small
because it only a small percentage of
Government contractors are requested to
submit a forward pricing rate proposal,
as set forth at FAR 42.1701(a). The
Government will ask only those
contractors with a significant volume of
Government contracts to submit such
proposals.
The proposed rule does not duplicate,
overlap, or conflict with any other
Federal rules.
IV. Paperwork Reduction Act
The rule contains 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).
Accordingly, DoD has submitted a
request for approval of a new
information collection requirement
concerning Defense Federal Acquisition
Regulation Supplement; Forward
Pricing Rate Proposal Adequacy
Checklist (DFARS Case 2012–D035) to
the Office of Management and Budget.
A. Public reporting burden for this
collection of information is estimated to
average 4 hours per response, including
the time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the collection of information.
The annual reporting burden
estimated as follows:
Respondents: 160.
Responses per respondent: 1.
Total annual responses: 160.
Preparation hours per response: 4
hours
Total response Burden Hours: 640
hours.
B. Request for Comments Regarding
Paperwork Burden.
Written comments and
recommendations on the proposed
information collection, including
suggestions for reducing this burden,
should be sent to Ms. Jasmeet Seehra at
the Office of Management and Budget,
Desk Officer for DoD, Room 10236, New
Executive Office Building, Washington,
E:\FR\FM\16MYP1.SGM
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]]>Agencies
[Federal Register Volume 78, Number 95 (Thursday, May 16, 2013)]
[Proposed Rules]
[Pages 28785-28790]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11399]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 215, 225, and 252
RIN 0750-AH89
Defense Federal Acquisition Regulation Supplement: Only One
Offer--Further Implementation (DFARS Case 2013-D001)
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 further implement DoD policy relating
to competitive acquisitions in which only one offer is received,
providing additional exceptions, and further addressing requests for
data other than certified cost or pricing data from the Canadian
Commercial Corporation.
DATES: Comment date: Comments on the proposed rule should be submitted
in writing to the address shown below on or before July 15, 2013, to be
considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2013-D001, using
any of the following methods:
[cir] Regulations.gov: https://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by entering ``DFARS Case 2013-D001''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2013-D001.'' Follow the instructions provided
[[Page 28786]]
at the ``Submit a Comment'' screen. Please include your name, company
name (if any), and ``DFARS Case 2013-D001'' on your attached document.
[cir] Email: dfars@osd.mil. Include DFARS Case 2013-D001 in the
subject line of the message.
[cir] Fax: 571-362-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy
Williams, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
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 www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060. Telephone 571-372-6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to further implement policy
with regard to acquisitions in which only one offer is received and
requests for data other than certified cost or pricing data from the
Canadian Commercial Corporation. This case is a follow-on to DFARS
final rules published in the Federal Register under DFARS Case 2011-
D013, Only One Offer (77 FR 39126 on June 29, 2012), and DFARS Case
2011-D049, Contracting with the Canadian Commercial Corporation (77 FR
43470 on July 24, 2012).
DFARS Case 2011-D013 was initiated to implement the initiative on
promoting real competition that was presented by the Under Secretary of
Defense for Acquisition, Technology & Logistics in a memorandum dated
November 3, 2010, Implementation Directive for Better Buying Power--
Obtaining Greater Efficiency and Productivity in Defense Spending.
DFARS Case 2011-D049 was initiated to clarify the requirements for the
Canadian Commercial Corporation to submit data other than certified
cost or pricing data. Because these two cases were developed in
parallel, the interrelationship between the two cases could not be
incorporated into either final rule. Therefore, DoD is proposing to
revise the DFARS to further implement both rules, in particular as they
relate to each other.
II. Applicability
The final rule will apply to solicitations (including solicitations
for task orders and delivery orders) issued on or after the publication
date of the final rule.
III. Discussion
This rule proposes the following changes:
A. Applicability to commercial items. The rule proposes
clarification at DFARS 212.301(f)(iv)(G), Solicitation provisions and
contract clauses for the acquisition of commercial items, that the
provision at DFARS 252.215-7003, Requirements for Data Other Than
Certified Cost or Pricing Data--Canadian Commercial Corporation, or the
clause at DFARS 252.215-7004, Requirement for Data other Than Certified
Cost or Pricing Data--Modifications--Canadian Commercial Corporation,
shall be used in acquisitions of commercial items when necessary to
determine the price reasonableness of commercial items for acquisitions
from the Canadian Commercial Corporation.
B. Exceptions
The rule proposes two additional exceptions to the policy on only
one offer, because the acquisition procedures used for such
acquisitions are not compatible with the requirements for handling the
receipt of only one offer in response to a competitive solicitation at
DFARS 215.371-2, i.e., to promote competition through review of
requirements, and resolicitation, allowing an additional period of at
least 30 days for receipt of offer. The two proposed new exceptions are
as follows:
1. Architect-engineer services (see FAR subpart 36.6, and DFARS
subpart 236.6).
2. Set-asides offered to and accepted by the Small Business
Administration (SBA) into the 8(a) Program (see FAR subpart 19.8 and
DFARS subpart 219.8).
All exceptions are revised to state that there is no exception to the
requirements to ensure that prices are fair and reasonable.
C. Provision and Clause Prescriptions
1. The prescription for the provision at DFARS 252.215-7007, Notice
of Intent to Resolicit, has been moved from DFARS 215.408 to DFARS
215.371-6, because it does not relate to pricing.
2. The remaining provision and clause prescriptions at 215.408 are
re-ordered to be in numerical order of the provisions and clauses. The
prescriptions for DFARS 252.215-7003, Requirement for Data Other Than
Certified Cost or Pricing Data--Canadian Commercial Corporation and
252.215-7004, Requirement for Data Other Than Certified Cost or Pricing
Data--Modifications--Canadian Commercial Corporation, are revised
consistent with DFARS 225.870-4(c) and relocated to DFARS 215.408(3).
3. Approval authorities for use of 252.215-7003 and 252.215-7004
are removed from the clause prescription and relocated to DFARS
225.870-4.
4. The use of DFARS 252.215-7004 in competitive solicitations is
addressed. In competitive solicitations, if approval has been obtained
as required at DFARS 225.870-4(c)(2)(ii), the solicitation may include
both FAR 52.215-21, Requirements for Certified Cost or Pricing Data and
Data Other Than Certified Cost or Pricing Data--Modifications, and
DFARS 252.215-7004 to provide for the possibility of future
modifications to the contract. The contracting officer shall then
select the appropriate clause to include in the contract, depending on
whether or not contract award is to the Canadian Commercial
Corporation.
5. In order to accommodate the circumstance in which a contracting
officer may require offerors to provide data other than certified cost
or pricing data with each offer in a competitive acquisition, the
statement that the provision FAR 52.215-20, Requirements for Certified
Cost or Pricing Data and Data Other Than Certified Cost or Pricing
Data, will only take effect as specified in 252.215-7008, Only One
Offer, has been deleted. Rather, the prescription allows use of both
252.215-7008 and 52.215-20, if the contracting officer is requesting
submission of data other than certified cost or pricing data with the
offer.
D. Approval Authorities for Requesting Data From the Canadian
Commercial Corporation
Discussion of contracting procedures when contracting with the
Canadian Commercial Corporation at DFARS 225.870-4 has been amplified
with regulations relating when approval is required to request data
from the Canadian Commercial Corporation (moved from the prescriptions
at DFARS 215.408). The rule also proposes that no further approval is
required to request data in competitive solicitations if--
Data other than certified cost or pricing data are
required from all offerors; or
The Canadian Commercial Corporation submits the only offer
in response to a competitive solicitation
[[Page 28787]]
that meets the thresholds at 225.870-4(2)(i)(A) or (B), applicable to
sole source acquisitions from the Canadian Commercial Corporation.
E. ``Only One Offer'' Provision
The rule proposes to amend the provision at DFARS 252.215-7008,
Only One Offer, to remove the requirement to submit data requested by
the contracting officer after receipt of only one offer in accordance
with FAR 52.215-20. Rather, the provision incorporates the appropriate
requirements of FAR 52.215-20 if the offeror is other than the Canadian
Commercial Corporation and then separately addresses the requirements
for submission of data if the sole offeror is the Canadian Commercial
Corporation.
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. Regulatory Flexibility Act
DoD does not expect this 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, an initial
regulatory flexibility analysis has been performed and is summarized as
follows:
This rule further implements DoD policy relating to competitive
acquisitions in which only one offer is received, providing additional
exceptions, and further addressing requests for data other than
certified cost or pricing data from the Canadian Commercial
Corporation, especially relating to competitive solicitations when only
one offer is received from the Canadian Commercial Corporation.
The objective of the rule is to promote competition and ensure fair
and reasonable prices by implementing DoD policy with regard to
acquisitions when only one offer is received, including the Canadian
Commercial Corporation.
The legal basis is 41 U.S.C. 421 and 48 CFR Chapter 1.
The final regulatory flexibility analysis for the final rule under
FARS case 2011-D013, Only One Offer, was addressed in the Federal
Register notice published in the Federal Register (77 FR 39126) on June
29, 2012). With regard to DFARS Case 2011-D049, Contracting with the
Canadian Commercial Corporation (77 FR 43470 on July 24, 2012), DoD
certified that there was no 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 only
impacted Canadian business concerns. The changes proposed in this rule
are not expected to impact a significant number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq., because the only changes impacting domestic entities are the
added exceptions for architect-engineer services and the 8(a) Program,
which are more in the nature of a clarification than a change.
Architect-engineer services are purchased under the Brooks Act. The
final rule for Only One Offer was not made applicable to FAR part 36.
This rule specifically clarifies that it is inapplicable.
The final rule for Only One Offer was not made applicable to set-
asides under FAR part 19. The final rule specifically excluded small
business set-asides and set asides under the HUBZone Program, the
Service-Disabled Veteran-Owned Small Business Procurement Program, and
the Women-Owned Small Business Program. The 8(a) Program was
inadvertently omitted from the list of specific exclusions. In
accordance with FAR 19.805-1, an acquisition offered to the SBA shall
be awarded on the basis of competition limited to eligible 8(a) firms
if two conditions are met: (1) the anticipated total value of the
contract exceeds the thresholds at FAR 19.805-1(a)(2); and (2) there
must be a reasonable expectation that at least two eligible and
responsible 8(a) firms will submit offers and that award can be made at
a fair and reasonable price.
The proposed rule imposes no new reporting, recordkeeping, or other
information collection requirements. The submission of certified cost
or pricing data or data other than certified cost or pricing data is
covered in FAR 15.4 and associated clauses in 52.215, OMB clearances
9000-013.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no known significant alternatives to the rule that would
adequately implement the DoD policy. There is no significant economic
impact on a substantial number of 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 2013-D001), in
correspondence.
VI. Paperwork Reduction Act
The proposed rule does not impose any additional information
collection requirements that require approval under the Paperwork
Reduction Act (5 U.S.C. chapter 35). The submission of certified cost
or pricing data or data other than certified cost or pricing data
required for negotiation is covered in FAR 15.4 and associated clauses
in FAR 52.215, OMB clearance 9000-013, Cost or Pricing Data
Requirements and Information Other Than Cost or Pricing Data, in the
amount of 10,101,684 hours.
List of Subjects in 48 CFR Parts 212, 215, 225, and 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 215, 225, and 252 are proposed to be
amended as follows:
0
1. The authority citation for 48 CFR parts 212, 215, 225, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. Amend section 212.301 by--
0
a. Redesignating paragraphs (f)(iv)(G) and f)(iv)(H) through (R) as
(f)(iv)(I) and f)(iv)(K) through (U) resepctively;
0
b. Adding new paragraphs (f)(iv)(G), (H), and (J);
0
c. Revising newly designated paragraph (f)(iv)(I).
The added and revised text reads as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(f) * * *
(iv) * * *
(G) Use the provision at 252.215-7003, Requirements for Submission
of Data Other Than Certified Cost or
[[Page 28788]]
Pricing Data--Canadian Commercial Corporation, as prescribed at
215.408(3)(i).
(H) Use the clause at 252.215-7004, Requirement for Submission of
Data other Than Certified Cost or Pricing Data--Modifications--Canadian
Commercial Corporation, when necessary to determine the price
reasonableness of commercial items as prescribed at 215.408((3)(ii).
(I) Use the provisions at 252.215-7007, Notice of Intent to
Resolicit, as prescribed at 215.408.
(J) Use the provision 252.215-7008, Only One Offer, as prescribed
at 215.371-6.
* * * * *
PART 215--CONTRACTING BY NEGOTIATION
0
3. Amend section 215.371-3 by--
0
a. In paragraph (a), removing ``at one level'' and adding ``at a
level'' in its place.
0
b. In paragraph (b) introductory text, removing ``215.371-4(b)'' and
adding ``215.371-4(a)(3)'' in its place.
0
c. In paragraph (b)(1), removing ``at one level'' and adding ``at a
level'' in its place.
0
d. In paragraph (b)(2)(i) removing ``, in accordance with FAR provision
52.215-20'' and removing ``FAR 15.403-1(c)'' and adding ``FAR 15.403-
1(b)'' in its place.
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4. Revise section 215.371-4 to read as follows:
215.371-4 Exceptions.
(a) The requirements at sections 215.371-2 do not apply to--
(1) Acquisitions at or below the simplified acquisition threshold;
(2) Acquisitions in support of contingency, humanitarian or
peacekeeping operations, or to facilitate defense against or recovery
from nuclear, biological, chemical, or radiological attack;
(3) Small business set-asides under FAR subpart 19.5, set asides
offered and accepted into the 8(a) Program under FAR subpart 19.8, or
set-asides under the HUBZone Program (see FAR 19.1305(c)), the Service-
Disabled Veteran-Owned Small Business Procurement Program (see FAR
19.1405(c)), or the Women-Owned Small Business Program (see FAR
19.1505(d));
(4) Acquisitions of basic or applied research or development, as
specified in FAR 35.016(a), that use a broad agency announcement; or
(5) Acquisitions of architect-engineer services (see FAR 36.601-2).
(b) The applicability of an exception in paragraph (a) of this
section does not eliminate the need for the contracting officer to seek
maximum practicable competition and to ensure that the price is fair
and reasonable.
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5. Add section 215.371-6 to read as follows:
215.371-6 Solicitation provision.
Use the provision at 252.215-7007, Notice of Intent to Resolicit,
in competitive solicitations that will be solicited for fewer than 30
days, unless an exception at 215.371-4 applies or the requirement is
waived in accordance with 215.371-5.
215.403-1 [Amended]
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6. Amend section 215.403-1 by--
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a. In second sentence of paragraph (c)(1)(A)(1), removing ``price
analysis.'' and adding ``price analysis; and'' in its place.
0
b. In paragraph (c)(4)(C), removing ``215.408(5)'' and adding
``215.408(3)'' in its place.
0
7. Amend section 215.408 by--
0
a. Revising paragraph (3);
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b. In paragraph (4)(i), removing ``215.371-4(a)(1) applies.'' and
adding ``215.371-4(a) applies.'' in its place.
0
c. In paragraph (4)(ii), removing ``but that provision will only take
effect as specified in 252.215-7008'' and adding ``if the contracting
officer is requesting submission of data other than certified cost or
pricing data with the offer'' in its place.
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d. Removing paragraph (5).
The revised text reads as follows:
215.408 Solicitation provisions and contract clauses.
* * * * *
(3) When contracting with the Canadian Commercial Corporation--
(i)(A) Use the provision at 252.215-7003, Requirement for Data
Other Than Certified Cost or Pricing Data--Canadian Commercial
Corporation--
(1) In lieu of FAR 52.215-20, Requirement for Data Other Than
Certified Cost or Pricing Data, in a solicitation for a sole source
acquisition from the Canadian Commercial Corporation that is--
(i) Cost-reimbursement, if the contract value is expected to exceed
$700,000; or
(ii) Fixed-price, if the contract value is expected to exceed $500
million; or
(2) In lieu of FAR 52.215-20, in a sole source acquisition from the
Canadian Commercial Corporation that does not meet the thresholds
specified in paragraph (3)(i)(A)(1), if approval is obtained as
required at 225.870-4(c)(2)(ii); and
(B) Do not use 252.225-7003 in lieu of FAR 52.215-20 in competitive
acquisitions. The contracting officer may use FAR 52.215-20 with its
Alternate IV, as prescribed at 15.408(l)(3), even if offers from the
Canadian Commercial Corporation are anticipated; and
(ii)(A) Use the clause at 252.215-7004, Requirement for Data Other
Than Certified Cost or Pricing Data--Modifications--Canadian Commercial
Corporation--
(1) In a solicitation for a sole source acquisition from the
Canadian Commercial Corporation and resultant contract that is--
(i) Cost-reimbursement, if the contract value is expected to exceed
$700,000; or
(ii) Fixed-price, if the contract value is expected to exceed $500
million;
(2) In a solicitation for a sole source acquisition from the
Canadian Commercial Corporation and resultant contract that does not
meet the thresholds specified in paragraph (3)(ii)(A)(1) of this
section, if approval is obtained as required at 225.870-4(c)(2)(ii); or
(3)(i) In a solicitation for a competitive acquisition that
includes FAR 52.215-21, Requirement for Data Other Than Certified Cost
or Pricing Data--Modifications, or that meets the thresholds specified
in paragraph (3)(ii)(A)(1) of this section.
(ii) The contracting officer shall then select the appropriate
clause to include in the contract (52.215-21 only if award is not to
the Canadian Commercial Corporation; or 252.215-7004 if award is to the
Canadian Commercial Corporation and necessary approval is obtained in
accordance with 225.870-4(c)(2)(ii)); and
(B) The contracting officer may specify a higher threshold in
paragraph (b) of the clause 252.215-7004.
* * * * *
PART 225--FOREIGN ACQUISITION
0
8. Amend section 225.870-4 by--
0
a. Revising paragraph (c)(2).
0
b. In paragraph (c)(3), removing ``215.408(5)(i)'' and adding
``215.408(3)(i)'' in its place.
The revision reads as follows:
25.870-4 Contracting procedures.
* * * * *
(c) * * *
(2) The Canadian Commercial Corporation is not exempt from the
requirement to submit data other than certified cost or pricing data,
as defined in FAR 2.101. In accordance with FAR 15.403-3(a)(1)(ii), the
contracting officer shall require submission of data other than
certified cost or pricing data from the offeror, to the extent
necessary to determine a fair and reasonable price.
[[Page 28789]]
(i) No further approval is required to request data other than
certified cost or pricing data from the Canadian Commercial Corporation
in the following circumstances:
(A) In a solicitation for a sole source acquisitions that is--
(1) Cost-reimbursement, if the contract value is expected to exceed
$700,000; or
(2) Fixed-price, if the contract value is expected to exceed $500
million.
(B) If the Canadian Commercial Corporation submits the only offer
in response to a competitive solicitation that meets the thresholds
specified in paragraph (c)(2)(i)(A) of this section.
(C) For modifications that exceed $150,000 in contracts that meet
the criteria in paragraph (c)(2)(i)(A) or (B) of this section.
(D) In competitive solicitations in which data other than certified
cost or pricing data are required from all offerors.
(ii) In any circumstances other than those specified in paragraph
(c)(2)(i) of this section, the contracting officer shall only require
data other than certified cost or pricing data from the Canadian
Commercial Corporation if the head of the contracting activity, or
designee no lower than two levels above the contracting officer,
determines that data other than certified cost or pricing data are
needed (or in the case of modifications that it is reasonably certain
that data other than certified cost or pricing data will be needed) in
order to determine that the price is fair and reasonable) (see FAR
15.403-3(a).
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.215.7003 [Amended]
0
9. Amend section 252.215-7003 by, in the introductory text, removing
``As prescribed at 215.408(5)(i),'' and adding ``As prescribed at
215.408(3)(i),'' in its place.
0
10. Amend section 252.215-7004 by--
0
a. In the introductory text, removing ``As prescribed at
215.408(5)(ii),'' and adding ``As prescribed at 215.408(3)(ii),'' in
its place.
0
b. Removing the clause date of ``(JUL 2012)'' and adding ``(DATE)'' in
its place.
0
c. In paragraph (b) introductory text, removing ``the simplified
acquisition threshold'' and adding ``$150,000'' in its place.
0
d. Adding introductory text after the clause date and before paragraph
(a) to read as follows:
252.215.7004 Requirement for Submission of Data Other Than Certified
Cost or Pricing Data--Modifications--Canadian Commercial Corporation.
* * * * *
This clause, in lieu of FAR 52.215-21, applies only if award is to
the Canadian Commercial Corporation.
* * * * *
252.215-7007 [Amended]
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11. Amend section 252.215-7007 by, in the introductory text, removing
``As prescribed at 215.408(3),'' and adding ``As prescribed at 215.371-
6,'' in its place.
252.215-7008
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12. Revise section 252.215-7008 to read as follows:
252.215-7008 Only one offer.
As prescribed at 215.408(4), use the following provision:
ONLY ONE OFFER (DATE)
(a) After initial submission of offers, the Offeror agrees to
submit any subsequently requested additional cost or pricing data if
the Contracting Officer notifies the Offeror that--
(1) Only one offer was received; and
(2) Additional cost or pricing data is required in order to
determine whether the price is fair and reasonable or to comply with
the statutory requirement for certified cost or pricing data (10
U.S.C. 2306a and FAR 15.403-3).
(b) Requirement for submission of additional cost or pricing
data. Except as provided in paragraph (c) of this provision, the
Offeror shall submit additional cost or pricing data as follows:
(1) If the Contracting Officer notifies the Offeror that
additional cost or pricing data are required in accordance with
paragraph (a) of this clause, the data shall be certified unless an
exception applies (FAR 15.403-1(b)).
(2) Exceptions from certified cost or pricing data. In lieu of
submitting certified cost or pricing data, the Offeror may submit a
written request for exception by submitting the information
described in the following paragraphs. The Contracting Officer may
require additional supporting information, but only to the extent
necessary to determine whether an exception should be granted, and
whether the price is fair and reasonable.
(i) Identification of the law or regulation establishing the
price offered. If the price is controlled under law by periodic
rulings, reviews, or similar actions of a governmental body, attach
a copy of the controlling document, unless it was previously
submitted to the contracting office.
(ii) Commercial item exception. For a commercial item exception,
the Offeror shall submit, at a minimum, information on prices at
which the same item or similar items have previously been sold in
the commercial market that is adequate for evaluating the
reasonableness of the price for this acquisition. Such information
may include--
(A) For catalog items, a copy of or identification of the
catalog and its date, or the appropriate pages for the offered
items, or a statement that the catalog is on file in the buying
office to which the proposal is being submitted. Provide a copy or
describe current discount policies and price lists (published or
unpublished), e.g., wholesale, original equipment manufacturer, or
reseller. Also explain the basis of each offered price and its
relationship to the established catalog price, including how the
proposed price relates to the price of recent sales in quantities
similar to the proposed quantities;
(B) For market-priced items, the source and date or period of
the market quotation or other basis for market price, the base
amount, and applicable discounts. In addition, describe the nature
of the market; or
(C) For items included on an active Federal Supply Service
Multiple Award Schedule contract, proof that an exception has been
granted for the schedule item.
(3) The Offeror grants the Contracting Officer or an authorized
representative the right to examine, at any time before award,
books, records, documents, or other directly pertinent records to
verify any request for an exception under this provision, and the
reasonableness of price. For items priced using catalog or market
prices, or law or regulation, access does not extend to cost or
profit information or other data relevant solely to the Offeror's
determination of the prices to be offered in the catalog or
marketplace.
(4) Requirements for certified cost or pricing data. If the
Offeror is not granted an exception from the requirement to submit
certified cost or pricing data, the following applies:
(i) The Offeror shall prepare and submit certified cost or
pricing data and supporting attachments in accordance with the
instructions contained in Table 15-2 of FAR 15.408, which is
incorporated by reference with the same force and effect as though
it were inserted here in full text. The instructions in Table 15-2
are incorporated as a mandatory format to be used, unless the
Contracting Officer and the Offeror agree to a different format.
(ii) As soon as practicable after agreement on price, but before
contract award (except for unpriced actions such as letter
contracts), the offeror shall submit a Certificate of Current Cost
or Pricing Data, as prescribed by FAR 15.406-2.
(c) If the Offeror is the Canadian Commercial Corporation,
certified cost or pricing data are not required. If the Contracting
Officer notifies the Canadian Commercial Corporation that additional
data other than certified cost or pricing data are required in
accordance with 225.870-4(c), the Canadian Commercial Corporation
shall obtain and provide the following:
(1) Profit rate or fee (as applicable).
(2) Analysis provided by Public Works and Government Services
Canada to the Canadian Commercial Corporation to determine a fair
and reasonable price (comparable to the analysis required at FAR
15.404-1).
(3) Data other than certified cost or pricing data necessary to
permit a determination by the U.S. Contracting Officer that the
[[Page 28790]]
proposed price is fair and reasonable [U.S. Contracting Officer to
provide description of the data required in accordance with FAR
15.403-3(a)(1) with the notification].
(4) As specified in FAR 15.403-3(a)(4), an offeror who does not
comply with a requirement to submit data that the U.S. Contracting
Officer has deemed necessary to determine price reasonableness or
cost realism is ineligible for award unless the head of the
contracting activity determines that it is in the best interest of
the Government to make the award to that offeror.
(d) If negotiations are conducted, the negotiated price should
not exceed the offered price.
(End of provision)
[FR Doc. 2013-11399 Filed 5-15-13; 8:45 am]
BILLING CODE 5001-06-P
