Defense Federal Acquisition Regulation Supplement: Independent Research and Development Expenses (DFARS Case 2016-D017), 78014-78015 [2016-26369]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 81, Number 214 (Friday, November 4, 2016)]
[Proposed Rules]
[Pages 78014-78015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26369]



Federal Register / Vol. 81, No. 214 / Friday, November 4, 2016 / 
Proposed Rules

[[Page 78014]]


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

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 215 and 252

[Docket DARS-2016-0004]
RIN 0750-AI84


Defense Federal Acquisition Regulation Supplement: Independent 
Research and Development Expenses (DFARS Case 2016-D017)

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 ensure that substantial future 
independent research and development expenses, as a means to reduce 
evaluated bid prices in competitive source selections, are evaluated in 
a uniform way during competitive source selections.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before January 3, 2017, to be considered 
in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2016-D017, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 
Search for ``DFARS Case 2016-D017.'' Select ``Comment Now'' and follow 
the instructions provided to submit a comment. Please include ``DFARS 
Case 2016-D017'' on any attached documents.
    [cir] Email: osd.dfars@mail.mil. Include DFARS Case 2016-D017 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Mr. Mark 
Gomersall, OUSD(AT&L)DPAP/DARS, Room 3B941, 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, telephone 571-372-
6099.

SUPPLEMENTARY INFORMATION: 

I. Background

    As expressed in the ``Implementation Directive for Better Buying 
Power 3.0--Achieving Dominant Capabilities through Technical Excellence 
and Innovation,'' dated April 9, 2015, the Under Secretary of Defense 
for Acquisition, Technology, and Logistics noted a concern when 
``promised future IRAD [independent research and development] 
expenditures are used to substantially reduce the bid price on 
competitive procurements. In these cases, development price proposals 
are reduced by using a separate source of government funding (allowable 
IRAD overhead expenses spread across the total business) to gain a 
price advantage in a specific competitive bid. This is not the intended 
purpose of making IRAD an allowable cost.''
    DoD published an advanced notice of proposed rulemaking (ANPR) in 
the Federal Register at 81 FR 6488 on February 8, 2016, to seek 
information to assist in the development of a revision to the DFARS to 
ensure that substantial future independent research and development 
(IR&D) expenses, used as a means to reduce evaluated bid prices, are 
evaluated in a uniform way during competitive source selections. A 
public meeting was held on March 3, 2016, to hear the views of 
interested parties.

II. Discussion and Analysis

    DoD is proposing to amend the DFARS to require contracting officers 
to adjust the total evaluated price of major defense acquisition 
programs and major automated information systems proposals, for 
evaluation purposes only, to include the amount by which the offerors 
propose that future independent research and development investments 
reduce the price of the proposals.

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

    This rule proposes to create a new clause: DFARS 252.215-70XX, 
Notification of Inclusion of Evaluation Criteria for Reliance Upon 
Future Government-Reimbursed Independent Research and Development 
Investments. DoD plans not to apply this clause to contracts at or 
below the simplified acquisition threshold or to commercial items, 
including commercially available off-the-shelf items.

IV. Executive Orders 12866 and 13563

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

V. Regulatory Flexibility Act

    DoD does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act 5 U.S.C. 601, et seq. 
However, an initial regulatory flexibility analysis has been prepared 
and is summarized as follows:
    DoD is proposing to amend the DFARS to require contracting officers 
to adjust the total evaluated price of major defense acquisition 
programs and major automated information systems proposals, for 
evaluation purposes only, to include the amount by which the offerors 
propose that future independent research and development investments 
reduce the price of the proposals.
    The objective of this rule is to ensure that substantial future 
independent research and development expenses, as a means to reduce 
evaluated bid prices in competitive source selections, are evaluated in 
a uniform way during competitive source selections.
    The rule has limited application and will apply only to major 
defense acquisition programs (as defined in 10 U.S.C. 2430) and major 
automated information systems acquisitions (as defined in 10 U.S.C. 
2445a). This rule should not impact small entities, since major defense 
acquisition programs and major automated information systems 
acquisition policies normally apply to large contractors, because the 
cost, magnitude, and production requirements of such programs are 
generally beyond the capability or capacity of small entities as prime 
contractors.
    There is no change to reporting and recordkeeping as a result of 
this rule. The rule does not duplicate, overlap, or conflict with any 
other Federal rules. There are no known significant alternative 
approaches to the rule that would meet the requirements.
    DoD invites comments from small business concerns and other 
interested

[[Page 78015]]

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 2016-D017), in 
correspondence.

VI. Paperwork Reduction Act

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

List of Subjects in 48 CFR Parts 215 and 252

    Government procurement.

Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 215 and 252 are proposed to be amended as 
follows:


0
1. The authority citation for 48 CFR parts 215 and 252 continues to 
read as follows:

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

PART 215--CONTRACTING BY NEGOTIATION

0
2. In section 215.305, add paragraph (a)(1) to read as follows:


215.305   Proposal evaluation.

    (a)(1) Cost or price evaluation. For major defense acquisition 
programs and major automated information systems in a development 
phase, when an offeror proposes a cost or price that is reduced due to 
reliance upon future Government-reimbursed independent research and 
development projects, the contracting officer shall, for evaluation 
purposes only, adjust the total evaluated cost or price of the proposal 
to include the amount by which such investments reduce the price of the 
proposal.
* * * * *
0
3. Amend section 215.408 by--
0
a. Redesignating paragraphs (2) through (5) as paragraphs (3) through 
(6), respectively; and
0
b. Adding a new paragraph (2) to read as follows:


215.408   Solicitation provisions and contract clauses.

* * * * *
    (2) Use the provision at 252.215-70XX, Notification of Inclusion of 
Evaluation Criteria for Reliance Upon Future Government-Reimbursed 
Independent Research and Development Investments, in all competitive 
solicitations for major defense acquisition programs (as defined in 10 
U.S.C. 2430) and major automated information systems acquisitions (as 
defined in 10 U.S.C. 2445a) in a development phase.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Add section 252.215-70XX to read as follows:


252.215-70XX   Notification of Inclusion of Evaluation Criteria for 
Reliance Upon Future Government-Reimbursed Independent Research and 
Development Investments.

    As prescribed in 215.408(2), use the following provision:

Notification of Inclusion of Evaluation Criteria for Reliance Upon 
Future Government-Reimbursed Independent Research and Development 
Investments (Date)

    (a) This solicitation includes price evaluation criteria that 
consider the Offeror's intended use of future Government-reimbursed 
independent research and development (IR&D) projects if the Offeror 
proposes a cost or price that is reduced due to reliance upon 
expected future Government-reimbursed IR&D projects.
    (b) If the Offeror, in the performance of any contract resulting 
from this solicitation, intends to use IR&D to meet the contract 
requirements, the Offeror's proposal shall include documentation in 
its price proposal to support this proposed approach.
    (c) For evaluation purposes only, the Contracting Officer will 
adjust the Offeror's total evaluated cost or price to include the 
amount that such future IR&D investments reduce the price of the 
proposal.
    (End of provision)

[FR Doc. 2016-26369 Filed 11-3-16; 8:45 am]
 BILLING CODE 5001-06-P