Defense Federal Acquisition Regulation Supplement: Promoting Voluntary Post-Award Disclosure of Defective Pricing (DFARS Case 2015-D030), 19645-19647 [2018-09489]
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Federal Register / Vol. 83, No. 87 / Friday, May 4, 2018 / Rules and Regulations
office. The Defense Contract
Management Agency (DCMA) performs
approximately 128 CPSRs per year. In
addition, the contract administration
office validates about 256 purchasing
systems per year. There is also a quality
management system audit of the
purchasing system, which is performed
on a risk-based basis at least once every
three years. There are approximately
3,292 higher-level quality contractors,
resulting in 1,097 possible reviews per
year. Adding the purchasing system
reviews and the quality management
system audits totals 1,481 reviews (128
+ 256 + 1097). However, DCMA
estimates that it is likely that contractors
using ‘‘contractor-approved’’ sources,
would be limited to 10 percent or less
of the contractors subject to these audits
and reviews, i.e. not more than 148
contractors. DCMA further estimates
that of those using ‘‘contractorapproved’’ sources, not more than 15
(10 percent) per year would result in
issues or disapprovals by the
Government.
This rule does not impose any
reporting, recordkeeping, or other
compliance requirements other than
being subject to approval by DoD if the
contractor or subcontractor identifies a
contractor-approved supplier of
electronic parts and the Government
selects the contractor for review and
audit. Since contractor selection of
contractor-approved sources was
already subject of review and audit,
addition of ‘‘and approval’’ does not
change much, because if the
Government reviewed and audited a
source and found a serious problem, the
Government would require corrective
action to prevent entry of such
electronic parts into the supply chain.
Furthermore, the contractor may
proceed with the acquisition of
electronic parts from a contractorapproved supplier unless otherwise
notified by DoD.
DoD was unable to identify any
significant alternatives that would
reduce the economic impact on small
entities and still fulfill the requirements
of the statute. However, DoD does not
expect this rule to have any significant
economic impact on small entities,
because it does not impose any new
requirements on contractors or
subcontractors. Contractors may
proceed with the acquisition of
electronic parts from a contractorapproved supplier unless otherwise
notified by DoD.
VII. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
VerDate Sep<11>2014
16:15 May 03, 2018
Jkt 244001
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 212,
246, and 252
Government procurement.
Amy G. Williams,
Deputy, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 212, 246, and
252 are amended as follows:
■ 1. The authority citation for parts 212,
246, and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
212.301
[Amended]
2. In section 212.301, amend
paragraph (f)(xix)(C) by removing ‘‘(Pub.
L. 113–291)’’ and adding ‘‘(Pub. L. 113–
291 and section 885 of the National
Defense Authorization Act for Fiscal
Year 2016 (Pub. L. 114–92))’’ in its
place.
■
PART 246—QUALITY ASSURANCE
246.870–0
3. Amend section 246.870–0, by
removing ‘‘(Pub. L. 113–291)’’ and
adding ‘‘(Pub. L. 113–291 and section
885 of the National Defense
Authorization Act for Fiscal Year 2016
(Pub. L. 114–92))’’ in its place.
■ 4. In section 246.870–2, revise
paragraph (a)(1)(ii)(C) to read as follows:
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
5. Amend section 252.246–7008 by—
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Frm 00043
Fmt 4700
252.246–7008
Sources of Electronic Parts.
*
*
*
*
*
(b) * * *
(2) * * *
(iii) The Contractor’s selection of such
contractor-approved suppliers is subject
to review, audit, and approval by the
Government, generally in conjunction
with a contractor purchasing system
review or other surveillance of
purchasing practices by the contract
administration office, or if the
Government obtains credible evidence
that a contractor-approved supplier has
provided counterfeit parts. The
Contractor may proceed with the
acquisition of electronic parts from a
contractor-approved supplier unless
otherwise notified by DoD; or
*
*
*
*
*
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 215
[Docket DARS–2015–0051]
Policy.
(a) * * *
(1) * * *
(ii) * * *
(C) The selection of such contractorapproved suppliers is subject to review,
audit, and approval by the Government,
generally in conjunction with a
contractor purchasing system review or
other surveillance of purchasing
practices by the contract administration
office, or if the Government obtains
credible evidence that a contractorapproved supplier has provided
counterfeit parts. The contractor may
proceed with the acquisition of
electronic parts from a contractorapproved supplier unless otherwise
notified by DoD.
*
*
*
*
*
■
a. Removing the clause date ‘‘(DEC
2017)’’ and adding ‘‘(MAY 2018)’’ in its
place;
■ b. In paragraph (b) introductory text,
removing ‘‘(Pub. L. 113–291)’’ and
adding ‘‘(Pub. L. 113–291 and section
885 of the National Defense
Authorization Act for Fiscal Year 2016
(Pub. L. 114–92))’’ in its place; and
■ c. Revising paragraph (b)(2)(iii).
The revision reads as follows:
■
[FR Doc. 2018–09491 Filed 5–3–18; 8:45 am]
[Amended]
■
246.870–2
19645
Sfmt 4700
RIN 0750–AI75
Defense Federal Acquisition
Regulation Supplement: Promoting
Voluntary Post-Award Disclosure of
Defective Pricing (DFARS Case 2015–
D030)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to state that, in the interest of
promoting voluntary contractor
disclosures of defective pricing
identified by the contractor after
contract award, DoD contracting officers
have discretion to request a limitedscope or full-scope audit, as appropriate
for the circumstances.
DATES: Effective May 4, 2018.
SUMMARY:
E:\FR\FM\04MYR1.SGM
04MYR1
19646
Federal Register / Vol. 83, No. 87 / Friday, May 4, 2018 / Rules and Regulations
Mr.
Mark Gomersall, telephone 571–372–
6099.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Background
DoD published a proposed rule in the
Federal Register at 80 FR 72669 on
November 20, 2015, to amend the
DFARS to indicate that DoD contracting
officers have discretion to request a
limited- or full-scope audit, as
appropriate for the circumstances, when
contractors voluntarily disclose
defective pricing after contract award. In
response to the Better Buying Power 2.0
initiative on ‘‘Eliminating Requirements
Imposed on Industry where Costs
Outweigh Benefits,’’ contractors
recommended several changes to 41
U.S.C. chapter 35, Truthful Cost or
Pricing Data (formerly the Truth in
Negotiations Act) and to the related
DFARS guidance. Specifically,
contractors recommended that DoD
clarify policy guidance to reduce
repeated submissions of certified cost or
pricing data. Frequent submissions of
such data are used as a defense against
defective pricing claims by DoD after
contract award, since data that are
frequently updated are less likely to be
considered outdated or inaccurate and,
therefore, defective. Better Buying
Power 3.0 called for a revision of
regulatory guidance regarding the
requirement for contracting officers to
request an audit even if a contractor
voluntarily discloses defective pricing
after contract award.
One respondent submitted a public
comment in response to the proposed
rule.
II. Discussion and Analysis
DoD reviewed the public comment in
the development of the final rule. A
discussion of the comment and changes
made to the rule as a result of the
comment is provided, as follows:
amozie on DSK3GDR082PROD with RULES
A. Summary of Significant Changes
From the Proposed Rule
One change was made to the rule as
a result of the public comment to
remove the mandatory requirement to
conduct an audit in all cases of a
contractor’s voluntary disclosure of
defective pricing.
B. Analysis of Public Comment
Comment: The respondent
recommended that ‘‘shall’’ be replaced
by the word ‘‘may’’ concerning the
requirement to request a limited-scope
audit as proposed at DFARS 215.407–
1(c)(i). The respondent stated that the
study entitled ‘‘Eliminating
Requirements Imposed on Industry
VerDate Sep<11>2014
16:15 May 03, 2018
Jkt 244001
where Costs Outweigh Benefits’’
recommended that DoD not impose a
mandatory requirement on itself to
conduct an audit in all cases of a
contractor’s voluntary disclosure of
defective pricing, because such a
mandatory requirement provides no
discretion for contracting officers not to
request an audit if in their judgment an
audit is not required by the
circumstances. However, instead of
removing this mandatory requirement as
recommended by the study, the
proposed rule would change the DFARS
from ‘‘shall request an audit. . .’’ to
‘‘shall request a limited scope
audit. . . .’’ Thus, the proposed
language still provides a strong
disincentive to contractors to
voluntarily disclose defective pricing
and it still imposes a mandatory
requirement on contracting officers that
may not be in the best interests of the
DoD in all circumstances.
Response: The final rule is revised to
remove the mandatory requirement to
conduct an audit in all cases of a
contractor’s voluntary disclosure of
defective pricing. However, in order to
calculate appropriate price reductions
as required by 10 U.S.C. 2306a(e), it is
necessary that contracting officers, at a
minimum, discuss the disclosure with
the Defense Contract Audit Agency
(DCAA) to determine the completeness
of the contractor’s voluntary disclosure
and the accuracy of the contractor’s cost
impact calculation for the affected
contract, and the potential impact on
existing contracts, task or delivery
orders, or other proposals the contractor
has submitted to the Government. This
discussion will assist the contracting
officer in determining the involvement
of DCAA, which could be a limitedscope audit (e.g., limited to the affected
cost elements of the defective pricing
disclosure), a full-scope audit, or
technical assistance, as appropriate for
the circumstances (e.g., nature or dollar
amount of the defective pricing
disclosure).
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
The requirement for submission of
certified cost or pricing data does not
apply to contracts at or below the
simplified acquisition threshold or to
commercial items, including
commercially available off-the-shelf
items. Therefore, this rule is not
applicable to those classes of contracts.
PO 00000
Frm 00044
Fmt 4700
Sfmt 4700
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
V. Executive Order 13771
This rule is not subject to E.O. 13771,
Reducing Regulation and Controlling
Regulatory Costs, because this rule is
not a significant regulatory action under
E.O. 12866.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis
(FRFA) has been prepared consistent
with the Regulatory Flexibility Act, 5
U.S.C. 691, et seq. The FRFA is
summarized as follows:
The objective of this rule is to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
indicate that, in the interest of
promoting voluntary contractor
disclosures of defective pricing
identified by the contractor after
contract award, DoD contracting officers
have discretion to request a limitedscope or full-scope audit, as appropriate
for the circumstances. This rule will
apply to all DoD contractors, including
small entities, who are required to
submit certified cost or pricing data.
There were no significant issues
raised by the public in response to the
initial regulatory flexibility analysis.
The number of small entities affected
by this rule is unknown as this
information is not available in the
Federal Procurement Data System or
other central repository. However, DoD
anticipates that this rule could have a
positive economic impact. If those small
entities usually submit cost or pricing
data frequently in order to avoid
defective pricing claims, then this rule
may encourage them to reduce the
number of such submissions.
There is no change to reporting or
recordkeeping as a result of this rule.
The rule does not duplicate, overlap, or
conflict with any other Federal rules,
E:\FR\FM\04MYR1.SGM
04MYR1
Federal Register / Vol. 83, No. 87 / Friday, May 4, 2018 / Rules and Regulations
and there are no known significant
alternative approaches to the rule that
would meet the requirements.
VII. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Part 215
Government procurement.
defined in 242.7100 and does not waive
the Government entitlement to the
recovery of any overpayment plus
interest on the overpayments in
accordance with FAR 15.407–1(b)(7).
(iii) Voluntary disclosure of defective
pricing does not waive the
Government’s rights to pursue defective
pricing claims on the affected contract
or any other Government contract.
[FR Doc. 2018–09489 Filed 5–3–18; 8:45 am]
BILLING CODE 5001–06–P
Amy G. Williams,
Deputy, Defense Acquisition Regulations
System.
SURFACE TRANSPORTATION BOARD
49 CFR Part 1040
Therefore, 48 CFR part 215 is
amended as follows:
[Docket No. EP 726]
PART 215—CONTRACTING BY
NEGOTIATION
On-Time Performance Under Section
213 of The Passenger Rail Investment
and Improvement Act of 2008
1. The authority citation for part 215
continues to read as follows:
AGENCY:
■
ACTION:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
2. Add sections 215.407 and 215.407–
1 to subpart 215.4 to read as follows:
■
215.407
Special cost or pricing areas.
amozie on DSK3GDR082PROD with RULES
215.407–1 Defective certified cost or
pricing data.
(c)(i) When a contractor voluntarily
discloses defective pricing after contract
award, the contracting officer shall
discuss the disclosure with the Defense
Contract Audit Agency (DCAA). This
discussion will assist in the contracting
officer determining the involvement of
DCAA, which could be a limited-scope
audit (e.g., limited to the affected cost
elements of the defective pricing
disclosure), a full-scope audit, or
technical assistance as appropriate for
the circumstances (e.g., nature or dollar
amount of the defective pricing
disclosure). At a minimum, the
contracting officer shall discuss with
DCAA the following:
(A) Completeness of the contractor’s
voluntary disclosure on the affected
contract.
(B) Accuracy of the contractor’s cost
impact calculation for the affected
contract.
(C) Potential impact on existing
contracts, task or deliver orders, or other
proposals the contractor has submitted
to the Government.
(ii) Voluntary disclosure of defective
pricing is not a voluntary refund as
VerDate Sep<11>2014
16:15 May 03, 2018
Jkt 244001
Surface Transportation Board.
Final rule.
The Surface Transportation
Board (Board) is removing its final rule
concerning on-time performance of
intercity passenger rail service because
it was invalidated upon judicial review.
DATE: This final rule is effective May 4,
2018.
FOR FURTHER INFORMATION CONTACT:
Scott M. Zimmerman: (202) 245–0386.
Federal Information Relay Service
(FIRS) for the hearing impaired: (800)
877–8339.
SUPPLEMENTARY INFORMATION: On May
15, 2015, the Board instituted a
rulemaking proceeding in this docket to
define ‘‘on-time performance’’ for
intercity passenger trains for purposes
of Section 213 of the Passenger Rail
Investment and Improvement Act of
2008 (PRIIA), 49 U.S.C. 24308(f). See 80
FR 28928. The Board adopted its final
rule in 49 CFR part 1040 on July 28,
2016, and the rule took effect on August
27, 2016. See 81 FR 51343.
Petitions for judicial review of the
final rule were filed in the U.S. Courts
of Appeals for the Eighth Circuit and the
District of Columbia Circuit, and were
ultimately consolidated in the Eighth
Circuit. The Court of Appeals found that
the Board lacked authority to
promulgate a final rule defining on-time
performance under PRIIA and vacated
the Board’s rule. See Union Pac. R.R. v.
Surface Transp. Bd., 863 F.3d 816 (8th
SUMMARY:
PO 00000
Frm 00045
Fmt 4700
Sfmt 9990
19647
Cir. 2017). The National Railroad
Passenger Corporation (Amtrak) and
certain passenger organizations filed
petitions for certiorari with the U.S.
Supreme Court, which declined to
review the Eighth Circuit’s ruling.
The Board’s rule is therefore invalid
and 49 CFR part 1040 will be removed.
Because this action is based on a final
court determination that the rule being
eliminated is invalid, the Board finds
good cause to dispense with notice and
comment under the Administrative
Procedure Act (APA). See 5 U.S.C.
553(b)(B).
The Regulatory Flexibility Act (RFA),
as amended by the Small Business
Regulatory Enforcement Fairness Act of
1996, 5 U.S.C. 601–612, generally
requires an agency to prepare a
regulatory flexibility analysis of any rule
subject to notice and comment
rulemaking requirements, unless the
agency certifies that the rule will not
have a significant economic impact on
a substantial number of small entities.
Because the Board has determined that
notice and comment are not required
under the APA for this rulemaking, the
requirements of the RFA do not apply.
This final rule does not contain a new
or amended information collection
requirement subject to the Paperwork
Reduction Act of 1995, 44 U.S.C. 3501–
3521.
List of Subjects in 49 CFR Part 1040
Mass transportation, Railroads.
It is ordered:
1. Part 1040 is removed and notice
will be published in the Federal
Register.
2. This decision is effective on May 4,
2018.
Decided: April 30, 2018.
By the Board, Board Members Begeman
and Miller.
Jeffrey Herzig,
Clearance Clerk.
PART 1040 [REMOVED AND
RESERVED]
For the reasons set forth in the
preamble, and under the authority of 49
U.S.C. 1321(a), the Surface
Transportation Board removes and
reserves 49 CFR part 1040.
■
[FR Doc. 2018–09558 Filed 5–3–18; 8:45 am]
BILLING CODE 4915–01–P
E:\FR\FM\04MYR1.SGM
04MYR1
]]>Agencies
[Federal Register Volume 83, Number 87 (Friday, May 4, 2018)]
[Rules and Regulations]
[Pages 19645-19647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09489]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 215
[Docket DARS-2015-0051]
RIN 0750-AI75
Defense Federal Acquisition Regulation Supplement: Promoting
Voluntary Post-Award Disclosure of Defective Pricing (DFARS Case 2015-
D030)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to state that, in the
interest of promoting voluntary contractor disclosures of defective
pricing identified by the contractor after contract award, DoD
contracting officers have discretion to request a limited-scope or
full-scope audit, as appropriate for the circumstances.
DATES: Effective May 4, 2018.
[[Page 19646]]
FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, telephone 571-372-
6099.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 80 FR
72669 on November 20, 2015, to amend the DFARS to indicate that DoD
contracting officers have discretion to request a limited- or full-
scope audit, as appropriate for the circumstances, when contractors
voluntarily disclose defective pricing after contract award. In
response to the Better Buying Power 2.0 initiative on ``Eliminating
Requirements Imposed on Industry where Costs Outweigh Benefits,''
contractors recommended several changes to 41 U.S.C. chapter 35,
Truthful Cost or Pricing Data (formerly the Truth in Negotiations Act)
and to the related DFARS guidance. Specifically, contractors
recommended that DoD clarify policy guidance to reduce repeated
submissions of certified cost or pricing data. Frequent submissions of
such data are used as a defense against defective pricing claims by DoD
after contract award, since data that are frequently updated are less
likely to be considered outdated or inaccurate and, therefore,
defective. Better Buying Power 3.0 called for a revision of regulatory
guidance regarding the requirement for contracting officers to request
an audit even if a contractor voluntarily discloses defective pricing
after contract award.
One respondent submitted a public comment in response to the
proposed rule.
II. Discussion and Analysis
DoD reviewed the public comment in the development of the final
rule. A discussion of the comment and changes made to the rule as a
result of the comment is provided, as follows:
A. Summary of Significant Changes From the Proposed Rule
One change was made to the rule as a result of the public comment
to remove the mandatory requirement to conduct an audit in all cases of
a contractor's voluntary disclosure of defective pricing.
B. Analysis of Public Comment
Comment: The respondent recommended that ``shall'' be replaced by
the word ``may'' concerning the requirement to request a limited-scope
audit as proposed at DFARS 215.407-1(c)(i). The respondent stated that
the study entitled ``Eliminating Requirements Imposed on Industry where
Costs Outweigh Benefits'' recommended that DoD not impose a mandatory
requirement on itself to conduct an audit in all cases of a
contractor's voluntary disclosure of defective pricing, because such a
mandatory requirement provides no discretion for contracting officers
not to request an audit if in their judgment an audit is not required
by the circumstances. However, instead of removing this mandatory
requirement as recommended by the study, the proposed rule would change
the DFARS from ``shall request an audit. . .'' to ``shall request a
limited scope audit. . . .'' Thus, the proposed language still provides
a strong disincentive to contractors to voluntarily disclose defective
pricing and it still imposes a mandatory requirement on contracting
officers that may not be in the best interests of the DoD in all
circumstances.
Response: The final rule is revised to remove the mandatory
requirement to conduct an audit in all cases of a contractor's
voluntary disclosure of defective pricing. However, in order to
calculate appropriate price reductions as required by 10 U.S.C.
2306a(e), it is necessary that contracting officers, at a minimum,
discuss the disclosure with the Defense Contract Audit Agency (DCAA) to
determine the completeness of the contractor's voluntary disclosure and
the accuracy of the contractor's cost impact calculation for the
affected contract, and the potential impact on existing contracts, task
or delivery orders, or other proposals the contractor has submitted to
the Government. This discussion will assist the contracting officer in
determining the involvement of DCAA, which could be a limited-scope
audit (e.g., limited to the affected cost elements of the defective
pricing disclosure), a full-scope audit, or technical assistance, as
appropriate for the circumstances (e.g., nature or dollar amount of the
defective pricing disclosure).
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
The requirement for submission of certified cost or pricing data
does not apply to contracts at or below the simplified acquisition
threshold or to commercial items, including commercially available off-
the-shelf items. Therefore, this rule is not applicable to those
classes of contracts.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
V. Executive Order 13771
This rule is not subject to E.O. 13771, Reducing Regulation and
Controlling Regulatory Costs, because this rule is not a significant
regulatory action under E.O. 12866.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis (FRFA) has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 691, et seq.
The FRFA is summarized as follows:
The objective of this rule is to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to indicate that, in the
interest of promoting voluntary contractor disclosures of defective
pricing identified by the contractor after contract award, DoD
contracting officers have discretion to request a limited-scope or
full-scope audit, as appropriate for the circumstances. This rule will
apply to all DoD contractors, including small entities, who are
required to submit certified cost or pricing data.
There were no significant issues raised by the public in response
to the initial regulatory flexibility analysis.
The number of small entities affected by this rule is unknown as
this information is not available in the Federal Procurement Data
System or other central repository. However, DoD anticipates that this
rule could have a positive economic impact. If those small entities
usually submit cost or pricing data frequently in order to avoid
defective pricing claims, then this rule may encourage them to reduce
the number of such submissions.
There is no change to reporting or recordkeeping as a result of
this rule. The rule does not duplicate, overlap, or conflict with any
other Federal rules,
[[Page 19647]]
and there are no known significant alternative approaches to the rule
that would meet the requirements.
VII. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Part 215
Government procurement.
Amy G. Williams,
Deputy, Defense Acquisition Regulations System.
Therefore, 48 CFR part 215 is amended as follows:
PART 215--CONTRACTING BY NEGOTIATION
0
1. The authority citation for part 215 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Add sections 215.407 and 215.407-1 to subpart 215.4 to read as
follows:
215.407 Special cost or pricing areas.
215.407-1 Defective certified cost or pricing data.
(c)(i) When a contractor voluntarily discloses defective pricing
after contract award, the contracting officer shall discuss the
disclosure with the Defense Contract Audit Agency (DCAA). This
discussion will assist in the contracting officer determining the
involvement of DCAA, which could be a limited-scope audit (e.g.,
limited to the affected cost elements of the defective pricing
disclosure), a full-scope audit, or technical assistance as appropriate
for the circumstances (e.g., nature or dollar amount of the defective
pricing disclosure). At a minimum, the contracting officer shall
discuss with DCAA the following:
(A) Completeness of the contractor's voluntary disclosure on the
affected contract.
(B) Accuracy of the contractor's cost impact calculation for the
affected contract.
(C) Potential impact on existing contracts, task or deliver orders,
or other proposals the contractor has submitted to the Government.
(ii) Voluntary disclosure of defective pricing is not a voluntary
refund as defined in 242.7100 and does not waive the Government
entitlement to the recovery of any overpayment plus interest on the
overpayments in accordance with FAR 15.407-1(b)(7).
(iii) Voluntary disclosure of defective pricing does not waive the
Government's rights to pursue defective pricing claims on the affected
contract or any other Government contract.
[FR Doc. 2018-09489 Filed 5-3-18; 8:45 am]
BILLING CODE 5001-06-P
