Defense Federal Acquisition Regulation Supplement: Market Research and Value Analysis for the Determination of Price Reasonableness (DFARS Case 2019-D027), 50812-50814 [2019-20558]
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khammond on DSKJM1Z7X2PROD with PROPOSALS
50812
Federal Register / Vol. 84, No. 187 / Thursday, September 26, 2019 / Proposed Rules
impact on a substantial number of small
entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq., because the rule is not creating
any new requirements for contractors or
changing any existing policies and
practices. However, an initial regulatory
flexibility analysis has been performed
and is summarized as follows:
DoD is proposing to amend the
Defense Federal Acquisition Regulation
Supplement (DFARS) to implement
section 815 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2016 (Pub. L. 114–92), which
repeals and replaces section 845 of the
NDAA for FY 1994 (Pub. L. 103–160; 10
U.S.C. 2371 note) with 10 U.S.C. 2371b.
The objective of this proposed rule is
to clarify for contracting officers the
criteria that must be met to award,
without competition, a follow-on
production contract associated with a
prototype project transaction agreement.
DoD does not collect data on the
number of follow-on production
contracts that are awarded annually and
associated with a prototype project
transaction agreement made under the
authority of 10 U.S.C. 2371b; therefore,
DoD is unable to estimate the number of
small entities that will be impacted by
this rule. However, DoD does not expect
small business entities to be
significantly impacted by this rule,
because the rule does not change any
existing processes or impose any
additional burdens. Instead, the rule
simply clarifies instructions to
contracting officers on the criteria that
must be met in order to award an
associated follow-on production
contract without using competitive
procedures.
This proposed rule does not include
any new reporting, recordkeeping, or
other compliance requirements for small
businesses.
This rule does not duplicate, overlap,
or conflict with any other Federal rules.
There are no known alternatives
available to meet the objectives of the
statutes.
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 2019–D031) in
correspondence.
VII. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
VerDate Sep<11>2014
17:55 Sep 25, 2019
Jkt 247001
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 206
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR part 206 is
proposed to be amended as follows:
PART 206—COMPETITION
REQUIREMENTS
1. The authority citation for 48 CFR
part 206 continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 C
chapter 1.
2. Amend section 206.001 by revising
paragraph (S–70) to read as follows:
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 210, 212, 215, and 234
[Docket DARS–2019–0050]
RIN 0750–AK65
Defense Federal Acquisition
Regulation Supplement: Market
Research and Value Analysis for the
Determination of Price
Reasonableness (DFARS Case 2019–
D027)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
■
206.001
Applicability.
*
*
*
*
*
(S–70) Also excepted from the
competition requirements of FAR part 6
are follow-on production contracts for
products developed pursuant to the
‘‘other transactions’’ authority of 10
U.S.C. 2371b for prototype projects
when—
(1) The other transaction agreement
includes provisions for a follow-on
production contract;
(2) The follow-on contract will be
awarded to the participants in the other
transaction for the prototype project;
(3) Competitive procedures are used
for the selection of parties for
participation in the transaction;
(4) The participants in the transaction
successfully completes the prototype or
sub-prototype project provided for in
the transaction; and
(5)(i) There is a written determination
that—
(A) The requirements of 10 U.S.C.
2371b(d) are met; and
(B) The use of the authority of 10
U.S.C. 2371b is essential to promoting
the success of the prototype project; and
(ii)(A) For actions in excess of $100
million, but not in excess of $500
million including all options, the
determination is executed by the senior
procurement executive; and
(B) For actions in excess of $500
million including all options, the
determination is—
(1) Executed by the Under Secretary
of Defense for Research and Engineering
or the Under Secretary of Defense for
Acquisition and Sustainment; and
(2) Provided to the congressional
defense committees at least 30 days
prior to contract award.
[FR Doc. 2019–20555 Filed 9–25–19; 8:45 am]
BILLING CODE 5001–06–P
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DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement several sections of the
National Defense Authorization Act for
Fiscal Year 2017 to address how
contracting officers may require the
offeror to submit relevant information to
support market research for price
analysis and allow an offeror to submit
information relating to the value of a
commercial item to aid in the
determination of the reasonableness of
the price of such item.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
November 25, 2019, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2019–D027,
using any of the following methods:
Æ Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
entering ‘‘DFARS Case 2019–D027’’
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2019–
D027.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please ‘‘DFARS Case 2019–D027’’ on
any attached documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2019–D027 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Amy G.
Williams, OUSD(A&S)DPC/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
SUMMARY:
E:\FR\FM\26SEP1.SGM
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Federal Register / Vol. 84, No. 187 / Thursday, September 26, 2019 / Proposed Rules
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 G. Williams, telephone 571–372–
6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS
to implement sections 871 and 872 of
the National Defense Authorization Act
for Fiscal Year 2017 (Pub. L. 114–328).
Section 871 modifies 10 U.S.C. 2377,
Preference for acquisition of commercial
items, to address how contracting
officers may require the offeror to
submit relevant information to support
market research for price analysis for
the acquisition of commercial items.
Section 872 modifies 10 U.S.C. 2379,
Requirement for determination by
Secretary of Defense and notification to
Congress before procurement of major
weapon systems as commercial items, to
allow an offeror to submit information
or analysis relating to the value of a
commercial item.
khammond on DSKJM1Z7X2PROD with PROPOSALS
II. Discussion and Analysis
This proposed rule implements the
requirements of section 871 at DFARS
212.209(a), which addresses the
determination of price reasonableness
when acquiring commercial items. The
focus of this requirement is that
agencies shall conduct market research
to support the determination of price
reasonableness for commercial items.
The rule proposes to add the reference
to 10 U.S.C. 2377 and directs
contracting officers to use: The
information submitted under DFARS
234.7002(d) when acquiring major
weapon systems as commercial items in
accordance with 10 U.S.C. 2379; or, in
the case of other items, other relevant
information as described in DFARS
212.209.
This proposed rule implements the
requirements of section 872 in DFARS
subpart 234.70, which addresses the
acquisition of major weapon systems as
commercial items. DFARS 234.7002(d)
addresses the relevant information
necessary to make a determination of
price reasonableness. To implement
section 872, this rule proposes a new
paragraph (d)(5) at DFARS 234.7002,
which does not impose a requirement,
but allows an offeror to submit
information or analysis relating to the
value of a commercial item, to aid in the
determination of the reasonableness of
the price of such item. A contracting
VerDate Sep<11>2014
17:55 Sep 25, 2019
Jkt 247001
officer may consider such information
or analysis in addition to the
information submitted pursuant to other
paragraphs in DFARS 234.7002(d). To
assist in understanding value analysis, a
definition of ‘‘value analysis’’ is added
at DFARS 234.7001. A cross-reference is
also added at DFARS 210.001.
This rule does not impose additional
requirements on offerors. The
information required is consistent with
the existing requirement at DFARS
215.404–1(b)(iii)(D), which requires an
offeror to submit other relevant
information that can serve as the basis
for determining the reasonableness of
price. The DFARS provision 252.215–
7010, Requirements for Certified Cost or
Pricing Data and Data other Than
Certified Cost or Pricing Data, is the
existing mechanism for obtaining the
minimum information necessary to
permit a determination that the
proposed price is fair and reasonable, to
include the requirements of DFARS
215.404–1(b).
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule does not propose to add or
modify any provisions or clauses or the
prescriptions for any provisions or
clauses.
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 expected to be an E.O.
13771 regulatory action, because this
rule is not significant under E.O. 12866.
VI. Regulatory Flexibility Act
DoD does not expect this proposed
rule to have a significant economic
impact on a substantial number of small
entities within the meaning of the
PO 00000
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Fmt 4702
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50813
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 proposed rule is issued in order
to implement sections 871 and 872 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2017 (Pub.
L. 114–328).
The objective of this rule is to address
the use of market research and value
analysis to support the determination of
price reasonableness when acquiring
commercial items. The legal basis of the
rule is sections 871 and 872 of the
NDAA for FY 2017.
Based on data from the Federal
Procurement Data System, DoD awarded
38,000 new commercial contracts to
16,429 small entities in FY 2018. There
are an additional unknown number of
small entities that submitted offers and
did not receive awards (estimated at
several thousand).
This rule does not impose any new
reporting, recordkeeping, or other
compliance requirements on small
entities. DFARS 252.215–7010,
Requirements for Certified Cost or
Pricing Data, and Data Other Than
Certified Cost or Pricing Data, already
requires offerors to provide information
necessary to determine that the price is
fair and reasonable. Offerors are
allowed, but not required, to submit
information or analysis relating to the
value of a commercial item for
consideration by the contracting officer
in determining price reasonableness.
The rule does not duplicate, overlap,
or conflict with any other Federal rules.
DoD did not identify any significant
alternatives that would minimize or
reduce the significant economic impact,
because there is no significant impact
on small entities.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
U.S.C 610 (DFARS Case 2019–D027), in
correspondence.
VII. Paperwork Reduction Act
The rule does not contain any new
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) or impact any existing
information collection requirements.
E:\FR\FM\26SEP1.SGM
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50814
Federal Register / Vol. 84, No. 187 / Thursday, September 26, 2019 / Proposed Rules
List of Subjects in 48 CFR Parts 210,
212, 215 and 234
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR parts 210, 212, 215,
and 234 are proposed to be amended as
follows:
■ 1. The authority citation for 48 CFR
parts 210, 212, and 234 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 210—MARKET RESEARCH
2. Amend section 210.001 by adding
paragraph (a)(iii) to read as follows:
■
210.001
Policy.
(a) * * *
(iii) Use market research, where
appropriate, to inform price
reasonableness determinations (see
212.209 and 234.7002).
3. Amend section 212.209 by—
a. Revising paragraph (a); and
b. In paragraph (b), removing ‘‘market
research pursuant to paragraph (a) of
this section,’’ and adding ‘‘market
research’’ in its place.
The revision reads as follows:
212.209 Determination of price
reasonableness.
khammond on DSKJM1Z7X2PROD with PROPOSALS
(a) In accordance with 10 U.S.C.
2377(d), agencies shall conduct or
obtain market research to support the
determination of the reasonableness of
price for commercial items contained in
any bid or offer submitted in response
to an agency solicitation. To the extent
necessary to support such market
research, the contracting officer for the
solicitation—
(1) In the case of major weapon
systems items acquired under 10 U.S.C.
2379, shall use information submitted
under 234.7002(d); and
(2) In the case of other items, may
require the offeror to submit other
relevant information as described in this
section.
*
*
*
*
*
PART 215—CONTRACTING BY
NEGOTIATION
4. Amend section 215.403–3 by
adding paragraph (c) to read as follows:
*
*
*
VerDate Sep<11>2014
*
*
18:32 Sep 25, 2019
Jkt 247001
PART 234—MAJOR SYSTEMS
ACQUISITION
SUMMARY:
5. Revise section 234.7001 to read as
follows:
■
234.7001
Definitions.
As used in this subpart—
Major weapon system means a
weapon system acquired pursuant to a
major defense acquisition program.
Value analysis means a systematic
and objective evaluation of the function
of a product and its related costs, whose
purpose is to ensure optimum value.
■ 6. Amend section 234.7002 by—
■ a. Revising the paragraph (d)
introductory text; and
■ b. Adding a new paragraph (d)(5).
The revision and addition read as
follows:
Policy.
*
■
■
■
215.403–3 Requiring data other than
certified cost or pricing data.
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notification of availability
(NOA); request for comments.
234.7002
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
■
(c) Commercial items. For
determination of price reasonableness of
major weapon systems acquired as
commercial items, see 234.7002(d).
*
*
*
*
(d) Relevant information. This section
implements 10 U.S.C. 2379. See also
DFARS 212.209(a).
*
*
*
*
*
(5) An offeror may submit information
or analysis relating to the value of a
commercial item to aid in the
determination of the reasonableness of
the price of such item. Value analysis is
used to understand what features or
characteristics of a given product or
service, or offered terms and conditions
warrant consideration as having
legitimate value to the Government. A
contracting officer may consider such
information or analysis in addition to
the information submitted pursuant to
paragraphs (d)(1) and (d)(2) of this
section. For additional guidance on use
of value analysis see PGI 234.7002(d)(5).
[FR Doc. 2019–20558 Filed 9–25–19; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 622 and 635
RIN 0648–BI61
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Atlantic
Highly Migratory Species; Coral and
Coral Reefs of the Gulf of Mexico;
Amendment 9
National Marine Fisheries
Service (NMFS), National Oceanic and
AGENCY:
PO 00000
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Fmt 4702
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The Gulf of Mexico Fishery
Management Council (Council) has
submitted Amendment 9 to the Fishery
Management Plan (FMP) for the Coral
and Coral Reefs of the Gulf of Mexico
(Amendment 9) to the FMP for review,
approval, and implementation by
NMFS. Amendment 9, if approved by
the Secretary of Commerce, and an
associated framework action to the FMP
would establish new habitat areas of
particular concern (HAPCs), some of
which include a prohibition of the
deployment of bottom-tending gear, and
modify current fishing regulations in the
Gulf of Mexico (Gulf). The purpose of
Amendment 9 and the framework action
is to protect coral essential fish habitat
in the Gulf.
DATES: Written comments on
Amendment 9 must be received by
November 25, 2019.
ADDRESSES: You may submit comments
on Amendment 9 identified by ‘‘NOAA–
NMFS–2017–0146’’ by either of the
following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20170146, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Submit written comments to
Lauren Waters, NMFS Southeast
Regional Office, 263 13th Avenue
South, St. Petersburg, FL 33701.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous).
Electronic copies of Amendment 9
and the framework action may be
obtained from www.regulations.gov or
the Southeast Regional Office website at
https://www.fisheries.noaa.gov/action/
amendment-9-coral-habitat-areasconsidered-management-gulf-mexico.
Amendment 9 includes an
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]]>Agencies
[Federal Register Volume 84, Number 187 (Thursday, September 26, 2019)]
[Proposed Rules]
[Pages 50812-50814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20558]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 210, 212, 215, and 234
[Docket DARS-2019-0050]
RIN 0750-AK65
Defense Federal Acquisition Regulation Supplement: Market
Research and Value Analysis for the Determination of Price
Reasonableness (DFARS Case 2019-D027)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement several sections of the
National Defense Authorization Act for Fiscal Year 2017 to address how
contracting officers may require the offeror to submit relevant
information to support market research for price analysis and allow an
offeror to submit information relating to the value of a commercial
item to aid in the determination of the reasonableness of the price of
such item.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before November 25, 2019, to be
considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2019-D027, using
any of the following methods:
[cir] Regulations.gov: https://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by entering ``DFARS Case 2019-D027''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2019-D027.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please ``DFARS Case 2019-D027'' on any attached
documents.
[cir] Email: [email protected]. Include DFARS Case 2019-D027 in
the subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy
G. Williams, OUSD(A&S)DPC/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
[[Page 50813]]
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 G. Williams, telephone 571-
372-6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to implement sections 871 and
872 of the National Defense Authorization Act for Fiscal Year 2017
(Pub. L. 114-328). Section 871 modifies 10 U.S.C. 2377, Preference for
acquisition of commercial items, to address how contracting officers
may require the offeror to submit relevant information to support
market research for price analysis for the acquisition of commercial
items. Section 872 modifies 10 U.S.C. 2379, Requirement for
determination by Secretary of Defense and notification to Congress
before procurement of major weapon systems as commercial items, to
allow an offeror to submit information or analysis relating to the
value of a commercial item.
II. Discussion and Analysis
This proposed rule implements the requirements of section 871 at
DFARS 212.209(a), which addresses the determination of price
reasonableness when acquiring commercial items. The focus of this
requirement is that agencies shall conduct market research to support
the determination of price reasonableness for commercial items. The
rule proposes to add the reference to 10 U.S.C. 2377 and directs
contracting officers to use: The information submitted under DFARS
234.7002(d) when acquiring major weapon systems as commercial items in
accordance with 10 U.S.C. 2379; or, in the case of other items, other
relevant information as described in DFARS 212.209.
This proposed rule implements the requirements of section 872 in
DFARS subpart 234.70, which addresses the acquisition of major weapon
systems as commercial items. DFARS 234.7002(d) addresses the relevant
information necessary to make a determination of price reasonableness.
To implement section 872, this rule proposes a new paragraph (d)(5) at
DFARS 234.7002, which does not impose a requirement, but allows an
offeror to submit information or analysis relating to the value of a
commercial item, to aid in the determination of the reasonableness of
the price of such item. A contracting officer may consider such
information or analysis in addition to the information submitted
pursuant to other paragraphs in DFARS 234.7002(d). To assist in
understanding value analysis, a definition of ``value analysis'' is
added at DFARS 234.7001. A cross-reference is also added at DFARS
210.001.
This rule does not impose additional requirements on offerors. The
information required is consistent with the existing requirement at
DFARS 215.404-1(b)(iii)(D), which requires an offeror to submit other
relevant information that can serve as the basis for determining the
reasonableness of price. The DFARS provision 252.215-7010, Requirements
for Certified Cost or Pricing Data and Data other Than Certified Cost
or Pricing Data, is the existing mechanism for obtaining the minimum
information necessary to permit a determination that the proposed price
is fair and reasonable, to include the requirements of DFARS 215.404-
1(b).
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule does not propose to add or modify any provisions or
clauses or the prescriptions for any provisions or clauses.
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 expected to be an E.O. 13771 regulatory action,
because this rule is not significant under E.O. 12866.
VI. Regulatory Flexibility Act
DoD does not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
However, an initial regulatory flexibility analysis has been performed
and is summarized as follows:
This proposed rule is issued in order to implement sections 871 and
872 of the National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 2017 (Pub. L. 114-328).
The objective of this rule is to address the use of market research
and value analysis to support the determination of price reasonableness
when acquiring commercial items. The legal basis of the rule is
sections 871 and 872 of the NDAA for FY 2017.
Based on data from the Federal Procurement Data System, DoD awarded
38,000 new commercial contracts to 16,429 small entities in FY 2018.
There are an additional unknown number of small entities that submitted
offers and did not receive awards (estimated at several thousand).
This rule does not impose any new reporting, recordkeeping, or
other compliance requirements on small entities. DFARS 252.215-7010,
Requirements for Certified Cost or Pricing Data, and Data Other Than
Certified Cost or Pricing Data, already requires offerors to provide
information necessary to determine that the price is fair and
reasonable. Offerors are allowed, but not required, to submit
information or analysis relating to the value of a commercial item for
consideration by the contracting officer in determining price
reasonableness.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
DoD did not identify any significant alternatives that would
minimize or reduce the significant economic impact, because there is no
significant impact on small entities.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C 610 (DFARS Case 2019-D027), in
correspondence.
VII. Paperwork Reduction Act
The rule does not contain any new 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) or
impact any existing information collection requirements.
[[Page 50814]]
List of Subjects in 48 CFR Parts 210, 212, 215 and 234
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 210, 212, 215, and 234 are proposed to be
amended as follows:
0
1. The authority citation for 48 CFR parts 210, 212, and 234 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 210--MARKET RESEARCH
0
2. Amend section 210.001 by adding paragraph (a)(iii) to read as
follows:
210.001 Policy.
(a) * * *
(iii) Use market research, where appropriate, to inform price
reasonableness determinations (see 212.209 and 234.7002).
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
3. Amend section 212.209 by--
0
a. Revising paragraph (a); and
0
b. In paragraph (b), removing ``market research pursuant to paragraph
(a) of this section,'' and adding ``market research'' in its place.
The revision reads as follows:
212.209 Determination of price reasonableness.
(a) In accordance with 10 U.S.C. 2377(d), agencies shall conduct or
obtain market research to support the determination of the
reasonableness of price for commercial items contained in any bid or
offer submitted in response to an agency solicitation. To the extent
necessary to support such market research, the contracting officer for
the solicitation--
(1) In the case of major weapon systems items acquired under 10
U.S.C. 2379, shall use information submitted under 234.7002(d); and
(2) In the case of other items, may require the offeror to submit
other relevant information as described in this section.
* * * * *
PART 215--CONTRACTING BY NEGOTIATION
0
4. Amend section 215.403-3 by adding paragraph (c) to read as follows:
215.403-3 Requiring data other than certified cost or pricing data.
* * * * *
(c) Commercial items. For determination of price reasonableness of
major weapon systems acquired as commercial items, see 234.7002(d).
PART 234--MAJOR SYSTEMS ACQUISITION
0
5. Revise section 234.7001 to read as follows:
234.7001 Definitions.
As used in this subpart--
Major weapon system means a weapon system acquired pursuant to a
major defense acquisition program.
Value analysis means a systematic and objective evaluation of the
function of a product and its related costs, whose purpose is to ensure
optimum value.
0
6. Amend section 234.7002 by--
0
a. Revising the paragraph (d) introductory text; and
0
b. Adding a new paragraph (d)(5).
The revision and addition read as follows:
234.7002 Policy.
* * * * *
(d) Relevant information. This section implements 10 U.S.C. 2379.
See also DFARS 212.209(a).
* * * * *
(5) An offeror may submit information or analysis relating to the
value of a commercial item to aid in the determination of the
reasonableness of the price of such item. Value analysis is used to
understand what features or characteristics of a given product or
service, or offered terms and conditions warrant consideration as
having legitimate value to the Government. A contracting officer may
consider such information or analysis in addition to the information
submitted pursuant to paragraphs (d)(1) and (d)(2) of this section. For
additional guidance on use of value analysis see PGI 234.7002(d)(5).
[FR Doc. 2019-20558 Filed 9-25-19; 8:45 am]
BILLING CODE 5001-06-P
