[Federal Register Volume 78, Number 211 (Thursday, October 31, 2013)]
[Rules and Regulations]
[Pages 65214-65218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-25728]
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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: Final rule.
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SUMMARY: DoD is issuing a final rule amending 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: Effective October 31, 2013.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, telephone 571-372-
6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 78 FR
28785 on May 16, 2013, 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
[[Page 65215]]
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).
II. Applicability
The final rule applies to solicitations (including solicitations
for task orders and delivery orders) issued on or after the publication
date of the final rule.
III. Discussion and Analysis
No public comments were received. There are only minor editorial
changes from the proposed rule that were made in the final rule.
Revisions include:
Renumbering section 12.301(f) subparagraphs due to DFARS
baseline changes.
Correcting, in section 12.301(f), prescription references
cited for two provisions: 252.215-7007, Notice of Intent to Resolicit;
and 252.215-7008, Only One Offer. Extraneous verbiage was removed from
the prescription for 252.215-7004, Requirement for Submission of Data
Other Than Certified Cost or Pricing Data--Modifications--Canadian
Commercial Corporation.
Revising the prescription at 215.371-6 to include a
statement that provision 252.215-7007, Notice of Intent to Resolicit,
should be included in solicitations for the acquisition of commercial
items using Far part 12 procedures. This provision is included in the
list at 212.301(f) as being applicable to solicitations for commercial
items; however, the prescription at 215.371-6 inadvertently omitted
restating applicability of the provision to FAR part 12 solicitations.
Revising two prescriptions at 215.408(3) to include a
statement that the provisions should be included in solicitations for
the acquisition of commercial items using FAR part 12 procedures. The
provisions are: 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. These two provisions
are included in the list at 212.301(f) as being applicable to
solicitations for commercial items; however, the prescriptions at
215.408(3) inadvertently omitted restating applicability of the
provisions to FAR part 12 solicitations.
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.
IV. Regulatory Flexibility Act
A final regulatory flexibility analysis has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
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.
There were no public comments in response to the proposed rule.
There were no comments filed by the Chief Counsel for Advocacy of the
Small Business Administration.
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 substantial 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 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 final 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 clearance
9000-013.
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.
V. Paperwork Reduction Act
The final 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, and in 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.
[[Page 65216]]
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 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. Section 212.301 is amended by--
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a. Redesignating paragraphs (f)(xi) through (lxii) as (f)(xiii) through
(lxv), respectively;
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b. Adding new paragraphs (f)(xi), (xii), and (xiv); and
0
c. Revising newly designated paragraph (f)(xiii).
The additions and revision read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) * * *
(xi) Use the provision at 252.215-7003, Requirements for Submission
of Data Other Than Certified Cost or Pricing Data--Canadian Commercial
Corporation, as prescribed at 215.408(3)(i).
(xii) Use the clause at 252.215-7004, Requirement for Submission of
Data other Than Certified Cost or Pricing Data--Modifications--Canadian
Commercial Corporation, as prescribed at 215.408(3)(ii).
(xiii) Use the provision at 252.215-7007, Notice of Intent to
Resolicit, as prescribed at 215.371-6.
(xiv) Use the provision 252.215-7008, Only One Offer, as prescribed
at 215.408(4).
* * * * *
PART 215--CONTRACTING BY NEGOTIATION
215.371-3 [Amended]
0
3. Section 215.371-3 is amended--
0
a. In paragraph (a), by adding elipses ``. . .'' after the words
``reasonable expectation'' and before the words ``that two or more
offerors,'', and removing ``at one level'' and adding ``at a level'' in
its place.;
0
b. In paragraph (b) introductory text, by removing ``215.371-4(b) and
adding ``215.371-4(a)(3);
0
c. In paragraph (b)(1), removing ``at one level'' and adding ``at a
level'' in its place; and
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.
0
4. Section 215.371-4 is revised to read as follows:
215.371-4 Exceptions.
(a) The requirements at section 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.
0
5. Section 215.371-6 is added to read as follows:
215.371-6 Solicitation provision.
Use the provision at 252.215-7007, Notice of Intent to Resolicit,
in competitive solicitations, including solicitations using FAR part 12
procedures for the acquisition of commercial items, 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]
0
6. Section 215.403-1 is amended by--
0
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. Section 215.408 is amended by--
0
a. Revising paragraph (3);
0
b. In paragraph (4)(i), removing ``215.371-4(a)(1)'' and adding
``215.371-4(a)'' 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); and
0
e. Redesignating paragraph (6) as paragraph (5).
The revision 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, including
solicitations using FAR part 12 procedures for the acquisition of
commercial items, 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 solicitation, including
solicitations using FAR part 12 procedures for the acquisition of
commercial items, for 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, including solicitations using FAR part 12
procedures for the acquisition of commercial items, 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
[[Page 65217]]
(ii) Fixed-price, if the contract value is expected to exceed $500
million;
(2) In a solicitation, including solicitations using FAR part 12
procedures for the acquisition of commercial items, 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), if approval is obtained as required at 225.870-
4(c)(2)(ii); or
(3)(i) In a solicitation, including solicitations using FAR part 12
procedures for the acquisition of commercial items, 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).
(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. Section 225.870-4 is amended 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:
225.870-4 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.
(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 acquisition 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. Section 252.215-7003 is amended by, in the introductory text,
removing ``215.408(5)(i)'' and adding ``215.408(3)(i)'' in its place.
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10. Section 252.215-7004 is amended--
0
a. In the introductory text, by removing ``215.408(5)(ii)'' and adding
``215.408(3)(ii)'' in its place;
0
b. By removing the clause date of ``(JUL 2012)'' and adding ``(OCT
2013)'' in its place;
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c. In paragraph (b) introductory text, by removing ``the simplified
acquisition threshold'' and adding ``$150,000'' in its place; and
0
d. By 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]
0
11. Section 252.215-7007 is amended by, in the introductory text,
removing ``215.408(3)'' and adding ``215.371-6'' in its place.
0
12. Section 252.215-7008 is revised to read as follows:
252.215-7008 Only One Offer.
As prescribed at 215.408(4), use the following provision:
Only One Offer (Oct 2013)
(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,
[[Page 65218]]
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
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)
252.215-7009 [Amended]
0
13. Section 252.215-7009 is amended by, in the introductory text,
removing ``215.408(6)'' and adding ``215.408(5)'' in its place.
[FR Doc. 2013-25728 Filed 10-30-13; 8:45 am]
BILLING CODE 5001-06-P