[Federal Register Volume 80, Number 148 (Monday, August 3, 2015)]
[Proposed Rules]
[Pages 45918-45923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18938]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 202, 212, 215, and 252
RIN 0750-AI64
Defense Federal Acquisition Regulation Supplement: Evaluating
Price Reasonableness for Commercial Items (DFARS Case 2013-D034)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement a section of the National
Defense Authorization Act for Fiscal Year 2013 that requires the
issuance of guidance on the use of the authority to require the
submission of other than cost or pricing data.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before October 2, 2015, to be considered
in the formation of the final rule.
ADDRESSES: Submit comments identified by DFARS Case 2013-D034, using
any of the following methods:
[cir] Regulations.gov: http://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by entering ``DFARS Case 2013-D034''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2013-D034.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``DFARS Case 2013-D034'' on your attached document.
[cir] Email: [email protected]. Include DFARS Case 2013-D034 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 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://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, Defense
Acquisition
[[Page 45919]]
Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060. Telephone 571-372-6099.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the DFARS to implement portions of
section 831 of the National Defense Authorization Act (NDAA) for Fiscal
Year (FY) 2013 (Pub. L. 112-239, enacted January 2, 2013). Title 10,
United States Code (U.S.C.), mandates that offerors submitting
proposals for negotiated procurements provide certified cost or pricing
data under certain circumstances if the estimated value of the
procurement is above a certain dollar threshold. For other types of
procurements, e.g., commercial-item acquisitions, the law requires only
that an offeror provide ``data other than certified cost or pricing
data to the extent necessary to determine the reasonableness of the
price'' (10 U.S.C. 2306a(d)(1)). Section 831 requires the issuance of
guidance on the use of the authority to require the submission of other
than cost or pricing data. Specifically, section 831, paragraph (a)
provides that the guidance accomplish the following:
1. Include standards for determining whether information on the
prices at which the same or similar items have previously been sold is
adequate for evaluating the reasonableness of price;
2. Include standards for determining the extent of uncertified cost
information that should be required in cases in which price information
is not adequate for evaluating the reasonableness of price;
3. Ensure that in cases in which such uncertified cost information
is required, the information shall be provided in the form in which it
is regularly maintained by the offeror in its business operations; and
4. Provide that no additional cost information may be required by
the Department of Defense in any case in which there are sufficient
nongovernment sales to establish reasonableness of price.
II. Discussion and Analysis
This rule proposes to amend the DFARS as follows to--
Add new definitions at 202.101 for ``market-based
pricing'' and ``uncertified cost data'' and at 215.401 for
``nongovernment sales,'' ``relevant sales data,'' and ``sufficient
nongovernment sales to establish reasonableness of price'';
Add section 212.209 entitled ``Determination of price
reasonableness'';
Add guidelines at 215.402(a)(3), for obtaining data other
than certified cost or pricing data;
Add instructions at 215.403-5 for the submission of
certified cost or pricing data and data other than certified cost or
pricing data;
Add guidelines at 215.404-1 concerning proposal analysis
techniques;
Renumber the paragraph structure at 215.404-1-70;
Revise the clause prescription at 215.408,
paragraph(3)(i), and add three new provision prescriptions at paragraph
(6); and
Add three new provisions in part 252.
III. 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
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.,
because the proposed rule does not add to or remove any of the existing
requirements for the submission of other than certified cost or pricing
data for the purpose of determining the reasonableness of prices
proposed for commercial items. However, an initial regulatory
flexibility analysis has been performed and is summarized as follows:
This initial regulatory flexibility analysis has been prepared
consistent with 5 U.S.C. 603. It addresses additional guidance to be
included in the Defense Federal Acquisition Regulation Supplement
(DFARS) concerning the appropriate amount and type of other than
certified cost or pricing information that contracting officers must
require an offeror to submit in order to determine whether proposed
prices for commercial items are fair and reasonable. The rule also
proposes to add three new provisions.
The National Defense Authorization Act (NDAA) for Fiscal Year (FY)
2013 included section 831, entitled ``Guidance and Training Related to
Evaluating Reasonableness of Price.'' Paragraph (a) of section 831
required the issuance of guidance addressing the following four areas:
1. Requirement to include standards for determining whether
information on the prices at which the same or similar items have
previously been sold is adequate for evaluating the reasonableness of
price.
2. Requirement to include standards for determining the extent of
uncertified cost information that should be required in cases in which
price information is not adequate for evaluating the reasonableness of
price.
3. Ensure that in cases in which such uncertified cost information
is required, the information shall be provided in the form in which it
is regularly maintained by the offeror in its business operations.
4. Provide that no additional cost information may be required by
the Department of Defense in any case in which there are sufficient
non-Government sales to establish reasonableness of price.
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.,
because this rule merely provides guidance to contracting officers on
the use of the existing authority to require the submission of other
than cost or pricing data.
The reporting requirements for small entities do not differ from
those for large entities and are covered by OMB Control Number 9000-
0013, Cost or Pricing Data Exemption. This proposed rule does not add
to or remove any of the existing requirements; it does clarify the
limits on the amount and types of data that may be required from
offerors so that contracting officers do not inadvertently impose
submission requirements on small entities or other types of businesses
that are excessive.
The rule does not duplicate, overlap, or conflict with any other
Federal rules. Consistent with the stated objectives of section 831 of
the NDAA for FY 2013 and with the statutory requirements for cost or
pricing data in title 10, United States Code (U.S.C.), there is no
alternative to applying the requirements for other than cost or pricing
data equally to small and large entities.
[[Page 45920]]
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2013-D034), in
correspondence.
V. Paperwork Reduction Act
This rule affects the information collection requirements in the
provisions at Federal Acquisition Regulation (FAR) subpart 15.4,
Contract Pricing (in particular, FAR 15.403, Obtaining Certified Cost
or Pricing Data) and the clauses at FAR 52.215-20, Requirements for
Certified Cost or Pricing Data and Data Other Than Certified Cost or
Pricing Data, and FAR 52.215-21, Requirements for Certified Cost or
Pricing Data and Data Other Than Certified Cost or Pricing Data--
Modifications, currently approved under OMB Control Number 9000-0013,
entitled ``Cost or Pricing Data Exemption,'' in accordance with the
Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is
negligible, because the DFARS change does not add or remove
requirements for submission of other than cost or pricing data. The
DFARS merely provides clarification of the circumstances under which
the FAR requires contracting officers to obtain other than cost or
pricing data solely for the purpose of determining reasonableness of
prices proposed by offerors for commercial items. There are no changes
to the existing requirement for supporting cost data for determining
price reasonableness.
List of Subjects in 48 CFR Parts 202, 212, 215, and 252
Government procurement.
Amy G. Williams,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 202, 212, 215, and 252 are proposed to be
amended as follows:
0
1. The authority citation for parts 202, 212, 215, and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 202--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 202.101 by adding, in alphabetical order, the
definitions for ``market-based pricing'' and ``uncertified cost data''
to read as follows:
202.101 Definitions.
* * * * *
Market-based pricing means pricing that results when
nongovernmental buyers drive the price in a commercial marketplace.
When nongovernmental buyers in a commercial marketplace account for a
preponderance (50 percent or more) of sales by volume of a particular
item, there is a strong likelihood the pricing is market based.
* * * * *
Uncertified cost data means the subset of ``data other than
certified cost or pricing data'' (see FAR 2.101) that relates to cost.
* * * * *
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
3. Add section 212.209 to subpart 212.2 to read as follows:
212.209 Determination of price reasonableness.
In order to establish a fair and reasonable price based on market-
based pricing (see 215.404-1), the contracting officer shall obtain
adequate commercial marketplace sales data (see 215.404-1(b)) to ensure
the price offered to the Government is reasonably consistent with
market-based pricing. When obtaining such data, follow the order of
preference at FAR 15.402(a)(2), and otherwise comply with the
requirements of FAR part 15, part 215, and PGI part 215.
PART 215--CONTRACTING BY NEGOTIATION
0
4. Add section 215.401 to subpart 215.4 to read as follows:
215.401 Definitions.
Nongovernment sales means sales of the supplies or services to
nongovernmental entities for purposes other than governmental purposes.
Relevant sales data means the subset of an offeror's sales data
that, as considered by a prudent person, could reasonably be expected
to influence the contracting officer's determination of price
reasonableness, taking into consideration the age, volume, and nature
of the transactions (including any related discounts, refunds, rebates,
offsets or other adjustments) in the data subset.
Sufficient nongovernment sales to establish reasonableness of price
(see 215.402(a)(3)) exist when relevant sales data reflects market-
based pricing, are made available for the contracting officer to
review, and contains enough information to make adjustments covered by
FAR 15.404 1(b)(2)(ii)(B).
0
5. Amend section 215.402 by adding paragraph (a)(3) to read as follows:
215.402 Pricing policy.
* * * * *
(a)(3) When obtaining data other than certified cost or pricing
data (Pub. L. 112-239 sec. 831)--
(A) The standard to be used by contracting officers in determining
the adequacy of information on prices at which same or similar items
have been sold is whether a prudent person would conclude that it is
sufficient to determine whether the proposed price is fair and
reasonable. See 215.404-1 and PGI 215.404-1; and
(B) In cases when uncertified cost data is necessary to determine
that the price is fair and reasonable, the contracting officer should
request uncertified cost data only to the extent that a prudent person
would consider necessary to determine a fair and reasonable price.
0
6. Amend section 215.403-5 by adding paragraphs (a) and (b)(2) to read
as follows:
215.403-5 Instructions for submission of certified cost or pricing
data and data other than certified cost or pricing data.
(a) The contracting officer shall not limit the Government's
ability to obtain any data that may be necessary to support a
determination of fair and reasonable pricing.
(b)(2) If the contracting officer requires the offeror to provide
uncertified cost data, it shall be the form in which it is regularly
maintained by the offeror in its business operations (Pub. L. 112-239
sec. 831).
* * * * *
0
7. Revise section 215.404-1 to read as follows:
215.404-1 Proposal analysis techniques.
(b)(2)(ii) In the absence of adequate price competition in response
to the solicitation, market-based pricing is the preferred method to
establish a fair and reasonable price (Pub. L. 112-239 sec. 831).
(A)(i) Relevant sales data are a valid basis for price comparison,
in the following order of preference:
(a) Relevant sales data for the same good or service being acquired
that reflect market-based pricing.
(b) Relevant sales data for substantially similar goods or services
that reflect market-based pricing.
(c) Relevant sales data for the same good or services being
acquired that do not reflect market-based pricing.
[[Page 45921]]
(d) Relevant sales data for substantially similar goods or services
that do not reflect market-based pricing.
(ii) The contracting officer may obtain additional data necessary
to verify the price to be paid is fair and reasonable. However, if
relevant sales data for the same supplies or services being acquired
reflects market-based pricing, and is made available for the
contracting officer to review, the contracting officer shall not obtain
uncertified cost data.
(iii) When evaluating sales data, contracting officers shall
exercise prudent business judgment and consider standards such as the
following, using the order of preference in FAR 15.402(a) and
215.402(a)(3):
(a) Market-based pricing. See 202.101.
(b) Age of data.
(1) Whether data is too old to be relevant depends on the industry
(e.g., rapidly evolving technologies), product maturity (e.g., stable),
economic factors (e.g., new sellers in the marketplace), and various
other considerations.
(2) A pending sale may be relevant if it is probable at the
anticipated price, and the sale could reasonably be expected to
materially influence the contracting officer's determination of price
reasonableness. Consult with the offeror's corporate or divisional
administrative contracting officer (if applicable) about future sales.
(c) Volume. The number of transactions must be sufficient to permit
the contracting officer to make a determination on price reasonableness
based on the relevant sales data. If the number of transactions is
insufficient to make a determination, the contracting officer shall
consider broadening the search (e.g., identify whether all customers
were included) to obtain additional relevant sales data as necessary to
make the determination, following the order of preference at 215.404-
1(b)(2)(ii)(A)(i), and complying with FAR 15.402(a)(2).
(d) Nature of transactions. The nature of a sales transaction
includes the information necessary to understand the transaction, such
as terms and conditions, date, quantity sold, sale price, the intended
end-user, the type of customer (government, distributor, retail end-
user, etc.), and related agreements. It also includes information such
as warranty information, key product technical specifications,
maintenance agreements, or preferred customer rewards, if they
substantially impact price differences among sales. When relevant sales
data has materially differing terms and conditions (see 215.404-
1(b)(2)(ii)(B)), the contracting officer shall adjust the prices as
required by FAR 15.404-1(b)(2)(ii)(B).
(e) Catalog Prices. Catalog prices are reliable when consistent
with relevant sales data (including any related discounts, refunds,
rebates, offsets or other adjustments).
(B) Terms and conditions, quantities, and market and economic
factors, are materially differing if the differences could reasonably
be expected to influence the contracting officer's determination of
price reasonableness.
(C) The DoD cadre of experts is identified at PGI 215.404-
2(a)(iii).
0
8. Add section 215.404-1-70 to read as follows:
215.404-1-70 Procedures.
(a) Follow the procedures at PGI 215.404-1 for proposal analysis.
(b) For spare parts or support equipment, perform an analysis of--
(1) Those line items where the proposed price exceeds by 25 percent
or more the lowest price the Government has paid within the most recent
12-month period based on reasonably available data;
(2) Those line items where a comparison of the item description and
the proposed price indicates a potential for overpricing;
(3) Significant high-dollar-value items. If there are no obvious
high-dollar-value items, include an analysis of a random sample of
items; and
(4) A random sample of the remaining low-dollar value items. Sample
size may be determined by subjective judgment, e.g., experience with
the offeror and the reliability of its estimating and accounting
systems.
0
9. Amend section 215.408 by--
0
a. Revising paragraph (3)(i)(A)(1) introductory text;
0
b. Revising paragraph (3)(i)(A)(2) introductory text;
0
c. Revising paragraph (3)(i)(B) introductory text; and
0
d. Adding paragraph (6).
The revisions and addition read as follows:
215.408 Solicitation provisions and contract clauses.
* * * * *
(3) * * *
(i)(A) * * *
(1) In lieu of 252.215-70XX, 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--
* * * * *
(2) In lieu of 252.215-70XX 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 252.215-70XX in competitive
acquisitions.
* * * * *
(6) Requirements for certified cost or pricing data and data other
than certified cost or pricing data.
(i) Use the provision at 252.215-70XX, Requirements for Certified
Cost or Pricing Data and Data Other Than Certified Cost or Pricing
Data, in lieu of the provision at FAR 52.215-20 Requirements for
Certified Cost or Pricing Data and Data Other Than Certified Cost or
Pricing Data, in solicitations and contracts when it is reasonably
certain that the submission of certified cost or pricing data or data
other than certified cost or pricing data will be required.
(A) Use the basic provision when the submission of certified cost
or pricing data may not be required at the time of solicitation, or
when submission of certified cost or pricing data is required to be in
the format required by FAR Table 15-2.
(B) Use the Alternate I provision to specify a format for certified
cost or pricing data other than the format required by FAR Table 15-2.
(ii) Use the provision at 252.215-70YY, Requirements for Submission
of Proposals to the Administrative Contracting Officer and Contract
Auditor, when using the basic or alternate of the provision at 252.215-
70XX if copies of the proposal are to be sent to the ACO and contract
auditor.
(iii) Use the provision at 252.215-70ZZ, Requirements for
Submission of Proposals via Electronic Media, when using the basic or
alternate of the provision at 252.215-70XX if submission via electronic
media is required.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
10. Add section 252.215-70XX to read as follows:
252.215-70XX Requirements for Certified Cost or Pricing Data and Data
Other Than Certified Cost or Pricing Data.
Basic. As prescribed in 215.408(6)(i) and (6)(i)(A), use the
following provision:
[[Page 45922]]
Requirements for Certified Cost or Pricing Data and Data Other Than
Certified Cost or Pricing Data--Basic (DATE)
(a) Definitions. As used in this provision--
Nongovernment sales means sales of the supplies or services to
nongovernmental entities for purposes other than governmental
purposes.
Market-based pricing means pricing that results when
nongovernmental buyers drive the price in a commercial marketplace.
When nongovernmental buyers in a commercial marketplace account for
a preponderance (50 percent or more) of sales by volume of a
particular item, there is a strong likelihood the pricing is market
based.
Relevant sales data means the subset of an offeror's sales data
that, as considered by a prudent person, could reasonably be
expected to influence the contracting officer's determination of
price reasonableness, taking into consideration the age, volume, and
nature of the transactions (including any related discounts,
refunds, rebates, offsets or other adjustments) in the data subset.
Sufficient nongovernment sales to establish reasonableness of
price (see DFARS 215.402(a)(3)(A)) exist when relevant sales data
reflects market-based pricing, are made available for the
contracting officer to review, and contains enough information to
make adjustments covered by FAR 15.404 1(b)(2)(ii)(B).
(b) Exceptions from certified cost or pricing data.
(1) In lieu of submitting certified cost or pricing data,
offerors 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
shall include--
(A) For items priced based on a catalog--
(1) A copy of the offeror's current catalog showing the price
for that item; and
(2) Either of the following two alternative statements, included
in the proposal:
(i) ``The catalog provided with this proposal is consistent with
all relevant sales data (including any related discounts, refunds,
rebates, offsets or other adjustments). Relevant sales data shall be
made available upon request of the contracting officer.''
(ii) ``The catalog provided with this proposal is not consistent
with all relevant sales data, due to the following: [Insert a
detailed description of differences or inconsistencies between or
among the relevant sales data, the proposed price, and the catalog
price (including any related discounts, refunds, rebates, offsets or
other adjustments).]'';
(B) For items priced using market-based pricing, a description
of: the nature of the commercial market; the methodology used to
establish a market-based price; and all relevant sales data. The
description shall be adequate to permit the Department of Defense to
verify the accuracy of the description. If relevant sales data
exist, the Offeror shall make such data available to the contracting
officer for review within 10 days of a written request from the
contracting officer; and
(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.
(2) 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.
(c) 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:
(1) 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 in this contract,
unless the Contracting Officer and the Offeror agree to a different
format and change this provision to use Alternate I.
(2) 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.
(d) Requirements for data other than certified cost or pricing
data.
(1) Data other than certified cost or pricing data submitted in
accordance with this provision shall include all data necessary to
permit a determination that the proposed price is fair and
reasonable, to include the requirements in DFARS 215.402 and DFARS
215.404-1.
(2) In cases in which uncertified cost data is required, the
information shall be provided in the form in which it is regularly
maintained by the offeror or prospective subcontractor in its
business operations.
(3) The Offeror shall provide information described as follows:
[Insert description of the data and the format that are required,
including access to records necessary to permit an adequate
evaluation of the proposed price in accordance with FAR 15.403-3.]
(4) Within 10 days of a written request from the contracting
officer to the offeror for additional information to support
proposal analysis, the Offeror shall either provide the requested
information, or provide a written explanation for the inability to
fully comply with the request. Before providing an explanation for
noncompliance, offerors are encouraged to clarify the request with
the contracting officer.
(5) Subcontract price evaluation.
(i) Offerors shall obtain from subcontractors whatever
information is necessary to support a determination of price
reasonableness, as described in FAR part 15 and DFARS art 215. It
may include cost data to support a commerciality determination, cost
realism analysis, should-cost review, or any other type of analysis
addressed by FAR part 15 and DFARS part 215. The data needed from a
prospective subcontractor may include data other than certified cost
or pricing data (which includes uncertified cost data obtained from
the subcontractor), and information on the prices at which the same
or similar items have previously been sold.
(ii) No additional cost information may be required from a
prospective subcontractor in any case in which there are sufficient
nongovernment sales of the same item to establish reasonableness of
price.
(iii) If the offeror relies on relevant sales data for similar
items to determine the price is reasonable, the Offeror shall obtain
only that technical information necessary to support the conclusion
that--
(A) The items are technically similar; and,
(B) Any dissimilarities should not produce a material price
difference.
(e) The Offeror shall require all prospective subcontractors
above the simplified acquisition threshold in FAR part 2 to adhere
to the requirements of paragraph (c) of this provision when
determining that the proposed prices from prospective lower-tier
subcontractors are fair and reasonable.
(End of provision)
Alternate I. As prescribed in 215.408(6)(i) and (6)(i)(B), use the
following provision, which includes a different paragraph (c)(1).
Requirements for Certified Cost or Pricing Data and Data Other Than
Certified Cost or Pricing Data--Alternate I (DATE)
(a) Definitions. As used in this provision--
Nongovernment sales means sales of the supplies or services to
nongovernmental entities for purposes other than governmental
purposes.
Market-based pricing means pricing that results when
nongovernmental buyers drive the price in a commercial marketplace.
When nongovernmental buyers in a commercial marketplace account for
a preponderance (50 percent or more) of sales by volume of a
particular item, there is a strong likelihood the pricing is market
based.
Relevant sales data means the subset of an offeror's sales data
that, as considered by a prudent person, could reasonably be
expected to influence the contracting officer's determination of
price reasonableness, taking into consideration the age, volume, and
nature of the transactions (including any
[[Page 45923]]
related discounts, refunds, rebates, offsets or other adjustments)
in the data subset.
Sufficient nongovernment sales to establish reasonableness of
price (see DFARS 215.402(a)(3)(A)) exist when relevant sales data
reflects market-based pricing, are made available for the
contracting officer to review, and contains enough information to
make adjustments covered by FAR 15.404 1(b)(2)(ii)(B).
(b) Exceptions from certified cost or pricing data.
(1) In lieu of submitting certified cost or pricing data,
offerors 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 items priced based on a catalog--
(1) A copy of the offeror's current catalog showing the price
for that item; and
(2) Either of the following two alternative statements, included
in the proposal:
(i) ``The catalog provided with this proposal is consistent with
all relevant sales data (including any related discounts, refunds,
rebates, offsets or other adjustments). Relevant sales data shall be
made available upon request of the contracting officer.''
(ii) ``The catalog provided with this proposal is not consistent
with all relevant sales data, due to the following: [Insert a
detailed description of differences or inconsistencies between or
among the relevant sales data, the proposed price, and the catalog
price (including any related discounts, refunds, rebates, offsets or
other adjustments).]'';
(B) For items priced using market-based pricing, a description
of the nature of the commercial market; the methodology used to
establish a market-based price; and all relevant sales data. The
description shall be adequate to permit the Department of Defense to
verify the accuracy of the description. If relevant sales data
exist, the Offeror shall make such data available to the contracting
officer for review within 10 days of a written request from the
contracting officer; and
(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.
(2) 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.
(c) 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:
(1) The Offeror shall submit certified cost or pricing data,
data other than certified cost or pricing data, and supporting
attachments in the following format: [Insert description of the data
and format that are required, and include access to records
necessary to permit an adequate evaluation of the proposed price in
accordance with FAR 15.408, Table 15-2, Note 2. The description may
be inserted at the time of issuing the solicitation, or the
Contracting Officer may specify that the format regularly maintained
by the offeror or prospective subcontractor in its business
operations will be acceptable, or the description may be inserted as
the result of negotiations].
(2) 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.
(d) Requirements for data other than certified cost or pricing
data.
(1) Data other than certified cost or pricing data submitted in
accordance with this provision shall include all data necessary to
permit a determination that the proposed price is fair and
reasonable, to include the requirements in DFARS 215.402 and DFARS
215.404-1.
(2) In cases in which uncertified cost data is required, the
information shall be provided in the form in which it is regularly
maintained by the offeror or prospective subcontractor in its
business operations.
(3) The Offeror shall provide information described as follows:
[Insert description of the data and the format that are required,
including access to records necessary to permit an adequate
evaluation of the proposed price in accordance with FAR 15.403-3.]
(4) Within 10 days of a written request from the contracting
officer to the offeror for additional information to support
proposal analysis, the Offeror shall either provide the requested
information, or provide a written explanation for refusing to comply
with the request. Before providing a refusal and explanation,
offerors are encouraged to clarify the request with the contracting
officer.
(5) Subcontract price evaluation.
(i) Offerors shall obtain from subcontractors whatever
information is necessary to support a determination of price
reasonableness, as described in FAR part 15 and DFARS part 215. The
information may include cost data to support a commerciality
determination, cost realism analysis, should-cost review, or any
other type of analysis addressed by FAR part 15 and DFARS part 215.
The data needed from a prospective subcontractor may include data
other than certified cost or pricing data (which includes
uncertified cost data obtained from the subcontractor), and
information on the prices at which the same or similar items have
previously been sold.
(ii) No additional cost information may be required from a
prospective subcontractor in any case in which there are sufficient
nongovernment sales of the same item to establish reasonableness of
price.
(iii) If the offeror relies on relevant sales data for similar
items to determine the price is reasonable, the Offeror shall obtain
only that technical information necessary to support the conclusion
that--
(A) The items are technically similar; and
(B) Any dissimilarities should not produce a material price
difference.
(e) The Offeror shall require all prospective subcontractors
above the simplified acquisition threshold in FAR part 2 to adhere
to the requirements of paragraph (c) of this provision when
determining that the proposed prices from prospective lower-tier
subcontractors are fair and reasonable.
(End of provision)
0
11. Add section 252.215-70YY to read as follows:
252.215-70YY Requirements for Submission of Proposals to the
Administrative Contracting Officer and Contract Auditor.
As prescribed in 215.408(6)(iii), use the following provision:
Requirements for Submission of Proposals to the Administrative
Contracting Officer and Contract Auditor (DATE)
When the proposal is submitted, the Offeror shall also submit
one copy each to--
(a) The Administrative Contracting Officer, and
(b) The Contract Auditor.
(End of provision)
0
12. Add section 252.215-70ZZ to read as follows:
252.215-70ZZ Requirements for Submission of Proposals via Electronic
Media.
As prescribed in 215.408(6)(iv), use the following provision:
Requirements for Submission of Proposals Via Electronic Media (DATE)
The Offeror shall submit the cost portion of the proposal via
the following electronic media: [Insert media format, e.g.,
electronic spreadsheet format, electronic mail, etc.].
(End of provision)
[FR Doc. 2015-18938 Filed 7-31-15; 8:45 am]
BILLING CODE 5001-06-P