[Federal Register Volume 75, Number 167 (Monday, August 30, 2010)]
[Rules and Regulations]
[Pages 53135-53153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21026]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 4, 12, 14, 15, 16, 19, 27, 30, 31, 32, 42, 44, 49,
and 52
[FAC 2005-45; FAR Case 2005-036; Item II; Docket 2007-0001, Sequence
15]
RIN 9000-AK74
Federal Acquisition Regulation; Definition of Cost or Pricing
Data
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to clarify the
distinction between ``certified cost or pricing data'' and ``data other
than certified cost or pricing data'', and to clarify requirements for
submission of cost or pricing data.
DATES: Effective Date: October 1, 2010.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Edward N. Chambers, Procurement Analyst, at (202) 501-3221. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-45, FAR
case 2005-036.
SUPPLEMENTARY INFORMATION:
A. Background
Subpart 15.4 of the FAR describes the contracting officer's
responsibility to purchase supplies and services at fair and reasonable
prices and the use of data and information in meeting this requirement.
This subpart incorporates the requirements of the Truth In Negotiations
Act (TINA), 10 U.S.C. 2306a and 41 U.S.C. 254b, which address the
requirements for the submission of cost or pricing data and the
circumstances under which a contractor must certify to their accuracy,
completeness, and currency.
The Councils believe that the implementation of TINA in FAR subpart
15.4 is not sufficiently clear. In particular, there is confusion
regarding the right of the Government to request ``data other than
certified cost or pricing data,'' the obligation of the offeror to
provide this data, and the definition of this term.
This lack of clarity is due, in large part, to definitions that
overlap and are not identical to TINA. For example, the term ``cost or
pricing data'' is defined in the FAR to mean certified cost or pricing
data, whereas TINA does not make certification part of the definition
of this term. This regulatory refinement has led to confusion regarding
the level of information that a contracting officer may request to
establish fair and reasonable pricing including a misunderstanding by
some that the data elements that comprise cost or pricing data cannot
be requested by the Government unless the data are required by law to
be submitted to the contracting officer in a certified form. This
confusion has been exacerbated by the FAR's use of the phrase
``information other than cost or pricing data,'' which has made it
difficult for contracting officers to understand the circumstances when
data other than certified cost or pricing data should be obtained to
protect the Government from paying unreasonable prices.
Even the basic articulation of policy regarding the use of data to
establish the fairness and reasonableness of offered prices in the
introductory paragraph of FAR 15.402(a) has lacked a certain level of
clarity that creates uncertainty. For many years, this paragraph has
appropriately cautioned contracting officers not to obtain more
information than is necessary--and the FAR must continue to do so.
However this paragraph should also, but currently does not, expressly
mention the underlying statutory authority to collect ``data other than
certified cost or pricing data.'' Because of this omission, some
contracting officers may be under the misperception that there is a
greater responsibility to avoid asking unnecessarily for the submission
of cost or pricing data than there is, in the first instance, to
determine whether and how much of this data may be required, in a given
case, to establish price fairness and reasonableness. In fact, both
responsibilities--i.e., obtaining data that are adequate for evaluating
the reasonableness of the price and taking appropriate care not to ask
for more data than is necessary--are inextricably interrelated and
equally important. As such, the FAR needs to communicate this message
more clearly.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 72 FR 20092, April 23, 2007, to revise the FAR definition
of ``cost or pricing data''; change the term ``information other than
cost or pricing data'' to ``data other than certified cost or pricing
data''; add a definition of ``certified cost or pricing data'' to make
the terms and definitions consistent with TINA and more understandable
to the general reader; change terminology throughout the FAR; and
clarify the need for contracting officers to obtain ``data other than
certified cost or pricing data'' when there is no other means to
determine fair and reasonable pricing during price analysis.
Based on comments received on the proposed rule, a public meeting
held on November 1, 2007, and additional deliberations (which are all
discussed in greater detail below), the Councils have adopted a final
rule that--
Clarifies terminology used in the FAR to make it
consistent with TINA, resulting in (i) refinements to the regulatory
definition of cost or pricing data, (ii) the addition of a definition
for ``certified cost or pricing data,'' (iii) the addition of a
definition for ``data other than certified cost or pricing data,'' and
[[Page 53136]]
(iv) deletion of the phrase ``information other than cost or pricing
data'';
Clarifies responsibilities regarding the request for, and
submission of, ``data other than certified cost or pricing data'' to
establish fair and reasonable pricing, both in the case when
``certified cost or pricing data'' is required and is not required;
Retains the current order of preference for determining
the type of cost or pricing data required to establish fair and
reasonable prices when certified cost or pricing data are not required;
Retains and reinforces important statements to explain why
contracting officers must not require, unnecessarily, the submission of
``data other than certified cost or pricing data'';
Clarifies the instructions for offerors preparing a
contract pricing proposal when cost or pricing data are required so
that such instructions are consistent with the clarified terminology
and policies for determining the type and quantity of data necessary to
establish a fair and reasonable price; and
Supplements existing coverage to clarify current coverage
and achieve greater understanding by contracting officers and
contractors.
This rule neither expands nor diminishes the existing rights of
contracting officers to request cost or pricing data (whether certified
or other than certified) or other information, or the existing
responsibilities of the offeror to submit such data or other
information. Similarly, the rule does not require, encourage, or
authorize contracting officers to obtain cost or pricing data or other
information unless it is needed to determine that prices offered are
fair and reasonable, which may include the request for such data in
connection with a cost realism analysis. As the rule explains,
requiring contractors to submit more data than what is needed can
``lead to increased proposal preparation costs, generally extend
acquisition lead time, and consume additional contractor and Government
resources.''
Whether a contractor must submit ``certified cost or pricing data''
is based on the requirements of TINA and its stated exceptions. With
respect to ``data other than certified cost or pricing data,'' the
introductory policy statement in FAR 15.402(a) has been clarified to
tie together the contracting officer's longstanding statutory
responsibility to request the data and information necessary to
establish a fair and reasonable price--as stated in TINA at 10 U.S.C.
2306a(d)(1) and 41 U.S.C. 254b(d)(1)--with the caution that, in doing
so, the contracting officer must not request more data than is
necessary. By doing so, the FAR will provide a more complete
articulation of the policy underlying the use of ``data other than
certified cost or pricing data'' in establishing price fairness and
reasonableness, in furtherance of the contracting officer's duty to
serve as a responsible steward of the taxpayer's resources.
B. Public Comments
The first comment period closed on June 22, 2007. Comments were
received from 11 respondents. As a result of the comments received, a
public meeting was scheduled with notice provided at 72 FR 61854 on
November 1, 2007. The public meeting was held on November 15, 2007, and
was followed by a one week period for submission of additional
comments. Several respondents submitted additional comments. The public
comments are addressed in the following analysis:
General Comments
Some respondents noted that the proposed changes should alleviate
confusion. Others raised the following general concerns regarding
various aspects of the proposed rule.
1. Some respondents were concerned that the proposed rule will
result in contracting officers by-passing normal market research and
pricing techniques and require contractors to submit full cost or
pricing data as if the Truth in Negotiations Act (TINA) applied.
Response: The current FAR, as well as the proposed and final rule,
protect against this practice. Contracting officers must generally
follow the order of preference at FAR 15.402, and are required by that
section to ``obtain the type and quantity of data necessary to
establish a fair and reasonable price, but not more data than is
necessary.'' In theory, this could include all of the elements
prescribed under FAR 15.408, Table 15-2. However, in most cases the
data necessary for a contracting officer to determine cost fairness and
reasonableness, or cost realism, will fall short of this level of data.
The rule should not result in contracting officers requiring
contractors to submit full cost or pricing data as if certification
will be required when it is not necessary.
2. Public comments did point out an error where the proposed rule
changed the FAR to require certified cost or pricing data ``and'' data
other than certified cost or pricing data.
Response: The final rule corrects several instances where ``and''
was incorrectly used, replacing it with ``or''. However, there are
circumstances where ``and'' is appropriate and those have been
retained. The final rule recognizes that the contracting officer may
need to request data other than certified cost or pricing data, in
addition to certified cost or pricing data, to establish fair and
reasonable pricing.
3. Some respondents were concerned about the broadening of the
definition of ``information other than cost or pricing data'' by adding
the words ``and judgmental information.''
Response: Data used to support an offer will necessarily contain
some information that is non-factual, i.e., judgmental information. Due
to its nature, judgmental information cannot be certified. Even in
situations where ``certified cost or pricing data'' are required,
judgmental information is not certified, and it is part of ``data other
than certified cost or pricing data'' that supplements certified cost
or pricing data. The final rule deletes the phrase ``information other
than cost or pricing data,'' but includes ``judgmental information''
and ``judgmental factors'' in the definition of ``data other than
certified cost or pricing data.'' The final rule also includes
additional language to provide consistency with FAR 15.408, Table 15-2
(i.e., any information reasonably required to explain the estimating
process, including the judgmental factors applied and the mathematical
or other methods used in the estimate, including those used in
projecting from known data; and the nature and amount of any
contingencies included in the proposed price). Aligning the definition
of ``data other than certified cost or pricing data'' and the text of
the language in FAR 15.408, Table 15-2, keeps the definition consistent
with the current FAR requirements and TINA. The Councils note that the
existence of a judgment is factual, but the nature and amount of the
judgment are not.
4. Many respondents were concerned that the proposed rule
inappropriately adds the phrase ``data other than certified cost or
pricing data'' throughout the proposed rule when only certified cost or
pricing data apply.
Response: The final rule deletes that addition in some instances.
There are other instances where both phrases: ``Certified cost or
pricing data'' and ``data other than certified cost or pricing data''
are applicable. See the response to General Comments number 2.
5. Several respondents were concerned that offerors of commercial
items would be required to submit cost data in all instances.
Response: Such an outcome would be contrary to the intent of the
rule, which does not alter the current intent of the
[[Page 53137]]
FAR regarding the type and quantity of data to determine if the price
of a commercial item is fair and reasonable. FAR 15.403-1(c)(3)
specifically exempts commercial items from certified cost or pricing
data requirements, and this rule does not change that exception. Also,
FAR 15.403-3(c)(2) sets limitations on the type of cost data or pricing
data that can be requested regarding commercial items. When contracting
officers determine that they can use price analysis to determine the
price to be fair and reasonable, the order of preference at FAR 15.402
means cost data will generally not be obtained for pricing commercial
items. Contracting officers are to obtain only that information needed
to determine a fair and reasonable price, which, in some cases, may
include contractor cost data (without certification) for commercial
items.
Specific Comments
1. Comment: Add a definition of ``cost data,'' which is referenced
at FAR 15.402(a)(2)(ii).
Response: We do not believe a separate definition is required. The
revised definition of ``data other than certified cost or pricing
data'' and the existing definition of ``information other than cost or
pricing data'' both encompass cost data and pricing data depending on
what is needed by the contracting officer, using the order of
preference at FAR 15.402(a). The definition simply breaks out various
aspects of ``data other than certified cost or pricing data.'' The cost
data refers to data related to a contractor's costs.
2. Comment: Separate enumeration of ``cost or pricing data'' in FAR
4.803(a)(17)(i) ``Content of Contract Files'' is unnecessary because it
is repetitive with existing definitions in FAR 2.101.
Response: The final rule revises FAR 4.803(a)(17)(i) to read
``certified cost or pricing data'' consistent with the revised
definition. The requirement at FAR 4.803(a)(17) is for documenting the
contract file for the contracting officer's determination of a fair and
reasonable price, and lists the types of data that should be
maintained. ``Certified cost or pricing data'' includes all data that
conforms to FAR 15.408, Table 15-2, while ``data other than certified
cost or pricing data'' includes only the level of data the contracting
officer needs to determine the price fair and reasonable. Whichever is
required to be submitted, this section makes it clear that it shall be
documented in the contract file.
3. Comment: FAR 13.106-3(a)(2)(iii) contradicts FAR 15.404-
1(b)(2)(iv) as FAR 13.106-3(a)(2)(iii) appears to indicate non-
acceptability of price lists and catalogs as a price analysis stand
alone technique.
Response: Neither of the referenced texts is part of this
rulemaking. Nonetheless, we note that the references do not conflict.
Both references list various techniques and types of information the
contracting officer may use, either individually or collectively. The
type and extent of data needed is based on the contracting officer's
business judgment. FAR 13.106-3(a)(2)(iii) simply adds a cautionary
note when using catalog prices.
4. Comment: Change language in the proposed FAR 15.403-3(a)(1)(ii)
from ``If the contracting officer cannot obtain adequate data from
sources other than the offeror, the contracting officer shall require''
to ``If the contracting officer determines that adequate data from
sources other than the offeror is not available, the contracting
officer shall require.''
Response: We concur that the contracting officer should determine
when adequate data is not available and have clarified the final rule
accordingly. However, ``data'' is plural and requires the verb ``are
available'' rather than ``is available''.
5. Comment: The new language at FAR 15.404-1(b) confuses the
difference between cost analysis and price analysis when it states that
``Price analysis may include evaluating data other than certified cost
or pricing data obtained from the offeror or contractor when there is
no other means for determining a fair and reasonable price.'' Price
analysis should only be applied to sales data obtained from the
offeror.
Response: The referenced paragraph is a discussion of ``price''
analysis. The referenced text simply points out that in performing
price analysis, the contracting officer may require data other than
certified cost or pricing data. Price analysis is not limited to sales
data.
6. Comment: Language at FAR 15.404-1(b)(2)(ii) needs clarification.
Response: Changes have been made to FAR 15.404-1(b)(2)(ii) to
clarify the text.
7. Comment: In reference to FAR 15.408, Table 15-2, changing the
word ``information'' to the phrase ``data other than certified cost or
pricing data'' means that the contractor does not have to certify all
the cost or pricing data. Changing these terms is changing the
requirement under TINA.
Response: The final rule utilizes the term ``information'' in a few
instances, not as a term of art as it had been used in FAR part 15
prior to this revision, but generically. The requirements under TINA
have not been changed.
8. Comment: The proposed language that adds ``certified cost or
pricing data and data other than certified cost or pricing data'' at
FAR 15.408, Table 15-2, means that the offeror could withhold
disclosure or certification of cost or pricing data related to its
subcontractors, in cases when the subcontractor is not required to
certify.
Response: When ``certified cost or pricing data'' is required, the
prime contractor is responsible for certifying the completeness of all
cost or pricing data, which includes subcontractor price quotes and
cost data when the subcontractor is not required to certify to its
data. The requirement for the prime contractor to certify that it has
submitted all of the facts regarding subcontractor cost data or pricing
data, even if the subcontractor is not required to submit ``certified
cost or pricing data,'' is implicitly in the certification language at
FAR 15.406-2(a).
9. Comment: Throughout the proposed rule, including the clauses,
change ``required certified cost or pricing data and data other than
certified cost or pricing data'' back to ``required certified cost or
pricing data, or data other than certified cost or pricing data.''
Response: The phrases ``certified cost or pricing data'' and ``data
other than certified cost or pricing data'' are joined with ``and''
when they are used to refer to both types of data collectively. The
phrases are joined with ``or'' when the phrases are used to refer to
either one or the other type of data. See the response to General
Comments number 2.
10. Comment: FAR 52.214-26, Audit and Records--Sealed Bidding,
expand the Government's rights by allowing the Government to audit and
review the contractor's records when certified cost or pricing data are
not required. There is no authority to do this.
Response: This change was in error and the final rule deletes that
addition.
11. Comment: The proposed rule inappropriately adds the phrase
``data other than certified cost or pricing data'' to clauses and FAR
15.408, Table 15-2, when only certified cost or pricing data apply.
Response: The final rule adds clarifying language to indicate that,
when certified cost or pricing data is required, data other than
certified cost or pricing data may also be required. See the responses
to General Comments numbers 2 and 4, and Specific Comments number 9.
12. Comment: Why is Alternate I of FAR 52.215-21(b) marked
reserved? It shouldn't be.
[[Page 53138]]
Response: The final rule retains Alternate I.
13. Comment: The Councils are inappropriately prescribing the use
of FAR 15.408, Table 15-2, for both ``certified cost or pricing data''
and ``data other than certified cost or pricing data''. By doing so,
the Councils are advocating cost analysis on commercial items.
Response: This comment is similar to the Specific Comments numbers
7 and 9. The language in the table and clauses is revised in the final
rule. FAR 15.408, Table 15-2, applies only when certified cost or
pricing data are required. However, when certified cost or pricing data
are required, data other than certified cost or pricing data may also
be required. Additionally, cost analysis can be used when an item that
was thought initially to be commercial is found not to have sufficient
sales data or other information for determining the price to be fair
and reasonable. In each situation, and in accordance with FAR 1.602-2,
the contracting officer must exercise business judgment as to the level
and type of data needed to determine that prices are fair and
reasonable following the order of preference at FAR 15.402(a). See the
responses to General Comments numbers 2 and 4, and to Specific Comments
numbers 7 and 9.
14. Comment: The rule will not address situations when a
contracting officer inappropriately determines an item to be
commercial.
Response: Commercial item determinations are beyond the scope of
this rule. This rule is to clarify what data are needed to determine
whether prices are fair and reasonable as required by FAR part 15. The
procedures for making the determination under FAR part 12 are outside
the scope of this rule about the definitions of phrases associated with
cost or pricing data, and the requirements for their submission.
15. Comment: Cost data should only be used when there are no other
means to determine whether price is fair and reasonable.
Response: The order of preference at FAR 15.402(a) has been
restructured, but is essentially unchanged. Certified cost or pricing
data must be obtained when required by TINA. When certified cost or
pricing data are not required, the order of preference at FAR 15.402(a)
must generally be followed.
16. Comment: Contracting officers should never have to rely on cost
data from the offeror to determine if the price for a commercial item
is fair and reasonable.
Response: The contracting officer retains the authority to request
cost data where other information, including pricing data, is either
unavailable or inadequate to establish that prices offered for a
commercial item are fair and reasonable. However, the FAR policy is to
only require submission of ``data other than certified cost or pricing
data,'' and only to the extent necessary to support the contracting
officer's determination of a fair and reasonable price.
17. Comment: The proposed rule demands that the contracting officer
obtains additional data (and ``all facts'') regardless of needs and
reverses the presumption of the present FAR, which asserts that the
contracting officer should not obtain more information than needed. The
proposed rule requires greatly increased amounts of information even
where certified cost or pricing data is not required. This is contrary
to the language of the statute (TINA).
Response: The language in FAR 15.402(a); FAR 15.408, FAR Table 15-
2; and the clauses are revised in the final rule. When certified cost
or pricing data are required, data other than certified cost or pricing
data may also be required. The contracting officer is cautioned to
obtain data other than certified cost or pricing as necessary to
establish a fair and reasonable price. See section A, Background; see
also the responses to the Specific Comments numbers 7, 9, and 16.
18. Comment: The proposed FAR 15.403-3(c)(1) implies that
contractors face vague and unbounded disclosure obligations (i.e.,
``cost data, or any other information the contracting officer
requires'' and ``at a minimum, appropriate data on * * * prices'') that
likely will be highly varied in application to different procurements.
This costly burden is unnecessary--certainly where it applies to exempt
procurements, e.g., commercial items. Proposed changes conflict with
TINA.
Response: TINA and the existing FAR permit a contracting officer to
obtain all data that is needed, in the contracting officer's discretion
(which may vary among contracting officers), to determine the price to
be fair and reasonable. See the order of preference at FAR 15.402(a),
Pricing Policy. The present rule does not change that. The intent is to
leave latitude for contracting officers to exercise business judgment
(FAR 1.602-2) in obtaining whatever data are required in order to be
able to determine a price fair and reasonable, following the order of
preference at FAR 15.402(a). No negotiated procurements, including
procurements of commercial items, are ``exempt'' from a contracting
officer requiring submission of data other than certified cost or
pricing data when it is needed to determine a fair and reasonable
price. The proposed rule is consistent with the existing FAR, the
requirements of TINA, the Federal Acquisition Streamlining Act of 1994
(Pub. L. 103-355), and the Clinger Cohen Act of 1996 (Pub. L. 104-106).
It does not add any requirements that do not already exist in the
statutes and FAR. See the response to Specific Comments number 16.
19. Comment: The proposed rule adds the requirement that price be
``fair'' and ``reasonable'' in circumstances where the previous FAR
required only demonstration of price ``reasonableness.''
Response: Under the existing FAR, the contracting officer must
determine prices to be fair and reasonable (see FAR 15.402(a)). The
final rule makes no changes to this basic policy.
20. Comment: The proposed rule also obligates the contracting
officer to require submission of ``data other than certified cost or
pricing data.'' This is a profound change because the contractor must
submit both certified cost or pricing data and something else.
Response: See section A, Background. Also, see responses to
Specific Comments numbers 7, 9, and 11.
21. Comment: The proposed rule at FAR 15.404-1(b)(1) adds a new
term, ``price or cost data.'' What is ``price or cost data?''
Response: The language has been removed. The final rule clarifies
the language at FAR 15.404-1(b) to correct ``price or cost data'' to
``data other than certified cost or pricing data''.
22. Comment: What is ``commercial item analysis'' at FAR 15.404-
1(b)?
Response: The phrase has been deleted.
23. Comment: The proposed rule at FAR 15.404-1(b)(2)(ii) creates
extensive additional disclosure requirements, which affect the
eligibility for the ``commercial item'' exemption. These include very
particular demands concerning ``prior price,'' ``terms and
conditions,'' ``market and economic factors,'' ``differences between
the similar item and the item being procured'' and encouragement to use
expert technical advice to evaluate ``minor modifications.'' The effect
of these requirements is to reduce the availability and utility of the
``commercial item'' exception and to create, again, a whole class of
``surrogate'' data that is uncertified but nevertheless burdensome and
expensive to produce.
Response: The contracting officer must be able to determine that
the price is fair and reasonable. The fair and reasonable price can be
the commercial
[[Page 53139]]
price. To the extent there are sufficient commercial sales of the item
being procured for the same or similar quantities, both the validity of
the comparison and the reasonableness of the previous prices can be
established, and the company shares that commercial sales data with the
contracting officer when it cannot be obtained by the Government
through normal market research, so that the contracting officer can
determine a fair and reasonable price, obtaining further ``data other
than certified cost or pricing data'' will not be necessary. See
section A, Background, and the responses to Specific Comments numbers
7, 9, and 11.
24. Comment: The rule will create confusion when commercial items
are being procured by putting contracting officers in a position where
the only safe alternative will be to demand the maximum amount of data
from an offeror.
Response: There is no fundamental change from the existing
requirements that contracting officers: ``shall not obtain more data or
information than necessary.'' To the extent there are sufficient
commercial sales of the item for the same or similar quantities, both
the validity of the comparison and the reasonableness of the previous
price can be established, and the company shares that information with
the contracting officer when it cannot be obtained by the Government
through normal market research, so that the contracting officer can
determine a fair and reasonable price, additional data requests will
not be required. This is not a departure from the existing FAR
requirement. See section A, Background.
25. Comment: We believe the FAR Council is expressing
dissatisfaction with the ability of the acquisition workforce to do
price analysis rather than the more familiar cost analysis and
recommend providing adequate training rather than making significant
changes to established regulations.
Response: See section A, Background, and the Background section of
the proposed rule Federal Register notice (72 FR 20092, April 23,
2007), concerning the confusion over the current FAR language, and
further expressed in these public comments about existing FAR
requirements. Training of our acquisition workforce in all types of
proposal analysis is an ongoing effort. The workforce needs the
cooperation of contractors to submit required data so that contracting
officers can ensure a fair and reasonable price. We believe this final
rule helps clarify requirements for submitting data consistent with the
existing FAR. The Councils anticipate the development of training to
help the workforce understand and apply the rule.
26. Comment: Recommend Councils conduct a public meeting.
Response: A public meeting was held on November 15, 2007, to ensure
that all interested parties had an opportunity to provide additional
input. The public meeting was followed by the opportunity for
interested parties to submit comments.
27. Comment: Existing regulations delineate that data provided in
support of proposals fall into two distinct categories: ``cost or
pricing data'' and ``information other than cost or pricing data.'' The
primary differentiator between cost or pricing data and information
other than cost or pricing data is that the former requires
certification in accordance with FAR 15.406-2, while the latter is any
type of information that does not require certification per FAR 15.406-
2. The existing regulations clearly state that ``information other than
cost or pricing data'' is ``any type of information that is not
required to be certified'' and that the definition ``includes cost or
pricing data for which certification is determined inapplicable after
submission.'' As a result, there is no ambiguity as to the type of data
that can be requested or obtained through the submission of
``information other than cost or pricing data.'' The Councils have
changed the type of non-certifiable data to include ``cost data''
rather than what was previously referred to as ``cost information.''
The FAR Council's intent to clarify that the two terms result in
underlying data that is the same, appears to be in direct conflict with
the statutory definition. That statute does not eliminate the
possibility that the data may be the same but it provides a different
standard for ``other information.'' Accordingly, there are two
different types of data defined in TINA, ``cost or pricing data'' that
is required to be certified and ``other information'' that is not
required to be certified.
Response: We believe this comment demonstrates the confusion
reported to the Councils. TINA and FAR 15.402(a) require that the
contracting officer shall require submission of data other than
certified cost or pricing data to the extent necessary to determine the
reasonableness of the price. We agree with the respondent's comment
that the definition of ``information other than cost or pricing data'',
in effect prior to this final rule, included cost or pricing data for
which certification is determined inapplicable after submission. The
contracting officer must obtain whatever level of data is needed to
determine price reasonableness, but cannot require certification of
cost or pricing data (should cost or pricing data be needed) if the
certification requirement of TINA does not apply. However, some
contractors incorrectly believed that the FAR definition of
``information other than cost or pricing data'' in effect prior to this
final rule, precluded the contracting officer from obtaining
uncertified cost or pricing data.
Section 2306a(h) of Title 10, as well as section 254b(h) of Title
41 of the U.S. Code, define both ``cost or pricing data'' and the
circumstances under which that data must be certified. When the data
must be certified, that data becomes ``certified cost or pricing
data.'' If, after submittal, no certification is required, the data
becomes ``data other than certified cost or pricing data.'' Sections
2306a(d)(1) and 254b(d)(1) state: ``When certified cost or pricing data
are not required * * * the contracting officer shall require submission
of data other than certified cost or pricing data to the extent
necessary to determine the reasonableness of the price * * * the
contracting officer shall require that the data submitted include, at a
minimum, appropriate information on prices at which the same or similar
items have previously been sold. * * *'' The statutory requirement is
to obtain data necessary to determine the reasonableness of the price.
The contracting officer cannot require certification of the data
submitted if TINA does not require it to be certified. If the
contracting officer has no other means to determine the reasonableness
of the price (the main requirement of TINA), then the contracting
officer shall require the submission of the necessary data needed to
make that determination, including, at a minimum, prices at which the
same or similar items have been previously sold. TINA does not prohibit
obtaining cost or pricing data when ``certified cost or pricing data''
is not required to be obtained, but TINA (10 U.S.C. 2306(d)), as well
as the FAR, provide requirements to ensure the contracting officer does
not require more data than is necessary to determine that the prices
are fair and reasonable.
28. Comment: The proposed rule would lead contracting officers to
expect offerors to maintain traditional Government cost accounting data
for commercial items.
Response: There is no requirement for anything more than the type
of commercial data customarily maintained. See FAR 15.403-3(a)(2), FAR
15.403-3(c)(2), and FAR 15.403-5(b)(2).
[[Page 53140]]
29. Comment: Use of the word ``claimed'' at FAR 15.403-1(c)(3)(i)
reveals a great deal about the underlying philosophy that is
perpetuated throughout the proposed rule.
Response: The word ``claimed'' in FAR 15.403-1(c)(3)(i) is not new;
it is part of the existing language. There is no inference of intent on
the use of the word. The intent of the rule is to make it clear that
contracting officers must obtain the level of data needed in order to
meet the requirements of TINA (10 U.S.C. 2306a(d)(1) and 41 U.S.C.
254b(d)(1)), which states that ``* * * the contracting officer shall
require submission of data * * * necessary to determine the
reasonableness of the price * * *.''
30. Comment: FAR subpart 15.4 should not be used to determine
whether or not an item being offered is a commercial item.
Response: FAR subpart 15.4 is not used to determine whether or not
an item is a commercial item. However, it is appropriate in FAR subpart
15.4 to require contracting officers to affirmatively decide if an item
being offered meets the definition of ``commercial item'' before asking
a contractor to provide cost or pricing data, if cost analysis is the
contracting officer's only means to determine the price to be fair and
reasonable.
31. Comment: The proposed change to FAR 15.403-3(c), Commercial
Items, states that even if an offeror provides catalog or market
pricing, the contracting officer cannot assume that such information
would be sufficient to establish a fair and reasonable price, and
therefore, the contracting officer ``shall require'' the offeror to
submit data other than certified cost or pricing data to support
further analysis.
Response: There was no substantive change in the language in
question; it is essentially the existing language. The language gives
no mention to ``market pricing.'' Considering FAR subpart 15.4 in its
entirety, if there is adequate market pricing, the contracting officer
is prohibited from requiring data from the contractor (FAR 15.402(a)
and FAR 15.403-3(a)). The current language and revised language in this
final rule only requires submission of data other than certified cost
or pricing data in accordance with the order of preference at FAR
15.402(a), and then only to the level of detail needed to support a
determination of a fair and reasonable price.
32. Comment: The proposed change to FAR 52.215-20, illustrates the
tremendous confusion the proposed rule will cause and the onerous
nature of the pricing requirements for commercial items. The proposed
rule would ``require'' contracting officers to demand that offerors
proposing commercial items submit ``data other than certified cost or
pricing data'' if the contracting officer believes it is necessary to
determine prices fair and reasonable. Proposed paragraph (b) of FAR
52.215-20 then states that if the offeror is not granted an exception
from TINA, then the offeror shall submit ``data other than certified
cost or pricing data.''
Response: FAR 52.215-20 clause requires offerors to submit ``data
other than certified cost or pricing data'' if the contracting officer
believes it is necessary to determine prices to be fair and reasonable.
The final rule clarifies in paragraph (b) of the contract clause FAR
52.215-20 that the data required under Table 15-2 includes ``data other
than certified cost or pricing data'' as well as ``certified cost or
pricing data''.
33. Comment: Within the proposed rule, the Councils have made
significant changes that result in the reprioritizing of the
Government's pricing policy as detailed at FAR 15.402.
Response: In response to comments, the final rule reorganizes the
FAR 15.402(a) to clarify the policy, but the policy remains essentially
unchanged. See section A, Background.
34. Comment: The proposed rule revisions at FAR 15.402(a) suggests
that the ``data other than certified cost or pricing data'' is
preferred over ``certified cost or pricing data'', even when
certification is required by FAR 15.403-4.
Response: In response to comments, the final rule reorganizes FAR
15.402(a) to emphasize that certified cost or pricing data shall be
obtained when required by TINA. When certified cost or pricing data are
not required, the order of preference at FAR 15.402(a)(2) should
generally be followed.
35. Comment: The DoD-specific issues cited in the proposed rule and
at the public meeting have been adequately addressed by the Director of
Defense Procurement and Acquisition Policy through recent policy memos,
policy guidance, and contract pricing training. These actions should be
given a chance to work before further regulatory changes are made that
would impede the U.S. Government's access to the commercial
marketplace.
Response: The purpose of the FAR rulemaking is to eliminate
confusion throughout the Government and to clarify for all agencies and
their contractors definitions and associated responsibilities for the
request and submission of certified cost or pricing data and data other
than certified cost or pricing data. While DoD guidance is helpful to
the DoD acquisition workforce, years of experiences throughout
Government show that the current FAR language is causing confusion over
what a contractor is required to submit to support prices. This
confusion leads to inefficient procurement processes and sometimes
leads to the Government paying unreasonable prices. The revised
language clarifies the regulation, and is consistent with TINA, by
requiring the contracting officer to obtain only the data necessary to
determine the fairness and reasonableness of the price.
36. Comment: The current FAR rules, when properly exercised, are
already capable of achieving fair and reasonable prices and, in this
respondent's opinion, the definitions are clear and unambiguous, and
contracting officers have significant latitude under current
regulations to acquire data from contractors to support price
reasonableness of commercial items.
Response: See section A, Background, and also the responses to
Specific Comments numbers 7, 9, 11, and 23.
37. Comment: There are no proposed changes to make contracting
officers aware that cost data from commercial companies will most
likely not be in a form that complies with their expectations,
training, or experience. Cost data from commercial companies will not
comply with Cost Accounting Standards, FAR part 31, and are not
generally suitable for certification under the Truth in Negotiations
Act. The FAR council should not use terminology that is part of a cost-
based contracting process.
Response: Current regulations and TINA already require contractors
to provide certified cost or pricing data, and data other than
certified cost or pricing data as necessary, that will enable the
contracting officer to determine fair and reasonable prices. The rule
clarifies the regulations by using language consistent with TINA more
precisely. The rule does not expand the contracting officer's authority
to request data from commercial companies when needed for the
determination that prices are fair and reasonable. The challenge the
comment reflects may be real, but it is not affected by the rule.
38. Comment: The proposed rule would revise the order of preference
of data at FAR 15.402(a) and would eliminate the distinction between
``cost or pricing data'' and ``information other than cost or pricing
data.''
Response: The order of preference is not changed. By eliminating
the ambiguous phrase ``information other than cost or pricing data,''
the rule
[[Page 53141]]
clarifies and maintains the distinction between ``certified cost or
pricing data'' and ``data other than certified cost or pricing data,''
tracking the statutory distinctions. As stated in other responses
herein, the revised definitions clearly describe what is required by
TINA and intended by this rule. TINA defines ``cost or pricing data,''
and then prescribes when such data shall be certified. The nature and
extent of ``cost or pricing data'' is the same regardless of whether it
is certified or not. The statute also prescribes when a contractor must
provide ``data other than certified cost or pricing data'' (which
includes ``cost or pricing data'' and judgmental information) without
being required to certify it. Under the current law and regulations, a
contracting officer is empowered to obtain all the data and judgmental
information needed to determine a fair and reasonable price, but is
restricted as to which data, and when that data, must be certified.
39. Comment: By eliminating the term ``information'' and
substituting the term ``data'' the rule would add ambiguity as to the
legal status of the submission by commercial companies that cannot
provide FAR compliant cost data.
Response: The use of the term ``data'' is consistent with the
statute and with the Government's need to obtain factual information to
be used as a basis for reasoning, discussion, or calculation. The rule
does not change the existing strong limitations in the FAR on the
circumstances under which a contracting officer can obtain certified
cost or pricing data from commercial sources. It does not change the
current restrictions on the amount of data a contracting officer can
obtain (i.e., only that data to the extent necessary to determine fair
and reasonable prices.) The rule also retains the existing flexibility
to use contractor data formats.
40. Comment: The ``of a type'' language in the proposed rule at FAR
15.404-1(b)(2)(i) and FAR 15.401(b)(ii)(C) introduces ambiguity as to
the meaning of a commercial item. It is recommended that the ``of a
type'' language be deleted from the proposed rule as it seems to add no
clarity to the definition of a commercial item or how commercial items
are to be priced.
Response: We believe the respondent meant FAR 15.404-1(b)(2)(ii)
and FAR 15.404-1(b)(2)(ii)(C). The references in the comment either do
not have the ``of a type'' text, or the reference is erroneous. These
subparagraphs of the FAR provide requirements for price analysis and
appropriately directs contracting officers to consider price
comparisons even in situations when the proposed item is ``of a type''
that is customarily used by the general public or non-governmental
entities for purposes other than governmental purposes, a term used
consistently in the definition of commercial item at FAR 2.101. This
section also appropriately directs contracting officers to obtain
technical assistance.
41. Comment: The proposed rule fails to address the confusion in
pricing noncompetitive (sole-source) commercial items and guides the
contracting officer to perform price analysis of previous DoD
(Government) prices to determine price reasonableness.
Response: The intent of the rule is for contracting officers to
follow the order of preference, which includes price analysis
(including price analysis of previous Government and non-Government
sales). The Councils recognize, however, that there has been confusion
over the type and amount of data that can be required by a contracting
officer, particularly in non-competitive (sole-source) acquisitions of
commercial items. Accordingly, for the sake of clarification, changes
were made at FAR 15.402(a)(2)(ii)(A), FAR 15.403-1(c)(3)(i), and FAR
15.403-3(c) to emphasize the need for the contracting officer to review
the history of sales to non-governmental and governmental entities,
determine whether an item is a commercial item, and decide whether
certified cost or pricing data are required. The changes to FAR
15.402(a) provide sufficient flexibility to the contracting officer to
address the specific contracting situation. As revised, this rule
clarifies that TINA authorizes a contracting officer to obtain data
other than certified cost or pricing data to the extent necessary to
establish a fair and reasonable price, even when the acquisition is for
a commercial item. Therefore, the rule sets forth appropriate guidance
for determining fair and reasonable prices.
This is a significant regulatory action and, therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
C. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 rule does not
expand or diminish the existing rights of the contracting officer to
obtain cost data or pricing data. Further, most acquisitions involving
small entities are under the threshold for the submission of certified
cost or pricing data of $700,000, the new TINA threshold (see FAR Case
2008-024, Item I of this FAC). Finally, this rule will benefit all
entities, both large and small, by clarifying the requirements for the
submission of ``certified cost or pricing data'' and ``data other than
certified cost or pricing data.''
D. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the FAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 9000-
0013.
List of Subjects in 48 CFR Parts 2, 4, 12, 14, 15, 16, 19, 27, 30,
31, 32, 42, 44, 49, and 52
Government procurement.
Dated: August 18, 2010.
Edward Loeb,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 4, 12, 14, 15, 16,
19, 27, 30, 31, 32, 42, 44, 49, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 4, 12, 14, 15, 16, 19,
27, 30, 31, 32, 42, 44, 49, and 52 continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101 in paragraph (b)(2) by--
0
a. Adding, in alphabetical order, the definition ``Certified cost or
pricing data'';
0
b. Revising the introductory text of the definition ``Cost or pricing
data'';
0
c. Adding, in alphabetical order, the definition ``Data other than
certified cost or pricing data''; and
0
d. Removing the definition ``Information other than cost or pricing
data''.
The added and revised text reads as follows:
2.101 Definitions
* * * * *
(b) * * *
(2) * * *
Certified cost or pricing data means ``cost or pricing data'' that
were required to be submitted in accordance with FAR 15.403-4 and
15.403-5 and have been certified, or are required to be certified,
[[Page 53142]]
in accordance with 15.406-2. This certification states that, to the
best of the person's knowledge and belief, the cost or pricing data are
accurate, complete, and current as of a date certain before contract
award. Cost or pricing data are required to be certified in certain
procurements (10 U.S.C. 2306a and 41 U.S.C. 254b).
* * * * *
Cost or pricing data (10 U.S.C. 2306a(h)(1) and 41 U.S.C. 254b)
means all facts that, as of the date of price agreement, or, if
applicable, an earlier date agreed upon between the parties that is as
close as practicable to the date of agreement on price, prudent buyers
and sellers would reasonably expect to affect price negotiations
significantly. Cost or pricing data are factual, not judgmental; and
are verifiable. While they do not indicate the accuracy of the
prospective contractor's judgment about estimated future costs or
projections, they do include the data forming the basis for that
judgment. Cost or pricing data are more than historical accounting
data; they are all the facts that can be reasonably expected to
contribute to the soundness of estimates of future costs and to the
validity of determinations of costs already incurred. They also
include, but are not limited to, such factors as--
* * * * *
Data other than certified cost or pricing data means pricing data,
cost data, and judgmental information necessary for the contracting
officer to determine a fair and reasonable price or to determine cost
realism. Such data may include the identical types of data as certified
cost or pricing data, consistent with Table 15-2 of 15.408, but without
the certification. The data may also include, for example, sales data
and any information reasonably required to explain the offeror's
estimating process, including, but not limited to--
(1) The judgmental factors applied and the mathematical or other
methods used in the estimate, including those used in projecting from
known data; and
(2) The nature and amount of any contingencies included in the
proposed price.
* * * * *
PART 4--ADMINISTRATIVE MATTERS
4.704 [Amended]
0
3. Amend section 4.704 in paragraph (b) by removing ``for cost'' and
adding ``for certified cost'' in its place.
0
4. Amend section 4.803 by revising paragraphs (a)(17) and (b)(4) to
read as follows:
4.803 Contents of contract files.
* * * * *
(a) * * *
(17) Data and information related to the contracting officer's
determination of a fair and reasonable price. This may include--
(i) Certified cost or pricing data;
(ii) Data other than certified cost or pricing data;
(iii) Justification for waiver from the requirement to submit
certified cost or pricing data; or
(iv) Certificates of Current Cost or Pricing Data.
* * * * *
(b) * * *
(4) Certified cost or pricing data, Certificates of Current Cost or
Pricing Data, or data other than certified cost or pricing data; cost
or price analysis; and other documentation supporting contractual
actions executed by the contract administration office.
* * * * *
PART 12--ACQUISITON OF COMMERCIAL ITEMS
12.102 [Amended]
0
5. Amend section 12.102 in paragraph (f)(2)(ii) by removing ``Cost or
pricing'' and adding ``Certified cost or pricing'' in its place.
12.504 [Amended]
0
6. Amend section 12.504 in paragraph (a)(7) by removing ``provide
cost'' and adding ``provide certified cost'' in its place.
PART 14--SEALED BIDDING
0
7. Amend section 14.201-7 by removing from paragraph (a)(1)(ii) ``of
cost'' and adding ``of certified cost'' in its place; and by revising
paragraphs (b)(1) and (c)(1) to read as follows:
14.201-7 Contract clauses.
* * * * *
(b)(1) When contracting by sealed bidding, the contracting officer
shall insert the clause at 52.214-27, Price Reduction for Defective
Certified Cost or Pricing Data--Modifications--Sealed Bidding, in
solicitations and contracts if the contract amount is expected to
exceed the threshold for submission of certified cost or pricing data
at 15.403-4(a)(1).
* * * * *
(c)(1) When contracting by sealed bidding, the contracting officer
shall insert the clause at 52.214-28, Subcontractor Certified Cost or
Pricing Data--Modifications--Sealed Bidding, in solicitations and
contracts if the contract amount is expected to exceed the threshold
for submission of certified cost or pricing data at 15.403-4(a)(1).
* * * * *
PART 15--CONTRACTING BY NEGOTIATION
0
8. Amend section 15.204-5 by revising paragraph (b)(5) to read as
follows:
15.204-5 Part IV--Representations and Instructions.
* * * * *
(b) * * *
(5) Certified cost or pricing data (see Table 15-2 of 15.408) or
data other than certified cost or pricing data.
* * * * *
0
9. Amend section 15.402 by revising the introductory text and paragraph
(a) to read as follows:
15.402 Pricing policy.
Contracting officers shall--
(a) Purchase supplies and services from responsible sources at fair
and reasonable prices. In establishing the reasonableness of the
offered prices, the contracting officer--
(1) Shall obtain certified cost or pricing data when required by
15.403-4, along with data other than certified cost or pricing data as
necessary to establish a fair and reasonable price; or
(2) When certified cost or pricing data are not required by 15.403-
4, obtain data other than certified cost or pricing data as necessary
to establish a fair and reasonable price, generally using the following
order of preference in determining the type of data required:
(i) No additional data from the offeror, if the price is based on
adequate price competition, except as provided by 15.403-3(b).
(ii) Data other than certified cost or pricing data such as--
(A) Data related to prices (e.g., established catalog or market
prices, sales to non-governmental and governmental entities), relying
first on data available within the Government; second, on data obtained
from sources other than the offeror; and, if necessary, on data
obtained from the offeror. When obtaining data from the offeror is
necessary, unless an exception under 15.403-1(b)(1) or (2) applies,
such data submitted by the offeror shall include, at a minimum,
appropriate data on the prices at which the same or similar items have
been sold previously, adequate for evaluating the reasonableness of the
price.
(B) Cost data to the extent necessary for the contracting officer
to determine a fair and reasonable price.
(3) Obtain the type and quantity of data necessary to establish a
fair and
[[Page 53143]]
reasonable price, but not more data than is necessary. Requesting
unnecessary data can lead to increased proposal preparation costs,
generally extend acquisition lead time, and consume additional
contractor and Government resources. Use techniques such as, but not
limited to, price analysis, cost analysis, and/or cost realism analysis
to establish a fair and reasonable price. If a fair and reasonable
price cannot be established by the contracting officer from the
analyses of the data obtained or submitted to date, the contracting
officer shall require the submission of additional data sufficient for
the contracting officer to support the determination of the fair and
reasonable price.
* * * * *
0
10. Amend section 15.403 by revising the section heading to read as
follows:
15.403 Obtaining certified cost or pricing data.
* * * * *
0
11. Amend section 15.403-1 by--
0
a. Revising the section heading, paragraph (a), the introductory text
of paragraph (b), the heading to paragraph (c) introductory text, and
paragraph (c)(3)(i);
0
b. Removing from paragraph (c)(3)(iii)(A) ``of cost'' and adding ``of
certified cost'' in its place;
0
c. Revising paragraphs (c)(3)(iii)(B) and (c)(3)(iii)(C);
0
d. Removing from paragraph (c)(3)(iv) ``for cost'' and adding ``for
certified cost'' in its place; and
0
e. Revising the introductory text of paragraph (c)(4).
The revised text reads as follows:
15.403-1 Prohibition on obtaining certified cost or pricing data (10
U.S.C. 2306a and 41 U.S.C. 254b).
(a) Certified cost or pricing data shall not be obtained for
acquisitions at or below the simplified acquisition threshold.
(b) Exceptions to certified cost or pricing data requirements. The
contracting officer shall not require certified cost or pricing data to
support any action (contracts, subcontracts, or modifications) (but may
require data other than certified cost or pricing data as defined in
FAR 2.101 to support a determination of a fair and reasonable price or
cost realism)--
* * * * *
(c) Standards for exceptions from certified cost or pricing data
requirements--* * *
(3) * * *
(i) Any acquisition of an item that the contracting officer
determines meets the commercial item definition in 2.101, or any
modification, as defined in paragraph (3)(i) of that definition, that
does not change the item from a commercial item to a noncommercial
item, is exempt from the requirement for certified cost or pricing
data. If the contracting officer determines that an item claimed to be
commercial is, in fact, not commercial and that no other exception or
waiver applies, (e.g. the acquisition is not based on adequate price
competition; the acquisition is not based on prices set by law or
regulation; and the acquisition exceeds the threshold for the
submission of certified cost or pricing data at 15.403-4(a)(1)) the
contracting officer shall require submission of certified cost or
pricing data.
* * * * *
(iii) * * *
(B) For acquisitions funded by DoD, NASA, or Coast Guard, such
modifications of a commercial item are exempt from the requirement for
submission of certified cost or pricing data provided the total price
of all such modifications under a particular contract action does not
exceed the greater of the threshold for obtaining certified cost or
pricing data in 15.403-4 or 5 percent of the total price of the
contract at the time of contract award.
(C) For acquisitions funded by DoD, NASA, or Coast Guard such
modifications of a commercial item are not exempt from the requirement
for submission of certified cost or pricing data on the basis of the
exemption provided for at 15.403-1(c)(3) if the total price of all such
modifications under a particular contract action exceeds the greater of
the threshold for obtaining certified cost or pricing data in 15.403-4
or 5 percent of the total price of the contract at the time of contract
award.
* * * * *
(4) Waivers. The head of the contracting activity (HCA) may,
without power of delegation, waive the requirement for submission of
certified cost or pricing data in exceptional cases. The authorization
for the waiver and the supporting rationale shall be in writing. The
HCA may consider waiving the requirement if the price can be determined
to be fair and reasonable without submission of certified cost or
pricing data. For example, if certified cost or pricing data were
furnished on previous production buys and the contracting officer
determines such data are sufficient, when combined with updated data, a
waiver may be granted. If the HCA has waived the requirement for
submission of certified cost or pricing data, the contractor or higher-
tier subcontractor to whom the waiver relates shall be considered as
having been required to provide certified cost or pricing data.
Consequently, award of any lower-tier subcontract expected to exceed
the certified cost or pricing data threshold requires the submission of
certified cost or pricing data unless--
* * * * *
0
12. Revise section 15.403-2 to read as follows:
15.403-2 Other circumstances where certified cost or pricing data are
not required.
(a) The exercise of an option at the price established at contract
award or initial negotiation does not require submission of certified
cost or pricing data.
(b) Certified cost or pricing data are not required for proposals
used solely for overrun funding or interim billing price adjustments.
0
13. Revise section 15.403-3 to read as follows:
15.403-3 Requiring data other than certified cost or pricing data.
(a)(1) In those acquisitions that do not require certified cost or
pricing data, the contracting officer shall--
(i) Obtain whatever data are available from Government or other
secondary sources and use that data in determining a fair and
reasonable price;
(ii) Require submission of data other than certified cost or
pricing data, as defined in 2.101, from the offeror to the extent
necessary to determine a fair and reasonable price (10 U.S.C.
2306a(d)(1) and 41 U.S.C. 254b(d)(1)) if the contracting officer
determines that adequate data from sources other than the offeror are
not available. This includes requiring data from an offeror to support
a cost realism analysis;
(iii) Consider whether cost data are necessary to determine a fair
and reasonable price when there is not adequate price competition;
(iv) Require that the data submitted by the offeror include, at a
minimum, appropriate data on the prices at which the same item or
similar items have previously been sold, adequate for determining the
reasonableness of the price unless an exception under 15.403-1(b)(1) or
(2) applies; and
(v) Consider the guidance in section 3.3, chapter 3, volume I, of
the Contract Pricing Reference Guide cited at 15.404-1(a)(7) to
determine the data an offeror shall be required to submit.
(2) The contractor's format for submitting the data should be used
(see 15.403-5(b)(2)).
(3) The contracting officer shall ensure that data used to support
price negotiations are sufficiently current to
[[Page 53144]]
permit negotiation of a fair and reasonable price. Requests for updated
offeror data should be limited to data that affect the adequacy of the
proposal for negotiations, such as changes in price lists.
(4) As specified in section 808 of the Strom Thurmond National
Defense Authorization Act for Fiscal Year 1999 (Pub. L. 105-261), an
offeror who does not comply with a requirement to submit data for a
contract or subcontract in accordance with paragraph (a)(1) of this
subsection is ineligible for award unless the HCA determines that it is
in the best interest of the Government to make the award to that
offeror, based on consideration of the following:
(i) The effort made to obtain the data.
(ii) The need for the item or service.
(iii) Increased cost or significant harm to the Government if award
is not made.
(b) Adequate price competition. When adequate price competition
exists (see 15.403-1(c)(1)), generally no additional data are necessary
to determine the reasonableness of price. However, if there are unusual
circumstances where it is concluded that additional data are necessary
to determine the reasonableness of price, the contracting officer
shall, to the maximum extent practicable, obtain the additional data
from sources other than the offeror. In addition, the contracting
officer should request data to determine the cost realism of competing
offers or to evaluate competing approaches.
(c) Commercial items. (1) At a minimum, the contracting officer
must use price analysis to determine whether the price is fair and
reasonable whenever the contracting officer acquires a commercial item
(see 15.404-1(b)). The fact that a price is included in a catalog does
not, in and of itself, make it fair and reasonable. If the contracting
officer cannot determine whether an offered price is fair and
reasonable, even after obtaining additional data from sources other
than the offeror, then the contracting officer shall require the
offeror to submit data other than certified cost or pricing data to
support further analysis (see 15.404-1). This data may include history
of sales to non-governmental and governmental entities, cost data, or
any other information the contracting officer requires to determine the
price is fair and reasonable. Unless an exception under 15.403-1(b)(1)
or (2) applies, the contracting officer shall require that the data
submitted by the offeror include, at a minimum, appropriate data on the
prices at which the same item or similar items have previously been
sold, adequate for determining the reasonableness of the price.
(2) Limitations relating to commercial items (10 U.S.C. 2306a(d)(2)
and 41 U.S.C. 254b(d)(2)). (i) The contracting officer shall limit
requests for sales data relating to commercial items to data for the
same or similar items during a relevant time period.
(ii) The contracting officer shall, to the maximum extent
practicable, limit the scope of the request for data relating to
commercial items to include only data that are in the form regularly
maintained by the offeror as part of its commercial operations.
(iii) The Government shall not disclose outside the Government data
obtained relating to commercial items that is exempt from disclosure
under 24.202(a) or the Freedom of Information Act (5 U.S.C. 552(b)).
(3) For services that are not offered and sold competitively in
substantial quantities in the commercial marketplace, but are of a type
offered and sold competitively in substantial quantities in the
commercial marketplace, see 15.403-1(c)(3)(ii).
14. Amend section 15.403-4 by revising the section heading, and
paragraphs (a), (b), and (c) to read as follows:
15.403-4 Requiring certified cost or pricing data (10 U.S.C. 2306a and
41 U.S.C. 254b).
(a)(1) The contracting officer shall obtain certified cost or
pricing data only if the contracting officer concludes that none of the
exceptions in 15.403-1(b) applies. However, if the contracting officer
has reason to believe exceptional circumstances exist and has
sufficient data available to determine a fair and reasonable price,
then the contracting officer should consider requesting a waiver under
the exception at 15.403-1(b)(4). The threshold for obtaining certified
cost or pricing data is $700,000. Unless an exception applies,
certified cost or pricing data are required before accomplishing any of
the following actions expected to exceed the current threshold or, in
the case of existing contracts, the threshold specified in the
contract:
(i) The award of any negotiated contract (except for undefinitized
actions such as letter contracts).
(ii) The award of a subcontract at any tier, if the contractor and
each higher-tier subcontractor were required to furnish certified cost
or pricing data (but see waivers at 15.403-1(c)(4)).
(iii) The modification of any sealed bid or negotiated contract
(whether or not certified cost or pricing data were initially required)
or any subcontract covered by paragraph (a)(1)(ii) of this subsection.
Price adjustment amounts must consider both increases and decreases
(e.g., a $200,000 modification resulting from a reduction of $500,000
and an increase of $300,000 is a pricing adjustment exceeding
$700,000). This requirement does not apply when unrelated and
separately priced changes for which certified cost or pricing data
would not otherwise be required are included for administrative
convenience in the same modification. Negotiated final pricing actions
(such as termination settlements and total final price agreements for
fixed-price incentive and redeterminable contracts) are contract
modifications requiring certified cost or pricing data if--
(A) The total final price agreement for such settlements or
agreements exceeds the pertinent threshold set forth at paragraph
(a)(1) of this subsection; or
(B) The partial termination settlement plus the estimate to
complete the continued portion of the contract exceeds the pertinent
threshold set forth at paragraph (a)(1) of this subsection (see
49.105(c)(15)).
(2) Unless prohibited because an exception at 15.403-1(b) applies,
the head of the contracting activity, without power of delegation, may
authorize the contracting officer to obtain certified cost or pricing
data for pricing actions below the pertinent threshold in paragraph
(a)(1) of this subsection, provided the action exceeds the simplified
acquisition threshold. The head of the contracting activity shall
justify the requirement for certified cost or pricing data. The
documentation shall include a written finding that certified cost or
pricing data are necessary to determine whether the price is fair and
reasonable and the facts supporting that finding.
(b) When certified cost or pricing data are required, the
contracting officer shall require the contractor or prospective
contractor to submit to the contracting officer (and to have any
subcontractor or prospective subcontractor submit to the prime
contractor or appropriate subcontractor tier) the following in support
of any proposal:
(1) The certified cost or pricing data and data other than
certified cost or pricing data required by the contracting officer to
determine that the price is fair and reasonable.
(2) A Certificate of Current Cost or Pricing Data, in the format
specified in 15.406-2, certifying that to the best of its knowledge and
belief, the cost or pricing data were accurate, complete, and current
as of the date of agreement on price or, if applicable, an earlier date
agreed upon between the parties that is
[[Page 53145]]
as close as practicable to the date of agreement on price.
(c) If certified cost or pricing data are requested and submitted
by an offeror, but an exception is later found to apply, the data must
not be considered certified cost or pricing data as defined in 2.101
and must not be certified in accordance with 15.406-2.
* * * * *
0
15. Revise section 15.403-5 to read as follows:
15.403-5 Instructions for submission of certified cost or pricing data
and data other than certified cost or pricing data.
(a) Taking into consideration the policy at 15.402, the contracting
officer shall specify in the solicitation (see 15.408 (l) and (m))--
(1) Whether certified cost or pricing data are required;
(2) That, in lieu of submitting certified cost or pricing data, the
offeror may submit a request for exception from the requirement to
submit certified cost or pricing data;
(3) Any requirement for data other than certified cost or pricing
data; and
(4) The requirement for necessary preaward or postaward access to
offeror's records.
(b)(1) Format for submission of certified cost or pricing data.
When certification is required, the contracting officer may require
submission of certified cost or pricing data in the format indicated in
Table 15-2 of 15.408, specify an alternative format, or permit
submission in the contractor's format (See 15.408(l)(1)), unless the
data are required to be submitted on one of the termination forms
specified in subpart 49.6.
(2) Format for submission of data other than certified cost or
pricing data. When required by the contracting officer, data other than
certified cost or pricing data may be submitted in the offeror's own
format unless the contracting officer decides that use of a specific
format is essential for evaluating and determining that the price is
fair and reasonable and the format has been described in the
solicitation.
(3) Format for submission of data supporting forward pricing rate
agreements. Data supporting forward pricing rate agreements or final
indirect cost proposals shall be submitted in a form acceptable to the
contracting officer.
0
16. Amend section 15.404-1 by--
0
a. Removing from paragraphs (a)(2) and (a)(3) ``when cost'' and adding
``when certified cost'' in its place;
0
b. Revising paragraph (a)(4) and the second sentence of paragraph
(a)(6);
0
c. Revising the heading of paragraph (b);
0
d. Adding three sentences to the end of paragraph (b)(1);
0
e. Revising the second sentence of paragraph (b)(2)(i), and paragraphs
(b)(2)(ii) and (b)(2)(vii);
0
f. Revising paragraph (c)(1);
0
g. Removing from the introductory text of paragraph (c)(2)(i) ``cost
or'' and adding ``cost data or'' in its place;
0
h. Revising paragraph (c)(2)(v);
0
i. Removing from paragraph (d)(3) ``contractors'' and adding
``contractors' '' in its place;
0
j. Removing from paragraph (e)(1) ``may'' and adding ``should'' in its
place, and removing ``equipment, real'' and adding ``equipment or
real'' in its place;
0
k. Adding paragraph (e)(3); and
0
l. Removing from the third sentence of paragraph (f)(2) ``may'' and
adding ``should'' in its place.
The revised and added text reads as follows:
15.404-1 Proposal analysis techniques.
(a) * * *
(4) Cost analysis may also be used to evaluate data other than
certified cost or pricing data to determine cost reasonableness or cost
realism when a fair and reasonable price cannot be determined through
price analysis alone for commercial or non-commercial items.
* * * * *
(6) * * * Any discrepancy or mistake of fact (such as duplications,
omissions, and errors in computation) contained in the certified cost
or pricing data or data other than certified cost or pricing data
submitted in support of a proposal shall be brought to the contracting
officer's attention for appropriate action.
* * * * *
(b) Price analysis for commercial and non-commercial items. (1) * *
* Unless an exception from the requirement to obtain certified cost or
pricing data applies under 15.403-1(b)(1) or (b)(2), at a minimum, the
contracting officer shall obtain appropriate data, without
certification, on the prices at which the same or similar items have
previously been sold and determine if the data is adequate for
evaluating the reasonableness of the price. Price analysis may include
evaluating data other than certified cost or pricing data obtained from
the offeror or contractor when there is no other means for determining
a fair and reasonable price. Contracting officers shall obtain data
other than certified cost or pricing data from the offeror or
contractor for all acquisitions (including commercial item
acquisitions), if that is the contracting officer's only means to
determine the price to be fair and reasonable.
(2) * * *
(i) * * * Normally, adequate price competition establishes a fair
and reasonable price (see 15.403-1(c)(1)).
(ii) Comparison of the proposed prices to historical prices paid,
whether by the Government or other than the Government, for the same or
similar items. This method may be used for commercial items including
those ``of a type'' or requiring minor modifications.
(A) The prior price must be a valid basis for comparison. If there
has been a significant time lapse between the last acquisition and the
present one, if the terms and conditions of the acquisition are
significantly different, or if the reasonableness of the prior price is
uncertain, then the prior price may not be a valid basis for
comparison.
(B) The prior price must be adjusted to account for materially
differing terms and conditions, quantities and market and economic
factors. For similar items, the contracting officer must also adjust
the prior price to account for material differences between the similar
item and the item being procured.
(C) Expert technical advice should be obtained when analyzing
similar items, or commercial items that are ``of a type'' or requiring
minor modifications, to ascertain the magnitude of changes required and
to assist in pricing the required changes.
* * * * *
(vii) Analysis of data other than certified cost or pricing data
(as defined at 2.101) provided by the offeror.
* * * * *
(c) * * * (1) Cost analysis is the review and evaluation of any
separate cost elements and profit or fee in an offeror's or
contractor's proposal, as needed to determine a fair and reasonable
price or to determine cost realism, and the application of judgment to
determine how well the proposed costs represent what the cost of the
contract should be, assuming reasonable economy and efficiency.
* * * * *
(2) * * *
(v) Review to determine whether any cost data or pricing data,
necessary to make the offeror's proposal suitable for negotiation, have
not been either submitted or identified in writing by the offeror. If
there are such data, the contracting officer shall attempt to obtain
and use them in the negotiations or make satisfactory allowance for the
incomplete data.
* * * * *
(e) * * *
[[Page 53146]]
(3) The contracting officer should request technical assistance in
evaluating pricing related to items that are ``similar to'' items being
purchased, or commercial items that are ``of a type'' or requiring
minor modifications, to ascertain the magnitude of changes required and
to assist in pricing the required changes.
* * * * *
0
17. Amend section 15.404-2 by--
0
a. Revising the section heading;
0
b. Removing from the second sentence in paragraph (a)(1) and the
introductory text of paragraph (a)(2) ``must'' and adding ``shall'' in
its place;
0
c. Revising the introductory text of paragraph (a)(2)(iii) and
paragraph (a)(2)(iii)(F); and
0
d. Removing from the introductory text of paragraph (c)(1) ``may'' and
adding ``should'' in its place.
The revised text reads as follows:
15.404-2 Data to support proposal analysis.
(a) * * *
(2) * * *
(iii) Information to help contracting officers determine
commerciality and a fair and reasonable price, including--
* * * * *
(F) Identifying general market conditions affecting determinations
of commerciality and a fair and reasonable price.
* * * * *
0
18. Amend section 15.404-3 by--
0
a. Revising paragraphs (a) and (b)(3);
0
b. Revising the introductory text of paragraph (c);
0
c. Removing from the introductory text of paragraph (c)(1)
``subcontractor(s), cost'' and adding ``subcontractor(s), certified
cost'' in its place;
0
d. Removing from paragraph (c)(1)(ii) ``pertinent cost'' and adding
``pertinent certified cost'' in its place;
0
e. Revising paragraph (c)(2);
0
f. Removing from paragraphs (c)(3) and (c)(4) ``Subcontractor cost''
and adding ``Subcontractor certified cost'' in its place; and
0
g. Removing from paragraph (c)(5) ``Government cost'' and adding
``Government certified cost'' in its place.
The revised text reads as follows:
15.404-3 Subcontract pricing considerations.
(a) The contracting officer is responsible for the determination of
a fair and reasonable price for the prime contract, including
subcontracting costs. The contracting officer should consider whether a
contractor or subcontractor has an approved purchasing system, has
performed cost or price analysis of proposed subcontractor prices, or
has negotiated the subcontract prices before negotiation of the prime
contract, in determining the reasonableness of the prime contract
price. This does not relieve the contracting officer from the
responsibility to analyze the contractor's submission, including
subcontractor's certified cost or pricing data.
(b) * * *
(3) When required by paragraph (c) of this subsection, submit
subcontractor certified cost or pricing data to the Government as part
of its own certified cost or pricing data.
(c) Any contractor or subcontractor that is required to submit
certified cost or pricing data also shall obtain and analyze certified
cost or pricing data before awarding any subcontract, purchase order,
or modification expected to exceed the certified cost or pricing data
threshold, unless an exception in 15.403-1(b) applies to that action.
* * * * *
(2) The contracting officer should require the contractor or
subcontractor to submit to the Government (or cause submission of)
subcontractor certified cost or pricing data below the thresholds in
paragraph (c)(1) of this subsection and data other than certified cost
or pricing data that the contracting officer considers necessary for
adequately pricing the prime contract.
* * * * *
0
19. Amend section 15.406-2 by revising the introductory text of
paragraph (a), and paragraph (e) to read as follows:
15.406-2 Certificate of current cost or pricing data.
(a) When certified cost or pricing data are required, the
contracting officer shall require the contractor to execute a
Certificate of Current Cost or Pricing Data, using the format in this
paragraph, and must include the executed certificate in the contract
file.
* * * * *
(e) If certified cost or pricing data are requested by the
Government and submitted by an offeror, but an exception is later found
to apply, the data shall not be considered certified cost or pricing
data and shall not be certified in accordance with this subsection.
0
20. Amend section 15.406-3 by revising paragraphs (a)(5) and (a)(6),
and the second and third sentences of paragraph (a)(7) to read as
follows:
15.406-3 Documenting the negotiation.
(a) * * *
(5) If certified cost or pricing data were not required in the case
of any price negotiation exceeding the certified cost or pricing data
threshold, the exception used and the basis for it.
(6) If certified cost or pricing data were required, the extent to
which the contracting officer--
(i) Relied on the certified cost or pricing data submitted and used
them in negotiating the price;
(ii) Recognized as inaccurate, incomplete, or noncurrent any
certified cost or pricing data submitted; the action taken by the
contracting officer and the contractor as a result; and the effect of
the defective data on the price negotiated; or
(iii) Determined that an exception applied after the data were
submitted and, therefore, considered not to be certified cost or
pricing data.
(7) * * * Where the determination of a fair and reasonable price is
based on cost analysis, the summary shall address each major cost
element. When determination of a fair and reasonable price is based on
price analysis, the summary shall include the source and type of data
used to support the determination.
* * * * *
0
21. Amend section 15.407-1 by--
0
a. Revising the section heading;
0
b. Removing from the first sentence in paragraph (a) ``any cost'' and
adding ``any certified cost'' in its place;
0
c. Revising paragraph (b)(1);
0
d. Removing from paragraphs (b)(2) and (b)(3)(ii) ``the cost'' and
adding ``the certified cost'' in its place;
0
e. Revising paragraph (b)(3)(iv);
0
f. Removing from paragraph (b)(4) ``understated cost'' and adding
``understated certified cost'' in its place;
0
g. Removing from paragraph (b)(5)(ii) ``the cost'' and adding ``the
certified cost'' in its place;
0
h. Removing from the first sentence in paragraph (b)(7)(iii)
``defective cost'' and adding ``defective certified cost'' in its
place;
0
i. Removing from the first sentence in paragraph (e) ``Defective Cost''
each time it appears (twice) and adding ``Defective Certified Cost'' in
its place; and
0
j. Removing from the first sentence in the introductory text of
paragraph (f) and the first sentence of paragraph (f)(2)
``subcontractor cost'' and adding ``subcontractor certified cost'' in
its place.
The revised text reads as follows:
15.407-1 Defective certified cost or pricing data.
* * * * *
(b)(1) If, after award, certified cost or pricing data are found to
be inaccurate,
[[Page 53147]]
incomplete, or noncurrent as of the date of final agreement on price or
an earlier date agreed upon by the parties given on the contractor's or
subcontractor's Certificate of Current Cost or Pricing Data, the
Government is entitled to a price adjustment, including profit or fee,
of any significant amount by which the price was increased because of
the defective data. This entitlement is ensured by including in the
contract one of the clauses prescribed in 15.408(b) and (c) and is set
forth in the clauses at 52.215-10, Price Reduction for Defective
Certified Cost or Pricing Data, and 52.215-11, Price Reduction for
Defective Certified Cost or Pricing Data--Modifications. The clauses
give the Government the right to a price adjustment for defects in
certified cost or pricing data submitted by the contractor, a
prospective subcontractor, or an actual subcontractor.
* * * * *
(3) * * *
(iv) Certified cost or pricing data were required; however, the
contractor or subcontractor did not submit a Certificate of Current
Cost or Pricing Data relating to the contract.
* * * * *
15.407-2 [Amended]
0
22. Amend section 15.407-2 in paragraph (c)(1) by removing ``requiring
cost'' and adding ``requiring certified cost'' in its place.
0
23. Amend section 15.407-3 by revising paragraph (a) to read as
follows:
15.407-3 Forward pricing rate agreements.
(a) When certified cost or pricing data are required, offerors are
required to describe any forward pricing rate agreements (FPRAs) in
each specific pricing proposal to which the rates apply and to identify
the latest cost or pricing data already submitted in accordance with
the FPRA. All data submitted in connection with the FPRA, updated as
necessary, form a part of the total data that the offeror certifies to
be accurate, complete, and current at the time of agreement on price
for an initial contract or for a contract modification. (See the
Certificate of Current Cost or Pricing Data at 15.406-2.)
* * * * *
0
24. Amend section 15.408 by--
0
a. Revising paragraphs (b), (c), (d), (e), and (g);
0
b. Removing from paragraph (j) ``that cost'' and adding ``that
certified cost'' in its place;
0
c. Revising paragraph (k), the introductory text of paragraph (l), and
paragraphs (l)(1), (l)(4), and (m); and
0
d. In Table 15-2, which follows paragraph (n), by--
0
1. Revising the table heading, the introductory text, and Notes 1 and
2;
0
2. Revising the first sentence of paragraph B., and paragraph C. of the
I. General Instructions; and
0
3. Revising the introductory text of paragraph A. and paragraph A.(2)
of the II. Cost Elements.
The revised text reads as follows:
15.408 Solicitation provisions and contract clauses.
* * * * *
(b) Price Reduction for Defective Certified Cost or Pricing Data.
The contracting officer shall, when contracting by negotiation, insert
the clause at 52.215-10, Price Reduction for Defective Certified Cost
or Pricing Data, in solicitations and contracts when it is contemplated
that certified cost or pricing data will be required from the
contractor or any subcontractor (see 15.403-4).
(c) Price Reduction for Defective Certified Cost or Pricing Data--
Modifications. The contracting officer shall, when contracting by
negotiation, insert the clause at 52.215-11, Price Reduction for
Defective Certified Cost or Pricing Data--Modifications, in
solicitations and contracts when it is contemplated that certified cost
or pricing data will be required from the contractor or any
subcontractor (see 15.403-4) for the pricing of contract modifications,
and the clause prescribed in paragraph (b) of this section has not been
included.
(d) Subcontractor Certified Cost or Pricing Data. The contracting
officer shall insert the clause at 52.215-12, Subcontractor Certified
Cost or Pricing Data, in solicitations and contracts when the clause
prescribed in paragraph (b) of this section is included.
(e) Subcontractor Certified Cost or Pricing Data--Modifications.
The contracting officer shall insert the clause at 52.215-13,
Subcontractor Certified Cost or Pricing Data--Modifications, in
solicitations and contracts when the clause prescribed in paragraph (c)
of this section is included.
* * * * *
(g) Pension Adjustments and Asset Reversions. The contracting
officer shall insert the clause at 52.215-15, Pension Adjustments and
Asset Reversions, in solicitations and contracts for which it is
anticipated that certified cost or pricing data will be required or for
which any preaward or postaward cost determinations will be subject to
part 31.
* * * * *
(k) Notification of Ownership Changes. The contracting officer
shall insert the clause at 52.215-19, Notification of Ownership
Changes, in solicitations and contracts for which it is contemplated
that certified cost or pricing data will be required or for which any
preaward or postaward cost determination will be subject to subpart
31.2.
(l) Requirements for Certified Cost or Pricing Data and Data Other
Than Certified Cost or Pricing Data. Considering the hierarchy at
15.402, the contracting officer shall insert the provision at 52.215-
20, Requirements for Certified Cost or Pricing Data and Data Other Than
Certified Cost or Pricing Data, in solicitations if it is reasonably
certain that certified cost or pricing data or data other than
certified cost or pricing data will be required. This provision also
provides instructions to offerors on how to request an exception from
the requirement to submit certified cost or pricing data. The
contracting officer shall--
(1) Use the provision with its Alternate I to specify a format for
certified cost or pricing data other than the format required by Table
15-2 of this section;
* * * * *
(4) Replace the basic provision with its Alternate IV if certified
cost or pricing data are not expected to be required because an
exception may apply, but data other than certified cost or pricing data
will be required as described in 15.403-3.
(m) Requirements for Certified Cost or Pricing Data and Data Other
Than Certified Cost or Pricing Data--Modifications. Considering the
hierarchy at 15.402, the contracting officer shall insert the clause at
52.215-21, Requirements for Certified Cost or Pricing Data and Data
Other Than Certified Cost or Pricing Data--Modifications, in
solicitations and contracts if it is reasonably certain that certified
cost or pricing data or data other than certified cost or pricing data
will be required for modifications. This clause also provides
instructions to contractors on how to request an exception from the
requirement to submit certified cost or pricing data. The contracting
officer shall--
(1) Use the clause with its Alternate I to specify a format for
certified cost or pricing data other than the format required by Table
15-2 of this section;
(2) Use the clause with its Alternate II if copies of the proposal
are to be sent to the ACO and contract auditor;
[[Page 53148]]
(3) Use the clause with its Alternate III if submission via
electronic media is required; and
(4) Replace the basic clause with its Alternate IV if certified
cost or pricing data are not expected to be required because an
exception may apply, but data other than certified cost or pricing data
will be required as described in 15.403-3.
* * * * *
Table 15-2--Instructions for Submitting Cost/Price Proposals When
Certified Cost or Pricing Data Are Required
This document provides instructions for preparing a contract
pricing proposal when certified cost or pricing data are required.
Note 1: There is a clear distinction between submitting
certified cost or pricing data and merely making available books,
records, and other documents without identification. The requirement
for submission of certified cost or pricing data is met when all
accurate certified cost or pricing data reasonably available to the
offeror have been submitted, either actually or by specific
identification, to the Contracting Officer or an authorized
representative. As later data come into your possession, it should
be submitted promptly to the Contracting Officer in a manner that
clearly shows how the data relate to the offeror's price proposal.
The requirement for submission of certified cost or pricing data
continues up to the time of agreement on price, or an earlier date
agreed upon between the parties if applicable.
Note 2: By submitting your proposal, you grant the Contracting
Officer or an authorized representative the right to examine records
that formed the basis for the pricing proposal. That examination can
take place at any time before award. It may include those books,
records, documents, and other types of factual data (regardless of
form or whether the data are specifically referenced or included in
the proposal as the basis for pricing) that will permit an adequate
evaluation of the proposed price.
I. General Instructions
* * * * *
B. In submitting your proposal, you must include an index,
appropriately referenced, of all the certified cost or pricing data and
information accompanying or identified in the proposal. * * *
C. As part of the specific information required, you must submit,
with your proposal--
(1) Certified cost or pricing data (as defined at FAR 2.101). You
must clearly identify on your cover sheet that certified cost or
pricing data are included as part of the proposal.
(2) Information reasonably required to explain your estimating
process, including--
(i) The judgmental factors applied and the mathematical or other
methods used in the estimate, including those used in projecting from
known data; and
(ii) The nature and amount of any contingencies included in the
proposed price.
* * * * *
II. Cost Elements
* * * * *
A. Materials and services. Provide a consolidated priced summary of
individual material quantities included in the various tasks, orders,
or contract line items being proposed and the basis for pricing (vendor
quotes, invoice prices, etc.). Include raw materials, parts,
components, assemblies, and services to be produced or performed by
others. For all items proposed, identify the item and show the source,
quantity, and price. Conduct price analyses of all subcontractor
proposals. Conduct cost analyses for all subcontracts when certified
cost or pricing data are submitted by the subcontractor. Include these
analyses as part of your own certified cost or pricing data submissions
for subcontracts expected to exceed the appropriate threshold in FAR
15.403-4. Submit the subcontractor certified cost or pricing data and
data other than certified cost or pricing data as part of your own
certified cost or pricing data as required in paragraph IIA(2) of this
table. These requirements also apply to all subcontractors if required
to submit certified cost or pricing data.
* * * * *
(2) All Other. Obtain certified cost or pricing data from
prospective sources for those acquisitions (such as subcontracts,
purchase orders, material order, etc.) exceeding the threshold set
forth in FAR 15.403-4 and not otherwise exempt, in accordance with FAR
15.403-1(b) (i.e., adequate price competition, commercial items, prices
set by law or regulation or waiver). Also provide data showing the
basis for establishing source and reasonableness of price. In addition,
provide a summary of your cost analysis and a copy of certified cost or
pricing data submitted by the prospective source in support of each
subcontract, or purchase order that is the lower of either $12.5
million or more, or both more than the pertinent certified cost or
pricing data threshold and more than 10 percent of the prime
contractor's proposed price. Also submit any information reasonably
required to explain your estimating process (including the judgmental
factors applied and the mathematical or other methods used in the
estimate, including those used in projecting from known data, and the
nature and amount of any contingencies included in the price). The
Contracting Officer may require you to submit cost or pricing data in
support of proposals in lower amounts. Subcontractor certified cost or
pricing data must be accurate, complete and current as of the date of
final price agreement, or an earlier date agreed upon by the parties,
given on the prime contractor's Certificate of Current Cost or Pricing
Data. The prime contractor is responsible for updating a prospective
subcontractor's data. For standard commercial items fabricated by the
offeror that are generally stocked in inventory, provide a separate
cost breakdown, if priced based on cost. For interorganizational
transfers priced at cost, provide a separate breakdown of cost
elements. Analyze the certified cost or pricing data and submit the
results of your analysis of the prospective source's proposal. When
submission of a prospective source's certified cost or pricing data is
required as described in this paragraph, it must be included as part of
your own certified cost or pricing data. You must also submit any data
other than certified cost or pricing data obtained from a
subcontractor, either actually or by specific identification, along
with the results of any analysis performed on that data.
* * * * *
PART 16--TYPES OF CONTRACTS
16.202-2 [Amended]
0
25. Amend section 16.202-2 by removing from paragraph (b) ``valid
cost'' and adding ``valid certified cost'' in its place.
0
26. Amend section 16.203-2 by revising paragraph (b) to read as
follows:
16.203-2 Application.
* * * * *
(b) In contracts that do not require submission of certified cost
or pricing data, the contracting officer shall obtain adequate data to
establish the base level from which adjustment will be made and may
require verification of data submitted.
0
27. Amend section 16.603-2 by revising the first sentence of paragraph
(c) to read as follows:
16.603-2 Application.
* * * * *
(c) Each letter contract shall, as required by the clause at
52.216-25, Contract Definitization, contain a negotiated definitization
schedule including (1) dates for submission of the contractor's price
proposal, required certified cost or pricing data and data
[[Page 53149]]
other than certified cost or pricing data; and, if required, make-or-
buy and subcontracting plans, (2) a date for the start of negotiations,
and (3) a target date for definitization, which shall be the earliest
practicable date for definitization. * * *
* * * * *
0
28. Amend section 16.603-4 by revising the second sentence of paragraph
(b)(3) to read as follows:
16.603-4 Contract clauses.
* * * * *
(b) * * *
(3) * * * If at the time of entering into the letter contract, the
contracting officer knows that the definitive contract will be based on
adequate price competition or will otherwise meet the criteria of
15.403-1 for not requiring submission of certified cost or pricing
data, the words ``and certified cost or pricing data in accordance with
FAR 15.408, Table 15-2 supporting its proposal'' may be deleted from
paragraph (a) of the clause. * * *
* * * * *
PART 19--SMALL BUSINESS PROGRAMS
0
29. Amend section 19.705-4 by--
0
a. Removing from the introductory text and paragraph (a) introductory
text ``must'' and adding ``shall'' in its place; and
0
b. Revising paragraph (d)(3) to read as follows:
19.705-4 Reviewing the subcontracting plan.
* * * * *
(d) * * *
(3) Ensure that the subcontracting goals are consistent with the
offeror's certified cost or pricing data or data other than certified
cost or pricing data.
* * * * *
0
30. Amend section 19.806 by revising the second and third sentences of
paragraph (a) to read as follows:
19.806 Pricing the 8(a) contract.
(a) * * * If required by subpart 15.4, the SBA shall obtain
certified cost or pricing data from the 8(a) contractor. If the SBA
requests audit assistance to determine the proposed price to be fair
and reasonable in a sole source acquisition, the contracting activity
shall furnish it to the extent it is available.
* * * * *
19.807 [Amended]
0
31. Amend section 19.807 by removing from paragraph (b) ``including
cost'' and adding ``including certified cost'' in its place.
PART 27--PATENTS, DATA, AND COPYRIGHTS
27.202-5 [Amended]
0
32. Amend section 27.202-5 by removing from paragraph (a)(1)(i) ``which
cost'' and adding ``which certified cost'' in its place.
PART 30--COST ACCOUNTING STANDARDS ADMINISTRATION
30.201-5 [Amended]
0
33. Amend section 30.201-5 in paragraph (c)(6) by removing ``Whether
cost'' and adding ``Whether certified cost'' in its place.
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
31.205-6 [Amended]
0
34. Amend section 31.205-6 in paragraph (j)(3)(i)(B), the second
sentence of paragraph (j)(3)(ii), and the second sentence of paragraph
(o)(5) by removing ``which cost'' and adding ``which certified cost''
in its place.
PART 32--CONTRACT FINANCING
32.601 [Amended]
0
35. Amend section 32.601 in paragraph (b)(2) by removing ``defective
cost'' and adding ``defective certified cost'' in its place.
32.607-2 [Amended]
0
36. Amend section 32.607-2 in paragraph (g)(3) by removing ``Defective
Cost'' and adding ``Defective Certified Cost'' in its place.
PART 33--PROTESTS, DISPUTES, AND APPEALS
33.207 [Amended]
0
37. Amend section 33.207 in paragraph (d) by removing ``regarding
cost'' and adding ``regarding certified cost'' in its place.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
0
38. Amend section 36.214 by--
0
a. Revising the introductory text of paragraph (b); and
0
b. Removing from paragraph (b)(1) ``of cost'' and adding ``of certified
cost'' in its place.
0
The revised text reads as follows:
36.214 Special procedures for price negotiation in construction
contracting.
* * * * *
(b) The contracting officer shall evaluate proposals and associated
certified cost or pricing data and data other than certified cost or
pricing data and shall compare them to the Government estimate.
* * * * *
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
42.705-1 [Amended]
0
39. Amend section 42.705-1 in paragraph (b)(5)(iii) by giving separate
indention to paragraphs (b)(5)(iii)(A), (B), (C), and (D) and by
removing from (b)(5)(iii)(D) ``of cost'' and adding ``of certified
cost'' in its place.
0
40. Amend section 42.1304 by revising paragraph (d) to read as follows:
42.1304 Government delay of work.
* * * * *
(d) The contracting officer shall retain in the file a record of
all negotiations leading to any adjustment made under the clause, and
related certified cost or pricing data, or data other than certified
cost or pricing data.
0
41. Amend section 42.1701 by--
0
a. In paragraph (b), revising the first sentence, and removing the last
sentence; and
0
b. Revising the second sentence of paragraph (c). The revised text
reads as follows:
42.1701 Procedures.
* * * * *
(b) The ACO shall obtain the contractor's forward pricing rate
proposal and require that it include cost or pricing data that are
accurate, complete, and current as of the date of submission (but see
15.407-3(c)). * * *
(c) * * * The agreement shall provide for cancellation at the
option of either party and shall require the contractor to submit to
the ACO and to the cognizant contract auditor any significant change in
cost or pricing data used to support the FPRA.
* * * * *
PART 44--SUBCONTRACTING POLICIES AND PROCEDURES
0
42. Amend section 44.202-2 by revising paragraph (a)(8) to read as
follows:
44.202-2 Considerations.
(a) * * *
(8) Has the contractor performed adequate cost or price analysis or
price comparisons and obtained certified cost or pricing data and data
other than certified cost or pricing data?
* * * * *
[[Page 53150]]
0
43. Amend section 44.303 by revising paragraph (c) to read as follows:
44.303 Extent of review.
* * * * *
(c) Pricing policies and techniques, including methods of obtaining
certified cost or pricing data, and data other than certified cost or
pricing data;
* * * * *
44.305-3 [Amended]
0
44. Amend section 44.305-3 in paragraph (a)(1) by removing ``Cost'' and
adding ``Certified cost'' in its place.
PART 45--GOVERNMENT PROPERTY
45.104 [Amended]
0
45. Amend section 45.104 by removing from paragraph (a)(4) ``of cost''
and adding ``of certified cost'' in its place.
PART 49--TERMINATION OF CONTRACTS
49.603-1 [Amended]
0
46. Amend section 49.603-1 in paragraph (b)(7)(x) of the agreement by
removing ``defective cost'' and adding ``defective certified cost'' in
its place.
49.603-2 [Amended]
0
47. Amend section 49.603-2 in paragraph (b)(8)(vii) of the agreement by
removing ``defective cost'' and adding ``defective certified cost'' in
its place.
49.603-3 [Amended]
0
48. Amend section 49.603-3 in paragraph (b)(7)(xv) of the agreement by
removing ``defective cost'' and adding ``defective certified cost'' in
its place.
49.603-4 [Amended]
0
49. Amend section 49.603-4 in paragraph (b)(4)(viii) of the agreement
by removing ``defective cost'' and adding ``defective certified cost''
in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
50. Amend section 52.214-26 by--
0
a. Revising the date of the clause;
0
b. Revising the introductory text of paragraph (b); and
0
c. Removing from paragraph (e) ``of cost'' and adding ``of certified
cost'' in its place.
The revised text reads as follows:
52.214-26 Audit and Records--Sealed Bidding.
* * * * *
Audit and Records--Sealed Bidding (Oct 2010)
* * * * *
(b) Certified cost or pricing data. If the Contractor has been
required to submit certified cost or pricing data in connection with
the pricing of any modification to this contract, the Contracting
Officer, or an authorized representative of the Contracting Officer,
in order to evaluate the accuracy, completeness, and currency of the
certified cost or pricing data, shall have the right to examine and
audit all of the Contractor's records, including computations and
projections, related to--
* * * * *
0
51. Amend section 52.214-27 by--
0
a. Revising the section heading;
0
b. Revising the clause heading and date of the clause;
0
c. Removing from paragraph (a) ``of cost'' and adding ``of certified
cost'' in its place;
0
d. Removing from paragraph (b) ``furnished cost'' and adding
``furnished certified cost'' in its place; removing ``Contractor cost''
and adding ``Contractor certified cost'' in its place; and removing
``(a) above'' and adding ``(a) of this clause'' in its place;
0
e. Removing from paragraph (c) ``(b) above'' and adding ``(b) of this
clause'' in its place, and removing ``defective cost'' and adding
``defective certified cost'' in its place;
0
f. Removing from paragraph (d)(1)(i) ``current cost'' and adding
``current certified cost'' in its place; and removing from paragraph
(d)(1)(ii) ``the cost'' and adding ``the certified cost'' in its place;
0
g. Removing from paragraph (d)(2)(i)(B) ``the cost'' and adding ``the
certified cost'' in its place; and
0
h. Removing from paragraph (e)(2) ``submitted cost'' and adding
``submitted certified cost'' in its place;
The revised text reads as follows:
52.214-27 Price Reduction for Defective Certified Cost or Pricing
Data--Modifications--Sealed Bidding.
* * * * *
Price Reduction for Defective Certified Cost or Pricing Data--
Modifications--Sealed Bidding (Oct 2010)
* * * * *
0
52. Amend section 52.214-28 by--
0
a. Revising the section heading;
0
b. Revising the clause heading and date of the clause;
0
c. Giving separate indention to paragraphs (a)(1) and (2) and by
removing from paragraph (a)(1) ``of cost'' and adding ``of certified
cost'' in its place;
0
d. Revising paragraph (b); and
0
e. Removing from paragraph (d) ``of cost'' and adding ``of certified
cost'' in its place.
The revised text reads as follows:
52.214-28 Subcontractor Certified Cost or Pricing Data--
Modifications--Sealed Bidding.
* * * * *
Subcontractor Certified Cost or Pricing Data--Modifications--Sealed
Bidding (Oct 2010)
* * * * *
(b) Before awarding any subcontract expected to exceed the
threshold for submission of certified cost or pricing data at FAR
15.403-4(a)(1), on the date of agreement on price or the date of
award, whichever is later, or before pricing any subcontract
modifications involving aggregate increases and/or decreases in
costs, plus applicable profits, expected to exceed the threshold for
submission of certified cost or pricing data at FAR 15.403-4(a)(1),
the Contractor shall require the subcontractor to submit certified
cost or pricing data (actually or by specific identification in
writing), as part of the subcontractor's proposal in accordance with
FAR 15.408, Table 15-2 (to include any information reasonably
required to explain the subcontractor's estimating process such as
the judgmental factors applied and the mathematical or other methods
used in the estimate, including those used in projecting from known
data, and the nature and amount of any contingencies included in the
price), unless an exception under FAR 15.403-1(b) applies.
* * * * *
0
53. Amend section 52.215-2 by--
0
a. Revising the date of the clause;
0
b. Revising the introductory text of paragraph (c); and
0
c. Removing from introductory text of paragraph (g) ``paragraph (a)''
and adding ``paragraph (g)'' in its place; and removing from paragraph
(g)(2) ``which cost'' and adding ``which certified cost'' in its place.
The revised text reads as follows:
52.215-2 Audit and Records-Negotiation.
* * * * *
Audit and Records--Negotiation (Oct 2010)
* * * * *
(c) Certified cost or pricing data. If the Contractor has been
required to submit certified cost or pricing data in connection with
any pricing action relating to this contract, the Contracting
Officer, or an authorized representative of the Contracting Officer,
in order to evaluate the accuracy, completeness, and currency of the
certified cost or pricing data, shall have the right to examine and
audit all of the Contractor's records, including computations and
projections, related to--
* * * * *
0
54. Amend section 52.215-9 by--
0
a. Revising the date of Alternate I and paragraph (d)(1); and
0
b. Revising the date of Alternate II and paragraph (d)(1).
The revised text reads as follows:
[[Page 53151]]
52.215-9 Changes or Additions to Make-or-Buy Program.
* * * * *
Alternate I (Oct 2010). * * *
(d) * * *
(1) Support its proposal with certified cost or pricing data in
accordance with FAR 15.408, Table 15-2 when required by FAR 15.403,
and data other than certified cost or pricing data, to permit
evaluation; and
* * * * *
Alternate II (Oct 2010). * * *
(d) * * *
(1) Support its proposal with certified cost or pricing data in
accordance with FAR 15.408, Table 15-2, when required by FAR 15.403,
and data other than certified cost or pricing data, to permit
evaluation; and
* * * * *
0
55. Amend section 52.215-10 by--
0
a. Revising the section heading;
0
b. Revising the clause heading and date of the clause;
0
c. Removing from paragraph (a)(1) ``furnished cost'' and adding
``furnished certified cost'' in its place, and removing from paragraph
(a)(2) ``Contractor cost'' and adding ``Contractor certified cost'' in
its place;
0
d. Revising paragraph (b);
0
e. Removing from paragraph (c)(1)(i) ``current cost'' and adding
``current certified cost'' in its place, and removing from paragraphs
(c)(1)(ii) and (c)(2)(i)(B) ``the cost'' and adding ``the certified
cost'' in its place; and
0
f. Removing from paragraph (d)(2) ``submitted cost'' and adding
``submitted certified cost'' in its place.
The revised text reads as follows:
52.215-10 Price Reduction for Defective Certified Cost or Pricing
Data.
* * * * *
Price Reduction for Defective Certified Cost or Pricing Data (Oct 2010)
* * * * *
(b) Any reduction in the contract price under paragraph (a) of
this clause due to defective data from a prospective subcontractor
that was not subsequently awarded the subcontract shall be limited
to the amount, plus applicable overhead and profit markup, by which
(1) the actual subcontract or (2) the actual cost to the Contractor,
if there was no subcontract, was less than the prospective
subcontract cost estimate submitted by the Contractor; provided,
that the actual subcontract price was not itself affected by
defective certified cost or pricing data.
* * * * *
0
56. Amend section 52.215-11 by--
0
a. Revising the section heading;
0
b. Revising the clause heading and date of the clause;
0
c. Removing from paragraph (a) ``of cost'' and adding ``of certified
cost'' in its place;
0
d. Removing from paragraph (b) ``furnished cost'' and adding
``furnished certified cost'' in its place; and removing ``Contractor
cost'' and adding ``Contractor certified cost'' in its place;
0
e. Revising paragraph (c);
0
f. Removing from paragraph (d)(1)(i) ``current cost'' and adding
``current certified cost'' in its place; and removing from paragraphs
(d)(1)(ii) and (d)(2)(i)(B) ``the cost'' and adding ``the certified
cost'' in its place; and
0
g. Removing from paragraph (e)(2) ``submitted cost'' and adding
``submitted certified cost'' in its place.
The revised text reads as follows:
52.215-11 Price Reduction for Defective Certified Cost or Pricing
Data--Modifications.
* * * * *
Price Reduction for Defective Certified Cost or Pricing Data--
Modifications (Oct 2010)
* * * * *
(c) Any reduction in the contract price under paragraph (b) of
this clause due to defective data from a prospective subcontractor
that was not subsequently awarded the subcontract shall be limited
to the amount, plus applicable overhead and profit markup, by which
(1) the actual subcontract or (2) the actual cost to the Contractor,
if there was no subcontract, was less than the prospective
subcontract cost estimate submitted by the Contractor; provided,
that the actual subcontract price was not itself affected by
defective certified cost or pricing data.
* * * * *
0
57. Amend section 52.215-12 by--
0
a. Revising the section heading;
0
b. Revising the clause heading and date of the clause;
0
c. Revising paragraph (a);
0
d. Removing from the introductory text of paragraph (c) and paragraph
(c)(1) ``of cost'' and adding ``of certified cost'' in its place; and
0
e. Removing from paragraph (c)(2) ``Subcontractor Cost'' and adding
``Subcontractor Certified Cost'' in its place.
The revised text reads as follows:
52.215-12 Subcontractor Certified Cost or Pricing Data.
* * * * *
Subcontractor Certified Cost or Pricing Data (Oct 2010)
* * * * *
(a) Before awarding any subcontract expected to exceed the
threshold for submission of certified cost or pricing data at FAR
15.403-4, on the date of agreement on price or the date of award,
whichever is later; or before pricing any subcontract modification
involving a pricing adjustment expected to exceed the threshold for
submission of certified cost or pricing data at FAR 15.403-4, the
Contractor shall require the subcontractor to submit certified cost
or pricing data (actually or by specific identification in writing),
in accordance with FAR 15.408, Table 15-2 (to include any
information reasonably required to explain the subcontractor's
estimating process such as the judgmental factors applied and the
mathematical or other methods used in the estimate, including those
used in projecting from known data, and the nature and amount of any
contingencies included in the price), unless an exception under FAR
15.403-1 applies.
* * * * *
0
58. Amend section 52.215-13 by--
0
a. Revising the section heading;
0
b. Revising the clause heading and date of the clause;
0
c. Removing from paragraph (a)(1) ``of cost'' and adding ``of certified
cost'' in its place;
0
d. Revising paragraph (b); and
0
e. Removing from paragraph (d) ``of cost'' and adding ``of certified
cost'' in its place;
The revised text reads as follows:
52.215-13 Subcontractor Certified Cost or Pricing Data--
Modifications.
* * * * *
Subcontractor Certified Cost or Pricing Data--Modifications (Oct 2010)
* * * * *
(b) Before awarding any subcontract expected to exceed the
threshold for submission of certified cost or pricing data at FAR
15.403-4, on the date of agreement on price or the date of award,
whichever is later; or before pricing any subcontract modification
involving a pricing adjustment expected to exceed the threshold for
submission of certified cost or pricing data at FAR 15.403-4, the
Contractor shall require the subcontractor to submit certified cost
or pricing data (actually or by specific identification in writing),
in accordance with FAR 15.408, Table 15-2 (to include any
information reasonably required to explain the subcontractor's
estimating process such as the judgmental factors applied and the
mathematical or other methods used in the estimate, including those
used in projecting from known data, and the nature and amount of any
contingencies included in the price), unless an exception under FAR
15.403-1 applies.
* * * * *
52.215-14 [Amended]
0
59. Amend section 52.215-14 by--
0
a. Revising the date of the clause to read ``(Oct 2010)''; and
0
b. Removing from the last sentence of paragraph (a) ``of cost'' and
adding ``of certified cost'' in its place.
52.215-15 [Amended]
0
60. Amend section 52.215-15 by revising the date of the clause to read
``(Oct 2010)''; and removing from paragraph (b)(2) and the second
sentence of paragraph (c) ``which cost''
[[Page 53152]]
and adding ``which certified cost'' in its place.
0
61. Amend section 52.215-20 by--
0
a. Revising the section heading;
0
b. Revising the provision heading and date of the provision;
0
c. Revising the introductory text of paragraph (a); and removing from
the first sentence of paragraph (a)(1) ``submitting cost'' and adding
``submitting certified cost'' in its place;
0
d. Revising the introductory text of paragraph (b) and paragraph
(b)(1);
0
e. Revising Alternate I; and
0
f. Revising the date of Alternate IV and paragraphs (a) and (b).
The revised text reads as follows:
52.215-20 Requirements for Certified Cost or Pricing Data and Data
Other Than Certified Cost or Pricing Data.
* * * * *
Requirements for Certified Cost or Pricing Data and Data Other Than
Certified Cost or Pricing Data (Oct 2010)
(a) Exceptions from certified cost or pricing data.
* * * * *
(b) 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, data other than 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 Contractor agree to a different format and change this
clause to use Alternate I.
* * * * *
Alternate I (Oct 2010). As prescribed in 15.408(1) (and see
15.403-5(b)(1)), substitute the following paragraph (b)(1) for
paragraph (b)(1) of the basic provision:
(b)(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 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 offeror's format will be acceptable, or
the description may be inserted as the result of negotiations.]
* * * * *
Alternate IV (Oct 2010). * * *
(a) Submission of certified cost or pricing data is not
required.
(b) Provide data described below: [Insert description of the
data and the format that are required, including the access to
records necessary to permit an adequate evaluation of the proposed
price in accordance with 15.403-3.]
0
62. Amend section 52.215-21 by--
0
a. Revising the section heading;
0
b. Revising the clause heading and date of the clause;
0
c. Revising the introductory text of paragraph (a); and removing from
the introductory text of paragraph (a)(1) ``submitting cost'' and
adding ``submitting certified cost'' in its place;
0
d. Removing from paragraph (a)(1)(ii)(A)(1) ``from cost'' and adding
``from certified cost'' in its place;
0
e. Revising the introductory text of paragraph (b) and paragraph
(b)(1);
0
f. Revising Alternate I; and
0
g. Revising the date of Alternate IV and paragraphs (a) and (b).
The revised text reads as follows:
52.215-21 Requirements for Certified Cost or Pricing Data and Data
Other Than Certified Cost or Pricing Data--Modifications.
* * * * *
Requirements for Certified Cost or Pricing Data and Data Other Than
Certified Cost or Pricing Data--Modifications (Oct 2010)
(a) Exceptions from certified cost or pricing data.
* * * * *
(b) Requirements for certified cost or pricing data. If the
Contractor is not granted an exception from the requirement to
submit certified cost or pricing data, the following applies:
(1) The Contractor shall submit certified cost or pricing data,
data other than 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
Contractor agree to a different format and change this clause to use
Alternate I.
* * * * *
Alternate I (Oct 2010). As prescribed in 15.408(m) and 15.403-
5(b)(1), substitute the following paragraph (b)(1) for paragraph
(b)(1) of the basic clause.
(b)(1) The Contractor shall submit certified cost or pricing
data, data other than certified cost or pricing data, and supporting
attachments prepared 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 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 offeror's format will be acceptable, or
the description may be inserted as the result of negotiations.]
* * * * *
Alternate IV (Oct 2010). * * *
(a) Submission of certified cost or pricing data is not
required.
(b) Provide data described below: [Insert description of the
data and the format that are required, including the access to
records necessary to permit an adequate evaluation of the proposed
price in accordance with 15.403-3.]
0
63. Amend section 52.216-25 by--
0
a. Revising the date of the clause;
0
b. Revising paragraph (a); and
0
c. Removing from the paragraph (b) ``and cost'' and adding ``and
certified cost'' in its place.
The revised text reads as follows:
52.216-25 Contract Definitization.
* * * * *
Contract Definitization (Oct 2010)
(a) A -------- [insert specific type of contract] definitive
contract is contemplated. The Contractor agrees to begin promptly
negotiating with the Contracting Officer the terms of a definitive
contract that will include (1) all clauses required by the Federal
Acquisition Regulation (FAR) on the date of execution of the letter
contract, (2) all clauses required by law on the date of execution
of the definitive contract, and (3) any other mutually agreeable
clauses, terms, and conditions. The Contractor agrees to submit a --
------ [insert specific type of proposal (e.g., fixed-price or cost-
and-fee)] proposal, including data other than certified cost or
pricing data, and certified cost or pricing data, in accordance with
FAR 15.408, Table 15-2, supporting its proposal.
* * * * *
52.230-2 [Amended]
0
64. Amend section 52.230-2 by revising the date of the clause to read
``(Oct 2010)''; and removing from the first sentences of paragraphs
(a)(3) and (d) ``submitted cost'' and adding ``submitted certified
cost'' in its place.
52.230-5 [Amended]
0
65. Amend section 52.230-5 by revising the date of the clause to read
``(Oct 2010)''; and removing from the first sentence of paragraph
(a)(3) and the introductory text of paragraph (d) ``submitted cost''
and adding ``submitted certified cost'' in its place.
52.232-17 [Amended]
0
66. Amend section 52.232-17 by revising the date of the clause to read
``(Oct 2010)''; and removing from the first sentence of paragraph (a)
``Defective Cost'' and adding ``Defective Certified Cost'' in its
place.
52.244-2 [Amended]
0
67. Amend section 52.244-2 by--
[[Page 53153]]
0
a. Revising the date of the clause to read ``(Oct 2010)'';
0
b. Removing from paragraph (e)(1)(v) ``accurate cost'' and adding
``accurate certified cost'' in its place;
0
c. Removing from paragraph (e)(1)(vii)(C) ``reason cost'' and adding
``reason certified cost'' in its place; and
0
d. Removing from paragraphs (e)(1)(vii)(D) and (e)(1)(vii)(E)
``subcontractor's cost'' and adding ``subcontractor's certified cost''
in its place.
[FR Doc. 2010-21026 Filed 8-27-10; 8:45 am]
BILLING CODE 6820-EP-P