[Federal Register Volume 76, Number 192 (Tuesday, October 4, 2011)]
[Proposed Rules]
[Pages 61296-61298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25237]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 215, 225, and 252
RIN 0750-AH42
Defense Federal Acquisition Regulation Supplement: Contracting
With the Canadian Commercial Corporation (DFARS Case 2011-D049)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to clarify the requirements for the
Canadian Commercial Corporation to submit data other than certified
cost or pricing data.
DATES: Comment Date: Comments on the proposed rule should be submitted
in writing to the address shown below on or before December 5, 2011, to
be considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2011-D049, using
any of the following methods:
[cir] Regulations.gov: http://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by entering ``DFARS Case 2011-D049''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2011-D049.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``DFARS Case 2011-D049'' on your attached document.
[cir] E-mail: [email protected]. Include DFARS Case 2011-D049 in the
subject line of the message.
[cir] Fax: 703-602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Amy G.
Williams, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check http://www.regulations.gov, approximately two to three days after submission
to verify posting (except allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Amy G. Williams, telephone 703-602-
0328.
SUPPLEMENTARY INFORMATION:
I. Background
This proposed rule implements a recommendation of a bilateral
integrated product team on cost or pricing data, including
representatives from the U.S. Government and Canada.
With some exceptions, as provided at DFARS 225.870-1(c), the
Canadian Commercial Corporation awards and administers DoD contracts
with contractors located in Canada.
DoD has waived the requirement for the Canadian Commercial
Corporation and its subcontractors to submit certified cost or pricing
data (see DFARS 215.403-1(c)(4)(C)). However, the requirement to submit
data other than certified cost or pricing data has not been waived for
the Canadian Commercial Corporation and its subcontractors. The purpose
of this rule is to clarify the requirement to submit data other than
certified cost or pricing data.
II. Discussion and Analysis
Effective on October 1, 2010, the definitions in the Federal
Acquisition Regulation (FAR) relating to cost or pricing data were
revised (76 FR 53135, published August 30, 2010). The final rule under
FAR Case 2005-036, FAC 2005-45, redefined ``cost or pricing data'' to
mean all cost or pricing data and added a new term for ``certified cost
or pricing data.'' Previously, the term ``cost or pricing data'' had
been defined to mean only what is now defined as ``certified cost or
pricing data.'' Throughout the FAR, the term ``cost or pricing data''
was generally replaced with the new term ``certified cost or pricing
data.'' The same final rule also replaced the term ``information other
than cost or pricing data'' with the new term ``data other than
certified cost or pricing data.'' The new definition of these terms in
the FAR is significant because the conforming changes to the DFARS,
currently being processed under DFARS Case 2011-D040, Definition of
Cost or Pricing Data, are not yet implemented. Therefore, this rule
includes conforming changes to DFARS 215.4, in order to ensure that it
is clear that only submission of certified cost or pricing data has
been waived for the Canadian Commercial Corporation and its
subcontractors.
FAR 15.402 and FAR 15.403-3 address requiring data other than
certified cost or pricing data. FAR 15.402 emphasizes obtaining no more
data than is necessary to establish a fair and reasonable price.
Generally, no additional data is required from the offeror if the price
is based on adequate price competition. FAR 15.402(a)(2)(ii)(A) and FAR
15.403-3(a)(1)(iv) both address the exceptions to obtaining data
related to prices, i.e., FAR 15.403-1(b)(1) (prices based on adequate
price competition) or FAR 15.403-1(b)(2) (prices set by law or
regulation). None of these exceptions provides a general exception to
the requirement to obtain data other than certified cost or pricing
data based on a waiver of the requirement to provide certified cost or
pricing data. In fact, FAR 15.403-3(a)(1)(ii) clearly states that in
those acquisition that do not require certified cost or pricing data
(e.g., when a waiver has been granted), the contracting officer shall
obtain data other than certified cost or pricing data from the offeror
to the extent necessary to determine a fair and reasonable price if the
contracting officer determines that adequate data from sources other
than the offeror are not available. FAR 15.403-3(a)(1)(v) recommends
consideration of the guidance in section 3.3, chapter 3, volume I, of
the Contract Pricing Reference Guide, available at http://
www.acq.osd.mil/dpap/cpf/
[[Page 61297]]
contract--pricing--reference--guides.html. The contracting officer
would not usually require all of the listed items, but would select
only those items necessary in order to determine that the price is fair
and reasonable.
In order to facilitate requests for data other than certified cost
or pricing data when contracting with the Canadian Commercial
Corporation, this rule proposes a new provision, Requirement for
Submission of Data Other Than Certified Cost or Pricing Data--Canadian
Commercial Corporation, for use in appropriate solicitations with the
Canadian Commercial Corporation, and a comparable clause, Requirement
for Submission of Data Other Than Certified Cost or Pricing Data--
Modifications--Canadian Commercial Corporation, to be included in
contracts to cover modifications that may require submission of data
other than certified cost or pricing data. This provision and clause
are a tailored version of Alternate IV of--
FAR 52.215-20, Requirements for Certified Cost or Pricing
Data and Data Other than Certified Cost or Pricing Data; and
FAR 52.215-21, Requirements for Certified Cost or Pricing
Data and Data Other than Certified Cost or Pricing Data--Modification.
The provision and clause both require the following information:
Profit rate or fee (as applicable).
Analysis provided by Public Works and Government Services
Canada to Canadian Commercial Corporation to determine a fair and
reasonable price (comparable to the analysis required by FAR 15.404-1).
Data other than certified cost or pricing data necessary
to permit an adequate determination by the U.S. contracting officer
that the proposed price is fair and reasonable. (The U.S. contracting
officer must insert a description of the data required, in accordance
with the guidance at 15.403-3(a)(1).)
The rule prescribes use of this provision and clause in
solicitations and contracts for sole source acquisitions from the
Canadian Commercial Corporation that are expected to result in cost-
reimbursement contracts expected to exceed the simplified acquisition
threshold or fixed-price contracts expected to exceed $500 million. The
provision and clause may also be used in other solicitations and
contracts if the head of the contracting activity, or designee no lower
than one level above the contracting officer, determines that such data
is needed in order to determine that the price is fair and reasonable
(see FAR 15.403-3(a)(2)).
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
IV. Regulatory Flexibility Act
DoD does not expect this rule to have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because it only
impacts Canadian business concerns. No domestic entities will be
impacted by this rule. For the definition of ``small business'', the
Regulatory Flexibility Act refers to the Small Business Act, which in
turn allows the U.S. Small Business Administration (SBA) Administrator
to specify detailed definitions or standards. 5 U.S.C. 601(3) and 15
U.S.C. 632(a). The SBA regulations at 13 CFR 121.105 discuss who is a
small business: ``(a)(1) Except for small agricultural cooperatives, a
business concern eligible for assistance from SBA as a small business
is a business entity organized for profit, with a place of business
located in the United States, and which operates primarily within the
United States or which makes a significant contribution to the U.S.
economy through payment of taxes or use of American products, materials
or labor.'' Therefore, an initial regulatory flexibility analysis has
not been performed. DoD invites comments from small business concerns
and other interested parties on the expected impact of this rule on
small entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C 610 (DFARS Case 2011-D049), in
correspondence.
V. Paperwork Reduction Act
The rule contains information collection requirements that require
the approval of the Office of Management and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35); however, these changes to the
DFARS do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 9000-
0013, Cost or Pricing Data Requirements and Information Other Than Cost
or Pricing Data.
List of Subjects in 48 CFR Parts 215, 225, and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 215, 225, and 252 are amended as follows:
1. The authority citation for 48 CFR parts 215, 225, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 215--CONTRACTING BY NEGOTIATION
2. Amend section 215.403-1 by revising the heading and revising
paragraph (c)(4)(C) to read as follows:
215.403-1 Prohibition on obtaining certified cost or pricing data (10
U.S.C. 2306a and 41 U.S.C. chapter 35).
* * * * *
(c) * * *
(4) * * *
(C) DoD has waived the requirement for submission of certified cost
or pricing data for the Canadian Commercial Corporation and its
subcontractors (but see 215.408(3) and 225.870-4(d)).
* * * * *
3. Amend section 215.408 by adding paragraph (3) to read as
follows:
215.408 Solicitation provisions and contract clauses.
* * * * *
(3) When contracting with the Canadian Commercial Corporation--
(i) Use the provision at 252.215-70XX, Requirement for Data Other
Than Certified Cost or Pricing Data--
(A) In solicitations for sole source acquisitions that are--
(1) Cost-reimbursement, if the contract value is expected to exceed
the simplified acquisition threshold; or
(2) Fixed-price, if the contract value is expected to exceed $500
million; or
(B) In other solicitations, if the head of the contracting
activity, or designee
[[Page 61298]]
no lower than one level above the contracting officer, determines that
data other than certified cost or pricing data is needed in order to
determine that the price is fair and reasonable (see FAR 15.403-
3(a)(2)); and
(ii) Use the clause at 252.215-70YY, Requirement for Data Other
Than Certified Cost or Pricing Data--Modifications--Canadian Commercial
Corporation--
(A) In solicitations and contracts for sole source acquisitions
that are--
(1) Cost-reimbursement, if the contract value is expected to exceed
the simplified acquisition threshold; or
(2) Fixed-price, if the contract value is expected to exceed $500
million; or
(B) In other solicitations and contracts, if the head of the
contracting activity, or designee no lower than one level above the
contracting officer, determines that it is reasonably certain that data
other than certified cost or pricing data will be needed in order to
determine that the price of modifications is fair and reasonable (see
FAR 15.403-3(a)(2)).
PART 225--FOREIGN ACQUISITION
4. Amend section 225.870-4 by redesignating paragraph (c) as
paragraph (d) and adding new paragraph (c) to read as follows:
225.870-4 Contracting procedures.
* * * * *
(c) Requirement for data other than certified cost or pricing data.
(1) DoD has waived the requirement for submission of certified cost or
pricing data for the Canadian Commercial Corporation and its
subcontractors (see 215.403-1(c)(4)(C)).
(2) The Canadian Commercial Corporation is not exempt from the
requirement to submit data other than certified cost or pricing data,
as defined in FAR 2.101. In accordance with FAR 15.403-3(a)(1)(ii), the
contracting officer shall require submission of data other than
certified cost or pricing data from the offeror, to the extent
necessary to determine a fair and reasonable price.
(3) The contracting officer shall use the provision at 252.215-
70XX, Requirement for Data Other Than Certified Cost or Pricing Data--
Canadian Commercial Corporation, and the clause at 252.215-70YY,
Requirement for Data Other Than Certified Cost or Pricing Data--
Modifications--Canadian Commercial Corporation, as prescribed at
215.408(3)(i) and (ii), respectively.
(4) Except for contracts described in 225.870-1(c)(1) through (4),
Canadian suppliers will provide required data other than certified cost
or pricing data exclusively through the Canadian Commercial
Corporation.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Add section 252.215-70XX to read as follows:
252.215-70XX Requirement for Submission of Data Other Than Certified
Cost or Pricing Data--Canadian Commercial Corporation.
As prescribed at 215.408(3), use the following provision:
REQUIREMENT FOR SUBMISSION OF DATA OTHER THAN CERTIFIED COST OR PRICING
DATA--CANADIAN COMMERCIAL CORPORATION (DATE)
(a) Submission of certified cost or pricing data is not
required.
(b) Canadian Commercial Corporation shall obtain and provide the
following:
(1) Profit rate or fee (as applicable).
(2) Analysis provided by Public Works and Government Services
Canada to the Canadian Commercial Corporation to determine a fair
and reasonable price (comparable to the analysis required at FAR
15.404-1).
(3) Data other than certified cost or pricing data necessary to
permit a determination by the U.S. Contracting Officer that the
proposed price is fair and reasonable [U.S. Contracting Officer to
insert description of the data required in accordance with 15.403-
3(a)(1)].
(End of provision)
6. Add section 252.215-70YY to read as follows:
252.215-70YY Requirement for Submission of Data Other Than Certified
Cost or Pricing Data--Modifications--Canadian Commercial Corporation.
As prescribed at 215.408(3), use the following clause:
REQUIREMENT FOR SUBMISSION OF DATA OTHER THAN CERTIFIED COST OR PRICING
DATA--MODIFICATIONS--CANADIAN COMMERCIAL CORPORATION (DATE)
(a) Submission of certified cost or pricing data is not
required.
(b) Canadian Commercial Corporation shall obtain and provide the
following:
(1) Profit rate or fee (as applicable).
(2) Analysis provided by Public Works and Government Services
Canada to the Canadian Commercial Corporation to determine a fair
and reasonable price (comparable to the analysis required at FAR
15.404-1).
(3) Data other than certified cost or pricing data necessary to
permit a determination by the U.S. Contracting Officer that the
proposed price is fair and reasonable [U.S. Contracting Officer to
insert description of the data required in accordance with 15.403-
3(a)(1)].
(End of clause.)
[FR Doc. 2011-25237 Filed 10-3-11; 8:45 am]
BILLING CODE 5001-06-P