Vol. 77 Friday, 

No. 126 June 29, 2012 

Part IV 

Department of Defense 

Defense Acquisition Regulations System 

48 CFR Parts 205, 208, 212, et al. 

Defense Acquisition Regulations System; Defense Federal Acquisition 

Regulation Supplement; Only One Offer (DFARS Case 2011–D013); 

Defense Federal Acquisition Regulation Supplement: Shipping Instructions 

(DFARS Case 2011–D052) and Defense Federal Acquisition Regulation 

Supplement: Applicability of Hexavalent Chromium Policy to Commercial 

Items (DFARS Case 2011–D047); Final Rules 


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39126 Federal Register / Vol. 77, No. 126 / Friday, June 29, 2012 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 205, 208, 212, 214, 215, 

216, 252 

RIN 0750–AH11 

Defense Acquisition Regulations 

System; Defense Federal Acquisition 

Regulation Supplement; Only One 

Offer (DFARS Case 2011–D013) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to address acquisitions using 

competitive procedures in which only 

one offer is received. This rule 

implements a DoD Better Buying Power 

initiative. The revisions to this rule are 

part of DoD’s retrospective plan under 

Executive Order 13563 completed in 

August 2011. 

DATES: Effective Date: June 29, 2012. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy G. Williams, telephone 571–372– 

6106. 

SUPPLEMENTARY INFORMATION: DoD’s full 

plan can be accessed at http:// 

exchange.regulations.gov/exchange/ 

topic/eo-13563. 

I. Background 

DoD published a proposed rule in the 

Federal Register at 76 FR 44293 on July 

25, 2011, to address acquisitions using 

competitive procedures in which only 

one offer is received. This rule was 

initiated to implement one of the 

aspects of the initiative on promoting 

real competition that was presented by 

the Under Secretary of Defense for 

Acquisition, Technology, and Logistics 

(AT&L) in a memorandum dated 

November 3, 2010. This memorandum 

was further implemented by 

memoranda from the Director, Defense 

Procurement and Acquisition Policy, 

dated November 24, 2010, and April 27, 

2011. 

Some of the other background events 

leading up to publication of this rule are 

summarized as follows: 

• In 2007, an Acquisition Advisory 

(SARA) panel report discussed methods 

to encourage competition focused on 

longer solicitation periods as well as 

improved requirements generation and 

market research/industry 

communication. 

• In 2008, the Office of Management 

and Budget and Office of Federal 

Procurement Policy issued a 

memorandum detailing agencies’ efforts 

to improve competition where only one 

offer was received. These efforts 

involved such steps as limiting contract 

length, minimizing unique or brand 

name specifications, and enhancing 

acquisition planning. 

• In 2010, the Government 

Accountability Office studied reasons 

why only one offer is received, and 

concluded that several factors 

contributed, such as a strong incumbent, 

restrictive Government requirements, 

and/or bundling of requirements into 

larger acquisitions. 

The comment period closed on 

September 23, 2011, but was re-opened 

on September 27, 2011 (76 FR 59623) 

through October 7, 2011. DoD received 

comments on the proposed rule from 19 

respondents. 

II. Discussion and Analysis of the 

Public Comments 

DoD reviewed the public comments in 

the development of the final rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments are provided as 

follows: 

A. Summary of Significant Changes 

From the Proposed Rule 

1. DFARS 215.371–1. A section on 

policy has been added at DFARS 

215.371–1 to replace the proposed 

paragraph DFARS 215.371(a). The 

policy statement is completely rewritten 

to shift the emphasis away from 

whether the circumstances described at 

FAR 15.403–1(c)(1)(ii) constitute 

adequate price competition, to an 

emphasis on the objectives of the rule, 

i.e., to increase competition and, if only 

one offer is received nevertheless, to 

make sure that the price is fair and 

reasonable and that the statutory 

requirements for obtaining certified cost 

or pricing data are met. 

2. DFARS 215.371–2. A section has 

been added to address the efforts to 

promote competition, similar to the 

coverage in the proposed rule at DFARS 

215.371(c)(1). In response to public 

comments, two FAR references have 

been added to provide considerations 

on revising requirements to promote 

competition (FAR 6.502(b) and 11.002). 

3. DFARS 215.371–3 has been added 

to address the process for obtaining fair 

and reasonable prices, replacing the 

proposed paragraph DFARS 

215.371(c)(2). The contracting officer is 

not required to obtain further cost or 

pricing data if the contracting officer 

determines that the offered price is fair 

and reasonable on the basis of cost or 

price analysis and that adequate price 

competition exists, in accordance with 

FAR 15.403–1(c)(1)(ii), or another 

exception to the statutory requirement 

for certified cost or pricing data applies 

(see Truth in Negotiations Act (10 

U.S.C. 2306a) and FAR 15.403–4). 

Otherwise, the contracting officer must 

obtain additional cost or pricing data, 

and that data must be certified, unless 

an exception to the requirement for 

certified cost or pricing data applies. 

The following table provides a summary 

of the requirement for cost or pricing 

data and whether the data must be 

certified, depending on whether the 

contracting officer can determine the 

price to be fair and reasonable and 

whether an exception to the 

requirement for certified cost or pricing 

data applies. 

Circumstance 1 Circumstance 2 Circumstance 3 Circumstance 4 Circumstance 5 

Contracting officer 

(c.o.) determines 

price fair & reasonable? 

YES ........................... YES ........................... YES ........................... NO ............................. NO 

C.o. determines adequate price competition? (approved 1 

level above c.o.) 

YES ........................... NO ............................. NO ............................. X* .............................. X 

Another TINA exception applies? ................................... YES ........................... NO ............................. YES ........................... NO 

Cost or pricing data 

required? 

NO ............................. NO ............................. YES ........................... YES ........................... YES 


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Circumstance 1 Circumstance 2 Circumstance 3 Circumstance 4 Circumstance 5 

Data must be certified? N/A ............................ N/A ............................ YES ........................... NO ............................. YES 

* Note that the contracting officer cannot determine that adequate price competition exists if cannot determine that the price is fair and 

reasonable. 

4. Two exceptions have been added at 

DFARS 215.371–4 (proposed at DFARS 

215.371(e)): 

• An exception to the 30-day 

resolicitation period has been added to 

address the application to small 

business set-asides. 

• The final rule states that it does not 

apply to broad agency announcements. 

5. Waivers are now addressed at 

DFARS 215.371–5 (proposed at DFARS 

215.371(d)), but the coverage of waivers 

is otherwise unchanged. 

6. The proposed statement at DFARS 

215.403–1(c)(1)(B) has been modified to 

reference back to the procedures at 

DFARS 215.371–3 for ensuring a fair 

and reasonable price if only one offer is 

received. DFARS 215.371–3 makes it 

clear that adequate price competition, as 

described at FAR 15.403–1(c)(1)(ii), 

cannot be used for the purpose of 

determining that a price is fair and 

reasonable. 

7. The rule no longer addresses 

acquisitions under FAR subpart 13.5, 

because that statutory authority has 

expired. 

8. Statements have been added at 

DFARS 208.404(a) and 214.404–1(2) to 

specify clearly the deviation from the 

statements in the corresponding FAR 

sections. 

B. Analysis of Public Comments 

1. Meaning of ‘‘Only One Offer’’ 

Comment: One respondent stated that 

what constitutes one offer should be 

more clearly defined. The respondent 

questioned whether this includes only 

technically acceptable, timely offers. 

Response: For the purpose of DFARS 

215.371, an offer includes any timely 

offer or late offer accepted by the 

contracting officer. There is no 

requirement for each offer to meet the 

requirements at FAR 15.403–1(c)(1)(i) in 

order to count as more than one offer 

received. However, if after evaluations 

the contracting officer determines only 

one responsive offer was received, the 

contracting officer will need to review 

the standards at FAR 15.403–1(c) to 

determine if adequate price competition 

exists or another exception applies, and 

take the appropriate steps to ensure a 

fair and reasonable price. 

Comment: One respondent questioned 

whether this rule is applicable to the 

solicitation of quotations. The 

respondent noted that quotations are 

solicited routinely when using the 

procedures of FAR subpart 8.4. 

Response: This rule is applicable to 

quotes as well as offers. Quotes should 

be treated the same as offers, for the 

purposes of this rule. The term ‘‘offer’’ 

used in the provision is comprehensive 

enough to apply to all competitive 

acquisitions subject to the final rule. 

Specifically, the term ‘‘offer’’ 

appropriately applies to acquisitions 

exceeding the simplified acquisition 

threshold conducted under FAR parts 8, 

12, 14, 15, and 16. FAR defines ‘‘offer’’ 

to include responses to invitations for 

bids (sealed bidding) and responses to 

requests for proposals (negotiation), but 

to exclude responses to requests for 

quotations (RFQs). However, DFARS 

parts 208 and 216 already use the term 

‘‘offer’’ in reference to orders awarded 

under those subparts. Finally, the final 

rule does not apply to acquisitions 

below the simplified acquisition 

threshold awarded based on quotations 

received. Therefore, the provisions in 

the final rule, because they use the term 

‘‘offer,’’ can be used appropriately for 

competitions under FAR parts 8, 12, 14, 

15, and 16 exceeding the simplified 

acquisition threshold. 

2. Promoting Competition 

a. General 

Comment: One respondent asked 

whether the policy should promote the 

receipt of two or more offers on all 

competitive procedures exceeding the 

simplified acquisition threshold. 

Response: The intent of the DoD 

Better Buying Power initiative is to 

promote competition on all competitive 

solicitations. The policy at DFARS 

215.371–1(a) does promote the receipt 

of two or more offers in response to 

competitive solicitations, unless an 

exception applies. 

Comment: One respondent stated that 

the proposed rule approach to 

increasing competition ‘‘mistakenly 

conflates a post-proposal requirement 

for submitting cost or pricing data after 

receipt of offer with steps needed to 

increase DoD competition, but does 

nothing to address the root causes of the 

lack of competition.’’ 

Response: The rule requires the 

contracting officer to consult with the 

requiring activity as to whether the 

requirement should be revised in order 

to promote more competition and 

requires resolicitation if the solicitation 

allowed fewer than 30 days for receipt 

of proposals. The post-proposal 

requirement for cost or pricing data 

addresses the second objective of the 

rule—to obtain fair and reasonable 

prices. 

Comment: One respondent stated that 

the rule may result in decreased 

competition. This respondent pointed to 

unintended reduction in the number of 

competitors and in the ability to 

maintain long term strategic defense 

capabilities, because of a shift to 

‘‘lowest price possible.’’ Further, 

according to this respondent, some 

potential offerors may not be willing to 

participate if they may subsequently be 

required to submit cost or pricing data. 

Response: The intent of the rule is not 

to seek the lowest price, but a best value 

at a competitive price. If two or more 

offerors respond to a requirement or if 

the contracting officer determines that 

the offered price is fair and reasonable 

and an exception to the requirement for 

certified cost or pricing data applies, 

then the contracting officer is not 

required to ask for additional cost or 

pricing data. 

b. Time Period for Response 

Comment: Various respondents were 

in favor of extending solicitation 

periods to allow potential offerors more 

time to assemble a competitive offer. 

One respondent stated that this is 

generally a step in the right direction, 

and another stated that this will likely 

result in increased competition. One 

respondent stated that the proposed 30 

additional days is both reasonable and 

appropriate. 

Response: None required. 

Comment: One respondent stated that 

it is difficult to understand why any 

solicitation would be advertised for less 

than 30 days if not covered by one of the 

excepted circumstances. The 

respondent recommended that DoD 

should issue conforming instructions 

that all solicitations must comport with 

the rule at FAR 5.203, except as 

specified in the proposed exception at 

DFARS 215.371(e)(1)(ii) (now at 

215.371–4) for contingencies. FAR 

5.203(c) requires agencies to allow at 

least a 30-day response time for receipt 

of bids or proposals from the date of 

issuance of a solicitation, if the 


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proposed contract action is expected to 

exceed the simplified acquisition 

threshold, except for acquisition of 

commercial items (paragraph (a)) or in 

the general category of ‘‘annual 

forecast’’ (paragraph (h)). 

This respondent also stated that 

adding transactional process time in all 

cases where only a single offer is 

received in response to a competitive 

solicitation is contrary to sound 

acquisition policy. 

Response: Federal Supply Schedules 

and indefinite-delivery/indefinitequantity contracts allow for shorter 

solicitation times. The final rule does 

not require added transactional time in 

all cases. Encouraging competition is 

sound acquisition policy. The rule also 

allows the head of the contracting 

activity to waive the 30-day solicitation 

requirement, when appropriate. 

Comment: One respondent was 

concerned that resoliciting will expose 

the fact to industry prematurely that 

there was only one offeror. Since this 

respondent saw little probability that 

the additional 30 days would result in 

additional offerors, this respondent 

foresaw that the offeror would not 

reduce the price, but would raise the 

price under the resolicitation. 

Response: If there is still only one 

offer after resolicitation and negotiations 

ensue, the rule states that the 

contracting officer should not negotiate 

a higher price than was originally 

proposed. As defined in FAR 2.101, 

‘‘should’’ means ‘‘an expected course of 

action unless inappropriate for a 

particular circumstance.’’ An offeror 

raising the price because there is no 

competition would not be an 

appropriate reason for negotiating a 

higher price. 

Comment: Another respondent stated 

that by virtually mandating a 30-day 

solicitation period, this rule will delay 

the acquisition of critical items and, in 

many cases, not offer any cost savings. 

This respondent recommended use of 

other methods than resolicitation for 

determining price reasonableness if it is 

believed that resolicitation will not 

result in reduced pricing. 

Response: The Government does not 

require that all solicitations be 

announced for 30 days. If market 

research indicates a commercial market 

with multiple potential offerors that will 

be able to respond in fewer than 30 

days, then the contracting officer may 

issue the solicitation for fewer than 30 

days. Resolicitation is used to increase 

competition, not as a method to 

determine price reasonableness. For 

specifics with regard to application in 

FAR parts 12 and 16, see also the 

responses in sections II.B.6.b. and 6.d. 

of this preamble. 

Comment: One respondent requested 

that the new rule should specify which 

parts of the DFARS are subject to the 30- 

day requirement. 

Response: The rule specifies the parts 

to which it is applicable (DFARS parts 

205, 208, 212, 214, 215, and 216). It may 

apply indirectly to other parts to the 

extent that the acquisition procedures of 

these parts are used. An exception has 

been added to state specifically that the 

rule does not apply to broad agency 

announcements. An exception to the 30- 

day resolicitation requirement, if only 

one offer is received, has also been 

added for small business set-asides. 

c. Requirements 

Comment: Several respondents agreed 

that encouraging revised statements of 

work in appropriate circumstances 

would likely result in increased 

competition, and were in favor of these 

proposed revisions. One respondent 

stated that the reason why only one 

offer was received in part is likely 

because the requirement is too 

restrictive in its content, so that 

rewording the requirement can facilitate 

more offers. 

Several respondents stated that the 

proposed rule did not adequately 

address the process for amending the 

solicitation when only one offer is 

received due to flawed solicitation 

requirements, specifications, contract 

types, etc. One respondent stated that 

DoD should set forth guidelines and/or 

criteria for determining when and how 

a solicitation should be revised. 

Response: It is a duty of the 

competition advocate to challenge 

requirements that are not stated in terms 

of functions to be performed, 

performance required, or essential 

physical characteristics and identify any 

condition or action that has the effect of 

unnecessarily restricting competition 

(FAR 6.502(b)(1)). FAR 11.002 provides 

policy on stating requirements in a way 

to maximize competition. A cross 

reference to these FAR citations has 

been added at DFARS 215.371–2(a). 

3. Fair and Reasonable Prices 

a. Relationship Between Adequate Price 

Competition and Determination of Fair 

and Reasonable Price 

FAR references: 

Current coverage at FAR 15.403–1(c) 

provides three circumstances in which 

a price is based on adequate price 

competition, for the purpose of deciding 

whether there is an exemption to the 

requirement for certified cost or pricing 

data: 

• In the first circumstance, two or 

more responsible offerors, competing 

independently, submit priced offers that 

satisfy the Government’s expressed 

requirement, if award will be made to 

the offeror whose proposal represents 

the best value where price is a 

substantial factor in source selection, 

and there is no finding that the price of 

the otherwise successful offeror is 

unreasonable. In this circumstance, 

there is a presumption of price 

reasonableness. Any finding that the 

price is unreasonable must be supported 

by a statement of the facts and approved 

at a level above the contracting officer. 

• In the second circumstance, there 

was a reasonable expectation, based on 

market research, that two or more 

responsible offerors, competing 

independently, would submit priced 

offers in response to the solicitation’s 

expressed requirement, even though 

only one offer is received from a 

responsible offeror; and the 

determination that the proposed price is 

based on adequate price competition 

and is reasonable, must be approved at 

a level above the contracting officer. 

This standard for adequate price 

competition was added to the two preexisting standards in the FAR in 

October 1995 (FAC 90–32) as a result of 

sections 1202 and 1251 of the Federal 

Acquisition Streamlining Act of 1994 

(Pub. L. 105–355). These sections 

required the FAR to provide clear 

standards for application of the 

exceptions to the requirement for 

submission of cost or pricing data 

(including adequate price competition). 

• In the third circumstance, price 

analysis clearly demonstrates that the 

proposed price is reasonable in 

comparison with current or recent 

prices for the same or similar items, 

adjusted to reflect changes in market 

conditions under contracts that resulted 

from adequate price competition. Note 

that the requirement that price analysis 

be based on contracts that resulted from 

adequate price competition does not 

cover buys in which the price is 

determined fair and reasonable based on 

certified cost or pricing data from 

previous production buys. This 

standard has been in the regulations 

since May 1964, when adequate price 

competition was first addressed in the 

Armed Services Procurement Regulation 

(3–807.1(b)). 

Comment: One respondent fully 

supported DoD’s proposal that 30-day 

solicitations that produce only one offer 

should trigger a price or cost analysis. 

This respondent stated that it has long 

advocated the position that adequate 

price competition does not exist where 


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only one offer is received pursuant to a 

competitive solicitation. 

Other respondents wanted to preserve 

the exception at FAR 15.403–1(c)(1)(ii) 

as a valid exemption from the 

requirement for certified cost or pricing 

data, while some acknowledged the 

need for better enforcement of FAR 

15.403–1(c)(1)(ii)(B), i.e., the need to 

determine at a level above the 

contracting officer that the price is 

reasonable. 

One respondent had reservations 

about the apparent elimination of 

agency discretion to find adequate price 

competition when a single offer is 

received, following the expectation of 

multiple offers. The respondent 

expressed concern that because the FAR 

does not reflect the same approach, 

there is a risk of confusion in the 

acquisition community. This 

respondent cited a GAO 2010 study, 

which recommended case-by-case 

analysis of single offers, not elimination 

of the discretion to find adequate price 

competition when a single offer is 

received. This respondent also quoted a 

2009 DoD statement that ‘‘the receipt of 

a single offer does not necessarily 

indicate a lack of competition (DoD’s 

2009 Competition Report). 

Several respondents stated that the 

current FAR reflects the processes 

required of the contracting officer to 

protect DoD’s interests in a fair and 

reasonable price in those situations 

where competition was expected, but, 

for whatever reason, is not achieved. 

Another respondent considered that 

the requirement at FAR 15.403– 

1(c)(1)(ii) has been misused, because 

contracting officers confuse the 

adequate price competition definition of 

expected competition in the exception 

as also covering the adequate price 

competition pricing method of 

comparing proposals in FAR 15.404– 

1(b)(2)(i). FAR 15.404–1(b)(2)(i) states 

that one price analysis technique is 

‘‘Comparison of proposed prices 

received in response to the solicitation. 

Normally, adequate price competition 

establishes a fair and reasonable price 

(see FAR 15.403–1(c)(1)).’’ The 

respondent recommended that we 

clarify the need for separate price 

analysis before concluding that the 

standard for adequate price competition 

has been met. 

Similarly, another respondent 

recommended more rigorous 

enforcement of the existing price 

reasonableness test in FAR 15.403– 

1(c)(1)(ii) and (iii) for adequate price 

competition, without further regulatory 

change to prohibit DoD contracting 

officers from using the exception. 

Another respondent concurred that the 

problem is not the tool but the improper 

use of the tool. The respondent 

recommended maintaining the 

standards at FAR 15.403–1(c)(1)(ii). A 

third respondent stated that current 

methods are adequate to attain the 

desired benefit, but without 

‘‘completely undercutting the existing 

acquisition process.’’ 

Response: In response to public 

comments, DoD has reassessed the 

proposed statement of policy at DFARS 

215.371 in order to better reflect the 

fundamental purpose of the rule. The 

policy statement at DFARS 215.371–1 

has been revised to clarify that if only 

one offer is received in response to a 

competitive solicitation, it is DoD 

policy— 

• To take the required actions to 

promote competition; and 

• To ensure, if the steps to promote 

competition still do not result in more 

than one offer, a fair and reasonable 

price and compliance with the statutory 

requirements for certified cost or pricing 

data, unless an exception applies. 

The proposed rule statement that the 

circumstance of ‘‘reasonable expectation 

* * * that two or more offerors, 

competing independently, would 

submit priced offers,’’ as further 

described at FAR 15.403–1(c)(1)(ii), 

does not constitute adequate price 

competition if only one offer is 

received’’ is not included in the final 

rule. The second element in the 

statement of policy, which reflects one 

of the ultimate goals of the proposed 

rule, shifts the focus from determining 

the existence of ‘‘adequate price 

competition’’ to achieving a ‘‘fair and 

reasonable price.’’ 

There are two citations in the FAR 

that have contributed to the confusion 

regarding the relationship between the 

determination that adequate price 

competition exists and the 

determination that a price is fair and 

reasonable. 

Until a recent technical amendment, 

FAR 15.403–1(c)(1)(ii), which addresses 

‘‘only one offer,’’ included as a standard 

for adequate price competition the 

requirement that ‘‘The determination 

that the proposed price is based on 

adequate price competition, is 

reasonable, and is approved at a level 

above the contracting officer;’’. The 

technical amendment restored the 

original wording, which had become 

inadvertently unclear in the process of 

a major rewrite of FAR part 15, to read 

as follows: 

‘‘The determination that the proposed 

price is based on adequate price 

competition and is reasonable has been 

approved at a level above the 

contracting officer;’’ 

This makes it unambiguous that it is 

the price that must be reasonable, not 

the determination, and that this 

determination of reasonable price is an 

essential part of the determination that 

adequate price competition exists. 

However, FAR 15.404–1(b)(2)(i) 

makes the statement that ‘‘Normally, 

adequate price competition establishes a 

fair and reasonable price (see FAR 

15.403–1(c)(1)).’’ This statement is 

overly broad. Although ‘‘adequate price 

competition’’ and ‘‘fair and reasonable 

price’’ are inextricably linked, only 

adequate price competition as described 

at FAR 15.403–1(c)(1)(i) can be used as 

the basis to determine that the price is 

fair and reasonable. FAR 15.403– 

1(c)(1)(i) involves the receipt of offers 

from two or more responsible sources, 

competing independently. That this is 

what was intended at FAR 15.404– 

1(b)(2)(i) is clear from the lead-in 

sentence, which addresses the 

comparison of proposed prices received 

in response to the solicitation as a price 

analysis technique. 

The perception that ‘‘based on 

adequate price competition’’ can be 

used as sufficient basis to determine 

that a price is fair and reasonable is 

clearly untenable for the standards in 

FAR 15.403–1(c)(1)(ii) and (iii), both of 

which require a determination of price 

reasonableness as part of the 

determination that adequate price 

competition exists. Since there is no 

adequate price competition under FAR 

15.403–1(c)(1)(ii) until a level above the 

contracting officer has found the price 

to be ‘‘reasonable,’’ the determination 

that the price is fair and reasonable in 

the case of only one offer cannot be 

based on ‘‘adequate price competition,’’ 

as in the case when multiple offers are 

received, but must be based on another 

type of cost or price analysis. The cost 

or price analysis in the case of 

paragraph (ii) is not subject to the 

particular restrictions imposed in 

paragraph (iii). 

The respondents, therefore, have a 

point when they state that the problem 

with the determination that ‘‘only one 

offer’’ can constitute adequate price 

competition lies primarily in the misuse 

of that determination as a basis to 

assume that the price is fair and 

reasonable. 

Therefore, DoD has revised the final 

rule to emphasize that, although FAR 

15.403–1(c)(1)(ii) may be used to 

determine that adequate price 

competition exists for purposes of an 

exemption from the requirement to 

obtain certified cost or pricing data, that 

determination of adequate price 

competition can only be made in 

conjunction with the determination that 


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39130 Federal Register / Vol. 77, No. 126 / Friday, June 29, 2012 / Rules and Regulations 

the price is fair and reasonable, based 

on cost or price analysis, not just relying 

on ‘‘adequate price competition.’’ If the 

price can be determined to be fair and 

reasonable based on cost or price 

analysis and the appropriate 

determination is approved at one level 

above the contracting officer that the 

other criteria for adequate price 

competition have been met, or another 

exception to the requirement for 

certified cost or pricing data applies, 

then there is no need for any additional 

cost or pricing data. 

Comment: One respondent expressed 

serious concerns that full and open 

competition is no longer the model to 

determine a fair and reasonable price 

when single offers are received, and that 

a price achieved through full and open 

competition is only a starting point for 

further negotiation. 

Response: As already stated, ‘‘full and 

open competition’’ (i.e., adequate price 

competition) cannot be the basis for 

determining a fair and reasonable price 

when only one offer is received, because 

the determination that adequate price 

competition exists cannot be made until 

a separate determination has been made 

that the price is fair and reasonable. 

Comment: One respondent considered 

it ‘‘inexplicable’’ that the proposed rule 

does not recognize the requirements of 

FAR 15.403–1(c)(1)(iii) to perform price 

analysis as contributing to the informed 

contracting officer decision about 

adequate price competition and price 

reasonableness. 

Response: Although a prior 

memorandum of November 24, 2010, 

from the Director, Defense Procurement 

and Acquisition Policy (DPAP), 

included a restriction of reliance on the 

standard at FAR 14.303–1(c)(1)(iii) for 

determining adequate price 

competition, the subsequent DPAP 

memorandum of April 27, 2011, and the 

proposed rule only restricted reliance 

on the exception at FAR 15.403– 

1(c)(1)(ii). Therefore, FAR 15.403– 

1(c)(1)(iii) could still be relied upon to 

determine adequate price competition, 

if the criteria can be met. Note that this 

exception only applies if the prices of 

the prior contracts resulted from 

adequate price competition. 

Comment: One respondent questioned 

the lack of empirical data to back up the 

statement in the September 14, 2010, 

Carter memo that DoD contracting 

officers were not performing cost or 

price analysis on single bid offers. 

Response: Although DoD does not 

have extensive data, there is concern 

based on anecdotal evidence that when 

there was an expectation of competition 

but only one offer was received, in too 

many instances there was not a serious 

independent cost or price analysis to 

determine that the price was fair and 

reasonable. The GAO Report of July 

2010 (GAO–10–833, Federal 

Contracting: Opportunities Exist to 

Increase Competition and Assess 

Reasons When Only One Offer Is 

Received), found that some contracting 

approaches (about 10 percent of sample 

reviewed) did not reflect sound 

procurement or management practices, 

including some with very limited 

documentation of the reasonableness of 

proposed prices. 

b. Requirement for More Data 

i. Statutory Exemptions From 

Requirement To Submit Certified Cost 

or Pricing Data 

Comment: Several respondents 

requested clarification of when data 

other than certified cost or pricing data 

applies. Several respondents were 

further concerned that the proposed rule 

conflicted with underlying legislation 

and regulation that prohibit requesting 

(certified) cost or pricing data in certain 

circumstances. The respondent 

requested clarification of the rule to 

exempt procurements for commercial 

items or procurement to which another 

exception applies. The respondent 

reiterated that agencies are statutorily 

prohibited from requiring certified cost 

or pricing data where any exception 

applies. 

Another respondent stated that the 

rule should state explicitly that unless 

a waiver is granted or it is a commercial 

item, the data would always be certified 

cost or pricing data. This respondent 

recommended a specific change in the 

final rule, adding a new paragraph 

DFARS 215.371(c)(2)(i) to specifically 

add the requirement to ‘‘Determine if an 

exception to certified cost or pricing 

data is necessary and/or applicable.’’ 

Further, another respondent stated 

that submission of other than certified 

cost or pricing data should never be a 

substitute for the submission of certified 

cost or pricing data. Accordingly, the 

respondent believed that if only one 

offer is received, then the submission of 

certified cost or pricing data should be 

required in order to conclude that a fair 

and reasonable price has been 

established. 

Response: The final rule has been 

revised to make it clearer when 

additional cost or pricing data is 

required and when that data must be 

certified. DFARS 215.371–3(b)(2)(i) 

states that ‘‘For acquisitions that exceed 

the cost or pricing data threshold, if no 

exception at FAR 15.403–1(c) applies, 

the cost or pricing data shall be 

certified.’’ The rule does not override 

any of the statutory exemptions from the 

requirement to require certified cost or 

pricing data, as set forth at FAR 15.403– 

1(c). 

ii. Impact of Requesting Unnecessary 

Additional Data 

Comment: One respondent stated that 

although obtaining insight into some 

single offer procurements may be 

appropriate, the respondent believes 

that the goal can be better achieved by 

better enforcing the existing rules. The 

respondent cited FAR 15.402(a)(3), 

which states that ‘‘Contracting officers 

shall obtain the type and quality of data 

necessary to establish a fair and 

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.’’ 

Similarly, another respondent 

objected that the proposed rule 

effectively shifts the burden for price 

reasonableness to the offeror, by 

requiring them to provide either 

certified cost or pricing data or data 

other than certified cost or pricing data 

automatically, in response to several 

new clauses authorizing the contracting 

officer to demand such data when a 

single offer is received. According to the 

respondent, this rule creates the de facto 

presumption that any single offer 

outcome is unreasonable. This 

respondent recommended that 

supporting data should be restricted to 

pricing data and prohibit the contracting 

officer from requesting cost data or 

profit figures (per the SARA panel). The 

respondent further stated that if cost 

data is necessary, it should not require 

certification. 

Several respondents feared a negative 

impact because of the proposed rule 

requirement for submission of cost or 

pricing data when only one offer is 

received. 

One respondent stated that the 

uncertainty at the time of offer as to 

whether cost or pricing data will later be 

required, imposes an unanticipated 

burden of gathering such data. The 

respondent was concerned that this 

uncertainty may increase prices, drive 

away competitors, especially 

nontraditional suppliers, from 

submitting offers, and thus increase the 

number of single offers received. 

Another respondent stated that the 

demand for additional data will add to 

the enormous industry bid and proposal 

cost burden. The respondent further 

stated that requiring cost or pricing data 

is contrary to sound acquisition policy 


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and will negatively impact mission 

performance accomplishment. 

Response: The final rule has been 

revised to narrow the circumstances in 

which the contracting officer will 

request additional cost or pricing data. 

The rule now clarifies that, in 

competitive environments when only 

one offer is received, the contracting 

officer is only required to obtain enough 

data to establish fair and reasonable 

prices and to comply with any statutory 

requirement for certified cost or pricing 

data. If the contracting officer 

determines that the proposed price is 

fair and reasonable (through cost or 

price analysis using any data from the 

same or similar products or services 

previously procured) and that adequate 

price competition exists (the 

determination approved at one level 

above the contracting officer) or another 

exception to the requirement for 

certified cost or pricing data applies, 

then no further data is required. 

However, if the contracting officer 

cannot make the preceding 

determination, then the contracting 

officer must request additional cost or 

pricing data, and that data must be 

certified, unless another exception to 

the requirement for certified cost or 

pricing data applies (e.g., commercial 

items, or below the certified cost or 

pricing data threshold). 

The provision at DFARS 252.215– 

7008 has been revised in the final rule 

so that it no longer automatically 

requires additional data if only one offer 

is received. The provision notifies 

offerors that the contracting officer may 

request additional cost or pricing data if 

only one offer was received and if 

additional cost or pricing data is 

required in order to determine whether 

the price is fair and reasonable. In 

addition, the provision has been revised 

so that an offeror, by submission of its 

offer, agrees to provide any data 

requested by the contracting officer in 

accordance with FAR 52.215–20. 

c. Negotiations 

Comment: Several respondents 

commented on the requirement that the 

negotiated price should not exceed the 

offered price. One respondent asked 

whether a FAR deviation from FAR 

15.306(d), Exchanges with offerors after 

establishment of the competitive range, 

was being processed for DFARS 

215.371(c)(2)(ii), which states in part 

that ‘‘If the contracting officer decides to 

enter negotiations, the negotiated price 

should not exceed the offered price.’’ 

Response: FAR 1.304 provides that 

agency regulations may be inconsistent 

with the FAR as provided in FAR 

subpart 1.4, Deviations from the FAR. 

FAR 1.404(b) provides that for DoD, 

class deviations are controlled, 

processed, and approved in accordance 

with the DFARS. DPAP is the approval 

authority for class deviations or changes 

to the DFARS that constitute a 

permanent deviation from the FAR. 

Incorporation of a policy or procedures 

in the DFARS is sufficient to establish 

that a policy or procedure different from 

the FAR is applicable to DoD. DoD only 

processes a deviation from the FAR as 

a separate document when there is 

insufficient time to incorporate the 

changes in the DFARS or the 

incorporation in the DFARS is 

inappropriate for some other reason. 

Comment: One respondent stated that 

both discussions and negotiations could 

reveal errors that would lead to revised 

proposals either lower or higher than 

the offered price. Additionally, the 

respondent expressed concern that the 

definition of ‘‘should’’ is different to 

each individual. Another respondent 

recommended striking the limitation 

that negotiated price should not exceed 

offered price from paragraph (c) of 

proposed DFARS 252.215–70XX. 

Response: The term ‘‘should’’ is 

defined at FAR 2.101 (see response to 

third comment under section II.B.2.b.). 

If discussions or negotiations reveal 

errors that would lead to revised 

proposals, then that could constitute 

sufficient rationale to diverge from the 

norm of ‘‘should’’ and negotiate a higher 

price. 

Comment: One respondent cited the 

20 percent likelihood that there will be 

only one offer as cause for offerors to 

back away from making an initial offer, 

because if there is only one offer, then 

the offeror will be forced to negotiate 

further with their offered price as 

ceiling. The respondent also sees an 

impact on contracting officers because 

of the difference between the FAR and 

the DFARS, causing ‘‘more confusion 

among DoD contracting officers about 

the negotiation process.’’ 

Response: The rule has been revised 

so that negotiations only ensue when 

the contracting officer cannot determine 

that the offered price is fair and 

reasonable (also see response to 

previous section II.B.3.b.ii.). 

Comment: One respondent had some 

technical comment with regard to 

entering negotiations under DFARS part 

214. The respondent recommended 

inclusion of several references (at 

DFARS 214.404–1(1) and (2) and 

214.408–1(b)) to FAR 14.404–1(f), which 

allows sealed bidding to convert to 

negotiated in lieu of cancellation 

required by FAR 14.404–1(c). 

Response: The DFARS 

supplementation of FAR 14.404–1 has 

added a reference to FAR 15.404–1(f) to 

clarify that the DFARS procedures at 

DFARS 215.371 supersede the 

procedures at FAR 14.404–1(f). 

4. Exceptions in Proposed Rule 

a. Simplified Acquisition Threshold 

Comment: Three respondents 

recommended increasing the proposed 

threshold for application of the rule 

from the simplified acquisition 

threshold to $10 million. One 

respondent stated that the rule should 

exempt acquisitions less than $10 

million, in order to return the highest 

level of benefit from the burdens 

imposed by submission of cost or 

pricing data and negotiation. 

Similarly, another respondent 

recommended the $10 million threshold 

in order to focus the requirements on 

the competitions in which fostering 

effective competition would have the 

most beneficial impact to DoD and for 

which a failure to perform adequate cost 

or price analysis of single offers could 

result in the most detriment to DoD. 

A third respondent provided the 

rationale that, especially for 

procurement of services, for many 

procurements of less than $10 million 

associated with re-competes, other 

contractors determine that based on a 

cost-benefit analysis, the cost of writing 

and submitting a proposal exceed the 

potential benefits associated with the 

acquisition. 

Response: The simplified acquisition 

threshold is currently $150,000, with 

higher thresholds for contingency 

operations or to facilitate the defense 

against nuclear, biological, chemical, or 

radiological attack (which are exempt 

from this rule). Another possible 

threshold that was considered is the 

threshold for certified cost or pricing 

data ($650,000). DoD decided to retain 

the simplified acquisition threshold as 

the threshold for application of this 

rule. It is not to the benefit of DoD to 

exempt acquisitions up to $10 million 

from this rule, or even $650,000, 

especially as the final rule has been 

revised to eliminate any unnecessary 

burden. It is important at every dollar 

value to maximize competition and 

determine that prices are fair and 

reasonable. The primary reasons that 

buys below the simplified acquisition 

threshold have been exempted from this 

rule are because— 

• 41 U.S.C. 1901 requires that in 

order to ‘‘promote efficiency and 

economy in contracting and to avoid 

unnecessary burdens,’’ the FAR shall 

provide simplified procedures for 

acquisitions not greater than the 

simplified acquisition threshold; and 


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• It is simply not feasible to apply the 

rule to the huge volume of very low 

dollar value buys, a large majority of 

which are conducted electronically. 

b. Contingency Contracting 

Comment: One respondent viewed the 

exception for contingency contracting as 

a serious defect. The respondent 

referenced the Commission on Wartime 

Contracting as evidence that DoD’s noncompetitive procurement practices in 

contingency operations have resulted in 

billions of dollars of waste. The 

respondent, therefore, recommended 

that either the exception be deleted, or 

a rigorous set of guidelines be included 

in the final rule, to limit the instances 

in which such an exception could be 

granted. 

Response: An exception for actions in 

support of contingency operations is 

provided due to the urgent nature of 

actions and the need for flexibility in 

theater in order to remain responsive. 

Application of the exception does not 

eliminate the need for the contracting 

officer to seek maximum practicable 

competition and ensure that the price is 

fair and reasonable. The intent of the 

proposed rule is to drive behavior to 

enhance real competition whenever 

possible and to obtain a fair and 

reasonable price. To establish a rigorous 

set of guidelines to limit instances in 

which an exception could be granted in 

a contingency environment could 

severely limit the flexibility of the 

contracting officer in these instances. 

DoD is also reviewing the findings/ 

recommendations of the Commission on 

Wartime Contracting and placement of 

additional safeguards and remedies to 

promote competition in a contingency 

environment. 

5. Waiver 

Comment: One respondent criticized 

the waiver provision for being 

‘‘unlimited’’ and imposing ‘‘no 

restrictions or guidance on when or how 

the head of the contracting activity 

should exercise this authority. 

According to this respondent, if there 

are no reasonable restrictions on 

granting of waivers, then it is unlikely 

that DoD’s practice will change. 

Response: The requirement to 

resolicit for an additional 30 days may 

be waived by the head of the contracting 

activity (HCA). The intent of including 

this waiver provision is to maintain 

flexibility and allow the HCA to 

exercise the authority of the position. 

Typically, this position is filled by a 

senior acquisition professional who has 

demonstrated sound business judgment 

and acumen. DoD relies on those in 

charge to exercise good judgment in the 

execution of their duties. This waiver 

authority cannot be delegated below one 

level above the contracting officer. DoD 

has not seen evidence of abuse of this 

waiver authority. 

Comment: One respondent 

recommended that the rule should 

allow requesting a waiver of the 

requirement to resolicit for an 

additional 30 days if the contracting 

officer has determined fair and 

reasonable prices through price or cost 

analysis or negotiations with the offeror, 

and the waiver has been approved by 

the PARC (Principal Assistant 

Responsible for Contracting). 

Response: The purpose of the 30-day 

resolicitation requirement is to promote 

effective competition. Determination 

that the offered price is fair and 

reasonable may provide supporting 

rationale for granting a waiver, but does 

not by itself constitute sufficient 

grounds to grant a waiver. More 

important reasons for granting a waiver 

would be urgency of the requirement or 

market research that indicates that an 

additional 30 days is unlikely to result 

in additional offers. 

The final rule continues to allow the 

waiver authority to be delegated to one 

level above the contracting officer 

(which would include the PARC). An 

approval one level above the contracting 

officer ensures a layer of review and 

provides a mechanism for checks and 

balances. Waiver of the 30-day 

resolicitation period does not relieve the 

contracting officer of the need to 

determine the price fair and reasonable. 

6. Applicability to Parts Other Than 

DFARS Parts 214 and 215 

a. Part 208 

Comment: Several respondents 

recommended that the proposed rule 

should not apply to DFARS subpart 

208.4, Federal Supply Schedules. 

i. Timing and Complexity 

Comment: One respondent stated that 

the purpose for the GSA Federal Supply 

Schedule is to provide the Government 

an expedited means to procure 

commercial supplies and services at the 

substantially lower costs associated 

with volume buying. Therefore, 

expanding the DoD memos to DFARS 

subpart 208.4 (as well as DFARS parts 

212, 213, and 216), ‘‘eviscerates their 

intention’’ and will overload the 

acquisition process. 

Another respondent provided an 

example of an agency that frequently 

posts RFQs using the GSA eBuy tool for 

fewer than 30 days. The RFQs are 

available to all vendors on the relevant 

GSA schedule. Although multiple 

responses are generally received, 

occasionally there is only one quote 

received. According to this respondent, 

lengthening the RFQ response time to 

30 days would impede the goal of 

simplifying and streamlining the 

procurement process. 

Response: DoD recognizes that the 

Federal Supply Schedule program 

directed and managed by GSA provides 

a simplified and flexible process for 

obtaining commercial supplies and 

services. The schedule program, because 

it does not require contracting officers to 

seek competition outside of the 

schedule holders or to synopsize the 

requirement, can be very efficient. DoD 

also believes that effective competition 

promotes greater efficiency and 

productivity in defense spending, and 

that DoD needs to do more to promote 

competition when only one offer is 

received in response to a competitive 

solicitation. The final rule requires, 

when only one offer is received in 

response to a competitive solicitation, 

that the contracting officer promote 

competition by trying to revise the 

requirements document and by 

permitting more time for receipt of 

offers. In addition, the final rule does 

not eliminate the efficiencies or 

flexibilities inherent in FAR part 8 

transactions. 

RFQs using the GSA eBuy tool are 

frequently posted for less than 30 days 

and generally receive more than one 

response. The final rule still permits 

requests for quotation to be solicited for 

fewer than 30 days, and only requires a 

resolicitation for 30 days (or a waiver) 

in those cases when only one offer was 

received. Market research can provide 

contracting officers the insight required 

to determine the solicitation response 

time required to ensure effective 

competition without needlessly 

lengthening the RFQ response time to 

30 days. In many cases, market research 

will indicate that multiple offers will be 

received in response to an RFQ open for 

under 30 days. In other cases, market 

research will indicate that contracting 

officers need to keep RFQs open for 30 

days to encourage effective competition. 

Finally, market research will indicate 

that additional time will likely not 

result in additional offers, and provide 

contracting officers with the rationale to 

support a waiver of the resolicitation 

requirement. 

ii. Authority of GSA 

Comment: One respondent stated that 

GSA is vested with the exclusive 

statutory authority for the pricing 

policies and procedures governing 

contracts and orders under the Federal 

Supply Schedule (40 U.S.C. chapter 5 


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and 41 U.S.C. 152(3)). Any 

modifications must be approved by GSA 

and incorporated into the General 

Services Acquisition Regulation 

(GSAR). 

Response: DoD understands GSA’s 

exclusive statutory authority for 

directing and managing the Federal 

Supply Schedule (FSS) program, and is 

not modifying the FSS program with 

this final rule. Instead, the final rule 

merely supplements GSA’s existing 

guidance on the FSS program to ensure 

FSS program use by DoD contracting 

officers is consistent with DoD’s policies 

for promoting competition. Specifically, 

the final rule augments GSA’s policies 

and procedures for the FSS program by 

providing DoD contracting officers 

specific instructions when only one 

offer is received in response to a 

competitive FSS solicitation. DoD has 

periodically issued additional guidance 

and instructions to govern use of the 

FSS within DoD. 

iii. Sufficiency of FAR and GSAR 

Processes 

Comment: According to several 

respondents, the proposed regulations 

are unnecessarily duplicative, because 

the FAR and the GSAR already provide 

a framework for the effective and 

efficient procurement of goods and 

services at fair and reasonable prices. 

The respondents noted that under the 

FSS, GSA has already determined that 

the prices for products and the rates for 

services are fair and reasonable (FAR 

8.404(d)). According to the respondents, 

ordering agencies are not required to 

make a separate determination of fair 

and reasonable prices of supplies and 

fixed price services, except for a price 

evaluation as required by FAR 8.405– 

2(d). In such cases, agencies are only 

responsible for considering the level of 

effort and labor mix and making a 

determination whether the total price is 

fair and reasonable. 

Response: Existing regulations already 

anticipate that contracting officers can 

achieve prices below those determined 

fair and reasonable by GSA by pursuing 

additional competition and/or price 

negotiations. Even though GSA has 

already negotiated fair and reasonable 

pricing under the FSS program, the FAR 

permits contracting officers to seek 

additional discounts before placing an 

order. Agencies are required to seek 

price reductions from the fair and 

reasonable contract prices for orders 

exceeding the simplified acquisition 

threshold (see FAR 8.405–4). As a 

practical matter, contracting officers 

routinely achieve such impressive 

discounts that award at published FSS 

prices is discouraged. Similarly, existing 

DFARS regulations provide specific 

guidance to DoD contracting officers 

that govern competitions under FSS. 

The final rule provides specific 

guidance to DoD contracting officers 

when only one offer is received. The 

final rule augments existing DoD 

guidance on FSS competitions. The 

final rule also provides additional 

guidance to DoD contracting officers 

that govern the establishment of price in 

one offer competitions. The final rule is 

consistent with the existing 

requirements for competitions under the 

FSS program and with the standard for 

determining fair and reasonable prices. 

iv. Technical 

Comment: One respondent stated that 

the threshold of ‘‘exceeding $150,000’’ 

at DFARS 208.405–70(c)(1), which 

provides criteria for orders placed on a 

competitive basis, appears to create a 

conflict with DFARS 215.371(e)(ii), 

which creates no threshold for the 

‘‘attack items,’’ i.e., items to facilitate 

against or recovery from nuclear, 

biological, chemical, or radiological 

attack. 

Response: The final rule supplements, 

but does not conflict with, the 

competition requirements in DFARS 

208.405–70(c)(1). The final rule 

provides additional policies and 

procedures when one offer is received 

in response to a competitive solicitation. 

The final rule, at DFARS 215.371–4, 

exempts certain acquisitions, including 

‘‘attack items’’ from the new policies 

and procedures for one offer 

competitions. 

Comment: One respondent noted that 

FAR 8.404 specifically states that FAR 

part 15 is not applicable to FSS orders. 

Therefore, this statement would have to 

be addressed in the DFARS, in order to 

make DFARS part 215 applicable. 

Response: As requested by the 

respondent, the final rule adds specific 

language at DFARS 208.404(a) to make 

DFARS 215.371 applicable. 

Comment: One respondent 

recommended creating a clause for 

orders (DFARS 208.405–70(d) and 

215.506(S–70)). 

Response: The final rule includes 

provisions at DFARS 252.215–7007, 

Notice of Intent to Resolicit, and DFARS 

252.215–7008, Only One Offer, that 

apply to all competitive acquisitions, 

including orders, subject to the final 

rule. The final rule does not include an 

additional clause for orders. 

b. Part 212 

Several respondents recommended 

that the proposed rule should not apply 

to commercial items (DFARS part 212), 

for the following reasons: 

i. Timeframe for Response 

Comment: Several respondents noted 

that FAR 12.205(c) specifically provides 

for fewer than 30 days response time for 

receipt of offers for commercial items. 

One respondent stated that the proposed 

rule is inconsistent with FAR 12.205(c). 

Another respondent noted that 

acquisition requirements and processes 

for the procurement of commercial 

items were supposed to more closely 

resemble those customarily used in the 

commercial marketplace, which the 

respondent considers to be the reason 

for allowing shorter response times for 

receipt of offers for commercial items. 

This respondent noted that the DFARS 

proposed rule does not foster the policy 

behind commercial item acquisitions. A 

third respondent noted that there is an 

expectation that an agency can acquire 

IT in 30 days or fewer, in order to 

respond to a cyber threat. However, 

according to the respondent, contracting 

officers will never be able to respond in 

30 days or fewer, because by default, an 

agency will post the request for quote 

for the required 30 days, just to avoid 

the risk of having to do it over again. 

Response: Current regulations permit 

response times under 30 days for 

commercial items. Shorter response 

times may more closely resemble 

commercial practice and may speed the 

acquisition of critical IT and other 

items. The final rule still permits 

response times under 30 days, and only 

requires a resolicitation for 30 days (or 

a waiver) in those cases when only one 

offer was received. Market research can 

provide contracting officers the insight 

required to determine the solicitation 

response time required to ensure 

effective competition without 

needlessly lengthening every 

solicitation’s response time to 30 days. 

In many cases, market research will 

indicate that multiple offers will be 

received in response to an RFP/RFQ 

open for fewer than 30 days. In other 

cases, market research will indicate that 

contracting officers need to give 

potential offerors at least 30 days to 

encourage effective competition. 

Similarly, market research will indicate 

those cases where additional time will 

likely not result in additional offers, and 

will provide contracting officers with 

the rationale to support a waiver of the 

resolicitation requirement. The final 

rule also recognizes that certain 

requirements are too urgent to permit a 

30-day solicitation response period, and 

includes an exception for acquisitions 

in support of contingency, humanitarian 

or peacekeeping operations, or to 

facilitate defense against or recovery 

from nuclear, biological, chemical, or 


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radiological attack. Finally, the final 

rule also permits waivers of the 30-day 

resolicitation requirement, when 

necessary and justified. 

ii. Other Ways To Determine Fair and 

Reasonable Prices 

Comment: One respondent suggested 

that excluding commercial contracts 

would be one means to narrow the 

scope of the proposed rule to those 

contracts that might return the highest 

level of benefit. The respondent noted 

that in the case of commercial contracts, 

competitive pricing can often be verified 

without resort to additional data from 

the contractor, which is one reason that 

the law prohibits requesting certified 

cost or pricing data for commercial 

contracts. 

Response: Competitive pricing can 

often be verified without resort to 

additional data from the contractor. The 

final rule has been revised to provide 

that, when a single offer is received in 

response to a competitive solicitation, 

the contracting officer should try to 

determine through cost or price analysis 

that the offered price is fair and 

reasonable and whether an exception to 

the requirement for certified cost or 

pricing data applies, before requesting 

any additional data from the contractor. 

The final rule refers contracting officers 

to the existing exceptions to the 

requirement to submit certified cost or 

pricing data, including the commercial 

item exception. 

iii. Access to the DoD Market 

Comment: One respondent viewed the 

application of the proposed rule to 

acquisition of commercial items as an 

added barrier to entry into the DoD 

market. 

Response: Typically, commercial 

vendors cite the requirement for 

certified cost or pricing data as a key 

deterrent to doing business with the 

DoD. The final rule does not change the 

commercial item exemption to the 

requirement for certified cost or pricing 

data. In addition, by ensuring adequate 

proposal preparation time is provided to 

potential offerors, the final rule 

encourages commercial item vendors to 

participate in DoD’s competitions. 

Finally, the final rule implements key 

policies necessary to improve the 

efficiency and productivity of DoD’s 

procurements. While DoD does not 

believe that the final rule creates 

barriers to entry, commercial vendors 

will need to make business decisions 

about their participation in the DoD 

marketplace. 

c. Subpart 13.5 

The FAR subpart 13.5 test program is 

no longer in effect. The final rule deletes 

all references to the FAR subpart 13.5 

test program. 

d. Part 216 

Various respondents did not agree 

with application of the proposed rule to 

DFARS part 216. 

i. 30-Day Resolicitation 

Comment: One respondent stated that 

the rule should clarify whether the 30- 

day requirement also applies to 

delivery/task orders solicited under a 

multiple award/indefinite-delivery/ 

indefinite-quantity type contract, noting 

that competition is limited to the primes 

under these contracts. Another 

respondent stated that the proposed rule 

should not require resolicitation for an 

additional 30 days if the other prime 

contractors indicate that they will not 

provide an offer if additional days are 

provided. 

Another respondent stated that the 

rule should not apply to multiple-award 

contracts when only two or three 

contractors were awarded the base 

contract, and one or more of the base 

contract awardees is excluded from 

submitting a proposal due to an 

organizational conflict of interest. In 

such case, only receiving one proposal 

will not be the result of inadequate 

competition and 30-day resolicitation 

would interfere with deliveries without 

resulting in increased competition. 

Response: The final rule applies to the 

prime contractor awardees in a 

multiple-award contract scenario. If the 

prime contractors state that they are not 

going to provide an offer if additional 

days are provided, or if there is an 

organizational conflict of interest for 

one or more of the prime contractors, 

then the contracting officer may pursue 

a waiver to the 30-day resolicitation 

requirement in accordance with DFARS 

215.371–5 of the final rule. 

ii. Adequate Price Competition 

Comment: One respondent stated that 

multiple-award contracts are already 

awarded based on adequate price 

competition. 

Response: Consistent with the fair 

opportunity rules at FAR 16.505(b), the 

final rule is intended to promote real 

competition when only one offer is 

received to ensure the integrity of the 

competitive contracting process is 

maintained for each task or delivery 

order, even when the multiple-award 

contracts were awarded based on 

adequate price competition. 

iii. Cost or Pricing Data 

Comment: One respondent stated that 

cost or pricing data was submitted and 

evaluated at time of award and does not 

need to be submitted if only one offer 

is received. 

Response: Even if cost or pricing data 

was submitted at the time of award, the 

contracting officer must consider price 

or cost in the selection decision as one 

of the factors for each task or delivery 

order issued. If only one offer is 

received for a task or delivery order, the 

contracting officer may not rely on 

adequate price competition to determine 

that the price of the task or delivery 

order is fair and reasonable. The 

contracting officer may make the 

determination that the offered price is 

fair and reasonable and is based on 

adequate price competition (approved 

one level above the contracting officer) 

or that another exception to the 

requirement for certified cost or pricing 

data applies. However, if the contracting 

officer cannot make this determination 

and must request additional cost or 

pricing data, that cost or pricing data 

must be certified unless an exception 

applies. 

e. Part 219 

Comment: One respondent 

recommended that the proposed rule 

should not apply to small business setasides. Another respondent requested 

clarification as to whether the proposed 

rule was intended to be applicable to 

small business programs. Although the 

rule did not specifically make any 

changes to FAR part 19, there may be 

impact through references in FAR 

19.502–4 (Methods of conducting setasides) to conducting the set-aside using 

the procedures of FAR parts 13, 14, or 

15; and FAR 19.806 (Pricing the 8(a) 

contract) requires the contracting officer 

to price the 8(a) contract in accordance 

with FAR subpart 15.4. More 

specifically, the respondent pointed to 

FAR 19.502–2(a), which provides that 

‘‘If the contracting officer received only 

one acceptable offer from a responsible 

small business concern in response to a 

set-aside, the contracting officer should 

make an award to that firm.’’ There is 

comparable language in FAR 19.1305(c) 

for HUBZone set-asides, 19.1405(c) for 

service-disabled veteran-owned small 

business set-aside procedures, 

19.1505(d) for women-owned small 

business program set-asides. 

Response: An exception has been 

added at DFARS 215.371–4(b) to the 30- 

day resolicitation requirement at DFARS 

215.371–2. The final rule does not 

preclude any requirement that was setaside under the authority of FAR 


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19.1305, 19.1405 or 19.1505 from being 

awarded, if only one acceptable offer 

was received. 

The intent still is to ensure that prices 

and/or costs obtained by the offeror are 

fair, reasonable, and in the best interest 

of the Government, even by small 

businesses. Based on market research, 

the contracting officer is reasonably 

expected not to set-aside a requirement 

for competition, unless there is a 

‘‘reasonable expectation that offers will 

be received from two or more small 

business concerns and that award will 

be made at a fair market price.’’ If only 

one acceptable offer is received from a 

competitive set-aside, then the 

procedures at DFARS 215.371–3 for 

determination of a fair and reasonable 

price apply equally to small business 

set-asides. 

f. Part 235 

Comment: One respondent 

recommended that the final rule should 

explicitly exclude competitions for 

basic and applied research conducted 

under FAR 35.016. The respondent 

commented that, although the proposed 

rule does not address research 

competitions under FAR 35.016 

utilizing Broad Agency Announcements 

as the solicitation method, the 

amplifying memorandum of April 27, 

2011, stated that the policy applies to all 

competitive procurements of supplies 

and services that exceed the simplified 

acquisition threshold. The respondent 

provided several reasons why the entire 

issue of ‘‘one bid’’ is problematic for 

broad agency announcements, because 

offers under broad agency 

announcement sometimes trickle in 

over an extended open period, and often 

individual offers can be entertained at 

any time. 

Response: Although the final rule 

does not specifically address FAR part 

35, acquisitions under FAR part 35 are 

generally subject to the procedures of 

FAR part 15 and DFARS part 215. The 

procedures of DFARS 215.371 should 

not apply to broad agency 

announcements under FAR 35.006. The 

requirement for resolicitation if the 

original solicitation is for less than 30 

days is not likely to affect a broad 

agency announcement, because they are 

usually issued for an extended period of 

time. However, because contracts 

awarded under broad agency 

announcements, although competitively 

awarded, are not awarded on the basis 

of price competition, the approach at 

DFARS 215.371 would not be 

appropriate for a broad agency 

announcement. Responses to a broad 

agency announcement are expected to 

propose varying technical/scientific 

approaches. Proposals need not be 

evaluated against each other since they 

are not submitted in accordance with a 

common work statement. Therefore, to 

make it clear that DFARS 215.371 does 

not apply to awards under broad agency 

announcement, an exception has been 

added at DFARS 215.371–4(a)(1)(iii). 

DFARS 215.371–4(a)(2) states that the 

applicability of an exception does not 

eliminate the need for the contracting 

officer to ensure that the price is fair 

and reasonable. 

7. Regulatory Flexibility 

Two respondents questioned the 

Initial Regulatory Flexibility Analysis 

(IRFA) and made recommendations for 

reducing the impact on small business. 

Comment: These respondents 

questioned the assertion that the rule 

will not affect small business entities. 

One respondent stated that 5,148 small 

business awards over $150,000 is not an 

insubstantial figure. Another respondent 

stated that there could be adverse 

effects, especially with respect to 

commercial and low-dollar contracts 

sought by small businesses. According 

to this respondent, small businesses 

may be disproportionately impacted, 

because they may lack the resources to 

provide cost or pricing data. Another 

respondent disagreed with the 

conclusion of the IRFA that the burden 

for submission of cost or pricing data is 

already covered in the FAR. According 

to this respondent, the IRFA did not 

acknowledge that this rule will increase 

the requirement for submission of cost 

or pricing data by small businesses, 

because submission of cost or pricing 

data is not currently a requirement for 

full and open competition. 

Response: The final rule has, 

however, reduced the impact on all 

businesses, including small businesses. 

As rewritten, the final rule is not 

inconsistent with the current FAR 

requirements to determine that the price 

is fair and reasonable when only one 

offer is received. It uses the FAR clause 

52.215–20, but includes a mechanism 

whereby the FAR clause only becomes 

effective if only one offer is received, 

and the contracting officer cannot 

determine that the offered price is fair 

and reasonable without requiring 

additional data. This is part of the 

current FAR requirement to determine 

that adequate price competition exists if 

only one offer is received. 

With regard to impact on commercial 

and low-dollar value contracts sought 

by small businesses, the rule does not 

apply at all to contracts with dollar 

values below the simplified acquisition 

threshold. For acquisitions above the 

simplified acquisition threshold, the 

contracting officer will only request the 

data necessary to determine a fair and 

reasonable price. No certified cost or 

pricing data is required for commercial 

items. A small business that is offering 

items to the Government in quantities 

that exceed the simplified acquisition 

threshold and are not commercial items 

should have an accounting system 

adequate to provide cost or pricing data 

upon request. 

Comment: Another comment on the 

IRFA was that it does not explain the 

relationship between the submission of 

cost or pricing data and increased 

competition. 

Response: As clarified in the revised 

policy of the final rule, there is no 

relationship between submission of cost 

or pricing data and increased 

competition. The submission of cost or 

pricing data is to determine whether the 

offered price is fair and reasonable, 

when the efforts to increase competition 

nevertheless resulted in only one offer 

and the contracting officer could not 

make that determination without 

additional data. 

Comment: One respondent further 

recommended exclusion of— 

• Set-asides for small business; and 

• Acquisitions using full and open 

competition procedures that result in 

single offers from small businesses. 

Response: An exception to the 30-day 

resolicitation requirement has been 

added at DFARS 215.371–4(b) for small 

business set-asides, because the FAR 

specifically provides at FAR 19.5, 

19.305(c), 19.1405(c), and 19.1505(d) 

that if only one acceptable offer is 

received under these set-aside programs, 

the contracting officer should award to 

that concern. 

The final rule does not include any 

exception for when the single offer 

comes from a small business, because it 

is important to increase competition and 

allow all businesses sufficient time to 

respond to a solicitation, which could 

be of benefit to other small businesses. 

In all cases, it is still essential to 

determine that the price is fair and 

reasonable. 

8. Executive Order Requirements for 

Cost/Benefit Analysis 

Comment: Two respondents 

commented on the need for cost/benefit 

analysis as required by Executive Orders 

12866 and 13563. One respondent 

recommended that DoD should consider 

performing a cost/benefit analysis before 

finalizing the proposed rule. According 

to the respondent, the proposed rule 

will affect a significant number of 

procurements and may create burdens 

on procurement professionals and 

contractors that are not commensurate 


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with the benefits anticipated. Another 

respondent noted that there is a lack of 

empirical support for the proposed rule. 

According to the respondent, without 

further cost/benefit data to support the 

rulemaking, it fails to demonstrate that 

this rule is needed to cure the 

underlying problem of single offer 

competition. 

Response: The purpose of this rule is 

not just to save money but to ensure the 

integrity of the process. More 

competition benefits all parties, 

including small businesses. Although it 

is possible to demonstrate that increased 

competition strengthens the industrial 

base and has a beneficial impact on 

pricing, the benefits are not readily 

quantifiable. DoD is tracking 

improvement in the percentage of 

effective competition (more than one 

offer). DoD has always had a fiduciary 

responsibility to determine that prices 

are fair and reasonable. The most basic 

pricing policy at FAR 15.402 is that the 

contracting officer shall purchase 

supplies and services from responsible 

sources at fair and reasonable prices. 

Unless certified cost or pricing data is 

required by law (see FAR 15.403–4), the 

contracting officer is required to obtain 

data other than certified cost or pricing 

data as necessary to establish a fair and 

reasonable price. This rule provides a 

mechanism to accomplish that goal 

when a competitive solicitation does not 

result in more than one offer. As 

revised, the final rule does not impose 

unnecessary burdens. See also the last 

response in section II.B.3.a. and the 

responses in section II.B.3.b.ii. 

9. Additional Recommendations 

a. Delay Implementation 

Comments: One respondent 

recommended that DoD delay 

implementation of the rule until the 

Comptroller General studies one-offer 

contracts and issues a report (section 

847 of the proposed Senate version of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2012 (S. 

1253) requires such a review). 

Response: The NDAA for FY 2012, as 

enacted, did not contain such a 

requirement for a study of one-offer 

contracts. DoD needs to take action to 

improve competition and ensure fair 

and reasonable prices. DoD will remain 

ready to reassess any future 

recommendations on how progress 

towards these goals can be improved. 

b. Sunset Date 

Comment: One respondent 

recommended that the rule should 

sunset automatically 12 months after the 

effective date, or, at the latest, at any 

time after that if the DoD Competition 

Report data reveals that single offer 

competitions are 15 percent or less of 

the total number of acquisition awards. 

Response: If the policies and 

procedures of this rule are beneficial, 

then there is no need to sunset them 

after a specific amount of time or if 

certain effective competition goals are 

reached. The policies of the final rule 

are sound policies to maintain, 

regardless of the percentage of effective 

competition achieved. Improvement in 

the rate of effective competition would 

imply that the policies are working. 

However, if effective competition is still 

only 85 percent, then the remaining 15 

percent needs to be addressed, 

continuing to promote more effective 

competition and ensuring a fair and 

reasonable price. 

c. Line Item for Cost or Pricing Data 

Comment: One respondent 

recommended authorization or 

requirement that contracting officers 

include optional contract line items to 

pay directly for the provision of cost or 

pricing data not required at the time of 

submission. 

Response: This cost or pricing data is 

requested prior to contract award and is 

still considered part of the bid or 

proposal costs, which are costs incurred 

in preparing, submitting, and 

supporting bids and proposals. Bid or 

proposal costs are only allowable as 

indirect expenses on contracts, to the 

extent that those costs are allocable and 

reasonable (FAR 31.205–18(c)). 

d. Use of E-Proposals 

Comment: One respondent requested 

authorization of broader use of eproposals in the solicitation and 

contract formation processes in order to 

offset some of the timing burden caused 

by a 30-day solicitation period and/or 

by late notice of the solicitation’s 

requirements to prospective offerors. 

Response: E-solicitations and eproposals are already broadly used. The 

solicitation can authorize electronic 

commerce methods for submission of 

offers. Some offerors prefer e-proposals, 

but others do not want e-proposals to be 

mandated. The goal of this rule is to 

provide sufficient time for interested 

offerors to respond. 

e. Market Research and Price Analysis 

Capability 

Comment: One respondent 

recommended training and rewarding of 

market research capability and price 

analysis capability within each DoD 

component or the centralization of 

market research capability. 

Response: This recommendation is 

outside the scope of this rule. 

f. Support Enhanced Communication 

Comment: One respondent 

recommended continued support of 

enhanced communication with industry 

about requirements and solutions 

throughout the acquisition cycle. 

Response: DoD wholly supports this 

recommendation. 

10. Technical 

Comment: One respondent suggested 

that the coverage should be at DFARS 

subpart 215.4 rather than DFARS 

215.371. 

Response: The reason for putting the 

coverage in DFARS 215.371 rather than 

in DFARS subpart 215.4 is because the 

rule covers more than just contract 

pricing. It also involves seeking to 

increase competition through review of 

the requirements and ensuring adequate 

time for submission of offers. 

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 

A Final Regulatory Flexibility 

Analysis has been prepared consistent 

with the Regulatory Flexibility Act, 5 

U.S.C. 601, et seq., and is summarized 

as follows: 

This rule implements the initiative on 

promoting real competition that was 

presented by the Under Secretary of 

Defense for Acquisition, Technology, & 

Logistics in a memorandum dated 

November 3, 2010. The objective of the 

rule is to promote competition and 

ensure fair and reasonable prices, by 

implementing DoD policy with regard to 

acquisitions when only one offer is 

received to ensure that— 

• Adequate time is allowed for 

receipt of offers; 


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• The requirements do not present 

unnecessary barriers to competition; 

and 

• Cost or pricing data is obtained and 

negotiations are held, as necessary, to 

obtain a fair and reasonable price, when 

only one offer is received in response to 

a competitive solicitation and the 

contracting officer cannot determine 

that the offered price is fair and 

reasonable. 

The legal basis is 41 U.S.C. 1303 and 48 

CFR chapter 1. 

Two respondents questioned the 

Initial Regulatory Flexibility Analysis 

and made recommendations for 

reducing the impact on small business. 

See section II.B.7 for analysis of public 

comments on regulatory flexibility. 

No comments were filed by the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

The proposed rule provided the 

following data: that it would affect all 

small entities that respond to a Federal 

solicitation for proposals, valued at 

more than $150,000, and no other offer 

is received. 

TABLE—DOD COMPETITIVE AWARDS VALUED ABOVE $150,000 

All Only one offer 1 Offer/SB 

New Contracts or P.O. ................................................................................................................ 54,240 14,747 3,542 

New Orders under FSS ............................................................................................................... 4,246 1,654 818 

New Orders, Non-Part 8 .............................................................................................................. 12,883 2,935 788 

The impact of this rule has been 

reduced significantly by eliminating the 

requirement for additional data and 

subsequent negotiation if the 

contracting officer can determine that 

the offered price is fair and reasonable 

and that adequate price competition 

exists (approved at one level above the 

contracting officer). 

The rule imposes no reporting, 

recordkeeping, or other information 

collection requirements. The 

submission of certified cost or pricing 

data or other than certified cost or 

pricing data is covered in FAR subpart 

15.4 and associated clauses in FAR 

52.215, OMB clearances 9000–013. 

There are no known significant 

alternatives to the rule that would 

adequately implement the DoD policy. 

DoD considered higher thresholds for 

applicability of the rule (cost or pricing 

data threshold or $10 million), but 

determined that higher thresholds 

would be detrimental to the 

effectiveness of the rule. There is no 

significant economic impact on small 

entities. The impact of this rule on small 

business is expected to be 

predominantly positive, by allowing 

more opportunity for competition. 

V. Paperwork Reduction Act 

The rule does not impose any 

additional 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). The submission of 

certified cost or pricing data or data 

other than certified cost or pricing data 

required to assess whether a price is fair 

and reasonable is covered in FAR 

subpart 15.4 and associated clauses in 

FAR 52.215, OMB clearance number 

9000–013, in the amount of 10,101,684 

hours. 

List of Subjects in 48 CFR Parts 205, 

208, 212, 214, 215, 216, 252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 205, 208, 212, 

214, 215, 216, and 252 are amended as 

follows: 

PART 205—PUBLICIZING CONTRACT 

ACTIONS 

■ 1. The authority citation for 48 CFR 

part 205 is revised to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 2. Amend section 205.203 by adding 

paragraph (S–70) to read as follows: 

205.203 Publicizing and response time. 

* * * * * 

(S–70) When using competitive 

procedures, if a solicitation allowed 

fewer than 30 days for receipt of offers 

and resulted in only one offer, the 

contracting officer shall resolicit, 

allowing an additional period of at least 

30 days for receipt of offers, except as 

provided in 215.371–4 and 215.371–5. 

PART 208—REQUIRED SOURCES OF 

SUPPLIES AND SERVICES 

■ 3. The authority citation for 48 CFR 

part 208 is revised to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 4. Revise section 208.404 to read as 

follows: 

208.404 Use of Federal Supply Schedules. 

(a)(i) In accordance with 208.405– 

70(c)(2), if only one offer is received in 

response to an order exceeding $150,000 

that is placed on a competitive basis, the 

procedures at 215.371 apply. 

(ii) Departments and agencies shall 

comply with the review, approval, and 

reporting requirements established in 

accordance with subpart 217.78 when 

placing orders for supplies or services in 

amounts exceeding the simplified 

acquisition threshold. 

(iii) When a schedule lists both 

foreign and domestic items that will 

meet the needs of the requiring activity, 

the ordering office must apply the 

procedures of part 225 and FAR part 25, 

Foreign Acquisition. When purchase of 

an item of foreign origin is specifically 

required, the requiring activity must 

furnish the ordering office sufficient 

information to permit the 

determinations required by part 225 and 

FAR part 25 to be made. 

■ 5. Amend section 208.405–70 by 

revising paragraph (c), redesignating 

paragraph (d) as paragraph (e), and 

adding new paragraph (d) to read as 

follows: 

208.405–70 Additional ordering 

procedures. 

* * * * * 

(c)(1) An order exceeding $150,000 is 

placed on a competitive basis only if the 

contracting officer provides a fair notice 

of the intent to make the purchase, 

including a description of the supplies 

to be delivered or the services to be 

performed and the basis upon which the 

contracting officer will make the 

selection, to— 

(i) As many schedule contractors as 

practicable, consistent with market 

research appropriate to the 

circumstances, to reasonably ensure that 

offers will be received from at least 

three contractors that can fulfill the 

requirements, and the contracting 

officer— 

(A)(1) Receives offers from at least 

three contractors that can fulfill the 

requirements; or 


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39138 Federal Register / Vol. 77, No. 126 / Friday, June 29, 2012 / Rules and Regulations 

(2) Determines in writing that no 

additional contractors that can fulfill the 

requirements could be identified despite 

reasonable efforts to do so 

(documentation should clearly explain 

efforts made to obtain offers from at 

least three contractors); and 

(B) Ensures all offers received are 

fairly considered; or 

(ii) All contractors offering the 

required supplies or services under the 

applicable multiple award schedule, 

and affords all contractors responding to 

the notice a fair opportunity to submit 

an offer and have that offer fairly 

considered. 

(2) If only one offer is received, follow 

the procedures at 215.371. 

(d) Use the provisions at 252.215– 

7007, Notice of Intent to Resolicit, and 

252.215–7008, Only One Offer, as 

prescribed at 215.408(3) and (4), 

respectively. 

* * * * * 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 6. The authority citation for 48 CFR 

part 212 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 7. Add section 212.205 to read as 

follows: 

212.205 Offers. 

(c) When using competitive 

procedures, if only one offer is received, 

the contracting officer shall follow the 

procedures at 215.371. 

■ 8. Amend section 212.301 by 

redesignating paragraphs (f)(iv)(F) 

through (N) as paragraphs (f)(iv)(G) 

through (O) and adding new paragraph 

(f)(iv)(F) to read as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

(f) * * * 

(iv) * * * 

(F) Use the provisions at 252.215– 

7007, Notice of Intent to Resolicit, and 

252.215–7008, Only One Offer, as 

prescribed at 215.408(3) and (4), 

respectively. 

* * * * * 

PART 214—SEALED BIDDING 

■ 9. The authority citation for 48 CFR 

part 214 is revised to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 10. Add section 214.201–6 to read as 

follows: 

214.201–6 Solicitation provisions. 

(2) Use the provisions at 252.215– 

7007, Notice of Intent to Resolicit, and 

252.215–7008, Only One Offer, as 

prescribed at 215.408(3) and (4), 

respectively. 

■ 11. Add section 214.209 to read as 

follows: 

214.209 Cancellation of invitations before 

opening. 

If an invitation for bids allowed fewer 

than 30 days for receipt of offers, and 

resulted in only one offer, the 

contracting officer shall cancel and 

resolicit, allowing an additional period 

of at least 30 days for receipt of offers, 

as provided in 215.371. 

■ 12. Revise section 214.404–1 to read 

as follows: 

214.404–1 Cancellation of invitations after 

opening. 

(1) The contracting officer shall make 

the written determinations required by 

FAR 14.404–1(c) and (e)(1). 

(2) If only one offer is received, follow 

the procedures at 215.371 in lieu of the 

procedures at FAR 14.404–1(f). 

■ 13. Add sections 214.408 and 

214.408–1 to subpart 214.4 to read as 

follows: 

214.408 Award. 

214.408–1 General. 

(b) For acquisitions that exceed the 

simplified acquisition threshold, if only 

one offer is received, follow the 

procedures at 215.371. 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 14. The authority citation for 48 CFR 

parts 215, 216, and 252 continues to 

read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 15. Add sections 215.371 through 

215.371–5 to subpart 215.3 to read as 

follows: 

Subpart 215.3—Source Selection 

Sec. 

* * * * * 

215.371 Only one offer. 

215.371–1 Policy. 

215.371–2 Promote competition. 

215.371–3 Fair and reasonable price. 

215.371–4 Exceptions. 

215.371–5 Waiver. 

215.371 Only one offer. 

215.371–1 Policy. 

It is DoD policy, if only one offer is 

received in response to a competitive 

solicitation— 

(a) To take the required actions to 

promote competition (see 215.371–2); 

and 

(b) To ensure that the price is fair and 

reasonable (see 215.371–3) and to 

comply with the statutory requirement 

for certified cost or pricing data (see 

FAR 15.403–4). 

215.371–2 Promote competition. 

Except as provided in sections 

215.371–4 and 215.371–5, if only one 

offer is received when competitive 

procedures were used and the 

solicitation allowed fewer than 30 days 

for receipt of proposals, the contracting 

officer shall— 

(a) Consult with the requiring activity 

as to whether the requirements 

document should be revised in order to 

promote more competition (see FAR 

6.502(b) and 11.002); and 

(b) Resolicit, allowing an additional 

period of at least 30 days for receipt of 

proposals. 

215.371–3 Fair and reasonable price. 

(a) If there was ‘‘reasonable 

expectation ...that two or more offerors, 

competing independently, would 

submit priced offers’’ but only one offer 

is received, this circumstance does not 

constitute adequate price competition 

unless an official at one level above the 

contracting officer approves the 

determination that the price is 

reasonable (see FAR 15.403–1(c)(1)(ii)). 

(b) Except as provided in section 

215.371–4(a), if only one offer is 

received when competitive procedures 

were used and the solicitation allowed 

at least 30 days for receipt of proposals 

(unless the 30-day requirement is not 

applicable in accordance with 215.371– 

4(b) or has been waived in accordance 

with section 215.371–5), the contracting 

officer shall— 

(1) Determine through cost or price 

analysis that the offered price is fair and 

reasonable and that adequate price 

competition exists (with approval of the 

determination at one level above the 

contracting officer) or another exception 

to the requirement for certified cost or 

pricing data applies (see FAR 15.403– 

1(c) and 15.403–4). In these 

circumstances, no further cost or pricing 

data is required; or 

(2)(i) Obtain from the offeror cost or 

pricing data necessary to determine a 

fair and reasonable price and comply 

with the requirement for certified cost 

or pricing data at FAR 15.403–4, in 

accordance with FAR provision 52.215– 

20. For acquisitions that exceed the cost 

or pricing data threshold, if no 

exception at FAR 15.403–1(c) applies, 

the cost or pricing data shall be 

certified; and 


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(ii) Enter into negotiations with the 

offeror as necessary to establish a fair 

and reasonable price. The negotiated 

price should not exceed the offered 

price. 

215.371–4 Exceptions. 

(a)(1) The requirements at sections 

215.371–2 and 215.371–3 do not apply 

to acquisitions— 

(i) At or below the simplified 

acquisition threshold; 

(ii) In support of contingency, 

humanitarian or peacekeeping 

operations, or to facilitate defense 

against or recovery from nuclear, 

biological, chemical, or radiological 

attack; or 

(iii) Of basic or applied research or 

development, as specified in FAR 

35.016(a), that use a broad agency 

announcement. 

(2) The applicability of an exception 

in paragraph (a)(1) of this section does 

not eliminate the need for the 

contracting officer to seek maximum 

practicable competition and to ensure 

that the price is fair and reasonable. 

(b)(1) The requirements at section 

215.371–2 do not apply to small 

business set-asides under FAR subpart 

19.5 or set-asides under the HUBZone 

Program (see FAR 19.1305(c)), the 

Service-Disabled Veteran-Owned Small 

Business Procurement Program (see 

FAR 19.1405(c)), or the Woman-Owned 

Small Business Program (see FAR 

19.1505(d)). 

(2) The requirements at section 

215.371–3 do apply to such set-asides. 

215.371–5 Waiver. 

(a) The head of the contracting 

activity is authorized to waive the 

requirement at 215.371–2 to resolicit for 

an additional period of at least 30 days. 

(b) This waiver authority cannot be 

delegated below one level above the 

contracting officer. 

■ 16. The 215.403 section heading is 

revised to read as follows: 

215.403 Obtaining certified cost or pricing 

data. 

■ 17. Section 215.403–1 is amended by 

revising paragraph (c)(1) to read as 

follows: 

* * * * * 

(c) Standards for exceptions from 

certified cost or pricing data 

requirements—(1) Adequate price 

competition. 

(A) For acquisitions under dual or 

multiple source programs— 

(1) The determination of adequate 

price competition must be made on a 

case-by-case basis. Even when adequate 

price competition exists, in certain cases 

it may be appropriate to obtain 

additional information to assist in price 

analysis. 

(2) Adequate price competition 

normally exists when— 

(i) Prices are solicited across a full 

range of step quantities, normally 

including a 0–100 percent split, from at 

least two offerors that are individually 

capable of producing the full quantity; 

and 

(ii) The reasonableness of all prices 

awarded is clearly established on the 

basis of price analysis (see FAR 15.404– 

1(b)). 

(B) If only one offer is received in 

response to a competitive solicitation, 

see 215.371–3. 

* * * * * 

■ 18. Amend section 215.408 by adding 

paragraphs (3) and (4) to read as follows: 

215.408 Solicitation provisions and 

contract clauses. 

* * * * * 

(3) Use the provision at 252.215–7007, 

Notice of Intent to Resolicit, in 

competitive solicitations that will be 

solicited for fewer than 30 days, unless 

an exception at 215.371–4 applies or the 

requirement is waived in accordance 

with 215.371–5. 

(4)(i) Use the provision at 252.215– 

7008, Only One Offer, in competitive 

solicitations, unless an exception at 

215.371–4(a)(1) applies. 

(ii) In solicitations that include 

252.215–7008, Only One Offer, also 

include the provision at FAR 52.215–20, 

Requirements for Certified Cost or 

Pricing Data and Data Other Than 

Certified Cost or Pricing Data, with any 

appropriate alternate as prescribed at 

FAR 15.408–1, but that provision will 

only take effect as specified in 252.215– 

7008. 

PART 216—TYPES OF CONTRACTS 

■ 19. Amend section 216.505–70 by 

revising paragraph (d) to read as 

follows: 

216.505–70 Orders under multiple award 

contracts. 

* * * * * 

(d) When using the procedures in this 

subsection— 

(1) The contracting officer should 

keep contractor submission 

requirements to a minimum; 

(2) The contracting officer may use 

streamlined procedures, including oral 

presentations; 

(3) If only one offer is received, the 

contracting officer shall follow the 

procedures at 215.371. 

(4) The competition requirements in 

FAR part 6 and the policies in FAR 

subpart 15.3 do not apply to the 

ordering process, but the contracting 

officer shall consider price or cost under 

each order as one of the factors in the 

selection decision; and 

(5) The contracting officer should 

consider past performance on earlier 

orders under the contract, including 

quality, timeliness, and cost control. 

■ 20. Amend section 216.506 by adding 

paragraph (S–70) to read as follows: 

216.506 Solicitation provisions and 

contract clauses. 

* * * * * 

(S–70) Use the provisions at 252.215– 

7007, Notice of Intent to Resolicit, and 

252.215–7008, Only One Offer, as 

prescribed at 215.408(3) and (4), 

respectively. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 21. Add sections 252.215–7007 and 

252.215–7008 to read as follows: 

252.215–7007 Notice of Intent to Resolicit. 

As prescribed at 215.408(3), use the 

following provision: 

NOTICE OF INTENT TO RESOLICIT (JUN 

2012) 

This solicitation provides offerors fewer 

than 30 days to submit proposals. In the 

event that only one offer is received in 

response to this solicitation, the Contracting 

Officer may cancel the solicitation and 

resolicit for an additional period of at least 

30 days in accordance with 215.371–2. 

(End of provision) 

252.215–7008 Only One Offer. 

As prescribed at 215.408(4), use the 

following provision: 

ONLY ONE OFFER (JUN 2012) 

(a) The provision at FAR 52.215–20, 

Requirements for Certified Cost or Pricing 

Data and Data other Than Certified Cost or 

Pricing Data, with any alternate included in 

this solicitation, does not take effect unless 

the Contracting Officer notifies the offeror 

that— 

(1) Only one offer was received; and 

(2) Additional cost or pricing data is 

required in order to determine whether the 

price is fair and reasonable or to comply with 

the statutory requirement for certified cost or 

pricing data (10 U.S.C. 2306a and FAR 

15.403–3). 

(b) Upon such notification, the offeror 

agrees, by submission of its offer, to provide 

any data requested by the Contracting Officer 

in accordance with FAR 52.215–20. 

(c) If negotiations are conducted, the 

negotiated price should not exceed the 

offered price. 

(End of provision) 

[FR Doc. 2012–15569 Filed 6–28–12; 8:45 am] 

BILLING CODE 5001–06–P 


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