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 Department of Defense 48 CFR Part 215
[DFARS Case 2000-D300]
 AGENCY: Department of Defense (DoD).
 ACTION: Proposed rule with request for comments.
 SUMMARY: The Acting Director of Defense Procurement is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 813 of the National Defense Authorization Act for Fiscal Year 2000. Section 813 requires DoD to review its profit guidelines to consider whether appropriate modifications, such as placing increased emphasis on technical risk as a factor for determining appropriate profit margins, would provide an increased profit incentive for contractors to develop and produce complex and innovative new technologies.
 DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before July 21, 2000, to be considered in the formation of the final rule.
 ADDRESSES: Interested parties should submit written comments on the proposed rule to: Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, PDUSD(AT&L) DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telefax (703) 602-0350. E-mail comments submitted via the Internet should be addressed to: dfars@acq.osd.mil Please cite DFARS Case 2000-D300 in all correspondence related to this proposed rule. E-mail correspondence should cite DFARS Case 2000-D300 in the subject line.
 FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0288.


SUPPLEMENTARY INFORMATION: A. Background This rule proposes amendments to the profit policy in DFARS Subpart 215.4 to implement Section 813 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106-65). DoD published an advance notice of proposed rulemaking on February 10, 2000 (65 FR 6574), posted a preliminary draft on potential changes on the Defense Procurement Internet web site, and held a public meeting on February 23, 2000. Representatives from Government and industry participated in the public meeting. The proposed rule amends the weighted guidelines method of profit computation at DFARS 215.404-71 to combine the management and cost control elements of the performance risk factor; to establish a new “technology incentive” range for technical risk; and, based on comments received at the public meeting, to slightly modify some of the cost control standards. In addition, the rule amends DFARS 215.404-4(b) to clarify that DoD departments and agencies must use a structured approach for developing a prenegotiation profit or fee objective on any negotiated contract action when cost or pricing data is obtained. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. B. Regulatory Flexibility Act The proposed rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, 
                    *et seq.,*
                     because most contracts awarded to small entities are below $500,000, are based on adequate price competition, or are for commercial items, and do not require submission of cost or pricing data. Therefore, an initial regulatory flexibility analysis has not been performed. Comments are invited from small businesses and other interested parties. Comments from small entities concerning the affected DFARS subpart also will be considered in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2000-D300. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, 
                    *et seq.* List of Subjects in 48 CFR Part 215 Government procurement
 Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.
 Therefore, 48 CFR part 215 is proposed to be amended as follows: 1. The authority citation for 48 CFR part 215 continues to read as follows: Authority:
                    41 U.S.C. 421 and 48 CFR Chapter 1. PART 215—CONTRACTING BY NEGOTIATION 2. Section 215.404-4 is amended by revising paragraph (b)(1) introductory text to read as follows: 215.404-4
  (b) * * * (1) Departments and agencies must use a structured approach for developing a prenegotiation profit or fee objective on any negotiated contract action when cost or pricing data is obtained, except for cost-plus-award-fee contracts (see 215.404-74) or contracts with Federally Funded Research and Development Centers (FFRDCs) (see 215.404-75). There are three structured approaches— 
 3. Section 215.404-71-2 is revised to read as follows:
 215.404-71-2
  (a) 
                            *Description.*
                             This profit factor addresses the contractor's degree of risk in fulfilling the contract requirements. The factor consists of two parts: (1) Technical—the technical uncertainties of performance. (2) Management/cost control—the degree of management effort necessary— (i) To ensure that contract requirements are met; and (ii) To reduce and control costs. (b) 
                            *Determination.*
                             The following extract from the DD Form 1547 is annotated to describe the process. Item
Contractor risk factors
Assigned weighting
Assigned value
Base 
                                     (item 18)
Profit 
                                     objective21.
Technical
(1)
(2)
N/A
N/A22.
Management/Cost Control
(1)
(2)
N/A
N/A23.
Reserved24.
Performance Risk (Composite)
N/A
(3)
(4)(
5)
 1
                                     Assign a weight (percentage) to each element according to its input to the total performance risk. The total of the two weights equals 100 percent. 2
                                     Select a value for each element from the list in paragraph (c) of this subsection using the evaluation criteria in paragraphs (d) and (e) of this subsection. 3
                                     Compute the composite as shown in the following example: Assigned weighting 
                                     (percent)
Assigned value 
                                     (percent)
Weighted value 
                                     (percent)Technical
60
5.0
3.0Management/Cost Control
40
4.0
1.6( print page 32068)Composite Value
100

4.6
 4
                                     Insert the amount from Block 18 of the DD Form 1547. Block 18 is total contract costs, excluding general and administrative expenses, contractor independent research and development and bid and proposal expenses, and facilities capital cost of money. 5
                                     Multiply (3) by (4). (c) 
                                    *Values: Normal and designated ranges.* Normal value 
                                     (percnet)
Designated range 
                                     (percent)jStandard
4
2 to 6Alternate
6
4 to 8Technology Incentive
8
6 to 10
 (1) 
                            *Standard.*
                             The standard designated range should apply to most contracts. (2) 
                            *Alternate.*
                             Contracting officers may use the alternate designated range for research and development and service contractors when these contractors require relatively low capital investment in buildings and equipment when compared to the defense industry overall. If the alternate designated range is used, do not give any profit for facilities capital employed (see 215.404-71-4(c)(3)). (3) 
                            *Technology incentive.*
                             For the technical factor only, contracting officers may use the technology incentive range for acquisitions that include development or production of innovative new technologies. (d) 
                            *Evaluation criteria for technical.*
                             (1) Review the contract requirements and focus on the critical performance elements in the statement of work or specifications. Factors to consider include— (i) Technology being applied or developed by the contractor; (ii) Technical complexity; (iii) Program maturity; (iv) Performance specifications and tolerances; (v) Delivery schedule; and (vi) Extent of a warranty or guarantee. (2) 
                            *Above normal conditions.*
                             (i) The contracting officer may assign a higher than normal value in those cases where there is a substantial technical risk. Indicators are— (A) Items are being manufactured using specifications with stringent tolerance limits; (B) The efforts require highly skilled personnel or require the use of state-of-the-art machinery; (C) The services and analytical efforts are extremely important to the Government and must be performed to exacting standards; (D) The contractor's independent development and investment has reduced the Government's risk or cost; (E) The contractor has accepted an accelerated delivery schedule to meet DoD requirements; or (F) The contractor has assumed additional risk through warranty provisions. (ii) Extremely complex, vital efforts to overcome difficult technical obstacles that require personnel with exceptional abilities, experience, and professional credentials may justify a value significantly above normal. (iii) The following may justify a maximum value— (A) Development or initial production of a new item, particularly if performance or quality specifications are tight; or (B) A high degree of development or production concurrency. (3) 
                            *Below normal conditions.*
                             (i) The contracting officer may assign a lower than normal value in those cases where the technical risk is low. Indicators are— (A) Acquisition is for off-the-shelf items; (B) Requirements are relatively simple; (C) Technology is not complex; (D) Efforts do not require highly skilled personnel; (E) Efforts are routine; (F) Programs are mature; or (G) Acquisition is a follow-on effort or a repetitive type acquisition. (ii) The contracting officer may assign a value significantly below normal for— (A) Routine services; (B) Production of simple items; (C) Rote entry or routine integration of Government-furnished information; or (D) Simple operations with Government-furnished property. (4) 
                            *Technology incentive range.* (i) The contracting officer may assign values within the technology incentive range when contracting performance includes the introduction of new, significant technological innovation. Use the technology incentive range only for the most innovative contract efforts. Innovation may be in the form of— (A) Development or application of new technology that fundamentally changes the characteristics of an existing product or system and that results in increased technical performance, improved reliability, or reduced costs; or (B) New products or systems that contain significant technological advances over the products or systems they are replacing. (ii) When selecting a value within the technology incentive range, the contracting officer should consider the relative value of the proposed innovation to the acquisition as a whole. When the innovation represents a minor benefit, the contracting officer should consider using values less than the norm. For innovative efforts that will have a major positive impact on the product or program, the contracting officer may use values above the norm. (e) 
                            *Evaluation criteria for management/cost control.* (1) The contracting officer should evaluate— (i) The contractor's management and internal control systems using contracting office information and reviews made by field contract administration offices or other DoD field offices; (ii) The management involvement expected on the prospective contract action; (iii) The degree of cost mix as an indication of the types of resources applied and value added by the contractor; (iv) The contractor's support of Federal socioeconomic programs; (v) The expected reliability of the contractor's cost estimates (including the contractor's cost estimating system); (vi) The contractor's cost reduction initiatives (
                            *e.g.*, competition advocacy programs, technical insertion programs, obsolete parts control programs, dual sourcing, square parts pricing reform, value engineering); (vii) The adequacy of the contractor's management approach to controlling cost and schedule; and (viii) Any other factors that affect the contractor's ability to meet the cost targets (
                            *e.g.*, foreign currency exchange rates and inflation rates). (2) 
                            *Above normal conditions.*
                             (i) The contracting officer may assign a higher than normal value when the management effort is intense. Indicators of this are— (A) The contractor's value added is both considerable and reasonably difficult;
                            ( print page 32069) (B) The effort involves a high degree of integration or coordination; (C) The contractor has a substantial record of active participation in Federal socioeconomic programs; (D) The contractor provides fully documented and reliable cost estimates; (E) The contractor has an aggressive cost reduction program that has demonstrable benefits; (F) The contractor uses a high degree of subcontract competition (
                            *e.g.*, agressive dual sourcing); (G) The contractor has a proven record of cost tracking and control; or (H) The contractor aggressively seeks process improvements to reduce costs. (ii) The contracting officer may justify a maximum value when the effort— (A) Requires large scale integration of the most complex nature; (B) Involves major international activities with significant management coordination (
                            *e.g.,*
                             offsets with foreign vendors); or (C) Has critically important milestones. (3) 
                            *Below normal conditions.*
                             (i) The contracting officer may assign a lower than normal value when the management effort is minimal. Indicators of this are— (A) The program is mature and many end item deliveries have been made; (B) The contractor adds minimum value to an item; (C) The efforts are routine and require minimal supervision; (D) The contractor provides poor quality, untimely proposals; (E) The contractor fails to provide an adequate analysis of subcontractor costs; (F) The contractor does not cooperate in the evaluation and negotiation of the proposal; (G) The contractor's cost estimating system is marginal; (H) The contractor has made minimal effort to initiate cost reduction programs; (I) The contractor's cost proposal is inadequate; or (J) The contractor has a record of cost overruns or another indication of unreliable cost estimates and lack of cost control. (ii) The following may justify a value significantly below normal— (A) Reviews performed by the field contract administration offices disclose unsatisfactory management and internal control systems (
                            *e.g.,*
                             quality assurance, property control, safety, security); or (B) The effort requires an unusually low degree of management involvement. 4. Section 215.404-702 is amended by adding paragraph (b)(1)(iii) to read as follows:
 215.404-72
  
 (b) * * * (1) * * * (iii) Do not assign a value from the technology incentive designated range.


[FR Doc. 00-12416  Filed 5-19-00; 8:45 am] BILLING CODE 5000-04-M