Federal Register / Vol. 78, No. 95 / Thursday, May 16, 2013 / Proposed Rules 28785 

Significant deficiency means a shortcoming 

in the system that materially affects the 

ability of officials of the Department of 

Defense to rely upon information produced 

by the system that is needed for management 

purposes. 

(b) General. The Contractor shall establish 

and maintain an acceptable purchasing 

system. Failure to maintain an acceptable 

purchasing system, as defined in this clause, 

may result in disapproval of the system by 

the Contracting Officer and/or withholding of 

payments. 

(c) System criteria. The Contractor’s 

purchasing system shall— 

(1) Establish and maintain policies and 

procedures to ensure purchase orders and 

subcontracts contain mandatory and 

applicable flowdown clauses, as required by 

the FAR and DFARS, including terms and 

conditions required by the prime contract 

and any clauses required to carry out the 

requirements of the prime contract, including 

the requirements of 252.246–70XX, 

Contractor Counterfeit Electronic Part 

Avoidance and Detection System; 

(2) Provide for an organizational and 

administrative structure that ensures 

effective and efficient procurement of 

required quality materials and parts at the 

best value from responsible and reliable 

sources, including the requirements of 

252.246–70XX, Contractor Counterfeit 

Electronic Part Avoidance and Detection 

System; and 

(3) Establish and maintain selection 

processes to ensure the most responsive and 

responsible sources for furnishing required 

quality parts and materials and to promote 

competitive sourcing among dependable 

suppliers so that purchases are from sources 

that meet contractor quality requirements, 

including the requirements of 252.246–70XX, 

Contractor Counterfeit Electronic Part 

Avoidance and Detection System. 

(d) Significant deficiencies. (1) The 

Contracting Officer will provide notification 

of initial determination to the Contractor, in 

writing, of any significant deficiencies. The 

initial determination will describe the 

deficiency in sufficient detail to allow the 

Contractor to understand the deficiency. 

(2) The Contractor shall respond within 30 

days to a written initial determination from 

the Contracting Officer that identifies 

significant deficiencies in the Contractor’s 

purchasing system. If the Contractor 

disagrees with the initial determination, the 

Contractor shall state, in writing, its rationale 

for disagreeing. 

(3) The Contracting Officer will evaluate 

the Contractor’s response and notify the 

Contractor, in writing, of the Contracting 

Officer’s final determination concerning— 

(i) Remaining significant deficiencies; 

(ii) The adequacy of any proposed or 

completed corrective action; and 

(iii) System disapproval, if the Contracting 

Officer determines that one or more 

significant deficiencies remain. 

(e) If the Contractor receives the 

Contracting Officer’s final determination of 

significant deficiencies, the Contractor shall, 

within 45 days of receipt of the final 

determination, either correct the significant 

deficiencies or submit an acceptable 

corrective action plan showing milestones 

and actions to eliminate the deficiencies. 

(f) Withholding payments. If the 

Contracting Officer makes a final 

determination to disapprove the Contractor’s 

purchasing system, and the contract includes 

the clause at 252.242–7005, Contractor 

Business Systems, the Contracting Officer 

will withhold payments in accordance with 

that clause. 

(End of clause) 

■ 9. Amend subpart 252.2 by adding 

new section 252.246–70XX to read as 

follows: 

252.246–70XX Contractor Counterfeit 

Electronic Part Avoidance and Detection 

System. 

As prescribed in 246.870–3, use the 

following clause: 

Contractor Counterfeit Electronic Part 

Avoidance and Detection System (Date) 

(a) Definitions. As used in this clause— 

Counterfeit part means— 

(1) An unauthorized copy or substitute part 

that has been identified, marked, and/or 

altered by a source other than the part’s 

legally authorized source and has been 

misrepresented to be from a legally 

authorized source; 

(2) An item misrepresented to be an 

authorized item of the legally authorized 

source; or 

(3) A new, used, outdated, or expired item 

from a legally authorized source that is 

misrepresented by any source to the end-user 

as meeting the performance requirements for 

the intended use. 

Counterfeit electronic part avoidance and 

detection system means the Contractor’s 

system or systems for eliminating counterfeit 

electronic parts from the supply chain. 

Legally authorized source means the 

current design activity or the original 

manufacturer or a supplier authorized by the 

current design activity or the original 

manufacturer to produce an item. 

Suspect counterfeit part means a part for 

which visual inspection, testing, or other 

information provide reason to believe that a 

part may be a counterfeit part. 

(b) General. The Contractor shall establish 

and maintain an acceptable counterfeit 

electronic part avoidance and detection 

system. Failure to maintain an acceptable 

counterfeit electronic part avoidance and 

detection system, as defined in this clause, 

may result in disapproval of the purchasing 

system by the Contracting Officer and/or 

withholding of payments. 

(c) System criteria. The Contractor’s 

counterfeit electronic part avoidance and 

detection system shall develop and 

implement policies and procedures that 

address— 

(i) The training of personnel; 

(ii) The inspection and testing of electronic 

parts, including criteria for acceptance and 

rejection; 

(iii) Processes to abolish counterfeit parts 

proliferation; 

(iv) Mechanisms to enable traceability of 

parts to suppliers; 

(v) Use and qualification of trusted 

suppliers; 

(vi) The reporting and quarantining of 

counterfeit electronic parts and suspect 

counterfeit electronic parts; 

(vii) Methodologies to identify suspect 

counterfeit parts and to rapidly determine if 

a suspect counterfeit part is, in fact, 

counterfeit; 

(viii) The design, operation, and 

maintenance of systems to detect and avoid 

counterfeit electronic parts and suspect 

counterfeit electronic parts; and 

(ix) The flow down of counterfeit 

avoidance and detection requirements to 

subcontractors. 

(d) Government review and evaluation of 

the Contractor’s policies and procedures will 

be accomplished as part of the evaluation of 

the Contractor’s purchasing system in 

accordance with 252.244–7001, Contractor 

Purchasing System Administration. 

(End of clause) 

[FR Doc. 2013–11400 Filed 5–15–13; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 215, 225, and 252 

RIN 0750–AH89 

Defense Federal Acquisition 

Regulation Supplement: Only One 

Offer—Further Implementation (DFARS 

Case 2013–D001) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

further implement DoD policy relating 

to competitive acquisitions in which 

only one offer is received, providing 

additional exceptions, and further 

addressing requests for data other than 

certified cost or pricing data from the 

Canadian Commercial Corporation. 

DATES: Comment date: Comments on the 

proposed rule should be submitted in 

writing to the address shown below on 

or before July 15, 2013, to be considered 

in the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2013–D001, 

using any of the following methods: 

Æ Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

entering ‘‘DFARS Case 2013–D001’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2013– 

D001.’’ Follow the instructions provided 


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28786 Federal Register / Vol. 78, No. 95 / Thursday, May 16, 2013 / Proposed Rules 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2013– 

D001’’ on your attached document. 

Æ Email: dfars@osd.mil. Include 

DFARS Case 2013–D001 in the subject 

line of the message. 

Æ Fax: 571–362–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Amy 

Williams, OUSD(AT&L)DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, Defense Acquisition 

Regulations System, 

OUSD(AT&L)DPAP/DARS, Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Telephone 571–372–6106. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

to further implement policy with regard 

to acquisitions in which only one offer 

is received and requests for data other 

than certified cost or pricing data from 

the Canadian Commercial Corporation. 

This case is a follow-on to DFARS final 

rules published in the Federal Register 

under DFARS Case 2011–D013, Only 

One Offer (77 FR 39126 on June 29, 

2012), and DFARS Case 2011–D049, 

Contracting with the Canadian 

Commercial Corporation (77 FR 43470 

on July 24, 2012). 

DFARS Case 2011–D013 was initiated 

to implement 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, Implementation 

Directive for Better Buying Power— 

Obtaining Greater Efficiency and 

Productivity in Defense Spending. 

DFARS Case 2011–D049 was initiated to 

clarify the requirements for the 

Canadian Commercial Corporation to 

submit data other than certified cost or 

pricing data. Because these two cases 

were developed in parallel, the 

interrelationship between the two cases 

could not be incorporated into either 

final rule. Therefore, DoD is proposing 

to revise the DFARS to further 

implement both rules, in particular as 

they relate to each other. 

II. Applicability 

The final rule will apply to 

solicitations (including solicitations for 

task orders and delivery orders) issued 

on or after the publication date of the 

final rule. 

III. Discussion 

This rule proposes the following 

changes: 

A. Applicability to commercial items. 

The rule proposes clarification at 

DFARS 212.301(f)(iv)(G), Solicitation 

provisions and contract clauses for the 

acquisition of commercial items, that 

the provision at DFARS 252.215–7003, 

Requirements for Data Other Than 

Certified Cost or Pricing Data— 

Canadian Commercial Corporation, or 

the clause at DFARS 252.215–7004, 

Requirement for Data other Than 

Certified Cost or Pricing Data— 

Modifications—Canadian Commercial 

Corporation, shall be used in 

acquisitions of commercial items when 

necessary to determine the price 

reasonableness of commercial items for 

acquisitions from the Canadian 

Commercial Corporation. 

B. Exceptions 

The rule proposes two additional 

exceptions to the policy on only one 

offer, because the acquisition 

procedures used for such acquisitions 

are not compatible with the 

requirements for handling the receipt of 

only one offer in response to a 

competitive solicitation at DFARS 

215.371–2, i.e., to promote competition 

through review of requirements, and 

resolicitation, allowing an additional 

period of at least 30 days for receipt of 

offer. The two proposed new exceptions 

are as follows: 

1. Architect-engineer services (see 

FAR subpart 36.6, and DFARS subpart 

236.6). 

2. Set-asides offered to and accepted 

by the Small Business Administration 

(SBA) into the 8(a) Program (see FAR 

subpart 19.8 and DFARS subpart 219.8). 

All exceptions are revised to state that 

there is no exception to the 

requirements to ensure that prices are 

fair and reasonable. 

C. Provision and Clause Prescriptions 

1. The prescription for the provision 

at DFARS 252.215–7007, Notice of 

Intent to Resolicit, has been moved from 

DFARS 215.408 to DFARS 215.371–6, 

because it does not relate to pricing. 

2. The remaining provision and clause 

prescriptions at 215.408 are re-ordered 

to be in numerical order of the 

provisions and clauses. The 

prescriptions for DFARS 252.215–7003, 

Requirement for Data Other Than 

Certified Cost or Pricing Data— 

Canadian Commercial Corporation and 

252.215–7004, Requirement for Data 

Other Than Certified Cost or Pricing 

Data—Modifications—Canadian 

Commercial Corporation, are revised 

consistent with DFARS 225.870–4(c) 

and relocated to DFARS 215.408(3). 

3. Approval authorities for use of 

252.215–7003 and 252.215–7004 are 

removed from the clause prescription 

and relocated to DFARS 225.870–4. 

4. The use of DFARS 252.215–7004 in 

competitive solicitations is addressed. 

In competitive solicitations, if approval 

has been obtained as required at DFARS 

225.870–4(c)(2)(ii), the solicitation may 

include both FAR 52.215–21, 

Requirements for Certified Cost or 

Pricing Data and Data Other Than 

Certified Cost or Pricing Data— 

Modifications, and DFARS 252.215– 

7004 to provide for the possibility of 

future modifications to the contract. The 

contracting officer shall then select the 

appropriate clause to include in the 

contract, depending on whether or not 

contract award is to the Canadian 

Commercial Corporation. 

5. In order to accommodate the 

circumstance in which a contracting 

officer may require offerors to provide 

data other than certified cost or pricing 

data with each offer in a competitive 

acquisition, the statement that the 

provision FAR 52.215–20, Requirements 

for Certified Cost or Pricing Data and 

Data Other Than Certified Cost or 

Pricing Data, will only take effect as 

specified in 252.215–7008, Only One 

Offer, has been deleted. Rather, the 

prescription allows use of both 252.215– 

7008 and 52.215–20, if the contracting 

officer is requesting submission of data 

other than certified cost or pricing data 

with the offer. 

D. Approval Authorities for Requesting 

Data From the Canadian Commercial 

Corporation 

Discussion of contracting procedures 

when contracting with the Canadian 

Commercial Corporation at DFARS 

225.870–4 has been amplified with 

regulations relating when approval is 

required to request data from the 

Canadian Commercial Corporation 

(moved from the prescriptions at 

DFARS 215.408). The rule also proposes 

that no further approval is required to 

request data in competitive solicitations 

if— 

• Data other than certified cost or 

pricing data are required from all 

offerors; or 

• The Canadian Commercial 

Corporation submits the only offer in 

response to a competitive solicitation 


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Federal Register / Vol. 78, No. 95 / Thursday, May 16, 2013 / Proposed Rules 28787 

that meets the thresholds at 225.870– 

4(2)(i)(A) or (B), applicable to sole 

source acquisitions from the Canadian 

Commercial Corporation. 

E. ‘‘Only One Offer’’ Provision 

The rule proposes to amend the 

provision at DFARS 252.215–7008, Only 

One Offer, to remove the requirement to 

submit data requested by the contracting 

officer after receipt of only one offer in 

accordance with FAR 52.215–20. 

Rather, the provision incorporates the 

appropriate requirements of FAR 

52.215–20 if the offeror is other than the 

Canadian Commercial Corporation and 

then separately addresses the 

requirements for submission of data if 

the sole offeror is the Canadian 

Commercial Corporation. 

IV. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

V. Regulatory Flexibility Act 

DoD does not expect this rule to have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. 

However, an initial regulatory flexibility 

analysis has been performed and is 

summarized as follows: 

This rule further implements DoD 

policy relating to competitive 

acquisitions in which only one offer is 

received, providing additional 

exceptions, and further addressing 

requests for data other than certified 

cost or pricing data from the Canadian 

Commercial Corporation, especially 

relating to competitive solicitations 

when only one offer is received from the 

Canadian Commercial Corporation. 

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, including the 

Canadian Commercial Corporation. 

The legal basis is 41 U.S.C. 421 and 

48 CFR Chapter 1. 

The final regulatory flexibility 

analysis for the final rule under FARS 

case 2011–D013, Only One Offer, was 

addressed in the Federal Register notice 

published in the Federal Register (77 

FR 39126) on June 29, 2012). With 

regard to DFARS Case 2011–D049, 

Contracting with the Canadian 

Commercial Corporation (77 FR 43470 

on July 24, 2012), DoD certified that 

there was no significant economic 

impact on a substantial number of small 

entities within the meaning of the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., because it only impacted 

Canadian business concerns. The 

changes proposed in this rule are not 

expected to impact a significant number 

of small entities within the meaning of 

the Regulatory Flexibility Act, 5 U.S.C. 

601, et seq., because the only changes 

impacting domestic entities are the 

added exceptions for architect-engineer 

services and the 8(a) Program, which are 

more in the nature of a clarification than 

a change. 

Architect-engineer services are 

purchased under the Brooks Act. The 

final rule for Only One Offer was not 

made applicable to FAR part 36. This 

rule specifically clarifies that it is 

inapplicable. 

The final rule for Only One Offer was 

not made applicable to set-asides under 

FAR part 19. The final rule specifically 

excluded small business set-asides and 

set asides under the HUBZone Program, 

the Service-Disabled Veteran-Owned 

Small Business Procurement Program, 

and the Women-Owned Small Business 

Program. The 8(a) Program was 

inadvertently omitted from the list of 

specific exclusions. In accordance with 

FAR 19.805–1, an acquisition offered to 

the SBA shall be awarded on the basis 

of competition limited to eligible 8(a) 

firms if two conditions are met: (1) the 

anticipated total value of the contract 

exceeds the thresholds at FAR 19.805– 

1(a)(2); and (2) there must be a 

reasonable expectation that at least two 

eligible and responsible 8(a) firms will 

submit offers and that award can be 

made at a fair and reasonable price. 

The proposed rule imposes no new 

reporting, recordkeeping, or other 

information collection requirements. 

The submission of certified cost or 

pricing data or data other than certified 

cost or pricing data is covered in FAR 

15.4 and associated clauses in 52.215, 

OMB clearances 9000–013. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

There are no known significant 

alternatives to the rule that would 

adequately implement the DoD policy. 

There is no significant economic impact 

on a substantial number of small 

entities. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C 610 (DFARS Case 2013–D001), in 

correspondence. 

VI. Paperwork Reduction Act 

The proposed rule does not impose 

any additional information collection 

requirements that require approval 

under the Paperwork Reduction Act (5 

U.S.C. chapter 35). The submission of 

certified cost or pricing data or data 

other than certified cost or pricing data 

required for negotiation is covered in 

FAR 15.4 and associated clauses in FAR 

52.215, OMB clearance 9000–013, Cost 

or Pricing Data Requirements and 

Information Other Than Cost or Pricing 

Data, in the amount of 10,101,684 hours. 

List of Subjects in 48 CFR Parts 212, 

215, 225, and 252 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 212, 215, 225, 

and 252 are proposed to be amended as 

follows: 

■ 1. The authority citation for 48 CFR 

parts 212, 215, 225, and 252 continues 

to read as follows: 

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

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 2. Amend section 212.301 by— 

■ a. Redesignating paragraphs (f)(iv)(G) 

and f)(iv)(H) through (R) as (f)(iv)(I) and 

f)(iv)(K) through (U) resepctively; 

■ b. Adding new paragraphs (f)(iv)(G), 

(H), and (J); 

■ c. Revising newly designated 

paragraph (f)(iv)(I). 

The added and revised text reads as 

follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

* * * * * 

(f) * * * 

(iv) * * * 

(G) Use the provision at 252.215– 

7003, Requirements for Submission of 

Data Other Than Certified Cost or 


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28788 Federal Register / Vol. 78, No. 95 / Thursday, May 16, 2013 / Proposed Rules 

Pricing Data—Canadian Commercial 

Corporation, as prescribed at 

215.408(3)(i). 

(H) Use the clause at 252.215–7004, 

Requirement for Submission of Data 

other Than Certified Cost or Pricing 

Data—Modifications—Canadian 

Commercial Corporation, when 

necessary to determine the price 

reasonableness of commercial items as 

prescribed at 215.408((3)(ii). 

(I) Use the provisions at 252.215– 

7007, Notice of Intent to Resolicit, as 

prescribed at 215.408. 

(J) Use the provision 252.215–7008, 

Only One Offer, as prescribed at 

215.371–6. 

* * * * * 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 3. Amend section 215.371–3 by— 

■ a. In paragraph (a), removing ‘‘at one 

level’’ and adding ‘‘at a level’’ in its 

place. 

■ b. In paragraph (b) introductory text, 

removing ‘‘215.371–4(b)’’ and adding 

‘‘215.371–4(a)(3)’’ in its place. 

■ c. In paragraph (b)(1), removing ‘‘at 

one level’’ and adding ‘‘at a level’’ in its 

place. 

■ d. In paragraph (b)(2)(i) removing ‘‘, in 

accordance with FAR provision 52.215– 

20’’ and removing ‘‘FAR 15.403–1(c)’’ 

and adding ‘‘FAR 15.403–1(b)’’ in its 

place. 

■ 4. Revise section 215.371–4 to read as 

follows: 

215.371–4 Exceptions. 

(a) The requirements at sections 

215.371–2 do not apply to— 

(1) Acquisitions at or below the 

simplified acquisition threshold; 

(2) Acquisitions in support of 

contingency, humanitarian or 

peacekeeping operations, or to facilitate 

defense against or recovery from 

nuclear, biological, chemical, or 

radiological attack; 

(3) Small business set-asides under 

FAR subpart 19.5, set asides offered and 

accepted into the 8(a) Program under 

FAR subpart 19.8, 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 Women-Owned 

Small Business Program (see FAR 

19.1505(d)); 

(4) Acquisitions of basic or applied 

research or development, as specified in 

FAR 35.016(a), that use a broad agency 

announcement; or 

(5) Acquisitions of architect-engineer 

services (see FAR 36.601–2). 

(b) The applicability of an exception 

in paragraph (a) 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. 

■ 5. Add section 215.371–6 to read as 

follows: 

215.371–6 Solicitation provision. 

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. 

215.403–1 [Amended] 

■ 6. Amend section 215.403–1 by— 

■ a. In second sentence of paragraph 

(c)(1)(A)(1), removing ‘‘price analysis.’’ 

and adding ‘‘price analysis; and’’ in its 

place. 

■ b. In paragraph (c)(4)(C), removing 

‘‘215.408(5)’’ and adding ‘‘215.408(3)’’ 

in its place. 

■ 7. Amend section 215.408 by— 

■ a. Revising paragraph (3); 

■ b. In paragraph (4)(i), removing 

‘‘215.371–4(a)(1) applies.’’ and adding 

‘‘215.371–4(a) applies.’’ in its place. 

■ c. In paragraph (4)(ii), removing ‘‘but 

that provision will only take effect as 

specified in 252.215–7008’’ and adding 

‘‘if the contracting officer is requesting 

submission of data other than certified 

cost or pricing data with the offer’’ in its 

place. 

■ d. Removing paragraph (5). 

The revised text reads as follows: 

215.408 Solicitation provisions and 

contract clauses. 

* * * * * 

(3) When contracting with the 

Canadian Commercial Corporation— 

(i)(A) Use the provision at 252.215– 

7003, Requirement for Data Other Than 

Certified Cost or Pricing Data— 

Canadian Commercial Corporation— 

(1) In lieu of FAR 52.215–20, 

Requirement for Data Other Than 

Certified Cost or Pricing Data, in a 

solicitation for a sole source acquisition 

from the Canadian Commercial 

Corporation that is— 

(i) Cost-reimbursement, if the contract 

value is expected to exceed $700,000; or 

(ii) Fixed-price, if the contract value is 

expected to exceed $500 million; or 

(2) In lieu of FAR 52.215–20, in a sole 

source acquisition from the Canadian 

Commercial Corporation that does not 

meet the thresholds specified in 

paragraph (3)(i)(A)(1), if approval is 

obtained as required at 225.870– 

4(c)(2)(ii); and 

(B) Do not use 252.225–7003 in lieu 

of FAR 52.215–20 in competitive 

acquisitions. The contracting officer 

may use FAR 52.215–20 with its 

Alternate IV, as prescribed at 

15.408(l)(3), even if offers from the 

Canadian Commercial Corporation are 

anticipated; and 

(ii)(A) Use the clause at 252.215– 

7004, Requirement for Data Other Than 

Certified Cost or Pricing Data— 

Modifications—Canadian Commercial 

Corporation— 

(1) In a solicitation for a sole source 

acquisition from the Canadian 

Commercial Corporation and resultant 

contract that is— 

(i) Cost-reimbursement, if the contract 

value is expected to exceed $700,000; or 

(ii) Fixed-price, if the contract value is 

expected to exceed $500 million; 

(2) In a solicitation for a sole source 

acquisition from the Canadian 

Commercial Corporation and resultant 

contract that does not meet the 

thresholds specified in paragraph 

(3)(ii)(A)(1) of this section, if approval is 

obtained as required at 225.870– 

4(c)(2)(ii); or 

(3)(i) In a solicitation for a 

competitive acquisition that includes 

FAR 52.215–21, Requirement for Data 

Other Than Certified Cost or Pricing 

Data—Modifications, or that meets the 

thresholds specified in paragraph 

(3)(ii)(A)(1) of this section. 

(ii) The contracting officer shall then 

select the appropriate clause to include 

in the contract (52.215–21 only if award 

is not to the Canadian Commercial 

Corporation; or 252.215–7004 if award 

is to the Canadian Commercial 

Corporation and necessary approval is 

obtained in accordance with 225.870– 

4(c)(2)(ii)); and 

(B) The contracting officer may 

specify a higher threshold in paragraph 

(b) of the clause 252.215–7004. 

* * * * * 

PART 225—FOREIGN ACQUISITION 

■ 8. Amend section 225.870–4 by— 

■ a. Revising paragraph (c)(2). 

■ b. In paragraph (c)(3), removing 

‘‘215.408(5)(i)’’ and adding 

‘‘215.408(3)(i)’’ in its place. 

The revision reads as follows: 

25.870–4 Contracting procedures. 

* * * * * 

(c) * * * 

(2) The Canadian Commercial 

Corporation is not exempt from the 

requirement to submit data other than 

certified cost or pricing data, as defined 

in FAR 2.101. In accordance with FAR 

15.403–3(a)(1)(ii), the contracting officer 

shall require submission of data other 

than certified cost or pricing data from 

the offeror, to the extent necessary to 

determine a fair and reasonable price. 


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(i) No further approval is required to 

request data other than certified cost or 

pricing data from the Canadian 

Commercial Corporation in the 

following circumstances: 

(A) In a solicitation for a sole source 

acquisitions that is— 

(1) Cost-reimbursement, if the 

contract value is expected to exceed 

$700,000; or 

(2) Fixed-price, if the contract value is 

expected to exceed $500 million. 

(B) If the Canadian Commercial 

Corporation submits the only offer in 

response to a competitive solicitation 

that meets the thresholds specified in 

paragraph (c)(2)(i)(A) of this section. 

(C) For modifications that exceed 

$150,000 in contracts that meet the 

criteria in paragraph (c)(2)(i)(A) or (B) of 

this section. 

(D) In competitive solicitations in 

which data other than certified cost or 

pricing data are required from all 

offerors. 

(ii) In any circumstances other than 

those specified in paragraph (c)(2)(i) of 

this section, the contracting officer shall 

only require data other than certified 

cost or pricing data from the Canadian 

Commercial Corporation if the head of 

the contracting activity, or designee no 

lower than two levels above the 

contracting officer, determines that data 

other than certified cost or pricing data 

are needed (or in the case of 

modifications that it is reasonably 

certain that data other than certified cost 

or pricing data will be needed) in order 

to determine that the price is fair and 

reasonable) (see FAR 15.403–3(a). 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.215.7003 [Amended] 

■ 9. Amend section 252.215–7003 by, in 

the introductory text, removing ‘‘As 

prescribed at 215.408(5)(i),’’ and adding 

‘‘As prescribed at 215.408(3)(i),’’ in its 

place. 

■ 10. Amend section 252.215–7004 by— 

■ a. In the introductory text, removing 

‘‘As prescribed at 215.408(5)(ii),’’ and 

adding ‘‘As prescribed at 

215.408(3)(ii),’’ in its place. 

■ b. Removing the clause date of ‘‘(JUL 

2012)’’ and adding ‘‘(DATE)’’ in its 

place. 

■ c. In paragraph (b) introductory text, 

removing ‘‘the simplified acquisition 

threshold’’ and adding ‘‘$150,000’’ in its 

place. 

■ d. Adding introductory text after the 

clause date and before paragraph (a) to 

read as follows: 

252.215.7004 Requirement for Submission 

of Data Other Than Certified Cost or Pricing 

Data—Modifications—Canadian 

Commercial Corporation. 

* * * * * 

This clause, in lieu of FAR 52.215–21, 

applies only if award is to the Canadian 

Commercial Corporation. 

* * * * * 

252.215–7007 [Amended] 

■ 11. Amend section 252.215–7007 by, 

in the introductory text, removing ‘‘As 

prescribed at 215.408(3),’’ and adding 

‘‘As prescribed at 215.371–6,’’ in its 

place. 

252.215–7008 

■ 12. Revise section 252.215–7008 to 

read as follows: 

252.215–7008 Only one offer. 

As prescribed at 215.408(4), use the 

following provision: 

ONLY ONE OFFER (DATE) 

(a) After initial submission of offers, the 

Offeror agrees to submit any subsequently 

requested additional cost or pricing data if 

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) Requirement for submission of 

additional cost or pricing data. Except as 

provided in paragraph (c) of this provision, 

the Offeror shall submit additional cost or 

pricing data as follows: 

(1) If the Contracting Officer notifies the 

Offeror that additional cost or pricing data 

are required in accordance with paragraph (a) 

of this clause, the data shall be certified 

unless an exception applies (FAR 15.403– 

1(b)). 

(2) Exceptions from certified cost or pricing 

data. In lieu of submitting certified cost or 

pricing data, the Offeror may submit a 

written request for exception by submitting 

the information described in the following 

paragraphs. The Contracting Officer may 

require additional supporting information, 

but only to the extent necessary to determine 

whether an exception should be granted, and 

whether the price is fair and reasonable. 

(i) Identification of the law or regulation 

establishing the price offered. If the price is 

controlled under law by periodic rulings, 

reviews, or similar actions of a governmental 

body, attach a copy of the controlling 

document, unless it was previously 

submitted to the contracting office. 

(ii) Commercial item exception. For a 

commercial item exception, the Offeror shall 

submit, at a minimum, information on prices 

at which the same item or similar items have 

previously been sold in the commercial 

market that is adequate for evaluating the 

reasonableness of the price for this 

acquisition. Such information may include— 

(A) For catalog items, a copy of or 

identification of the catalog and its date, or 

the appropriate pages for the offered items, 

or a statement that the catalog is on file in 

the buying office to which the proposal is 

being submitted. Provide a copy or describe 

current discount policies and price lists 

(published or unpublished), e.g., wholesale, 

original equipment manufacturer, or reseller. 

Also explain the basis of each offered price 

and its relationship to the established catalog 

price, including how the proposed price 

relates to the price of recent sales in 

quantities similar to the proposed quantities; 

(B) For market-priced items, the source and 

date or period of the market quotation or 

other basis for market price, the base amount, 

and applicable discounts. In addition, 

describe the nature of the market; or 

(C) For items included on an active Federal 

Supply Service Multiple Award Schedule 

contract, proof that an exception has been 

granted for the schedule item. 

(3) The Offeror grants the Contracting 

Officer or an authorized representative the 

right to examine, at any time before award, 

books, records, documents, or other directly 

pertinent records to verify any request for an 

exception under this provision, and the 

reasonableness of price. For items priced 

using catalog or market prices, or law or 

regulation, access does not extend to cost or 

profit information or other data relevant 

solely to the Offeror’s determination of the 

prices to be offered in the catalog or 

marketplace. 

(4) Requirements for certified cost or 

pricing data. If the Offeror is not granted an 

exception from the requirement to submit 

certified cost or pricing data, the following 

applies: 

(i) The Offeror shall prepare and submit 

certified cost or pricing data and supporting 

attachments in accordance with the 

instructions contained in Table 15–2 of FAR 

15.408, which is incorporated by reference 

with the same force and effect as though it 

were inserted here in full text. The 

instructions in Table 15–2 are incorporated 

as a mandatory format to be used, unless the 

Contracting Officer and the Offeror agree to 

a different format. 

(ii) As soon as practicable after agreement 

on price, but before contract award (except 

for unpriced actions such as letter contracts), 

the offeror shall submit a Certificate of 

Current Cost or Pricing Data, as prescribed by 

FAR 15.406–2. 

(c) If the Offeror is the Canadian 

Commercial Corporation, certified cost or 

pricing data are not required. If the 

Contracting Officer notifies the Canadian 

Commercial Corporation that additional data 

other than certified cost or pricing data are 

required in accordance with 225.870–4(c), 

the Canadian Commercial Corporation shall 

obtain and provide the following: 

(1) Profit rate or fee (as applicable). 

(2) Analysis provided by Public Works and 

Government Services Canada to the Canadian 

Commercial Corporation to determine a fair 

and reasonable price (comparable to the 

analysis required at FAR 15.404–1). 

(3) Data other than certified cost or pricing 

data necessary to permit a determination by 

the U.S. Contracting Officer that the 


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28790 Federal Register / Vol. 78, No. 95 / Thursday, May 16, 2013 / Proposed Rules 

proposed price is fair and reasonable [U.S. 

Contracting Officer to provide description of 

the data required in accordance with FAR 

15.403–3(a)(1) with the notification]. 

(4) As specified in FAR 15.403–3(a)(4), an 

offeror who does not comply with a 

requirement to submit data that the U.S. 

Contracting Officer has deemed necessary to 

determine price reasonableness or cost 

realism is ineligible for award unless the 

head of the contracting activity determines 

that it is in the best interest of the 

Government to make the award to that 

offeror. 

(d) If negotiations are conducted, the 

negotiated price should not exceed the 

offered price. 

(End of provision) 

[FR Doc. 2013–11399 Filed 5–15–13; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 215 

RIN 0750–AH86 

Defense Federal Acquisition 

Regulation Supplement; Forward 

Pricing Rate Proposal Adequacy 

Checklist (DFARS Case 2012–D035) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

provide guidance to contractors for the 

submittal of forward pricing rate 

proposals to ensure the adequacy of 

forward pricing rate proposals 

submitted to the Government. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before July 

15, 2013, to be considered in the 

formation of the final rule. 

ADDRESSES: Submit comments, 

identified by DFARS Case 2012–D035, 

using any of the following methods: 

Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inserting ‘‘DFARS Case 2012–D035’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2012– 

D035.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2012– 

D035’’ on your attached document. 

Follow the instructions for submitting 

comments. 

Email: dfars@osd.mil. Include DFARS 

Case 2012–D035 in the subject line of 

the message. 

Fax: 571–372–6094. 

Mail: Defense Acquisition Regulations 

System, Attn: Mr. Mark Gomersall, 

OUSD(AT&L)DPAP(DARS), Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, 571–372–6099. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

at 215.403–5 by adding instructions to 

contracting officers to request 

contractors to submit the proposed 

forward pricing rate proposal adequacy 

checklist at Table 215–XX with forward 

pricing rate proposals. This proposed 

rule provides guidance to contractors for 

the submittal of forward pricing rate 

proposals by requesting that contractors 

submit a proposed forward pricing rate 

proposal adequacy checklist with their 

forward pricing rate proposals to ensure 

submission of thorough, accurate, and 

complete proposals. 

II. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

III. Regulatory Flexibility Act 

DoD does not expect this proposed 

rule to have a significant economic 

impact on a substantial number of small 

entities within the meaning of the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq. However, an initial regulatory 

flexibility analysis has been performed 

and is summarized as follows: 

This rule amends the DFARS at 

215.403–5 by adding instructions to 

contracting officers to request 

contractors to submit the proposed 

forward pricing rate proposal adequacy 

checklist with forward pricing rate 

proposals. The objective is to provide 

guidance to contractors for the submittal 

of forward pricing rate proposals. 

DoD does not expect this proposed 

rule to have a significant economic 

impact on a substantial number of small 

because it only a small percentage of 

Government contractors are requested to 

submit a forward pricing rate proposal, 

as set forth at FAR 42.1701(a). The 

Government will ask only those 

contractors with a significant volume of 

Government contracts to submit such 

proposals. 

The proposed rule does not duplicate, 

overlap, or conflict with any other 

Federal rules. 

IV. Paperwork Reduction Act 

The rule contains information 

collection requirements that require the 

approval of the Office of Management 

and Budget under the Paperwork 

Reduction Act (44 U.S.C. chapter 35). 

Accordingly, DoD has submitted a 

request for approval of a new 

information collection requirement 

concerning Defense Federal Acquisition 

Regulation Supplement; Forward 

Pricing Rate Proposal Adequacy 

Checklist (DFARS Case 2012–D035) to 

the Office of Management and Budget. 

A. Public reporting burden for this 

collection of information is estimated to 

average 4 hours per response, including 

the time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

The annual reporting burden 

estimated as follows: 

Respondents: 160. 

Responses per respondent: 1. 

Total annual responses: 160. 

Preparation hours per response: 4 

hours 

Total response Burden Hours: 640 

hours. 

B. Request for Comments Regarding 

Paperwork Burden. 

Written comments and 

recommendations on the proposed 

information collection, including 

suggestions for reducing this burden, 

should be sent to Ms. Jasmeet Seehra at 

the Office of Management and Budget, 

Desk Officer for DoD, Room 10236, New 

Executive Office Building, Washington, 


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