[Federal Register Volume 83, Number 113 (Tuesday, June 12, 2018)]
[Proposed Rules]
[Pages 27303-27305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12539]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 15

[FAR Case 2017-006; Docket No. 2017-0006, Sequence No. 1]
RIN 9000-AN53


Federal Acquisition Regulation: Exception From Certified Cost or 
Pricing Data Requirements--Adequate Price Competition

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and the National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to provide guidance to DoD, NASA, and the 
Coast Guard, consistent with a section of the National Defense 
Authorization Act for

[[Page 27304]]

Fiscal Year 2017 that addresses the exception from certified cost or 
pricing data requirements when price is based on adequate price 
competition.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addresses shown below on or before 
August 13, 2018 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2017-006 by any of 
the following methods:
    Regulations.gov: http://www.regulations.gov. Submit comments via 
the Federal eRulemaking portal by entering ``FAR Case 2017-006'' under 
the heading ``Enter Keyword or ID'' and selecting ``Search''. Select 
the link ``Submit a Comment'' that corresponds with ``FAR Case 2017-
006''. Follow the instructions provided at the ``Submit a Comment'' 
screen. Please include your name, company name (if any), and ``FAR Case 
2017-006'' on your attached document.
    Mail: General Services Administration, Regulatory Secretariat 
(MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd Floor, Washington, DC 
20405-0001.
    Instructions: Please submit comments only and cite ``FAR Case 2017-
006'' in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement 
Analyst, at 202-208-4949 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAR Case 2017-006.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are proposing to provide a separate standard for 
``adequate price competition'' in the FAR, applicable only to DoD, 
NASA, and the Coast Guard, consistent with the requirements of section 
822 of the National Defense Authorization Act (NDAA) for Fiscal Year 
(FY) 2017 (Pub. L. 114-328). Setting forth the separate standard for 
DoD, NASA, and the Coast Guard in the FAR provides a top-level 
framework to facilitate consistent implementation of section 822 at the 
agency level by DoD, NASA, and the Coast Guard. Section 822 modifies 10 
U.S.C. 2306a, the Truth in Negotiations Act, which is applicable only 
to DoD, NASA, and the Coast Guard. Section 822 limits the exception for 
price based on adequate price competition to circumstances in which 
there is adequate competition that results in at least two or more 
responsive and viable competing bids.

II. Discussion and Analysis

    This proposed rule modifies the standard for adequate price 
competition at FAR 15.403-1(c)(1), to provide a separate standard for 
DoD, NASA, and the Coast Guard. There are also conforming changes to 
the cross references at FAR 15.305(a)(1) and 15.404-1(b)(2)(i).

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule does not contain any provision or clause that applies to 
contracts or subcontracts at or below the simplified acquisition 
threshold or contracts or subcontracts for the acquisition of 
commercial items, including commercially available off-the-shelf items.

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. Executive Order 13771

    This proposed rule is not expected to be an E.O. 13771 regulatory 
action, because this proposed rule is not significant under E.O. 12866.

VI. Regulatory Flexibility Act

    DoD, GSA, and NASA do 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 (IRFA) has been 
performed and is summarized as follows:

    This rule proposes to provide a separate standard for ``adequate 
price competition'' in the FAR for DoD, NASA, and the Coast Guard, 
consistent with the requirements of section 822 of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 
114-328).
    The objective of this rule is to clarify that there is a 
different standard applicable to DoD, NASA, and the Coast Guard, and 
to provide a top-level framework to facilitate consistent 
implementation of section 822 at the agency level by DoD, NASA, and 
the Coast Guard. The statutory basis is 10 U.S.C. 2306a, as amended 
by section 822 of the NDAA for FY 2017.
    This rule only provides a statement of internal guidance to DoD, 
NASA, and the Coast Guard, i.e., ``For DoD, NASA, and the Coast 
Guard, a price is based on adequate price competition only if two or 
more offerors, competing independently, submit responsive and viable 
offers.'' This principle will not have impact on small entities 
until implemented at the agency level by DoD, NASA, and the Coast 
Guard.
    There are no projected reporting, recordkeeping, or other 
compliance requirements of the rule. The rule amends the standards 
for adequate price competition for DoD, NASA, and the Coast Guard. 
However, the corollary of this FAR change is that DoD, NASA, and the 
Coast Guard will be required to obtain certified cost or pricing 
data from an offeror when only one offer is received and no other 
exception applies. The rule does not duplicate, overlap, or conflict 
with any other Federal rules.
    Since this rule does not impose a burden on small entities, DoD, 
GSA, and NASA were unable to identify any alternatives that would 
reduce burden on small business and still meet the requirements of 
the statute.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the Regulatory 
Secretariat Division. DoD, GSA, and NASA invite comments from small 
business concerns and other interested parties on the expected impact 
of this rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule 
consistent with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2017-006), 
in correspondence.

VII. Paperwork Reduction Act

    The rule does not contain any 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).

List of Subjects in 48 CFR Part 15

    Government procurement.


[[Page 27305]]


    Dated: June 6, 2018.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA proposes to amend 48 CFR part 15 as 
set forth below:

PART 15--CONTRACTING BY NEGOTIATION

0
1. The authority citation for 48 CFR part 15 continues to read as 
follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.


15.305   [Amended]

0
2. Amend section 15.305 by removing from paragraph (a)(1) in the fourth 
sentence ``(see 15.403-1(c)(1)(i)(B))'' and adding ``(see 15.403-
1(c)(1)(i)(A)(2))'' in its place.
0
3. Amend section 15.403-1 by--
0
a. Revising the heading of paragraph (c); and
0
b. Revising paragraph (c)(1) to read as follows:


15.403-1  Prohibition on obtaining certified cost or pricing data (10 
U.S.C. 2306a and 41 U.S.C. chapter 35).

* * * * *
    (c) Standards for exceptions from certified cost or pricing data 
requirements.
    (1) Adequate price competition. (i) For agencies other than DoD, 
NASA, and the Coast Guard, a price is based on adequate price 
competition if--
    (A) Two or more responsible offerors, competing independently, 
submit priced offers that satisfy the Government's expressed 
requirement and if--
    (1) Award will be made to the offeror whose proposal represents the 
best value (see 2.101) where price is a substantial factor in source 
selection; and
    (2) There is no finding that the price of the otherwise successful 
offeror is unreasonable. 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;
    (B) There was a reasonable expectation, based on market research or 
other assessment, 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 if--
    (1) Based on the offer received, the contracting officer can 
reasonably conclude that the offer was submitted with the expectation 
of competition, e.g., circumstances indicate that--
    (i) The offeror believed that at least one other offeror was 
capable of submitting a meaningful offer; and
    (ii) The offeror had no reason to believe that other potential 
offerors did not intend to submit an offer; and
    (2) 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; or
    (C) 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, 
economic conditions, quantities, or terms and conditions under 
contracts that resulted from adequate price competition.
    (ii) For DoD, NASA, and the Coast Guard, a price is based on 
adequate price competition only if two or more responsible offerors, 
competing independently, submit responsive and viable offers. (10 
U.S.C. 2306a(b)(1)(A)(i)).
* * * * *


15.404-1   [Amended]

0
4. Amend section 15.404-1 by removing from paragraph (b)(2)(i) ``(see 
15.403-1(c)(1)(i))'' and adding ``(see 15.403-1(c)(1)(i) and (ii))'' in 
its place.

[FR Doc. 2018-12539 Filed 6-11-18; 8:45 am]
 BILLING CODE 6820-EP-P