Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Proposed Rules 79005 

■ 5. Add section 235.011 to read as 

follows: 

235.011 Data. 

(1) The contracting officer shall obtain 

a data management plan from the 

contractor at the start of the research 

project as required by the clause at 

252.235–70YY, Data Management Plan. 

(2) The contracting officer shall 

provide the contractor’s data 

management plan to the program 

manager for approval and notify the 

contractor of such approval or 

disapproval. 

■ 6. Amend section 235.072 by adding 

paragraphs (f) and (g) to read as follows: 

235.072 Additional contract clauses. 

* * * * * 

(f) Use the clause at 252.235–70XX, 

Peer-Reviewed Manuscripts, in 

solicitations and contracts for research 

and development that include 

fundamental research funded in whole 

or in part by DoD. 

(g) Use the clause at 252.235–70YY, 

Data Management Plan, in solicitations 

and contracts for research and 

development that include fundamental 

research funded in whole or in part by 

DoD. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 7. Add sections 252.235–70XX and 

252.235–70YY to read as follows: 

252.235–70XX Peer-Reviewed 

Manuscripts. 

As prescribed in 235.072(f), use the 

following clause: 

Peer-Reviewed Manuscripts (DATE) 

(a) Definitions. As used in this clause— 

Final peer-reviewed manuscript means an 

author’s final manuscript of a peer-reviewed 

paper accepted for journal publication, 

including all modifications from the peerreview process and manuscripts jointly 

authored with DoD personnel during the 

period of performance of the fundamental 

research contract. It does not include reports 

required to be delivered under the terms of 

the contract. 

Peer-reviewed means a process that 

subjects an author’s scholarly work, research, 

or ideas to the scrutiny of others who are 

experts in the same field and is considered 

necessary to ensure scientific quality. 

(b) Submission of final peer-reviewed 

manuscript. When the final title and date of 

publication of the author’s final peerreviewed manuscript are known, the 

Contractor shall submit an electronic copy of 

the manuscript to one of the following 

Defense Technical Information Center 

repositories: 

(1) Contractors with a common access card 

(CAC), personal identity verification (PIV), or 

external certification authority (ECA) shall 

submit to https://discover.dtic.mil/submitdocuments/; or 

(2) Contractors without a CAC, PIV, or ECA 

shall submit to https://www.osti.gov/elink/ 

agency-submission. 

(End of clause) 

252.235–70YY Data Management Plan. 

As prescribed in 235.072(g), insert the 

following clause: 

Data Management Plan (DATE) 

(a) Definitions. As used in this clause— 

Data means the digitally recorded factual 

material commonly accepted in the scientific 

community as necessary to validate research 

findings, including data sets used to support 

scholarly publications including publicly 

releasable digital data, algorithms, or other 

information central to the conclusions of 

published peer-reviewed scientific research. 

Data management plan means a document 

that describes which data generated during 

performance of a research and development 

contract will be publicly shared and 

preserved and how it will be accomplished, 

or a justification of why such actions cannot 

be accomplished. 

(b) Submission of data management plan. 

Within 30 days of contract award, the 

Contractor shall submit to the Contracting 

Officer, with a copy to the Contracting 

Officer’s Representative and the Program 

Manager, a data management plan for 

approval by the Program Manager. Generally, 

the data management plan should not exceed 

2 pages and should address elements relevant 

to the research discipline for the following 

areas (see DoD Instruction 3200.12): 

(1) The types of data, software, and other 

materials to be produced. 

(2) How the data will be acquired. 

(3) Time and location of data acquisition, 

if scientifically pertinent. 

(4) How the data will be processed. 

(5) The file formats and the naming 

conventions that will be used. 

(6) A description of the quality assurance 

and quality control measures during 

collection, analysis, and processing. 

(7) A description of dataset origin when 

existing data resources are used. 

(8) A description of the standards to be 

used for data and metadata format and 

content. 

(9) Appropriate timeframe for preservation. 

(10) The plan may consider the balance 

between the relative value of data 

preservation and other factors such as the 

associated cost and administrative burden. 

The plan will provide a justification for such 

decisions. 

(11) A statement that the data cannot be 

made available to the public when there are 

national security or controlled unclassified 

information concerns. 

(c) Implementation and maintenance of the 

data management plan. The Contractor shall 

implement and maintain the approved data 

management plan throughout the 

performance of the contract. 

(End of clause) 

[FR Doc. 2024–21097 Filed 9–25–24; 8:45 am] 

BILLING CODE 6001–FR–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 214, 215, and 252 

[Docket DARS–2024–0028] 

RIN 0750–AL55 

Defense Federal Acquisition 

Regulation Supplement: DoD Cost or 

Pricing Data Requirements (DFARS 

Case 2022–D004) 

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 

implement sections of the National 

Defense Authorization Acts for Fiscal 

Years 2018, 2021, and 2022 that update 

requirements for contractors to submit 

cost or pricing data. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

November 25, 2024, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2022–D004, 

using either of the following methods: 

Æ Federal eRulemaking Portal: 

https://www.regulations.gov. Search for 

DFARS Case 2022–D004. Select 

‘‘Comment’’ and follow the instructions 

to submit a comment. Please include 

‘‘DFARS Case 2022–D004’’ on any 

attached documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2022–D004 in the subject 

line of the message. 

Comments received will generally be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check https://

www.regulations.gov, approximately 

two to three days after submission to 

verify posting. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jon Snyder, telephone 703–945–5341. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

to implement section 811(b) of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2018 (Pub. 

L. 115–91), section 814 of the NDAA for 

FY 2021 (Pub. L. 116–283), and section 

804 of the NDAA for FY 2022 (Pub. L. 

117–81). Section 811(b) of the NDAA for 

FY 2018 (10 U.S.C. 2306a(d), now 10 


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U.S.C. 3705(a)) requires offerors to 

submit data other than certified cost or 

pricing data upon contracting officer 

request. Section 814 of the NDAA for FY 

2021 (10 U.S.C. 2306(a)(1), now 10 

U.S.C. 3702(a)(2), (3), and (4)) 

establishes a $2 million threshold for 

the Truthful Cost or Pricing Data statute 

(formerly Truth in Negotiations Act 

(TINA) and still referred to as TINA) 

requirements with respect to contract 

modifications, subcontracts, and 

modifications to subcontracts, 

respectively. Section 804 of the NDAA 

for FY 2022 augments the requirement 

at 10 U.S.C. 2306a(a)(6), now 10 U.S.C. 

3702(f), for contracting officers to 

modify contracts to reflect the relevant 

TINA threshold. 

II. Discussion and Analysis 

TINA requires, with exceptions, that 

the Government obtain certified cost or 

pricing data for certain contract actions 

listed at Federal Acquisition Regulation 

(FAR) 15.403–4(a)(1), such as negotiated 

contracts, certain subcontracts, and 

certain contract modifications. Section 

811(a) of the NDAA for FY 2018 

increased the threshold for requesting 

certified cost or pricing data from 

$750,000 to $2 million for contracts 

entered into after June 30, 2018, but it 

left unchanged the $750,000 threshold 

for prime contract modifications. The 

FAR was amended to reflect this change 

effective August 3, 2020. 

Section 814 of the NDAA for FY 2021 

established a uniform $2 million 

threshold for TINA requirements with 

respect to DoD for contractual actions, 

including prime contract modifications, 

entered into after June 30, 2018. In 

implementing the change to the 

thresholds for prime contract 

modifications, this proposed rule 

includes a new contract clause at 

DFARS 252.215–70SS, Requirements for 

Certified Cost or Pricing Data and Data 

Other Than Certified Cost or Pricing 

Data—Modifications, and its Alternate I. 

This clause is prescribed for use in lieu 

of FAR 52.215–21, Requirements for 

Certified Cost or Pricing Data and Data 

Other Than Certified Cost or Pricing 

Data—Modifications, in solicitations 

and contracts, including solicitations 

and contracts using FAR part 12 

procedures for the acquisition of 

commercial products and commercial 

services, if the contracting officer 

anticipates, at the time of solicitation, 

that postaward submission of certified 

cost or pricing data or data other than 

certified cost or pricing data may 

possibly be required for modifications. 

Alternate I is used to specify a format 

for certified cost or pricing data other 

than the format required by FAR Table 

15–2. Further, this proposed rule, at 

DFARS 215.403–4, requires use of the 

$2 million threshold for submission of 

certified cost or pricing data in 

conjunction with relevant FAR contract 

clauses and solicitation provisions 

regardless of the date on which the 

contract was awarded. 

Section 804 of the NDAA for FY 2022 

augments the requirement at 10 U.S.C. 

3702(f) for contracting officers, in 

connection with a contract entered into 

on or before June 30, 2018, to modify 

the contract to reflect the changed TINA 

threshold as necessary. In particular, 

section 804 requires that such 

modifications be executed ‘‘as soon as 

practicable.’’ DoD is proposing to 

change DFARS 215.403–4 accordingly, 

adding six clauses, prescribed at DFARS 

214.201–7 and 215.408, specifically for 

use when modifying contracts in 

accordance with 10 U.S.C. 3702(f). The 

six clauses are as follows: 

• 252.214–70QQ, Alternate A, Price 

Reduction for Defective Certified Cost or 

Pricing Data—Modifications—Sealed 

Bidding. 

• 252.214–70RR, Alternate A, 

Subcontractor Certified Cost or Pricing 

Data—Modifications—Sealed Bidding. 

• 252.215–70TT, Alternate A, Price 

Reduction for Defective Certified Cost or 

Pricing Data—Modifications. 

• 252.215–70UU, Alternate A, 

Subcontractor Certified Cost or Pricing 

Data. 

• 252.215–70VV, Alternate A, 

Subcontractor Certified Cost or Pricing 

Data—Modifications. 

• 252.215–70WW, Alternate A, 

Requirements for Certified Cost or 

Pricing Data and Data Other Than 

Certified Cost or Pricing Data— 

Modifications. 

These new DFARS clauses are 

designed for use with the FAR clauses 

that are already in existing contracts. 

These six DFARS clauses replace the 

references to the TINA threshold in the 

FAR clauses with the current, relevant 

TINA threshold for DoD contracts. 

Section 811(b) of the NDAA for FY 

2018 requires offerors to submit data 

other than certified cost or pricing data 

upon contracting officer request. 

Accordingly, DoD proposes to change 

the solicitation provision at DFARS 

252.215–7010, Requirements for 

Certified Cost or Pricing Data and Data 

Other Than Certified Cost or Pricing 

Data, and its Alternate I to require that, 

upon contracting officer request, the 

offeror shall submit data other than 

certified cost or pricing data to the 

extent necessary to determine the 

reasonableness of the price of the 

contract or subcontract. Similarly, the 

new clause at 252.215–70SS, 

Requirements for Certified Cost or 

Pricing Data and Data Other Than 

Certified Cost or Pricing Data— 

Modifications, and its Alternate I reflect 

the same clarifying language. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Services and Commercial Products, 

Including Commercially Available Offthe-Shelf (COTS) Items 

This rule proposes to amend the 

solicitation provision at DFARS 

252.215–7010, Requirements for 

Certified Cost or Pricing Data and Data 

Other Than Certified Cost or Pricing 

Data, which already applies to 

solicitations using FAR part 12 

procedures for the acquisition of 

commercial products and commercial 

services. The changes to the solicitation 

provision in this proposed rule, 

however, do not impose any new 

requirements on contracts at or below 

the SAT or for commercial services and 

commercial products, including COTS 

items. The provision will continue not 

to apply to acquisitions at or below the 

SAT but will continue to apply to 

acquisitions of commercial services and 

commercial products, including COTS 

items. 

This proposed rule adds a new clause 

at DFARS 252.215–70SS, Requirements 

for Certified Cost or Pricing Data and 

Data Other Than Certified Cost or 

Pricing Data—Modifications, and its 

Alternate I. The clause at DFARS 

252.215–70SS is prescribed at DFARS 

215.408(5)(ii) introductory text and 

(5)(ii)(A) and (B) for use in lieu of the 

clause at FAR 52.215–21, Requirements 

for Certified Cost or Pricing Data and 

Data Other Than Certified Cost or 

Pricing Data—Modifications, in 

solicitations and contracts, including 

solicitations and contracts using FAR 

part 12 procedures for the acquisition of 

commercial products and commercial 

services, if it is anticipated at the time 

of solicitation that postaward 

submission of certified cost or pricing 

data or data other than certified cost or 

pricing data may be required for prime 

contract modifications. Alternate I is 

prescribed when a format other than the 

FAR Table 15–2 format may be used for 

the certified cost or pricing data. 

This proposed rule also includes new 

clauses at DFARS 252.214–70QQ, 

Alternate A, Price Reduction for 

Defective Certified Cost or Pricing 

Data—Modifications—Sealed Bidding; 

252.214–70RR, Alternate A, 

Subcontractor Certified Cost or Pricing 

Data—Modifications—Sealed Bidding; 

252.215–70TT, Alternate A, Price 

Reduction for Defective Certified Cost or 


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Pricing Data—Modifications; 252.215– 

70UU, Alternate A, Subcontractor 

Certified Cost or Pricing Data; 252.215– 

70VV, Alternate A, Subcontractor 

Certified Cost or Pricing Data— 

Modifications; and 252.215–70WW, 

Alternate A, Requirements for Certified 

Cost or Pricing Data and Data Other 

Than Certified Cost or Pricing Data— 

Modifications. These clauses are 

prescribed for use with the respective 

clauses at FAR 52.214–27, Price 

Reduction for Defective Certified Cost or 

Pricing Data—Modifications—Sealed 

Bidding; FAR 52.214–28, Subcontractor 

Certified Cost or Pricing Data— 

Modifications—Sealed Bidding; 52.215– 

11, Price Reduction for Defective 

Certified Cost or Pricing Data— 

Modifications; 52.215–12, Subcontractor 

Certified Cost or Pricing Data; and 

52.215–13, Subcontractor Certified Cost 

or Pricing Data—Modifications; when, 

in accordance with 10 U.S.C. 3702(f), 

modifying a prime contract entered into 

before July 1, 2018. Therefore, these 

clauses are not appropriate for use in 

new FAR part 12 solicitations and 

contracts. 

DoD does not intend to apply the 

proposed rule to contracts at or below 

the SAT. DoD does intend to apply the 

proposed rule to contracts for the 

acquisition of commercial services and 

commercial products, including COTS 

items. 

A. Applicability to Contracts at or Below 

the Simplified Acquisition Threshold 

The statute at 41 U.S.C. 1905 governs 

the applicability of laws to contracts or 

subcontracts in amounts not greater 

than the simplified acquisition 

threshold. It is intended to limit the 

applicability of laws to such contracts or 

subcontracts. The statute at 41 U.S.C. 

1905 provides that if a provision of law 

contains criminal or civil penalties, or if 

the Federal Acquisition Regulatory 

Council makes a written determination 

that it is not in the best interest of the 

Federal Government to exempt contracts 

or subcontracts at or below the SAT, the 

law will apply to them. The Principal 

Director, Defense Pricing, Contracting, 

and Acquisition Policy (DPCAP), is the 

appropriate authority to make 

comparable determinations for 

regulations to be published in the 

DFARS, which is part of the FAR system 

of regulations. DoD does not intend to 

make that determination. Therefore, this 

proposed rule will not apply at or below 

the simplified acquisition threshold. 

B. Applicability to Contracts for the 

Acquisition of Commercial Services and 

Commercial Products, Including COTS 

Items 

The statute at 10 U.S.C. 3452 exempts 

contracts and subcontracts for the 

acquisition of commercial products, 

including COTS items, and commercial 

services from provisions of law enacted 

after October 13, 1994, unless the Under 

Secretary of Defense (Acquisition and 

Sustainment) (USD(A&S)) makes a 

written determination that it would not 

be in the best interest of DoD to exempt 

contracts for the procurement of 

commercial products and commercial 

services from the applicability of the 

provision or contract requirement, 

except for a provision of law that— 

• Provides for criminal or civil 

penalties; 

• Requires that certain articles be 

bought from American sources pursuant 

to 10 U.S.C. 4862 (previously 10 U.S.C. 

2533c), or that strategic materials 

critical to national security be bought 

from American sources pursuant to 10 

U.S.C. 4863 (previously 10 U.S.C. 

2533b); or 

• Specifically refers to 10 U.S.C. 3452 

and states that it shall apply to contracts 

and subcontracts for the acquisition of 

commercial products (including COTS 

items) and commercial services. 

The statutes implemented in this 

proposed rule do not impose criminal or 

civil penalties, do not require purchase 

pursuant to 10 U.S.C. 4862 or 4863, and 

do not refer to 10 U.S.C. 3452. 

Therefore, section 811(b) of the NDAA 

for FY 2018, section 814 of the NDAA 

for FY 2021, and section 804 of the 

NDAA for FY 2022 will not apply to the 

acquisition of commercial services or 

commercial products including COTS 

items unless a written determination is 

made. Due to delegations of authority, 

the Principal Director, DPCAP is the 

appropriate authority to make this 

determination. DoD intends to make 

that determination to apply these 

statutes to the acquisition of commercial 

products, including COTS items, and to 

the acquisition of commercial services. 

C. Determination 

DFARS 252.215–7010, Requirements 

for Certified Cost or Pricing Data and 

Data Other Than Certified Cost or 

Pricing Data, allows offerors to submit a 

written request for an exception from 

the requirement to submit certified cost 

or pricing data, by submitting specific 

information to support a commercial 

product or commercial service 

exception or an exception based on 

prices set by law or regulation. As this 

implies, DFARS 252.215–7010 is 

presently prescribed for use in 

solicitations to include those using FAR 

part 12 procedures for the acquisition of 

commercial products and commercial 

services. This proposed rule does not 

include any changes to this 

prescription. 

The requirements of section 811(b) of 

the NDAA for FY 2018, section 814 of 

the NDAA for FY 2021, and section 804 

of the NDAA for FY 2022 should apply 

to the procurement of commercial 

products, including COTS items, and to 

the procurement of commercial services 

for the following reasons. 

Implementation of these sections 

provides guidance concerning rendering 

of commercial product and commercial 

service determinations and the 

appropriate amount and type of other 

than certified cost or pricing 

information that contracting officers 

must require an offeror to submit in 

order to determine whether proposed 

prices for commercial products and 

commercial services are fair and 

reasonable. Exclusion of acquisitions of 

commercial products, including COTS 

items, and commercial services would 

greatly limit the impact of the statutory 

requirements and forestall the 

opportunity to clarify commercial 

product and commercial service 

documentation, pricing criteria, and 

requirements. For example, 

implementing section 811(b) of the 

NDAA for FY 2018 requires augmenting 

DFARS 252.215–7010, which presently 

applies to the acquisition of commercial 

products and commercial services. 

Section 804 of the NDAA for FY 2022 

will be implemented in a proposed new 

DFARS clause, 252.215–70SS, that is 

applicable postaward in a manner 

analogous to the solicitation provision 

at DFARS 252.215–7010. The new 

clause at 252.215–70SS must similarly 

apply to the acquisition of commercial 

products and commercial services. In 

order to reflect congressional intent, 

section 814 of the NDAA for FY 2021 

must apply to the acquisition of 

commercial products and commercial 

services as a consequence of 252.215– 

7010 applying to such acquisitions. 

An exception for contracts for the 

acquisition of commercial items, 

including COTS items, would exclude 

the contracts intended to be covered by 

the law, thereby undermining the 

overarching public policy purpose of 

the law. 

IV. Expected Impact of the Proposed 

Rule 

By increasing the TINA threshold for 

contract modifications and subcontracts 

to match that of contracts entered into 

after June 30, 2018, this proposed rule, 


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when finalized, will benefit both the 

Government and the public. In 

particular, by implementing a uniform 

TINA threshold, this proposed rule will 

promote efficiency and reduce costs 

associated with administering contracts. 

This proposed rule requires contractors 

to provide data other than certified cost 

or pricing data when certified cost or 

pricing data is not required. Finally, this 

proposed rule provides Government 

contracting officers with the ability to 

obtain data other than certified cost or 

pricing data for contract modifications 

analogous to what they can obtain when 

issuing contracts. This data is critical for 

determining fair and reasonable prices 

when certified cost or pricing data is not 

required. Adding this language should 

expedite contract negotiations and 

award. 

V. 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, as amended. 

VI. Regulatory Flexibility Act 

DoD does not expect this proposed 

rule, when finalized, 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 the proposed rule does not add 

to existing requirements for the 

submission of other than certified cost 

or pricing data for the purpose of 

determining the reasonableness of 

proposed prices; rather, the proposed 

rule decreases the number of contracts 

and subcontracts subject to TINA. 

However, an initial regulatory flexibility 

analysis has been performed and is 

summarized as follows: 

DoD is proposing to amend the 

DFARS to implement the following: 

section 811(b) of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2018 (Pub. L. 115–91), section 

814 of the NDAA for FY 2021 (Pub. L. 

116–283), and section 804 of the NDAA 

for FY 2022 (Pub. L. 117–81). Section 

811(b) of the NDAA for FY 2018 (10 

U.S.C. 2306a(d), now 10 U.S.C. 3705(a)) 

requires offerors to submit data other 

than certified cost or pricing data upon 

contracting officer request. Section 814 

of the NDAA for FY 2021 (10 U.S.C. 

2306(a)(1), now 10 U.S.C. 3702(a)(2), (3), 

and (4)) establishes a $2 million 

threshold for the Truthful Cost or 

Pricing Data (Truth in Negotiations) 

statute (referred to as TINA) 

requirements with respect to contract 

modifications, subcontracts, 

modifications to subcontracts. TINA 

requires, with notable exceptions, 

contractors to submit cost or pricing 

data and to certify the accuracy of the 

data, for the award of negotiated 

contracts exceeding the $2 million 

threshold. Section 804 of the NDAA for 

FY 2022 augments the requirement at 10 

U.S.C. 2306a(a)(6) (now 10 U.S.C. 

3702(f)) for contracting officers to 

modify contracts to reflect the relevant 

TINA threshold. Section 804 requires 

such modifications to be executed ‘‘as 

soon as practicable.’’ 

The objective of this proposed rule is 

to propose amendments to the DFARS 

to implement the statutory changes 

described above. The legal basis for the 

proposed rule is section 811(b) of the 

NDAA for FY 2018, section 814 of the 

NDAA for FY 2021, and section 804 of 

the NDAA for FY 2022. 

Data was obtained from the Federal 

Procurement Data System for new 

awards valued over $2 million in FY 

2019, FY 2020, and FY 2021. DoD 

awarded an average of 10,593 contracts 

per year during FY 2019 through FY 

2021. Of those contracts, an average of 

approximately 5,567 contracts were 

awarded to 3,659 unique small entities 

per year. By increasing the TINA 

threshold for contract modifications and 

subcontracts, this proposed rule will 

benefit small businesses by reducing the 

overall number of contracts to which 

TINA requirements apply. 

The proposed rule imposes new 

reporting, recordkeeping, or compliance 

requirements via proposed DFARS 

clause 252.215–70SS, Requirements for 

Certified Cost or Pricing Data and Data 

Other Than Certified Cost or Pricing 

Data—Modifications. 

The proposed rule does not duplicate, 

overlap, or conflict with any other 

Federal rules. 

There are no known alternatives that 

would accomplish the stated objectives 

of the applicable statutes. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

proposed rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this proposed 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 2022–D004), in correspondence. 

VII. Paperwork Reduction Act 

This proposed rule contains 

information collection requirements that 

require the approval of the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act (44 U.S.C. 

chapter 35). Accordingly, DoD has 

submitted a request for approval of a 

revised information collection 

requirement concerning OMB Control 

Number 0704–0574, titled ‘‘Defense 

Federal Acquisition Regulation 

Supplement (DFARS) Part 215; Only 

One Offer and Related Clauses at 

252.215,’’ to OMB. 

A. Estimate of Public Burden 

Public reporting burden for this 

collection of information is estimated to 

average 30 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: 1,247. 

Total annual responses: 1,435. 

Total annual burden hours: 50,190. 

B. Request for Comments Regarding 

Paperwork Burden 

Written comments and 

recommendations on the proposed 

information collection, including 

suggestions for reducing this burden, 

should be submitted using the Federal 

eRulemaking Portal at https://

www.regulations.gov or by email to 

osd.dfars@mail.mil. Comments can be 

received up to 60 days after the date of 

this notice. 

Public comments are particularly 

invited on: whether this collection of 

information is necessary for the proper 

performance of the functions of DoD, 

including whether the information will 

have practical utility; the accuracy of 

DoD’s estimate of the burden of this 

information collection; ways to enhance 

the quality, utility, and clarity of the 

information to be collected; and ways to 

minimize the burden of the information 

collection on respondents, including 

through the use of automated collection 

techniques or other forms of information 

technology. 

To obtain a copy of the supporting 

statement and associated collection 

instruments, please email osd.dfars@

mail.mil. Include DFARS Case 2022– 

D004 in the subject line of the message. 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Proposed Rules 79009 

List of Subjects in 48 CFR Parts 212, 

214, 215, and 252 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, the Defense Acquisition 

Regulations System proposes to amend 

48 CFR parts 212, 214, 215, and 252 

amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 212, 214, 215, and 252 continues 

to read as follows: 

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

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL PRODUCTS AND 

COMMERCIAL SERVICES 

■ 2. Amend section 212.301 by revising 

paragraph (f)(vi)(E) introductory text 

and adding paragraph (f)(vi)(G) to read 

as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial products and commercial 

services. 

* * * * * 

(f) * * * 

(vi) * * * 

(E) Use the provision 252.215–7010, 

Requirements for Certified Cost or 

Pricing Data and Data Other Than 

Certified Cost or Pricing Data, as 

prescribed at 215.408(5)(i) to comply 

with section 831 of the National Defense 

Authorization Act for Fiscal Year 2013 

(Pub. L. 112–239) and 10 U.S.C. 3702(a), 

3703(d) and (e), and 3705(a). 

* * * * * 

(G) Use the clause at 252.215–70SS, 

Requirements for Certified Cost or 

Pricing Data and Data Other Than 

Certified Cost or Pricing Data— 

Modifications, as prescribed at 

215.408(5)(ii) to comply with section 

831 of the National Defense 

Authorization Act for Fiscal Year 2013 

(Pub. L. 112–239) and 10 U.S.C. 3702(a), 

3703(d) and (e), and 3705(a). 

* * * * * 

PART 214—SEALED BIDDING 

■ 3. Revise section 214.201–6 to read as 

follows: 

214.201–6 Solicitation provisions. 

Use the provisions at 252.215–7007, 

Notice of Intent to Resolicit, and 

252.215–7008, Only One Offer, as 

prescribed at 215.371–6 and 215.408(3), 

respectively. 

■ 4. Add section 214.201–7 to read as 

follows: 

214.201–7 Contract clauses. 

(b)(1) When modifying a contract 

entered into before July 1, 2018, in 

accordance with 215.403–4(a)(3), use 

the clause at FAR 52.214–27, Price 

Reduction for Defective Certified Cost or 

Pricing Data—Modifications—Sealed 

Bidding, with 252.214–70QQ, Alternate 

A, Price Reduction for Defective 

Certified Cost or Pricing Data— 

Modifications—Sealed Bidding. 

(c)(1)(ii) When modifying a contract 

entered into before July 1, 2018, in 

accordance with 215.403–4(a)(3), use 

the clause at FAR 52.214–28, 

Subcontractor Certified Cost or Pricing 

Data—Modifications—Sealed Bidding, 

with 252.214–70RR, Alternate A, 

Subcontractor Certified Cost or Pricing 

Data—Modifications—Sealed Bidding. 

Do not use alternate I of the clause at 

FAR 52.214–28. 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 5. Add section 215.403–4 to read as 

follows: 

215.403–4 Requiring certified cost or 

pricing data (10 U.S.C. chapter 271 and 41 

U.S.C. chapter 35). 

(a)(1) Notwithstanding FAR 15.403– 

4(a)(1), the $2 million threshold for 

obtaining certified cost or pricing data 

applies to contract modifications, 

subcontracts, and subcontract 

modifications, regardless of when the 

prime contract was awarded. 

(3) For a contract entered into before 

July 1, 2018, the contracting officer shall 

modify the contract as soon as 

practicable, without requiring 

consideration, to reflect the threshold at 

paragraph (a)(1) for obtaining certified 

cost or pricing data on contract 

modifications and subcontracts entered 

into on or after July 1, 2018 (10 U.S.C. 

3702(f)). See 214.201–7 and 215.408. 

■ 6. Amend section 215.408— 

■ a. By redesignating paragraphs (5)(ii) 

and (iii) as paragraphs (5)(iii) and (iv); 

and 

■ b. By adding a new paragraph (5)(ii) 

and paragraph (9). 

The additions read as follows: 

215.408 Solicitation provisions and 

contract clauses. 

* * * * * 

(5) * * * 

(ii) Use the basic or alternate of the 

clause at 252.215–70SS, Requirements 

for Certified Cost or Pricing Data and 

Data Other Than Certified Cost or 

Pricing Data—Modifications, in lieu of 

the clause at FAR 52.215–21, 

Requirements for Certified Cost or 

Pricing Data and Data Other Than 

Certified Cost or Pricing Data— 

Modifications, in solicitations and 

contracts, including solicitations and 

contracts using FAR part 12 procedures 

for the acquisition of commercial 

products and commercial services, if it 

is reasonably certain that certified cost 

or pricing data or data other than 

certified cost or pricing data will be 

required for modifications. 

(A) Use the basic clause when 

submission of certified cost or pricing 

data is required to be in the FAR Table 

15–2 format. 

(B) Use the alternate I clause to 

specify a format for certified cost or 

pricing data other than the format 

required by FAR Table 15–2. 

* * * * * 

(9) When modifying a prime contract 

entered into before July 1, 2018, in 

accordance with 215.403–4(a)(3)— 

(i) Use the clause at FAR 52.215–11, 

Price Reduction for Defective Certified 

Cost or Pricing Data—Modifications, 

with 252.215–70TT, Alternate A, Price 

Reduction for Defective Certified Cost or 

Pricing Data—Modifications. 

(ii)(A) Use the clause at FAR 52.215– 

12, Subcontractor Certified Cost or 

Pricing Data, with 252.215–70UU, 

Alternate A, Subcontractor Certified 

Cost or Pricing Data. 

(B) Do not use alternate I of the clause 

at FAR 52.215–12. 

(iii)(A) Use the clause at FAR 52.215– 

13, Subcontractor Certified Cost or 

Pricing Data—Modifications, with 

252.215–70VV, Alternate A, 

Subcontractor Certified Cost or Pricing 

Data—Modifications. 

(B) Do not use alternate I of the clause 

at FAR 52.215–13. 

(iv) Use the clause at 52.215–21, 

Requirements for Certified Cost or 

Pricing Data and Data Other Than 

Certified Cost or Pricing Data— 

Modifications, with 252.215–70WW, 

Alternate A, Requirements for Certified 

Cost or Pricing Data and Data Other 

Than Certified Cost or Pricing Data— 

Modifications. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 7. Add section 252.214–70QQ to read 

as follows: 

252.214–70QQ Alternate A, Price 

Reduction for Defective Certified Cost or 

Pricing Data—Modifications—Sealed 

Bidding. 

As prescribed in 214.201–7(b)(1), use 

the following clause: 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
79010 Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Proposed Rules 

Alternate A, Price Reduction for 

Defective Certified Cost or Pricing 

Data—Modifications—Sealed Bidding 

(Date) 

Substitute ‘‘215.403–4(a)(1) of the Defense 

Federal Acquisition Regulation Supplement’’ 

for references to 15.403–4(a)(1) of the Federal 

Acquisition Regulation wherever they appear 

in the clause at 52.214–27, Price Reduction 

for Defective Certified Cost or Pricing Data— 

Modifications—Sealed Bidding. 

(End of clause) 

■ 8. Add section 252.214–70RR to read 

as follows: 

252.214–70RR Alternate A, Subcontractor 

Certified Cost or Pricing Data— 

Modifications—Sealed Bidding. 

As prescribed in 214.201–7(c)(1)(ii), 

use the following clause: 

Alternate A, Subcontractor Certified 

Cost or Pricing Data—Modifications— 

Sealed Bidding (Date) 

Substitute ‘‘215.403–4(a)(1) of the Defense 

Federal Acquisition Regulation Supplement’’ 

for references to 15.403–4(a)(1) of the Federal 

Acquisition Regulation wherever they appear 

in the clause at 52.214–28, Subcontractor 

Certified Cost or Pricing Data— 

Modifications—Sealed Bidding. 

(End of clause) 

■ 9. Amend section 252.215–7010— 

■ a. By removing the provision date of 

‘‘(MAY 2024)’’ and adding ‘‘(DATE)’’ in 

its place; 

■ b. By revising paragraph (b)(1)(ii)(C); 

■ c. In paragraph (b)(1)(ii)(D) by 

removing ‘‘items’’ and ‘‘the DoD’’ and 

adding ‘‘products or services’’ and 

‘‘DoD’’ in their places, respectively; 

■ d. In paragraphs (b)(1)(ii)(E) and (F) by 

removing ‘‘items’’ and adding ‘‘products 

or services’’ in its place; 

■ e. By revising paragraph (c)(3); 

■ f. By redesignating paragraphs (d)(1) 

through (5) as paragraphs (d)(2) through 

(6); 

■ g. By adding a new paragraph (d)(1); 

■ h. In newly redesignated paragraph 

(d)(5) by removing ‘‘FAR 15.403–3’’ and 

adding ‘‘this paragraph (d)’’ in its place; 

■ i. In paragraph (e)(1) by removing 

‘‘FAR 15.403–4’’ and adding ‘‘DFARS 

215.403–4(a)(1)’’ in its place; and 

■ j. In Alternate I— 

■ i. By removing the provision date of 

‘‘(MAY 2024)’’ and adding ‘‘(DATE)’’ in 

its place; 

■ ii. By revising paragraph (b)(1)(ii)(C); 

■ iii. In paragraph (b)(1)(ii)(D) by 

removing ‘‘items’’ and ‘‘the DoD’’ and 

adding ‘‘products or services’’ and 

‘‘DoD’’ in their places, respectively; 

■ iv. In paragraph (b)(1)(ii)(E) by 

removing ‘‘items’’ and adding ‘‘products 

or services’’ in its place; 

■ v. By revising paragraphs (b)(1)(ii)(F) 

and (c)(3); 

■ vi. By redesignating paragraphs (d)(1) 

through (6) as paragraphs (d)(2) through 

(7); 

■ vii. By adding a new paragraph (d)(1); 

■ viii. By revising newly redesignated 

paragraph (d)(6); and 

■ ix. In paragraph (e)(1) by removing 

‘‘FAR 15.403–4’’ and adding ‘‘DFARS 

215.403–4(a)(1)’’ in its place. 

The revisions and additions read as 

follows: 

252.215–7010 Requirements for Certified 

Cost or Pricing Data and Data Other Than 

Certified Cost or Pricing Data. 

* * * * * 

(b) * * * 

(1) * * * 

(ii) * * * 

(C) For products or services priced 

based on a catalog— 

(1) A copy of or identification of the 

Offeror’s current catalog showing the 

price for that product or service; and 

(2) If the catalog pricing provided 

with this proposal is not supported by 

all relevant sales data, a detailed 

description of differences or 

inconsistencies between or among the 

relevant sales data, the proposed price, 

and the catalog price (including any 

related discounts, refunds, rebates, 

offsets, or other adjustments); 

* * * * * 

(c) * * * 

(3) The Offeror is responsible for 

determining whether a subcontractor 

qualifies for an exception from the 

requirement for submission of certified 

cost or pricing data on the basis of 

adequate price competition in 

accordance with FAR 15.403–1(c)(1)(i). 

(d) * * * 

(1) When certified cost or pricing data 

are not required to be submitted under 

this provision, the Offeror shall submit 

data other than certified cost or pricing 

data to the extent necessary to 

determine the reasonableness of the 

price of the contract or subcontract, 

when requested by the Contracting 

Officer. 

* * * * * 

Alternate I. * * * 

(b) * * * 

(1) * * * 

(ii) * * * 

(C) For products or services priced 

based on a catalog— 

(1) A copy of or identification of the 

Offeror’s current catalog showing the 

price for that product or service; and 

(2) If the catalog pricing provided 

with this proposal is not supported by 

all relevant sales data, a detailed 

description of differences or 

inconsistencies between or among the 

relevant sales data, the proposed price, 

and the catalog price (including any 

related discounts, refunds, rebates, 

offsets, or other adjustments); 

* * * * * 

(F) For products or services provided 

by nontraditional defense contractors, a 

statement that the entity is not currently 

performing and has not performed, for 

at least the 1-year period preceding the 

solicitation of sources by DoD for the 

procurement or transaction, any 

contract or subcontract for DoD that is 

subject to full coverage under the cost 

accounting standards prescribed 

pursuant to 41 U.S.C. 1502 and the 

regulations implementing such section. 

* * * * * 

(c) * * * 

(3) The Offeror is responsible for 

determining whether a subcontractor 

qualifies for an exception from the 

requirement for submission of certified 

cost or pricing data on the basis of 

adequate price competition in 

accordance with FAR 15.403–1(c)(1)(i). 

(d) * * * 

(1) When certified cost or pricing data 

are not required to be submitted under 

this provision, the Offeror shall submit 

data other than certified cost or pricing 

data to the extent necessary to 

determine the reasonableness of the 

price of the contract or subcontract, 

when requested by the Contracting 

Officer. 

* * * * * 

(5) Within 10 days of a written request 

from the Contracting Officer for 

additional information to permit an 

adequate evaluation of the proposed 

price in accordance with this paragraph 

(d), the Offeror shall provide either the 

requested information, or a written 

explanation for the inability to fully 

comply. 

* * * * * 

■ 10. Add section 252.215–70SS to read 

as follows: 

252.215–70SS Requirements for Certified 

Cost or Pricing Data and Data Other Than 

Certified Cost or Pricing Data— 

Modifications. 

As prescribed in 215.408(5)(ii) and 

(5)(ii)(A), use the following basic clause: 

Requirements for Certified Cost or 

Pricing Data and Data Other Than 

Certified Cost or Pricing Data— 

Modifications—Basic (DATE) 

(a) Definitions. As used in this clause— 

Market prices means current prices that are 

established in the course of ordinary trade 

between buyers and sellers free to bargain 

and that can be substantiated through 

competition or from sources independent of 

the offeror, contractor, or subcontractor. 

Non-Government sales means sales of the 

supplies or services to non-Governmental 

entities for purposes other than governmental 

purposes. 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Proposed Rules 79011 

Relevant sales data means information 

provided by an offeror, contractor, or 

subcontractor on sales of the same or similar 

items that can be used to establish price 

reasonableness taking into consideration the 

age, volume, and nature of the transactions 

(including any related discounts, refunds, 

rebates, offsets, or other adjustments). 

Sufficient non-Government sales means 

relevant sales data that reflects market 

pricing and contains enough information to 

make adjustments covered by Federal 

Acquisition Regulation (FAR) 15.404– 

1(b)(2)(ii)(B). 

Uncertified cost data means the subset of 

‘‘data other than certified cost or pricing 

data’’ (see FAR 2.101) that relates to cost. 

(b) Exceptions from certified cost or pricing 

data. 

(1) In lieu of submitting certified cost or 

pricing data for modifications under this 

contract, for price adjustments expected to 

exceed the threshold set forth in Defense 

Federal Acquisition Regulation Supplement 

(DFARS) 215.403–4(a)(1), the Contractor may 

submit a written request for exception by 

submitting the information described in 

paragraphs (b)(1)(i) and (ii) of this clause. 

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) Exception for prices set by law or 

regulation—Identification of the law or 

regulation establishing the prices offered. If 

the prices are controlled under law by 

periodic rulings, reviews, or similar actions 

of a governmental body, provide a copy of 

the controlling document, unless it was 

previously submitted to the contracting 

office. 

(ii) Commercial product and commercial 

service exception. For a commercial product 

or commercial service exception, the 

Contractor shall submit, at a minimum, 

information that is adequate for evaluating 

the reasonableness of the price for this 

modification, including prices at which the 

same or similar products or services have 

been sold in the commercial market. The 

Contractor may provide information 

establishing that the proposed modification 

would not change the existing contract or 

subcontract from a contract or subcontract for 

a commercial product or commercial service 

to one for other than a commercial product 

or service. Such information shall include— 

(A) For products or services previously 

determined to be commercial, the contract 

number and military department, defense 

agency, or other DoD component that 

rendered such determination and, if 

available, a Government point of contact; 

(B) For products or services priced based 

on a catalog— 

(1) A copy of or identification of the 

Contractor’s current catalog showing the 

price for that product or service; and 

(2) If the catalog pricing provided with this 

proposal is not supported by all relevant 

sales data, a detailed description of 

differences or inconsistencies between or 

among the relevant sales data, the proposed 

price, and the catalog price, including any 

related discounts, refunds, rebates, offsets, or 

other adjustments; 

(C) For products or services priced based 

on market pricing, a description of the nature 

of the commercial market, the methodology 

used to establish a market price, and all 

relevant sales data. The description shall be 

adequate to permit DoD to verify the 

accuracy of the description; 

(D) For products or services included on an 

active Federal Supply Service Multiple 

Award Schedule contract, proof that an 

exception has been granted for the schedule 

products or services; or 

(E) For products or services provided by 

nontraditional defense contractors, a 

statement that the entity is not currently 

performing and has not performed, for at 

least the 1-year period preceding the 

solicitation of sources by DoD for the 

procurement, any contract or subcontract for 

DoD that is subject to full coverage under the 

cost accounting standards prescribed 

pursuant to 41 U.S.C. 1502 and the 

regulations implementing such section. 

(2) The Contractor 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 clause, and to 

determine the reasonableness of price. 

(c) Requirements for certified cost or 

pricing data. If the Contractor is not granted 

an exception from the requirement to submit 

certified cost or pricing data, the following 

applies: 

(1) The Contractor 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 in this 

contract, unless the Contracting Officer and 

the Contractor agree to a different format and 

replace this clause with Alternate I of 

252.215–70SS. 

(2) As soon as practicable after agreement 

on price, but before award of the 

modification, the Contractor shall submit a 

Certificate of Current Cost or Pricing Data, as 

prescribed by FAR 15.406–2. 

(3) The Contractor is responsible for 

determining whether a subcontractor 

qualifies for an exception from the 

requirement for submission of certified cost 

or pricing data on the basis of adequate price 

competition in accordance with FAR 15.403– 

1(c)(1)(i). 

(d) Requirements for data other than 

certified cost or pricing data. 

(1) When certified cost or pricing data are 

not required to be submitted under this 

clause for a contract or subcontract, the 

Contractor shall submit data other than 

certified cost or pricing data to the extent 

necessary to determine the reasonableness of 

the price of the contract or subcontract when 

requested by the Contracting Officer. 

(2) Data other than certified cost or pricing 

data submitted in accordance with this 

clause shall include the minimum 

information necessary to permit a 

determination that the proposed price is fair 

and reasonable, to include the requirements 

in DFARS 215.402(a)(i) and 215.404–1(b). 

(3) In cases in which uncertified cost data 

is required, the information shall be provided 

in the form in which it is regularly 

maintained by the Contractor, subcontractor, 

or prospective subcontractor in its business 

operations. 

(4) Within 10 days of a written request 

from the Contracting Officer for additional 

information to permit an adequate evaluation 

of the proposed price in accordance with this 

paragraph, the Contractor shall provide either 

the requested information or a written 

explanation for the inability to fully comply. 

(e) Subcontract price evaluation. 

(1) Contractors shall obtain from 

subcontractors the minimum information 

necessary to support a determination of price 

reasonableness, as described in FAR part 15 

and DFARS part 215. 

(2) No cost data may be required from a 

current or prospective subcontractor in any 

case in which there are sufficient nonGovernment sales of the same item to 

establish reasonableness of price. 

(3) If the Contractor relies on relevant sales 

data for similar items to determine the price 

is reasonable, the Contractor shall obtain 

only that technical information necessary 

to— 

(i) Support the conclusion that items are 

technically similar; and 

(ii) Explain any technical differences that 

account for variances between the proposed 

prices and the sales data presented. 

(f) Subcontracts. The Contractor shall 

insert the substance of this clause, including 

this paragraph (f), in subcontracts exceeding 

the simplified acquisition threshold defined 

in FAR part 2. The Contractor shall require 

subcontractors and prospective 

subcontractors to adhere to the requirements 

of— 

(1) Paragraphs (c) and (d) of this clause for 

subcontracts above the threshold for 

submission of certified cost or pricing data in 

DFARS 215.403–4(a)(1); and 

(2) Paragraph (d) of this clause for 

subcontracts exceeding the simplified 

acquisition threshold defined in FAR part 2. 

(End of clause) 

Alternate I. As prescribed in 215.408(5)(ii) 

and (5)(ii)(B), use the following clause, which 

includes a different paragraph (c)(1) than the 

basic clause and amends paragraph (d) by 

redesignating paragraph (d)(4) of the basic 

clause as (d)(5) and adding a new paragraph 

(d)(4). 

Requirements for Certified Cost or Pricing 

Data and Data Other Than Certified Cost or 

Pricing Data—Modifications—Alternate I 

(DATE) 

(a) Definitions. As used in this clause— 

Market prices means current prices that are 

established in the course of ordinary trade 

between buyers and sellers free to bargain 

and that can be substantiated through 

competition or from sources independent of 

the offeror, contractor, or subcontractor. 

Non-Government sales means sales of the 

supplies or services to non-Governmental 

entities for purposes other than governmental 

purposes. 

Relevant sales data means information 

provided by an offeror, contractor, or 

subcontractor on sales of the same or similar 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
79012 Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Proposed Rules 

items that can be used to establish price 

reasonableness taking into consideration the 

age, volume, and nature of the transactions 

(including any related discounts, refunds, 

rebates, offsets, or other adjustments). 

Sufficient non-Government sales means 

relevant sales data that reflects market 

pricing and contains enough information to 

make adjustments covered by Federal 

Acquisition Regulation (FAR) 15.404– 

1(b)(2)(ii)(B). 

Uncertified cost data means the subset of 

‘‘data other than certified cost or pricing 

data’’ (see FAR 2.101) that relates to cost. 

(b) Exceptions from certified cost or pricing 

data. 

(1) In lieu of submitting certified cost or 

pricing data for modifications under this 

contract, for price adjustments expected to 

exceed the threshold set forth in Defense 

Federal Acquisition Regulation Supplement 

(DFARS) 215.403–4(a)(1), the Contractor may 

submit a written request for exception by 

submitting the information described in 

paragraphs (b)(1)(i) and (ii) of this clause. 

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) Exception for prices set by law or 

regulation—Identification of the law or 

regulation establishing the prices offered. If 

the price is controlled under law by periodic 

rulings, reviews, or similar actions of a 

governmental body, provide a copy of the 

controlling document, unless it was 

previously submitted to the contracting 

office. 

(ii) Commercial product and commercial 

service exception. For a commercial product 

or commercial service exception, the 

Contractor shall submit, at a minimum, 

information that is adequate for evaluating 

the reasonableness of the price for this 

modification, including prices at which the 

same or similar products or services have 

been sold in the commercial market. The 

Contractor may provide information 

establishing that the proposed modification 

would not change the existing contract or 

subcontract from a contract or subcontract for 

a commercial product or commercial service 

to one for other than a commercial product 

or service. Such information shall include— 

(A) For products or services previously 

determined to be commercial, the contract 

number and military department, defense 

agency, or other DoD component that 

rendered such determination and, if 

available, a Government point of contact; 

(B) For products or services priced based 

on a catalog— 

(1) A copy of or identification of the 

Contractor’s current catalog showing the 

price for that product or service; and 

(2) If the catalog pricing provided with this 

proposal is not supported by all relevant 

sales data, a detailed description of 

differences or inconsistencies between or 

among the relevant sales data, the proposed 

price, and the catalog price, including any 

related discounts, refunds, rebates, offsets, or 

other adjustments; 

(C) For products or services priced based 

on market pricing, a description of the nature 

of the commercial market, the methodology 

used to establish a market price, and all 

relevant sales data. The description shall be 

adequate to permit DoD to verify the 

accuracy of the description; 

(D) For products or services included on an 

active Federal Supply Service Multiple 

Award Schedule contract, proof that an 

exception has been granted for the schedule 

products or services; or 

(E) For products or services provided by 

nontraditional defense contractors, a 

statement that the entity is not currently 

performing and has not performed, for at 

least the 1-year period preceding the 

solicitation of sources by DoD for the 

procurement, any contract or subcontract for 

DoD that is subject to full coverage under the 

cost accounting standards prescribed 

pursuant to 41 U.S.C. 1502 and the 

regulations implementing such section. 

(2) The Contractor 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 clause, and to 

determine the reasonableness of price. 

(c) Requirements for certified cost or 

pricing data. If the Contractor is not granted 

an exception from the requirement to submit 

certified cost or pricing data, the following 

applies: 

(1) The Contractor shall submit certified 

cost or pricing data and supporting 

attachments in the following format: 

[Contracting officer insert description of the 

data and format that are required, and 

include access to records necessary to permit 

an adequate evaluation of the proposed price 

in accordance with FAR 15.408, Table 15–2, 

Note 2. The Contracting Officer shall insert 

the description at the time of issuing the 

solicitation or specify that the format 

regularly maintained by the Contractor or 

current or prospective subcontractor in its 

business operations will be acceptable. The 

Contracting Officer may amend the 

description as the result of negotiations.] 

(2) As soon as practicable after agreement 

on price, but before award of the 

modification, the Contractor shall submit a 

Certificate of Current Cost or Pricing Data, as 

prescribed by FAR 15.406–2. 

(3) The Contractor is responsible for 

determining whether a subcontractor 

qualifies for an exception from the 

requirement for submission of certified cost 

or pricing data on the basis of adequate price 

competition in accordance with FAR 15.403– 

1(c)(1)(i). 

(d) Requirements for data other than 

certified cost or pricing data. 

(1) When certified cost or pricing data are 

not required to be submitted under this 

clause for a contract or subcontract, the 

Contractor shall submit data other than 

certified cost or pricing data to the extent 

necessary to determine the reasonableness of 

the price of the contract or subcontract when 

requested by the Contracting Officer. 

(2) Data other than certified cost or pricing 

data submitted in accordance with this 

clause shall include the minimum 

information necessary to permit a 

determination that the proposed price is fair 

and reasonable, to include the requirements 

in DFARS 215.402(a)(i) and 215.404–1(b). 

(3) In cases in which uncertified cost data 

is required, the information shall be provided 

in the form in which it is regularly 

maintained by the Contractor, subcontractor, 

or prospective subcontractor in its business 

operations. 

(4) The Contractor shall provide 

information described as follows: [Insert 

description of the data and the format that 

are required upon request, including access 

to records necessary to permit an adequate 

evaluation of the proposed price in 

accordance with FAR 15.403–3]. 

(5) Within 10 days of a written request 

from the Contracting Officer for additional 

information to permit an adequate evaluation 

of the proposed price in accordance with this 

paragraph, the Contractor shall provide either 

the requested information or a written 

explanation for the inability to fully comply. 

(e) Subcontract price evaluation. 

(1) The Contractor shall obtain from 

subcontractors the information necessary to 

support a determination of price 

reasonableness, as described in FAR part 15 

and DFARS part 215. 

(2) No cost data may be required from a 

current or prospective subcontractor in any 

case in which there are sufficient nonGovernment sales of the same item to 

establish reasonableness of price. 

(3) If the Contractor relies on relevant sales 

data for similar items to determine the price 

is reasonable, the Contractor shall obtain 

only that technical information necessary 

to— 

(i) Support the conclusion that items are 

technically similar; and 

(ii) Explain any technical differences that 

account for variances between the proposed 

prices and the sales data presented. 

(f) Subcontracts. The Contractor shall 

insert the substance of this clause, including 

this paragraph (f), in subcontracts exceeding 

the simplified acquisition threshold defined 

in FAR part 2. The Contractor shall require 

subcontractors and prospective 

subcontractors to adhere to the requirements 

of— 

(1) Paragraphs (c) and (d) of this clause for 

subcontracts above the threshold for 

submission of certified cost or pricing data in 

DFARS 215.403–4(a)(1); and 

(2) Paragraph (d) of this clause for 

subcontracts exceeding the simplified 

acquisition threshold defined in FAR part 2. 

(End of clause) 

■ 11. Add sections 252.215–70TT, 

252.215–70UU, 252.215–70VV, and 

252.215–70WW to read as follows: 

* * * * * 

Sec. 

252.215–70TT Alternate A, Price Reduction 

for Defective Certified Cost or Pricing 

Data—Modifications. 

252.215–70UU Alternate A, Subcontractor 

Certified Cost or Pricing Data. 

252.215–70VV Alternate A, Subcontractor 

Certified Cost or Pricing Data— 

Modifications. 

252.215–70WW Alternate A, Requirements 

for Certified Cost or Pricing Data and 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Proposed Rules 79013 

Data Other Than Certified Cost or Pricing 

Data—Modifications. 

* * * * * 

252.215–70TT Alternate A, Price Reduction 

for Defective Certified Cost or Pricing 

Data—Modifications. 

As prescribed in 215.408(9)(i), use the 

following clause: 

Alternate A, Price Reduction for 

Defective Certified Cost or Pricing 

Data—Modifications (DATE) 

Substitute ‘‘215.403–4(a)(1) of the Defense 

Federal Acquisition Regulation Supplement’’ 

for references to 15.403–4(a)(1) of the Federal 

Acquisition Regulation wherever they appear 

in the clause at 52.215–11, Price Reduction 

for Defective Certified Cost or Pricing Data— 

Modifications. 

(End of clause) 

252.215–70UU Alternate A, Subcontractor 

Certified Cost or Pricing Data. 

As prescribed in 215.408(9)(ii), use 

the following clause: 

Alternate A, Subcontractor Certified 

Cost or Pricing Data (DATE) 

Substitute ‘‘215.403–4(a)(1) of the Defense 

Federal Acquisition Regulation Supplement’’ 

for references to 15.403–4(a)(1) of the Federal 

Acquisition Regulation wherever they appear 

in the clause at 52.215–12, Subcontractor 

Certified Cost or Pricing Data. 

(End of clause) 

252.215–70VV Alternate A, Subcontractor 

Certified Cost or Pricing Data— 

Modifications. 

As prescribed in 215.408(9)(iii), use 

the following clause: 

Alternate A, Subcontractor Certified 

Cost or Pricing Data—Modifications 

(DATE) 

Substitute ‘‘215.403–4(a)(1) of the Defense 

Federal Acquisition Regulation Supplement’’ 

for references to 15.403–4(a)(1) of the Federal 

Acquisition Regulation wherever they appear 

in the clause at 52.215–13, Subcontractor 

Certified Cost or Pricing Data— 

Modifications. 

(End of clause) 

252.215–70WW Alternate A, Requirements 

for Certified Cost or Pricing Data and Data 

Other Than Certified Cost or Pricing Data— 

Modifications. 

As prescribed in 215.408(9)(iv), use 

the following clause: 

Alternate A, Requirements for Certified 

Cost or Pricing Data and Data Other 

Than Certified Cost or Pricing Data— 

Modifications (DATE) 

Substitute ‘‘215.403–4(a)(1) of the Defense 

Federal Acquisition Regulation Supplement’’ 

for references to 15.403–4(a)(1) of the Federal 

Acquisition Regulation wherever they appear 

in the clause at 52.215–21, Requirements for 

Certified Cost or Pricing Data and Data Other 

Than Certified Cost or Pricing Data— 

Modifications. 

(End of clause) 

[FR Doc. 2024–21098 Filed 9–25–24; 8:45 am] 

BILLING CODE 6820–FR–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 209, 212, 237, and 252 

[Docket DARS–2024–0029] 

RIN 0750–AM04 

Defense Federal Acquisition 

Regulation Supplement: Preventing 

Conflicts of Interest for Certain 

Consulting Services (DFARS Case 

2024–D007) 

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 

implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2024 that prohibits contracting 

officers from awarding contracts 

assigned certain North American 

Industry Classification System codes to 

offerors that hold contracts that involve 

consulting services with certain covered 

foreign entities. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

November 25, 2024, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2024–D007, 

using either of the following methods: 

Æ Federal eRulemaking Portal: 

https://www.regulations.gov. Search for 

DFARS Case 2024–D007. Select 

‘‘Comment’’ and follow the instructions 

to submit a comment. Please include 

‘‘DFARS Case 2024–D007’’ on any 

attached documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2024–D007 in the subject 

line of the message. 

Comments received generally will be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check https://

www.regulations.gov, approximately 

two to three days after submission to 

verify posting. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jon Snyder, telephone 703–945–5341. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

to implement section 812 of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2024 (Pub. 

L. 118–31). Section 812 prohibits 

contracting officers from awarding 

contracts assigned a North American 

Industry Classification System (NAICS) 

code beginning with 5416 to offerors 

who hold contracts that involve 

consulting services with certain covered 

foreign entities. NAICS codes beginning 

with 5416 are for management, 

scientific, and technical consulting 

services. Section 812 allows an offeror 

to submit a conflict-of-interest 

mitigation plan and allows the 

prohibition to be waived under certain 

circumstances. 

II. Discussion and Analysis 

This proposed rule includes a new 

section 209.57X, Conflicts of Interest in 

Certain Consulting Services, to 

implement section 812 of the NDAA for 

FY 2024. This new section 209.57X 

provides contracting officers the scope, 

definitions, prohibition, and waiver 

procedures for conflicts of interest in 

consulting services. DFARS 209.57X(c) 

prohibits contracting officers from 

awarding contracts assigned a NAICS 

code beginning with 5416 to an offeror 

that holds a contract for consulting 

services with one or more covered 

foreign entities if the offeror does not 

have an approved conflict-of-interest 

mitigation plan. DFARS 209.57X(b) 

contains the definitions of ‘‘consulting 

services’’, ‘‘contract oversight entity’’, 

‘‘covered contract’’, and ‘‘covered 

foreign entity’’. The proposed rule also 

includes DFARS 209.503–70, which 

specifies the waiver authority for the 

prohibition at 209.57X(c). 

A new solicitation provision is 

proposed at DFARS 252.209–70XX, 

Prohibition Relating to Conflicts of 

Interest in Consulting Services— 

Certification, for use in solicitations 

assigned a NAICS code beginning with 

5416 that involve consulting services, 

including solicitations using Federal 

Acquisition Regulation (FAR) part 12 

procedures for the acquisition of 

commercial services. DFARS 252.209– 

70XX requires an offeror to certify 

whether or not the offeror, its 

subsidiaries, or its affiliates hold a 

contract for consulting services with one 

or more covered foreign entities. If the 

offeror cannot certify to this, the offeror 

may contact the contracting officer for 

guidance on submitting an existing 


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