[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Rules and Regulations]
[Pages 11826-11827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5869]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 15

[FAC 2005-31; FAR Case 2008-012; Item II; Docket 2008-0001, Sequence 
10]
RIN 9000-AL12


Federal Acquisition Regulation; FAR Case 2008-012, Clarification 
of Submission of Cost or Pricing Data on Non-Commercial Modifications 
of Commercial Items

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

ACTION: Interim rule with request for comments.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on an interim 
rule amending the Federal Acquisition Regulation (FAR) to implement 
Section 814 of the National Defense Authorization Act for Fiscal Year 
2008. Section 814 required the harmonization of the thresholds for cost 
or pricing data. Specifically, Section 814 required alignment of the 
threshold for cost or pricing data on non-commercial modifications of 
commercial items with the Truth In Negotiation Act (TINA) threshold for 
cost and pricing data.

DATES: Effective Date: March 19, 2009.
    Comment Date: Interested parties should submit written comments to 
the FAR Secretariat on or before May 18, 2009 to be considered in the 
formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-31, FAR case 2008-
012, by any of the following methods:
    <bullet> Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``FAR Case 2008-012'' under the heading ``Comment or Submission''. 
Select the link ``Send a Comment or Submission'' that corresponds with 
FAR Case 2008-012. Follow the instructions provided to complete the 
``Public Comment and Submission Form''. Please include your name, 
company name (if any), and ``FAR Case 2008-012'' on your attached 
document.
    <bullet> Fax: 202-501-4067.
    <bullet> Mail: General Services Administration, Regulatory 
Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Hada Flowers, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-31, FAR 
case 2008-012, 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. Edward N. Chambers, Procurement 
Analyst, at (202) 501-3221 for clarification of content. Please cite 
FAC 2005-31, FAR case 2008-012. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION:

A. Background

    The National Defense Authorization Act (NDAA) for Fiscal Year 2008, 
Section 814, implemented two areas of clarification with regards to the 
submission of cost or pricing data on non-commercial modifications of 
commercial items. The first area dealt with clarifying at what point 
during the life of the contract that the cost or pricing data threshold 
should be applied. Section 814 of the NDAA for FY 2008 clarified this 
point by inserting ``(at the time of contract award'') after ``total 
price of the contract'' language already contained in this FAR section. 
The second area dealt with the harmonization of the thresholds for cost 
or pricing data. Section 814 of the NDAA for FY 2008 deleted the 
current threshold amount ($500,000) for cost or pricing data relative 
to non-commercial modifications of commercial items and aligned this 
threshold with the current Truth In Negotiation Act (TINA) threshold 
for cost or pricing data of $650,000. Thus, as the TINA threshold for 
cost or pricing data is adjusted in the future so will the threshold 
for obtaining cost or pricing data on non-commercial modifications of 
commercial items. This case will make the necessary changes within the 
FAR.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The interim rule is not expected to have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., since it is 
harmonizing this FAR section with other parts of the FAR and should 
actually reduce the administrative burden on contractors by not 
requiring them to track two separate dollar thresholds for submitting 
cost or pricing data. It is also increasing this dollar threshold 
relative to the submittal of cost or pricing data in this situation and 
thus contractors will experience a reduced administrative burden since 
they no longer will be required to submit cost or pricing data on this 
lower threshold amount. Therefore, an Initial Regulatory Flexibility 
Analysis has not been performed. The Councils will consider comments 
from small entities concerning the affected FAR Part 15 in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 601, et seq. (FAC 2005-31, FAR case 
2008-012), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
Chapter 35, et seq.

D. Determination to Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because this provision of the National Defense 
Authorization Act for Fiscal Year 2008, Section 814 went into effect 
upon enactment, on January 28, 2008. However, pursuant to Pub. L. 98-
577 and FAR 1.501, the Councils will consider public comments received 
in response to this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Part 15

    Government procurement.


[[Page 11827]]


    Dated: March 13, 2009.
Al Matera,
Director, Office of Acquisition Policy.

0
Therefore, DoD, GSA, and NASA 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 42 
U.S.C. 2473(c).

0
2. Amend section 15.403-1 by revising paragraphs (c)(3)(ii)(B) and 
(c)(3)(ii)(C) to read as follows:


15.403-1  Prohibition on obtaining cost or pricing data (10 U.S.C. 
2306a and 41 U.S.C. 254b).

* * * * *
    (c) * * *
    (3) * * *
    (ii) * * *
    (B) For acquisitions funded by DoD, NASA, or Coast Guard, such 
modifications of a commercial item are exempt from the requirement for 
submission of cost or pricing data provided the total price of all such 
modifications under a particular contract action does not exceed the 
greater of the threshold for obtaining cost and pricing data in 15.403-
4 or 5 percent of the total price of the contract at the time of 
contract award.
    (C) For acquisitions funded by DoD, NASA, or Coast Guard such 
modifications of a commercial item are not exempt from the requirement 
for submission of cost or pricing data on the basis of the exemption 
provided for at FAR 15.403-1(c)(3) if the total price of all such 
modifications under a particular contract action exceeds the greater of 
the threshold for obtaining cost and pricing data in 15.403-4 or 5 
percent of the total price of the contract at the time of contract 
award.
* * * * *
[FR Doc. E9-5869 Filed 3-18-09; 8:45 am]
BILLING CODE 6820-EP-S