48368 Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Proposed Rules 

will apply to contracts or groups of 

contracts for military construction, as 

defined in 10 U.S.C. 2801, or 

shipbuilding, while the 7-year standard 

will apply to all other contracts. 

The objective of the rule is to 

implement the requirements of section 

820, which expands the application of 

the expedited contract closeout 

authority of section 836 of the NDAA for 

FY 2017 to more recent, physically 

complete contracts. The legal basis of 

the rule is section 820 of the NDAA for 

FY 2021. 

This rule will likely affect small 

entities that have been or will be 

awarded DoD contracts, including those 

under FAR part 12 procedures for the 

acquisition of commercial items, 

including commercially available offthe-shelf items. Data was obtained from 

the Electronic Data Access module of 

the Procurement Integrated Enterprise 

Environment for contracts that were 

physically completed at least four years 

ago and are eligible for closeout between 

the new standard of 7 or 10 years and 

the previous standard of at least 17 

fiscal years after award. The data were 

then compared to the Federal 

Procurement Data System (FPDS) to 

estimate the number of contracts 

awarded to small entities. Contracts 

subject to the previous standard of 17 

years are included in this estimate. 

As of April 2021, the FPDS data 

indicate that approximately 29,200 

contracts, eligible for expedited closeout 

under the 7-year standard, were 

awarded to an estimated 4,490 unique 

small entities. An additional estimated 

1,775 contracts, subject to the 10-year 

standard, were awarded to 

approximately 576 small entities. As a 

result, DoD estimates that 

approximately 5,066 small entities will 

have the opportunity to benefit from the 

expanded expedited contract authorities 

provided in this rule. 

The rule does not impose any new 

reporting, recordkeeping, or compliance 

requirements. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

There are no practical alternatives 

that will accomplish the objectives of 

the statute. 

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 the 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 2021–D012), in 

correspondence. 

VIII. Paperwork Reduction Act 

This rule does not contain any 

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). 

List of Subjects in 48 CFR Part 204 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, 48 CFR part 204 is 

proposed to be amended as follows: 

PART 204—ADMINISTRATIVE AND 

INFORMATION MATTERS 

■ 1. The authority citation for 48 CFR 

part 204 continues to read as follows: 

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

chapter 1. 

■ 2. Amend section 204.804 by revising 

paragraph (3)(i) to read as follows: 

§ 204.804 Closeout of contract files. 

* * * * * 

(3)(i) In accordance with section 836 

of the National Defense Authorization 

Act for Fiscal Year 2017 (Pub. L. 114– 

328), section 824 of the National 

Defense Authorization Act for Fiscal 

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

820 of the National Defense 

Authorization Act for Fiscal Year 2021 

(Pub. L. 116–283), contracting officers 

may close out contracts or groups of 

contracts through issuance of one or 

more modifications to such contracts 

without completing a reconciliation 

audit or other corrective action in 

accordance with FAR 4.804–5(a)(3) 

through (15), as appropriate, if each 

contract— 

(A)(1) For military construction (as 

defined at 10 U.S.C. 2801) or 

shipbuilding, was awarded at least 10 

fiscal years before the current fiscal 

year; or 

(2) For all other contracts, was 

awarded at least 7 fiscal years before the 

current fiscal year; 

(B) The performance or delivery was 

completed at least 4 years prior to the 

current fiscal year; and 

(C) Has been determined by a 

contracting official, at least one level 

above the contracting officer, to be not 

otherwise reconcilable, because— 

(1) The contract or related payment 

records have been destroyed or lost; or 

(2) Although contract or related 

payment records are available, the time 

or effort required to establish the exact 

amount owed to the U.S. Government or 

amount owed to the contractor is 

disproportionate to the amount at issue. 

* * * * * 

[FR Doc. 2021–18341 Filed 8–27–21; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 215 and 242 

[Docket DARS–2021–0015] 

RIN 0750–AK95 

Defense Federal Acquisition 

Regulation Supplement: Requiring 

Data Other Than Certified Cost or 

Pricing Data (DFARS Case 2020–D008) 

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 2020 that provides additional 

requirements relating to the submission 

of data other than certified cost or 

pricing data. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

October 29, 2021, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2020–D008, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

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

‘‘DFARS Case 2020–D008.’’ Select 

‘‘Comment’’ and follow the instructions 

to submit a comment. Please include 

your name, company name (if any), and 

‘‘DFARS Case 2020–D008’’ on any 

attached document. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2020–D008 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. 

David E. Johnson, telephone 571–372– 

6115. 

SUPPLEMENTARY INFORMATION: 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Proposed Rules 48369 

I. Background 

DoD is proposing to amend the 

DFARS to implement section 803 of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2020 (Pub. 

L. 116–92), which amends 10 U.S.C. 

2306a(d) as follows: To prohibit 

contracting officers from determining 

that the price of a contract or 

subcontract is fair and reasonable based 

solely on historical prices paid by the 

Government; and, when an offeror fails 

to make a good faith effort to comply 

with a reasonable request to submit 

data, to state that an offeror is ineligible 

for award if the contracting officer is 

unable to determine, by any other 

means, that the proposed prices are fair 

and reasonable, unless the head of the 

contracting activity (HCA) determines 

that it is in the best interest of the 

Government to make the award to that 

offeror. 

II. Discussion and Analysis 

This rule proposes changes to DFARS 

215.403–3(a). The amendment to 10 

U.S.C. 2306a(d)(1) is implemented in 

DFARS 215.403–3(a)(1), by prohibiting 

contracting officers from basing the 

determination that the price of a 

contract is fair and reasonable solely on 

historical prices paid by the 

Government. 

The new paragraph (d)(2) at 10 U.S.C. 

2306a states that offerors who fail to 

comply with a reasonable request to 

submit data needed to determine price 

reasonableness are ineligible for award, 

unless the HCA determines that it is in 

the best interest of the Government to 

make the award. This requirement is 

already implemented in the Federal 

Acquisition Regulation (FAR) at 15.403– 

3(a)(4). However, the criteria in 10 

U.S.C. 2306a(d)(2) for the determination 

made by the HCA are included in 

DFARS 215.403–3(a)(4), in lieu of the 

criteria in the FAR, because the criteria 

for DoD are not the same as the criteria 

for the civilian agencies. 

In accordance with 10 U.S.C. 

2306a(d)(2)(B)(ii), this proposed rule 

amends DFARS 242.1502(g), to add the 

requirement that, unless exempted by 

the HCA, a notation is required in the 

Contractor Performance Assessment 

Reporting System that, despite receiving 

an award, the contractor has denied 

multiple requests for submission of data 

other than certified cost or pricing data 

over the preceding three-year period. 

This proposed amendment to the 

DFARS also makes conforming changes 

to 215.404–1. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Items, Including Commercially 

Available Off-the-Shelf (COTS) Items 

This rule does not propose to create 

any new solicitation provisions or 

contract clauses. It does not impact any 

existing solicitation provisions or 

contract clauses or their applicability to 

contracts valued at or below the 

simplified acquisition threshold or for 

commercial items, including COTS 

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. 

V. Congressional Review Act 

As required by the Congressional 

Review Act (5 U.S.C. 801–808) before an 

interim or final rule takes effect, DoD 

will submit a copy of the interim or 

final rule with the form, Submission of 

Federal Rules under the Congressional 

Review Act, to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States. A major rule under the 

Congressional Review Act cannot take 

effect until 60 days after it is published 

in the Federal Register. This rule is not 

anticipated to be a major rule under 5 

U.S.C. 804. 

VI. 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., because it does not add any new 

compliance requirements on small 

entities. However, an initial regulatory 

flexibility analysis has been performed 

and is summarized as follows: 

This proposed rule is necessary in 

order to implement section 803 of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2020, 

which amends 10 U.S.C. 2306a(d). 

The objective of this rule is to 

implement section 803 of the NDAA for 

FY 2020, which is the legal basis for this 

rule. Section 803 provides additional 

requirements for contracting officers 

and the head of the contracting activity 

relating to obtaining data other than 

certified cost or pricing data. 

This rule does not directly impose 

requirements on small entities. The 

requirement making certain offerors 

ineligible for award is already in the 

Federal Acquisition Regulation (FAR). 

This rule impacts: (1) The contracting 

officer’s need for data other than 

historical prices paid by the 

Government, unless there is adequate 

price competition; and (2) the criteria 

for use by the head of the contracting 

activity for a determination to make an 

award. In some cases, the contracting 

officer’s need for data other than 

historical prices paid by the 

Government may result in a request for 

additional data from an offeror. Based 

on data from the Federal Procurement 

Data System for FY 2018 through FY 

2020, DoD estimates that 1,672 small 

entities may receive a request for 

additional data. 

There are no new reporting, 

recordkeeping, or other compliance 

requirements on small entities. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

There are no significant alternatives, 

which would accomplish the stated 

objectives of the rule and minimize the 

impact on small entities. However, the 

rule has no significant economic impact 

on 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 2020–D008), 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). 


khammond on DSKJM1Z7X2PROD with PROPOSALS
48370 Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Proposed Rules 

List of Subjects in 48 CFR Parts 215 and 

242 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, 48 CFR parts 215 and 242 

are proposed to be amended as follows: 

■ 1. The authority citation for parts 215 

and 242 continues to read as follows: 

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

chapter 1. 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 2. Amend section 215.403–3 by 

adding paragraph (a) to read as follows: 

§ 215.403–3 Requiring data other than 

certified cost or pricing data. 

* * * * * 

(a)(1) Contracting officers shall not 

determine the price of a contract to be 

fair and reasonable based solely on 

historical prices paid by the 

Government (see PGI 215.403–3(4)) (10 

U.S.C. 2306a(d)). 

(4) In accordance with 10 U.S.C. 

2306a(d) and in lieu of the factors for 

consideration listed in FAR 15.403– 

3(a)(4), a determination by the head of 

the contracting activity that it is in the 

best interest of the Government to make 

the award to an offeror that does not 

comply with a requirement to submit 

data other than certified cost or pricing 

data shall be based on consideration of 

pertinent factors, including the 

following: 

(A) The effort to obtain the data. 

(B) Availability of other sources of 

supply of the item or service. 

(C) The urgency or criticality of the 

Government’s need for the item or 

service. 

(D) Reasonableness of the price of the 

contract, subcontract, or modification of 

the contract or subcontract based on 

information available to the contracting 

officer. 

(E) Rationale or justification made by 

the offeror for not providing the 

requested data. 

(F) Risk to the Government if award 

is not made. 

* * * * * 

■ 3. Amend section 215.404–1 by 

revising paragraphs (b)(ii) and (v) 

introductory text to read as follows: 

§ 215.404–1 Proposal analysis techniques. 

* * * * * 

(b) * * * 

(ii) If the contracting officer 

determines that the information 

obtained through market research is 

insufficient to determine the 

reasonableness of price, the contracting 

officer shall consider information 

submitted by the offeror of recent 

purchase prices paid by the Government 

and commercial customers for the same 

or similar commercial items under 

comparable terms and conditions in 

establishing price reasonableness on a 

subsequent purchase if the contracting 

officer is satisfied that the prices 

previously paid remain a valid reference 

for comparison. Price reasonableness 

shall not be based solely on historical 

prices paid by the Government (see 

215.403–3(a)(1)). The contracting officer 

shall consider the totality of other 

relevant factors such as the time elapsed 

since the prior purchase and any 

differences in the quantities purchased 

(10 U.S.C. 2306a(b)(5)). 

* * * * * 

(v) When evaluating pricing data, the 

contracting officer shall consider 

materially differing terms and 

conditions, quantities, and market and 

economic factors (see PGI 215.404– 

1(b)(v)). For similar items, the 

contracting officer shall also consider 

material differences between the similar 

item and the item being procured (see 

FAR 15.404–1(b)(2)(ii)(B)). Material 

differences are those that could 

reasonably be expected to influence the 

contracting officer’s determination of 

price reasonableness. The contracting 

officer shall consider the following 

factors when evaluating the relevance of 

the information available: 

* * * * * 

PART 242—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

■ 4. Revise section 242.1502 to read as 

follows: 

§ 242.1502 Policy. 

(g) Past performance evaluations in 

the Contractor Performance Assessment 

Reporting System— 

(i) Shall include an assessment of the 

contractor’s performance against, and 

efforts to achieve, the goals identified in 

its comprehensive small business 

subcontracting plan when the contract 

contains the clause at 252.219–7004, 

Small Business Subcontracting Plan 

(Test Program); and 

(ii) Shall, unless exempted by the 

head of the contracting activity, include 

a notation on contractors that have 

denied multiple requests for submission 

of data other than certified cost or 

pricing data over the preceding 3-year 

period, but nevertheless received an 

award (10 U.S.C. 2306a(d)(2)(B)(ii)). 

[FR Doc. 2021–18339 Filed 8–27–21; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 225 and 252 

[Docket DARS–2021–0012] 

RIN 0750–AK85 

Defense Federal Acquisition 

Regulation Supplement: Maximizing 

the Use of American-Made Goods 

(DFARS Case 2019–D045) 

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 an Executive order regarding 

maximizing the use of American-made 

goods, products, and materials. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

October 29, 2021, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2019–D045, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

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

‘‘DFARS Case 2019–D045’’ in the search 

box and select ‘‘Search.’’ Select 

‘‘Comment’’ and follow the instructions 

to submit a comment. Please include 

your name, company name (if any), and 

‘‘DFARS Case 2019–D045’’ on any 

attached document. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2019–D045 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: Ms. 

Kimberly Bass, telephone 571–372– 

6174. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to amend the 

DFARS to implement section 2(a)(i) of 

Executive Order (E.O.) 13881, 

Maximizing Use of American-Made 

Goods, Products, and Materials, which 

changes the percentages used to 

determine whether a product is 


khammond on DSKJM1Z7X2PROD with PROPOSALS