Defense Federal Acquisition Regulation Supplement: DoD Cost or Pricing Data Requirements (DFARS Case 2022-D004)

DEPARTMENT OF DEFENSE <SUBAGY>Defense Acquisition Regulations System</SUBAGY> <CFR>48 CFR Parts 212, 214, 215, and 252</CFR> <DEPDOC>[Docket DARS-2024-0028]</DEPDOC> <RIN>RIN 0750-AL55</RIN> <SUBJECT>Defense Federal Acquisition Regulation Supplement: DoD Cost or Pricing Data Requirements (DFARS Case 2022-D004)</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Defense Acquisition Regulations System, Department of Defense (DoD). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> 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. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit comments identified by DFARS Case 2022-D004, using either of the following methods: ○ <E T="03">Federal eRulemaking Portal: https://www.regulations.gov.</E> 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. ○ <E T="03">Email: osd.dfars@mail.mil.</E> Include DFARS Case 2022-D004 in the subject line of the message. Comments received will generally be posted without change to <E T="03">https://www.regulations.gov,</E> including any personal information provided. To confirm receipt of your comment(s), please check <E T="03">https://www.regulations.gov,</E> approximately two to three days after submission to verify posting. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Jon Snyder, telephone 703-945-5341. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> 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 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. <HD SOURCE="HD1">II. Discussion and Analysis</HD> 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. <HD SOURCE="HD1">III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Services and Commercial Products, Including Commercially Available Off-the-Shelf (COTS) Items</HD> 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 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, Alt ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 60k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━