[Federal Register: March 19, 2009 (Volume 74, Number 52)]
[Rules and Regulations]
[Page 11826-11827]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr09-18]
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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:
Regulations.gov: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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.
Fax: 202-501-4067.
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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&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]
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