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How can I find an old version of the FAR from 1989?

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FAR 15.804-3 was deleted from the FAR a long time ago.  It no longer exists.  I need to find it to see what it said as of 1989.  I think it was added in Federal Acquisition Circular (FAC) 84-35.  I looked at the list of FACs on Wifcon, and the list only goes back as far as 1997, when the 1997 "FAR Rewrite" happened.  Is there any other archive I can check?

 

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48 C.F.R. 15.804-3 (1990)

CODE OF FEDERAL REGULATIONS

TITLE 48—Federal Acquisition Regulations System

CHAPTER 1—FEDERAL ACQUISITION REGULATION

SUBCHAPTER C—Contracting Methods and Contract Types

PART 15—CONTRACTING BY NEGOTIATION

SUBPART 15.8—PRICE NEGOTIATION

15.804 Cost or pricing data.

15.804-3 Exemptions from or waiver of submission of certified cost or pricing data.

(a) General. Except as provided in paragraphs (b) and (c) below, the contracting officer shall not require submission or

certification of cost or pricing data when the contracting officer determines that prices are—

(1) Based on adequate price competition (see paragraph (b) below);

(2) Based on established catalog or market prices of commercial items sold in substantial quantities to the general public

(see paragraph (c) below); or

(3) Set by law or regulation (see paragraph (d) below).

(b) Adequate price competition. (1) Price competition exists if—

(i) Offers are solicited;

(ii) Two or more responsible offerors that can satisfy the Government's requirements submit priced offers responsive

to the solicitation's expressed requirements; and

(iii) These offerors compete independently for a contract to be awarded to the responsible offeror submitting the lowest

evaluated price.

(2) If price competition exists, the contracting officer shall presume that it is adequate unless—

(i) The solicitation is made under conditions that unreasonably deny to one or more known and qualified offerors an

opportunity to compete;

(ii) The low offeror has such a decided advantage that it is practically immune from competition; or

(iii) There is a finding, supported by a statement of the facts and approved at a level above the contracting officer, that

the lowest price is unreasonable.

(3) A price is “based on” adequate price competition if it results directly from price competition or if price analysis

alone clearly demonstrates that the proposed price is reasonable in comparison with current or recent prices for the same

or substantially the same items purchased in comparable quantities, terms, and conditions under contracts that resulted

from adequate price competition.

(c) Established catalog or market prices. A proposal is exempt from the requirement for submission of certified cost

or pricing data if the prices are, or are based on, established catalog or established market prices of commercial items

sold in substantial quantities to the general public. In order to qualify for this exemption, the terms of the proposed

purchase, such as quantity and delivery requirements, should be sufficiently similar to those of the commercial sales that

the catalog or market price will be fair and reasonable.

(1) “Established catalog prices” must be recorded in a form regularly maintained by the manufacturer or vendor. This

form may be a catalog, price list, schedule, or other verifiable and established record. The record must (i) be published

or otherwise available for customer inspection and (ii) state current or last sales price to a significant number of buyers

constituting the general public (see subparagraph (5) below).

(2) “Established market prices” are current prices that (i) are established in the course of ordinary and usual trade

between buyers and sellers free to bargain and (ii) can be substantiated by data from sources independent of the

manufacturer or vendor.

(3) “Commercial items” are supplies or services regularly used for other than Government purposes and sold or traded

to the general public in the course of normal business operations.

(4) An item is “sold in substantial quantities” only when the quantities regularly sold are sufficient to constitute a real

commercial market. Nominal quantities, such as models, samples, prototypes, or experimental units, do not meet this

requirement. For services to be sold in substantial quantities, they must be customarily provided by the offeror, using

personnel regularly employed and equipment (if any is necessary) regularly maintained solely or principally to provide

the services.

(5) The “general public” is a significant number of buyers other than the Government or affiliates of the offeror; the

item involved must not be for Government end use. For the purpose of this subsection 15.804-3, items acquired for

“Government end use” include items acquired for foreign military sales.

(6) A price is “based on” a catalog or market price only if the item being purchased is sufficiently similar to the catalogor

market-priced commercial item to ensure that any difference in prices can be identified and justified without resort

to cost analysis.

(7) If an item is substantially similar to a commercial item for which there is an established catalog or market price at

which substantial quantities are sold to the general public, but the price proposed is not based on this catalog or market

price (see subparagraph (6) above), the contracting officer may, if doing so will result in a fair and reasonable price,

limit any requirement for cost or pricing data to those data that pertain to the differences between the items. When the

difference between the catalog or market price of an item or items and the proposed total contract price is $100,000

or more, the contracting officer shall require submission of certified cost or pricing data to identify and justify that

difference unless an exemption or waiver is granted.

(8) Even though there is an established catalog or market price of commercial items sold in substantial quantities to the

general public, the contracting officer may require cost or pricing data if (i) the contracting officer makes a written finding

that the price is not reasonable, including the facts upon which the finding is based, and (ii) the finding is approved at

a level above the contracting officer.

(d) Prices set by law or regulation. A price set by law or regulation is exempt from the requirement for submission

of certified cost or pricing data. Pronouncements in the form of periodic rulings, reviews, or similar actions of a

governmental body, or embodied in the laws, are sufficient to establish the price.

(e) Claiming and granting exemption. To receive an exemption under paragraph (c) or (d) above, the offeror must

ordinarily claim it on Standard Form 1412, Claim for Exemption from Submission of Certified Cost or Pricing Data,

when the total proposed amount exceeds $100,000 and more than one catalog item for which an exemption is claimed

exceeds $25,000. When an exemption is claimed for more than one item in a proposal, a separate SF 1412 is required for

each such item exceeding $25,000 except as otherwise provided in the solicitation. The contracting officer may grant an

exemption and need not require the submission of SF 1412 when—

(1) The Government has acted favorably on an exemption claim for the same item or similar items within the past year.

In that case, except as otherwise directed by the contracting officer, the offeror may furnish a copy of the prior claim and

related Government action. The offeror must also submit a statement to the effect that to its knowledge since the prior

submission, except as expressly set forth in the statement, there have been no changes in the catalog price or discounts,

volume of actual sales, or the ratio of sales for Government end use to sales in other categories which would cause a

cumulative change in price exceeding $25,000;

(2) Special arrangements for the submission of exemption claims have been made in anticipation of repetitive

acquisitions of catalog items; or

(3) There is evidence, before solicitation, that the item has an acceptable established catalog or market price or a price set

by law or regulation. Evidence may include (i) recent submissions by offerors or (ii) the contracting officer's knowledge

of market conditions, prevailing prices, or sources.

(f) Verification. (1) When a prospective contractor requests exemption from submission of certified cost or pricing

data, the contracting officer shall ensure that applicable criteria in either paragraph (c) or (d) above, as appropriate, are

satisfied before issuing the exemption.

(2) SF 1412 lists three categories of sales related to the established catalog price of a commercial item sold in substantial

quantities to the general public: A, Sales to the U.S. Government or to contractors for U.S. Government use; B, Sales at

catalog price to the general public; and C, Sales to the general public at other than catalog price. Although “substantial

quantities” cannot be precisely defined (see subparagraph (c)(4) above), the following guidelines are provided for

determining whether exemption claims submitted under the catalog price provision of SF 1412 meet the “substantial

quantities” criterion:

(i) Sales to the general public are normally regarded as substantial if (A) Category B and C sales are not negligible

in themselves and comprise at least 55 percent of total sales of the item and (B) Category B sales comprise at least 75

percent of the total of Category B and C sales.

(ii) Sales to the general public are rarely considered substantial enough to grant an exemption if (A) Category B and

C sales comprise less than 35 percent of total sales of the item or (B) Category B sales comprise less than 55 percent of

the total of Category B and C sales.

(iii) When percentages fall between those above, the contracting officer should analyze the individual situation in order

to determine whether or not an exemption is justified.

(3) The contracting officer may verify or obtain verification (including audit or contract administration assistance) of

the submitted data pertaining to catalog or market prices or prices set by law or regulation. Access to the prospective

contractor's records is limited to access to the facts bearing directly on the exemption claimed. It does not extend to cost,

profit, or other data relevant solely to the reasonableness of the catalog or proposed price.

(g) Individual or class exemptions. The chief of the contracting office may authorize individual or class exemptions for

exceptional cases when the contracting officer recommends that an exemption should be made, even though the case does

not strictly meet all the criteria for catalog- or market-price exemption. The quantity and prices of actual commercial

sales compared with prices offered to the Government, and price relationships as influenced by prevailing trade practices,

are the important factors for consideration. The Government's need and the prospective contractor's resistance are not

appropriate considerations.

(h) Price analysis. Even though an item qualifies for exemption from the requirement for submission of certified cost

or pricing data, the contracting officer shall make a price analysis to determine the reasonableness of the price and any

need for further negotiation. Unless information is available from Government sources, it may be necessary to obtain

from the prospective contractor information such as that regarding—

(1) The supplier's marketing system (e.g., use of jobbers, brokers, sales agencies, or distributors);

(2) The services normally provided commercial purchasers (e.g., engineering, financing, or advertising or promotion);

(3) Normal quantity per order; and

(4) Annual volume of sales to largest customers.

(i) Waiver for exceptional cases. The agency head (or, if the contract is with a foreign government or agency, the head of

the contracting activity) may, in exceptional cases, waive the requirement for submission of certified cost or pricing data.

The authorization for the waiver and the reasons for granting it shall be in writing. The agency head may delegate this

authority. When the agency head or designee has waived the requirement for submission of certified cost or pricing data,

the contractor or higher-tier subcontractor to whom the waiver relates shall be considered as having been required to

make available cost or pricing data for purposes of 15.804-2(a)(1)(iii). Consequently, award of any lower-tier subcontract

expected to exceed $100,000 requires the submission of certified cost or pricing data unless exempt or waived under this

subsection 15.804-3.

[50 FR 1741, Jan. 11, 1985; 51 FR 2650, Jan. 17, 1986; 53 FR 10829, April 1, 1988]

Next time, go here http://wisblawg.law.wisc.edu/2006/11/historical-cfr-now-available-on-heinonline/

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