[Federal Register: March 16, 2011 (Volume 76, Number 51)]
[Rules and Regulations]
[Page 14568-14569]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16mr11-19]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 15
[FAC 2005-50; FAR Case 2008-034; Item VI; Docket 2009-0035, Sequence 1]
RIN 9000-AL44
Federal Acquisition Regulation; Use of Commercial Services Item
Authority
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: DoD, GSA, and NASA have adopted as final, without change, an
interim rule amending the Federal Acquisition Regulation (FAR) to
implement section 868 of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009. Section 868 provides that the
FAR shall be amended with respect to the procurement of commercial
services, specifically services that are not offered and sold
competitively in substantial quantities in the commercial marketplace,
but are of a type offered and sold competitively in substantial
quantities in the commercial marketplace. These services may be
considered commercial items only if the contracting officer has
determined in writing that the offeror has submitted sufficient
information to evaluate, through price analysis, the reasonableness of
the price for such services. The rule details the information the
contracting officer may consider in order to make this determination.
DATES: Effective Date: March 16, 2011.
FOR FURTHER INFORMATION CONTACT: Mr. Edward N. Chambers, Procurement
Analyst, at (202) 501-3221 for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-50, FAR
Case 2008-034.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 74 FR 52852 on October 14, 2009, to implement section 868
of the Duncan Hunter National Defense Authorization Act for Fiscal Year
2009. The comment period closed on December 14, 2009.
[[Page 14569]]
Four respondents submitted comments on the interim rule.
II. Discussion/Analysis
The analysis of public comments by the Defense Acquisition
Regulations Council and the Civilian Agency Acquisition Council (the
Councils) follows:
A. Agree With the Rule
Comment: One respondent agreed with the interim rule. The
respondent believes including ``services of a type'' provides the
Government with flexibility to access a wide variety of services with
beneficial contracting methods.
Response: The Councils acknowledge the respondent's agreement with
the interim rule.
B. ``Services of a Type''
Comment: One respondent suggests adding a definition for ``services
of a type'' and/or providing examples of ``services of a type.''
Response: The Councils do not agree that definitions or examples
are necessary to implement this case. The FAR definition of a
``commercial item'' adequately addresses what is and is not a
commercial item. The contracting officer's determination that a service
is considered a ``service of a type'' is a determination made based on
the circumstances surrounding a particular acquisition and is made on a
case-by-case basis.
C. Sold in the Commercial Marketplace
Comment: One respondent also suggests qualifying the two references
to the ``commercial marketplace'' in FAR 15.403-1(c)(3)(ii)(A) as
follows. The first reference would be followed by ``by the offeror,''
while the second reference would be followed by ``by others than the
offeror.''
Response: The respondent's suggested language changes go beyond the
statute.
D. Establishing Price Reasonableness
1. Determination that the offeror has submitted sufficient
information (15.403-1(c)(3)(ii)(A)).
Comment: One respondent suggests that requiring a contracting
officer determination that the offeror has submitted sufficient
information to evaluate the reasonableness of the offered price will
increase the contracting officer's workload, may result in lengthy and
unnecessary delays, and could reduce competition.
Response: The determination is required by statute.
2. Other relevant information (15.403-1(c)(3)(ii)(C)).
Comment: One respondent believes that if a service is ``of a type''
sold in the commercial market place, but price reasonableness cannot be
established, then that service would not benefit from the Truth in
Negotiations Act exception for commercial items, and that such an
outcome would cause tremendous confusion among contracting officers and
potential offerors of commercial items.
Response: If price reasonableness cannot be determined based on
prices for similar commercial services, the services ``of a type''
cannot be determined to be commercial items (see 15.403-
1(c)(3)(ii)(A)). In that case, the contracting officer would need to
determine price reasonableness by requesting relevant cost or pricing
data from the contractor.
Comment: One respondent suggests that the requirement to provide
cost information other than cost or pricing data could prove difficult
for industry vendors, which may diminish the field of vendors.
Response: Current FAR 15.402 policy requires that the contracting
officer determine price reasonableness. This cost information can come
in many forms (sales data, vendor quotations, historical data, etc.)
and is usually on hand for a contractor. Consequently, providing this
cost information will not present a burden sufficient to discourage
industry vendors from seeking Government contracts.
Comment: One respondent believes that if the contracting officer
can request cost data, this additional work could result in significant
delays in contract award, contract delivery schedule problems and
higher prices.
Response: The Councils acknowledge the respondent's concern;
however, the contracting officer is required to request appropriate
cost or pricing data sufficient to determine price reasonableness.
E. Location of Coverage
Comment: One respondent suggested that this FAR change should be in
FAR 15.403-3 in lieu of 15.403-1.
Response: The Councils believe the language belongs in FAR 15.403-
1, since it is more closely aligned with the prohibition on obtaining
cost or pricing data than the FAR section requiring information other
than cost or pricing data. It is noted that these two sections
complement each other and are often used congruently.
III. Executive Order 12866
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.
IV. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 the rule does not
impose any additional requirements on small businesses. This rule
impacts the Government by requiring a new written determination by the
contracting officer. The rule details the information the contracting
officer may consider in order to make this determination. In addition,
since the current FAR 15.403-3(a)(1) provides for contracting officers
to obtain the relevant information necessary to determine price
reasonableness, this final rule places no additional requirements on
contractors.
V. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply;
however these changes to the FAR do not impose additional information
collection requirements to the paperwork burden previously approved
under OMB Control Number 9000-0013, titled: Cost or Pricing Data
Exemption.
List of Subjects in 48 CFR Part 15
Government procurement.
Dated: March 4, 2011.
Millisa Gary,
Acting Director, Office of Governmentwide Acquisition Policy.
Interim Rule Adopted as Final Without Change
0
Accordingly, the interim rule amending 48 CFR part 15, which was
published in the Federal Register at 74 FR 52852 on October 14, 2009,
is adopted as a final rule without change.
[FR Doc. 2011-5557 Filed 3-15-11; 8:45 am]
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