[Federal Register Volume 60, Number 201 (Wednesday, October 18, 1995)]
[Rules and Regulations]
[Pages 53878-53880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25858]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1815, 1816, 1852, and 1870
Acquisition Regulation; Cost or Pricing Data
AGENCY: Office of Procurement, National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
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SUMMARY: This rule revises NASA policies on cost or pricing data in
order to make the policies consistent with recently revised Federal-
wide policies.
EFFECTIVE DATE: October 18, 1995.
FOR FURTHER INFORMATION CONTACT: William T. Childs, (202) 358-0454.
SUPPLEMENTARY INFORMATION:
Background
The Federal Acquisition Streamlining Act of 1994 (FASA) revised
policy on cost or pricing data under the Truth in Negotiations Act
(TINA), among other things. The TINA changes have been implemented in
the Federal Acquisition Regulation (FAR), and those changes necessitate
corresponding revisions of the NASA FAR Supplement (NFS). In addition,
in the spirit of the National Performance Review, changes are being
made to the NFS to provide clarity.
(a) Section 1815.804-1(a)(2), formerly 1815.804-3(a)(2), is deleted
because it duplicates the revised FAR. A new paragraph is substituted
to require that decisions to utilize the FAR cost or pricing data
exception for one-offer adequate price competition situations must be
approved by the head of the contracting activity, and copies of the
approval and basis of price reasonableness must be sent to Headquarters
Code HC.
(b) Section 1815.804-1(d), formerly 1815.804-3(d), is revised to
accommodate the FAR reduction in approval level for cost or pricing
data exceptions to the head of the contracting activity. The
requirement to send a copy of the approval to Headquarters Code HC is
retained, but some of the accompanying documentation is no longer
required to be furnished to Headquarters Code HC.
(c) FAR 15.804-2(a)(2) specifies that below-threshold requirements
for cost or pricing data must be approved by the head of the
contracting activity. Section 1815.804-2(a) is added to require that
copies of such approvals must be furnished to Headquarters Code HC.
(d) FAR 15.804-2(b)(2) provides that certificates of current cost
or pricing data may be made applicable as of a date agreed upon by the
parties. Section 1815.804-2 is amended to add paragraph (b) to provide
guidance that the agreed date should generally be within two weeks of
the date of price agreement.
(e) The dollar thresholds for formal prenegotiation reviews at
1815.807-71 are deleted and left to the centers' discretion.
(f) Most of the coverage in 1815.970-3(b) has been removed because
it is addressed in subpart 1830.70 (60 FR 37983, July 25, 1995). The
discussion of (AS 417 in 1815.970-3(c) has been substantially rewritten
to remove a previous misinterpretation of CAS.
(g) Numerous editorial changes have been made. Numbering, section
headings, and form titles have been revised to comport with the
revisions in FAR subpart 15.8.
This rule pertains to internal NASA procedures only. Because there
is no impact on the public, it is not required to be published for
comment.
Impact
NASA certifies that this regulation will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule does
[[Page 53879]]
not impose any reporting or record keeping requirements subject to the
Paperwork Reduction Act.
List of Subjects in 48 CFR Parts 1815, 1816, 1852 and 1870
Government procurement.
Tom Luedtke,
Deputy Associate Administrator for Procurement.
Accordingly, 48 CFR parts 1815, 1816, 1852, and 1870 are amended as
follows.
PART 1815--CONTRACTING BY NEGOTIATION
1. The authority citation for 48 CFR parts 1815, 1816, 1852, and
1870 continues to read as follows:
Authority: 42 U.S.C. 2473 (c)(1).
Subpart 1815.8--Price Negotiation
2. The heading of section 1815.804 is revised to read as follows:
1815.804 Cost of pricing data and information other than cost or
pricing data.
3. Section 1815.804-3 is redesignated as 1815.804-1 and the
redesignated section is amended by revising the heading, revising
paragraphs (a)(1) and (2), revising the first and last sentences in
paragraph (a)(3)(i), and revising paragraphs (b), (c), (d), and (e)(3)
to read as follows:
1815.804-1 Prohibition on obtaining cost of pricing data.
(a)(1) The term ``lowest evaluated price,'' as used in FAR 15.804-
1(b)(1)(A), is defined to include all of the factors (for example,
mission suitability, cost, past performance, etc.) used in the
evaluation of proposals (but see paragraph (a)(2) of this section).
(2) When the adequate price competition exemption will be used in a
single-offer situation, the exemption shall be approved by the head of
the contracting activity. The exemption document shall cite the
authority of 10 U.S.C. 2306a(b)(B), and the procedure in paragraph (d)
of this section shall be used.
(3) * * *
(i) The use of this exemption for a cost-reimbursement procurement
requires the careful exercise of judgment on the part of the
contracting officer based on the application of the guidance in FAR
15.804.-1(b)(1)(A) and the regulations of this chapter to the facts of
each procurement. * * * As a consequence, the failure to obtain cost or
pricing data could result in a competing contractor intentionally
underestimating its costs for the purpose of winning the award, which
could then cause the actual contract costs to significantly exceed
those proposed.
* * * * *
(b) When an exemption is granted under FAR 15.804-1(c)(4) for
repetitive submissions of catalog items, Government approval of the
exemption claim shall state the effective period, usually not more than
one year, and require the contractor to furnish any later information
that might raise a question as to the exemption's continuation.
(c) When exempting submission under FAR 15.804-1(b)(2)(iii), the
contracting officer shall document the reasons for the exemption. It is
generally appropriate to include a description of the similarities and
differences from a commercial item, along with a discussion of the
actual sales prices of the commercial item and an explanation of the
value of the differences from that item. If the fact of substantial
sales to the general public is well known, information addressing the
quantity of sales is not required.
(d) When the authority in FAR 15.804-1(a)(3) to grant an exception
waiving the requirement for cost or pricing data is exercised, a copy
of the approval shall be addressed to NASA Headquarters, Analysis
Division, Code HC, and shall include the name and telephone number of
the contracting officer and the basis for the contracting officer's
determination of price reasonableness. The following is a sample format
for the determination and findings for such a waiver.
National Aeronautics and Space Administration
[Installation Name]
Determination and Findings
Authority to Waive Submission of Cost or Pricing Data
On the basis of the following findings and determination, the
requirement for submitting cost or pricing data described below may
be waived pursuant to the authority of 10 U.S.C. 2306a(b)(1)(B).
Findings
1. The (1) proposes to enter into a contract with (2) for the
procurement of (3).
2. Pursuant to FAR 15.804-2, the proposed contractor is required
to submit cost or pricing data. However, waiver of submission of the
cost or pricing data described below is justified for the reasons
indicated: (4)
Determination
The requirement for submission of cost or pricing data described
in the above findings for the proposed procurement is hereby waived.
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Center Director
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Notes--
(1) Name of installation.
(2) Name of proposed contractor.
(3) Brief description of supplies or services.
(4) Identification of the cost or pricing data requirements to
be waived. The waiver may be partial, for example, limited to a
particular subcontractor. Also describe the circumstances and
conditions that make the proposed procurement an exceptional case,
and state the reasons justifying the proposed waiver.
(e)(1) * * *
(2) * * *
(3) The review and audit practices of the Government of Canada, the
price assurance representations, and the adjustments rendered where
profits are excessive are considered to satisfy the requirements of 10
U.S.C. 2306a. Therefore, NASA has waived the requirement for
certification of cost or pricing data submitted by the CCC during the
period April 1, 1990 through March 31, 1996. This waiver applies only
to the certification and does not waive the requirement for submission
of the data.
4. Section 1815.804-2 is added as follows:
1815.804-2 Requiring cost or pricing data.
(a) When an authorization to require cost or pricing data for a
below-threshold procurement is granted pursuant to FAR 15.804-2(a)(2),
a copy of the approval and supporting documentation shall be furnished
to NASA Headquarters, Analysis Division, Code HC.
5. Section 1815.807-70 is amended in paragraph (d)(1) by
republishing the first sentence and revising the second sentence and by
revising the second sentence of paragraph (d)(2) to read as follows:
1815.807-70 Content of the prenegotiation position memorandum.
* * * * *
(d) * * *
(1) Include a parallel tabulation, by element of cost and profit/
fee, of the contractor's proposal, the Government's negotiation
objective, and the Government's maximum position, if applicable.
Explain the differences and how the Government position(s) were
developed, including the estimating assumptions and projection
techniques employed, and how the positions differ in approach. * * *
(2) * * * For each proposed subcontract meeting the requirement of
FAR 15.806-2(a), provide the contracting officer's price or cost
analysis and negotiation objective. * * *
* * * * *
[[Page 53880]]
6. Section 1815.807-71 is amended by revising the first sentence to
read as follows:
1815.807-71 Installation reviews.
Each contracting activity shall establish a formal system for the
review of prenegotiation memoranda. * * *
7. Section 1815.807-72 is amended by revising paragraph (a) to read
as follows:
1815.807-72 Headquarters reviews.
* * * * *
(a) Advance information to be provided to Headquarters. The
installation shall provide Code HS with the following, which shall be
furnished as soon as practicable and sufficiently in advance of the
planned commencement of negotiations to allow a reasonable period of
time for Headquarters review:
(1) Five copies of the PPM.
(2) One copy each of the contractor's proposal, the Government
technical evaluation, and all pricing reports (including any audit
reports).
* * * * *
8. Section 1815.870-1 is amended by revising paragraph (a) and the
first sentence of paragraph (b) to read as follows:
1815.870-1 General.
(a) When subcontracts have been placed on a price-redetermination
or fixed-price-incentive basis and the prime contract type is fixed-
price redeterminable or F-PI (successive target), at the time of final
pricing it may be appropriate to negotiate a firm prime contract price,
even though the contractor has not yet established final subcontract
prices. The contracting officer may do this when convinced that the
amount included for subcontracting is reasonable, for example, when
realistic cost information or pricing data on subcontract efforts are
available.
(b) However, even though the available cost information are highly
indefinite and there is a distinct chance that one or more of the
subcontracts eventually may be redetermined at prices lower than those
predicted in redetermining the prime contract price, other
circumstances may require prompt negotiation of the final contract
price. * * *
Subpart 1815.9--Profit
1815.970-2 [Amended]
9. Section 1815.970-2 is amended by removing the paragraph heading
in paragraph (f)(1).
10. Section 1815.970-3 is amended by revising the citation
``1815.970(b)'' to read ``1830.7001'' in the first sentence of
paragraph (a) and by revising paragraph (b) and removing paragraph (c)
to read as follows:
1815.970-3 Facilities capital cost of money.
(a) * * *
(b) CAS 417, cost of money as an element of the cost of capital
assets under construction, should not appear in contract proposals.
These costs are included in the initial value of a facility for
purposes of calculating depreciation and CAS 414.
PART 1816--TYPES OF CONTRACTS
Subpart 1816.2--Fixed-Price Contracts
1816.203-4 [Amended]
11. In paragraph (c) of section 1816.203-4, the citation ``FAR
15.804.2 and -3'' is revised to read ``FAR 15.804-1 and 15.804-2''.
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 1852.2--Tests of Provisions and Clauses
12. Section 1852.215-70 is amended by revising the date of the
clause to read ``October 1995'' and revising paragraph (a) of the
clause to read as follows:
1852.215-70 Increases in estimated costs.
* * * * *
(a) Increases resulting from updating or correcting the cost or
pricing data submitted with the proposal;
* * * * *
13. Section 1852.243-70 is amended by revising the date of the
clause to read ``October 1995'' and revising the first sentence of
paragraph (d) of the clause to read as follows:
1852.243-70 Engineering change proposals.
* * * * *
(d) Concurrent with the submission of an ECP, the contractor
shall, in accordance with FAR 15.804-6, provide a completed Standard
Form 1411, Contract Pricing Proposal Cover Sheet (Cost or Pricing
Data Required), with appropriate attachments. * * *
* * * * *
PART 1870--NASA SUPPLEMENTARY REGULATIONS
Subpart 1870.1--NASA Acquisition of Investigations System
14. In section 1870.102, paragraph VI of Appendix B to Appendix I
is revised to read as follows:
1870.102 NASA acquisition of investigations.
* * * * *
VI. Status of Cost Proposals (U.S. Proposals Only)
The Investigator's institution agrees that the cost proposal is
for proposal evaluation and selection purposes, and that following
selection and during negotiations leading to a definitive contract,
the institution will be required to resubmit or execute a Standard
Form (SF) Form 1411 ``Contract Pricing Proposal Cover Sheet (Cost or
Pricing Data Required)'' and certifications and representations
required by law and regulation.
* * * * *
[FR Doc. 95-25858 Filed 10-17-95; 8:45 am]
BILLING CODE 7510-01-M
