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Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Proposed Rules I. Background DoD is proposing to amend the DFARS to implement section 803 of the National Defense Authorization Act NDAA for Fiscal Year FY 2020 Pub.
L. 11692, which amends 10 U.S.C.
2306ad as follows: To prohibit contracting officers from determining that the price of a contract or subcontract is fair and reasonable based solely on historical prices paid by the Government; and, when an offeror fails to make a good faith effort to comply with a reasonable request to submit data, to state that an offeror is ineligible for award if the contracting officer is unable to determine, by any other means, that the proposed prices are fair and reasonable, unless the head of the contracting activity HCA determines that it is in the best interest of the Government to make the award to that offeror.

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II. Discussion and Analysis This rule proposes changes to DFARS
215.4033a. The amendment to 10
U.S.C. 2306ad1 is implemented in DFARS 215.4033a1, by prohibiting contracting officers from basing the determination that the price of a contract is fair and reasonable solely on historical prices paid by the Government.
The new paragraph d2 at 10 U.S.C.
2306a states that offerors who fail to comply with a reasonable request to submit data needed to determine price reasonableness are ineligible for award, unless the HCA determines that it is in the best interest of the Government to make the award. This requirement is already implemented in the Federal Acquisition Regulation FAR at 15.403
3a4. However, the criteria in 10
U.S.C. 2306ad2 for the determination made by the HCA are included in DFARS 215.4033a4, in lieu of the criteria in the FAR, because the criteria for DoD are not the same as the criteria for the civilian agencies.
In accordance with 10 U.S.C.
2306ad2Bii, this proposed rule amends DFARS 242.1502g, to add the requirement that, unless exempted by the HCA, a notation is required in the Contractor Performance Assessment Reporting System that, despite receiving an award, the contractor has denied multiple requests for submission of data other than certified cost or pricing data over the preceding three-year period.
This proposed amendment to the DFARS also makes conforming changes to 215.4041.

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III. Applicability to Contracts at or Below the Simplified Acquisition Threshold SAT and for Commercial Items, Including Commercially Available Off-the-Shelf COTS Items This rule does not propose to create any new solicitation provisions or contract clauses. It does not impact any existing solicitation provisions or contract clauses or their applicability to contracts valued at or below the simplified acquisition threshold or for commercial items, including COTS
items.
IV. Executive Orders 12866 and 13563
Executive Orders E.O.s 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6b of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
V. Congressional Review Act As required by the Congressional Review Act 5 U.S.C. 801808 before an interim or final rule takes effect, DoD
will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register. This rule is not anticipated to be a major rule under 5
U.S.C. 804.
VI. Regulatory Flexibility Act DoD does not expect this proposed rule 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., because it does not add any new compliance requirements on small entities. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:
This proposed rule is necessary in order to implement section 803 of the National Defense Authorization Act
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NDAA for Fiscal Year FY 2020, which amends 10 U.S.C. 2306ad.
The objective of this rule is to implement section 803 of the NDAA for FY 2020, which is the legal basis for this rule. Section 803 provides additional requirements for contracting officers and the head of the contracting activity relating to obtaining data other than certified cost or pricing data.
This rule does not directly impose requirements on small entities. The requirement making certain offerors ineligible for award is already in the Federal Acquisition Regulation FAR.
This rule impacts: 1 The contracting officers need for data other than historical prices paid by the Government, unless there is adequate price competition; and 2 the criteria for use by the head of the contracting activity for a determination to make an award. In some cases, the contracting officers need for data other than historical prices paid by the Government may result in a request for additional data from an offeror. Based on data from the Federal Procurement Data System for FY 2018 through FY
2020, DoD estimates that 1,672 small entities may receive a request for additional data.
There are no new reporting, recordkeeping, or other compliance requirements on small entities.
The rule does not duplicate, overlap, or conflict with any other Federal rules.
There are no significant alternatives, which would accomplish the stated objectives of the rule and minimize the impact on small entities. However, the rule has no significant economic impact on small entities.
DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C.
610. Interested parties must submit such comments separately and should cite 5
U.S.C. 610 DFARS Case 2020D008, in correspondence.
VII. Paperwork Reduction Act The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act 44 U.S.C.
chapter 35.

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