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Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Proposed Rules
List of Subjects in 48 CFR Parts 215 and 242
Government procurement.
Jennifer D. Johnson, Editor/Publisher, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 215 and 242
are proposed to be amended as follows:
1. The authority citation for parts 215
and 242 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.

PART 215CONTRACTING BY
NEGOTIATION
2. Amend section 215.4033 by adding paragraph a to read as follows:

215.4033 Requiring data other than certified cost or pricing data.

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a1 Contracting officers shall not determine the price of a contract to be fair and reasonable based solely on historical prices paid by the Government see PGI 215.40334 10
U.S.C. 2306ad.
4 In accordance with 10 U.S.C.
2306ad and in lieu of the factors for consideration listed in FAR 15.403
3a4, a determination by the head of the contracting activity that it is in the best interest of the Government to make the award to an offeror that does not comply with a requirement to submit data other than certified cost or pricing data shall be based on consideration of pertinent factors, including the following:
A The effort to obtain the data.
B Availability of other sources of supply of the item or service.
C The urgency or criticality of the Governments need for the item or service.
D Reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract based on information available to the contracting officer.
E Rationale or justification made by the offeror for not providing the requested data.
F Risk to the Government if award is not made.

3. Amend section 215.4041 by revising paragraphs bii and v introductory text to read as follows:
215.4041

Proposal analysis techniques.

b
ii If the contracting officer determines that the information obtained through market research is insufficient to determine the
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reasonableness of price, the contracting officer shall consider information submitted by the offeror of recent purchase prices paid by the Government and commercial customers for the same or similar commercial items under comparable terms and conditions in establishing price reasonableness on a subsequent purchase if the contracting officer is satisfied that the prices previously paid remain a valid reference for comparison. Price reasonableness shall not be based solely on historical prices paid by the Government see 215.4033a1. The contracting officer shall consider the totality of other relevant factors such as the time elapsed since the prior purchase and any differences in the quantities purchased 10 U.S.C. 2306ab5.

v When evaluating pricing data, the contracting officer shall consider materially differing terms and conditions, quantities, and market and economic factors see PGI 215.404
1bv. For similar items, the contracting officer shall also consider material differences between the similar item and the item being procured see FAR 15.4041b2iiB. Material differences are those that could reasonably be expected to influence the contracting officers determination of price reasonableness. The contracting officer shall consider the following factors when evaluating the relevance of the information available:

PART 242CONTRACT
ADMINISTRATION AND AUDIT
SERVICES
4. Revise section 242.1502 to read as follows:

242.1502

Policy.

g Past performance evaluations in the Contractor Performance Assessment Reporting System i Shall include an assessment of the contractors performance against, and efforts to achieve, the goals identified in its comprehensive small business subcontracting plan when the contract contains the clause at 252.2197004, Small Business Subcontracting Plan Test Program; and ii Shall, unless exempted by the head of the contracting activity, include a notation on contractors that have denied multiple requests for submission of data other than certified cost or pricing data over the preceding 3-year period, but nevertheless received an award 10 U.S.C. 2306ad2Bii.
FR Doc. 202118339 Filed 82721; 8:45 am BILLING CODE 500106P

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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System 48 CFR Parts 225 and 252
Docket DARS20210012
RIN 0750AK85

Defense Federal Acquisition Regulation Supplement: Maximizing the Use of American-Made Goods DFARS Case 2019D045
Defense Acquisition Regulations System, Department of Defense DoD.
ACTION: Proposed rule.
AGENCY:

DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement DFARS to implement an Executive order regarding maximizing the use of American-made goods, products, and materials.
DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before October 29, 2021, to be considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2019D045, using any of the following methods:
Federal eRulemaking Portal:
https www.regulations.gov. Search for DFARS Case 2019D045 in the search box and select Search. Select Comment and follow the instructions to submit a comment. Please include your name, company name if any, and DFARS Case 2019D045 on any attached document.
Email: osd.dfars@mail.mil. Include DFARS Case 2019D045 in the subject line of the message.
Comments received generally will be posted without change to https
www.regulations.gov, including any personal information provided. To confirm receipt of your comments, please check https
www.regulations.gov, approximately two to three days after submission to verify posting.
FOR FURTHER INFORMATION CONTACT: Ms.
Kimberly Bass, telephone 571372
6174.
SUMMARY:

SUPPLEMENTARY INFORMATION:

I. Background DoD is proposing to amend the DFARS to implement section 2ai of Executive Order E.O. 13881, Maximizing Use of American-Made Goods, Products, and Materials, which changes the percentages used to determine whether a product is
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