Proposed DFARS Rule Addresses Price Reasonableness

The Department of Defense is proposing to amend the Defense Federal Acquisition Regulation Supplement to provide guidance on the submission of other than cost or pricing data. The rule would implement portions of section 831 of the National Defense Authorization Act for Fiscal Year 2013 (PL 112-239), entitled “Guidance and Training Related to Evaluating Reasonableness of Price,” which required DoD to address:

  • standards for determining whether information on the prices at which the same or similar items have previously been sold is adequate for evaluating price reasonableness;

  • standards for determining the extent of uncertified cost information that should be required in cases in which price information is not adequate for evaluating price reasonableness;

  • providing required uncertified cost information in the form in which it is regularly maintained by the offeror in its business operations; and

  • prohibiting additional cost information where there are sufficient non-government sales to establish price reasonableness.

The rule would revise DFARS 202.101 to add definitions for “market-based pricing” and “uncertified cost data,” and create new DFARS 215.401, which would add definitions for “nongovernment sales,” “relevant sales data,” and “sufficient nongovernment sales to establish reasonableness of price.” Also, the rule would add guidelines at DFARS 215.402(a)(3) for obtaining data other than certified cost or pricing data and at DFARS 215.404-1 on proposal analysis techniques, as well as instructions at DFARS 215.403-5 for the submission of certified cost or pricing data and data other than certified cost or pricing data. A new section entitled “Determination of price reasonableness” would be added at DFARS 212.209. Further, the rule proposes three new solicitation provisions:

  • 252.215-70XX, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data;

  • 252.215-70YY, Requirements for Submission of Proposals to the Administrative Contracting Officer and Contract Auditor; and

  • 252.215-70ZZ, Requirements for Submission of Proposals via Electronic Media.

Finally, the rule would add prescriptions for each of the proposed solicitation provisions. A complete listing of the affected DFARS sections appears in the regulation table below. Comments on the rule referencing DFARS Case 2013-D034 are due October 2, 2015. For the text of the rule, see ¶70,020.366.