80 FR 72669 - Defense Federal Acquisition Regulation Supplement: Promoting Voluntary Post-Award Disclosure of Defective Pricing (DFARS Case 2015-D030)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 80, Issue 224 (November 20, 2015)
Defense Acquisition Regulations System
Federal Register Volume 80, Issue 224 (November 20, 2015)
| Page Range | 72669-72671 | |
| FR Document | 2015-29555 |
[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)] [Proposed Rules] [Pages 72669-72671] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-29555] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 215 [Docket DARS-2015-0051] RIN 0750-AI75 Defense Federal Acquisition Regulation Supplement: Promoting Voluntary Post-Award Disclosure of Defective Pricing (DFARS Case 2015- D030) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to stipulate that DoD contracting officers shall request a limited-scope audit, unless a full-scope audit is appropriate for the circumstances, in the interest of promoting voluntary contractor disclosure of defective pricing identified by the contractor after contract award. [[Page 72670]] DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before January 19, 2016, to be considered in the formation of a final rule. ADDRESSES: Submit comments identified by DFARS Case 2015-D030, using any of the following methods: [cir] Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering ``DFARS Case 2015-D030'' under the heading ``Enter keyword or ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 2015-D030.'' Follow the instructions provided at the ``Submit a Comment'' screen. Please include your name, company name (if any), and ``DFARS Case 2015-D030'' on your attached document. [cir] Email: osd.dfars@mail.mil. Include DFARS Case 2015-D030 in the subject line of the message. [cir] Fax: 571-372-6094. [cir] Mail: Defense Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060. Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, telephone 571-372- 6176. SUPPLEMENTARY INFORMATION: I. Background DoD is proposing to revise the DFARS to stipulate that DoD contracting officers shall request a limited-scope audit when a contractor voluntarily discloses defective pricing after contract award, unless a full-scope audit is appropriate for the circumstances. In response to the Better Buying Power 2.0 initiative on ``Eliminating Requirements Imposed on Industry where Costs Outweigh Benefits,'' contractors recommended several changes to 41 U.S.C. chapter 35, Truthful Cost or Pricing Data (formerly the Truth in Negotiations Act) and to the related DFARS guidance. Specifically, contractors recommended that DoD clarify policy guidance to reduce repeated submissions of certified cost or pricing data. Frequent submissions of such data are used as a defense against defective pricing claims by DoD after contract award, since data that are frequently updated are less likely to be considered outdated or inaccurate and, therefore, defective. Better Buying Power 3.0 called for a revision of regulatory guidance regarding the requirement for contracting officers to request an audit even if a contractor voluntarily discloses defective pricing after contract award. II. Discussion and Analysis This proposed rule amends DFARS 215.407-1(c) to--Require DoD contracting officers to request a limited- scope unless a full-scope audit is appropriate for the circumstances, when contractors voluntarily disclose defective pricing after contract award; Indicate that to determine the appropriate scope of the audit, the contracting officer should consult with Defense Contract Audit Agency; and Clarify that voluntary disclosure of defective pricing does not waive Government entitlement to the recovery of any overpayment plus interest on the overpayments, or rights to pursue defective pricing claims. III. 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 6(b) of E.O. 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 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. However, an initial regulatory flexibility analysis has been performed and is summarized as follows: The objective of the proposed rule is to stipulate that DoD contracting officers shall request a limited-scope audit when a contractor voluntarily discloses defective pricing after contract award, unless a full-scope audit is appropriate for the circumstances. This rule will apply to all DoD contractors, including small entities, who are required to submit certified cost or pricing data. If those small entities usually submit cost or pricing data frequently in order to avoid defective pricing claims, then this rule may encourage them to reduce the number of such submissions. There is no change to reporting or recordkeeping as a result of this rule. The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternative approaches to the rule that would meet the requirements. 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 2015-D030), in correspondence. V. 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). List of Subjects in 48 CFR Part 215 Government procurement. Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR part 215 is proposed to be amended as follows: PART 215--CONTRACTING BY NEGOTIATION 0 1. The authority citation for part 215 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 0 2. Add sections 215.407 and 215.407-1 to subpart 215.4 to read as follows: 215.407 Special cost or pricing areas. 215.407-1 Defective certified cost or pricing data. (c)(i) When contractors voluntarily disclose defective pricing after contract award, contracting officers shall request a limited- scope audit (e.g., limited to the affected cost elements of the defective pricing disclosure) unless a full-scope audit is appropriate for the circumstances (e.g., nature or dollar amount of the defective pricing disclosure). To determine the appropriate scope of the audit, the contracting officer should consult with [[Page 72671]] Defense Contract Audit Agency (DCAA). At a minimum, the contracting officer shall request that DCAA evaluate-- (A) Completeness of the contractor's voluntary disclosure on the affected contract; (B) Accuracy of the contractor's cost impact calculation for the affected contract; and (C) Potential impact on existing contracts, task or deliver orders, or other proposals the contractor has submitted to the Government. (ii) Voluntary disclosure of defective pricing is not a voluntary refund as defined in 242.7100 and does not waive the Government entitlement to the recovery of any overpayment plus interest on the overpayments in accordance with FAR 15.407-1(b)(7). (iii) Voluntary disclosure of defective pricing does not waive the Government's rights to pursue defective pricing claims on the affected contract or any other Government contract. [FR Doc. 2015-29555 Filed 11-19-15; 8:45 am] BILLING CODE 5001-06-P
![Federal Register / Vol. 80, No. 224 / Friday, November 20, 2015 / Proposed Rules 72669
Energy Effects conflict with this proposed rule or Authority: 16 U.S.C. 472, 529, 551, 1608,
would impede full implementation of 1613; 23 U.S.C. 201, 205.
The Colorado Roadless Rule and the
North Fork Coal Mining Area exception this proposed rule. However, if this ■ 2. Amend § 294.43 by revising
do not constitute a ‘‘significant energy proposed rule were adopted, (1) all State paragraph (c)(1)(ix) to read as follows:
action’’ as defined by Executive Order and local laws and regulations that
conflict with this rulemaking or would § 294.43 Prohibition on road construction
13211. No novel legal or policy issues and reconstruction.
regarding adverse effects to supply, impede full implementation of this
rulemaking would be preempted; (2) no (c) * * *
distribution, or use of energy are (1) * * *
anticipated beyond what has been retroactive effect would be given to this
proposed rule; and (3) this rulemaking (ix) A temporary road is needed for
addressed in the 2012 FEIS or the coal exploration and/or coal-related
Regulatory Impact Analysis prepared in would not require the use of
administrative proceedings before surface activities for certain lands with
association with the final 2012 Colorado Colorado Roadless Areas in the North
Roadless Rule. The proposed parties could file suit in court.
Fork Coal Mining Area of the Grand
reinstatement of the North Fork Coal Tribal Consultation Mesa, Uncompahgre, and Gunnison
Mining Area exception does not restrict National Forests as defined by the North
USDA provided an introductory letter
access to privately held mineral rights, Fork Coal Mining Area displayed on the
and the Notice of Intent for the Colorado
or mineral rights held through existing final Colorado Roadless Areas map.
Roadless Rule and the supplemental
claims or leases, and allows for disposal Such roads may also be used for
draft EIS to the Ute, Ute Mountain Ute,
of mineral materials. The proposed rule collecting and transporting coal mine
and Southern Ute Indian Tribes in
does not prohibit future mineral claims methane. Any buried infrastructure,
context of Executive Order 13175. No
or mineral leasing in areas otherwise including pipelines, needed for the
specific requests from any tribes were
open for such. The rulemaking provides capture, collection, and use of coal mine
made for additional information or
a regulatory mechanism for methane, will be located within the
meetings. No letters from any tribes
consideration of requests for
have been received concerning the rights-of-way of temporary roads that
modification of restriction if
proposed action. are otherwise necessary for coal-related
adjustments are determined to be
surface activities including the
necessary in the future. Unfunded Mandates
installation and operation of methane
Federalism USDA has assessed the effects of the venting wells.
Colorado Roadless Rule on State, local, * * * * *
USDA has determined the proposed
and Tribal governments and the private
rule conforms with the Federalism Dated: November 6, 2015.
sector. This proposed rule does not
principles set out in Executive Order Robert Bonnie,
compel the expenditure of $100 million
13132 and does not have Federalism Under Secretary, Natural Resources and
or more by State, local, or Tribal
implications. The rulemaking would not Environment.
governments, or anyone in the private
impose any new compliance costs on
sector. Therefore, a statement under [FR Doc. 2015–29592 Filed 11–19–15; 8:45 am]
any State; and the rulemaking would
section 202 of title II of the Unfunded BILLING CODE 3411–15–P
not have substantial direct effects on
Mandates Reform Act of 1995 is not
States, on the relationship between the
required.
national government and the states, nor
on the distribution of power and Paperwork Reduction Act DEPARTMENT OF DEFENSE
responsibilities among the various This rulemaking does not call for any Defense Acquisition Regulations
levels of government. additional recordkeeping, reporting
The proposed rule is based on a System
requirements, or other information
petition submitted by the State of collection requirements as defined in 5
Colorado under the Administrative 48 CFR Part 215
CFR 1320 that are not already required
Procedure Act at 5 U.S.C. 553(e) and by law or not already approved for use. [Docket DARS–2015–0051]
pursuant to USDA regulations at 7 CFR The proposed rule imposes no RIN 0750–AI75
1.28. The State’s petition was developed additional paperwork burden on the
through a task force with local public. Therefore the Paperwork Defense Federal Acquisition
government involvement. The State of Reduction Act of 1995 does not apply to Regulation Supplement: Promoting
Colorado is a cooperating agency this proposal. Voluntary Post-Award Disclosure of
pursuant to 40 CFR 1501.6 of the Defective Pricing (DFARS Case 2015–
Council on Environmental Quality List of Subjects in 36 CFR Part 294 D030)
regulations for implementation of National Forests, Recreation areas,
NEPA. Navigation (air), and State petitions for AGENCY: Defense Acquisition
inventoried roadless area management. Regulations System, Department of
Takings of Private Property Defense (DoD).
For the reasons set forth in the
USDA analyzed the proposed rule in ACTION: Proposed rule.
preamble, the Forest Service proposes to
accordance with the principles and
amend part 294 of Title 36 of the Code SUMMARY: DoD is proposing to amend
criteria contained in Executive Order
of Federal Regulations by reinstating 36 the Defense Federal Acquisition
mstockstill on DSK4VPTVN1PROD with PROPOSALS
12630. The Agency determined the
CFR 294.43(c)(1)(ix) to read as follows: Regulation Supplement (DFARS) to
proposed rule does not pose the risk of
a taking of private property. stipulate that DoD contracting officers
PART 294—SPECIAL AREAS
shall request a limited-scope audit,
Civil Justice Reform unless a full-scope audit is appropriate
Subpart D—Colorado Roadless Area
USDA reviewed the proposed rule in Management for the circumstances, in the interest of
context of Executive Order 12988. The promoting voluntary contractor
Agency has not identified any State or ■ 1. The authority citation for part 294, disclosure of defective pricing identified
local laws or regulations that are in subpart D continues to read as follows: by the contractor after contract award.
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![Federal Register / Vol. 80, No. 224 / Friday, November 20, 2015 / Proposed Rules 72671
Defense Contract Audit Agency (DCAA). Æ Regulations.gov: http:// II. Executive Orders 12866 and 13563
At a minimum, the contracting officer www.regulations.gov. Submit comments Executive Orders (E.O.s) 12866 and
shall request that DCAA evaluate— via the Federal eRulemaking portal by 13563 direct agencies to assess all costs
(A) Completeness of the contractor’s entering ‘‘DFARS Case 2015–D008’’ and benefits of available regulatory
voluntary disclosure on the affected under the heading ‘‘Enter keyword or alternatives and, if regulation is
contract; ID’’ and selecting ‘‘Search.’’ Select the necessary, to select regulatory
(B) Accuracy of the contractor’s cost link ‘‘Submit a Comment’’ that approaches that maximize net benefits
impact calculation for the affected corresponds with ‘‘DFARS Case 2015– (including potential economic,
contract; and D008.’’ Follow the instructions provided environmental, public health and safety
(C) Potential impact on existing at the ‘‘Submit a Comment’’ screen. effects, distributive impacts, and
contracts, task or deliver orders, or other Please include your name, company equity). E.O. 13563 emphasizes the
proposals the contractor has submitted name (if any), and ‘‘DFARS Case 2015– importance of quantifying both costs
to the Government. D008’’ on your attached document.
(ii) Voluntary disclosure of defective and benefits, of reducing costs, of
pricing is not a voluntary refund as Æ Email: osd.dfars@mail.mil. Include harmonizing rules, and of promoting
defined in 242.7100 and does not waive DFARS Case 2015–D008 in the subject flexibility. This is not a significant
the Government entitlement to the line of the message. regulatory action and, therefore, was not
recovery of any overpayment plus Æ Fax: 571–372–6094. subject to review under section 6(b) of
interest on the overpayments in E.O. 12866, Regulatory Planning and
Æ Mail: Defense Acquisition
accordance with FAR 15.407–1(b)(7). Review, dated September 30, 1993. This
Regulations System, Attn: Ms. Janetta
(iii) Voluntary disclosure of defective rule is not a major rule under 5 U.S.C.
Brewer, OUSD(AT&L)DPAP/DARS,
pricing does not waive the 804.
Room 3B941, 3060 Defense Pentagon,
Government’s rights to pursue defective Washington, DC 20301–3060. III. Regulatory Flexibility Act
pricing claims on the affected contract Comments received generally will be DoD does not expect this rule to have
or any other Government contract. posted without change to http:// a significant economic impact on a
[FR Doc. 2015–29555 Filed 11–19–15; 8:45 am] www.regulations.gov, including any substantial number of small entities
BILLING CODE 5001–06–P personal information provided. To within the meaning of the Regulatory
confirm receipt of your comment(s), Flexibility Act, 5 U.S.C. 601, et seq.,
please check www.regulations.gov, because the rule primarily provides
DEPARTMENT OF DEFENSE approximately two to three days after greater flexibility to DoD when
Defense Acquisition Regulations submission to verify posting (except contracting for major system
System allow 30 days for posting of comments acquisitions. However, an initial
submitted by mail). regulatory flexibility analysis has been
48 CFR Parts 217 and 234 FOR FURTHER INFORMATION CONTACT: Ms. performed and is summarized as
follows:
Janetta Brewer, telephone: 571–372–
[Docket DARS–2015–0042] The purpose of the rule is to
6104.
RIN 0750–AI62
implement section 811 of the National
SUPPLEMENTARY INFORMATION: Defense Authorization Act (NDAA) for
Defense Federal Acquisition Fiscal Year (FY) 2015 (Pub. L. 113–291).
I. Background Section 811 entitled ‘‘Extension and
Regulation Supplement: Extension and
Modification of Contract Authority for DoD is proposing to revise the DFARS Modification of Contract Authority for
Advanced Component Development to implement section 811 of the Advanced Component Development and
and Prototype Units (DFARS Case National Defense Authorization Act Prototype Units’’ amends paragraphs (a)
2015–D008) (NDAA) for Fiscal Year (FY) 2015 (Pub. and (b) of section 819 of the NDAA for
L. 113–291). Section 811 entitled FY 2010 (10 U.S.C. 2302 note).
AGENCY: Defense Acquisition The rule proposes to amend DFARS
Regulations System, Department of ‘‘Extension and Modification of Contract
Authority for Advanced Component 217.202(2) and 234.005–1(1) to add ‘‘or
Defense (DoD). initial production’’ to the text. This will
Development and Prototype Units’’
ACTION: Proposed rule. allow for the inclusion of a contract line
amends paragraphs (a) and (b) of section
item (possibly an option) to go to initial
SUMMARY: DoD is proposing to amend 819 of the NDAA for FY 2010 (10 U.S.C.
production without further competition.
the Defense Federal Acquisition 2302 note). The rule will apply to DoD major
Regulation Supplement (DFARS) to The rule proposes to amend DFARS defense acquisition program contractors
implement a section of the National 217.202(2) and 234.005–1(1) to add ‘‘or and subcontractors. Most major defense
Defense Authorization Act for Fiscal initial production’’ to the text. This will acquisition programs are awarded to
Year 2015, which amended a section of allow for the inclusion of a contract line large concerns as they are of a scope too
the National Defense Authorization Act item (possibly an option) to go to initial large for any small business to perform.
for Fiscal Year 2010, to extend and production without further competition. As such, it is not expected that this rule
modify contract authority for advanced However, there is no new impact on will have a significant impact on a
component development and prototype contract cost because section 819(b) of substantial number of small entities.
units. the NDAA for FY 2010 (which is The rule does not impose any
mstockstill on DSK4VPTVN1PROD with PROPOSALS
DATES: Comments on the proposed rule unchanged in 2015) continues to place additional reporting, recordkeeping, and
should be submitted in writing to the a limitation on costs associated with any other compliance requirements. The
address shown below on or before contract line item (option or otherwise) rule does not duplicate, overlap, or
January 19, 2016, to be considered in for the delivery of initial or additional conflict with any other Federal rules.
the formation of a final rule. items. The rule also extends this There are no alternatives available that
ADDRESSES: Submit comments authority at DFARS 234.005–1(2) to would meet the objectives of the statute.
identified by DFARS Case 2015–D008, September 30, 2019, from September 30, DoD invites comments from small
using any of the following methods: 2014. business concerns and other interested
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Document Created: 2015-12-14 13:58:51
Document Modified: 2015-12-14 13:58:51
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments on the proposed rule should be submitted in writing to | |
| Contact | Mr. Mark Gomersall, telephone 571-372- 6176. | |
| FR Citation | 80 FR 72669 | |
| RIN Number | 0750-AI75 |
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