certified cost | The Contracting Education Academy

August 26, 2016 By AMK

DoD’s new proposed guidance on commercial item pricing no longer includes ‘market based pricing’

The Department of Defense (DoD) has reversed course on its proposed preference for “market-based pricing” and is instead now proposing rules under which it would use “market pricing” to determine whether prices are fair and reasonable.

While the terminology is similar, the legal difference is significant.

Last year, we reported on DoD’s proposed guidance on commercial item pricing. The August 2015 proposed guidance implemented section 831 of the NDAA for FY 2013, which required DoD to establish standards for determining the adequacy of pricing information and when uncertified cost data is required. Among other things, this 2015 proposed rule introduced “market-based pricing” as the preferred method for determining a fair and reasonable price for commercial items in the absence of adequate competition. It defined market-based pricing as the pricing that non-governmental buyers in the commercial marketplace pay for an item. Contracting officers could presume that an offeror’s price for a particular item was “market‑based” if non-government buyers purchased 50% or more of the item’s sales volume.

The proposed rule proved controversial, however.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=520638

August 18, 2015 By AMK

New DFARS proposed rule on commercial items acquisition and subcontracting: An end run on Congress?

On Monday, August 3, 2015, the Department of Defense (DoD) issued a long-awaited proposed rule that could have a significant impact on how the DoD and prime contractors procure commercial items.

The Proposed Rule is said to merely implement Section 831(a) of the Fiscal Year 2013 National Defense Authorization Act (NDAA), but goes much further, proposing significant substantive changes to what qualifies as a “commercial item” under DoD-funded contracts and imposing significant burdens on prime contractors to gather data from their commercial item subcontractors.

Section 831 directed DoD to, among other things, issue guidance including “standards for determining whether information on the prices at which the same or similar items have previously been sold is adequate for evaluating the reasonableness of prices.” Section 831 was, in part, a response to DoD’s recent efforts to narrow the broad commercial item paradigm created by Congress in the 1990s, including a 2012 DoD legislative proposal to change the statutory and regulatory definition of “commercial item.”

Specifically, DoD requested legislation to grant DoD greater access to cost or pricing data associated with commercial items and sought to change the definition of commercial items to exclude items that are merely “offered for sale” or “of a type” offered for sale in the marketplace. Congress declined to make those changes, recognizing the Federal Acquisition Streamlining Act (FASA) purposefully includes a broad definition of commercial items in order to ensure that the federal government has access to products available in the commercial marketplace.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=419112

January 5, 2015 By AMK

DoD retreats on evaluation of price reasonableness

Just before the holidays, tthe Department of Defense (“DoD”) quietly withdrew its ill-received proposed rule on the evaluation of price reasonableness in commercial items acquisitions.

Cost and price analysis is part of a plan of total market surveillance designed to understand the relationship of market forces on the acquisition of technology, products and services.

Issued on August 3, 2015, the Proposed Rule purported to provide guidance for evaluating the reasonableness of prices using data other than certified cost or pricing data. As we previously reported, it fell short of this goal and, instead, increased confusion in the determination of price reasonableness for commercial goods that have been “offered for sale” but not sold. It also adopted open-ended data provisions that arguably permit the agency to request almost unlimited information to substantiate the reasonableness of prices.

The Proposed Rule elicited strong, negative comments from the defense industry and the American Bar Association’s Section of Public Contract Law. Many accused DoD of attempting to eliminate the commercial acquisition of items without prior commercial sales. In addition, Sen. John McCain (R-Ariz.), Chairman of the Senate Armed Services Committee issued a letter urging Secretary of Defense Ashton Carter to rethink the proposed rule as inconsistent with the Secretary’s efforts to court commercial contractors.

Keep reading this article at: http://www.insidegovernmentcontracts.com/2015/12/dod-retreats-on-evaluation-of-price-reasonableness/

The Department of Defense (DoD) has reversed course on its proposed preference for “market-based pricing” and is instead now proposing rules under which it would use “market pricing” to determine whether prices are fair and reasonable.

On Monday, August 3, 2015, the Department of Defense (DoD) issued a long-awaited proposed rule that could have a significant impact on how the DoD and prime contractors procure commercial items.

Just before the holidays, tthe Department of Defense (“DoD”) quietly withdrew its ill-received proposed rule on the evaluation of price reasonableness in commercial items acquisitions.

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