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

The proposed rule also was at odds with the direction of FY2016 National Defense Authorization Act (NDAA), which included a number of provisions focusing on commercial item acquisitions.  In particular, the NDAA attempted to clarify and simplify the process by (a) establishing a presumption that prior commercial item determinations are valid for the subsequent purchase of the same item (Sec. 851); (b) requiring Contracting Officers consider recent government purchase prices for the same or similar items when determining price reasonableness (Sec. 853); and (c) restricts a contracting officer’s ability to convert a FAR Part 12 acquisition of a commercial product or service into a FAR Part 15 transaction by requiring that the contracting officer make a written determination that the prior determination was in error and that DoD will recognize cost savings as a result (Sec. 856).

Between the McCain letter and the NDAA, Congress could not have been clearer that the goal is to create a less–not more–burdensome process for commercial item contracting.  Maybe rescinding the proposed rule is the DoD’s first step towards listening?  In any event, commercial item contracting will remain a DoD focal point in the coming year and will continue to face significant changes to the regulatory landscape in the months to come.  DoD still must address the NDAA provisions addressed above and is expected to issue a new proposed rule on the evaluation of price reasonableness.  We will continue to provide updates on new developments as they unfold.

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Photo of Kevin Barnett Kevin Barnett

Kevin Barnett represents clients in all aspects of government contracts law. He has represented contractors in litigating claims against the United States before the Court of Federal Claims, the boards of contract appeals, and against a foreign government in an international arbitration. He…

Kevin Barnett represents clients in all aspects of government contracts law. He has represented contractors in litigating claims against the United States before the Court of Federal Claims, the boards of contract appeals, and against a foreign government in an international arbitration. He has counseled clients on GSA schedule contract compliance, Buy American Act and Trade Agreement Act issues, and the attorney-client privilege. Mr. Barnett also routinely assists clients of all sizes in navigating the Freedom of Information Act (FOIA) process from drafting and negotiating requests through litigating in federal court.