i.  Statutory Exemptions From Requirement To Submit Certified Cost or Pricing Data

Comment: Several respondents requested clarification of when data other than certified cost or pricing data applies. Several respondents were further concerned that the proposed rule conflicted with underlying legislation and regulation that prohibit requesting (certified) cost or pricing data in certain circumstances. The respondent requested clarification of the rule to exempt procurements for commercial items or procurement to which another exception applies. The respondent reiterated that agencies are statutorily prohibited from requiring certified cost or pricing data where any exception applies.

Another respondent stated that the rule should state explicitly that unless a waiver is granted or it is a commercial item, the data would always be certified cost or pricing data. This respondent recommended a specific change in the final rule, adding a new paragraph DFARS 215.371(c)(2)(i) to specifically add the requirement to "Determine if an exception to certified cost or pricing data is necessary and/or applicable."

Further, another respondent stated that submission of other than certified cost or pricing data should never be a substitute for the submission of certified cost or pricing data. Accordingly, the respondent believed that if only one offer is received, then the submission of certified cost or pricing data should be required in order to conclude that a fair and reasonable price has been established.

Response: The final rule has been revised to make it clearer when additional cost or pricing data is required and when that data must be certified. DFARS 215.371-3(b)(2)(i) states that "For acquisitions that exceed the cost or pricing data threshold, if no exception at FAR 15.403-1(c) applies, the cost or pricing data shall be certified." The rule does not override any of the statutory exemptions from the requirement to require certified cost or pricing data, as set forth at FAR 15.403-1(c).