COMMERCIAL ITEM EXCEPTION TO REQUIREMENT FOR CERTIFIED COST OR PRICING DATA.

SEC. 4201. COMMERCIAL ITEM EXCEPTION TO REQUIREMENT FOR CERTIFIED COST OR PRICING DATA. (a) Armed Services Acquisitions.— (1) Subsections (b), (c), and (d) of section 2306a of title 10, United States Code, are amended to read as follows: “(b) Exceptions.— “(1) In general.— Submission of certified cost or pricing data shall not be required under subsection (a) in the case of a contract, a subcontract, or modification of a contract or subcontract— “(A) for which the price agreed upon is based on— “(i) adequate price competition; or 110 STAT. 650 “(ii) prices set by law or regulation; “(B) for the acquisition of a commercial item; or “(C) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this section may be waived and justifies in writing the reasons for such determination. “(2) Modifications of contracts and subcontracts for commercial items.— In the case of a modification of a contract or subcontract for a commercial item that is not covered by the exception to the submission of certified cost or pricing data in paragraph (1)( A) or (1)(B), submission of certified cost or pricing data shall not be required under subsection (a) if— “(A) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1)(A) or (1)(B); and “(B) the modification would not change the contract or subcontract, as the case may be, from a contract or subcontract for the acquisition of a commercial item to a contract or subcontract for the acquisition of an item other than a commercial item. “(c) Cost or Pricing Data on Below-Threshold Contracts.— “(1) Authority to require submission.— Subject to paragraph (2), when certified cost or pricing data are not required to be submitted by subsection (a) for a contract, subcontract, or modification of a contract or subcontract, such data may nevertheless be required to be submitted by the head of the procuring activity, but only if the head of the procuring activity determines that such data are necessary for the evaluation by the agency of the reasonableness of the price of the contract, subcontract, or modification of a contract or subcontract. In any case in which the head of the procuring activity requires such data to be submitted under this subsection, the head of the procuring activity shall justify in writing the reason for such requirement. “(2) Exception.— The head of the procuring activity may not require certified cost or pricing data to be submitted under this paragraph for any contract or subcontract, or modification of a contract or subcontract, covered by the exceptions in subparagraph (A) or (B) of subsection (b)(1). “(3) Delegation of authority prohibited.— The head of a procuring activity may not delegate functions under this paragraph. “(d) Submission of Other Information.— “(1) Authority to require submission.— When certified cost or pricing data are not required to be submitted under this section for a contract, subcontract, or modification of a contract or subcontract, the contracting officer shall require submission of data other than certified cost or pricing data to the extent necessary to determine the reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract. Except in the case of a contract or subcontract covered by the exceptions in subsection (b)(1)(A), the data submitted shall include, at a minimum, appropriate information on the prices at which the same item or similar 110 STAT. 651items have previously been sold that is adequate for evaluating the reasonableness of the price for the procurement. “(2) Limitations on authority.—The Federal Acquisition Regulation shall include the following provisions regarding the types of information that contracting officers may require under paragraph (1): “(A) Reasonable limitations on requests for sales data relating to commercial items. “(B) A requirement that a contracting officer limit, to the maximum extent practicable, the scope of any request for information relating to commercial items from an offeror to only that information that is in the form regularly maintained by the offeror in commercial operations. “(C) A statement that any information received relating to commercial items that is exempt from disclosure under section 552(b) of title 5 shall not be disclosed by the Federal Government.”. (2) Section 2306a of such title is further amended— (A) by striking out subsection (h); and (B) by redesignating subsection (i) as subsection (h). (b) Civilian Agency Acquisitions.— (1) Subsections (b), (c) and (d) of section 304A of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 254b) are amended to read as follows: “(b) Exceptions.— “(1) In general.— Submission of certified cost or pricing data shall not be required under subsection (a) in the case of a contract, a subcontract, or a modification of a contract or subcontract— “(A) for which the price agreed upon is based on— “(i) adequate price competition; or “(ii) prices set by law or regulation; “(B) for the acquisition of a commercial item; or “(C) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this section may be waived and justifies in writing the reasons for such determination. “(2) Modifications of contracts and subcontracts for commercial items.— In the case of a modification of a contract or subcontract for a commercial item that is not covered by the exception to the submission of certified cost or pricing data in paragraph (1)(A) or (1)(B), submission of certified cost or pricing data shall not be required under subsection (a) if— “(A) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1)(A) or (1)(B); and “(B) the modification would not change the contract or subcontract, as the case may be, from a contract or subcontract for the acquisition of a commercial item to a contract or subcontract for the acquisition of an item other than a commercial item. “(c) Cost or Pricing Data on Below-Threshold Contracts.— “(1) Authority to require submission.— Subject to paragraph (2), when certified cost or pricing data are not required 110 STAT. 652to be submitted by subsection (a) for a contract, subcontract, or modification of a contract or subcontract, such data may nevertheless be required to be submitted by the head of the procuring activity, but only if the head of the procuring activity determines that such data are necessary for the evaluation by the agency of the reasonableness of the price of the contract, subcontract, or modification of a contract or subcontract. In any case in which the head of the procuring activity requires such data to be submitted under this subsection, the head of the procuring activity shall justify in writing the reason for such requirement. “(2) Exception.— The head of the procuring activity may not require certified cost or pricing data to be submitted under this paragraph for any contract or subcontract, or modification of a contract or subcontract, covered by the exceptions in subparagraph (A) or (B) of subsection (b)(1). “(3) Delegation of authority prohibited.— The head of a procuring activity may not delegate the functions under this paragraph. “(d) Submission of Other Information.— “(1) Authority to require submission.— When certified cost or pricing data are not required to be submitted under this section for a contract, subcontract, or modification of a contract or subcontract, the contracting officer shall require submission of data other than certified cost or pricing data to the extent necessary to determine the reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract. Except in the case of a contract or subcontract covered by the exceptions in subsection (b)(1)(A), the data submitted shall include, at a minimum, appropriate information on the prices at which the same item or similar items have previously been sold that is adequate for evaluating the reasonableness of the price for the procurement. “(2) Limitations on authority.— The Federal Acquisition Regulation shall include the following provisions regarding the types of information that contracting officers may require under paragraph (1): “(A) Reasonable limitations on requests for sales data relating to commercial items. “(B) A requirement that a contracting officer limit, to the maximum extent practicable, the scope of any request for information relating to commercial items from an offeror to only that information that is in the form regularly maintained by the offeror in commercial operations. “(C) A statement that any information received relating to commercial items that is exempt from disclosure under section 552(b) of title 5 shall not be disclosed by the Federal Government.”. (2) Section 304A of such Act is further amended— (A) by striking out subsection (h); and (B) by redesignating subsection (i) as subsection (h).