Class Deviation 2024-O0007

OFFICE OF THE UNDER SECRETARY OF DEFENSE
3000 DEFENSE PENTAGON
WASHINGTON, DC 20301-3000
ACQUISITION
AND SUSTAINMENT
In reply refer to
DARS Tracking Number: 2024-O0007
MEMORANDUM FOR COMMANDER, UNITED STATES CYBER
COMMAND (ATTN: ACQUISITION EXECUTIVE)
COMMANDER, UNITED STATES SPECIAL OPERATIONS COMMAND
(ATTN: ACQUISITION EXECUTIVE)
COMMANDER, UNITED STATES TRANSPORTATION
COMMAND (ATTN: ACQUISITION EXECUTIVE)
DEPUTY ASSISTANT SECRETARY OF THE ARMY
(PROCUREMENT)
DEPUTY ASSISTANT SECRETARY OF THE NAVY
(PROCUREMENT)
DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE
(CONTRACTING)
DEFENSE AGENCY AND DOD FIELD ACTIVITY DIRECTORS
SUBJECT: Class Deviation—Section 890 Pilot Program to Accelerate Contracting and Pricing
Processes
Effective immediately, this class deviation rescinds and supersedes Class Deviation
2023-O0004, issued January 17, 2023. For contract actions approved for participation in the
Section 890 Pilot Program (the Pilot Program), the contracting officer may determine the extent,
structure, and level of detail of the historical actual cost data the offeror or contractor will be
required to submit in lieu of providing complete certified cost or pricing data.
Contract actions must be approved by the Director, Defense Pricing and Contracting,
Price, Cost, and Finance (DPC/PCF), to participate in the Pilot Program prior to the issuance of
the solicitation. Contracting officers may request approval to participate in the pilot program by
completing and submitting the attached application template (Attachment 1) to
osd.pentagon.ousd-a-s-mbx.dpc-pcf@mail.mil. To be selected, contract actions must have an
anticipated value exceeding $50 million.
Contract actions best suited for the pilot program are those of a recurring nature for
which there is reliable, actual cost data, and with companies that have approved business
systems. The Pilot Program entails no preference for contract type or specific contract
requirements. While not a condition for participation, use of a fixed-price-incentive contract
type can reduce the cost risk for the participating parties and provide measurable results at the
conclusion of the acquisition in relation to a target cost.
For those contract actions approved by the Director, DPC/PCF, contracting officers
shall—
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
• Use the deviation provision provided in Attachment 2, in lieu of the basic or alternate of
the provision at DFARS 252.215-7010, Requirements for Certified Cost or Pricing Data
and Data Other Than Certified Cost or Pricing Data, and detail the subset of cost or
pricing data and format to be required from the offeror and potential subcontractors
participating in the Pilot Program, in lieu of complete cost or pricing data as defined at
FAR 2.101;
• Use the deviation clause provided in Attachment 3, which will apply to modifications
approved for the Pilot Program in lieu of FAR 52.215-21, Requirements for Certified
Cost or Pricing Data—Modifications, and detail in the request for proposal for the
modification the specific cost or pricing data required to be submitted by the contractor
and subcontractors participating in the Pilot Program;
• Use the deviation clause provided in Attachment 4, 252.215-7998, Pilot Program to
Accelerate Contracting and Pricing Processes, to ensure the contractor provides
information necessary to evaluate the efficacy of the Pilot Program; and
• Make price reasonableness determinations based primarily on offeror or contractor actual
cost data from prior acquisitions, in combination with more traditional certified cost or
pricing data that may be required to support aspects of the current acquisition for which
the contractor’s historical cost experience may not be adequately representative of the
current requirement.
The contracting officer may strategically establish the extent, structure, and level of detail
of the historical actual cost data the offeror or contractor will be required to submit in lieu of
complete certified cost or pricing data. It will be crucial for the contracting officer and offeror or
contractor to have a detailed dialogue regarding the certified cost or pricing data that will be
required under the authority of the pilot, to ensure that the offeror or contractor understands the
contracting officer’s expectations regarding the data necessary to support a price reasonableness
determination, and the traceability of that data to the offeror’s or contractor’s proposal.
Depending on the type and level of detail of certified cost or pricing data to be required in
support of specific subcontracts under the Pilot Program, the same discussion should take place
between the contracting officer, the offeror or contractor, and the applicable subcontractors.
The pilot program entails minimal reporting requirements for participants. Measurement
of pilot results must be provided at two junctures, as described at 252.215-7998, Pilot Program to
Accelerate Contracting and Pricing Processes (see Attachment 4). These two data submittal
junctures are necessary for DoD to assess Pilot-Program effectiveness. The first measurement
will occur within three months after the contract action approved for participation in the Pilot
Program is awarded. The second measurement will occur upon completion of performance of
the contract action to measure how closely the actual cost of performance aligned with the
acquisition team’s anticipated cost. Contracting officers shall submit both sets of results to
osd.pentagon.ousd-a-s-mbx.dpc-pcf@mail.mil as they become available.
This class deviation extends the Pilot Program authority provided by section 890 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232), as
amended by section 825 of the NDAA for FY 2020 (Pub. L. 116-92), section 818 of the NDAA
2
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
for FY 2023 (Pub. L. 117-263), and section 841 of the NDAA for FY 2024 (Pub. L. 118-31).
Section 890 as amended authorizes DoD to conduct a Pilot Program for contract actions
exceeding $50 million, allows price reasonableness determinations to be based on actual cost and
pricing data for purchases of the same or similar products for DoD, and minimizes the cost and
pricing data to be submitted in accordance with FAR 15.403-4 (10 U.S.C. 3702).
This class deviation remains in effect until January 2, 2028, or until otherwise rescinded.
My point of contact is Ms. Gina Bova, who is available at 937-200-4020 or by email at
regina.m.bova.civ@mail.mil.
John M. Tenaglia
Principal Director,
Defense Pricing and Contracting
Attachments:
As stated
3
Attachment 1
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
Application to Participate in the Pilot Program Authorized under Section 890 of the National
Defense Authorization Act (NDAA) For Fiscal Year 2019, as amended by section 825 of the
NDAA for FY 2020, section 818 of the NDAA for FY 2023, and section 841 of the NDAA for FY
2024, for contract actions that exceed $50 million.
I. Program/Contract Information
Program Name: ______________________________________________________________________
Cognizant Contracting Activity: _________________________________________________________
(Buying office, Command, Department or Agency)
Description of Requirement: ___________________________________________________________
(Product, quantity, period of performance)
Estimated value of the current requirement: ______________________________________________
Anticipated contract type: _____________________________________________________________
Anticipated award date: _______________________________________________________________
List of relevant prior acquisitions to be used as the basis for projecting costs of the current acquisition
under the pilot program:
Acquisition 1: _________________________________________________________________________
(Name, customer, product, quantity, period of performance, contract value, contract type)
Acquisition 2: _________________________________________________________________________
(Name, customer, product, quantity, period of performance, contract value, contract type)
(List the same information for additional acquisitions as appropriate. Notwithstanding the spaces
provided in the fill-in blanks that follow in this application, provide narrative responses as appropriate.)
Please discuss the extent of commonality between current and prior acquisitions. Does the current
acquisition include work not required in the prior acquisitions? Did the prior acquisitions include work
not required in the current buy? Are there any significant requirement changes? Were actuals from
previous buys requested on these listed acquisitions? If so, how were they used in proposal evaluation
and/or negotiations?
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
II. Prime Contractor Information
Contractor Name and Location: ___________________________________________________________
Contractor CAGE Code: _________________________________________________________________
Page 1 of 5
Attachment 1
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
Status of Contractor’s Accounting System as shown in CBAR: ___________________________________
III. Notional Approach to Data Requirements for the Bill of Materials
Please complete this section if the contracting officer plans to flow down the pilot authority to
some or all first tier or lower tier subcontracts.
For each of the relevant prior acquisitions listed in Section I, above, please provide the total
considered negotiated material and subcontract cost, in dollars and as a percentage of the total
considered negotiated cost line.
Acquisition 1: _________________________________________________________________________
(Name, considered negotiated material/subcontract cost, in dollars and as a percent of the negotiated cost line)
Acquisition 2: _________________________________________________________________________
(Name, considered negotiated material/subcontract cost, in dollars and as a percent of the negotiated cost line)
List the same information for additional acquisitions as appropriate.
Please discuss any significant issues or challenges relating to material or subcontracts which were
experienced in the context of the above-listed historical acquisitions.
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
Please discuss the extent of commonality between current and prior acquisitions with respect to the Bill
of Materials. Does the current acquisition include significant subcontracted effort not required in the
prior acquisitions? Did the prior acquisitions include significant subcontract effort not required in the
current buy? Are there any significant requirement changes with respect to subcontracted items? Were
actuals from previous buys requested for major subcontracts? If so, how were they used in the
Government’s proposal evaluation and/or negotiations with the prime contractor?
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
Please describe the contracting officer’s planned approach for flowing down the Section 890 pilot
authority to subcontracts. Please indicate whether the intent is to apply the authority to some or all first
tier subcontracts subject to the Truth in Negotiations Act; the type and extent of data to be required; and
whether the authority will be flowed down to lower tier subcontracts. If the type and extent of data to
be required is expected to be scaled based on subcontract dollar value or other considerations, please
explain. ______________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
Page 2 of 5
Attachment 1
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
IV. Acquisition Team Information
Contracting Officer name and contact information: _________________________________________
Buyer/Contract specialist name and contact information: ____________________________________
Considerations with Respect to Type and Extent of Certified Cost or Pricing Data to Be
Required
The intent of this implementation of the Section 890 pilot program is to provide the flexibility for
contracting officers to strategically identify and require submission of the specific cost or pricing data,
including actual cost history details, which are expected to be most relevant in establishing a fair and
reasonable price for the recurring costs associated with a product which has meaningful price history
under DoD acquisitions. Contracting officers requesting approval to utilize this pilot program authority
should be prepared to develop a strategy which will facilitate analysis of the contractor’s proposal for
the current requirement, including any non-recurring or unique aspects. Considerations may include the
following:
Actual costs for relevant prior acquisitions for which performance is not complete: If any of the prior
acquisitions to be used to establish price reasonableness for the current requirement are not physically
complete as of the date of issuance of the solicitation, the contracting officer should require the
contractor to provide and support their estimate to complete (ETC). (Document the requirement in the
deviation version of 252.215-7010 or the request for proposal for a contract modification in accordance
with 252.215-7997, as applicable.) Additionally, for incomplete efforts at both the prime and the
subcontract level, the contractor/subcontractor should be required to provide a data refresh prior to
commencement of negotiations and prior to conclusion of negotiations between the Government and
the prime. Contractor refusals to disclose ETC values should be elevated through the management
chain as described in DFARS PGI 215.404-1(a)(i)(A).
Non-recurring effort: The contracting officer will need to consider non-recurring effort from two
perspectives. First, the contractor should be required to separately identify the non-recurring activity
performed in prior acquisitions, and provide adequate actual cost details to ensure exclusion of that cost
from cost estimates for the current requirement. Secondly, the contracting officer will need to work
with the contractor to identify non-recurring requirements which are part of the current acquisition.
The CO must then determine the type and extent of certified cost or pricing data required to support
establishment of a fair and reasonable price for that portion of the effort.
Fixed vs variable cost: Where there are quantity differences between the current requirement and the
prior acquisitions to be used to establish price reasonableness, it is critical that the contracting officer
take into account the impact of fixed vs variable costs. The contractor should be required to separately
identify the fixed and variable components of the historical actuals, and provide the cost of each at a
level of detail that will support the Government’s appropriate use of the historical actuals in the
evaluation of the proposed cost for the current requirement.
Page 3 of 5
Attachment 1
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
Changed requirements: If there are significant requirement changes between the prior acquisitions and
the current requirement, the contracting officer must develop an appropriate approach for segregating
the costs associated with tasks performed in the prior acquisitions that are not required in the instant
effort, to ensure those costs are not projected into estimates for the current requirements.
Additionally, the contracting officer must determine what cost or pricing data will be required to
support new work not required or performed under the prior acquisitions.
Labor: The contracting officer will need to ensure that the contractor provides adequate insight into the
composition of the historical labor actuals to inform the Government’s evaluation of the proposal for
the current requirement. For example, the prior actuals may need to show hours by labor category by
task. Where labor hours included in the historical acquisitions were proposed based on factors, and the
contractor’s proposal for the current requirement is expected to use the same or similar factors, it may
be useful to compare proposed factors for prior acquisitions to actual outcomes for those efforts.
Subcontracts subject to the Truthful Cost or Pricing Data (Truth in Negotiations) act: For the purposes
of this pilot, the authority provided under Section 890 of the FY19 NDAA may be flowed down to first-
tier or lower-tier subcontracts subject to, the Truthful Cost or Pricing Data (Truth in Negotiations) act, at
the discretion of the contracting officer. This means that, for those subcontracts for which the pilot
authority is flowed down, the contracting officer for acquisitions approved for participation in the pilot
will need to establish the extent, structure, and level of detail of the historical actual cost data which
subcontractors will be required to submit in lieu of traditional certified cost or pricing data, and must
ensure that the actuals are presented in a manner that will support efficient and effective evaluation of
the subcontract proposal for the current requirement. It may be useful to stratify the covered
subcontracts by proposed dollar value; for a subset of the subcontracts (generally, the major
subcontracts), the contracting officer may find it appropriate to require submission of actuals at a level
of detail similar to the types of breakout required for the prime contractor’s prior actuals. For some
subcontracts it may be appropriate to obtain only limited insight into the total actuals, e.g., total cost,
total labor dollars/hours, and total material. For lower dollar subcontracts, it may be appropriate to
either require submission of the subcontractor’s recurring actual cost for specified prior acquisitions in
support of DoD contracts, or simply obtain the prime’s purchase order history for the specified prior
acquisitions. The contracting officer’s insight into the quality of the prime’s negotiated vendor pricing
in the context of the historical acquisitions may come into play in making this decision. For those
subcontracts for which the pilot authority is flowed down, consideration should be given to obtaining
subcontract cost breakouts segregating recurring and non-recurring effort, at a minimum. If there are
significant quantity variations between the prior subcontracts and the current requirement, it may also
be prudent to gain insight into the breakout of fixed and variable costs under the subcontract. Cost
implications of requirement changes between the prior subcontracts and the current requirement must
be considered: the cost of work performed under prior subcontracts but not currently required must be
segregated in the historical actuals, while new requirements must be adequately supported in the
subcontract proposal, since the cost history of prior subcontracts will not be informative with respect to
the new work. The contracting officer may wish to consider whether there is benefit in requiring
submission of the prime’s cost analyses for select subcontracts, as these become available. In addition
to the historical actuals, the contracting officer should also consider requiring the prime contractor and
its subcontractors to disclose suppliers’ quotes, offers, and agreed-to vendor pricing for the current
requirement as those data become available.
Page 4 of 5
Attachment 1
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
Material and subcontracts below the TINA threshold or meeting a TINA exception: The deviation
provision DFARS 252.215-7010(d)(5) and deviation clause 252.215-7997(c)(5) in support of this pilot
address expectations with respect to subcontracts not subject to TINA. The Government has no
entitlement to incurred cost data for these subcontracts. The PCO will need to consider whether data in
addition to the prime contractor’s purchase order history will be needed to support proposed pricing for
these items. In particular, where the prime contractor has made a commerciality assertion with regard
to a subcontractor, the contracting officer will need to consider whether data other than certified cost
or pricing data will be required, and if so, the type and extent of data.
Interdivisional transfers: For interdivisional transfers subject to TINA, the PCO will need to determine
the appropriate level of detail for supporting cost or pricing data. Considerations may include the dollar
value of the interdivisional transfer and the complexity of the effort.
ODCs: While discrete ODCs are often proposed based on judgmental estimates, the contracting officer
should consider whether the historical ODC cost experience from the prior acquisitions may provide an
appropriate basis for projection of ODC cost for the current effort. The concepts of recurring vs non-
recurring costs and fixed vs variable, discussed above, may also come into play.
Rates and factors: It may be useful to compare proposed rates and factors for prior acquisitions to
actual outcomes, especially with respect to estimating factors which are not the subject of an FPRA or
an FPRR. However, contracting officers would generally be expected to use prospective DCMA rate
positions, when available, in the pricing of the current requirement.
Format and content of the proposal for the current requirement: The contracting officer should
consider what traditional proposal content will still be required under the auspices of the Section 890
pilot, if the actual cost detail from prior acquisitions is provided, and what typical proposal content may
be foregone. For example, the contractor should still be expected to submit a cost element summary at
the CLIN level and in the aggregate, a priced bill of materials, and a time-phased breakdown of labor
hours and rates by category. Labor basis of estimate (BOE) sheets may not be needed to support that
portion of the current requirement which is identical to the requirements of prior buys, whereas the
contractor should be expected to submit BOEs to support non-recurring effort which is not represented
in the prior actuals. The contracting officer may elect to require submission of some prime cost analyses
of subcontract proposals, while perhaps choosing to rely on the prime’s PO history or the
subcontractor’s submission of prior actuals for other subcontracts. While the specifics will vary
according to the circumstances of each pilot program acquisition, it is critical for the contracting officer
to have a proposal evaluation plan in place in order to ensure that the optimal subset of data is obtained
to permit efficient and effective proposal evaluation, negotiation, and establishment of a fair and
reasonable price.
Page 5 of 5
Attachment 2
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
Changes indicated by a change bar in the right-hand margin
252.215-7010 Requirements for Certified Cost or Pricing Data and Data Other
Than Certified Cost or Pricing Data. (DEVIATION 2024-O0007)
Use the following deviation provision, in lieu of the basic or alternate of the
provision at DFARS 252.215-7010, in solicitations that the Director, Price, Cost and
Finance / Defense Pricing and Contracting, has authorized for participation in the
Section 890 Pilot Program.
REQUIREMENTS FOR CERTIFIED COST OR PRICING DATA AND DATA OTHER
THAN CERTIFIED COST OR PRICING DATA (DEVIATION 2024-O0007)
(FEB 2024)
(a) Definitions. As used in this provision—
“Market prices” means current prices that are established in the course of ordinary
trade between buyers and sellers free to bargain and that can be substantiated through
competition or from sources independent of the offerors.
“Non-Government sales” means sales of the supplies or services to non-
Governmental entities for purposes other than governmental purposes.
“Relevant sales data” means information provided by an offeror on sales of the same
or similar items that can be used to establish price reasonableness taking into
consideration the age, volume, and nature of the transactions (including any related
discounts, refunds, rebates, offsets, or other adjustments).
“Sufficient non-Government sales” means relevant sales data that reflects market
pricing and contains enough information to make adjustments covered by FAR 15.404-
1(b)(2)(ii)(B).
“Uncertified cost data” means the subset of “data other than certified cost or pricing
data” (see FAR 2.101) that relates to cost.
(b) Exceptions from certified cost or pricing data.
(1) In lieu of submitting certified cost or pricing data, the Offeror may submit a
written request for exception by submitting the information described in paragraphs
(b)(1)(i) and (ii) of this provision. The Contracting Officer may require additional
supporting information, but only to the extent necessary to determine whether an
exception should be granted and whether the price is fair and reasonable.
(i) Exception for price set by law or regulation - Identification of the law or
regulation establishing the price offered. If the price is controlled under law by periodic
rulings, reviews, or similar actions of a governmental body, attach a copy of the
controlling document, unless it was previously submitted to the contracting office.
(ii) Commercial item exception. For a commercial item exception, the
Offeror shall submit, at a minimum, information that is adequate for evaluating the
reasonableness of the price for this acquisition, including prices at which the same item
Page 1 of 6
Attachment 2
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
Changes indicated by a change bar in the right-hand margin
or similar items have been sold in the commercial market. Such information shall
include—
(A) For items previously determined to be commercial, the contract
number and military department, defense agency, or other DoD component that
rendered such determination, and if available, a Government point of contact;
(B) For items priced based on a catalog—
(1) A copy of or identification of the Offeror’s current catalog
showing the price for that item; and
(2) If the catalog pricing provided with this proposal is not
consistent with all relevant sales data, a detailed description of differences or
inconsistencies between or among the relevant sales data, the proposed price, and the
catalog price (including any related discounts, refunds, rebates, offsets, or other
adjustments);
(C) For items priced based on market pricing, a description of the
nature of the commercial market, the methodology used to establish a market price, and
all relevant sales data. The description shall be adequate to permit DoD to verify the
accuracy of the description;
(D) For items included on an active Federal Supply Service Multiple
Award Schedule contract, proof that an exception has been granted for the schedule
item; or
(E) For items provided by nontraditional defense contractors, a
statement that the entity is not currently performing and has not performed, for at least
the 1-year period preceding the solicitation of sources by DoD for the procurement or
transaction, any contract or subcontract for DoD that is subject to full coverage under
the cost accounting standards prescribed pursuant to 41 U.S.C. 1502 and the
regulations implementing such section.
(2) The Offeror grants the Contracting Officer or an authorized representative
the right to examine, at any time before award, books, records, documents, or other
directly pertinent records to verify any request for an exception under this provision,
and to determine the reasonableness of price.
(c) Requirements for certified cost or pricing data. This acquisition is accomplished
under the authority of section 890 of the National Defense Authorization Act (NDAA)
for Fiscal Year (FY) 2019 (Pub. L. 115-232), as amended by section 825 of the NDAA for
FY 2020 (Pub. L. 116-92), section 818 of the NDAA for FY 2023 (Pub. L. 117-263), and
section 841 of the NDAA for FY 2024 (Pub. L. 118-31). The intent of this pilot program
is to test the efficacy of basing price reasonableness determinations primarily on actual
costs of performance for prior purchases of the same or similar products for the
Department of Defense. If the Offeror is not granted an exception from the requirement
to submit certified cost or pricing data, the following applies:
Page 2 of 6
Attachment 2
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
Changes indicated by a change bar in the right-hand margin
(1) In lieu of providing complete cost or pricing data, as defined in FAR 2.101,
the Offeror shall submit a subset of cost or pricing data and supporting attachments as
follows: [Contracting Officer shall list the specific cost or pricing data deemed necessary
to establish price reasonableness for this acquisition, and describe the required
submission format for each type of data. At a minimum, the Contracting Officer shall
identify the specific prior DoD purchases of the same or similar products for which the
Offeror is required to submit the actual cost of performance. The Offeror is not required
to submit cost or pricing data that is not listed within this provision. If the Contracting
Officer finds that additional cost or pricing data are needed in order to determine that
the price is fair and reasonable, the Contracting Officer shall issue an amendment to the
solicitation, revising this paragraph as needed to require the submission of the
additional data.]
(2)(i) As soon as practicable after agreement on price, but before contract award
(except for unpriced actions such as letter contracts), the Offeror shall submit a
Certificate of Current Cost or Pricing Data, using the following language:
Certificate of Current Cost or Pricing Data for Acquisitions Accomplished under the
Authority of Section 890 of the National Defense Authorization Act (NDAA) for Fiscal
Year (FY) 2019, as amended by Section 825 of the NDAA for FY 2020, Section 818 of the
NDAA for 2023, and Section 841 of the NDAA for FY 2024
This is to certify that, to the best of my knowledge and belief, the cost or pricing data
required by the provision at 252.215-7010, Requirements for Certified Cost or Pricing
Data and Data Other Than Certified Cost or Pricing Data (DEVIATION 2024-O0007) of
the Request for Proposal for this action, and submitted either actually or by specific
identification in writing, to the Contracting Officer or to the Contracting Officer's
Representative in support of ________* are accurate, complete, and current as of
________**. This certification includes the cost or pricing data supporting any advance
agreements and forward pricing rate agreements between the Offeror and the
Government that are part of the proposal.
Firm _____________________________________________
Signature _________________________________________
Name ____________________________________________
Title _____________________________________________
Date of execution***________________________________
*Identify the proposal involved, giving the appropriate identifying number (e.g., RFP
No.).
**Insert the day, month, and year when price negotiations were concluded and price
agreement was reached or, if applicable, an earlier date agreed upon between the
parties that is as close as practicable to the date of agreement on price.
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Attachment 2
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
Changes indicated by a change bar in the right-hand margin
***Insert the day, month, and year of signing, which should be as close as
practicable to the date when the price negotiations were concluded and the contract
price was agreed to.
(ii) The certificate does not constitute a representation as to the accuracy of
the Offeror’s judgment on the estimate of future costs or projections. It applies to the
data upon which the judgment or estimate was based. This distinction between fact
and judgment should be clearly understood. With respect to the certified cost or pricing
data required by paragraphs (c)(1) or (e) of this provision (as revised by solicitation
amendment, if applicable), if the Offeror had information reasonably available at the
time of agreement showing that the negotiated price was not based on accurate,
complete, and current data, the Offeror’s responsibility is not limited by any lack of
personal knowledge of the information on the part of its negotiators.
(iii) The Contracting Officer and Offeror are encouraged to reach a prior
agreement on criteria for establishing closing or cutoff dates when appropriate in order
to minimize delays associated with proposal updates. Closing or cutoff dates applicable
to the certified cost or pricing data required by paragraphs (c)(1) or (e) of this provision
should be included as part of the data submitted with the proposal and, before
agreement on price, data should be updated by the contractor to the latest closing or
cutoff dates for which the data are available. Use of cutoff dates coinciding with reports
is acceptable, as certain data may not be reasonably available before normal periodic
closing dates (e.g., actual indirect costs). Data within the Offeror’s or a subcontractor’s
organization on matters significant to contractor management and to the Government
will be treated as reasonably available, if that data was required to be submitted by
paragraph (c)(1) or (e) of this provision. What is significant depends upon the
circumstances of each acquisition.
(iv) Possession of a Certificate of Current Cost or Pricing Data is not a
substitute for examining and analyzing the Offeror’s proposal.
(v) If certified cost or pricing data are requested by the Government and
submitted by the Offeror, but an exception is later found to apply, the data shall not be
considered certified cost or pricing data and shall not be certified in accordance with
this subsection.
(3) The Offeror is responsible for determining whether a subcontractor qualifies
for an exception from the requirement for submission of certified cost or pricing data on
the basis of adequate price competition, i.e., two or more responsible offerors, competing
independently, submit priced offers that satisfy the Government's expressed
requirement in accordance with FAR 15.403-1(c)(1).
(d) Requirements for data other than certified cost or pricing data.
(1) Data other than certified cost or pricing data submitted in accordance with
this provision shall include all data necessary to permit a determination that the
proposed price is fair and reasonable, to include the requirements in DFARS
215.402(a)(i) and 215.404-1(b).
Page 4 of 6
Attachment 2
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
Changes indicated by a change bar in the right-hand margin
(2) In cases in which uncertified cost data is required, the information shall be
provided in the form in which it is regularly maintained by the Offeror or prospective
subcontractor in its business operations.
(3) The Offeror shall provide information described as follows: [Insert
description of the data and the format that are required, including access to records
necessary to permit an adequate evaluation of the proposed price in accordance with
FAR 15.403-3].
(4) Within 10 days of a written request from the Contracting Officer for
additional information to support proposal analysis, the Offeror shall provide either the
requested information, or a written explanation for the inability to fully comply.
(5) Subcontract price evaluation.
(i) The Offeror shall obtain from subcontractors the minimum information
necessary to support a determination of price reasonableness, as described in FAR part
15 and DFARS part 215.
(ii) No cost information may be required from a prospective subcontractor in
any case in which there are sufficient non-Government sales of the same item to
establish reasonableness of price.
(iii) If the Offeror relies on relevant sales data for similar items to
determine the price is reasonable, the Offeror shall obtain only that technical
information necessary—
(A) To support the conclusion that items are technically similar; and
(B) To explain any technical differences that account for variances
between the proposed prices and the sales data presented, but excluding paragraph (c),
in all subcontracts exceeding the simplified acquisition threshold defined in FAR part 2.
(e) Subcontracts.
(1) For subcontracts above the threshold for submission of certified cost or
pricing data in FAR 15.403-4 to which the authority of the Section 890 pilot has been
flowed down, in lieu of the requirements in paragraphs (a) and (b) of the clause at
52.215-12, Subcontractor Certified Cost or Pricing Data, of this solicitation, the Offeror
shall require the subcontractor to submit a subset of cost or pricing data (actually or by
specific identification in writing) as follows:
(i) [Contracting Officer shall add paragraphs as necessary to identify each
first-tier subcontract to which the authority of the Section 890 pilot has been flowed
down, and the specific certified cost or pricing data required for each subcontract.
Contracting Officer shall list the specific cost or pricing data deemed necessary to
determine that the price is fair and reasonable for each subcontract, and describe the
required submission format for each type of data. The type and extent of data required
may differ based on the dollar value of the subcontract proposal, or other appropriate
considerations. At a minimum, the Contracting Officer shall identify the specific prior
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Attachment 2
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
Changes indicated by a change bar in the right-hand margin
subcontracts awarded in support of the DoD purchases of the same or similar products
for which the subcontractor is required to submit the actual cost of performance. The
Contracting Officer shall specify whether the authority of the Section 890 pilot is further
flowed down to any lower-tier subcontract pertaining to each first-tier subcontract.
Where the pilot authority is flowed down to lower-tier subcontracts, the Contracting
Officer shall describe the specific certified cost or pricing data that is to be provided by
each affected lower-tier subcontractor. The subcontractor and lower tier subcontractors to
which the pilot authority is flowed down are not required to submit certified cost or
pricing data that is not listed within this provision. If the Contracting Officer finds that
additional certified cost or pricing data are needed in order to determine that the price is
fair and reasonable, the Contracting Officer shall issue an amendment to the solicitation,
revising this paragraph as needed to require the submission of the additional data.]
(ii) In the event a subcontractor denies the Offeror access to the data
described in paragraph (e)(1)(i) of this provision, the data may be provided directly to
the Contracting Officer.
(iii) If a subcontractor is unable to provide the extent of historical actual cost
experience required by paragraph (e)(1)(i), then the Offeror shall require the
subcontractor to provide certified cost or pricing data in accordance with paragraph
(e)(2) of this clause.
(iv) The Offeror shall require the subcontractor to certify in substantially
the form prescribed in paragraph (c)(2) of this provision that, to the best of its
knowledge and belief, the data submitted under paragraph (e)(1)(i) of this provision
were accurate, complete, and current as of the date of agreement on the negotiated price
of the subcontract.
(2) For subcontracts above the threshold for submission of certified cost or
pricing data in FAR 15.403-4 to which the authority of the Section 890 pilot has not
been flowed down, the Offeror shall require the subcontractor to provide certified cost or
pricing data in accordance with the clause at 52.215-12, Subcontractor Certified Cost or
Pricing Data, of this solicitation and shall require the subcontractor to certify in
substantially the form prescribed in FAR 15.406-2 that, to the best of its knowledge and
belief, the data submitted under paragraph (a) of the clause at 52.215-12 were accurate,
complete, and current as of the date of agreement on the negotiated price of the
subcontract.
(End of provision)
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Attachment 3
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
252.215-7997 Requirements for Certified Cost or Pricing Data and Data Other
Than Certified Cost or Pricing Data—Modifications—Section 890 Pilot
Program. (DEVIATION 2024-O0007)
Use the following deviation clause for contract modifications that the Director,
Defense Pricing and Contracting/Price, Cost and Finance, has authorized for
participation in the Section 890 Pilot Program. This deviation clause will apply to
the modification in lieu of the basic or alternate I or IV of the clause at FAR 52.215-
21.
REQUIREMENTS FOR CERTIFIED COST OR PRICING DATA AND DATA OTHER
THAN CERTIFIED COST OR PRICING DATA—MODIFICATIONS—SECTION 890
PILOT PROGRAM (DEVIATION 2024-O0007) (FEB 2024)
This deviation clause is only applicable to contract modifications that have been
approved by the Director, Defense Pricing and Contracting/Price, Cost and Finance for
participation in the pilot program implementing section 890 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232), as amended by
section 825 of the NDAA for FY 2020 (Pub. L. 116-92), section 818 of the NDAA for FY
2023 (Pub. L. 117-263), and section 841 of the NDAA for FY 2024 (Pub. L. 118-31). The
intent of this pilot program is to test the efficacy of basing price reasonableness
determinations primarily on actual costs of performance for prior purchases of the same
or similar products for the Department of Defense.
(a) Exceptions from certified cost or pricing data.
(1) In lieu of submitting certified cost or pricing data for modifications under
this contract, for price adjustments expected to exceed the threshold set forth in Federal
Acquisition Regulation (FAR) 15.403-4(a)(1) on the date of the agreement on price or the
date of the award, whichever is later, the Contractor may submit a written request for
exception by submitting the information described in paragraphs (a)(1)(i) and (ii) of this
clause. If the threshold for submission of certified cost or pricing data specified in FAR
15.403-4(a)(1) is adjusted for inflation as set forth in FAR 1.109(a), then pursuant to
FAR 1.109(d) the changed threshold applies throughout the remaining term of the
contract, unless there is a subsequent threshold adjustment. The Contracting Officer
may require additional supporting information, but only to the extent necessary to
determine whether an exception should be granted, and whether the price is fair and
reasonable—
(i) Identification of the law or regulation establishing the price offered. If the
price is controlled under law by periodic rulings, reviews, or similar actions of a
governmental body, attach a copy of the controlling document, unless it was previously
submitted to the contracting office.
(ii) Information on modifications of contracts or subcontracts for commercial
items.
(A) If—
(1) The original contract or subcontract was granted an exception
from certified cost or pricing data requirements because the price agreed upon was
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Attachment 3
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
based on adequate price competition or prices set by law or regulation, or was a contract
or subcontract for the acquisition of a commercial item; and
(2) The modification (to the contract or subcontract) is not
exempted based on one of these exceptions, then the Contractor may provide
information to establish that the modification would not change the contract or
subcontract 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.
(B) For a commercial item exception, the Contractor shall provide, at a
minimum, information on prices at which the same item or similar items have
previously been sold that is adequate for evaluating the reasonableness of the price of
the modification. Such information may include—
(1) For catalog items, a copy of or identification of the catalog and
its date, or the appropriate pages for the offered items, or a statement that the catalog is
on file in the buying office to which the proposal is being submitted. Provide a copy or
describe current discount policies and price lists (published or unpublished), e.g.,
wholesale, original equipment manufacturer, or reseller. Also explain the basis of each
offered price and its relationship to the established catalog price, including how the
proposed price relates to the price of recent sales in quantities similar to the proposed
quantities.
(2) For market-priced items, the source and date or period of the
market quotation or other basis for market price, the base amount, and applicable
discounts. In addition, describe the nature of the market.
(3) For items included on an active Federal Supply Service
Multiple Award Schedule contract, proof that an exception has been granted for the
schedule item.
(2) The Contractor grants the Contracting Officer or an authorized
representative the right to examine, at any time before award, books, records,
documents, or other directly pertinent records to verify any request for an exception
under this clause, and the reasonableness of price. For items priced using catalog or
market prices, or law or regulation, access does not extend to cost or profit information
or other data relevant solely to the Contractor’s determination of the prices to be offered
in the catalog or marketplace.
(b) Requirements for certified cost or pricing data. If the Contractor is not granted
an exception from the requirement to submit certified cost or pricing data, the following
applies:
(1) In lieu of providing complete cost or pricing data in accordance with the
clause at FAR 52.215-21 of this contract, the Contractor shall submit a subset of cost or
pricing data, data other than certified cost or pricing data, and supporting attachments
as specified by the Contracting Officer in the request for proposal for the modification.
The Contracting Officer will list the specific cost or pricing data deemed necessary to
stablish price reasonableness for this contract modification, and describe the required
submission format for each type of data. At a minimum, the Contracting Officer will
identify the specific prior DoD purchases of the same or similar products for which the
Page 2 of 6
Attachment 3
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
contractor is required to submit the actual cost of performance. The Contractor is not
required to submit cost or pricing data that is not listed within the request for proposal
for the modification. If the Contracting Officer finds that additional cost or pricing data
are needed in order to determine that the price is fair and reasonable, the Contracting
Officer will issue an amendment to the request for proposal, and the Contractor will be
required to submit the additional data.
(2)(i) As soon as practicable after agreement on price, but before award (except
for unpriced actions), the Contractor shall submit a Certificate of Current Cost or
Pricing Data, using the following language:
Certificate of Current Cost or Pricing Data for Contract Modifications Accomplished
under the Authority of Section 890 of the National Defense Authorization Act (NDAA)
for Fiscal Year (FY) 2019, as amended by Section 825 of the NDAA for FY 2020, Section
818 of the NDAA for 2023, and Section 841 of the NDAA for FY 2024.
This is to certify that, to the best of my knowledge and belief, the cost or pricing data
required for this contract modification, in accordance with the request for proposal for
this contract modification and the deviation clause at 252.215-7997, Requirements for
Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data—
Modifications—Section 890 Pilot Program (DEVIATION 2024-O0007), and submitted
either actually or by specific identification in writing, to the Contracting Officer or to the
Contracting Officer's Representative in support of ________* are accurate, complete, and
current as of ________**. This certification includes the cost or pricing data supporting
any advance agreements and forward pricing rate agreements between the Contractor
and the Government that are part of the proposal.
Firm _____________________________________________
Signature _________________________________________
Name ____________________________________________
Title _____________________________________________
Date of execution***________________________________
*Identify the proposal involved, giving the appropriate identifying number (e.g., RFP
No.).
**Insert the day, month, and year when price negotiations were concluded and price
agreement was reached or, if applicable, an earlier date agreed upon between the
parties that is as close as practicable to the date of agreement on price.
***Insert the day, month, and year of signing, which should be as close as
practicable to the date when the price negotiations were concluded and the contract
price was agreed to.
(ii) The certificate does not constitute a representation as to the accuracy of
the Contractor’s judgment on the estimate of future costs or projections. It applies to
the data upon which the judgment or estimate was based. This distinction between fact
Page 3 of 6
Attachment 3
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
and judgment should be clearly understood. With respect to the certified cost or pricing
data required by paragraphs (b) or (d) of this clause, if the Contractor had information
reasonably available at the time of agreement showing that the negotiated price was
not based on accurate, complete, and current data, the Contractor’s responsibility is not
limited by any lack of personal knowledge of the information on the part of its
negotiators.
(iii) The Contracting Officer and Contractor are encouraged to reach a prior
agreement on criteria for establishing closing or cutoff dates when appropriate in order
to minimize delays associated with proposal updates. Closing or cutoff dates applicable
to the certified cost or pricing data required by paragraphs (b)(1) or (d) of this clause
should be included as part of the data submitted with the proposal and, before
agreement on price, data should be updated by the contractor to the latest closing or
cutoff dates for which the data are available. Use of cutoff dates coinciding with reports
is acceptable, as certain data may not be reasonably available before normal periodic
closing dates (e.g., actual indirect costs). Data within the Contractor’s or a
subcontractor’s organization on matters significant to contractor management and to
the Government will be treated as reasonably available, if that data was required to be
submitted by paragraph (b)(1) or (d)(1) and (d)(2) of this clause. What is significant
depends upon the circumstances of each acquisition.
(iv) Possession of a Certificate of Current Cost or Pricing Data is not a
substitute for examining and analyzing the Contractor’s proposal.
(v) If certified cost or pricing data are requested by the Government and
submitted by the Contractor, but an exception is later found to apply, the data shall not
be considered certified cost or pricing data and shall not be certified in accordance with
this subsection.
(3) The Contractor is responsible for determining whether a subcontractor
qualifies for an exception from the requirement for submission of certified cost or
pricing data on the basis of adequate price competition, i.e., two or more responsible
offerors, competing independently, submit priced offers that satisfy the Government's
expressed requirement in accordance with FAR 15.403-1(c)(1).
(c) Requirements for data other than certified cost or pricing data.
(1) Data other than certified cost or pricing data submitted in accordance with
this clause shall include all data necessary to permit a determination that the proposed
price is fair and reasonable, to include the requirements in Defense Federal Acquisition
Regulation Supplement (DFARS) 215.402(a)(i) and 215.404-1(b).
(2) In cases in which uncertified cost data is required, the information shall be
provided in the form in which it is regularly maintained by the Contractor or
prospective subcontractor in its business operations.
(3) The Contractor shall provide information described as follows: [Insert
description of the data and the format that are required, including access to records
necessary to permit an adequate evaluation of the proposed price in accordance with
FAR 15.403-3].
Page 4 of 6
Attachment 3
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
(4) Within 10 days of a written request from the Contracting Officer for
additional information to support proposal analysis, the Contractor shall provide either
the requested information, or a written explanation for the inability to fully comply.
(5) Subcontract price evaluation.
(i) The Contractor shall obtain from subcontractors the information
necessary to support a determination of price reasonableness, as described in FAR part
15 and DFARS part 215.
(ii) No cost information may be required from a prospective subcontractor in
any case in which there are sufficient non-Government sales of the same item to
establish reasonableness of price.
(iii) If the Contractor relies on relevant sales data for similar items to
determine the price is reasonable, the Contractor shall obtain only that technical
information necessary—
(A) To support the conclusion that items are technically similar; and
(B) To explain any technical differences that account for variances
between the proposed prices and the sales data presented.
(d) Subcontracts. The Contractor shall insert the substance of this clause, including
this paragraph (d), but excluding paragraph (b), in all subcontracts exceeding the
simplified acquisition threshold defined in FAR part 2.
(1) For subcontracts above the threshold for submission of certified cost or
pricing data in FAR 15.403-4 to which the authority of the Section 890 pilot has been
flowed down, in lieu of the requirements in paragraphs (a) and (b) of the clause at
52.215-13, Subcontractor Certified Cost or Pricing Data—Modifications, of this contract,
the Contractor shall require the subcontractor to submit a subset of cost or pricing data
(actually or by specific identification in writing) as specified in the request for proposal
for the modification.
(i) The Contracting Officer will add paragraphs in the request for proposal
as necessary to identify each first-tier subcontract to which the authority of the Section
890 pilot has been flowed down, and the specific certified cost or pricing data required
for each subcontract. Contracting Officer will list the specific cost or pricing data
deemed necessary to determine that the price is fair and reasonable for each
subcontract, and describe the required submission format for each type of data. The
type and extent of data required may differ based on the dollar value of the subcontract
proposal, or other appropriate considerations. At a minimum, the Contracting Officer
will identify the specific prior subcontracts awarded in support of the DoD purchases of
the same or similar products for which the subcontractor is required to submit the
actual cost of performance. The Contracting Officer will specify whether the authority
of the Section 890 pilot is further flowed down to any lower-tier subcontract pertaining
to each first-tier subcontract. Where the pilot authority is flowed down to lower-tier
subcontracts, the Contracting Officer will describe the specific certified cost or pricing
data that is to be provided by each affected lower-tier subcontractor. The subcontractor
and lower tier subcontractors to which the pilot authority is flowed down are not
Page 5 of 6
Attachment 3
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
required to submit certified cost or pricing data that is not listed within the request for
proposal.
(ii) In the event a subcontractor denies the Contractor access to the data
described in paragraph (d)(1)(i) of this clause, the data may be provided directly to the
Contracting Officer.
(iii) If a subcontractor is unable to provide the extent of historical actual cost
experience required by paragraph (d)(1)(i), then the Contractor shall require the
subcontractor to provide certified cost or pricing data in accordance with paragraph
(d)(2) of this clause.
(iv) The Contractor shall require the subcontractor to certify in
substantially the form prescribed in paragraph (b)(2) of this clause that, to the best of
its knowledge and belief, the data submitted under paragraph (d)(1)(i) of this clause
were accurate, complete, and current as of the date of agreement on the negotiated price
of the subcontract or subcontract modification.
(2) For subcontracts above the threshold for submission of certified cost or
pricing data in FAR 15.403-4 to which the authority of the Section 890 pilot has not
been flowed down, the Contractor shall require the subcontractor to provide certified
cost or pricing data in accordance with the clause at 52.215-13, Subcontractor Certified
Cost or Pricing Data–Modifications, of this contract and shall require the subcontractor
to certify in substantially the form prescribed in FAR 15.406-2 that, to the best of its
knowledge and belief, the data submitted under paragraph (a) of this clause were
accurate, complete, and current as of the date of agreement on the negotiated price of
the subcontract or subcontract modification.
(End of clause)
Page 6 of 6
Attachment 4
Class Deviation 2024-O0007
Section 890 Pilot Program to Accelerate Contracting and Pricing Processes
252.215-7998 Pilot Program to Accelerate Contracting and Pricing
Processes. (DEVIATION 2024-O0007)
Use the following deviation clause in solicitations and resulting contracts or in a
contract with a contract modification that the Director, Defense Pricing and
Contracting/Price, Cost and Finance, has authorized for participation in the Section
890 Pilot Program.
PILOT PROGRAM TO ACCELERATE CONTRACTING AND PRICING
PROCESSES (DEVIATION 2024-O0007) (FEB 2024)
(a) One or more contract actions under this acquisition is accomplished under
the authority of section 890 of the National Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2019 (Pub. L. 115-232), as amended by section 825 of the NDAA for
FY 2020 (Pub. L. 116-92), section 818 of the NDAA for FY 2023 (Pub. L. 117-263),
and section 841 of the NDAA for FY 2024 (Pub. L. 118-31). The intent of this pilot
program is to test the efficacy of basing price reasonableness determinations
primarily on actual costs of performance for prior purchases of the same or similar
products for the Department of Defense.
(b) As a condition of participating in this pilot program, the Contractor shall
submit to the Contracting Officer the following:
(1) Verifiable data documenting any proposal preparation and negotiation
support savings (time and money) achieved as a result of this pilot program. This
data shall be provided—
(i) For contracts that are subject to the pilot program, within 3 months
after contract award; or
(ii) For contract modifications that are subject to the pilot program,
within 3 months after execution of the modification.
(2) The actual cost of performance for the contract action that was subject to
the pilot program. This information shall be provided within 3 months after
completion of performance of the part of the contract action that was subject to the
pilot program.
(End of clause)
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