Background - Practices (Regulatory & Policy) - 2016 Update

Regulatory & Policy

Here We Go Again: DFARS Changes to the "Only One Offer" Rule

Jul.30.2019

As we noted in a recent post, for several years, the Defense Federal Acquisition Regulation Supplement (DFARS) has contained a rule at DFARS 215.371-3(a) that if only one offer is received, even if submitted with the expectation of competition, the adequate price competition exception from the requirement to submit certified cost or pricing data does not apply unless an official at a level above the Contracting Officer (CO) approves the determination that the price is reasonable. On June 28, 2019, DoD issued a final rule to implement Section 822 of the Fiscal Year 2017 National Defense Authorization Act, which eliminates DFARS 215.371-3(a) and, thus, the applicability of the adequate price competition exception under FAR 15.403-1(b)(1) to single-offer situations. The rule also, among other things:

  • Streamlines the existing requirements at DFARS 215.371-3(b), with additional emphasis on the requirement to obtain certified cost or pricing data when only one offer is received; and
  • Imposes responsibility on offerors for determining whether a subcontractor qualifies for an exception from the certified cost or pricing data requirement on the basis of adequate competition.

On July 16, 2019, DoD issued minor technical corrections to the rule, which is effective July 31, 2019.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Nicole Owren-Wiest
Partner – Washington, D.C.
Phone: +1 202.624.2863
Email: nowrenwiest@crowell.com
Elizabeth Buehler
Counsel – Washington, D.C.
Phone: +1 202.624.2821
Email: ebuehler@crowell.com
Charles Baek
Associate – Washington, D.C.
Phone: +1 202.624.2894
Email: cbaek@crowell.com
Catherine O. Shames
Associate – Washington, D.C.
Phone: +1 202.688.3446
Email: cshames@crowell.com