Gov Researcher

Hello everyone, Does anyone know the rough equivalent of something approaching (i.e., analogous to) "cost or pricing data" in any other countries, such as European Union countries? If so, what do these countries call it? Also, do you know of any countries with requirements that have similarities to the Truth in Negotiations Act (TINA), which require more detailed data for specific contracts (such as contracts above a certain price threshold)? Many thanks!

Thank you, Joel, Jamaal, and Vern! My Cibinic, Nash, and Yukins' Formation book should be arriving any day now and your references were very useful, Jamaal. To respond to Joel's question: I believe one example of a conflict between U.S.C. and FAR (unless I am missing something) occurred after Section 811 of the 2018 National Defense Authorization Act (NDAA) amended 10 U.S.C. 2306a and 41 U.S.C. 3502 to change the cost or pricing data (TINA) threshold to $2 million, effective for contracts entered into after June 30th, 2018. Subsequently, a small handful of agencies such as the DoD and DOE filed class deviations to FAR to follow the $2 million threshold specified in the 2018 NDAA, by June 30th, 2018. I believe the rest of the federal agencies did not implement the new threshold until FAR 15.403-4 was updated August 3rd, 2020 to be retroactively effective for contracts entered into on or after June 30th, 2018 via FAC 2020-07. This brings a couple of questions to mind for everyone: 1.) Were agencies that did not file a class deviation still supposed to follow the U.S.C. amendments mentioned above as soon as they became effective, or were these amendments to the U.S.C. that specifically required the Councils to implement them (or approve class deviations) first? 2.) Are the DoD and other military agencies expected to follow (amended) U.S.C. in more circumstances than civilian agencies? Perhaps by just more regularly or quickly filing class deviations to FAR to make it consistent with U.S.C.? Many thanks, everyone!

Hi everyone, A quick search on Wifcon did not yield any other threads that answered this and, looking online, I have not found clear answers to the following questions: What is the relationship between United States Code (U.S.C.) and the Federal Acquisition Regulations (FAR)? As a Contracting Officer, which one do you abide by in practice and what if one contradicts the other? Finally, how do National Defense Authorization Acts factor into the writing of U.S.C. and FAR? Thank you!

Hi everyone, Thank you all for your outstanding perspectives related to the FPDS database's "cost or pricing data" field. Just to check my understanding of the main takeaways from this thread, I have summarized my understanding below. Please let me know if I seem to have misinterpreted anything: Based on these Wifcon discussions, cost or pricing data may indeed be provided for a contract but not certified. However, if the FPDS' "cost or pricing data" field indicates that cost or pricing data was provided for a contract with a negotiated price below the TINA threshold, then based on Vern's belief that there is a threshold for submission of cost or pricing data but not a threshold for certification (quoted below), that cost or pricing data by regulation/statute should have been certified whenever (a) none of the exceptions from 15.403-1(b) apply AND either (b) the KO expected the price to exceed the TINA threshold (and thus certified cost or pricing data was obtained) but the agreed-upon price fell below the threshold or (c) the agency head required the KO to request certification even though the contract price was likely to fall below the TINA threshold. If the negotiated price is above the TINA threshold, then if the field indicates cost or pricing data was provided that data should have been certified (AND none of the exceptions from 15.403-1(b) should have applied). If there was a mistake on behalf of the KO and certified cost or pricing data was provided even though an exception at 15.403-1(b) applied, then it should remedied as soon as exception is found to apply by becoming retroactively uncertified at the moment it was provided. This paragraph can be true since the DFARS 253.204-70(c)(4)(xi) along with the entire DFARS 253.204 has been removed by the DAR Council (if the spirit of DFARS 253.204-70(c)(4)(xi) were still followed by defense agencies' KO's then for those agencies the cost or pricing data field should instead always indicate whether certified cost or pricing data was obtained).

Ah, this makes a lot more sense and is closer to my original interpretation of cost or pricing data. After focusing perhaps too much on what the FAR has to say about certified cost or pricing data I began to wonder if there was a separate definition for cost or pricing data (besides being lumped into the term "other than certified cost or pricing data"), which led me to the question I posted above... Precisely! At least at the time of award. Joel's post defining cost or pricing data raises some doubts in my mind about this assumption (thank you for your input, Joel!). Regardless, it sounds like Joel suggests KO's would still be more likely to interpret the "cost or pricing data" field in the FPDS-NG as indicating certified cost or pricing data. Does anyone else have an opinion on this, as well?

Vern, thank you for pointing out a typo which was crucial to the point I was trying to make (discussed further below), and to both you and Joel for your sage insights. I will definitely look into the Defective Pricing Handbook. In light of Vern and Joel's points, my main interest is how accurate it would (likely) be to assume that, as entered in the FPDS, the cost or pricing data field currently indicates, for both non-defense agencies and defense agencies, whether the contractor provided cost or pricing data that was certified at least at the time of award. Since (1) the FAR classifies data that is equivalent to certified cost or pricing data but without the certification as “other than certified cost or pricing data” rather than simply “cost or pricing data”, (2) DFARS 253.204-70 was at one point explicit that this field should indicate certified cost or pricing data for defense agencies [prior to deletion apparently for a reason unrelated to certification] as Joel and Vern pointed out), and (3) DFARS 253.204-70 is still referenced in the FPDS instructions today, my belief would be that KO’s at non-defense agencies in practice by and large also interpret this field as indicating whether cost or pricing data was provided and certified at the time of award. Would you all say that belief sounds reasonable?

Hello everyone, Is Wifcon open to FPDS-NG (GSA's Federal Procurement Data System - Next Generation) data questions that relate to FAR? In particular, I am trying to figure out: The FPDS Data Element Dictionary suggests the "cost or pricing data" field indicates that cost or pricing data was provided, does this mean that data was certified at the time of award even if the contract price was below the cost or pricing data threshold shown in FAR 15.403 (perhaps because the head of contracting activity requested it per FAR 15.403-4(2))? Given that the FAR refer to non-certified cost or pricing data simply as "data other than certified cost or pricing data", would this field even be called "cost or pricing data" if that data were not indeed certified, at least at the time of award? Many thanks!

Thank you Don, Joel, and everyone for your insightful responses. They provided a lot of clarity on this topic, both from regulatory and real world points of view. Happy New Year!

Joel, thank you for pointing out my mistake. It sounded like I am asking about competitively negotiated situations, when I am interested in scenarios in which cost or pricing data is required (i.e. other than sealed bid procedures where the exceptions do not apply). My question should have read as follows: (1) If the contracting officer is not "reasonably certain" the proposed price will be above the certified cost or pricing data threshold, but it turns out the bid (or negotiated price) does come in above the threshold, should the contracting officer still require certified cost or pricing data from the contractor per FAR (when no exceptions apply)? Essentially I am curious whether the KO should always require certified cost or pricing data above the threshold when the exceptions are not met, regardless of the KO's "anticipated value" of the contract beforehand.

Thanks for the many responses (several quite detailed - all much appreciated)! I learned something from each response. Based on Don's response above, it appears that technically the answer to the first question in my original post was (b). Is that correct? A few questions for everyone related to Don's response above: (1) If the contracting officer is not "reasonably certain" the proposed price will be above the certified cost or pricing data threshold, but it turns out all of the bids come in above the threshold, should the contracting officer still require certified cost or pricing data from each bidder per FAR (perhaps by re-soliciting with the provision at FAR 52.215-20 inserted, re-bidding, etc.)? (2) If the answer to (1) above is yes, then does that mean that effectively the answer to the first question in my original post is (a) in practice, since (barring exceptions in FAR or waivers) anytime the cost is expected to exceed the threshold, the contracting officer should require certified cost or pricing data in the end? (3) Is there a generally accepted definition or interpretation for "reasonably certain", as used in FAR 52.215-20 for example (such as > 70% probability, > 50% probability, etc.)? (4) Do KO's tend to err on the side of requiring certified cost or pricing data if the bids are likely to be near the threshold in your experience?

Hello everyone, I am an engineer-turned-economist. My experience as an engineer includes managing the design of large, private factory projects. Public procurement is a new interest of mine, so please forgive my lack of familiarity. From you all's experience, is the threshold for when cost or pricing data is required for other than sealed-bid procedures based on (a) the price expected after the bid for the contract in question is received, or (b) the "government estimate" made before the receipt of a bid from a contractor? For example, 41 U.S.C. Section 3502.a states, "An offeror for a prime contract under this division to be entered into using procedures other than sealed-bid procedures shall be required to submit cost or pricing data before the award of a contract if - in the case of a prime contract entered into after June 30, 2018, the price of the contract to the Federal Government is expected to exceed $2,000,000..." FAR 15.403-4 states that, "The contracting officer shall obtain certified cost or pricing data only if the contracting officer concludes that none of the exceptions in 15.403-1(b) applies." Barring exceptions or waivers, it continues, "The threshold for obtaining certified cost or pricing data is $750,000 for prime contracts awarded before July 1, 2018, and $2 million for prime contracts awarded on or after July 1, 2018." My reading of this FAR section makes me believe the answer is (a), above. If I only read the U.S.C. section above however I would think the answer was (b). On a related note, is the government only required to create its own estimates (or even define an "anticipated" value) for construction projects (FAR 36.203)? Many thanks for the opportunity to post here!