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When are Prime contractors required to obtain Certified Cost or

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If a Prime Contractor is awarded a Firm Fixed Price contract

what are his obligations for requiring Certified Cost or Pricing data

from subcontractors?

Are Prime contractors required to obtain Certified Cost or

Pricing data from subcontractors if negotiations with the subcontractors

begin after the Prime submits their Certification?

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Midas, (that name sounds appropriate) have you read the clauses 52.215-12 and -13? Don't they answer your questions?

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Midas, (that name sounds appropriate) have you read the clauses 52.215-12 and -13? Don't they answer your questions?

Thanks for the feedback - let me rephrase the question. In the clause 52.215-12, is "the date of agreement on price or the date of award" referring to the relationship between the Government and the Prime or between the Prime and the Subcontractor?

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Thanks for the feedback - let me rephrase the question. In the clause 52.215-12, is "the date of agreement on price or the date of award" referring to the relationship between the Government and the Prime or between the Prime and the Subcontractor?

Are you asking when is the relevant date to have the sub certify its cost or pricing data?

It may be required more than once.

To anaswer your question, check out the NCMA Headquarters website, for a presentation entitled "Managing Subcontract Defective Pricing" that was presented on April 27, 2005. The presentation can be found at the below URL

www.ncmahq.org/files/FileDownloads/PPTs/809_Masiello.ppt

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Thanks for the feedback - let me rephrase the question. In the clause 52.215-12, is "the date of agreement on price or the date of award" referring to the relationship between the Government and the Prime or between the Prime and the Subcontractor?

The date refers to the relationship between the Prime and its Sub.

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Are you asking when is the relevant date to have the sub certify its cost or pricing data?

It may be required more than once.

To anaswer your question, check out the NCMA Headquarters website, for a presentation entitled "Managing Subcontract Defective Pricing" that was presented on April 27, 2005. The presentation can be found at the below URL

www.ncmahq.org/files/FileDownloads/PPTs/809_Masiello.ppt

Thanks to all for your help!!! Here is a scenario:

1) Prime contractor has been awared a FFP contract to perform work and work has begun

2) One of the original subcontractors is failling to perfrom or Prime decides to offload work

3) Prime contractor enters into negotiations with new subcontractor as a contingency plan

4) Value of this proposal exceeds the $650,000 threshold and it is not commercial or competitive

5) Prime contractor is requiring new subcontractor to provide certified cost and pricing data

In the above situation, does the FAR require the Prime to request and the subcontractor to provide cost and pricing data? If so, doesn't it feel counter-intuitive that, after being awarded a FFP contract, a Prime is required to obtain cost and pricing data from a subcontractor since at the end of the day the government price will be unaffected by any price negotiations between the Prime and the subcontractor?

Thanks again for the support!!

Would the following statment accurately reflect the intent of the FAR:

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This is a post award contractor internal problem that doesn't have any affect or bearing on the integrity of the initial negotiated award between the Contractor and the Government. The TINA isnt applicable to this situation. The Contractor must get the work done and is using a replacement subcontractor for one who failed. He didn't know that at the time of price agreement with the Government. The cost or pricing data was supposedly current at the time of the initial award of the work or at the time of agreement with the Government.

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This is a post award contractor internal problem that doesn't have any affect or bearing on the integrity of the initial negotiated award between the Contractor and the Government. The TINA isnt applicable to this situation. The Contractor must get the work done and is using a replacement subcontractor for one who failed. He didn't know that at the time of price agreement with the Government. The cost or pricing data was supposedly current at the time of the initial award of the work or at the time of agreement with the Government.

Your assessment of the scenario is correct, however, the open question is whether or not the replacement subcontractor needs to provide cost and pricing data to the Prime? The Prime suggets that it is required to obtain this information because it is a negotiated subcontract exceeding the threshold and the subcontract does not meet any of the other 15.403 exceptions.

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Your assessment of the scenario is correct, however, the open question is whether or not the replacement subcontractor needs to provide cost and pricing data to the Prime? The Prime suggets that it is required to obtain this information because it is a negotiated subcontract exceeding the threshold and the subcontract does not meet any of the other 15.403 exceptions.

The prime can require the new sub to submit this information to preserve a private right of action against its sub for defective pricing that causes an increase in its subcontract price.

However, this subcontract has no relationship to the price that the government paid for the work, which is the ultimate purpose of the Truth in Negotiations Act. The contract price was already negotiated and established, prior to this action being taken to replace the defaulted sub. The contract price was or should have been negotiated upon the best information available at that time, not after the original sub defaults and is replaced by a subsequent sub.

The Government would not be able to receive any benefit of a price reduction for defective pricing, unless a subsequent prime contract modification is based upon defective pricing. Then, the modification action might involve TINA cost or pricing data associated with the new action. Plus any false factual information used to price the modification is subject to the False Claims and False Statements Acts, fraud, etc.

The Defective Pricing cases that I've been involved with always examine when the subcontract pricing actions occurred. There may be some cases somewhere, but we would not get involved in a case like this. This data does not meet the definition of cost or pricing data concerning the pricing of the prime contract, as it occurs long after the date of agreement on the price of the CONTRACT between the government and the prime. In a relatively old "BRIEFING PAPERS" article (Federal Publications, July 1993), the author states on page 9 that "Given the DCAA position" (that because a later formation of a subcontract will not affect the price the Government pays under its fixed-price contract with the prime) "there is no need to require a subcontractor to submit a certificate at the time of prime/subcontractor agreement even though the FAR appears to require one." It goes on to say that it "is time consuming, costly and may cause unnecessary litlgation". It also goes onto say that the prime may require it as I mentioned above for its own purposes.

Technically, this information isn't even "cost or pricing data" per the statutory definition, because it has no relationship to the price being paid by the Government.

The actual statutory definition of cost or pricing data in 10 2306 a (h) is:

"(h) Definitions.--In this section:

(1) Cost or pricing data.--The term ``cost or pricing data'' means all facts that, as of the date of agreement on the price of a contract (or the price of a contract modification), or, if applicable consistent with subsection (e)(1)(B), another date agreed upon between the parties, a prudent buyer or seller would reasonably expect to affect price negotiations significantly. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived.

These later facts don't exist as of the time of agreement on the CONTRACT price and indeed have no bearing on the price paid to the prime contractor by the Government.

I'm not a lawyer, so consult one if you want - plus the prime can require it for their own purposes. However, the Federal Government cant do anything with the info, to my knowledge, so it is unnecessary from the Government's legal point of view. That's not to say that some KO wont require it because the FAR appears to require it, even though it serves no purpose from the government's viewpoint or meet the intent of the Truth in Negotiations Act. Indeed, the KO on your contract may require it and the contract language may appear to require it. But it would be a waste of effort and serve no useful Government purpose that I can think of. A follow-on prime contract mod involving the new sub should use its own basis of pricing.

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The prime can require the new sub to submit this information to preserve a private right of action against its sub for defective pricing that causes an increase in its subcontract price.

However, this subcontract has no relationship to the price that the government paid for the work, which is the ultimate purpose of the Truth in Negotiations Act. The contract price was already negotiated and established, prior to this action being taken to replace the defaulted sub. The contract price was or should have been negotiated upon the best information available at that time, not after the original sub defaults and is replaced by a subsequent sub.

The Government would not be able to receive any benefit of a price reduction for defective pricing, unless a subsequent prime contract modification is based upon defective pricing. Then, the modification action might involve TINA cost or pricing data associated with the new action. Plus any false factual information used to price the modification is subject to the False Claims and False Statements Acts, fraud, etc.

The Defective Pricing cases that I've been involved with always examine when the subcontract pricing actions occurred. There may be some cases somewhere, but we would not get involved in a case like this. This data does not meet the definition of cost or pricing data concerning the pricing of the prime contract, as it occurs long after the date of agreement on the price of the CONTRACT between the government and the prime. In a relatively old "BRIEFING PAPERS" article (Federal Publications, July 1993), the author states on page 9 that "Given the DCAA position" (that because a later formation of a subcontract will not affect the price the Government pays under its fixed-price contract with the prime) "there is no need to require a subcontractor to submit a certificate at the time of prime/subcontractor agreement even though the FAR appears to require one." It goes on to say that it "is time consuming, costly and may cause unnecessary litlgation". It also goes onto say that the prime may require it as I mentioned above for its own purposes.

Technically, this information isn't even "cost or pricing data" per the statutory definition, because it has no relationship to the price being paid by the Government.

The actual statutory definition of cost or pricing data in 10 2306 a (h) is:

"(h) Definitions.--In this section:

(1) Cost or pricing data.--The term ``cost or pricing data'' means all facts that, as of the date of agreement on the price of a contract (or the price of a contract modification), or, if applicable consistent with subsection (e)(1)(B), another date agreed upon between the parties, a prudent buyer or seller would reasonably expect to affect price negotiations significantly. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived.

These later facts don't exist as of the time of agreement on the CONTRACT price and indeed have no bearing on the price paid to the prime contractor by the Government.

I'm not a lawyer, so consult one if you want - plus the prime can require it for their own purposes. However, the Federal Government cant do anything with the info, to my knowledge, so it is unnecessary from the Government's legal point of view. That's not to say that some KO wont require it because the FAR appears to require it, even though it serves no purpose from the government's viewpoint or meet the intent of the Truth in Negotiations Act. Indeed, the KO on your contract may require it and the contract language may appear to require it. But it would be a waste of effort and serve no useful Government purpose that I can think of. A follow-on prime contract mod involving the new sub should use its own basis of pricing.

Many thanks for the responses and insight that you have provided!!!!

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You are welcome. I'm surprised that nobody else jumped in here.

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Many thanks for the responses and insight that you have provided!!!!

Joel, here is an extract from 10 USC 2306a. Based on this language, why do you say this is not a TINA issue and that the prime is not required to obtain cost or pricing data from the sub in this case?

An offeror for a subcontract (at any tier) of a contract under this chapter shall be required to submit cost or pricing data before the award of the subcontract if the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this section

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Joel, here is an extract from 10 USC 2306a. Based on this language, why do you say this is not a TINA issue and that the prime is not required to obtain cost or pricing data from the sub in this case?

An offeror for a subcontract (at any tier) of a contract under this chapter shall be required to submit cost or pricing data before the award of the subcontract if the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this section

Retread, I already explained that this isn't cost or pricing data as defined by statute:

The term ``cost or pricing data'' means all facts that, as of the date of agreement on the price of a contract (or the price of a contract modification), or, if applicable consistent with subsection (e)(1)((bee) , another date agreed upon between the parties, a prudent buyer or seller would reasonably expect to affect price negotiations significantly. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived."

This information cant be cost or pricing data related to the agreement on the price of the contract. The circumstances and pricing were developed long after the date of agreement on the price of the contract, thus has no bearing on the price of the contract. i assume that the contract price may have been related to the original subcontractor's cost or pricing data but not this replacement subcontract. And if you re-read the information from "Briefing Papers, you will see why the author says it is a wasted effort. TINA is intended to benefit the Government. This subcontract has no relation to the negotiation of the contract price and doesn't benefit the Government.

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Retread, I already explained that this isn't cost or pricing data as defined by statute:

The term ``cost or pricing data'' means all facts that, as of the date of agreement on the price of a contract (or the price of a contract modification), or, if applicable consistent with subsection (e)(1)((bee) , another date agreed upon between the parties, a prudent buyer or seller would reasonably expect to affect price negotiations significantly. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived."

This information cant be cost or pricing data related to the agreement on the price of the contract. The circumstances and pricing were developed long after the date of agreement on the price of the contract, thus has no bearing on the price of the contract. i assume that the contract price may have been related to the original subcontractor's cost or pricing data but not this replacement subcontract. And if you re-read the information from "Briefing Papers, you will see why the author says it is a wasted effort. TINA is intended to benefit the Government. This subcontract has no relation to the negotiation of the contract price and doesn't benefit the Government.

Joel, I agree that getting cost or pricing data after award of a contract may be wasted effort in some circumstances, e.g. when the prime contract is firm fixed price. However, wasted effort is not an excuse for not following the statute or contract requirements. In regard to the latter point, FAR 52.215-12, which is a contract clause states "efore awarding any subcontract expected to exceed the threshold for submission of cost or pricing data . . . the Contractor shall require the subcontracor to submit cost or pricing data." Obviously, because this is a contract clause it can only apply after the price of the contract has been agreed upon between the prime contractor and government. This clause does not limit its application to certain contract types or subcontracts contemplated at the time of contract award.

FAR 15.407-1(f)(2) also permits a cost disallowance under contracts other than FFP and FP(EPA) where payments to subcontractors are higher than they would have been in the absence of defective subcontractor cost or pricing data, regardless of when the subcontract was awarded. That is because the "Government has a continuing and direct finaicial interest in such payments that is unaffected by the intial agreement on prime contrac price."

Finally, the definition of cost or pricing data does not restrict cost or pricing data to only facts that would affect the price of the prime contract. It simply refers to the "parties" and "buyers and sellers."

Based upon all of this, I don't see how you arrive at the conclusion that cost or pricing data are not required for subcontracts awarded afte agreement on the price of the prime contract.

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"Based upon all of this, I don't see how you arrive at the conclusion that cost or pricing data are not required for subcontracts awarded afte agreement on the price of the prime contract."

I never said that no sub proposals obtained or settled after the contract or modification award require the submission of cost or pricing data or that it does or doesn't have to be certified. My opinion pertains to this replacement contract. I am assuming that it is the result of poor performance by the subcontractor initially awarded the work and that performance has been started and is ongoing. It has no bearing upon the price proposed by the prime or its initial sub nor upon the contract price that the government will pay for the work.

Retread, you are entitled to your opinion as am I. I maintain that, in this situation, any basis for pricing the replacement subcontract long after the contract action has no bearing upon the price that the government paid for the contract. Therefore, the information is not "cost or pricing data", as defined in the TINA statutes. The Truth in Negotiations Act has a purpose and intent to help the government in its negotiations. It supposedly provides an administrative means to recover excess costs that were the result of "defective cost or pricing data", without having to prove all the criminal elements of fraud, deceit or false statements/claims under those statutes. For instance, you don't have to prove criminal intent to lie, steal, cheat, etc. I dont see any useful purpose in requiring a prime to require its replacement sub to provide certified cost or pricing data" that doesn't meet the intent or the definition of cost or pricing data as it affects the CONTRACT price. I believe that the referenced "Briefing Papers" article said the same thing.

Technically, even if the contractor decides, after awarding a subcontract, that it can get a better price somewhere else, then somehow just terminates the initial sub and signs a cheaper subcontract, there wouldn't be defective cost or pricing data. The cost or pricing data for both the prime and its initial sub was current as of the date of the agreement of both the contract and subcontract. Generally (there are exceptions), the contractor can look for better deals later (unfortunately for both the government and for the subcontracting community). TINA generally focuses on what the contractor or its subs knew or intended at the time of negotiations, not what they might learn later on how to improve the profit margin.

Now, if you insist on being a faithful government paper pusher, more power to you. But, please don't complain about the workload or why contractors think we are stuffed-shirt, unthinking bureaucrats. What benefit do you think that the Government might obtain from requiring that this information ON THIS PARTICULAR REPLACEMENT CONTRACT be certified as current cost or pricing data?

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Incorporated above.

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"Based upon all of this, I don't see how you arrive at the conclusion that cost or pricing data are not required for subcontracts awarded afte agreement on the price of the prime contract."

I never said that no sub proposals obtained or settled after the contract or modification award require the submission of cost or pricing data or that it does or doesn't have to be certified. My opinion pertains to this replacement contract. I am assuming that it is the result of poor performance by the subcontractor initially awarded the work and that performance has been started and is ongoing. It has no bearing upon the price proposed by the prime or its initial sub nor upon the contract price that the government will pay for the work.

Retread, you are entitled to your opinion as am I. I maintain that, in this situation, any basis for pricing the replacement subcontract long after the contract action has no bearing upon the price that the government paid for the contract. Therefore, the information is not "cost or pricing data", as defined in the TINA statutes. The Truth in Negotiations Act has a purpose and intent to help the government in its negotiations. It supposedly provides an administrative means to recover excess costs that were the result of "defective cost or pricing data", without having to prove all the criminal elements of fraud, deceit or false statements/claims under those statutes. For instance, you don't have to prove criminal intent to lie, steal, cheat, etc. I dont see any useful purpose in requiring a prime to require its replacement sub to provide certified cost or pricing data" that doesn't meet the intent or the definition of cost or pricing data as it affects the CONTRACT price. I believe that the referenced "Briefing Papers" article said the same thing.

Technically, even if the contractor decides, after awarding a subcontract, that it can get a better price somewhere else, then somehow just terminates the initial sub and signs a cheaper subcontract, there wouldn't be defective cost or pricing data. The cost or pricing data for both the prime and its initial sub was current as of the date of the agreement of both the contract and subcontract. Generally (there are exceptions), the contractor can look for better deals later (unfortunately for both the government and for the subcontracting community). TINA generally focuses on what the contractor or its subs knew or intended at the time of negotiations, not what they might learn later on how to improve the profit margin.

Now, if you insist on being a faithful government paper pusher, more power to you. But, please don't complain about the workload or why contractors think we are stuffed-shirt, unthinking bureaucrats. What benefit do you think that the Government might obtain from requiring that this information ON THIS PARTICULAR REPLACEMENT CONTRACT be certified as current cost or pricing data?

Joel, simply explain why 52.215-12 does not apply to Midas' situation? Why is this situation not covered by the phrase "any subcontract?"

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Because it isn't cost or pricing data.

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Retread, you didn't answer my question. Suppose you make the Contractor obtain this information. What benefit do you think that the Government might obtain from requiring that this information on this particular contract be certified as current cost or pricing data?

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Reading this is a hoot.

midas asked a seemingly simple question:

[T]he open question is whether or not the replacement subcontractor needs to provide cost and pricing data to the Prime?

The answer to that question is no. But midas asked the wrong question. The question should be: Is the prime obligated to obtain cost or pricing data from the replacement sub? The answer depends on (1) whether the prime contract includes the clause at FAR 52.215-12 or 52.215-13, (2) whether the replacement subcontract would exceed the TINA threshold, and (3) whether any of the TINA exceptions apply.

The sub, if asked for the data by the prime, can refuse, in which case the prime must decide what to do. There is no law requiring a sub to provide the data, only a clause requiring the prime to obtain the data.

Joel has caused some confusion because he decided to talk about whether defective pricing by the replacement sub would entitle the government to a price reduction based on the initial prime contract price. I think Joel has answered that question correctly. The problem is that the answer is not responsive to the question. I think Joel is incorrect to say that data from the sub cannot be cost or pricing data. I understand his logic, but his logic isn't valid. It is also incorrect to say that the prime need not obtain the data because the data cannot affect the initial prime contract pricing action. The data could affect subsequent pricing actions between the government and the prime. In any case, as retreadfed has pointed out, it doesn't matter whether it will ever affect a pricing action or not if the prime is contractually obligated to obtain cost or pricing data from subs.

To reiterate: The prime may be obligated by its contract with the government to request cost or pricing data from the prospective replacement sub. The prospective sub is not obligated to provide it, but its refusal to do so may result in the loss of the subcontract.

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Vern, I am saying that the information provided to the prime by a prospective in a takeover subcontract is apparently not cost or pricing data, per two Briefing Papers that I have retained over the years.

My information may well be out of date, because of subsequent changes to the statute and to the FAR in this area and/or case law.

The article I cited earlier in support of my opinion was a 1993 Briefing Papers. I looked through my files and also found an 89-11 Briefing Papers 1, by Kent R Morrison and Robert T. Ebert. I realize that there are later revisions to the FAR etc., concerning dates of certification. However, one of the citations used in that article has been used as late as 2005 (see below). They said in the October 1989 article:

"Date of Price Agreement

As for the third element in the definition, the Act provides that a fact is cost or pricing data only if it is significant "as of the date of agreement on the price" of a contract or a contract modification. [FN 86] Pursuant to the FAR, the date of price agreement is the "shake hands" date- the day when the price negotiations are concluded. [FN87] Consequently all significant facts exisiting as of the shake-hands date constitute cost or pricing data, while facts occurring after that date are not cost or pricing data, even if they are available prior to certification or contract award.[FN88]"

Here are the footnotes:

[FN 86] 10 USC 2306a(g)

[FN 87] See FAR 804-4(a) 1996 version: "When cost or pricing data are required, the contracting officer shall require the contractor to execute a Certificate of Current Cost or Pricing Data shown following this paragraph (a), and shall include the executed certificate in the contract file."

(Note: current FAR 15.406-2: "When cost or pricing data are required, the contracting officer shall require the contractor to execute a Certificate of Current Cost or Pricing Data using the format in the paragraph, and shall include the executed certificate in the contract file.")

The Certificate is essentially the same as the 1996 version. The instructions for the certificate used to say to insert the date when the price negotiations were concluded and price agreement was reached or, if applicable, another date (now reads: "...an earlier date") agreed upon by the parties that is as close as practicable to the date of agreement on price.

The date of the signature was (and still is) the date 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.

[FN88] See Paceco, Inc, note 78, supra.

[FN 78] Paceco Inc., ASBCA 16458, 73-2 BCA 10119

Unfortunately, I dont have access to 73-2 BCA unless I drive uptown to the Federal Courthouse Law Library. I found this footnote to a 2005 GSBCA Appeal decision 15875 with VIACOM, INC. - SUCCESSOR IN INTEREST

TO WESTINGHOUSE FURNITURE SYSTEMS: "Paceco, Inc., ASBCA 16458, 73-2 BCA ? 10,119 (data created between cost and pricing data certification and award date not cost or pricing data that was required to be submitted) (in TINA context, duty to disclose complete, accurate and current data extends only to the date of price negotiations)."

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Vern, I am saying that the information provided to the prime by a prospective in a takeover subcontract is apparently not cost or pricing data, per two Briefing Papers that I have retained over the years.

My information may well be out of date, because of subsequent changes to the statute and to the FAR in this area and/or case law.

The article I cited earlier in support of my opinion was a 1993 Briefing Papers. I looked through my files and also found an 89-11 Briefing Papers 1, by Kent R Morrison and Robert T. Ebert. I realize that there are later revisions to the FAR etc., concerning dates of certification. However, one of the citations used in that article has been used as late as 2005 (see below). They said in the October 1989 article:

"Date of Price Agreement

As for the third element in the definition, the Act provides that a fact is cost or pricing data only if it is significant "as of the date of agreement on the price" of a contract or a contract modification. [FN 86] Pursuant to the FAR, the date of price agreement is the "shake hands" date- the day when the price negotiations are concluded. [FN87] Consequently all significant facts exisiting as of the shake-hands date constitute cost or pricing data, while facts occurring after that date are not cost or pricing data, even if they are available prior to certification or contract award.[FN88]"

Here are the footnotes:

[FN 86] 10 USC 2306a(g)

[FN 87] See FAR 804-4(a) 1996 version: "When cost or pricing data are required, the contracting officer shall require the contractor to execute a Certificate of Current Cost or Pricing Data shown following this paragraph (a), and shall include the executed certificate in the contract file."

(Note: current FAR 15.406-2: "When cost or pricing data are required, the contracting officer shall require the contractor to execute a Certificate of Current Cost or Pricing Data using the format in the paragraph, and shall include the executed certificate in the contract file.")

The Certificate is essentially the same as the 1996 version. The instructions for the certificate used to say to insert the date when the price negotiations were concluded and price agreement was reached or, if applicable, another date (now reads: "...an earlier date") agreed upon by the parties that is as close as practicable to the date of agreement on price.

The date of the signature was (and still is) the date 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.

[FN88] See Paceco, Inc, note 78, supra.

[FN 78] Paceco Inc., ASBCA 16458, 73-2 BCA 10119

Unfortunately, I dont have access to 73-2 BCA unless I drive uptown to the Federal Courthouse Law Library. I found this footnote to a 2005 GSBCA Appeal decision 15875 with VIACOM, INC. - SUCCESSOR IN INTEREST

TO WESTINGHOUSE FURNITURE SYSTEMS: "Paceco, Inc., ASBCA 16458, 73-2 BCA ? 10,119 (data created between cost and pricing data certification and award date not cost or pricing data that was required to be submitted) (in TINA context, duty to disclose complete, accurate and current data extends only to the date of price negotiations)."

Joel, I think Vern has addressed this question in the proper context. Your latest reply still is not looking at the question of what is cost or pricing data in the proper way. You appear to assume that data cannot be cost or pricing data because it will not affect the price of a prime contract. However, it appears you have not consdiered 15.407-1(f)(2) in arriving at your conclusion. Further, the defintion of cost or pricing data does not limit such data to only those facts that have an impact on the price of the prime contract.

In this regard, FAR 2.101 defines cost or pricing data as consisting of "all facts that, as of the date of price agreement or, if applicable, an earlier date agreed upon between the parties that is as close as practicable to the date of agreement on price, prudent buyers and sellers would reasonably expect to affact price negotiations significantly." Note that the date of agreement on price does not mention the prime contract. Additionally, the price negotiations that may be impacted by the "facts" is not limited to negotiations of the prime contract price. There is no indication that the "parties" refers to the government and prime contractor. In short, there is nothing in the definition of cost or pricing data that indicates cost or pricing data are only those facts that would impact the price of the prime contract.

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Retread, thanks. I'm going by what I think my sources tell me. In addition, nearly all the articles that I have being reading refer to cost or pricing data "during negotiations" of the prime contract, regardless of what the clause literally says. The purpose of TINA is to aid the government in negotiation of the contract or mod at hand.

It was not intended to provide the government, as Vern hinted, some information later developed that it might be able to use to help price subsequent mods. Those mods will stand on their own as separate contract actions.

If a FFP contractor doesn't solicit and award a negotiated subcontract until several years after the contract date, I'm sure you would read the clause to require the prime to obtain cost or pricing data from the negotiations with the new sub. That subcontract bears no legal relationship on the certified cost or pricing data obtained from the prime contractor back when the contract was awarded and serves no purpose. I provided two case citations and two articles which, I think, discuss that very point, however, you are stuck on reading a literal translation of the contract clause.

Vern, was right. This thread is a hoot. I may well be wrong, but at least I tried to find some material which puts all this into some context. TINA has a purpose. That purpose is not served by forcing a FFP contractor and its late hired subs to provide information with no relationship to its certified cost or pricing data that formed the basis for the original contract action.

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Retread, thanks. I'm going by what I think my sources tell me. In addition, nearly all the articles that I have being reading refer to cost or pricing data "during negotiations" of the prime contract, regardless of what the clause literally says. The purpose of TINA is to aid the government in negotiation of the contract or mod at hand.

It was not intended to provide the government, as Vern hinted, some information later developed that it might be able to use to help price subsequent mods. Those mods will stand on their own as separate contract actions.

If a FFP contractor doesn't solicit and award a negotiated subcontract until several years after the contract date, I'm sure you would read the clause to require the prime to obtain cost or pricing data from the negotiations with the new sub. That subcontract bears no legal relationship on the certified cost or pricing data obtained from the prime contractor back when the contract was awarded and serves no purpose. I provided two case citations and two articles which, I think, discuss that very point, however, you are stuck on reading a literal translation of the contract clause.

Vern, was right. This thread is a hoot. I may well be wrong, but at least I tried to find some material which puts all this into some context. TINA has a purpose. That purpose is not served by forcing a FFP contractor and its late hired subs to provide information with no relationship to its certified cost or pricing data that formed the basis for the original contract action.

Joel, so far as I can tell, none of the sources you are relying upon dealt with the issue we are discussing. To the extent they do not, they are irrelvant. Let's test your theory with a hypothetical situation. A prime contractor intends to use a specific subcontractor in performance of a contract. The prime has received a quote from the potential sub prior to agreement on price with the government. The prime discloses cost or pricing data provided by the sub to the government as part of the primes cost or pricing data. After agreement on price between the prime and government, the prime and sub continue to negotiate to definitize the subcontract. The prime and sub reach agreement on the price of the subcontract 30 days after the prime and government reached agreement on price. In this situation, should the prime require the sub to provide cost or pricing data relating to the quote after the prime and government agreed on price? Should the prime require the subcontractor to certify that the cost or pricing data it submitted in regard to the subcontract? If so, what would be the cut-off date by which that data should be current, complete and accurate? Assume the prime contract is FFP.

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Retread, you are arguing the wrong point. I don't disagree with you that the prime needas to obtain C or P data from actual or prospective subs during the prime contract award process and that that information is useful and relevant.

This thread concerns a replacement subcontractor who was supposedly neither an actual or prospective sub at the time of negotiations or award of the FFP contract action. In fact, this sub has no relation to the contract action for which the C or P was required. In fact, this decision to replace a non-performing subcontractor isn't a contract action at all..

Now, I answered your question, so please answer mine. Let me make it clearer. If a prime doesn't solicit a subcontract for say - painting, for two years after the FFP construction contract was awarded and he wants to then use a SB painter that he just found out about, does he have to submit cost or pricing data from his negotiations with that sub? The sub was never a prospective sub until now. The prime contract price was based upon an estimate by the prime at the time of award.

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