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TINA Cert required?


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Currently negotiating an over-run modification on a CPFF delivery order. The over-run modification will also extend the PoP by 5 months. The contractor believes that a TINA Cert is not required IAW FAR 15.403-2b "Certified cost or pricing data are not required for proposals used solely for over-run funding or interim billing price adjustment". The Government believes since the modification is primarily for over-run funding but also includes the PoP extenstion, it is not solely for over-run funding and a TINA Cert is required. We are at a stand-still with negotiations so any help will be appreciated.

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Let's think this through.

1. If you executed a modification for overrun funding, certified cost or pricing data would not be required. Correct?

2. If you executed a separate modification to extend the PoP pursuant due to late delivery of GFP, certified cost or pricing data would not be required. Correct?

Assuming the contractor is not requesting an increase in estimated cost and fee due to the late delivered GFP, why would certified cost or pricing data be required if, for administrative convenience, you made both changes in one modification?

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BLM, adding to what Don said, under the Government Property clause, the contractor is entitled to an equitable adjustment to the contract price if the late delivery causes an increase in the contractor's cost of performance. If the equitable adjustment exceeds $700K, the contractor would be required to disclose certified cost or pricing data unless an exemption applies. My concern would be whether part of the amount claimed for the overrun is really an amount that relates to increased costs caused by the late delivery of the GFP but the contractor does not want to claim it as such in order to avoid disclosure of cost or pricing data.

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Retreadfed,

Why would it concern you if part of the amount claimed for the overrun is really an amount that relates to increased costs caused by the late delivery of the GFP? What are the potential negative consequences of this behavior that cause you concern? What would be the contractor's motivation to get out of certifying in this situation?

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Navy, I work with contractors everyday and assist them in their relations with the government. I can assure you that most contractors I know would prefer not to have to provide certified cost or pricing data. Many try to find any way they can to avoid having to provide such data. The reasons for this are probably as many as there are contractors. However, there is one concern that most have in common and that is the requirement to provide the government with a certificate. From my experience while working in the government and my interactions with DoJ, DoJ loves to have certificates as they give DoJ another weapon to use against contractors and provides a name for DoJ to target. That is one reason I would be concerned that the contractor is simply trying to avoid doing something that the contracting officer should be requiring the contractor to do.

Another reason would be that I may not be getting the full story on the amount the contractor is claiming. Remember, certified cost or pricing data consist of all facts that could have a significant impact on price negotiations. If such data are not required, the contractor may not be fully forthcoming with all the facts relating to the adjustment and we get into a catch me if you can situation.

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Info, while facts do matter, they matter within the context of the terms of a contract. Under the Government Property clause, a contractor is entitled to an equitable adjustment if the government delivers promised property late and the late delivery causes the contractor to experience increased costs. No facts have been presented in this thread that late delivery of the property caused the contractor to incur increased costs. In the absence of such facts, there is no basis for saying the contractor is entitled to an equitable adjustment.

On the other hand, we do have an asserted fact that the contractor went into overrun mode in the summer of 2013, well before the government shutdown and the late delivery occurred. There are no facts indicating that the overrun was caused by a late delivery that had not yet occurred. On this set of facts, we can only conclude that if the contract is to receive additional funding, it is pursuant to the provisions of either the Limitation of Cost clause or the Limitation of Funds clause. Neither of which mentions an equitable adjustment.

Have I missed a fact that is relevant within the context of the contract terms that are applicable?

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Info,

In your make-believe "court of common sense" does the linkage between a TINA violation and the False Claims Act exist? Because too many contractors have seen their defective pricing case turned into an FCA case, and those tend to be big dollar settlements indeed.

I know this to be true because I've seen reports on the Internet.

H2H

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I noticed, in reading this thread on the Internet, that bimaho, the original poster, seems to have checked out long ago without clearly describing what the equitable adjustment is for and for how much. It would help to fully understand the scenario.

Don't fret too much over "Infoseeker's" venemous barbs.

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Back from Christmas leave and thus late to the party. My classroom answer is that anyone who negotiates an equitable adjustment based on common sense rather than the authorizing language of a contract clause will (1) never get it through legal, and (2) either (a) have to later explain why payment was made when not authorized by a clause, or ( b ) explain to a court/BCA why an equitable adjustment was denied when authorized by the contract. My real world answer does not change.

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