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Is this far applicable if the prime contract was awarded on a competitive basis. Is this clause applicable to our subcontractors if we do not have to certify the prime contract level because Tina is exempt based on the competitive award

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The prescribing language for the clause at FAR 52.215-13 is found at FAR 15.408(e).  Look at that and see if it answers your question.

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2 hours ago, Cewheaton said:

Is this far applicable if the prime contract was awarded on a competitive basis. Is this clause applicable to our subcontractors if we do not have to certify the prime contract level because Tina is exempt based on the competitive award

By “awarded on a competitive basis”, I’m assuming that you mean the contract was awarded using competitive negotiated procedures. See 15.000 Scope of Part.

As ji stated, 15.408(e) is the prescription for the clause at 52.215-13.

Is the clause at 52.215-11, Price Reduction for Defective Certified Cost or Pricing Data—Modifications,  in your contract?  Even if the prime contract was awarded on a competitive basis, that doesn’t necessarily mean that the prime contractor is exempt from the requirement to submit cost or pricing data for a modification. 

If the prime is required to submit cost or pricing data in support of pricing a modification, then clause 52.215-13 might be applicable to subcontractor(s) pricing of a modification. 

 

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Hello,

 

The clause 52.215-11 is included in the Prime Contract. So, based on this, if we as the Prime Contractor now have to certify, than our subcontractors that exceed the TINA threshold due to the Mod will then have to certify as well?

Thanks for you assistance.

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Yes, if they are subject to cost or pricing data requirements for the modification action. 

Are you asking that, if a mod increases the subcontract amount to the threshold, they must certify for the whole subcontract ? No. It only applies to the amount (absolute value) involved in the mod action.

Please note that these are questions you should be asking of your government KO or ACO.  They know the specific circumstances and SHOULD know the specific contract requirements. 

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I am reading that FAR 15.215-11 and it states that

 

This clause shall become operative only for any modification to this contract involving a pricing adjustment expected to exceed the threshold for submission of certified cost or pricing data at FAR15.403-4, except that this clause does not apply to any modification if an exception under FAR15.403-1 applies.

We take exception to certified pricing data based on the award being a result of a competitive basis... so maybe I am running down a worm hole!

Even if we as the Prime do not have to certify our costs, I have a manager stating that regardless of what we do at the Prime, if we have a sub that exceeds TINA they still have to certify to us regardless... which I don't feel is correct either... ughh

 

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22 minutes ago, Cewheaton said:

I am reading that FAR 15.215-11 and it states that

 

This clause shall become operative only for any modification to this contract involving a pricing adjustment expected to exceed the threshold for submission of certified cost or pricing data at FAR15.403-4, except that this clause does not apply to any modification if an exception under FAR15.403-1 applies.

We take exception to certified pricing data based on the award being a result of a competitive basis... so maybe I am running down a worm hole!

Even if we as the Prime do not have to certify our costs, I have a manager stating that regardless of what we do at the Prime, if we have a sub that exceeds TINA they still have to certify to us regardless... which I don't feel is correct either... ughh

 

The “if an exception under FAR 15.403-1 applies”  language  you refer to is referring to an exception for the MODIFICATION under 15.403-1,  not if the original contract was excepted due to competition. 

If you have a subcontract modification action subject to certification to you that will be passed on to the government, then you will likely be required to certify the mod action to the govt.  

Ask the KO. 

 

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35 minutes ago, Cewheaton said:

I am reading that FAR 15.215-11 and it states that

 

This clause shall become operative only for any modification to this contract involving a pricing adjustment expected to exceed the threshold for submission of certified cost or pricing data at FAR15.403-4, except that this clause does not apply to any modification if an exception under FAR15.403-1 applies.

We take exception to certified pricing data based on the award being a result of a competitive basis... so maybe I am running down a worm hole!

Even if we as the Prime do not have to certify our costs, I have a manager stating that regardless of what we do at the Prime, if we have a sub that exceeds TINA they still have to certify to us regardless... which I don't feel is correct either... ughh

 

Cewheaton,

As others have said, even if the contract was awarded on a competitive basis, any MODIFICATIONS to that contract will not be. Since you have the contract in hand, any modifications will be made on a sole/single source basis. Accordingly, pricing for mods is not exempt from (certified) cost or pricing data requirements.

Looking at your subs, if you are awarding a subcontract and no TINA exception applies to that award, then you have to obtain (certified) cost or pricing data for that subcontract action. If you don't, your subK managers will have difficulty passing their next CPSR.

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11 minutes ago, here_2_help said:

Looking at your subs, if you are awarding a subcontract and no TINA exception applies to that award, then you have to obtain (certified) cost or pricing data for that subcontract action.

H2H, I am confused by this statement.  Are you saying that a prime has to get certified cost or pricing data from a sub in regard to the award of a subcontract if no exemption is available to the sub even if the prime was not required to submit certified cost or pricing data?

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The defective pricing clauses in the contract concern pricing modifications to the contract. That is my understanding from posts by the OP. 

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4 hours ago, Cewheaton said:

Even if we as the Prime do not have to certify our costs, I have a manager stating that regardless of what we do at the Prime, if we have a sub that exceeds TINA they still have to certify to us regardless... which I don't feel is correct either... ughh

Having a sub submit certified cost or pricing data is not necessarily limited to the circumstances listed in FAR clauses.  Primes can go beyond that as a matter of policy.  Thus, your manager is not necessarily off base in regard to what (s)he is saying.

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This clause shall become operative only for any modification to this contract involving a pricing adjustment expected to exceed the threshold for submission of certified cost or pricing data at FAR15.403-4, except that this clause does not apply to any modification if an exception under FAR15.403-1 applies.

We take exception to certified pricing data based on the award being a result of a competitive basis... so maybe I am running down a worm hole!

CeWheaton, you're MOD stand alone amount, if exceeds the threshold for certifying costs, and if non-competitive, will require a Certificate of certified cost and pricing from your subcontractor

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28 minutes ago, general_correspondence said:

This clause shall become operative only for any modification to this contract involving a pricing adjustment expected to exceed the threshold for submission of certified cost or pricing data at FAR15.403-4, except that this clause does not apply to any modification if an exception under FAR15.403-1 applies.

We take exception to certified pricing data based on the award being a result of a competitive basis... so maybe I am running down a worm hole!

CeWheaton, you're MOD stand alone amount, if exceeds the threshold for certifying costs, and if non-competitive, will require a Certificate of certified cost and pricing from your subcontractor

And from the prime. And the amount is based upon the absolute value of increases and decreases, not the net increase or decrease. 

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I believe the point that Retread's making here (and in which I'm also interested) is as follows: 

Assume the Prime is exempt from submitting certified cost or pricing data due to competition at the Prime Contract level.  Now assume that the Prime has a subcontract on this same prime contract that exceeds the TCOPD threshold and is not subject to FAR exemptions.

What will the CPSR team expect to see if they pull this file down the line?  A cost analysis and cost or pricing data cert from the sub?

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1 hour ago, Patrick Mathern said:

I believe the point that Retread's making here (and in which I'm also interested) is as follows: 

Assume the Prime is exempt from submitting certified cost or pricing data due to competition at the Prime Contract level.  Now assume that the Prime has a subcontract on this same prime contract that exceeds the TCOPD threshold and is not subject to FAR exemptions.

What will the CPSR team expect to see if they pull this file down the line?  A cost analysis and cost or pricing data cert from the sub?

1. This would be a Cost Reimbursement contract or non-competitively negotiated FFP contract if there will be a contractor purchasing team review (44.303 Extent of Review).  If C&P data are required of prime or sub for initial awards of subcontracts, the contract must include those applicable clauses for cost or pricing data. (52.215-10 and 52.215-12).

2. For a FFP contract that was competitively negotiated or an IFB, it’s not the government’s business what price  the contractor subs it’s initially awarded contract priced work for , except when a modification is involved. The only C&P clauses clauses in the contract concern pricing of modifications.  The government has no recourse for Defective pricing of the initial subcontract price for the contract between the prime and it’s subcontractor, unless the subcontract was issued for a modification that is subject to C&P data. 

3. The only C&P Data clauses in the instant contract in this thread are those involving pricing of modifications (52.215-11 and -13). Thus it appears that the contract is FFP (competitively negotiated). Please  don’t over complicate this thread. 

 

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