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FPDS questions


Gov Researcher

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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!

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6 hours ago, Gov Researcher said:

Given that the FAR refer to non-certified cost or pricing data simply as "other than 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?

FAR (48 CFR Chapter 1) does not refer to "non-certified cost or pricing data" or to "other than cost or pricing data." Those phrases do not appear in FAR. 

FAR 2.101 refers to and defines (a) "cost or pricing data," (b) "certified cost or pricing data" and (c) "data other than certified cost or pricing data." The third category, (c), includes "cost or pricing data" and other kinds of pricing information. Since the FPDS element (6J) asks whether "cost or pricing data" were "obtained," in the absence of other guidance the entry in the field might be the same whether any cost or pricing data that were "obtained" were ultimately certified or not.

FAR 15.406-2(a) says: "When certified 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 this paragraph, and must include the executed certificate in the contract file." That seems to indicate that any "certified cost or pricing data" that were submitted must be certified, regardless of whether the negotiated price ended up being greater than the threshold for requiring "certified cost or pricing data."

While the FAR may impress some as being very clear and exact, it often---perhaps usually---is not. I do not know how government personnel actually interpret the field and make entries. Absent additional guidance somewhere, FPDS probably gets varying responses. Researchers have complained for many years about the accuracy and reliability of FPDS data.

It will be interesting to see how people answer your two questions.

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“FPDS-NG” = GSA Federal Procurement Data System-Next Generation (FPDS-NG)
 

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6 hours ago, Gov Researcher said:

Hello everyone,

Is Wifcon open to FPDS-NG 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 "other than 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!


Look at the reference to 253.204-70 (c) (4) (xi) for data element 6(j) cost or pricing data: 

“(xi) BLOCK C11, CERTIFIED COST OR PRICING DATA. Enter one of the following codes when Block B1B is coded A. Otherwise, leave blank.
(A) Code Y—Yes—Obtained. Enter code Y when certified cost or pricing data were obtained for the contracting action reported (see FAR 15.804–2).
(B) Code N—No—Not Obtained. Enter code N when certified cost or pricing data were not obtained because data were not required (see FAR 15.804–2) or an exemption was granted (see FAR 15.804–3(a)-(g)).
(C) Code W—Not Obtained—Waived. Enter code W when certified cost or pricing data were not obtained because the requirement was waived (see FAR 15.804–3(i) and DFARS 215.804–3(i)).”

It specifically states “certified”. If it isn’t certified for award purposes , it’s not “certified cost or pricing data” as described in the data element instructions. Three choices: yes, no, waived.

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@joel hoffman The current DFARS states that 253.204 is "Reserved." According to the Federal Register, 74 FR 37644, July 29, 2009, DFARS 253.204 and 253.204-70 were "removed" 12 years ago. What are we to make of the fact that current FPDS instructions refer to a regulation that no longer exists?

Edited by Vern Edwards
Update. Clarify. Correct a typo.
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34 minutes ago, Vern Edwards said:

@joel hoffman The current DFARS states that 253.204 is "Reserved." According to the Federal Register, 77 FR 37644, July 29, 2009, DFARS 253.204 and 253.204-70 were "removed" 12 years ago. What are we to make of the fact that current FPDS instructions refer to a regulation that no longer exists?

Interesting... I’d say the the Oct 29 2020 version 1.5 of the Data Element Dictionary is out of date. Yes should be updated and clarified.  My response to the OP would be modified to contact the agency that hired IBM to recently update the Instructions, advise them of the discrepancy and ask for clarification and updated instructions.  

 

 

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I suppose that gov researcher could also research the deletion of DFARS 253.204-70 to see why it was deleted and if the explanation provided another source or description .  

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@joel hoffman

5 minutes ago, joel hoffman said:

I suppose that gov researcher could also research the deletion of DFARS 253.204-70 to see why it was deleted and if the explanation provided another source or description .  

A note: I mis-cited the Federal Register notice in my last post. It should have been 74 FR 37644, not 77.

Anyway, here is how the DAR Council explained the deletion:

Quote

The Federal Procurement Data System (FPDS) provides a comprehensive Web-based tool for Federal agencies to report contract actions. General reporting requirements for FPDS are in Subpart 4.6 of the Federal Acquisition Regulation. This final rule updates DFARS text addressing reporting of contract actions, to remove references to obsolete reporting form DD 350, and to address current DoD procedures for reporting of contract actions in FPDS.

Again, that was 12 years ago.

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Note that FAR 15.403-4(c) states:  "If certified cost or pricing data are requested and submitted by an offeror, but an exception is later found to apply, the data must not be considered certified cost or pricing data as defined in 2.101 and must not be certified in accordance with 15.406-2."

So it's possible that "certified cost or pricing data" were requested and submitted, but either were not certified or were inappropriately certified and thus the certified cost or pricing data were not "certified cost or pricing data" after all.

However, does the rule at 15.403-4(c) apply if the negotiated price is below the threshold? Would that be an "exception," or are does "exception" refer only to the exceptions in FAR 15.403-1(b)?

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55 minutes ago, Vern Edwards said:

Note that FAR 15.403-4(c) states:  "If certified cost or pricing data are requested and submitted by an offeror, but an exception is later found to apply, the data must not be considered certified cost or pricing data as defined in 2.101 and must not be certified in accordance with 15.406-2."

So it's possible that "certified cost or pricing data" were requested and submitted, but either were not certified or were inappropriately certified and thus the certified cost or pricing data were not "certified cost or pricing data" after all.

However, does the rule at 15.403-4(c) apply if the negotiated price is below the threshold? Would that be an "exception," or are does "exception" refer only to the exceptions in FAR 15.403-1(b)?

Here was an earlier thread that included discussion concerning when the estimated or anticipated value of a negotiated action exceeded the threshold but was settled for less:

One of the sources of information was:

https://www.ncmahq.org/news/magazine-details/how-well-do-you-know-the-truthful-cost-or-pricing-data-statute-a.k.a.-tina

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The deepest, most wide-ranging, and most reliable source of information about certified cost or pricing data is Defective Pricing Handbook, 2019-2020 Edition, by David Z. Bodenheimer, a Washington D.C. "super lawyer" and partner at Nichols Liu. The book is published by Thomson Reuters.

It is the go-to book on all aspects of certified cost or pricing data and defective pricing. It does not, however, address FPDS coding.

David and Stan Johnson litigated what was at the time the biggest defective pricing case ($300 million) in the history of The Truth in Negotiations Act, Pub.L. 87-653 (1962), Wynne v. United Technologies Corp., 463 F.3d 1261 (Fed. Cir. 2006). The court's decision settled a major precedent.

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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?

 

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22 minutes ago, Gov Researcher said:

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”,

Actually, the term “cost or pricing data is defined separately, in addition to  “certified cost or pricing data” in FAR Part 2: 

“Cost or pricing data (10 U.S.C. 2306a(h)(1) and 41 U.S.C. chapter 35) means 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 affect price negotiations significantly. Cost or pricing data are factual, not judgmental; and are verifiable. While they do not indicate the accuracy of the prospective contractor's judgment about estimated future costs or projections, they do include the data forming the basis for that judgment. Cost or pricing data are more than historical accounting data; they are all the facts that can be reasonably expected to contribute to the soundness of estimates of future costs and to the validity of determinations of costs already incurred. They also include, but are not limited to, such factors as—

(1) Vendor quotations;

(2) Nonrecurring costs;

(3) Information on changes in production methods and in production or purchasing volume;

(4) Data supporting projections of business prospects and objectives and related operations costs;

(5) Unit-cost trends such as those associated with labor efficiency;

(6) Make-or-buy decisions;

(7) Estimated resources to attain business goals; and

(8) Information on management decisions that could have a significant bearing on costs.”

“Certified cost or pricing data means “cost or pricing data” that were required to be submitted in accordance with FAR 15.403-4 and 15.403-5 and have been certified, or are required to be certified, in accordance with 15.406-2. This certification states that, to the best of the person's knowledge and belief, the cost or pricing data are accurate, complete, and current as of a date certain before contract award. Cost or pricing data are required to be certified in certain procurements (10 U.S.C. 2306a and 41 U.S.C. chapter 35).”

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2 hours ago, Gov Researcher said:

Vern, thank you for pointing out 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?

 

I would have no idea what  Civilian or Defense Agencies by and large interpret this field to mean. The data dictionary only indirectly referenced certified cost or pricing data for DoD and that reference has been deleted for 12 years. I only found it because I googled the specific paragraph. Didn’t search the current DFARS. There was no description specified for civilian agencies.

why the hell do they beat around the bush, if they want consistency ?

Edit: If there is confusion on the WIFCON Forum as to what cost or pricing data means and when it is certified (generally, after the negotiations, not before), I can only imagine the various interpretations throughout the government.

I’m guessing that what they are looking for is cost or pricing data that has been certified upon negotiations and/ or agreement, not the initial submission. Why can’t they just say that?

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On 2/6/2021 at 3:57 PM, joel hoffman said:

Actually, the term “cost or pricing data is defined separately, in addition to  “certified cost or pricing data” in FAR Part 2: 

“Cost or pricing data (10 U.S.C. 2306a(h)(1) and 41 U.S.C. chapter 35) means 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 affect price negotiations significantly. Cost or pricing data are factual, not judgmental; and are verifiable. While they do not indicate the accuracy of the prospective contractor's judgment about estimated future costs or projections, they do include the data forming the basis for that judgment. Cost or pricing data are more than historical accounting data; they are all the facts that can be reasonably expected to contribute to the soundness of estimates of future costs and to the validity of determinations of costs already incurred. They also include, but are not limited to, such factors as—

(1) Vendor quotations;

(2) Nonrecurring costs;

(3) Information on changes in production methods and in production or purchasing volume;

(4) Data supporting projections of business prospects and objectives and related operations costs;

(5) Unit-cost trends such as those associated with labor efficiency;

(6) Make-or-buy decisions;

(7) Estimated resources to attain business goals; and

(8) Information on management decisions that could have a significant bearing on costs.”

“Certified cost or pricing data means “cost or pricing data” that were required to be submitted in accordance with FAR 15.403-4 and 15.403-5 and have been certified, or are required to be certified, in accordance with 15.406-2. This certification states that, to the best of the person's knowledge and belief, the cost or pricing data are accurate, complete, and current as of a date certain before contract award. Cost or pricing data are required to be certified in certain procurements (10 U.S.C. 2306a and 41 U.S.C. chapter 35).”

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...

On 2/6/2021 at 4:07 PM, Vern Edwards said:

@Gov Researcher

Is this your question:

When contracting officers report that they obtained cost or pricing data, may I assume that the contractors certified the data?

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?

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On 2/6/2021 at 4:10 PM, joel hoffman said:

I’m guessing that what they are looking for is cost or pricing data that has been certified upon negotiations and/ or agreement, not the initial submission. Why can’t they just say that?

Gov, let me clarify,  “they”  means those collecting the information, not those inputting the data. I don’t know what “those inputting the information” think it means.

The FAR at 15.4 doesn’t literally distinguish between the KO requiring “cost or pricing  data” and requiring “certified cost or pricing data”. Some people throughout the years in the Forum asked if or appeared to think that the proposer had to certify the initial submission as well as upon conclusion of the negotiations. One has to read much of the entire subpart to realize that the certification language doesn’t describe the initial proposal submission.

And, if the final price was settled below the TINA or “TNA” threshold, who knows whether or when the supporting cost or data,  as reported, was certified, even if technically not required. 

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Example :

“15.402 Pricing policy

Contracting officers shall—

(a) Purchase supplies and services from responsible sources at fair and reasonable prices. In establishing the reasonableness of the offered prices, the contracting officer—

(1) Shall obtain certified cost or pricing data when required by 15.403-4, along with data other than certified cost or pricing data as necessary to establish a fair and reasonable price; or“

There are numerous references to the term “certified cost or pricing data throughout 15.403 that could suggest that the initial submission or any submissions of proposal information thereafter, if required by the KO in order to evaluate for negotiations, must be certified at the time of submission.

And, as mentioned in this thread, it isn’t literally stated that, if the action is settled below the “threshold for submission”, then it wouldn’t have to be certified.

One can deduce that, since 15.403-4  (a) (2) requires documented justification and HCA authorization to “obtain certified cost or pricing data for pricing actions below the pertinent threshold”, then the KO cannot, on their own authority, require the settled proposal cost or price data to be certified.

 

 

Edited by joel hoffman
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1 hour ago, joel hoffman said:

One can deduce that, since 15.403-4  (a) (2) requires documented justification and HCA authorization to “obtain certified cost or pricing data for pricing actions below the pertinent threshold”, then the KO cannot, on their own authority, require the settled proposal cost or price data to be certified.

Ah, "deduce."

A friendly request: Since you can deduce, please show us your deduction: major premise, minor premise, and conclusion. I ask because I'm having an argument about this with some colleagues right now, and I'm hoping you can help me out. It's two against one, I'm the one, and the two colleagues are distinguished professionals.

A contracting officer reasonably expected a proposal to come in at more than $2 million.  None of the exceptions applied, so she required the submission of certified cost or pricing data. The offeror complied, but did not submit a certification, saying it would certify upon reaching price agreement. The offeror proposed a price of  $2,237,561.

The parties negotiated for a couple of weeks and reached agreement on a price just below $2 million. The CO relied on the cost or pricing data that were submitted and, in compliance with FAR 15.406-2(a), asked the contractor to certify. The contractor balked, saying that since the price was below the threshold for submission it shouldn't have to certify. The contracting officer insists that the contractor certify.

Who's right?

🤔

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Touché , Vern! 
 

https://www.merriam-webster.com/thesaurus/deduce
 

“Thesaurus Deduce

Synonyms of Deduce:

to form an opinion or reach a conclusion through reasoning and information 

  • I can deduce from the simple observation of your behavior that you're trying to hide something from me

Synonyms for deduce

Words Related to deduce

Phrases Synonymous with deduce

 

“15.403-4  Requiring certified cost or pricing data (10 U.S.C. 2306a and 41 U.S.C. chapter 35).“

Describes when the KO must obtain or require certified cost or pricing data and when the KO requires HCA authorization to obtain certified cost or pricing data.

The KO obtains the certification of cost or pricing data when? 

“...(b) When certified cost or pricing data are required, the contracting officer shall require the contractor or prospective contractor to submit to the contracting officer (and to have any subcontractor or prospective subcontractor submit to the prime contractor or appropriate subcontractor tier) the following in support of any proposal:

(1) The certified cost or pricing data and data other than certified cost or pricing data required by the contracting officer to determine that the price is fair and reasonable.

(2) A Certificate of Current Cost or Pricing Data, in the format specified in 15.406-2, certifying that to the best of its knowledge and belief, the cost or pricing data were accurate, complete, and current as of the date of agreement on price or, if applicable, an earlier date agreed upon between the parties that is as close as practicable to the date of agreement on price.

(c) If certified cost or pricing data are requested and submitted by an offeror, but an exception is later found to apply, the data must not be considered certified cost or pricing data as defined in 2.101 and must not be certified in accordance with 15.406-2.

Paragraph (a)(1) states the threshold for obtaining certified cost or pricing data.

Paragraph (a)(2) states the conditions for obtaining certified cost or pricing data for a pricing action below the threshold:

(2) Unless prohibited because an exception at 15.403-1(b) applies, the head of the contracting activity, without power of delegation, may authorize the contracting officer to obtain certified cost or pricing data for pricing actions below the pertinent threshold in paragraph (a)(1) of this subsection, provided the action exceeds the simplified acquisition threshold. The head of the contracting activity shall justify the requirement for certified cost or pricing data. The documentation shall include a written finding that certified cost or pricing data are necessary to determine whether the price is fair and reasonable and the facts supporting that finding.”

The certification is necessary in order to be “certified cost or pricing data”, 

One could reasonably conclude or infer (and might be correct or incorrect) from the fact that the HCA without delegation of authority must authorize the KO to obtain certified cost or pricing data for pricing actions below the threshold, then the KO cannot, on their own authority, require the settled proposal cost or price data to be certified, thus having “obtained” certified cost or pricing data.

im going deer hunting.  End of season. 

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By the way, I wonder how cost or pricing data would become “certified cost or pricing data” before the contractor certifies such according to the prescribed language for the certification?

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Here's an argument based on the scenario that I described above:

MAJOR PREMISE: 10 USC 2306a(a)(2) states: "A person required, as an offeror, contractor, or subcontractor, to submit cost or pricing data under paragraph (1) (or required by the head of the agency concerned to submit such data under subsection (c)) shall be required to certify that, to the best of the person's knowledge and belief, the cost or pricing data submitted are accurate, complete, and current." See also FAR 15.406-2(a): "When certified 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 this paragraph, and must include the executed certificate in the contract file."

MINOR PREMISE: The contracting officer required the offeror to submit certified cost or pricing data in accordance with 10 USC 2306a(a)(1)(A) and FAR 15.403-4(a)(1).

CONCLUSION: Therefore, the contracting officer must require the offeror to certify the cost or pricing data.

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7 hours ago, Vern Edwards said:

Who's right?

You are, in my opinion and according to my practice.  Certified cost or pricing data is needed to support "the award of any negotiated contract..." based on the contract price (FAR 15.403-4(a)(1)(i) rather than the negotiation of said contract based on a proposal amount.

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4 hours ago, Vern Edwards said:

FAR 15.406-2(a): "When certified 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 this paragraph, and must include the executed certificate in the contract file."

I did not see your edited post below while I was responding to your initial post. 

6 hours ago, Vern Edwards said:

Ah, "deduce."

A friendly request: Since you can deduce, please show us your deduction: major premise, minor premise, and conclusion. I ask because I'm having an argument about this with some colleagues right now, and I'm hoping you can help me out. It's two against one, I'm the one, and the two colleagues are distinguished professionals.

A contracting officer reasonably expected a proposal to come in at more than $2 million.  None of the exceptions applied, so she required the submission of certified cost or pricing data. The offeror complied, but did not submit a certification, saying it would certify upon reaching price agreement. The offeror proposed a price of  $2,237,561.

The parties negotiated for a couple of weeks and reached agreement on a price just below $2 million. The CO relied on the cost or pricing data that were submitted and, in compliance with FAR 15.406-2(a), asked the contractor to certify. The contractor balked, saying that since the price was below the threshold for submission it shouldn't have to certify. The contracting officer insists that the contractor certify.

Who's right?

🤔

I will yield and agree to your position for the above described scenario. The proposal exceeded the threshold as expected by both parties.  Cost or pricing data was clearly required and was used in establishing the price.  10 USC 2306(a) requires “cost or pricing data” to be submitted. And it separately requires it to be certified. At least that seems clear. 

I do wonder whether the contractor must submit cost or pricing data to support an initial proposal to price a contract that is less than the threshold amount. Is the action expected to  exceed the threshold amount per the Statute when the proposal begins and ends below the threshold? 

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