The subcontractor (and maybe the prime?) are maintaining that c or p  data isn’t required (reason not described).

H2H thinks that there are 2 separate solicitations involved because the second part was separately solicited by the prime. There is but one contract action.

There is but one RFP for an acquisition of 2 parts by the government.

If a prime contractor can break down one single acquisition/contract action/government solicitation  into multiple orders from the same supplier or subcontractor producer to keep individual prices below subcontract TINA thresholds, it would be easy to nullify the intent, purpose and requirements of  TINA. If the OP is with the government, they should seek legal counsel.

In addition, some here seem to think that the prime and it’s sub don’t have to provide  any data at all to justify the reasonableness of prices beneath the threshold.

Voila! Successfully manipulating a single action, avoiding not only c or p but other data necessary to determine price reasonableness! 

I don’t agree with the idea that paragraph (a)(4) isn’t applicable because (a)(1) is applicable only at the prime level,  even when part of the order doesn’t require c or p data. Thus, a contractor is required to provide c or p but isn’t required to provide c or p data and when not required to provide c or p, isn’t required to provide data other than c or p data.

If the contractor is maintains that it doesn’t have to provide c or p data for the second part, then -if necessary - the contractor must provide data other than c or p data to justify the reasonableness

The Contractor must also evaluate subcontract prices and provide the results. When cost or pricing data are not required for part of a proposal, the FAR explains what type of  minimum information is required.

I really think that the KO can require c or p for both parts. But I didn’t press that in my first post. I merely said okay then, require data other than C or P to justify the price of the second part.

After all, how often is there any government action taken to investigate whether there is defective pricing for most contract actions? The OP apparently didn’t ask their legal counsel and  hasn’t  participated in this discussion, since the first post. He or she just asked for “thoughts”.

My thoughts are 1) make the contractor justify splitting the action into two separate orders,

2) remind the contractor that this is one contract action, one solicitation, one acquisition.

3) If the contractor says that they competed the purchase of the second part, then they still have to evaluate the reasonableness and provide the results- including the basis for their determination.

4) If they didn’t compete the second part, then AT LEAST, require the prime to obtain and provide data other than cost or pricing from the sub, IF necessary to determine the reasonableness. Simply stonewalling isn’t an option.

5) If the government really feels that c or p are required for the second part, Consult your lawyer - insist that they investigate whether a contractor can simply split up purchases from any sub to negate TINA or to avoid providing any data from that sub  to justify its price to the prime.

6) Just lifting up your arms and saying “Oh well! isn’t acceptable. 

 

 

1 hour ago, joel hoffman said:

If a prime contractor can break down one single acquisition/contract action/government solicitation  into multiple orders from the same supplier or subcontractor producer to keep individual prices below subcontract TINA thresholds, it would be easy to nullify the intent, purpose and requirements of  TINA.

This goes back to the original question - other than your outrage, what tells a contractor that it cannot do this?  I'm not arguing what should be, but what is.  I cannot find any such prohibition in FAR 52.215-20, or Table 15-2.

7 hours ago, Retreadfed said:

This goes back to the original question - other than your outrage, what tells a contractor that it cannot do this?  I'm not arguing what should be, but what is.  I cannot find any such prohibition in FAR 52.215-20, or Table 15-2.

I told you that the clause doesn’t provide every detail for a mod action.

For that matter neither do the Changes or differing site conditions clauses.

Doesnt mean that there are no other actions that can be required of a contractor to substantiate or for the KO to be able to determine the fair and reasonableness of an offer.

So, you are essentially saying that 

1) a contractor can circumvent Cost or pricing data simply by splitting up a subs proposal into two or more orders. (I didn’t initially assert that. I merely said have the sub submit other Data.)

2) Nothing requires a contractor or it’s sub to provide other data to allow the contractor or the government to determine that the offer is fair and reasonable. 

Or did you drop the second part of your assertions? The clause at 52.215-20 does say that the government can require other data than cost or pricing data for both the prime and sub. In addition it does say that the KO could require c and p data below the threshold  if necessary. 

 
 

Joel,

It very much seems that, somehow, you've gotten confused between the government solicitation to the prime contractor--which is certainly one contract action--and the prime contractor's solicitations to its potential subcontractors--of which there are multiple. There are likely multiple potential subcontractors, but the OP postulated one subcontractors that received two separate prime contractor solicitations for two separate parts. One of the prime contractor solicitations for one part breached the TINA threshold and certified cost or pricing data was provided to the prime. The other prime contractor solicitation was under the TINA threshold and certified cost or pricing data was not provided. We don't know whether other than certified cost or pricing data was provided.

Much of what you've posted seems to be based on that confusion.

1 hour ago, joel hoffman said:

I told you that the clause doesn’t provide every detail for a mod action.

You keep coming back to a mod.  I do not read the original post as referring to a mod since it uses the term RFP.  However, even if we are talking about a mod, the requirement for submission of certified cost or pricing data in regard to a mod is stated in FAR 52.215-21.  Again, I can find no prohibition against a contractor breaking up or splitting a requirement to a subcontractor in that clause.

5 hours ago, Retreadfed said:

You keep coming back to a mod.  I do not read the original post as referring to a mod since it uses the term RFP.  However, even if we are talking about a mod, the requirement for submission of certified cost or pricing data in regard to a mod is stated in FAR 52.215-21.  Again, I can find no prohibition against a contractor breaking up or splitting a requirement to a subcontractor in that clause.

The term "Request for Proposals" has long been used for requesting proposals for modifications to existing contracts in the Army Corps of Engineers and is still be used for that purpose. I have a Mobile District Contract Administration Manual dated 1975 and I know for a fact that every later revision of that CA Manual still refers to that as an RFP. The South Atlantic Division Contract Administration Manual SADDM 1110-1-1,  dated June 2012 and the 2017 update to the USACE Acquisition Instructions (UAI) also use that term and abbreviation. 

I suspect that other government agencies use the same term to request a proposal for mods in addition to subpart 15.2 new contract proposals.

You don't normally issue an RFP for a new contract “to a prime contractor”. 

6 hours ago, here_2_help said:

Joel,

It very much seems that, somehow, you've gotten confused between the government solicitation to the prime contractor--which is certainly one contract action--and the prime contractor's solicitations to its potential subcontractors--of which there are multiple. There are likely multiple potential subcontractors, but the OP postulated one subcontractors that received two separate prime contractor solicitations for two separate parts. One of the prime contractor solicitations for one part breached the TINA threshold and certified cost or pricing data was provided to the prime. The other prime contractor solicitation was under the TINA threshold and certified cost or pricing data was not provided. We don't know whether other than certified cost or pricing data was provided.

Much of what you've posted seems to be based on that confusion.

H2H, I’ve already clearly said that if the RFQ for the second part was competitive then there is no need for c or p data. I’ve also said that the OP hasn’t participated in the thread except to ask for “thoughts”. There hasn’t been any clarification at all from the OP.

7 hours ago, Retreadfed said:

You keep coming back to a mod.  I do not read the original post as referring to a mod since it uses the term RFP.  However, even if we are talking about a mod, the requirement for submission of certified cost or pricing data in regard to a mod is stated in FAR 52.215-21.  Again, I can find no prohibition against a contractor breaking up or splitting a requirement to a subcontractor in that clause.

52.215-13 subcontractor cost or pricing data - Modifications.

“(b) Before awarding any subcontract expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403-4, on the date of agreement on price or the date of award, whichever is later; or before pricing any subcontract modification involving a pricing adjustment expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403-4, the Contractor shall require the subcontractor to submit certified cost or pricing data (actually or by specific identification in writing), in accordance with FAR 15.408, Table 15-2 (to include any information reasonably required to explain the subcontractor's estimating process such as the judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data, and the nature and amount of any contingencies included in the price), unless an exception under FAR 15.403-1 applies.”

If this is one contract action under which the government included both parts, then one would normally expect one subcontract to be awarded or one modification to an existing subcontract to be made For the one contract action. That new subcontract or mod to an a existing subcontract would exceed the threshold in aggregate. unless the second part was competed by the prime or unless the second part is a commercial item or qualified for another exemption, it will not be separately exempted from the requirement for the contractor to submit c or p data simply because two separate p.o.’s , RFQ’s or whatever you want to call the solicitations from the prime to the sub were sent to the sub.

If you are talking about a new subcontract for the two parts, the new subcontract will exceed the threshold for c&p data. The Contractor shouldn’t be awarding two subcontracts to one sub for one contract action. Both parts are included in the one prime contractor proposal. 

If you’re talking about a modification to the subcontract for the two parts included in one contract action, the contractor shouldn’t be issuing two mods to the subcontract. Both parts are included in one prime contractor proposal. 

Joel, you still have not identified anything that prohibits a prime contractor from splitting a requirement.  You keep saying what the contractor "shouldn't" do but have not identified anything that it cannot do.

As for agencies issuing RFPs for contract modifications, in my experience, that would be an unusual procedure.  The Corpse of Engineers may be an outlier.

3 hours ago, Retreadfed said:

Joel, you still have not identified anything that prohibits a prime contractor from splitting a requirement.  You keep saying what the contractor "shouldn't" do but have not identified anything that it cannot do.

As for agencies issuing RFPs for contract modifications, in my experience, that would be an unusual procedure.  The Corpse of Engineers may be an outlier.

It isn’t a Corpse. I’d say that they are alive and well! Do you call it request a proposal “RAP”?  Demand a proposal “DAP”? Send me one “SMO”? Please send a proposal “PSAP”?

Its not a “solicitation”. It’s a request for the contractor to submit a proposal for the action. The goal is to pre-price a change or other type of modification prior to ordering it;  or otherwise when issuing a Change order , for instance. .