joel hoffman

Because it isn't cost or pricing data.

Are the DoD CAS Working Group Interim Gudance Papers available on the web?

Did you Google it? Try this link.

"We have attached a copy of the CAS Working Group Papers for your use in the interim:

http://acc.dau.mil/simplify/ev.php?ID=3220...mp;ID2=DO_TOPIC "

Incorporated above.

"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?

Vern Edwards: "You think that there is less ground for protection in a procurement of commercial items. I say that there are greater grounds. Joel thinks that grounds maintenance is too prosaic a service to justify trade secret protection of prices in a private transaction. I say that he has stated no rational basis for that position."

I said that I understand the legal basis for withholding price details. I did say that I doubt that there are any trade secrets. I also said that the government never said that there were any trade secrets. If there are, then the government should determine whether or not there are and ought to provide a reasonable explanation why it wont even identify the contract price. That is not an unreasonable public request. The FAR says to provide the evaluated award price (and to identify the winner) in a debriefing, if given. Its an awfully big stretch to go from protecting trade secrets to keeping the award price secret.

What is funny to me at this point is how nobody here seems to have examined the reasons the KO provided for withholding the contract price. To say that the price is part of the proposal, thus protected, is goofy, when the FAR says to disclose it when debriefing unsuccessful offerors.. The FAR citation she provided (24.202) doesn't make sense to me. Paragraph (a) isn't applicable. If she means that the price is part of the proposal, so cant be disclosed, that contradicts the debriefing requirements to identify the contract award price. Paragraph (bee) doesnt apply because the contract price wasn't obtained pursuant to 15.403-3(bee). Paragraph (cee) doesnt apply either. No reason was given for not identifying the winner.

The goofy excuses that the KO provided don't make any sense at all, based upon the scenario outlined. As it turns out, there is more to the story that the questioner started trickling out yesterday. So, who knows what the real reason is? Ok, experts, please tell me what she meant and why she refused to disclose the price and winner's name, base on the information Brian provided. Please explain where she indicated that the price is a trade secret or otherwise would harm either the government or the contractor.

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.

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

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)(, 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.

Jeez, now we have a trickle of "the rest of the story". I withdraw, since you are now feeding us bits and pieces of "the unique" nature of the contract.

Sorry, I should have given the KO the benefit of the doubt here. She may be wrong but it now looks like there is much more to this than initially presented.

Had this been a routine grounds maintenance contract, I would find it hard to believe that pricing, which consists of one line item and no technical proposal, would reveal proprietary secrets, given the original scenario presented. The purported reason given for not releasing the contract price did not fit the seemingly simple scenario. No wonder this looked (and smelled) fishy.

The court in Canadian Commercial Corp. and Orenda Aerospace Corp., stated the rule quite succinctly"

Among other reasons, there should be no disclosure of "constituent" or "line item" prices if it would cause substantial harm to the competitive position of the firm from which the information was obtained. Before releasing any such info the CO should contact the firm whose information has been requested. You can pooh-pooh this all you want, but as a businessman I understand why some firms in some markets do not want to disclose their prices. A firm that competed for a specially-tailored government grounds maintenance job may have given the government prices that it does not want disclosed to its competitors because it would harm its competitive position in the future. Instead of being sarcastic, you could try reading the case law. Saying that a position is ridiculous is not an argument.

The government can reveal unit prices if the contractor does not object. If the contractor does object, then someone in the government (not the contracting officer) must decide whether to release the info despite the objection. If that is the decision, the contractor can file a reverse-FOIA suit. This nondisclosure rule does not apply in sealed bidding, in which public bid opening is mandated by statute.

Vern, I understand the background and reasons for the exclusion. However, this is now being interpreted to the extreme to the point where it is just a croc. This is a grounds maintenance contract.

I may have missed it, but did anyone look at the reason the KO gave not to reveal the price? Brian said only that the KO referred to "FAR 24.202", with no apparent further explanation other than the price is part of a proposal, thus cannot be revealed. He later said that she also refuses to name the winner. Both of those practices are contrary to the requirement where there is a debriefing, to provide the overall price and name of the winner, unless there is some other reason provided. She apparently didn't (from the info presented) explain why the contract price would reveal any proprietary information other than it is part of a proposal, so is not releasable. I don't think that one can use 24.202 (a) as justification not to name the contractor or reveal the price because those items are obviously prime features incorporated into the contract. She didn't explain why 24.203 ( would apply, either. That refers to a price breakdown or some other info used to evaluate the reasonableness of the price, not the overall contract price itself.

Everyone seems to have jumped into this specific case as though the unit prices are to be held tight, perhaps because they will automatically reveal proprietary information. I've dealt with construction and other public works repair and maintenance contracts for 30 years that contain unit prices and it would be extremely rare where the unit prices would reveal such info. I've also evaluated a couple of service contracts for grounds maintenance on civil works sites and nobody ever objected to releasing the contract prices.

You may say, yes but many of those (not all) were IFB where the information is public by law. Well, IFB, RFP, Part 13 doesn't seem to make a difference here as price alone was evaluated and it appears to be a routine contract, not unlike those that are publicly bid all over the US.

Hell, there are reporting services that have been publishing unit prices on public works projects for at least 38 years (I didn't read any before 1971). I used to subscribe to a few of them. That is how we used to budget for our new projects and we used the data in developing our owner and government cost/price estimates.

Brian said that they wont even name the awardee. This whole thing looks fishy to me. Maybe it is a secret contract at Camp David or something and Edward or Sweeny will do the work.

Seems to me that the only trade secrets in a lawn maintenance contract might be if they were going to use Edward Scissorhands or Sweeney Todd to trim the grass or bushes. Besides nobody said there are trade secrets involved, here.

Are you are telling me that anytime there are unit prices involved in a government contract, the government can't reveal them to the public? What about the same work but in an IFB format? This is getting ridiculous. Civil works construction contracts might contain up to 100 CLINS and public works contracts often use unit prices and estimated quantities to be measured and paid at actual installed quantities.

I have been out of town the past few days, but - for Cripes sake, already - this is a grounds maintenance service contract! What kind of trade secret is involved in finding the overall contract price (I'm guessing that it is X months at $y/month = contract price)?

"Here is FAR 52.215-1, Instructions to Offerors--Competitive Acquisitions, with respect to debriefing:

(f)(11) If a post-award debriefing is given to requesting offerors, the Government shall disclose the following information, if applicable:

...(ii) The overall evaluated cost or price and technical rating of the successful and the debriefed offeror and past performance information on the debriefed offeror."

Seems like the overall price is one thing that must normally be revealed in the debriefing and the questioner never said that there are trade secrets involved - in a grounds maintenance contract?????????? mowing grass, trimming plants, fertilizing, etc. ??????

Well, it still look like he just wants to know who won and what the overall price is (one CLIN). He has the right to know that, as would we (unless this is a classified contract).

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.

I read the initial post as though the overall price is a secret. The questioner didn't mention unit prices. Brian are you clear about what you want and are you sure that both you and the KO are talking about the same information? What info do you want to know?

On slower Friday afternoons I sometimes browse through FBO to peruse what other offices in my federal agency are doing...to compare notes so to speak and also, I will admit, for entertainment purposes.

Today, I took a look at a recently posted "Recovery" Solicitation. Now, I have seen this done before and I don't agree with it but whatever....

I looked at a construction for buidling roofing solicitation done as a Commerical item, with SF-1449, the commercial terms and conditions but with the added clauses for bonding, the Davis Bacon Wages, etc. And....it said prominently "100% Set aside for Small Business" and they even had the estimated price range....between $250K and $500K. (Small Business Competitive Demo Act...did that go away???)

Shinaku, DOD small business set-asides for construction are back, from what I've been told. I don't agree that building roofing systems are "commercial items", especially with the massive problems in the industry with quality, workmanship, warranties, etc. I read an air Force article once that said - "Dont ever technical advice from roofing contractors". I have done several "autopsies" on "roofing problems from Hell", over the years.

Don, thanks for the clarifications. I was aware that the SBA definitions of self performed work were different, but overlooked the distinction in actual clauses. I will follow up on that when I get home from TDY.

Yes, the requirements for self-performed work by employees of the HubZone firm or other HubZone firms are found in the HubZone clauses, as applicable to the acquisition (52.219-3, 52.219-4).

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.

Case law holds that price must be a meaningful factor. The government must determine that to award to other than the lowest reasonably priced, technically acceptable offeror, the additional benefit provided by a higher technically rated proposal must justify the increased cost to the government (we taxpayers).

I don't think I can be more specific because agencies vary in their rating systems. Ones that point score technical and/or price proposals sometimes come up with all sorts of mechanical machinations to justify their selections.

The clause at FAR 52.219-14 doesn't apply to HUBZone or SDVOSB set-asides. The clauses for these types of set-asides contain their own limitation on subcontracting provisions, which are slightly different than FAR 52.219-14.

1 - What BAA clause(s) were in the solicitation? To me, the BAA is one of the most confusing pieces of legislation dealing with acquisition. What dollar threshold was the acquisition?

2 - FAR 15.506(d) covers what, at a minimum, the debriefing information shall include, and none of the items mentioned in Question Two are contained in that section.

I don't know whether or not the two questions are related to 15.506 (d) or which BAA provisions arre in your contract or the dollar amount involved.

Paragraph 15.506 (d) says, in part:

"...(5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and

(6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed."

If this is applicable to the type of acquisition, you should be able to determine what make and model number of a commercial item is to be furnished, which might allow you to find out where it is made. If a price comparison evaluation is necessary, you can ask if it were made. If BAA applies and the products are made in China, products from that country are not considered to be domestic products for purposes of the BAA clauses. I also think that it is fair to ask where the products are made.

Well, you can always take the reduction unilaterally and let the contractor submit a claim.

Now, If the actual installation will fully meet the performance requirements and service life, I would expect that a court would say that the government is entitled to a credit for the difference in cost between compliant stone and non-compliant stone, plus profit. That would represent the difference in value to government between specified and actual product.

If such is the situation, I think that contractor has little or no legal leg to stand on. What can he argue? "I used a cheaper product than that specified, therefore I did not comply with the contract and pocketed the difference? In that scenario, I'd quit screwing with the contractor, make a final offer, then implement it, take the credit and make contractor justify why him pocketing the difference between compliant and non-compliant materials doesn't represent a reduction in value to government.

If I pay for a Buick and get a Yugo, I believe the value I received was that of a Yugo, not the Buick, even though both will get me from point A to point B.

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

Joel - Good point and I should have been more clear that the Limitation clause is applicable to set asides for small business/8(a).

Carl, does the Limitations of Subcontracting clause apply to unrestricted schedules or just to schedules that are restricted to small business?