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Nontraditional Defense Contractor Certified Cost and Price Data Exception


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9 minutes ago, Atlas STS said:

Does my accounting system or cost estimation system even meet the standards for being complete?  How would I know?

@Atlas STS, this is why I previously said does your company have a certified public accountant (CPA) report that it meets Generally Accepted Accounting Principles (GAAP)? Having such a successful review is about as good a warm and fuzzy as you could reasonably expect, and I think you will find many small businesses doing business with the government have done so. Spend the money.

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Wow, three work days auditing a $500k order. No wonder they don’t have the resources to perform pre-award audits of construction contracts and mods, or to audit claims, etc… Sheesh.

Edit: @Atlas STS was this a post award audit? 

Edited by joel hoffman
Asking a question.
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4 hours ago, Atlas STS said:

DFARS 252.215-7010(b) is titled "Exceptions from certified cost or pricing data."  (1)  In lieu of submitting certified cost or pricing data, the Offeror may submit a written request for exception by submitting the information described in paragraphs (b)(1)(i) and (ii) of this provision. 

Atlas, you are misreading this provision.  It clearly does not exempt any potential contractor from being required to submit certified cost or pricing data.  Note that this sentence states that an offeror "may submit a written request for exception" from the requirement to submit such data.  This sentence identifies some of the information that is to be included in any such request.  One of the bits of information that an NTDC is required to submit is a statement by an NTDC that it meets the criteria to be considered an NTDC.  However, as a condition precedent to an NTDC being able to request an exception under DFARS 252.215-7010, the government must have first determined that the supply or service to be provided by the NTDC is considered to be a commercial product or service as described in DFARS 252.215-7013.  Note that this clause references 10 U.SC. 3457.  That statute states " products and services provided by nontraditional defense contractors (as that term is defined in section 3014 of this title) may be treated by the head of an agency as commercial products and commercial services, respectively, for purposes of" the requirement to submit certified cost or pricing data.  Also, see DFARS 212.102 which says that contracting officers "may treat supplies and services provided by nontraditional defense contractors as commercial products or commercial services." Thus, there can be no doubt that the decision to treat supplies or services provided by an NTDC as commercial rests with the government and not the contractor.  By permitting an offeror to submit a request, the clear implication is that the government may deny the request and require the submission of certified cost or pricing data.

4 hours ago, Atlas STS said:

The whole purpose of (b) is to list all the exceptions from certified data and it includes an exception for NTDC with their CAS current/history as the basis for claiming that exception. 

Again, this is an inaccurate statement.  The exceptions to the submission of certified cost or pricing data are set forth in 10 U.S.C. 3703.  These statutory exceptions are restated in FAR 15.403-1.  Notably, there are more exceptions listed in the statute and FAR than are mentioned in 252.215-7010.  Neither the statute nor the FAR mentions an exception for NTDCs.  Further, neither provides an exception for any contractor that is not performing or has not performed a CAS covered contract.  Because the exceptions from the requirement to submit certified cost or pricing data are statutory, the DFARS cannot create an additional exception without statutory authority.  DFARS 252.215-7010 does not create an exception for NTDCs.  Instead, it allows the government to apply the commercial product/service exception to items provided by NTDCs when DoD has decided to treat such items as commercial in accordance with 10 U.S.C. 3457 and DFARS 212.102. 

5 hours ago, Atlas STS said:

Must be current, accurate, and complete.  How will I know if they're complete until I'm audited?  Does my accounting system or cost estimation system even meet the standards for being complete?  How would I know? 

You meet this requirement by giving the government everything you have relating to a proposed contract.  If you don't have something, you don't have it.  You merely have to give the government what you have in the form you have it.  You do not have to create anything for the government in this regard.

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@Neil Roberts I did engage a CPA to help me categorize our costs so it was somewhat helpful.  I don't think I did a good job explaining how small we are or how much our business operations will change AFTER this award.

@Retreadfed Ok, I think you convinced me by going back to the legal code.  It sounds like my only hope of not certifying is getting treated as if commercial on various clauses, but that the exception request is only an instruction of how to request that, not a separate exception outside of the commercial one.  I'm struggling with it being so easy to comply with the other stuff I'm reading online of some very aggressive auditors finding fault that is later overturned if a company fights it, but I really hope you're right.

@joel hoffman this was a post award / predelivery inspection.  It was of our quality management system which was thankfully done via email, but then three onsite visits at various stages of construction.  I thought it was overkill and it kept forcing us to stop production right near the end of our work so it was very disruptive.  Very nice guy though!  On a related note, I read online that in 2022 they really increased the random DCAA post award audits from prior years.  I think DCAA is really trying to do more audits overall.

Thank you all again, I guess at least now I can clearly ask the buyer without getting caught up in the exception and/or more confidently certify our data assuming I give them everything.

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52 minutes ago, Retreadfed said:

However, as a condition precedent to an NTDC being able to request an exception under DFARS 252.215-7010, the government must have first determined that the supply or service to be provided by the NTDC is considered to be a commercial product or service as described in DFARS 252.215-7013. 

No, that’s not what DFARS says.

@Atlas STS  Can you justify price reasonableness through other means to the contracting offices satisfaction?  Often companies can prepare justifications by using information in FAR 15.403-3.  I think Joel mentioned this early in the thread.  I had to do something similar working for a contractor.  I used a variety of online cost and pricing information, including overhead and G&A rates from the closest marketplace sector as well as estimates of labor that a government technical person could analyze.  I stressed it was in the governments best interest in terms of time, effort, and administrative expense to accept our price with certifying data and related audit.

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21 hours ago, Atlas STS said:

 

…this was a post award / predelivery inspection.  It was of our quality management system which was thankfully done via email, but then three onsite visits at various stages of construction.  I thought it was overkill and it kept forcing us to stop production right near the end of our work so it was very disruptive.  Very nice guy though!  On a related note, I read online that in 2022 they really increased the random DCAA post award audits from prior years.  I think DCAA is really trying to do more audits overall.

Thank you all again, I guess at least now I can clearly ask the buyer without getting caught up in the exception and/or more confidently certify our data assuming I give them everything.

@Atlas STS I’m a bit confused. Can you elaborate somewhat, please? You said that the audit was a pre-delivery inspection of your “quality management system” plus three on-site inspection visits at “various stages of construction”.

Do you fabricate or manufacture systems, equipment, modular construction or something?

I didn’t know that DCAA auditors inspect quality management systems but I don’t know everything about manufacturing operations either…

Edit: Ah, your original post said that your company  “manufacture[s] equipment for the Navy”.

If the Navy is your customer, not for commercial sales, then would your equipment be commercial products? I would question that premise…

However, if you are going to manufacture the same items, then you may indeed have some cost and pricing history. Of course, that is not to say that the cost or effort would be the same for follow on production after tooling, set-up and initial production, tweaking, learning curves, etc. 

Edited by joel hoffman
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2 hours ago, formerfed said:

I have a feeling DCMA and not DCAA reviewed Atlas’s quality control and performed the inspections.  DCMA does inspection while DCAA does financial audits.

I would agree with that postulate, formerfed. 

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@joel hoffman My apologies, yes I meant DCMA inspection.  I just mentioned it to show how inspections have greatly impacted us in the past, predominately because I wasn't expecting something so thorough.  Also, when you're small and inexperienced, you don't know when you can tell the inspector enough is enough.  You are correct that our product likely cannot be considered commercial, but the NTDC is allowed to be treated AS IF our products and services were commercial without a determination that they are.  After @Retreadfed got me straight, that is the path we are asking the buyer to take, but it is at the contracting officer's discretion.

@formerfed They seem pleased with our uncertified data as sufficient for pricing analysis.  They just want us to certify it.  With what I know now, when they first reached out for market research, I should have stated that we can supply the product, but only if we were treated as if our product was commercial and referenced 252.215-7013.  This would have made everyone's life much easier.  As it is now, the buyer has done all the work for Part 15 purchase, I've done all the work of generating certified cost and pricing data, and now I'm trying to get them to go Part 12 instead which maybe means they start all over?  They see that I've done all the work for certified data, have accepted the data, and can't understand why I won't just certify it so we can close this out.  I'm hesitant because all of the legal blogs designed to help people respond to audit say "the best way to not lose an audit, is to not be auditable".

My plan is discuss one final time with the buyer to at least consider our request to implement NTDC supplied product to be treated as commercial and explain why it's not trivial for us to certify the data.  If they say no, we'll have to decide if certifying is in our best interests and either retract our proposal or certify our data.  The folks on the forum have me convinced it's not the end of the world to certify, but the internet horror stories have an alternate view.  If the audit process didn't sound so subjective, I think I'd be just fine, but I read one case where a pre-award audit stated defective data was unlikely, post-award audit found it to be defective, but then the ASBCA sided with the vendor.  To me, that shows that you can do it right from start to finish and still be drug through a long audit, likely have significant legal fees to appeal to the ASBCA, etc.  For a small business, just the process not the penalties if we lose, could shut us down for weeks!

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 Good Gracious, @Atlas STS, I WISHED we could have had pre-award audit support for much larger acquisitions than this one. The DCAA just wasn’t available.  I’d almost be willing to bet money that - since they aren’t auditing your proposal, they won’t bother to post audit it either. If you think that your data is truthful, I respectfully suggest you quit worrying about it.

P.S.

“complete” essentially means you didn’t omit factual information that you are aware of that would affect the price 

Edit: P.P.S

In reading your last post, you said that “they” (Navy? DCMA?) “seem pleased with our uncertified data as sufficient for pricing analysis”.  And “They just want us to certify it.”

Have you actually negotiated and settled upon the price?? It appears that they are “analyzing” the price, prior to start or completion of price negotiations (?)

There is no certification required until after you negotiate and settle on the price.

If you are worried about any aspect of your proposed pricing data, you can revise the proposal and continue or start negotiations,  before certifying it upon conclusion of negotiations. And make sure that you clearly identify any judgmental aspects of the proposed pricing , preferably-prior to - or otherwise during negotiations - but prior to concluding negotiations.

The reason that I ask these questions is that you have previously inferred, in response to my observations on the probability of a DCAA post-audit,  that DCAA spent three days visiting your company in a post audited. You later explained that the visit and interaction was simply DCMA administering the contract. 

it is important that we better understand the actual stage of the price negotiations (if any) to interpret your explanation and concerns. You are saying that they have enough info to analyze the price but they want you to certify the cost or pricing data. Certification ONLY occurs after negotiations are complete.

Firms have performed “sweeps” (reviews) of the accuracy and currency of their cost or pricing data after negotiations, but before certifying it. They have occasionally come back to notify us and revise some aspect of their proposal after the sweep… 

🤠

Edited by joel hoffman
@Atlas has made a statement that makes it unclear what stage of the negotiations (if any) are ongoing.
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@Atlas STS, I apologize for editing my last response this morning after you last visited the site yesterday, shortly after I posted it.

Please review my edited post, thanks! 

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@Atlas STS,  if you aren’t comfortable enough with your submitted price and the supporting data for the proposed price to justify and certify it, you certainly have the opportunity to negotiate and update/revise/clarify it before finalizing the contract negotiations.

Edit: [You are not locked in to your original proposal even if “they” aren’t actively negotiating the actual price with you but merely want you to “certify” it before awarding the contract.

The act of certifying it signifies that a negotiation has taken place.]

Truthfulness shouldn’t be dependent upon whether or not you have to certify  it. 

Edited by joel hoffman
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36 minutes ago, joel hoffman said:

@Atlas STS

…The act of certifying it signifies that a negotiation has taken place.

@Atlas STS, Sorry - One more clarification… It’s DoD policy to negotiate single proposal responses to solicitations.

So, even if “they” are in the process of simply accepting your proposed price as “a price agreement”, subject to certification, those ongoing “discussions” you have referred to amount to pre-award “negotiations”.

You can revise or withdraw your offer any time prior to award. It appears that their present position is that you must certify before award. Thus, the on-going discussions amount to negotiations. 

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Atlas, Joel is giving you some good information.  You need to understand that you do not have to base your proposal on the cost or pricing data you have and submit to the government.  Your only obligation is to submit that data to the government in a meaningful way, i.e., in a way so that the government is placed on an essentially equal footing with the contractor in regard to making judgments as to what would be a reasonable price.  Also, look at the definition of cost or pricing data.  It only involves facts that could reasonably be expected to have a significant impact on price negotiations.  For example, the B-52 has been around since the 1950's.  It is obvious that cost data from the 1950's would not be relevant in regard to a contract to be awarded today and would not be considered cost or pricing data.  Finally, you do not certify your proposed price (your proposal is not cost or pricing data) nor do you certify the price you agree upon with the government.  Instead, you certify the data that relates to the acquisition.

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@joel hoffman I'm really sorry for the confusion.  When I said a DCAA inspection, I meant a DCMA inspection of our last order before delivery.  I only mentioned it to show how difficult these types of audits/inspections can be for those inexperienced in dealing with them.  I have NO IDEA where I am in negotiations for this order.  I submitted an original response to the RFP and was notified since I was the sole offeror, I had to submit certified cost and pricing data.  I asked for exception to certify as a NTDC.  There were also some requests to use alternate parts for a couple that were obsolete.  They said they'd research and get back to me.  In the interim, I revised our proposal to include other than certified cost and pricing data in the same format as certified (Table 15-2) in the hopes that in going to the greatest level of detail possible, it would expedite the process once the obsolete part replacements were approved.  At that point, they still hadn't resolved the obsolete part request.  However, this week they have approved our part replacements and I am updating my proposal again to respond to the amendment.  They've asked me to certify in that proposal, but i have continued to ask to be treated as commercial and not certify my data.

I am in no way concerned with truthfulness of our data.  I am only concerned with "completeness" and more specifically, if audited, how do I prove that it was complete?  What information SHOULD I have that I might not that will cause me to fail an audit?  Either way, I will definitely make it crystal clear what parts of my data are judgmental, but then "completeness" means I have to have data showing how I arrived at those judgements and I don't know that I have that adequate to respond to an audit.  That's my only concern with certifying the data.  I keep going back to the fact that there is a reason someone made NTDC able to get an exception from this data and thinking I am definitely the type of company it was designed for...despite having no idea what the actual risk is!

So, I don't know if the government approves our price, I don't know if I should be sweeping our data or what that means.  I don't know if we've been in negotiation or if negotiations have started or if negotiations are complete.  The only response is "please certify your data".  I'll try to ask these questions Monday when I have my second telcon in four months with them.  I think the assumption is that we know how to navigate this process when we clearly don't.

@Retreadfed I definitely appreciate the help from you all!  I'm going to be honest, I really don't understand what you're saying in regards to separating our proposal from our data and it sounds important!  Isn't the FAR Table 15-2 how we submit our certified data and that leads directly to our proposal price?  I don't see how to separate those two things.

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43 minutes ago, Atlas STS said:

I am only concerned with "completeness" and more specifically, if audited, how do I prove that it was complete?

You don't have to prove that it is complete.  The government has to prove that it is incomplete.  As stated before, "complete" simply means you provide the government with the cost or pricing data you have.  There is no other standard for determining completeness.  You seem to be worried that there is some data that you are required to have.  There isn't.  You have policies and procedures that state what data you accumulate.  If that data meets the definition of cost or pricing data, that is what you submit.

 

49 minutes ago, Atlas STS said:

Isn't the FAR Table 15-2 how we submit our certified data and that leads directly to our proposal price?

Some people have the misperception that contractors have to base their proposed prices on the cost or pricing data they submit to the government.  As a general rule, contractors can base their proposed prices on whatever they choose.   The proposed price can merely be what the contractor feels is a reasonable price.  That price does not have to have any correlation to the cost or pricing data submitted to the government.

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24 minutes ago, Retreadfed said:

Some people have the misperception that contractors have to base their proposed prices on the cost or pricing data they submit to the government.  As a general rule, contractors can base their proposed prices on whatever they choose.   The proposed price can merely be what the contractor feels is a reasonable price.  That price does not have to have any correlation to the cost or pricing data submitted to the government.

That is a very debatable statement but I’m not going to spend the time to debate you. 

The short answer is that, for a sole source negotiated contract action,  cost or pricing data and/or judgmental and other data are required to support the basis of the price proposal presented to the government. The purpose of whatever data you provide to the government is to support the proposed price in order to establish a fair and reasonable price for the contract.

“That price does not have to have any correlation to the cost or pricing data submitted to the government.” That is a dangerous assertion that can cause Atlas STS a lot of trouble.

if that were true, then there is no reason to submit C and P or any other data to support the proposed price for negotiations.

Atlas, see, for instance,  https://www.fai.gov/sites/default/files/CPSG_Activity44.pdf

 

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Joel, you're usually on the mark, but I disagree with posting a link to a defective data training module in response to Retreadfed's assertion that there is no connection between the data and the price. I agree with Retreadfed. As long as the data is complete and accurate, the government has the same information that the contractor has, and they are therefore on equal footing in negotiations. That is the purpose of TINA. If the total cost of production is $10 and the contractor says its price is $20, the government knows that the contractor wants $10 in profit. There's nothing defective about that. Start negotiating.

Assuming that the data is accurate, there is no issue of defective data.

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The statement “That price does not have to have any correlation to the cost or pricing data submitted to the government” is wrong.

FAR 15.408 describes the requirements for submission of cost or pricing data. The government should have amended the solicitation to add the provision at 52.215-20 Requirements for Certified Cost or Pricing and Data and Other Than Certified Cost or Pricing Data when it required the sole offeror to provide cost or pricing data  -and/or data other than cost or pricing data. This provision also specifically incorporates Table 15-2 of FAR 15.408 and instructions by reference, unless the government specifies an alternate format.

The 15-2 format clearly requires a breakdown of the specifically identified proposed costs and specifically identified profit in the proposal.

If the DOD agency wants you to provide certified cost or pricing data OR EVEN DATA OTHER THAN CERTIFIED COST OR PRICING DATA for a negotiated acquisition with a sole offeror, then it must amend the solicitation and provide applicable instructions. 

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I won’t go into detail concerning the cost principles in FAR Part 31 Contract Cost Principles and Procedures for non commercial products and services other than to say here:

FAR 31.102 and 31.103 state that the applicable parts of Part 31 and agency supplements shall be used in the pricing of negotiated fixed-price contracts and subcontracts whenever cost analysis is performed (15.404-1(c),  as required by  15.404-1 (a)(3) and as allowed in 15.404-1(a)(4) for contracts for commercial products and services.)

See also the Pricing policy at 15.402 (a) and (b).

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@Atlas STS, I am curious.

Of course, we don’t know much from your posts about the nature or or what type products you are producing and wish to be considered as commercial products.

Q: Have you manufactured and sold these products to commercial or other non-government buyers?

Q: Since you are the only respondent offeror to the solicitation are you the only source for these products? 

I’m sorry for your confusion concerning the DoD acquisition processes, especially the negotiation process when you are a sole offeror for products.

I suggest that you review the DFARS PGI 215.4 Contract Pricing and its sub parts. It covers many aspects concerning sole offerors to a solicitation and pricing of commercial products or non-commercial products .

https://www.acquisition.gov/dfarspgi/pgi-215.4-contract-pricing

It isn’t as simple as the two provisions you have relied on in your approach to the buyer agency to have them considered to be commercial products.

I hope you also better understand what the nature and purpose of data to support your proposed pricing for a $2 million dollar Defense contract is.

It is definitely relevant. It has a direct correlation to your pricing, whether or not it is considered to be “cost or pricing data” subject to the Truthful Cost or Pricing Statute and implementing regulations.

In simple terms, it is essentially a price breakdown, explaining the basis of your price proposal as a sole offeror to a DOD acquisition.

For DoD, there is no presumption of anticipation of adequate price competition for an exception to an applicable requirement to provide cost or pricing data for a non-commercial product or service. 

Even if there is sales data for the same products to commercial or government agencies, the government would have to be able to compare and/or distinguish any market pricing differences between this sale and previous sales. 

 

 

 

 

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@Atlas STS  Lots of comments here to consider.  Joel has done an excellent job of explaining and describing the situation you face and offering sound advice.

If I were in your position I would layout the situation as you previously described - you are a NTDC with no experience or capabilities in preparing detailed cost or pricing data to the government.  You have submitted a request for exemption which you feel is applicable but the government hasn’t responded.  Furthermore you have prepared data showing reasonableness of your proposed price which the government has not objected to.  But they now want you to certify.

I would reluctantly certify the data carefully explaining the data is the best you can do and lay out what is judgmental.  I would conclude this is the very best you can do given the demands being placed on your company.

As far as “completeness,” what an auditor looks for is does your company have pertinent data that wasn’t disclosed.   They aren’t out for “gotcha’s” but just verify you provided everything that supports your estimate.  The information they examine are what’s in your company records so it’s fairly easy to identify upfront the limits of their audit.  If certain elements of cost are based on judgements, you explained that.  What they typically get companies on, excluding fraudulent claims, is omissions.  An example is a supplier quote that was lower than what was used in the estimate.

You seem very conscientious and sincere so I think you have nothing to worry about.

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4 hours ago, formerfed said:

@Atlas STS  Lots of comments here to consider.  Joel has done an excellent job of explaining and describing the situation you face and offering sound advice.

If I were in your position I would layout the situation as you previously described - you are a NTDC with no experience or capabilities in preparing detailed cost or pricing data to the government.  You have submitted a request for exemption which you feel is applicable but the government hasn’t responded.  Furthermore you have prepared data showing reasonableness of your proposed price which the government has not objected to.  But they now want you to certify.

I would reluctantly certify the data carefully explaining the data is the best you can do and lay out what is judgmental.  I would conclude this is the very best you can do given the demands being placed on your company.

As far as “completeness,” what an auditor looks for is does your company have pertinent data that wasn’t disclosed.   They aren’t out for “gotcha’s” but just verify you provided everything that supports your estimate.  The information they examine are what’s in your company records so it’s fairly easy to identify upfront the limits of their audit.  If certain elements of cost are based on judgements, you explained that.  What they typically get companies on, excluding fraudulent claims, is omissions.  An example is a supplier quote that was lower than what was used in the estimate.

You seem very conscientious and sincere so I think you have nothing to worry about.

I agree with formerfed here.

I would hope that the DCMA knows what they are doing.  They should have amended the solicitation to give the proper instructions for submitting cost or pricing data and/or data other than cost or pricing data.

Do NOT certify cost or pricing data until after negotiations are (conducted?) , completed and there is an agreement on the price.

Good luck. 

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On 9/8/2023 at 11:05 PM, joel hoffman said:

The statement “That price does not have to have any correlation to the cost or pricing data submitted to the government” is wrong.

" the complaint seems to allege that Martin-Baker's certificates of cost or pricing data were false because the company failed to use historical actual costs during negotiations with the government. Yet we have found no case or regulation — nor has Williams pointed to any — requiring the use of such data during negotiations. Instead, aiming to put negotiating parties on equal footing by mandating disclosure of cost data, the FAR and TINA only require that contractors identify and make the information available to the government. See, e.g., Hughes Aircraft Co., ASBCA No. 30144, 90-2 BCA ¶ 22,847, 1990 WL 42047 (1990) (stating that a contractor is not obligated to use cost data so long as the government has the option of analyzing the data). Having done so, negotiating parties need not reach agreement based on the disclosed data. Id."   U.S. ex re. Richard Williams v. Martin-Baker Aircraft Co. LTD., et al., 389 F.3d 1291 (D.C. Cir. 2005).   If you have access to the Hughes case, I suggest everyone read it as it is a good primer on cost or pricing data.  Also, see  United Technologies Corporation, ASBCA Nos. 51410, 53089, 53349 (Feb. 27, 2004), where the Board said "the government contends that appellant violated its obligations under TINA by failing to use certain cost or pricing data in its BAFO. We reject this contention for a number of reasons. The plain language of the Act does not obligate a contractor to use any particular cost or pricing data to put together its proposal. Indeed, TINA does not instruct a contractor in any manner regarding the manner or method of proposal preparation. TINA is a disclosure statute. It requires a contractor under certain circumstances to disclose and to furnish cost or pricing data to the government and to certify that the data are accurate, current and complete. . . . once a contractor has furnished accurate, current and complete data, it has fulfilled its TINA obligations. The statute does not require that all or any of that data be used to prepare the proposal. One would think that any contractor with the desire to obtain a contract award would use credible, historical cost data so as to demonstrate to the government that its proposed price is consistent therewith. However this is a matter for the contractor to decide, and for the Government to evaluate as part of the proposal review process, and is not a mandate under TINA."

 

On 9/8/2023 at 11:05 PM, joel hoffman said:

The government should have amended the solicitation to add the provision at 52.215-20 Requirements for Certified Cost or Pricing and Data and Other Than Certified Cost or Pricing Data when it required the sole offeror to provide cost or pricing data  -and/or data other than cost or pricing data.

Atlas is dealing with a DoD contract.  DFARS 215.408 states in part "When reasonably certain that the submission of certified cost or pricing data or data other than certified cost or pricing data will be required or when using the provision at 252.215-7008 -(i) Use the basic or alternate of the provision at 252.215-7010, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, in lieu of the provision at FAR 52.215-20."  Despite this requirement, Atlas states that DFARS 252.215-7010 is not in the RFP.  However, ATLAS stated DFARS 252.215-7008 is in the RFP.  That provision requires submission of cost or pricing data in accordance with the version of DFARS 252.215-7010 incorporated in "this solicitation."  Because 252.215-7010 is not in the solicitation, we don't know what the submission requirement actually is, if any.

On 9/8/2023 at 11:49 PM, joel hoffman said:

I won’t go into detail concerning the cost principles in FAR Part 31 Contract Cost Principles and Procedures for non commercial products and services other than to say here:

FAR 31.102 and 31.103 state that the applicable parts of Part 31 and agency supplements shall be used in the pricing of negotiated fixed-price contracts and subcontracts whenever cost analysis is performed (15.404-1(c),  as required by  15.404-1 (a)(3)

FAR 31.102 and 103 provide guidance to contracting officers.  They do not apply to contractors or tell contractors how to prepare proposals.  Also note there is an inconsistency between 31.102 and .103 and FAR 15.404-1(c)(2).  Part 31 says the government shall apply the cost principles when conducting cost analysis while 15.404-1 makes such use discretionary.

On 9/8/2023 at 11:05 PM, joel hoffman said:

The 15-2 format clearly requires a breakdown of the specifically identified proposed costs and specifically identified profit in the proposal.

Proposed costs are not cost or pricing data.  Nothing in 15-2 tells a contractor how to prepare a proposal.

 

On 9/8/2023 at 6:14 PM, joel hoffman said:

“That price does not have to have any correlation to the cost or pricing data submitted to the government.” That is a dangerous assertion that can cause Atlas STS a lot of trouble.

if that were true, then there is no reason to submit C and P or any other data to support the proposed price for negotiations.

The purpose of TINA is to establish a level field for price negotiations by requiring a prospective contractor to furnish factual cost or pricing data significant to the price negotiations known to it so that the contracting officer will have the same knowledge during negotiations. M-R-S Manufacturing Company v. United States, 203 Ct. Cl. 551, 563-64, 492 F.2d 835, 842 (1974).

 

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9 hours ago, Retreadfed said:

Because 252.215-7010 is not in the solicitation, we don't know what the submission requirement actually is, if any.

EDIT:

I missed where @Atlas STS stated that 252.215-7010 is not in the solicitation.  Atlas did refer to that provision. 

The initial solicitation included or should have included  the provision at 252.215-7008 Only One Offer. This provision specifically refers to the provision at 252.215-7010.  That provision refers to Table 15-2…

If 252.215-7010 wasn’t in the initial solicitation, the government should have amended the solicitation to include it after receiving the only one offer.

Table 15-2 specifies how to provide cost or pricing data or data other than cost or pricing data.

The government could have specified alternative format in lieu of Table 15-2. 
 

Edited by joel hoffman
Rewrote my response.
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