TINA and Actuals

[Jakemx56]

Good afternoon,

Does anyone have a reference to the COFC case that determined that prior actual costs incurred on prior buys are required under TINA?

I know it exists but I can not find it.

I currently have a Major defense contractor refusing to submit actuals on extremely large procurement and I would like to send them the case.

 

V/r

Jake

[Guest Seeker]

What do you mean by "lot actuals"? Do you mean actual costs? Totals, unit? Please be specific and I'll try to find the decision for you.

Was the case about defective pricing or something else?

[Jakemx56]

Sorry, What I meant was Actual Costs and yes the case was about defective pricing.

 

Thank you!

Jake

[Guest Seeker]

One more question: Do you know what items were procured?

[here_2_help]

2 hours ago, Jakemx56 said:

Good afternoon,

Does anyone have a reference to the COFC case that determined that prior actual costs incurred on prior lot buys are required under TINA?

I know it exists but I can not find it.

I currently have a Major defense contractor refusing to submit actuals on extremely large procurement and I would like to send them the case.

 

Restating the question to check my understanding:

Does anybody know a case decided by the Court of Federal Claims, where the actual costs incurred by the contractor on prior acquisitions of the same goods were found to fall under the definition of "cost or pricing data" (or "certified cost or pricing data") for purposes of complying with the requirements of 52.215-20?

Do I have it correct?

[Retreadfed]

An observation:  court and board decisions are usually based on the application of certain principles to the facts of that case.  Therefore, the fact that certain information was considered cost or pricing data in one case does not automatically mean that it will be considered cost or pricing data in another case.  Based on what was presented in the original post, without more, it is not clear that actuals from a previous procurement would be cost or pricing data for a later procurement.

[Matthew Fleharty]

Jake,

Unfortunately I'm not surprised and I doubt you'll have much luck on your own even if you find this particular COFC decision to send to your contractor.  I was in your shoes a year ago and made all the right arguments to no avail; however, what worked beautifully was elevating the issue up through leadership (if this procurement is as large as you say they'll be more than happy to help).  Within a week I received complete and properly segregated actuals.  So don't be afraid to ask for help - I suspect if you do you'll likely get exactly what you need.  If that's unsuccessful, PM me and we can discuss further.

[Guest Vern Edwards]

16 hours ago, Jakemx56 said:

Does anyone have a reference to the COFC case that determined that prior actual costs incurred on prior lot buys are required under TINA?

The COFC has issued at least 125 decisions in which defective pricing is mentioned or raised as an issue. I'm a darned good researcher, but it could be pretty time consuming to find "the" case in question without more information. I'm not going to scan 125 COFC decisions and post case cites only to get "That's not it" in response. I think the request, as posted, is unreasonable.

I also wonder about the situation. I'm surprised that a "major defense contractor" would argue that historical cost information pertaining to an earlier buy is not cost or pricing data. I'm would be surprised if their attorneys haven't heard about the case. I suspect that there is more to the story of the company "refusing to submit actuals." In any event, as a negotiator I wouldn't argue the issue by sending the company a court decision.

[here_2_help]

If the prior buy was on an FFP basis, then the contractor may be trying to argue that its actual costs under that FFP award are protected since the contracting officer doesn't have audit rights to examine data and records regarding actual costs in such circumstances. (See 52.215-2(b).) I'm fairly sure that restriction does not affect the contractor's requirements to provide accurate, complete, and current "cost or pricing data" as invoked by other solicitation or contract clauses.

 

[Jakemx56]

The procurement is for PBL sustainment on a major military turbine engine and the issue is being elevated to leadership.

The contractor is arguing that since it is a PBL and the prior contract was FFP that they are exempt from submitting actuals and is being very short with any conversations concerning getting actuals even when we brought up that if they do not submit it is a knowing non disclosure and that we will submit for a post award audit for defective pricing if they do not disclose prior actuals.

We estimate that the prior actuals show 30-40% profit by analyzing the underrun in the number of overhauls completed vs the number of overhauls projected.

 

 

[here_2_help]

43 minutes ago, Jakemx56 said:

The contractor is arguing that since it is a PBL and the prior contract was FFP that they are exempt from submitting actuals and is being very short with any conversations concerning getting actuals even when we brought up that if they do not submit it is a knowing non disclosure and that we will submit for a post award audit for defective pricing if they do not disclose prior actuals.

I have some familiarity with this situation from the contractor's side. In our case the customer wanted actuals in order to develop its internal estimate for a future solicitation (so TINA requirements didn't play into the discussions). In each and every case, we ended up providing the actuals. At the end of the day, it was a relationship decision and the relationship trumped other considerations.

The only remaining issue was that, since the prior award was FFP, the actuals were not structured/organized as the customer wanted to see them, making the customer's analysis more difficult than it had anticipated. To be very clear, that was not intentional; it was the natural consequence of the original contract type. But the end result was a frustrated customer, which was the result we had wanted to avoid.

[Jakemx56]

24 minutes ago, here_2_help said:

I have some familiarity with this situation from the contractor's side. In our case the customer wanted actuals in order to develop its internal estimate for a future solicitation (so TINA requirements didn't play into the discussions). In each and every case, we ended up providing the actuals. At the end of the day, it was a relationship decision and the relationship trumped other considerations.

The only remaining issue was that, since the prior award was FFP, the actuals were not structured/organized as the customer wanted to see them, making the customer's analysis more difficult than it had anticipated. To be very clear, that was not intentional; it was the natural consequence of the original contract type. But the end result was a frustrated customer, which was the result we had wanted to avoid.

I completely understand that costs are tracked differently in an FFP environment and will not be organized in a typical fashion and I would be perfectly fine with that.

I applaud you for trying to keep a good relationship as it seems most major defense contractors could care less about the relationship with the government.

 

 

 

[Guest Vern Edwards]

I don't think the fact that the prior contract was FFP has anything to do with it.

The law requires submission of all facts that might affect the Government's pricing decision. If the contractor has such facts with respect to the prior FFP contract, then it must submit them or risk being accused of refusing to comply or, after award, of defective pricing.

[here_2_help]

2 hours ago, Vern Edwards said:

I don't think the fact that the prior contract was FFP has anything to do with it.

The law requires submission of all facts that might affect the Government's pricing decision. If the contractor has such facts with respect to the prior FFP contract, then it must submit them or risk being accused of refusing to comply or, after award, of defective pricing.

Vern, you are correct but not all contractors have your perspicacity.

[here_2_help]

3 hours ago, Jakemx56 said:

I applaud you for trying to keep a good relationship as it seems most major defense contractors could care less about the relationship with the government.

Funny, the contractor where I had this experience was a "Top 5" defense contractor....

[Guest Vern Edwards]

Well, contractors sometimes like to bluff to see if the other side will back down.