Ch 3 - Price-Related Information From Offerors

• 3.0 - Chapter Introduction
• 3.1 - Certified Cost or Pricing Data
• 3.2 - Certified Cost or Pricing Data Exceptions
  • 3.2.1 - Adequate Price Competition Exception
  • 3.2.2 - Price Set by Law or Regulation Exception
  • 3.2.3 - Commercial Item Exception
  • 3.2.4 - Waiver Exception
• 3.3 - Data Other Than Certified Cost or Pricing Data

3.0 - Chapter Introduction

This chapter covers the steps you will take to determine what data will be needed from offerors to support the pricing decision.

The policies described in this chapter for obtaining and evaluating certified cost or pricing data or data other than certified cost or pricing data from offerors apply only to acquisition by negotiation including those below the Simplified Acquisition Threshold acquired using FAR 13 and those including commercial items acquired using FAR 12.

NEVER require offerors to submit certified cost or pricing data or data other than certified cost or pricing data with sealed bids. For sealed bidding, you may only require bidders to submit original worksheets and other data used in bid preparation when there is an alleged mistake in bid (FAR 14.407-3(g)(2)).

Flow Chart of the Decision Process. This flow chart outlines the decision process that you should follow to determine what (if any) information to require from offerors/contractors.

Cost or Pricing Data (FAR 2.101). Cost or pricing data:

• Are all facts that, as of the date of price agreement or, if applicable, another 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.
• Are factual, not judgmental, and are therefore verifiable.
• Include the data that form the basis for the prospective offeror's judgment about future cost projections. The data do not indicate the accuracy of the prospective contractor's judgment.
• 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.
• Include such factors as:
  • Vendor quotations;
  • Nonrecurring costs;
  • Information on changes in production methods and in production or purchasing volume;
  • Data supporting projections of business prospects and objectives and related operations costs;
  • Unit-cost trends such as those associated with labor efficiency;
  • Make-or-buy decisions;
  • Estimated resources to attain business goals; and
  • Information on management decisions that could have a significant bearing on costs.

Certified Cost or Pricing Data (FAR 2.101). Certified cost or pricing data:

• Are cost and 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 FAR 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.

Data Other Than Certified Cost or Pricing Data (FAR 2.101). Data other than certified cost or pricing data:

• Are pricing data, cost data and judgmental information necessary for the contracting officer to determine a fair and reasonable price or to determine cost realism that are not required to be certified as accurate, complete, and current, in accordance with FAR 15.406-2.
• May include sales data and any data reasonably required to explain the offeror’s estimating process including but not limited to –
  • 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 proposed price.
• Includes "cost or pricing data" but for which certification is not required.

Order of Preference for Information (FAR 15.402). The contracting officer must obtain the minimum amount of information required to allow an adequate determination that a contract price is fair and reasonable. To the extent that certified cost or pricing data are not required by FAR 15.403-4, the contracting officer must generally use the following order of preference in determining the type of information required:

(1) No additional data from the offeror, if the price is based on adequate price competition, except as provided by FAR 15.403-3(b).

• You may require offerors to submit data other than certified cost or pricing data to determine the cost realism of competing offers or to evaluate competitive approaches.

(2) Data other than certified cost or pricing data:

(i) Data related to prices (e.g., established catalog or market prices or sales to governmental and non-governmental entities), relying:

(a) First on data available within the Government. For example, data in existing contract files for previous buys, data from market research, etc. Second, on data obtained from sources other than the offeror. For example, data from catalogs, vendor price lists, etc. If necessary, on data obtained from the offeror. When obtaining data from the offeror is necessary, unless an exception under FAR 15.403-1(b)(1) or (2) applies, such data submitted by the offeror shall include, at a minimum, appropriate data on the prices at which the same or similar items have been sold previously, adequate for evaluating the reasonableness of the price. For example, Government and non-Government sales data for the same item in similar quantities, company catalogs, discounts, etc.

(ii) Data related to cost (hours by labor category and direct and indirect rates, or possibly full cost data where absolutely necessary). Because the pricing action is exempt from TINA, the contractor would not be required to sign a certificate of current cost or pricing data.

(3) Cost or Pricing Data. The contracting officer should use every means available to ascertain whether a fair and reasonable price can be determined before requesting cost or pricing data. Contracting officers must not require unnecessarily the submission of cost or pricing data, because it leads to increased proposal preparation costs, generally extends acquisition lead time, and consumes additional contractor and Government resources.

Remember, this paragraph applies to actions when certified cost or pricing data are not required by 15.403-4.

Rationale: When certified cost or pricing data are not otherwise required by FAR 15.403-4, FAR 15.403-4(a)(2) provides that, unless prohibited because an exception at FAR 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 FAR 15.403-4(a)(1), provided the action exceeds the simplified acquisition threshold, because without certified cost or pricing data, there is no other means to determine price reasonableness. These should be rare circumstances.

EXAMPLE: A contractor has proposed to provide aircraft repair for $680,000, just under the TINA threshold. Based on technical input and market research the contracting officer does not think the subject repairs should be so costly, and the independent government cost estimate estimates the work at approximately $380,000. The contracting officer has no way to evaluate the reasonableness of the price without certified cost or pricing data. Because of the sensitivity of the program for which the solicitation was issued, the very tight budget constraints, and the fact that this is a sole source provider of this type of repair that has overcharged the government in the past, the contracting officer obtains the Head of the Contracting Activity's approval to require "Certified Cost or Pricing Data," obtains field pricing assistance in evaluating the certified cost or pricing data and requires a certificate of current cost or pricing data.

Solicitation Price-Related Information Requirements (FAR 15.403-5 and FAR 15.408(l) and (m)). You may require offerors to submit pricing-related data at any time prior to the close of negotiations. However, identifying all requirements in the solicitation will permit offerors to gather and document the required data during proposal preparation. If you require data after proposals are received, the contracting process must be delayed while the offeror gathers and documents the data required.

The solicitation must specify:

• Whether certified cost or pricing data are required;
• That, when certified cost or pricing data are required, the offeror may submit a request for exception from the requirement to submit certified cost or pricing data;
• Whether data other than certified cost or pricing data is required;
• Necessary preaward or post award access to the offeror's records;
• The format required for submission of certified cost or pricing data or data other than certified cost or pricing data (the FAR Table 15-2 format, a specified alternate format, or a format selected by the offeror).

Price-Related Data Requirements After Receipt of Offers (FAR 15.403-4(c)). Decisions on pricing-related information requirements continue after proposals are received:

• If offerors were required to submit certified cost or pricing data and:
  • An offeror submitted the data, but the contracting officer later finds that an exception applies, never require the offeror to certify that the data are accurate, complete, and current. Instead treat the data as data other than certified cost or pricing data.
  • No exception applies, but an offeror initially refuses to provide the required data, or the data provided are so deficient as to preclude adequate analysis and evaluation, the contracting officer must again attempt to obtain the data. If the offeror persists in refusing to provide the needed data, the contracting officer must withhold contract award or price adjustment and refer the contract action to higher authority, with details of the attempts made to resolve the matter and a statement on the practicality of obtaining the supplies or services from another source.
• If offerors are not required to submit certified cost or pricing data and the contracting officer later determines that the data are necessary, the contracting officer should require the offeror to submit the required data prior to the close of contract negotiations.
• If the Government does not require submission of certified cost or pricing data or data other than certified cost or pricing data, but the contracting officer later determines that data other than certified cost or pricing data are needed from the offeror to determine price reasonableness, the contracting officer should require the offeror to submit the necessary data prior to the close of contract negotiations.

3.1 - Cost or Pricing Data

Decision Process for Requiring Cost or Pricing Data ( FAR 15.402(a)(3), FAR 15.403-1(b), and FAR 15.403-4(a)). The Truth in Negotiations Act (TINA) requires that you obtain certified cost or pricing data in specific contracting situations, described in this section. However, the Act also provides exceptions to that requirement, also described in the next section. Never require an offeror to submit certified cost or pricing data unless the contracting officer concludes that none of the exceptions to the certified cost or pricing data requirement are appropriate. This refers to requesting "certified cost or pricing data," meaning that which is certified to be accurate, current and complete. The contracting officer can always obtain "data other than certified cost or pricing data," as defined at FAR 2.101, to the extent the data is needed to determine fair and reasonable prices. Although the same type of pricing or cost data may be obtained, when required, the difference is that under "data other than certified cost or pricing data" certification of the data is not required.

Because you must consider the exceptions before requiring certified cost or pricing data, the decision to require certified cost or pricing data is the last determination in the flow chart presented at the beginning of this chapter. However, in the chapter, we present this section first to identify the general requirement from which contracting officers should consider possible exceptions.

Situations Requiring Certified Cost or Pricing Data (FAR 15.403-4(a)). When no exception is appropriate, obtain certified cost or pricing data before accomplishing any of the following actions when the price is expected to exceed the certified cost or pricing data threshold:

• The award of any negotiated contract (except for undefinitized actions such as letter contracts).
• The award of a subcontract at any tier, if the contractor and each higher-tier subcontractor were required to furnish certified cost or pricing data.
• The modification of any sealed bid or negotiated contract (whether or not cost or pricing data were initially required). This requirement also applies to subcontracts if the contractor and each higher-tier subcontract have been required to furnish cost or pricing data (but see waivers at 15.403-1 (c)(4) ).
  • When deciding whether certified cost or pricing data are required, sum the value of related increases and decreases in contract requirements. For example, a $200,000 modification resulting from a reduction of $500,000 and an increase of $300,000 is an $800,000 price adjustment when determining the need for certified cost or pricing data.
  • Do not sum the value of unrelated and separately priced changes for which certified cost or pricing data would not otherwise be required. Such changes may be included in the same contract modification for administrative convenience.

Contract Certified Cost or Pricing Data Threshold. For a new contract, the applicable certified cost or pricing data threshold is the threshold that is in effect on the date of agreement on price, or the date of award, whichever is later. The certified cost or pricing data threshold is contained in FAR 15.403-4(a)(1). The amount is subject to review and possible adjustment every five years.

Subcontract And Modification Certified Cost or Pricing Data Threshold. For prime contract modifications, new subcontracts at any tier, and subcontract modifications, the applicable certified cost or pricing data threshold is established by the prime contract.

• For most contracts, the applicable certified cost or pricing data threshold is the current threshold on the date of agreement on price, or the date of award, whichever is later.
• Some older contracts specify a dollar threshold that does not automatically change as the current threshold changes. However, a specific dollar threshold can be updated using a bilateral contract modification.

HCA-Approved Certified Cost or Pricing Data Below the Threshold (FAR 2.101, FAR 15.403-1, and FAR 15.403-4(a)(2)). The contracting officer may require certified cost or pricing data submission at or below the certified cost or pricing data threshold, but only if all three of the following requirements are met:

• The estimated value of the contract action exceeds the simplified acquisition threshold.
  • The simplified acquisition threshold for most noncommercial acquisitions is currently $150,000.
  • For contracts awarded and performed, or purchases to be made, outside the United States in support of contingency operations, the simplified acquisition threshold is $1,000,000.
  • For contracts awarded and performed, or purchases to be made, inside the United States in support of contingency operations, the simplified acquisition threshold is $300,000.
  • See the definition for Simplified Acquisition Threshold at FAR 2.101 for the current thresholds.
• No exception to obtaining certified cost or pricing data applies. (For example, never require certified cost or pricing data when contracting for a commercial item.)
• The head of the contracting activity (without power of delegation) authorizes the certified cost or pricing data requirement.
  • The head of the contracting activity must justify the certified cost or pricing data requirement.
  • File documentation must include a written finding that certified cost or pricing data are necessary to determine whether an offered price is fair and reasonable and the facts supporting that finding.

3.2 - Cost or Pricing Data Exceptions

Section Introduction. This section will present a brief review of points to consider in determining whether an exception applies to certified cost or pricing data requirements. Topics that will be covered include:

• 3.2.1 - Adequate Price Competition Exception
• 3.2.2 - Price Set By Law Or Regulation Exception
• 3.2.3 - Commercial Item Exception
• 3.2.4 - Waiver Exception

General Guidelines on Exceptions (FAR 15.403-4(a)). Never require certified cost or pricing data when an exception to certified cost or pricing data requirements applies. In determining whether a specific exception applies, consider the conditions for granting that exception and the special issues associated with granting that exception. Keep in mind, however, that the contracting officer can obtain "data other than certified cost or pricing data," which could include full cost supporting data, to the extent that the data is required in order to determine that prices are fair and reasonable. In the case of "data other than certified cost or pricing data," certification of the data is not required.

Contract Options (FAR 15.403-2(a)). Never require certified cost or pricing data when exercising an option at the price established at contract/subcontract award or initial contract/subcontract negotiation.

Funding Adjustments (FAR 15.403-2(b)). Never require certified cost or pricing data for proposals used solely for overrun funding or interim billing price adjustments.

Actions at or Below the Certified Cost or Pricing Data Threshold. (FAR 15.403-4(a)(2)) Never require certified cost or pricing data for contract or subcontract actions priced at or below the certified cost or pricing data threshold unless the requirement is authorized by the head of the contracting activity in accordance with FAR 15.403-4(a)(2).

Never require certified cost or pricing data for contract or subcontract actions priced at or below the simplified acquisition threshold FAR 15.403-1(a).

3.2.1 Adequate Price Competition Exception

The contracting officer should keep in mind that, competition can exist and not be adequate; or can be "adequate" but not truly effective and hence not be adequate. The Government is seeking adequate & effective competition.

Conditions for New Contract or Subcontract Exception (FAR 15.403-1(b)(1) and FAR 15.403-1(c)(1)). Never require certified cost or pricing data when the contracting officer determines that the agreed-upon prices are based on adequate price competition. A price is based on adequate price competition if:

• Two or more responsible offerors, competing independently, submit priced offers that satisfy the Government's expressed requirement and both of the following conditions are met:
  • Award will be made to the offeror whose proposal represents the best value to the Government where price is a substantial factor in the source selection;
  • There is no finding that the price of the otherwise successful offeror is unreasonable. Any finding that a proposed price is unreasonable must be supported by a statement of the facts and approved at a level above the contracting officer;
• Per USD AT&L memorandum dated 24 Nov 2010 re: Improving Competition in Defense Procurements, contracting officers will no longer use the standard at FAR 15.403-1(c)(ii)or (iii) to determine that the offered price is based on adequate competition when only one offer is received.
  • If a solicitation was open for less than 30 days and only one offer was received, the contracting officer shall re-advertise the solicitation for a minimum of an additional 30 days, unless a waiver is obtained from the head of the contracting activity. Further, if the solicitation was open for at least 30 days, or has been re-advertised and still only one offer is received, the contracting officer shall conduct negotiations with the offeror unless this requirement is specifically waived by the head of the contracting activity. The basis for these negotiations shall be either certified cost or pricing data or data other than certified cost or pricing data, as appropriate. In no event, should the negotiated price exceed the price originally offered.

Certified Cost or pricing data when modifying a contract (FAR 52.215-21(a)(ii)).

Never require certified cost or pricing data for a modification of a contract or subcontract for a commercial item if:

• The original contract or subcontract was granted an exception from certified cost or pricing data requirements because:
  • The price agreed upon was based on adequate price competition or prices set by law or regulation, or
  • The contract or subcontract was for a commercial item; and
• The modification would not change the contract or subcontract from a contract or subcontract for acquisition of a commercial item to a contract or subcontract for acquisition of an item other than a commercial item.

To have adequate price competition, price must be a substantial factor in the contract award decision, but neither the FAR nor the law define what weight price must have to be considered a substantial factor.

• In general, the weight assigned must be large enough to cause offerors to seriously consider price in preparing their offers.
• The Comptroller General (CGEN) has found adequate price competition in cases where price was assigned a weight of only 20 percent in the award decision. However, price is usually assigned a weight that is higher than 20 percent.

Recent Competition. The FAR does not provide any guidelines on how recent competition must be to be considered as a basis for excepting an offeror from submitting certified cost or pricing data. The term "recent" must be judged subjectively.

• The price must be recent enough to use as a basis for determining price reasonableness.
• Normally, competition is considered recent if it took place within the last 12 months.
• However, be careful.
  • Before you except an offeror from submission of certified cost or pricing data based on recent competition, examine the market to see how market conditions have changed since the last competitive acquisition.
  • If the product market is extremely volatile, a price that is only a few months old may not be recent enough to use as a basis for determining price reasonableness.

3.2.2 Price Set By Law or Regulation Exception

Conditions for Exception (FAR 15.403-1(b)(2), FAR 15.403-1(c)(2), and FAR 52.215-21(a)(1)). Never require certified cost or pricing data for a new contract, new subcontract, or a contract or subcontract modification when the contracting officer determines that the agreed-upon prices are based on prices set by law or regulation. Pronouncements in the form of periodic rulings, reviews, or similar actions of a governmental body, or embodied in the laws, are sufficient to set a price.

Applicable Items. To apply this exception, the price of the item that you are acquiring must be set by law or regulation. You are not permitted to use this exception for items similar to those priced by law or regulation.

Request for Exception (FAR 52.215-20(a)(1) and FAR 52.215-21(a)(1)). When a solicitation or contract clause requires submission of certified cost or pricing data, an offeror/contractor may request an exception using prices set by law or regulation. The request for exception must (as a minimum):

• Identify the law or regulation that establishes the price offered.
• Include a copy of any periodic ruling, review, or similar action of a governmental body used to establish the offered price, unless it was previously submitted to the contracting office.

3.2.3 Commercial Item Exception

Conditions for Exception (FAR 15.403-1(b)(3), FAR 15.403-1(b)(5), and FAR 15.403-1(c)(3)). Never require certified cost or pricing data for a new contract, new subcontract, or contract or subcontract modification when you are acquiring a commercial item.

• Any acquisition for an item that meets the FAR definition of a commercial item is excepted from certified cost or pricing data requirements.
• Any contract modification that does not change the item from a commercial item to a noncommercial item is also excepted from certified cost or pricing data requirements.

Commercial Item Identification The definition of a commercial item is found at (FAR 2.101).

The concept behind the commercial items pricing exception is that the item, its value, and its price are results of product & pricing supply and demand, disciplined by the commercial marketplace where buyers and sellers have other commercial alternatives which compete with the commercial item(s) being procured.

In some situations when a commercial item is to be modified as a part of the contract, and the modification fits the minor modification portion of the commercial item definition, the cost/price related to that modification of the commercial item is not excepted from the TINA requirement to obtain certified cost or pricing data. The cost/price related to the basic commercial item is excepted. These situations are addressed in FAR 15.403-1(c)(3)(ii). For acquisitions funded by DoD, NASA, or Coast Guard, such modifications of a commercial item are exempt from the requirement for submission of certified cost or pricing data provided the total price of all such modifications under a particular contract action does not exceed the greater of the threshold for obtaining certified cost and pricing data in 15.403-4 or 5 percent of the total price of the contract at the time of contract award.

Request for Exception (FAR 52.215-20(a)(1) and FAR 52.215-21(a)(1)). When a solicitation or contract clause requires submission of certified cost or pricing data, a firm may request a commercial item exception. At a minimum, the request for exception must include information on prices at which the same or similar items have previously been sold in the commercial market that is adequate for evaluating the reasonableness of the current acquisition price.

• For catalog items, the firm should include:
  • A copy of or identification of the catalog and its date, or the appropriate pages for the offered items, or a statement that the catalog is on file in the buying office to which the proposal is being submitted;
  • A copy or description of current discount policies and price lists (published or unpublished) (e.g., wholesale, original equipment manufacturer, or reseller); or
  • An explanation of the basis of each offered price and its relationship to the established catalog price, including how the proposed price relates to the price of recent sales in quantities similar to the proposed quantities.
• For market-priced items, the firm should include:
  • The source and date or period of the market quotation or other basis for market price, the base amount, and applicable discounts; and
  • A description of the nature of the market.
• For items included on an active Federal Supply Service Multiple-Award Schedule contract, the firm should include proof that an exception has been granted for the schedule item.

3.2.4 Waiver Exception

Conditions for Exception (FAR 15.403-1(b)(4) and FAR 15.403-1(c)(4)). Never require certified cost or pricing data for a new contract, new subcontract, or contract or subcontract modification when the head of the contracting activity waives the requirement for certified cost or pricing data.

• The authorization for the waiver and the supporting rationale must be in writing.
• The head of the contracting activity (without power of delegation) may consider waiving the certified cost or pricing data requirement in exceptional cases (see FAR 15.403-1(c)(4)). DoD contracting activities must follow more stringent criteria for granting of exceptional case TINA waivers. Section 817 of Public Law 107-314 (NDAA 2003) established the criteria that must be met in order for DoD to grant a TINA waiver under the exceptional circumstances exception (See DFARS 215.403-1(c)(4)). The criteria are:
  0. The property or services cannot reasonably be obtained under the contract, subcontract, or modification, without the granting of the waiver;
  0. The price can be determined to be fair and reasonable without the submission of certified cost or pricing data; and
  0. There are demonstrated benefits to granting the waiver.

It is DoD policy to apply this waiver authority only to situations where the Government could not otherwise obtain the needed product or service without the waiver. An example would be when a commercial business segment offers a non-commercial item that is essential to DoD's mission but is not available from other sources, and the company refuses to accept the TINA requirements. In such cases, a TINA waiver may be granted, provided the price can be determined fair and reasonable without submission of the certified cost and pricing data. However, in such cases, the procuring activity shall also develop a strategy for procuring the item in the future (e.g., develop a second source, develop an alternative product that satisfies the department's needs, have the Government produce the product, continue to use this source with a TINA waiver because the business case does not support any other alternative).

It is important for DoD to apply the TINA waiver authority in a judicious manner. For example, TINA waivers should not be granted to contractor business segments that normally perform Government contracts subject to TINA. In addition, a waiver should not be granted simply because the waiver could allow the parties to execute the contract at an earlier date than if TINA was applied.

Special Issue for Waivers (FAR 15.403-1(c)(4)). For all other exceptions to certified cost or pricing data requirements, granting the exception to a prime contractor or higher-tier subcontractor means that lower-tier subcontractors are also excepted from submitting certified cost or pricing data.

Under the waiver of certified cost or pricing data requirements, the contractor or higher-tier subcontractor to whom the waiver applies must be considered as having been required to submit certified cost or pricing data. Consequently, lower-tier subcontract actions that are expected to exceed the certified cost or pricing data threshold require the submission of certified cost or pricing data unless:

• An exception otherwise applies to the lower-tier subcontract; or
• The prime contract waiver specifically includes the subcontract and the rationale supporting the waiver for that subcontract.

3.3 Data Other Than Certified Cost or Pricing Data

Policy on Requiring Data Other Than Certified Cost or Pricing Data (FAR 15.403-3). The contracting officer is responsible for obtaining data other than certified cost or pricing data to the extent necessary to determine price reasonableness or cost realism. See the definition of "data other than certified cost or pricing data" at FAR 2.101, and in section 3.0 above.

• When certified cost or pricing data are required, contractors are required to use the format in FAR 15.408, Table 15-2.
• When the pricing action is not subject to TINA and the contracting officer has no other means for determining price reasonableness, data other than certified cost or pricing data may be required. The contracting officer must determine the amount and format of additional data that will be needed in order to determine price reasonableness. To the maximum extent practicable, limit the requirement to data in a form regularly maintained by the offeror in commercial operations.
• Read the referenced definition of data other than certified cost or pricing data carefully. Although we want to limit requests for data to only that which is necessary to determine fair and reasonable prices, there is virtually no limit on the type of data the contracting officer can require. The type of data that may be required include: prior sales; catalog pricing and discounts; limited cost data such as: hours by labor category and direct and indirect rates, or possibly full cost data where absolutely necessary. Because the pricing action is exempt from TINA, the contractor would not be required to sign a certificate of current cost or pricing data.
• The key differences between "certified cost or pricing data" and "data other than certified cost or pricing data" is that "certified cost or pricing data" requires the contractor to also submit a Certificate of Current Cost or Pricing Data and requires the use of Table 15.2 (FAR 15.408). On the other hand, "data other than certified cost or pricing data," although it could be made up of the same data, does not require a Certificate of Current Cost or Pricing Data and does not require submission of data in the format at Table 15.2. Also, while under TINA requirements the offeror/contractor is required to disclose all facts that a prudent buyer or seller would expect to have a significant impact on price, under "data other than certified cost or pricing data" the contracting officer may only require limited cost information from the offeror/contractor.
• Generally, you should not require firms to submit data other than certified cost or pricing data when there is adequate price competition.
  • If you need additional information to determine price reasonableness, to the maximum extent practicable, the contracting officer must obtain the necessary information from sources other than the offeror.
  • However, the contracting officer may require data other than certified cost or pricing data to determine the cost realism of competing offers or to evaluate competing approaches.
• Unless price reasonableness will be determined by adequate price competition or a price set by law or regulation, obtain (as a minimum) appropriate information on prices at which the same item or similar items have previously been sold that is adequate for determining price reasonableness.
• For commercial items:
  • Limit requests for sales information to data for the same or similar items during a relevant time period. When using sales information for similar items, the contracting officer may also request cost information to help determine the impact, on price, of the differences between the item being procured and the similar item being used for comparison.
  • To the maximum extent practicable, limit the requirement to information in a form regularly maintained by the offeror in commercial operations.
• As specified in FAR 15.403-3(a)(4) (Section 808 of Public Law 105-261), an offeror who does not comply with a requirement to submit data that the contracting officer has deemed necessary to determine price reasonableness or cost realism is ineligible for award unless the Head of the Contracting Activity determines that it is in the best interest of the Government to make the award to that offeror, based on consideration of the following:
  
  • The effort made to obtain the data.
  • The need for the item or service.
  • Increased cost or significant harm to the Government if award is not made.
• Contractor refusals to submit requested information, and all actions taken by the contracting officer and at levels above the contracting officer to address those refusals, must be fully documented.

Price Data Other Than Certified Cost or Pricing Data. The contracting officer may require the offeror/contractor to provide price data under the requirements of "data other than certified cost or pricing data." Price data will be particularly important for commercial items purchased noncompetitively.

Cost Data Other Than Certified Cost or Pricing Data. You may require an offeror/contractor to provide cost data under the requirements of "data other than certified cost or pricing data" to support your analysis of price reasonableness or cost realism. The table below examines situations in which additional cost data under "data other than certified cost or pricing data" might be needed. Examples of the type of questions that cost data could help answer are also provided. Government technical, field pricing, and audit assistance may be required to analyze the cost information and answer related questions.

Information Requirement (FAR 15.403-3(a), FAR 15.408(l), FAR 15.408(m), FAR 52.215-20, and FAR 52.215-21).

The solicitation/contract must specify the data and the format required:

• Tailor the requirement to the data essential for your analysis (e.g., do not require cost data if price data is adequate).
• Permit the firm to select the format for submitting the data unless the contracting officer determines that use of a specific format is essential.
• Ensure that the data used to support price negotiations is sufficiently current to permit negotiation of a fair and reasonable price.
• Limit requests for updated offeror/contractor data to data that affects the adequacy of the proposal for negotiations (e.g., changes in price lists).
• Never require a certificate of current cost or pricing data for any data other than certified cost or pricing data.