Wednesday, May 1, 2019

Offerors' Failure to Furnish Data Requested by the Contracting Officer

Before awarding any contract, contracting officers must make an affirmative statement that the contract price is fair and reasonable. When competition exists, price reasonableness can usually be established without requiring any additional supporting data. However, for sole source acquisitions, contracting officers must obtain the data necessary to establish price reasonableness. For contracting actions subject to TINA (Truth in Negotiations Act), the requirement to furnish certified cost or pricing data serves this purpose. However, for actions not subject to TINA, contractors may be requested to prepare and submit additional data to support their proposed prices.

Before the Government requests additional data from a prospective contractor, it must fir obtain whatever data is available from Government or other secondary sources and use that data in determining a fair and reasonable price. If that information is insufficient to determine fair and reasonable pricing, the contracting officer will require submission of data other than certified cost or pricing data from the offeror to the extent necessary to determine fair and reasonable pricing. This data might be that from which the Government can perform a cost realism analysis or information related to prior sales.

When a contractor fails to comply with a contracting officer's request for data other than certified cost or pricing data to support a fair and reasonable price determination, the contractor becomes ineligible for award. From a contractor's perspective, being declared ineligible for award is not a good thing, and frankly, this probably doesn't happen very often. What does happen however is that the Government often 'overreaches' in its request for information to include requests for data that has nothing to do with establishing fair and reasonable pricing. If this happens, it is appropriate to ask the contracting officer how he/she intends to use the information to establish fair and reasonable pricing. Perhaps the request was poorly worded or a 'cut-and-paste' job from a prior request without any though given to the propriety of the request to the current situation. Most often, concerns about whether requested data is appropriate in the circumstances for the purposes intended can be resolved quickly.

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