Cost or Pricing Data:
Forgotten But Not Gone

Since the passage of the Federal Acquisition Streamlining Act (“FASA”) in late 1994, the use of FAR Part 12, Commercial Item Acquisitions, has exploded. Agencies are using the authority in FAR Part 12 to acquire an enormous variety of goods and services because it is easier and quicker to complete the procurement. In acquisitions under FAR Part 12, offerors are not required to submit cost of pricing data; hence, many contractors have grown unaccustomed to the preparation and submission of cost or pricing data.

The Truth in Negotiations Act (“TINA” or the “Act”), P.L. 87-653, codified at 10 U.S.C. 2306a, was originally passed by Congress in 1962. Although it has been amended a few times over the years, it remains in full force and effect. The Act is not applicable to all acquisitions, but it is critical in many so-called “stand-alone” procurements.

TINA requires contractors to submit cost or pricing data (note the conjunction is “or” not “and”) in all proposals that exceed $550,000 (soon to be $600,000) with certain exceptions and a certificate of current cost or pricing data. An exception to the requirement for the submission of cost or pricing data exists when there is (1) adequate price competition; (2) prices set by law or regulation; or

(3) prices of commercial items sold to the public. Cost or pricing data must be complete, accurate, and current at the time of price agreement.

TINA was discussed in the case of VIACOM, Inc. v. General Services Administration (“GSBCA” or the “Board”), GSBCA 15871, decided on September 21, 2005. This case was in existence for over 16 years and demonstrates that the Government may be slow, but they are inexorable, and they are not always correct or right in their charges.

The case involved a GSA Schedule proposal and submitted by the predecessor-in-interest, Westinghouse Furniture Systems (“WFS”) to the GSA on May 21, 1984. Thereafter, the GSA awarded a Schedule to WFS on July 21, 1985.

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