15.403-3 Requiring data other than certified cost or pricing data
Source: FAR 15.403-3 on acquisition.gov
When certified cost or pricing data is not required, contracting officers must obtain sufficient alternative data to determine fair and reasonable pricing, with strict limitations on the scope and use of commercial data.
Overview
FAR 15.403-3 outlines the requirements for obtaining data other than certified cost or pricing data when certified data is not required. The regulation ensures that contracting officers have sufficient information to determine fair and reasonable pricing in federal acquisitions, particularly when adequate price competition is lacking or when acquiring commercial products or services.
Key Rules
- Obtaining Data from Available Sources
- Contracting officers must first seek data from government or secondary sources before requesting data from offerors.
- Requiring Data from Offerors
- If adequate data is unavailable, officers must require submission of data other than certified cost or pricing data from offerors, including historical sales data and cost realism support.
- Use of Offeror’s Format
- Data should be submitted in the contractor’s standard format unless otherwise specified.
- Currency of Data
- Officers must ensure data is current and only request updates that affect proposal adequacy.
- Award Ineligibility for Non-Compliance
- Offerors who fail to provide required data may be ineligible for award unless an exception is justified by the HCA.
- Adequate Price Competition
- When adequate price competition exists, additional data is generally not required, but may be requested in unusual circumstances.
- Commercial Products and Services
- Price analysis is mandatory for commercial items; if price reasonableness cannot be determined, additional data must be requested, with limitations on the scope and disclosure of commercial data.
Responsibilities
- Contracting Officers: Must determine when and what data is needed, request it appropriately, ensure data is current, and protect sensitive commercial data.
- Contractors: Must provide requested data in their usual format and comply with data submission requirements to remain eligible for award.
- Agencies: Must oversee compliance, ensure data protection, and justify exceptions to award ineligibility when necessary.
Practical Implications
This section ensures transparency and fairness in pricing for government contracts, especially when certified cost or pricing data is not required. Contractors must be prepared to provide relevant sales and pricing data, and contracting officers must balance data needs with minimizing unnecessary burdens. Common pitfalls include failing to provide adequate data or requesting excessive information beyond what is necessary.
(a)
(1) In those acquisitions that do not require certified cost or pricing data, the contracting officer shall—
(i) Obtain whatever data are available from Government or other secondary sources and use that data in determining a fair and reasonable price;
(ii) Require submission of data other than certified cost or pricing data, as defined in 2.101, from the offeror to the extent necessary to determine a fair and reasonable price (https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section3705&num=0&edition=prelim" target="_blank">10 U.S.C. 3705(a) and 41 U.S.C.3505(a)) if the contracting officer determines that adequate data from sources other than the offeror are not available. This includes requiring data from an offeror to support a cost realism analysis;
(iii) Consider whether cost data are necessary to determine a fair and reasonable price when there is not adequate price competition;
(iv) Require that the data submitted by the offeror include, at a minimum, appropriate data on the prices at which the same item or similar items have previously been sold, adequate for determining the reasonableness of the price unless an exception under 15.403-1(b)(1) or (2) applies; and
(v) Consider the guidance in section 3.3, chapter 3, volume I, of the Contract Pricing Reference Guide cited at 15.404-1(a)(7) to determine the data an offeror shall be required to submit.
(2) The contractor’s format for submitting the data should be used (see 15.403-5(b)(2)).
(3) The contracting officer shall ensure that data used to support price negotiations are sufficiently current to permit negotiation of a fair and reasonable price. Requests for updated offeror data should be limited to data that affect the adequacy of the proposal for negotiations, such as changes in price lists.
(4) As specified in section 808 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Pub. L. 105-261), an offeror who does not comply with a requirement to submit data for a contract or subcontract in accordance with paragraph (a)(1) of this subsection is ineligible for award unless the HCA determines that it is in the best interest of the Government to make the award to that offeror, based on consideration of the following:
(i) The effort made to obtain the data.
(ii) The need for the item or service.
(iii) Increased cost or significant harm to the Government if award is not made.
(b) Adequate price competition. When adequate price competition exists (see 15.403-1(c)(1)), generally no additional data are necessary to determine the reasonableness of price. However, if there are unusual circumstances where it is concluded that additional data are necessary to determine the reasonableness of price, the contracting officer shall, to the maximum extent practicable, obtain the additional data from sources other than the offeror. In addition, the contracting officer should request data to determine the cost realism of competing offers or to evaluate competing approaches.
(c) Commercial products and commercial services.
(1) At a minimum, the contracting officer must use price analysis to determine whether the price is fair and reasonable whenever the contracting officer acquires a commercial product or commercial service (see 15.404-1(b)). The fact that a price is included in a catalog does not, in and of itself, make it fair and reasonable. If the contracting officer cannot determine whether an offered price is fair and reasonable, even after obtaining additional data from sources other than the offeror, then the contracting officer shall require the offeror to submit data other than certified cost or pricing data to support further analysis (see 15.404-1). This data may include history of sales to non-governmental and governmental entities, cost data, or any other information the contracting officer requires to determine the price is fair and reasonable. Unless an exception under 15.403-1(b)(1) or (2) applies, the contracting officer shall require that the data submitted by the offeror include, at a minimum, appropriate data on the prices at which the same item or similar items have previously been sold, adequate for determining the reasonableness of the price.
(2) Limitations relating to commercial products or commercial services https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section3705&num=0&edition=prelim" target="_blank">10 U.S.C. 3705(b) and http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3505(b)&num=0&edition=prelim" target="_blank">41 U.S.C. 3505(b)).
(i) The contracting officer shall limit requests for sales data relating to commercial products or commercial services to data for the same or similar items during a relevant time period.
(ii) The contracting officer shall, to the maximum extent practicable, limit the scope of the request for data relating to commercial products or commercial services to include only data that are in the form regularly maintained by the offeror as part of its commercial operations.
(iii) The Government shall not disclose outside the Government data obtained relating to commercial products or commercial services that is exempt from disclosure under 24.202(a) or the Freedom of Information Act (https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552b&num=0&edition=prelim" target="_blank">5 U.S.C. 552(b)).
(3) For services that are not offered and sold competitively in substantial quantities in the commercial marketplace, but are of a type offered and sold competitively in substantial quantities in the commercial marketplace, see 15.403-1(c)(3)(ii).