§3705 Submission of Other Information

Summary

When certified cost or pricing data are not required, the contracting officer can ask a bidder to give other price-related information needed to decide if the price is fair. At a minimum, the bidder must provide information about prices at which the same or similar items were sold before. If the bidder cannot get those prices, the officer can ask for prices for similar work, prices for different approaches, or other relevant facts. The contracting officer cannot decide a price is fair only because of what the Government paid in the past. If a bidder refuses or fails to make a sincere effort to give the requested data and the officer cannot otherwise tell that the price is fair, the bidder may be barred from getting the award unless a senior contracting official decides it is in the Government’s best interest. That decision must consider factors like attempts to get the data, other suppliers, urgency, available price information, the bidder’s explanation, and risk if no award is made. Such decisions must be reported quarterly to the Principal Director, Defense Pricing and Contracting. The Under Secretary for Acquisition and Sustainment must make an annual report naming bidders who repeatedly refused data over the prior three-year period, suggest should-cost reviews, note possible past-performance entries, study sole-source risks, and work to bring in new suppliers. The Under Secretary must also create rules for when a refusal counts as a denial. The Federal Acquisition Regulation must limit how much commercial sales data can be requested, limit requests to records the bidder already keeps, and protect information exempt from disclosure under section 552(b) of title 5. If a senior official still awards the contract, the agency must assess alternative suppliers using sections 865 and 882 of the National Defense Authorization Act for Fiscal Year 2025 (Public Law 118–159).