§3705 Submission of Other Information

Summary

If a seller does not have to give certified cost or pricing data, the contracting officer can still ask for other information to decide if the price is fair. At a minimum, the officer will usually ask for past sales prices for the same or similar items, unless the contract falls under the exception in section 3703(a)(1). If the seller cannot provide those prices, the officer may ask for prices for similar levels of work, prices for alternative solutions, and other relevant facts. The officer must not decide a price is fair only because the Government paid that price before. If a seller refuses or fails to try in good faith to provide the requested data, the seller can be barred from getting the award unless the head of the contracting activity (or their designee) decides it is in the Government’s best interest after weighing factors such as efforts to get the data, other suppliers, urgency, available pricing information, the seller’s reasons, and risk if no award is made. Any such decision must be reported quarterly to the Principal Director, Defense Pricing and Contracting. The Under Secretary of Defense for Acquisition and Sustainment must make an annual report naming sellers who denied multiple requests over the preceding three-year period but still got awards, recommend items for should-cost analysis, assess sole-source risks, and develop ways to attract new suppliers. The Under Secretary must also define what counts as a denial, including timing and whether it came from a prime or subcontractor. The Federal Acquisition Regulation must limit requests for commercial sales data, require officers to ask only for records the seller normally keeps, and protect information exempt from disclosure under section 552(b) of title 5. If the head decides to award despite refusal, they must assess alternative offerors using sections 865 and 882 of Public Law 118–159.