PRIA, Government Policy, Made Personal

Summary

Contracts that require a price-certifying statement must include a rule that lowers the price (including profit) if the contractor or a subcontractor who had to give the statement gave cost or pricing data that later turns out to have raised the price. Defective cost or pricing data means data that were wrong, incomplete, or out-of-date as of the price agreement date (or another date the parties agree on that is nearly the same). It is a good defense if the government did not use the bad data when setting the price. The contractor cannot avoid the price cut by saying it was the only source, had stronger bargaining power, the contracting officer should have noticed the problem, the contract only fixed total cost (not item costs), or that the required certification was not given. A contractor may offset some of the adjustment if it certifies it is entitled to the offset and proves the missing data existed before the price date and were not submitted as required. Offsets are not allowed if the certification was knowingly false or if the government shows the data would not have raised the price by that amount.

Title 41, §3506

Public Contracts, Source: USLM XML via OLRC

(a)Provision Requiring Adjustment.—

(1)In general.—

A prime contract (or change or modification to a prime contract) under which a certificate under section 3502(b) of this title is required shall contain a provision that the price of the contract to the Federal Government, including profit or fee, shall be adjusted to exclude any significant amount by which it may be determined by the head of the executive agency that the price was increased because the contractor (or any subcontractor required to make the certificate available) submitted defective cost or pricing data.

(2)What constitutes defective cost or pricing data.—

For the purposes of this chapter, defective cost or pricing data are cost or pricing data that, as of the date of agreement on the price of the contract (or another date agreed on between the parties), were inaccurate, incomplete, or noncurrent. If for purposes of the preceding sentence the parties agree on a date other than the date of agreement on the price of the contract, the date agreed on by the parties shall be as close to the date of agreement on the price of the contract as is practicable.

(b)Valid Defense.—

In determining for purposes of a contract price adjustment under a contract provision required by subsection (a) whether, and to what extent, a contract price was increased because the contractor (or a subcontractor) submitted defective cost or pricing data, it is a defense that the Federal Government did not rely on the defective data submitted by the contractor or subcontractor.

(c)Invalid Defenses.—

It is not a defense to an adjustment of the price of a contract under a contract provision required by subsection (a) that—

(1)the price of the contract would not have been modified even if accurate, complete, and current cost or pricing data had been submitted by the contractor or subcontractor because the contractor or subcontractor—

(A)was the sole source of the property or services procured; or

(B)otherwise was in a superior bargaining position with respect to the property or services procured;

(2)the contracting officer should have known that the cost or pricing data in issue were defective even though the contractor or subcontractor took no affirmative action to bring the character of the data to the attention of the contracting officer;

(3)the contract was based on an agreement between the contractor and the Federal Government about the total cost of the contract and there was no agreement about the cost of each item procured under the contract; or

(4)the prime contractor or subcontractor did not submit a certification of cost or pricing data relating to the contract as required by section 3502(b) of this title.

(d)Offsets.—

(1)When allowed.—

A contractor shall be allowed to offset an amount against the amount of a contract price adjustment under a contract provision required by subsection (a) if—

(A)the contractor certifies to the contracting officer (or to a designated representative of the contracting officer) that, to the best of the contractor’s knowledge and belief, the contractor is entitled to the offset; and

(B)the contractor proves that the cost or pricing data were available before the date of agreement on the price of the contract (or price of the modification), or, if applicable, consistent with subsection (a)(2), another date agreed on by the parties, and that the data were not submitted as specified in section 3502(c) of this title before that date.

(2)When not allowed.—

A contractor shall not be allowed to offset an amount otherwise authorized to be offset under paragraph (1) if—

(A)the certification under section 3502(b) of this title with respect to the cost or pricing data involved was known to be false when signed; or

(B)the Federal Government proves that, had the cost or pricing data referred to in paragraph (1)(B) been submitted to the Federal Government before date of agreement on the price of the contract (or price of the modification), or, if applicable, under subsection (a)(2), another date agreed on by the parties, the submission of the cost or pricing data would not have resulted in an increase in that price in the amount to be offset.

Historical and Revision Notes

Revised SectionSource (U.S. Code)Source (Statutes at Large) 350641:254b(e).June 30, 1949, ch. 288, title III, § 304A(e), as added Pub. L. 103–355, title I, § 1251(a)(2), Oct. 13, 1994, 108 Stat. 3282.

§3506 Price Reductions for Defective Cost or Pricing Data

Summary

Title 41, §3506

Notes & Related Subsidiaries

Historical and Revision Notes

Citations & Metadata