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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle A—Acquisition Policy and Management.

P. L. 116-92

House Conference Report 116-333

Section 2306a(d) of title 10, United States Code, is amended--

(1) in paragraph (1), by adding at the end the following: "Contracting officers shall not determine the price of a contract or subcontract to be fair and reasonable based solely on historical prices paid by the Government.'';

(2) by redesignating paragraph (2) as paragraph (3); and

(3) by inserting after paragraph (1) the following new
paragraph:

"(2) Ineligibility for award.--

(A) In the event the contracting officer is unable to determine proposed prices are fair and reasonable by any other means, an offeror who fails to make a good faith effort to comply with a reasonable request to submit data in accordance with paragraph (1) is ineligible for award unless the head of the contracting activity, or the designee of the head of contracting activity, determines that it is in the best interest of the Government to make the award to that offeror, based on consideration of pertinent factors, including the following:

``(i) The effort to obtain the data.

``(ii) Availability of other sources of supply of the item or service.

``(iii) The urgency or criticality of the Government's need for the item or service.

``(iv) Reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract based on information available to the contracting officer.

``(v) Rationale or justification made by the offeror for not providing the requested data.

``(vi) Risk to the Government if award is not made.

``(B)(i) Any new determination made by the head of the contracting activity under subparagraph (A) shall be reported to the Principal Director, Defense Pricing and Contracting on a quarterly basis.

``(ii) The Under Secretary of Defense for Acquisition and Sustainment, or a designee, shall produce an annual report identifying offerors that have denied multiple requests for submission of uncertified cost or pricing data over the preceding three-year period, but nevertheless received an award. The report shall identify products or services offered by such offerors that should undergo should-cost analysis. The Secretary of Defense may include a notation on such offerors in the system used by the Federal Government to monitor or record contractor past performance. The Under Secretary shall assess the extent to which these offerors are sole source providers within the defense industrial base and shall develop strategies to incentivize new entrants into the industrial base to increase the availability of other sources of supply for the product or service.''.

The House amendment contained a provision (sec. 803) that would modify section 2306a of title 10, United States Code, to revise the conditions under which the Department of Defense requires offerors to provide certain data. Specifically, in a case where the head of contracting activity determines the Department is the only buyer of certain commercial items, it introduces a new requirement for those offerors to provide cost or pricing data. Further, in a case where the Department of Defense is determining whether a sole-source offeror’s price is reasonable, the provision would direct the Secretary of Defense to require that offeror to provide other than certified cost or pricing data. The provision would further direct the Defense Contract Management Agency to propose which commercial products require should-cost analysis before award.

The House amendment contained a another provision (sec. 804) that would modify section 2306a(c) of title 10, United States Code, and section 3504 of title 41, United States Code, to give contracting officers, instead of the head of the procuring activity, the discretion to request certified cost or pricing data in cases where, although not required, the contracting officer deems it necessary to determine price reasonableness. The provision would further add commercial items to the list of products where contracting officers may request such data.

The Senate bill contained no similar provision.

The Senate recedes with an amendment that would combine the two provisions, to instead modify section 2306a(d) of title 10, United States Code, to specify that offerors who do not make a good faith effort to comply with a contracting officer’s reasonable requests for data other than certified cost or pricing data are ineligible for award. The amendment would also direct contracting officers, when determining whether an offeror’s price is fair and reasonable, to not base that assessment solely on the historical prices paid by the government. The amendment would further add a requirement for the Under Secretary of Defense for Acquisition and Sustainment to identify and report those offerors who denied multiple such requests and nonetheless received awards, as part of assessing whether to conduct should-cost analysis on such products in the future.

House Report 116-120

Section 803--Modifications to Cost or Pricing Data for Certain Procurements

This section would modify section 2306a(b)(4) of title 10, United States Code, and allow the head of contracting activity to obtain cost or pricing data for commercial items that may be procured under sole source authority based on market research.