PGI 215.403-70: Contracting officer responsibilities.

(a) Analysis of historical prices paid by the Government.

(i) Consider prices paid by the Government and commercial customers. Do not rely solely on a prior price paid by the Government without further analysis (see FAR 15.404-1).

(A) Verify and document that sufficient analysis was performed on the prior price to determine that the prior price was fair and reasonable. Sometimes, due to urgent situations, supplies or services are purchased even though an adequate price or cost analysis could not be performed. The problem is exacerbated when other contracting officers assume these prices were adequately analyzed and determined to be fair and reasonable.

(B) Investigate and document the following considerations:

(1) Verify that the quantities were similar for pricing purposes, making adjustments as necessary to ensure comparability with the current quantity requirement;

(2) Consider whether the historical purchases were recent enough to be relevant for the purpose of establishing price reasonableness of the current acquisition, and escalate or deflate the historical prices as appropriate to facilitate comparison to the current proposed price; and

(3) Validate that the terms and conditions associated with the historical purchases were comparable to the current terms and conditions, or adjust the historical prices in a manner that accounts for the materially differing terms and conditions.

(ii) Not verifying that a previous analysis was performed, or the consistencies in quantities, has been a recurring issue on sole source commercial products and commercial services reported by oversight organizations. Sole source commercial products and commercial services require extra attention to verify that previous prices paid on Government contracts were sufficiently analyzed and determined to be fair and reasonable.

(iii) At a minimum, review price history and discuss the basis of previous prices paid with the contracting organization that previously bought the item. Document the discussions in the contract file.

(b) Refusals to submit data.

(i) When additional data is required to determine price reasonableness and the offeror does not respond to data requests (see PGI 215.403-1(c)), use the following sequence of steps:

(A) If the offeror does not submit the requested data on time, document any missed deadlines in the contract file. If the offeror does not respond or refuses to provide the requested data, elevate the issue within the contracting activity.

(B) The contracting activity, with support from the contracting officer, may engage the offeror’s leadership for resolution.

(C) If the offeror continues to refuse to provide the data, the contracting activity will elevate the issue to the head of the contracting activity for a determination in

accordance with DFARS 215.403-70(b).

(D) Document the contract file to describe—

(1) The data requested and the need for that data;

(2) Why there is currently no other alternative but to procure the item from this particular source; and

(3) A written plan for avoiding this situation in the future (e.g., develop a second source by...; bring the procurement in house to the Government by...).

(E) Consistent with the requirements at FAR 15.104 and 42.1102 and the Contractor Performance Assessment Reporting System (CPARS), unless exempted by the head of the contracting activity (HCA), provide input into the past performance system, noting the offeror’s refusal to provide requested information.

(ii) Delegation. The HCA may delegate, no lower than one level above the contracting officer, the authority to determine whether it is in the best interest of the

Government to issue an award in accordance with DFARS 215.403-70(b). This individual

may be the individual responsible for approval of the prenegotiation objective (see DFARS 215.408-1), unless that individual is the contacting officer.

(iii) Reporting requirements.

(A) Document, collect, and provide a report in the standard digital format (see paragraph (b)(iii)(B) of this subsection) to the HCA of all denials of contracting officer requests to offerors or contractors for data other than certified cost or pricing data that are not resolved through the elevation process at (b)(i) of this section and, therefore, require a

determination by the HCA in accordance with DFARS 215.403-70(b). Place the HCA

determination in the contract file.

(B) The HCA shall consolidate and validate this information for all impacted contracts and modifications regardless of dollar value and submit the information in the standard digital format available at https://www.acq.osd.mil/dpap/dars/pgi/docs/Data_Denials_Template_9-26-23.xlsx. A completed report or note of no findings is required to fulfill the reporting requirement to the Principal Director, Defense Pricing, Contracting, and Acquisition Policy (DPCAP). Reports are due to DPCAP 30 days after the end of each quarterly reporting period. HCAs must transmit reports electronically to DPCAP at osd.pentagon.ousd-a-s.mbx.dpc-pcf@mail.mil for incorporation into the “Annual Report to Congress on Denials of Contracting Officer Uncertified Cost or Pricing Data Requests” submitted by the Under Secretary of Defense for Acquisition and Sustainment in accordance with 10 U.S.C. 3705(b)(2)(B).

(C) HCAs must provide only the data denial section of the report that is applicable to the contractor or offeror reported within than 30 calendar days after receiving sections of the report in (B) from the Under Secretary of Defense for Acquisition and Sustainment. For subcontractors and interorganizational transfers, the HCA must provide a copy directly to the prime contractor for submittal to the applicable subcontractor or transferring organization.