PGI 215.403-71: Prohibition on obtaining certified cost or pricing data.

(a)(1) Exceptions to certified cost or pricing data requirements. Even if an exception to certified cost or pricing data applies, the contracting officer is still required to determine price reasonableness.

(b) Waivers.

(1) Exceptional case TINA waiver.

(i) In determining that an exceptional case TINA waiver is appropriate, the HCA must ensure that the supplies or services could not be obtained without the waiver and that the determination is clearly documented. The intent is not to relieve entities that normally perform Government contracts subject to TINA from an obligation to certify that cost or pricing data are accurate, complete, and current. Instead, use waivers judiciously, in situations where the Government could not otherwise obtain a needed item without a waiver. A prime example would be when a particular company offers an item that is essential to DoD’s mission but is not available from other sources, and the company refuses to submit certified cost or pricing data. In such cases, a waiver may be appropriate. However, the procuring agency should, in conjunction with the waiver, develop a strategy for procuring the item in the future that will not require such a waiver (e.g., develop a second source, develop an alternative product that satisfies the department’s needs, or have DoD produce the item).

(ii) Senior procurement executive coordination. An exceptional case TINA waiver that exceeds $100 million must be coordinated with the senior procurement executive prior to granting the waiver.

(iii) Waiver for part of a proposal. The requirement for submission of certified cost or pricing data may be waived for part of an offeror’s proposed price when it is possible to clearly identify that part of the offeror’s cost proposal to which the waiver applies as separate and distinct from the balance of the proposal. In granting a partial waiver, in

addition to complying with the requirements in DFARS 215.403-71(b), the HCA must

address why it is in the Government’s best interests to grant a partial waiver, given that the offeror has no objection to certifying to the balance of its cost proposal.

(iv) Waivers for unpriced supplies or services. Because there is no price, unpriced supplies or services cannot be subject to cost or pricing data certification requirements. The Government cannot agree in advance to waive certification requirements for unpriced supplies or services, and may only consider a waiver at such time as an offeror proposes a price that would otherwise be subject to certification requirements.

(2) Annual reporting requirement. By November 30th of each year, departments and agencies must provide a report to the Office of the Principal Director, Defense Pricing, Contracting, and Acquisition Policy (Price, Cost and Finance), of all waivers granted during

the previous fiscal year under FAR 15.403-2(b)(4) and DFARS 215.403-71(b)(1) for any

contract, subcontract, or modification expected to have a value of $25 million or more. The annual report of waiver of TINA requirements shall include the following:

(i) Title: Waiver of TINA Requirements.

(ii) Contract number, including modification number, if applicable, and program

name.

(iii) Contractor name.

(iv) Contracting activity.

(v) Total dollar amount waived.

(vi) Brief description of why the item(s) could not be obtained without a waiver.

(vii) Brief description of the specific steps taken to ensure price reasonableness.

(viii) Brief description of the demonstrated benefits of granting the waiver.

(3) Waivers applicable to the Canadian Commercial Corporation. All contracts with the Canadian Commercial Corporation (CCC) are placed in accordance with the practices, policies and procedures of the Government of Canada covering procurement for defense purposes (see PGI 225.870). Contracting Officers may rely on the confirmation and endorsement of the offer from the Canadian Commercial Corporation at 225.870-3(a) as an endorsement of the cost/price as no more than would be charged to the Canadian government.

(i) When 252.215-7990 or 252.215-7991 are included in a solicitation with the Canadian Commercial Corporation, the data required by paragraph (b)(i) and (ii), in concert with the confirmation and endorsement of the offer, is intended to meet the requirements of FAR 15.408-2 for documentation of fair and reasonable pricing.

(ii) Support the Use of 252.215-7990 or 252.215-7991 in sole source acquisitions not meeting the threshold at 215.110-70(b)(1)(i)(A) or (b)(2)(i)(A) or competitive acquisitions at any dollar value with a determination and finding justifying the anticipated need for data other than certified cost or pricing data to determine a fair and reasonable price.

(iii) When the need for additional data to establish a fair and reasonable price, specific data is anticipated, request the data in the solicitation using 252.215-7990.

(iv) Examples of clause use:

(5) Waivers applicable to nontraditional defense contractors.

(i) The contracting officer may not require a nontraditional defense contractor to submit certified cost or pricing data or comply with other special cost or pricing requirements unless waived by the HCA in a written determination justifying why the waiver is in the best interest of the Government. The HCA may delegate this authority no lower than the senior contracting official for the cognizant contracting activity.

(ii) A notice of the waiver, including a discussion of efforts made to adapt the acquisition approach for the product or service so that a waiver is not required, must be submitted to the congressional defense committees no later than 60 days after the date a waiver is issued, with a copy sent to osd.pentagon.ousd-a-s.mbx.dpc-pcf@mail.mil.