Is a Certification of Current Cost or Pricing Data required if the final negotiated price is less than the TINA threshold when the proposal value exceeded TINA? Reading FAR 15.403-4(b), it states in part the following:
shall require the contractor or prospective contractor to submit the following in support of any proposal: (1) The certified cost or pricing data and data other than certified cost or pricing data required by the contracting officer to determine that the price is fair and reasonable. (2) A Certificate of Current Cost or Pricing Data, in the format specified in 15.406-2, certifying that to the best of its knowledge and belief, the cost or pricing data were accurate, complete, and current as of the date of agreement on price
This indicates that the certificate is required based on the proposal value and not the negotiated value. Is the certificate required based on the proposal value which is greater than TINA even if the negotiated value is less than TINA? Or is it not required because the negotiated value is less than TINA without regard to the proposal exceeding TINA?
I wish I could say there is a clear cut answer to this question. Below is how the law was written.
(a) Required Cost or Pricing Data and Certification.-
(1) The head of an agency shall require offerors, contractors, and subcontractors to make cost or pricing data available as follows:
(A) An offeror for a prime contract under this chapter to be entered into using procedures other than sealed-bid procedures shall be required to submit cost or pricing data before the award of a contract if-
(i) In the case of a prime contract entered into after December 5, 1990, the price of the contract to the United States is expected to exceed $500,000; and take a look at (i). It says "the price of the contract to the United States is EXPECTED to exceed." It does not say when was it expected to exceed. So is it expected to exceed when the contractor's proposal exceeds the threshold?
Or is it the amount we agree to award the contract to the contractor?
I have two possible suggestions. We are allowed to get certified cost or pricing data below the $700,000 if we follow FAR guidance and get the approval from the HCA. So you could go in that direction. The other thing you might want to do is talk with your legal office and ask for their legal opinion as to their interpretation of the actual law. If a certification of cost or pricing data goes to court the court will look at what the actual law says, not what the FAR says.