1. When I looked at the IDIQ contract, it contained one or more of the FAR clauses on TINA (i.e. FAR 52.215-10, FAR 52.215-11, FAR 52.215-12, FAR 52.215-13). But the contractor determines the TINA applicability at the TO level. That is, when the TO was issued, if the contractor was not required to submit a Certificate of Cost or Pricing Data (CCPD), the TO is not considered TINA-certified even if the IDIT contract contains the TINA clauses. Is this correct?
2. I see cases where the contractor indicatd that the TO is not TINA-certified (menaing they were not required to submit a CCPD for the TO issued), but still identifies the TINA clauses as being applicable to the TO. Does this make sense? Wouldn't TINA clauses kick in "because" they submitted a CCPD (to protect the interest of the government)?
The contractor should have been required to submit a certificate of current cost or pricing data for the basic contract rather leave determination of applicability at the task order level. FAR 1.108 states:
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(c) Dollar thresholds. Unless otherwise specified, a specific dollar threshold for the purpose of applicability is the final anticipated dollar value of the action, including the dollar value of all options. If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes the final price to be based on future events, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options.
IDIQ contracts require the Government to specify the maximum quantity of supplies or services the Government will acquire under the contract (FAR 16.504(a)(4)(ii)), so the associated maximum price of the contract governs the requirement for certification. That being said, additional TINA clauses may still "kick in"—even if the original certificate of current cost or price data had been properly submitted—if costly modifications are issued or additional subcontracts awarded that were not originally anticipated when the basic contract was awarded.