Do you see any problem with this approach and is there a FAR clause reference we can use to support our position for waiving C&P data?
Per FAR 15.403-4(a)(1)(iii), PCO believes that certified cost or pricing data is required since the value of this mod is estimated to be over 700K. However the period of the performance is only 8 month and it is already March. Also It will take time for contractor to put the cost or pricing data and it will additional time for GOV to review the data.
Therefore PCO wants to go around this requirement and is looking for a FAR clause that can support his position.
There are a number of issues raised by this question, so let’s start with the requirement for certified cost or pricing data. FAR 15.403-1(b) lists the only exceptions to the requirement for certified cost or pricing data. Based on the information provided, it looks like the only exception that could possibly be pursued would be a waiver [FAR 15.403-1(b)(4)]. The waiver process is further explained at FAR 15.403-1(c)(4) where it states that a waiver can only be approved, in exceptional cases, by the Head of the Contracting Activity (HCA) without power of delegation. DFARS 215.403-1(c)(4)(A) further restricts the waiver process by stating that the HCA, without power of delegation, can only approve a waiver if they have made a determination that: “(1) The property or services cannot reasonably be obtained under the contract, subcontract, or modification, without the granting of the waiver; (2) The price can be determined to be fair and reasonable without the submission of certified cost or pricing data; and (3) There are demonstrated benefits to granting the waiver.”
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Another issue raised by this scenario is the application of an escalation rate to an existing pricing table. If an escalation rate is used, it, like any other pricing aspect, shall be determined to be fair and reasonable in accordance with FAR 15.402, Pricing Policy. The contracting officer is responsible for validating that the 2014 pricing table is still an adequate basis to substantiate pricing for the additional requirement. Furthermore, given that this appears to be a requirement beyond the scope of the original IDIQ, the PCO will also need to verify compliance with FAR parts 5 and 6 in regards to publicizing contract actions and getting approval for using other than full and open competition.
A short period of performance on work that has already been started and the amount of time it takes to generate and review a proposal are not reasons to work around the requirements of FAR part 15. Based on the reasons above, the approach laid out in your initial question is not supported by any clauses or the regulations.