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    FAR 15.406-2 instructions clearly states that the contractor need to " Insert the day, month, and year when price negotiations were concluded and price agreement was reached", however, since the government made a mistake and accepted the counter offer before the TINA Update was submitted, I believe we could not reasonably certify the pricing data was accurate, complete, and current as of June 18, but was on June 19 when the TINA Update was submitted to the Government?


    Answer

    You are correct that the FAR 15.406-2 instructions clearly state that the contractor needs to "Insert the day, month, and year when price negotiations were concluded and price agreement was reached", but it also states “or, if applicable, another date agreed upon between the parties that is close as practicable to the date of agreement on price.” 

    The bottom line is this: if a certificate of current cost or pricing data was already provided to the Government, the date used in the certificate is the date that really matters.  If the date used in the certificate was June 18, then that is the date that is being certified to in your certificate.  If the certificate used “June 19”, then that is the date being certified to in your certificate.  However, with this caveat: if June 19 is not the date negotiations were concluded (which appears to be the case since you said in the background information provided the Government accepted your offer on June 18), then both parties would need to agree to use Jun 19 as the date in the certificate.  Therefore, based on the information I have which is probably limited, it's going to be irrelevant that you stated in your 2d counter offer “the TINA Update incorporating the new FY21 Forward Pricing Rates is in work and will be submitted shortly " if you have already certified using June 18 as the date.  If you went ahead with providing the Government a signed certificate that used June 18 as the date negotiations were concluded, then that is the date that matters and the certificate takes precedence over any statements you made in the counteroffer.  If you have not provided a certificate to the government yet, then both parties could agree to use June 19 or another suitable date to allow enough time for the update to be submitted with the certificate, so long as the agreed to date “…is as close as practicable to the date of agreement on price.”   This is probably the best course of action to take.

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