Question 1 - We are currently in the review process of the J&A and have a question on Certified Cost Pricing. Does a Ceiling Increase need Certified Cost and Pricing Data if -
The cost/price history was used to develop an Independent Government Estimate. The
current cost/price history will be utilized for making the fair and reasonable cost/price
determination. The determination of a fair and reasonable cost for the requirement will
be based on the evaluated/negotiated rates for FY21 which were established when the
contract was awarded. The contractor has agreed to maintain the FY21 negotiated rates for this ceiling increase therefore Certified Cost or Pricing Data will not be required for this acquisition.
Question 2 - The closest FAR reference that I could find that supports the statement above is FAR part 15.403-1(c)(4) but my team does not fill that we need a waiver. Is there a better FAR reference to support the paragraph above?
In accordance with FAR 15.403-4 (a)(1)(iii), if the absolute value of the ceiling increase modification exceeds the Truthful Cost & Pricing Data Act (formerly known as Truth in Negotiation Act (TINA)) threshold of $2M and an exception does not apply (FAR 15.403-1(b)), certified cost or pricing data is required for your modification.
The FAR reference that you noted is correct. If your modification exceeds $2M and an exception listed in FAR 15.403-1(b) does not apply, a waiver would be required if you will be relying on other than certified cost and pricing data. FAR 15.403-1(c)(4) states “(4) Waivers. The head of the contracting activity (HCA) may, without power of delegation, waive the requirement for submission of certified cost or pricing data in exceptional cases. The authorization for the waiver and the supporting rationale shall be in writing. The HCA may consider waiving the requirement if the price can be determined to be fair and reasonable without submission of certified cost or pricing data. For example, if certified cost or pricing data were furnished on previous production buys and the contracting officer determines such data are sufficient, when combined with updated data, a waiver may be granted.”