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(b) Exceptions to cost or pricing data requirements. The existence of a Truth in Negotiations Act (TINA) exception (FAR 15.403-1(b)) including an approved TINA waiver, does not alter the requirements for performing some form of price or cost analysis to determine price reasonableness (see FAR 15.404-1(a)(1) through (a)(3)) and for documenting the results (see FAR 15.406-3(a)(11)).

(c) Standards for exceptions from cost or pricing data requirements.

(1) Adequate price competition. The contracting officer must document one or more of the three circumstances allowing a finding of adequate price competition described in FAR 15.403-1(c). Subparagraph 15.402-92(a) provides guidance for determining whether adequate price competition exists for procurements involving sole-source items that are subject to limited competition.

(3) Commercial items. See 15.404-1(a)(92).

(4) Waivers.

(A)(2) Senior Procurement Executive coordination. Where appropriate, the SPE (J-7) shall coordinate on exceptional case TINA waiver D&Fs estimated to exceed $100 million (calculated using the appropriate subparagraph (15.403-4(a)(1)(i)(90),-(ii)(90), or -(ii)(91)) signifying approval of a request elevated from a Supply Chain HCA for authorization of the Supply Chain HCA to grant the waiver; and prior to executing a D&F elevated for grant of an exceptional case TINA waiver on behalf of a contracting office not designated as a contracting activity (see DFARS PGI 215.403-1(c)(4)(A)(2)).

(A)(90) For an award or modification action which is subject to TINA requirements and to which none of the other statutorily-sanctioned exemptions (adequate price competition, price set by law or regulation, commercial item, or modifying a contract for commercial items per FAR 15.403-1(b)(1) through (b)(3) and (b)(5)) are applicable, the contracting officer should consider seeking an exceptional case TINA waiver. An exceptional case waiver may be granted, however, only when all three of the findings required by Section 817 of the Fiscal Year 2003 National Defense Authorization Act are met (see DFARS 215.403-1(c)(4)). A waiver shall not be granted simply because the price can be determined fair and reasonable without the submission of cost or pricing data. The contracting officer shall take the following actions if a TINA waiver will be pursued:

i. Advise the offeror or contractor as applicable, of any requirement for cost or pricing data as identified in the relevant data requirements clause included in the

solicitation or contract, request submission of the relevant data, and determine whether the offeror/contractor, as applicable, has provided TINA data in the past (DPAP memo, March

23, 2007, subject: Waivers Under the Truth in Negotiations Act (TINA) stated “TINA waivers should not be granted to contractor business segments that normally perform Government contracts subject to [and in compliance with] TINA.”) y

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ii. If the offeror/contractor refuses, request the refusal be put in writing, with

an explanation of why the required data is being withheld or no longer being provided, if

applicable.

iii. Decide whether the offeror’s/contractor’s price can be determined fair and

reasonable based on a price comparison to a prior competitive buy or some other authorized means of price analysis.

iv. Elevate the efforts to obtain TINA data through the offeror’s business segment officials and

1. through the DLA Supply Chain channels for action by the Chief, Commodity

Business Unit, or through Detachment channels, where applicable, to their Senior Reviewing Official; and if unsuccessful, for action by the Chief of the Supply Chain Contracting Office and an appropriate corporate official; or, for other than a DLA Supply Chain,

2. through contracting management channels at other DLA contracting activities.

v. Prepare a Truth In Negotiations Act (TINA) Waiver Determination and Findings, which is to:

1. include verbatim, the three statutorily-required findings (DFARS

215.403-1(c)(4)(A)(1) through (A)(3)), and

2. follow the guidance at DFARS 215.403-1(c)(4)(A) and DFARS PGI

215.403-1(c)(4)(1).

vi. Notwithstanding the existence of a prior blanket waiver, (including those

referenced at DFARS 215.403-1(c)(4)(C) and (D)) the contracting officer must accomplish the price analysis required by FAR 15.404-1(a) in an effort to ensure that the overall price is fair and reasonable.

vii. Prior to forwarding the waiver request through channels to the Supply Chain HCA or, for other DLA contracting offices not designated a contracting activity (see 2.101), to the DLA HCA (J-7), the contracting officer shall:

1. Prepare the additional documentation supporting elevation of a supplier’s

refusal to provide cost or pricing data and a TINA waiver if applicable, as identified in 15.404-2(d).

2. Coordinate, and furnish a copy of, the recommended draft TINA Waiver D&F (with attached refusal letter from the offeror’s senior manager delineating why the offeror refuses to submit and/or certify the requisite cost or pricing data) and an electronic draft spreadsheet record of the proposed TINA waiver, with the Supply Chain Cost and Price Analysis Office.

viii. The Supply Chain Cost and Price Analysis Office is the Supply Chain focal point for reviewing and providing advice on proposed TINA Waiver D&Fs, maintaining the Supply Chain TINA Waiver Tracking Log, a copy of the proposed and approved TINA Waiver D&Fs and for emailing the Supply Chain’s Monthly Report of all Exceptional Case TINA Waivers that were in-process or executed during the month, using the J-73-prescribed TINA Waiver Spreadsheet, to the DLA J-73 focal point ([email protected]) not later than five business days following the end of each month.

ix. Following an unsuccessful negotiation with the contractor’s cognizant senior official for:

1. The requisite cost or pricing data and subsequently, the certificate of cost or pricing data; and,

2. The contractor’s letter of refusal with rationale why the data will not be provided including, as applicable, (A) An explanation of why the data has been provided to the Government by the business segment in the past, but will no longer be provided, and/or (B) Information other than cost or pricing data to enable the supply chain contracting officer to determine the price(s) fair and reasonable,

the contracting officer should follow the guidance at 15.404-2(d) for elevating TINA refusals to the HCA.

x. Following the unsuccessful accomplishment of the steps at 15.404-2(d) for processing by the Commander/Director, Supply Chain or other contracting office, the Commander/Director, Supply Chain HCA or Chief of the Contracting Office shall promptly notify HQ DLA, ATTN: J-7, and forward recommendations to resolve the impasse. A copy of the notice elevating the matter, along with a copy of the proposed D&F and supporting documentation (including that listed at 15.404-2(d)(1) to (14)), should be forwarded electronically to HQ DLA, ATTN: J-73 by the CCO or designee, e.g., normally the chief of the Supply Chain Cost and Price Analysis Office.

xi. Within seven working days following receipt of the complete documentation

package, J-7 will contact the vendor and request the certified cost and pricing data or the written refusal. And, if the Supply Chain is unable to determine the prices fair and reasonable, J-7 will exhort the contractor to provide a basis the government can use to determine the price(s) to be fair and reasonable.

xii. Once J-7 has made contact and the vendor has provided the refusal and information to enable a fair and reasonable price determination, or the vendor has re-engaged in negotiations with the contracting officer leading to fair and reasonable prices, the Supply Chain HCA can sign the waiver. If, instead, the vendor still refuses to provide documentation of its refusal, J-7 will provide written documentation of the HQ effort, and outcome, to the cognizant Supply Chain or other contracting office for its records (Including where applicable, the SPE coordination per 215.403-1(c)(4)). If the price cannot be determined fair and reasonable, spot buys may be used as a last resort to maintain customer support since the requirements for issuing the waiver cannot be met.

xiii. When the award action has been completed or cancelled, the contracting officer shall promptly advise the Supply Chain Cost and Price Analysis Office, in writing of the action taken on the D&F; if an exceptional TINA waiver was executed by the cognizant HCA, the contracting officer shall promptly prepare and furnish to the Supply Chain Cost and Price Analysis Office, a copy of the completed J-73 electronic spreadsheet record of the TINA Waiver, along with a .PDF format copy of the completed (signed, with signature block, and dated) TINA Waiver D&F, with the attached Contractor TINA Refusal, if available. This information will be used for DLA’s quarterly report of TINA waivers to DPAP (basis of the annual OSD report (DFARS PGI

215.403-1(c)(4)(B).

).

(C)(90) The DoD waiver of submission of certified cost or pricing data from the Canadian Commercial Corporation (CCC) (DFARS 215.403-1(c)(4)(A)) states that the integrity of the assurance of fair and reasonable prices by the Government of Canada can be assumed. However, proposal analysis is required (FAR 15.404-1). Where price analysis indicates a fair and reasonable price significantly different than that offered by CCC, the contracting officer should initiate discussions with the CCC to request confirmation of the price reasonableness determination. A brief explanation of why the confirmation is being requested, i.e., the results of the price analysis, should accompany the request.

15.403-3 Requiring information other than cost or pricing data.

(a) General

(4)(90) The Determination & Findings at FAR 15.403-3(a)(4) that it is in the best interest of the Government to make the award to that offeror:

(A) is delegable by the Supply Chain HCA to:

(i) the Supply Chain Chief of the Contracting Office (CCO), with power of

redelegation without further delegability, to one level below the Supply Chain CCO, and

(ii) the Senior Reviewing Official of a Detachment under the Supply Chain,

without power of further delegation.

(B) has been delegated to the CCO for other DLA contracting offices (see 2.101, Contracting Offices Not Designated a Contracting Activity) without power of further delegation.