ii.  Impact of Requesting Unnecessary Additional Data

Comment: One respondent stated that although obtaining insight into some single offer procurements may be appropriate, the respondent believes that the goal can be better achieved by better enforcing the existing rules. The respondent cited FAR 15.402(a)(3), which states that "Contracting officers shall obtain the type and quality of data necessary to establish a fair and reasonable price, but not more data than is necessary. Requesting unnecessary data can lead to increased proposal preparation costs, generally extend acquisition lead time, and consume additional contractor and Government resources."Similarly, another respondent objected that the proposed rule effectively shifts the burden for price reasonableness to the offeror, by requiring them to provide either certified cost or pricing data or data other than certified cost or pricing data automatically, in response to several new clauses authorizing the contracting officer to demand such data when a single offer is received. According to the respondent, this rule creates the de facto presumption that any single offer outcome is unreasonable. This respondent recommended that supporting data should be restricted to pricing data and prohibit the contracting officer from requesting cost data or profit figures (per the SARA panel). The respondent further stated that if cost data is necessary, it should not require certification.

Several respondents feared a negative impact because of the proposed rule requirement for submission of cost or pricing data when only one offer is received.

One respondent stated that the uncertainty at the time of offer as to whether cost or pricing data will later be required, imposes an unanticipated burden of gathering such data. The respondent was concerned that this uncertainty may increase prices, drive away competitors, especially nontraditional suppliers, from submitting offers, and thus increase the number of single offers received.

Another respondent stated that the demand for additional data will add to the enormous industry bid and proposal cost burden. The respondent further stated that requiring cost or pricing data is contrary to sound acquisition policyand will negatively impact mission performance accomplishment.

Response: The final rule has been revised to narrow the circumstances in which the contracting officer will request additional cost or pricing data. The rule now clarifies that, in competitive environments when only one offer is received, the contracting officer is only required to obtain enough data to establish fair and reasonable prices and to comply with any statutory requirement for certified cost or pricing data. If the contracting officer determines that the proposed price is fair and reasonable (through cost or price analysis using any data from the same or similar products or services previously procured) and that adequate price competition exists (the determination approved at one level above the contracting officer) or another exception to the requirement for certified cost or pricing data applies, then no further data is required. However, if the contracting officer cannot make the preceding determination, then the contracting officer must request additional cost or pricing data, and that data must be certified, unless another exception to the requirement for certified cost or pricing data applies (e.g., commercial items, or below the certified cost or pricing data threshold).

The provision at DFARS 252.215-7008 has been revised in the final rule so that it no longer automatically requires additional data if only one offer is received. The provision notifies offerors that the contracting officer may request additional cost or pricing data if only one offer was received and if additional cost or pricing data is required in order to determine whether the price is fair and reasonable. In addition, the provision has been revised so that an offeror, by submission of its offer, agrees to provide any data requested by the contracting officer in accordance with FAR 52.215-20.