PCI s Trending Cost & Pricing Series 2017 Defective Pricing Hazards and Defenses December 21, government contracting

Transcription

1 PCI s Trending Cost & Pricing Series 2017 Defective Pricing Hazards and Defenses December 21,

2 Your hosts Bill Walter Executive Director Government Contract Advisory Services Dixon Hughes Goodman LLP 1410 Spring Hill Rd. Suite 500 Tysons, VA D David Bodenheimer Partner Crowell & Moring LLP 1001 Pennsylvania Ave., NW Washington, DC D: ) 2

3 Defective Pricing Hazards Defective Pricing is one of the unique weapons in the Federal Government s arsenal. Since 1963, when applicable, Public Law (aka the Truth In Negotiations Act (TINA)) provides a contractual right to the Government in certain circumstances - where the Contracting Officer can reduce contracted prices after the fact. When used effectively TINA significantly levels the playing field regarding superior knowledge regarding cost and pricing data while at the same time increasing the cost of contracting with the Federal Government. 3

4 Relevant History of Defective Pricing 4

5 Background Cost based pricing GAO reports of alleged overpricing ASPR Certificate of Current Pricing Defective pricing data clause Congressional Concern 5

6 What is the Truth in Negotiations Act? Public Law passed in 1962 Premise is that a Government negotiator will never know the company Tries to level the playing field It is the contractor s responsibility to comply -- not the Government s responsibility to extract 6

7 FASA versus TINA Federal Acquisition Streamlining Act: Public Law Applies to solicitations issue dafter October 1, 1995 Cost or Pricing Data versus Certified Cost or Pricing Data Impacts TINA coverage, not what constitutes Defective Pricing! 7

8 FASA versus CAS Cost Accounting Standards: Public Law Standards for cost accounting practices Some CAS exemptions are similar TINA Threshold Competitive (fixed price) Commercial items Downward price adjustments for noncompliance and failure to follow your established practices CASB Disclosure Statement Significant annual administrative requirements 8

9 Fundamental Requirements Contractor is required to submit cost or pricing data The cost or pricing data must be: current accurate and complete Contractor must execute a certification attesting to the fact that the require data was submitted TINA is strictly a disclosure statute there is no limitation placed on what price or fee can be negotiated 9

10 Exemptions to TINA and pricing strategies to avoid TINA challenges 10

11 Prohibition FAR Contracting Officer shall not require Certified Cost Or Pricing Data to support any action where the price is based on: Adequate price competition Prices set by law or regulation Acquisition of a commercial item Waiver has been granted Modifying commercial item subcontract or contract 11

12 Waivers The agency head of contracting activity (HCA) may waive the requirement: Exceptional cases Must be in writing The HCA may consider waiving the requirement if the price can be determined to be fair and reasonable without certified cost or pricing data. Waiver at the prime does not relieve a subcontractor from the requirement to submit certified cost or pricing data unless: An exception otherwise applies to the subcontract; or The waiver specifically includes the subcontract and the rationale supporting the waiver for that subcontract. 12

13 Other exemptions The exercise of an option at the price established at contract award or initial negotiation does not require submission of certified cost or pricing data. Certified cost or pricing data are not required for proposals used solely for overrun funding or interim billing price adjustments. 13

14 Dollar Threshold - FAR $750,000 negotiated prime contract or subcontract 2018 NDAA - $1M for DoD soon... Adjusted for inflation every 5 years* Currently same threshold for DoD & civilian agencies* * - updated by FASA Next update in

15 Identify the differences between Certified Cost or Pricing Data, Data other than Certified Cost or Pricing Data 15

16 Pricing Information and Data What type of data is needed to support the pricing decision? Cost or Pricing Data Certified Cost or Pricing Data Data Other Than Certified Cost or Pricing Data 16

17 What is Cost or Pricing Data? FAR All facts that, as of the date of price agreement or, if applicable, another date agreed upon between the parties that is as close as practicable to the date of agreement on price, prudent buyers and sellers would reasonably expect to affect price negotiations significantly. Are factual, not judgmental, and are therefore verifiable. Include the data that form the basis for future cost projections. Are more than historical accounting data. 17

18 What is Cost or Pricing Data... Include such factors as: Vendor quotations; Nonrecurring costs; Information on changes in production methods and in production or purchasing volume; Data supporting projections of business prospects and objectives and related operations costs; Unit-cost trends such as those associated with labor efficiency; Make-or-buy decisions; Estimated resources to attain business goals; and Information on management decisions that could have a significant bearing on costs. 18

19 What Isn t Cost or Pricing Data Engineering estimates Judgment Cost breakdowns required to determine the cost realism of competing offers or to evaluate competing approached for major acquisitions 19

20 Certified Cost or Pricing Data Cost and pricing data that were required to be submitted and have been certified, or are required to be certified The certification states that: to the best of the person's knowledge and belief the cost or pricing data are current, accurate and complete as of the date of agreement on price often before contract award 20

21 The Certification This is to certify that, to the best of my knowledge and belief, the cost or pricing data (as defined in section of the Federal Acquisition Regulation (FAR) and required under FAR subsection ) submitted, either actually or by specific identification in writing, to the contracting officer or to the contracting officer's representative in support of... * are accurate, complete and current as of... **. This certification includes the cost or pricing data supporting any advance agreements and forward pricing rate agreements between the offeror and the Government that are part of the proposal. 21

22 Data Other Than...? Includes "cost or pricing data" that is not required to be certified Pricing data, cost data and judgmental information necessary for the contracting officer to determine a fair and reasonable price May include sales data and any data reasonably required to explain the offerors estimating process including but not limited to: The judgmental factors applied the mathematical or other methods used in the estimate, including those used in projecting from known data; and The nature and amount of any contingencies included in the proposed price. 22

23 Format When certification is required: format indicated in Table 15-2 specify an alternative format permit submission in the contractor s format. (unless the data are required to be submitted on one of the termination forms specified in Subpart 49.6) Format for data other than certified cost or pricing data: may be submitted in the offeror s own format unless the contracting officer decides that use of a specific format is and the format has been described in the solicitation 23

24 Outline the Government s remedies the Hazards 24

25 What is Defective Pricing? Contractor submits inaccurate, incomplete or non-current data Other data that was current, accurate and complete was reasonably available The Government did not have actual knowledge of the data There was causation and reliance 25

26 Defective Pricing Hazards Price Adjustment Overpayment plus interest Secretary of the Treasury Interest rate Penalties Knowing submission an amount equal to the amount of overpayment made. Before taking any contractual actions concerning penalties, the CO shall obtain the advice of counsel. 26

27 Guidance... After award, the CO can request an audit to evaluate the accuracy, completeness, and currency of the data. The Government may evaluate the profit-cost relationships only if the audit reveals that the data certified by the contractor were defective. The contracting officer shall not reprice the contract solely because the profit was greater than forecast or because a contingency specified in the submission failed to materialize. If an audit finding recommends adjustment, the CO should give the contractor an opportunity to support the accuracy, completeness, and currency of the data in question. The contracting officer shall prepare a memorandum documenting both the determination and any corrective action taken as a result. 27

28 Defenses 28

29 Defectice Pricing - Defenses In this part, our instructors will present the steps used by the Government to seek out and identify Defective Pricing. We will also identify strategies and defenses you can take to avoid the risk of contract price adjustments and other penalties. Our panel of instructors will include accountants, auditors and attorneys who will examine TINA from several viewpoints and outline the risks imposed. The team will also review relevant case law and interpretations to help you understand the wide net that can be cast under this law and steps you can take to avoid potential challenges. This second session will cover: Indicators of defective pricing DCAA audit guidance programs related TINA Risks that can trigger a DCAA Defective Pricing audit Case studies defining the boundaries of the criteria Discussion of recent, relevant cases 29

30 Proving Defective Pricing 5 Points Government bears burden of proof for five points of defective pricing 1. Is it Cost or Pricing Data? 2. Data Reasonably Available 3. Not Disclosed or Known to Government 4. Government Reliance on Data 5. Causation of Increased Price 30

31 Is It Cost or Pricing Data? Cost or Pricing Data Prudent Buyers & Sellers Reasonably expect to affect Price negotiations significantly Facts versus Judgments Factual and verifiable Not judgmental Sound Estimating Facts reasonably expected to Contribute to soundness of Future costs and incurred costs Examples in FAR are not Exhaustive Often hard to separate Facts from Judgments 31

32 Judgments are Guesses Escalation Engineering analogies Software coding efficiencies Quantitative risk analyses and risk ranges FAR Table 15-2 and disclosure of estimating methods DCAM

33 Is It Reasonably Available? Reasonable Availability Overview Handshake Date Disclosure required for data reasonably available prior to price agreement Statute (10 U.S.C. 2306a) Date of price agreement or Other date agreed upon by parties Regulation (FAR ) Reasonably available standard 33

34 Showing Unavailability Reasonable Availability Burden of Proof Agency bears burden of proving availability prior to handshake War Zone Availability 2-day negotiations in Saigon Accounting System Limits Not required to change accounting systems (Hughes) Manual data updates (Litton) Data not in system (Sanders) Sweep Data Systematic query of organization Pre- or Post-Handshake Cut-off dates (FAR (c)) DoD policy to accept sweep data * DCAM (a) 34

35 What is Disclosure? Disclosure Requirements Submission of Data (FAR ) Actual submission Specific identification TINA is a disclosure statute. United Technologies Corp., 04-1 BCA 32,556 35

36 Focusing on Disclosure Disclose No Duty to Use The plain language of the Act does not obligate a contractor to use any particular cost or pricing data to put together its proposal. Indeed, TINA does not instruct a contractor in any manner regarding the manner or method of proposal preparation. United Technologies Corp., 04-1 BCA 32,556 No Duty to Analyze Data No Duty to Create Data 36

37 DCAA Guidance: DP = Fraud Risk 37

38 Avoiding Fraud Indicators 38

39 Sandwiching Subcontractors TINA vs. Subcontractors DCAA Allegations Asserting Prime Reliance Strategic Realities No 2-Front Wars 10 Points of Proof Prime Negotiation Record [Boeing] based its negotiation position with Resalab with respect to the estimated labor hours on its own in-house technical evaluation of Resalab s manhour estimate which involved a physical survey of Resalab and technical interface with Resalab. The Boeing Co., ASBCA No , 85-3 BCA 18,351 Prime + Sub 39

40 Missing Deadlines TINA Claims 6 Years Later Agency Allegations Final Decisions > 6 Years Legal Realities 41 U.S.C. 7103(a)(1)(4(A) 6 Years after accrual FAR ( accrual ) Knew or Should Have Known ASBCA Precedent [T]he Government had established the basis for its defective pricing claim... more than six years before the COs June 2008 decisions issued. McDonnell Douglas Servs., 10-1 BCA 34,325 40

41 DCAA s Role in Defective Pricing 41

42 DCAA Role in TINA DCAA is the primary auditor for Defective Pricing Selects DP reviews as a part of the annual plan Risk Analysis: DCAA 2016 Staff Allocation & Guidance Postaward Audit Selection System (PASS) Sends notice to contractor 42

43 Notice to Contracting Officer Coordinate any specific concerns of the PCO Obtain negotiation memorandum 43

44 DCAA Notice of Post Award Audit Auditor to request from the Contractor: Copies of the proposal Identification of significant subcontracts and interorganizational transfers Final Certificate of Current Cost or Pricing Data Identification of all cost or pricing data submitted before or during negotiations Costs incurred to date by cost element and estimates at completion (EAC) by cost element 44

45 Initial Audit Steps Risk analysis is complete, next: Perform under/overrun analysis Review the PCO negotiation memorandum Review work papers if an audit was performed of the proposal Evaluate the DP Lead sheet Identify other potential leads Review the permanent file Determine audit baseline 45

46 Essential Audit Lessons How to Survive the Audit Remember 5 Points of Proof Fight for Judgments Focus on Disclosure, Not Use Preserve the Documents Avoid Unnecessary Admissions Beware Inconsistencies Embrace your Subcontractor Check the Offsets Rebut the Audit Battle the FCA Allegations 46

47 Questions? 47