10 U.S.C. § 3705 — Submission of other information

Page 2532 TITLE 10—ARMED FORCES § 3705 Subsec. (a). Pub. L. 116–283, § 1831(e)(1)(B), (2), redesig- nated par. (1) of section 2306a(c) of this title as subsec. (a) of this section, realigned margin, and substituted ‘‘subsection (b)’’ for ‘‘paragraph (2)’’, ‘‘section 3702 of this title’’ for ‘‘subsection (a)’’, and ‘‘under this sec- tion’’ for ‘‘under this subsection’’. Subsec. (b). Pub. L. 116–283, § 1831(e)(1)(B), (3), redesig- nated par. (2) of section 2306a(c) of this title as subsec. (b) of this section, realigned margin, and substituted ‘‘under this subsection’’ for ‘‘under this paragraph’’ and ‘‘paragraph (1) or (2) of section 3703(a) of this title’’ for ‘‘subparagraph (A) or (B) of subsection (b)(1)’’. Subsec. (c). Pub. L. 116–283, § 1831(e)(1)(B), (4), redesig- nated par. (3) of section 2306a(c) of this title as subsec. (c) of this section, realigned margin, and substituted ‘‘under this subsection’’ for ‘‘under this paragraph’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. § 3705. Submission of other information (a) AUTHORITY TO REQUIRE SUBMISSION.—When certified cost or pricing data are not required to be submitted under this chapter for a contract, subcontract, or modification of a contract or subcontract, the offeror shall be required to sub- mit to the contracting officer data other than certified cost or pricing data (if requested by the contracting officer), to the extent necessary to determine the reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract. Except in the case of a contract or subcontract covered by the excep- tions in section 3703(a)(1) of this title, the con- tracting officer shall require that the data sub- mitted include, at a minimum, appropriate in- formation on the prices at which the same item or similar items have previously been sold that is adequate for evaluating the reasonableness of the price for the procurement. If the contracting officer determines that the offeror does not have access to and cannot provide sufficient informa- tion on prices for the same or similar items to determine the reasonableness of price, the con- tracting officer shall require the submission of information on prices for similar levels of work or effort on related products or services, prices for alternative solutions or approaches, and other information that is relevant to the deter- mination of a fair and reasonable price. Con- tracting officers shall not determine the price of a contract or subcontract to be fair and reason- able based solely on historical prices paid by the Government. (b) INELIGIBILITY FOR AWARD.—(1) In the event the contracting officer is unable to determine proposed prices are fair and reasonable by any other means, an offeror who fails to make a good faith effort to comply with a reasonable re- quest to submit data in accordance with sub- section (a) is ineligible for award unless the head of the contracting activity, or the designee of the head of contracting activity, determines that it is in the best interest of the Government to make the award to that offeror, based on con- sideration of pertinent factors, including the fol- lowing: (A) The effort to obtain the data. (B) Availability of other sources of supply of the item or service. (C) The urgency or criticality of the Govern- ment’s need for the item or service. (D) Reasonableness of the price of the con- tract, subcontract, or modification of the con- tract or subcontract based on information available to the contracting officer. (E) Rationale or justification made by the offeror for not providing the requested data. (F) Risk to the Government if award is not made. (2)(A) Any new determination made by the head of the contracting activity under para- graph (1) shall be reported to the Principal Di- rector, Defense Pricing and Contracting on a quarterly basis. (B) The Under Secretary of Defense for Acqui- sition and Sustainment, or a designee, shall produce an annual report identifying offerors that have denied multiple requests for submis- sion of uncertified cost or pricing data over the preceding three-year period, but nevertheless re- ceived an award. The report shall identify prod- ucts or services offered by such offerors that should undergo should-cost analysis. The Sec- retary of Defense may include a notation on such offerors in the system used by the Federal Government to monitor or record contractor past performance. The Under Secretary shall as- sess the extent to which these offerors are sole source providers within the defense industrial base and shall develop strategies to incentivize new entrants into the industrial base to increase the availability of other sources of supply for the product or service. The Under Secretary shall make appropriate portions of the report available to the leadership of the offerors named in such report. (C) The Under Secretary of Defense for Acqui- sition and Sustainment shall develop a frame- work for revising what constitutes a denial of uncertified cost or pricing data, including— (i) identifying situations under which such denials occur to exclude situations outside the control of the offeror or Federal Government; (ii) identifying whether such denial is from the prime contractor or subcontractor; and (iii) developing an appropriate timeframe for requiring submission of uncertified cost or pricing data before a request for such data is considered a denial, including a standardized determination of a starting point and conclu- sion for such requests. (c) LIMITATIONS ON AUTHORITY.—The Federal Acquisition Regulation shall include the fol- lowing provisions regarding the types of infor- mation that contracting officers may require under subsection (a): (1) Reasonable limitations on requests for sales data relating to commercial products or commercial services. (2) A requirement that a contracting officer limit, to the maximum extent practicable, the scope of any request for information relating to commercial products or commercial serv- ices from an offeror to only that information that is in the form regularly maintained by the offeror in commercial operations. Page 2533 TITLE 10—ARMED FORCES § 3706 (3) A statement that any information re- ceived relating to commercial products or commercial services that is exempt from dis- closure under section 552(b) of title 5 shall not be disclosed by the Federal Government. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1831(a), (f), Jan. 1, 2021, 134 Stat. 4209, 4213; Pub. L. 118–31, div. A, title VIII, § 802, Dec. 22, 2023, 137 Stat. 312.) Editorial Notes CODIFICATION The text of subsec. (d) of section 2306a of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1831(f), was based on Pub. L. 103–355, title I, § 1204, Oct. 13, 1994, 108 Stat. 3275; Pub. L. 104–106, div. D, title XLII, § 4201(a)(1) ,Feb. 10, 1996, 110 Stat. 650; Pub. L. 105–261, div. A, title VIII, § 808(a), Oct. 17, 1998, 112 Stat. 2085; Pub. L. 114–92, div. A, title VIII, § 852(e), 853, Nov. 25, 2015, 129 Stat. 918; Pub. L. 115–91, div. A, title VIII, § 811(b), Dec. 12, 2017, 131 Stat. 1459; Pub. L. 115–232, div. A, title VIII, § 836(c)(5)(B), Aug. 13, 2018, 132 Stat. 1865, as amended by Pub. L. 116–283, div. A, title X, § 1081(d)(4)(B)(i), Jan. 1, 2021, 134 Stat. 3874; Pub. L. 116–92, div. A, title VIII, § 803, Dec. 20, 2019, 133 Stat. 1483. AMENDMENTS 2023—Subsec. (b)(2)(B). Pub. L. 118–31, § 802(1), inserted at end ‘‘The Under Secretary shall make appropriate portions of the report available to the leadership of the offerors named in such report.’’ Subsec. (b)(2)(C). Pub. L. 118–31, § 802(2), added subpar. (C). 2021—Pub. L. 116–283, § 1831(f)(1), transferred subsec. (d) of section 2306a of this title to this section, struck out subsec. (d) designation and heading ‘‘Submission of Other Information’’ at beginning, and redesignated pars. (1) to (3) as subsecs. (a) to (c), respectively, and re- aligned margins. Subsec. (a). Pub. L. 116–283, § 1831(f)(2), after redesig- nation of section 2306a(d)(1) of this title as subsec. (a) of this section, substituted ‘‘under this chapter’’ for ‘‘under this section’’ and ‘‘section 3703(a)(1) of this title’’ for ‘‘subsection (b)(1)(A)’’. Subsec. (b). Pub. L. 116–283, § 1831(f)(3)(A), (B)(i), (C)(i), after redesignation of section 2306a(d)(2) of this title as subsec. (b) of this section, redesignated subpar. (A) and its cls. (i) to (vi) as par. (1) and subpars. (A) to (F), re- spectively, and redesignated subpar. (B) and its cls. (i) and (ii) as par. (2) and subpars. (A) and (B), respec- tively. Subsec. (b)(1). Pub. L. 116–283, § 1831(f)(3)(B)(ii), sub- stituted ‘‘subsection (a)’’ for ‘‘paragraph (1)’’ in intro- ductory provisions. Subsec. (b)(2)(A). Pub. L. 116–283, § 1831(f)(3)(C)(ii), substituted ‘‘paragraph (1)’’ for ‘‘subparagraph (A)’’. Subsec. (c). Pub. L. 116–283, § 1831(f)(4), after redesig- nation of section 2306a(d)(3) of this title as subsec. (c) of this section, redesignated subpars. (A) to (C) as pars. (1) to (3), respectively, and substituted ‘‘under sub- section (a)’’ for ‘‘under paragraph (1)’’ in introductory provisions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. § 3706. Price reductions for defective cost or pric- ing data (a) PROVISION REQUIRING ADJUSTMENT.— (1) IN GENERAL.—A prime contract (or change or modification to a prime contract) under which a certificate under section 3702(b) of this title is required shall contain a provi- sion that the price of the contract to the United States, including profit or fee, shall be adjusted to exclude any significant amount by which it may be determined by the head of the agency that such price was increased because the contractor (or any subcontractor required to make available such a certificate) sub- mitted defective cost or pricing data. (2) WHAT CONSTITUTES DEFECTIVE COST OR PRICING DATA.—For the purposes of this chap- ter, defective cost or pricing data are cost or pricing data which, as of the date of agree- ment on the price of the contract (or another date agreed upon between the parties), were inaccurate, incomplete, or noncurrent. If for purposes of the preceding sentence the parties agree upon a date other than the date of agree- ment on the price of the contract, the date agreed upon by the parties shall be as close to the date of agreement on the price of the con- tract as is practicable. (b) VALID DEFENSE.—In determining for pur- poses of a contract price adjustment under a contract provision required by subsection (a) whether, and to what extent, a contract price was increased because the contractor (or a sub- contractor) submitted defective cost or pricing data, it shall be a defense that the United States did not rely on the defective data submitted by the contractor or subcontractor. (c) INVALID DEFENSES.—It is not a defense to an adjustment of the price of a contract under a contract provision required by subsection (a) that— (1) the price of the contract would not have been modified even if accurate, complete, and current cost or pricing data had been sub- mitted by the contractor or subcontractor be- cause the contractor or subcontractor— (A) was the sole source of the property or services procured; or (B) otherwise was in a superior bargaining position with respect to the property or services procured; (2) the contracting officer should have known that the cost and pricing data in issue were defective even though the contractor or subcontractor took no affirmative action to bring the character of the data to the atten- tion of the contracting officer; (3) the contract was based on an agreement between the contractor and the United States about the total cost of the contract and there was no agreement about the cost of each item procured under such contract; or (4) the prime contractor or subcontractor did not submit a certification of cost and pric- ing data relating to the contract as required under section 3702(b) of this title. (d) OFFSETS.— (1) WHEN ALLOWED.—A contractor shall be al- lowed to offset an amount against the amount of a contract price adjustment under a con- tract provision required by subsection (a) if— (A) the contractor certifies to the con- tracting officer (or to a designated rep-