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Can I award a cost type contract and require that a contractor provide “cost and pricing data” when using GSA schedule's?

   

Can I award a cost type contract and can I require that a contractor provide “cost and pricing data” when using the GSA schedule program?

Well, obviously for those of us in the schedule program, we know the answer is NO! But COs and CSs for the most part are extremely skeptical and we want to see it in writing.  We want the black and white from the Federal Acquisition Regulation (FAR). So, here you go!

Can a cost-type contract be awarded using the GSA schedule program? No, and here is why:

I) Cost-reimbursement contracts are prohibited for the acquisition for commercial items IAW FAR Part 16.301-3(b).

16.301-3 -- Limitations.

(a) A cost-reimbursement contract may be used only when --

(1) The factors in 16.104 have been considered;

(2) A written acquisition plan has been approved and signed at least one level above the contracting officer;

(3) The contractor’s accounting system is adequate for determining costs applicable to the contract or order; and

(4) Prior to award of the contract, or order, adequate Government resources are available to award and manage a contract other than firm-fixed-priced (see 7.104(e)). This includes appropriate Government surveillance during performance in accordance with 1.602-2, to provide reasonable assurance that efficient methods and effective cost controls are used.

(i) Designation of at least one contracting officer’s representative (COR) qualified in accordance with 1.602-2 has been made prior to award of the contract or order; and

(ii) Appropriate Government surveillance during performance to provide reasonable assurance that efficient methods and effective cost controls are used;

(b) The use of cost-reimbursement contracts is prohibited for the acquisition of commercial items (see Parts 2 and 12).

II) IAW FAR subPart 8.402, the Federal Supply schedule program is for, "... obtaining commercial supplies and services ...".

III)  and IAW FAR subPart 12.207, please see the following FAR citation:

12.207 -- Contract Type.

(a) Except as provided in paragraph (b) of this section, agencies shall use firm-fixed-price contracts or fixed-price contracts with economic price adjustment for the acquisition of commercial items.

(b) (1) A time-and-materials contract or labor-hour contract (see Subpart 16.6) may be used for the acquisition of commercial services when …

 

Can an agency request/require that a contractor provide cost and pricing data:

I) IAW FAR subPart 8.404(d), "... GSA has already determined pricing as fair and reasonable ..."

II) IAW FAR subPart 8.404(a), "... FAR Part 15 is not applicable to the schedule program ... "

III) To request cost and pricing data requires the clause 52.215-20, bringing FAR Part 15 into a schedule acquisition

And finally,

4) IAW FAR subPart 15.403-1(b)(3), "... COs shall not require submission of cost and pricing data to support any action when a commercial item is being acquired ...", as COs are only allowed to ask for, "other than cost and pricing data."

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