[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8161 Introduced in House (IH)]
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117th CONGRESS
2d Session
H. R. 8161
To amend title 10 and 41, United States Code, to strengthen
requirements for Government contractors to submit certified and
uncertified cost or pricing data and information supporting commercial
product determinations, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 21, 2022
Mrs. Carolyn B. Maloney of New York (for herself, Ms. Speier, Ms.
Porter, Mr. Khanna, and Mr. Lynch) introduced the following bill; which
was referred to the Committee on Armed Services, and in addition to the
Committee on Oversight and Reform, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To amend title 10 and 41, United States Code, to strengthen
requirements for Government contractors to submit certified and
uncertified cost or pricing data and information supporting commercial
product determinations, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fair Pricing with Cost Transparency
Act of 2022''.
SEC. 2. SUBMISSION OF UNCERTIFIED COST DATA TO CONTRACTING OFFICERS.
(a) Submission of Uncertified Cost Data to Civilian Agencies.--
Section 3505 of title 41, United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``data other than certified'' and
inserting ``uncertified''; and
(B) by inserting after ``the procurement.'' the
following: ``If the contracting officer determines that
the uncertified pricing data submitted by the offeror,
contractor, or subcontractor is not adequate for
evaluating the reasonableness of the price of the
contract, subcontract, or modification of the contract
or subcontract, the offeror, contractor, or
subcontractor shall submit to the contracting officer
uncertified cost data to the extent necessary to
determine the reasonableness of such price.'';
(2) by redesignating subsection (b) as subsection (c); and
(3) by inserting after subsection (a) the following new
subsection:
``(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 request to submit data in accordance
with subsection (a) is ineligible for award unless the head of
the contracting activity, or the designee of the head of the
contracting activity, determines that it is in the best
interest of the Government to make the award to that offeror,
based on consideration of pertinent factors, including the
following:
``(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
Government's need for the product or service.
``(D) Reasonableness of the price of the contract,
subcontract, or modification of the contract 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 paragraph (1) shall be reported to
the senior procurement executive on a periodic basis.
``(3) Report.--
``(A) Annual report.--The senior procurement executive, or
a designee, shall submit an annual report to the Administrator
of the Office of Federal Procurement Policy identifying
offerors that have denied multiple requests for submission of
uncertified cost or pricing data over the preceding three-year
period, but nevertheless received an award. The report shall
identify products or services offered by such offerors that
should undergo should-cost analysis.
``(B) Notation.--The contracting officer may include a
notation on such offerors in the system used by the Federal
Government to monitor or record contractor past performance.
``(C) Assessment.--The senior procurement executive shall--
``(i) assess the extent to which these offerors are
sole source providers; and
``(ii) develop strategies to incentivize new
entrants to increase the availability of other sources
of supply for the product or service.''.
(b) Submission of Uncertified Cost Data to Contracting Officers.--
Section 3705 of title 10, United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``data other than certified'' and
inserting ``uncertified''; and
(B) by inserting after ``a fair and reasonable
price.'' the following: ``If the contracting officer
determines that the uncertified pricing data submitted
by the offeror, contractor, or subcontractor is not
adequate for evaluating the reasonableness of the price
of the contract, subcontract, or modification of the
contract or subcontract, the offeror, contractor, or
subcontractor shall submit to the contracting officer
uncertified cost data to the extent necessary to
determine the reasonableness of such price.''; and
(2) in subsection (b)(1)--
(A) in the matter preceding subparagraph (A), by
striking ``head of contracting'' and inserting ``head
of the contracting''; and
(B) in subparagraph (B), by striking ``item'' and
inserting ``product''.
(c) Application.--The amendments made by subsections (a) and (b)
shall apply with respect to contracts awarded on or after the date that
is one year after the date of the enactment of this Act.
SEC. 3. DISCRETION TO REQUIRE CERTIFIED COST OR PRICING DATA ON BELOW-
THRESHOLD CONTRACTS.
(a) Discretion.--Section 3504(a) of title 41, United States Code,
is amended by inserting before ``In any case'' the following: ``The
head of the procuring activity should consider making such a
determination when a contractor, offeror, or subcontractor has
previously failed to provide adequate uncertified cost or pricing data
when requested or required, or other significant risk factors impede
the Government's ability to determine the reasonableness of price.''.
(b) Cost or Pricing Data on Below-Threshold Contracts.--Section
3704(a) of title 10, United States Code, is amended by inserting before
``In any case'' the following: ``The head of the procuring activity may
consider making such a determination when a contractor, offeror, or
subcontractor has previously failed to provide adequate uncertified
cost or pricing data when requested or required, or other significant
risk factors impede the ability of the Government to determine the
reasonableness of price.''.
SEC. 4. DATA REQUIREMENTS FOR COMMERCIAL PRODUCT PRICING NOT BASED ON
ADEQUATE PRICE COMPETITION.
Section 3705 of title 10, United States Code, is amended--
(1) by redesignating subsections (b) and (c) as subsections
(c) and (d), respectively; and
(2) by inserting after subsection (a) the following new
subsection (b):
``(b) Authority To Require Submission of Information for Commercial
Products of a Type Customarily Used by General Public or
Nongovernmental Entities.--
``(1) Data to support commercial product determination.--
For products proposed as commercial as defined in section
103(1) of title 41, and that have not previously been
determined commercial in accordance with section 3703(d) of
this title, or to the extent necessary to perform a periodic
review of a commercial product determination in accordance with
section 3703(e) of this title, the offeror shall be required to
identify the comparable commercial product that is customarily
used by the general public or nongovernmental entities that
serves as the basis for the `of a type' assertion. The offeror
shall submit a comparison of the essential physical
characteristics and functionality between the proposed `of a
type' product and the comparable commercial product in support
of the `of a type' assertion. The offeror shall also provide
the National Stock Numbers for both the comparable commercial
product used by the general public, if one is assigned, and the
product proposed to meet the Government's requirement, if one
is assigned.
``(2) Data to support price reasonableness.--When
procurements that include products proposed as commercial as
defined in 103(1) of title 41 and are not covered by the
exceptions in section 3703(a)(1) of this title, and the
contracting officer determines data available from within the
Government and outside sources are insufficient to determine
price reasonableness or the contracting officer determines the
proposed price is not reasonable, the offeror shall be required
to provide data to support price reasonableness for a contract,
subcontract, or modification of a contract or subcontract as
follows:
``(A) If the offeror sells the commercial product
that is customarily used by the general public or
nongovernmental entities, the offeror shall provide the
contracting officer access to all unredacted sales data
or purchase order history for the commercial product so
the contracting officer can review unredacted sales to
the general public or nongovernmental entities. If the
contracting officer determines the proposed price is
not reasonable after evaluating the sales data, the
offeror shall be required to provide the contracting
officer with cost data, including information on labor
cost, material cost, and overhead rates, for the
purpose of establishing price reasonableness.
``(B) If the offeror does not sell the commercial
product that is customarily used by the general public
or nongovernmental entities for purposes other than
governmental purposes that serves as the basis for its
`of a type' assertion for the proposed product, the
offeror shall provide the contracting officer with cost
data, including information on labor cost, material
cost, and overhead rates, for the purpose of
establishing price reasonableness.''.
SEC. 5. PERIODIC REVIEW OF COMMERCIAL PRODUCT DETERMINATIONS.
(a) Exceptions.--Section 3703 of title 10, United States Code, is
amended--
(1) in subsection (d)(1), by inserting after ``such product
or service'' the following: ``, subject to the limitation in
subsection (e)'';
(2) by redesignating subsections (e) and (f) as subsections
(f) and (g), respectively; and
(3) by inserting after subsection (d) the following new
subsection:
``(e) Periodic Review of Certain Commercial Product
Determinations.--(1) Commercial product determinations shall be
periodically reviewed, no less frequently than every five years, to
ensure that the initial decision was appropriate and that the market
conditions continue to support the designation, if--
``(A) the product is not regularly sold in substantial
quantities in the commercial marketplace in essentially the
same form; and
``(B) the product has not been subject to adequate
competition, as defined in subsection (a)(1)(A), from a
different product or products since the determination was made,
unless the procurement is subject to the exception in
subsection (a)(1)(B).
``(2) Reviews of commercial product determinations shall be
approved at a level above the contracting officer. The Director of the
Defense Contract Management Agency, the Director of the Defense
Contract Audit Agency, or other appropriate experts in the Department
may support such reviews upon request, consistent with section
3456(b)(1)(A) of this title.''.
(b) Commercial Product and Commercial Service Determinations by
Department of Defense.--Section 3456(c) of title 10, United States
Code, is amended--
(1) in paragraph (1), by inserting after ``this chapter''
the following: ``subject to periodic reviews of certain
commercial product determinations as set forth in section
3703(e) of this title, or''; and
(2) in paragraph (2)--
(A) in the heading, by striking ``Limitation'' and
inserting ``Limitations'';
(B) in subparagraph (A), by inserting ``and (C)''
after ``subparagraph (B)''; and
(C) by inserting at the end the following new
subparagraph:
``(C) The limitation under subparagraph (A) does
not apply to the periodic review of commercial product
determinations as set forth in 3703(e) of this
title.''.
SEC. 6. GAO REVIEW AND REPORT ON GOVERNMENT CONTRACTORS USING
DISTRIBUTORS TO AVOID SCRUTINY.
(a) Review Required.--
(1) In general.--The Comptroller General of the United
States shall conduct a review of the prevalence and trends of
contractors of executive agencies using distributors or other
intermediaries as a means of avoiding legal or regulatory
requirements, such as requirements to provide certified or
uncertified cost or pricing data.
(2) Additional contents of review.--In conducting the
review under paragraph (1), the Comptroller General shall
consider--
(A) any effects of this practice on the ability of
the Government to--
(i) acquire needed goods at reasonable
prices; and
(ii) avoid waste, fraud, and abuse in the
procurement process; and
(B) how executive agencies may differentiate
between the legitimate business purposes for the use of
distributor relationships, compared to situations where
the distributors largely serve to avoid legal and
regulatory requirements.
(b) Report Required.--Not later than one year after the date of the
enactment of this Act, the Comptroller General shall submit a report
containing the results of the review required by subsection (a) to--
(1) the Committees on Armed Services of the Senate and the
House of Representatives;
(2) the Committee on Oversight and Reform of the House of
Representatives; and
(3) the Committee on Homeland Security and Governmental
Affairs of the Senate.
(c) Executive Agency Defined.--In this section, the term
``executive agency'' has the meaning given that term in section 133 of
title 41, United States Code.
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