2816.1 The contracting officer shall require offerors to submit a certification of current cost or pricing data for each solicitation. However, submission of actual cost or pricing data shall not be required when a contracting officer determines that prices are as follows:

1. (a) Based on adequate price competition;
2. (b) Based on established catalog or market prices of commercial items sold in substantial quantities to the general public; or
3. (c) Set by law or regulation.

2816.2 Price competition shall be considered to exist when two (2) or more responsible offerors make a responsive offer to a solicitation issued by the Board, and they compete independently for a contract to be awarded to the offeror with the lowest evaluated price. If price competition exists, the contracting officer may presume it is adequate unless:

1. (a) The solicitation is made under conditions that unreasonably deny to one or more known and qualified offerors an opportunity to compete;
2. (b) The low offeror has such a decided advantage that it is practically immune from competition; or
3. (c) There is a finding, supported by a statement of the facts and approved by the CCO, that the lowest price is unreasonable.

2816.3 Except as provided above in subsection 2815.1, certified cost or pricing data are required before accomplishing any of the following:

1. (a) The award of any negotiated contract expected to exceed one hundred thousand dollars ($100,000);
2. (b) The modification of any sealed bid or negotiated contract (whether or not cost or pricing data were initially required) when the modification involves a price adjustment expected to exceed one hundred thousand dollars ($100,000). This requirement shall not apply when unrelated and separately priced changes for which cost or pricing data would not otherwise be required are included for administrative convenience in the same modification;
3. (c) The award of a subcontract at any tier, if the contractor and each higher tier subcontractor have been required to furnish certified cost or pricing data, when the subcontract is expected to exceed one hundred thousand dollars ($100,000); or
4. (d) The modification of any subcontract covered by subparagraph (c) when the price adjustment is expected to exceed one hundred thousand dollars ($100,000).

2816.4 If certified cost or pricing data are needed for pricing actions over twenty-five thousand dollars ($25,000) and not in excess of one hundred thousand dollars ($100,000), certified cost or pricing data may be obtained.

2816.5 When certified cost or pricing data are required, the contracting officer shall require the contractor or prospective contractor to submit the following in support of any offer:

1. (a) The cost or pricing data; and

(b) A certificate of current cost or pricing data certifying that to the best of its knowledge and belief, the cost or pricing data were accurate, complete, and current as of the date of final agreement on price.

EDITOR'S NOTE: The following correction was made to subsection 2816.5: "contracting officer" was substituted for "contract officer".

2816.6 When cost or pricing data are required, the contracting officer shall make a cost analysis to evaluate the reasonableness of individual cost elements. In addition, the contracting officer shall make a price analysis to ensure that the overall price offered is fair and reasonable.

2816.7 When required, the contracting officer shall evaluate the separate cost elements and proposed profit of the offeror's or contractor's cost or pricing data, and the judgmental factors applied in projecting from the data to the estimated costs, in order to form an opinion on the degree to which the proposed costs represent what the contract should cost, assuming reasonable economy and efficiency.

2816.8 When appropriate, the contracting officer shall use the techniques and procedures outlined in this subsection in performing cost analysis:

(a) Verification of cost or pricing data and evaluation of cost elements;

(b) Evaluation of the effect of the offeror's current practices on future costs;

(c) Comparison of costs proposed by the offeror for individual cost elements with actual costs previously incurred by the same offeror or other cost estimates;

(d) Verification that the offeror's cost submissions are in accordance with the contract principles stated in section 2817; and

(e) Review to determine whether any cost or pricing data necessary to make the contractor's offeror accurate, complete, and current have not been either submitted or identified in writing by the contractor.

SOURCE: Final Rulemaking published at 37 DCR 4081, 4098-4100 (June 22, 1990).