Formation, Evolution. & Devolution. The. of Commercial Items Acquisition in the U.S. Federal Government, Part 1 of 3:

Transcription

1 The Formation, Evolution & Devolution of Commercial Items Acquisition in the U.S. Federal Government, Part 1 of 3: A History of Federal Acquisition Reform Involving Commercial Items by JEAN MARCEAU LOHIER & RONALD FALCONE 12 Contract Management May 2015

2 A summary of the most important and influential acquisition reform legislation that has impacted the purchase of commercial items in the federal marketplace. Contract Management May

3 This three-part series of articles will provide an in-depth analysis of the history and the evolution of commercial items purchasing. This history will include the formal definition of commercial items purchasing, and the challenges facing the industry with increasing regulations that arguably diverge from standard commercial practices and more specifically the requirements for cost or pricing data since in the commercial marketplace (private sector), there are no comparable requirements. Throughout these articles, the discussion and analysis will revolve around two common principles: 1) commercial item determination, and 2) price reasonableness determination. It is useful from a contextual perspective to review some of the major acquisition reform initiatives of the second half of the 20th century and their significant impact on the acquisition of commercial items. The General Services Administration (GSA) was created from the Federal Property and Administrative Service Act of Since the inception of the Federal Supply Schedule (FSS) program in 1955, the U.S. federal government has implemented through the Schedules streamlined programs for purchasing commercial products and services without having to conduct a drawn out, lengthy procurement process, as is required for noncommercial items or government-unique supplies and/or services. The creation of the GSA FSS program (a.k.a., the Multiple Award Schedules (MAS) program) was the first step in streamlining the purchase of commercial products. 1 Many contracting professionals and industry leaders would consider the MAS program and the landmark Federal Acquisition Streamlining Act (FASA) of two of the most important reform initiatives of the 20th century. FASA established a strong preference for buying commercial off-the-shelf (COTS) items and nondevelopmental items (NDIs) to the maximum extent practicable and thus created the federal government s commercial item supermarket : Goods or services that meet this threshold definition for commercial items are exempted from certain statutory and regulatory acquisition provisions. In particular, they are exempted from cost accounting standards and certified cost or pricing data requirements. Of relevance here, the Clinger-Cohen Act established another benefit for items falling within the definition of commercial item it allowed for simplified procedures for the acquisition of commercial items with a purchase of $5 million or less, also known as the test program for certain commercial items. 3 Major Federal Acquisition Reform Timeline Truth in Negotiations Act (TINA), Now Known as Truthful Cost or Pricing Data The rapid expansion of the defense budget in the 1940s and 1950s exposed circumstances in which the government was clearly at a disadvantage with respect to contract price negotiations. The government needed a mechanism to place itself on equal footing (i.e., informational parity) at the negotiating table as a way to ensure that prices paid were fair and reasonable, especially in procurements where there was an absence of adequate price competition. Created in 1962, TINA was created for the purpose of establishing a standard for measuring fair and reasonable pricing of a contract. The act specified that contractors were to certify that the cost or pricing data furnished were accurate, complete, and current (i.e., not defective). TINA also granted the government the right to obtain a remedy due to defective cost/price data that the government relied on to its detriment. This remediation allowed the government to assert a defective pricing claim against the contractor by demanding a compensatory reduction in the contract value. 14 Contract Management May 2015

4 TINA did not initially define the term cost or pricing data: The definition was established through legislative intent, regulations, and in decisions by the courts and [board of contract appeals]. Congress initial concern in 1962 was to assure that the disclosure of historical cost facts could be verified objectively to reassure that the disclosure of such facts was accurate, complete, and current. 4 In 1986, TINA was significantly amended to include the following statutory definition of cost or pricing data: [T]he term cost or pricing data means all information that is verifiable and that, as of the date of agreement on the prices of a contract (or the price of a contract modification), a prudent buyer or seller would reasonably expect to affect price negotiations significantly. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived. 5 The 1986 TINA amendments also expanded the exception for commercial items acquisitions as follows: The statutory exception from TINA s coverage for catalog or market price of commercial items sold in substantial quantities to the general public was eliminated and the exception for commercial items was significantly expanded. 6 Subsequently, in 1987, TINA was further revised to clarify the definition of cost or pricing data as follows: [T]he term cost or pricing data means all facts that, as of the date of agreement on the prices of a contract (or the price of a contract modification), a prudent buyer or seller would reasonable expect to affect price negotiations significantly. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived. 7 The current TINA requirements address the submission of other information, and stipulate that the contracting officer shall require submission of data other than certified cost or pricing data to the extent necessary to determine the reasonableness of the price: TINA now recognizes a new category of information, termed information other than cost or pricing data, which agencies may request even if cost or pricing data are not required. A contractor need not certify the currency, accuracy, or completeness of information falling within this new category, but this does not relieve the contractor entirely from liability for defects or omissions when such information is submitted to the government. 8 Are you looking for an 8(a), Woman Owned, Small Disadvantaged Contractor? Per 10 U.S. Code 2306a, Cost or Pricing Data: Truth in Negotiations, even if the exceptions to the submission of certified cost or pricing data exist (for a contract, a subcontract, or modification of a contract or subcontract): PROFESSIONAL SERVICES: Administrative Support, Staff Augmentation, Health Care Services (LPN, Physician, Nurse Practitioner), Management Consulting Services, Training Development and Delivery, Accounting Services, Facilities Support Services, Acquisition Support, SETA Support Services INFORMATION TECHNOLOGY SERVICES: IT Consulting Services, Computer Programming and Design, Helpdesk, Data Processing, Hosting, and Related Services, Hardware and Software Procurement COMMITMENT: Reliable and qualified resources available. Preference will be given to veterans. Sensitive to client budget constraints. Access to qualified teaming partners. Experience in executing SCA contracts and on boarding from incumbents. Low Fee, G&A, and Overhead. CONTRACT VEHICLES: SeaPort-e Prime Contract Number: N D-6557 efast Prime Contract Number: DTFAWA13A (a) can be awarded sole source contract under FAR For contracting assistance, contact the SBA Pittsburgh District Office at Contact us: Dr. Jyothi Gella President, Gella LLC (814) jyothi@gella-llc.com 8(a) woman owned SDB EDWOSB located in HUBZone D-U-N-S Number: CAGE code: 33QT0 We are here to serve you Submission of certified cost or pricing data shall not be required in the case of a contract, a subcontract, or modification of a contract or subcontract A) for which the price agreed upon is based on i) adequate price competition; or ii) prices set by law or regulation; and B) For the acquisition of a commercial item. 9 It is stated that: When certified cost or pricing data are not required to be submitted under this section for a contract, subcontract, or modification of a contract or subcontract, the contracting officer shall require submission of data other Contract Management May

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6 than certified cost or pricing data to the extent necessary to determine the reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract. 10 It is important to note that the terms catalog or market prices are not detailed/referenced anywhere in the citations. [W]hen certified cost or pricing data are not required to be submitted for a contract, subcontract, or modification of a contract or subcontract, the contracting officer shall require submission of data other than certified cost or pricing data 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 for which the price agreed upon is based on adequate price competition or prices set by law or regulation, the contracting officer shall require that the data submitted include, at a minimum, appropriate information 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. 11 In addition to the lack of reference to catalog or market prices as a basis for relieving the contracting officer from requesting the inclusion of minimum appropriate information on prices, there is no explicit exception for commercial items. The only explicit exception relating to commercial items is the requirement for certified cost or pricing data. Thus, the requirement for the submission of data other than certified pricing data is valid for commercial items acquisitions. 12 The importance of this will be explained further in this series of articles. Moreover, it is important to note that even when certified cost or pricing data for commercial items is not required, the requirements to provide data other than cost or pricing data can create a burden on contractors specifically small businesses. The Competition in Contracting Act (CICA) The next major reform initiative was the CICA of 1984, which became the foundation for the Federal Acquisition Regulation (FAR). CICA mandated that all procurements be awarded based on full and open competition unless regulatory/statutory exclusions applied. Otherwise, sole source or limited competition procurements required formal justifications for not using full and open competition. In addition, CICA reinforced the use of the GSA MAS program as complying with the definition of full and open competition both at the Schedule award level and at the ordering level. 13 CICA competitive standards do not apply to prospective contracts that will be awarded using simplified acquisition procedures of FAR Part 13 or other contracting procedures that are expressly authorized by statute, which include the competitive procedures that apply to orders placed under the GSA [MAS] Program. There are also fair-opportunity competitive procedures that apply to orders placed against multiple award, task order, and delivery order contracts, such as governmentwide acquisition contracts or multiple agency (or award) contracts. 14 CICA coined the term full and open competition and directed agencies to implement policies to promote the use of full and open competition, as well as promote the use of commercial products whenever practicable. The act also declared that the GSA MAS program met the definition of full and open competition as long as 1) participation in the program was open to all responsible sources (i.e., continual on-ramps), and 2) orders placed under such programs are subject to multiple award fair opportunity. Thus, CICA became the first statutory basis for commercial item contracting. Additionally, CICA also addressed commercial contracting practices with language added to exempt the requirement for cost or pricing data when establishing catalog or market prices of commercial items sold in substantial quantities to the general public. Until 1984, the federal government s mechanism for purchasing commercial items was the GSA MAS program. This would change with the Federal Acquisition Streamlining Act the most important and sweeping acquisition reform initiatives that permitted commercial item purchases in the open market. Federal Acquisition Streamlining Act (FASA) Ten years after CICA, another landmark federal acquisition reform initiative transpired in the form of the FASA of The Federal Acquisition Streamlining Act of 1994 is the most significant change in law affecting procurement in five decades. It will transform the way we buy goods and services. We have turned the system upside down now we must tell the contractor what we need the system to do, not how to do it. 16 Prior to FASA, there was no preference, nor clearly defined mandate, for the acquisition of commercial items in the open market. As a result, government agencies experienced several incidents involving highly negative public exposures regarding the procurement of such things as $100 hammers and $3,000 toilet seats. The government was repeatedly found to be paying steep prices for common commercial items, especially for where such common items were purchased to support the military s needs. Contract Management May

7 FASA was intended to alleviate the burdensome bureaucracy of purchasing commercial items by providing balance between efficient streamlined procedures enjoyed by contractors in the commercial marketplace, and the numerous federal regulatory and statutory encumbrances faced by federal contractors: This law was designed to create a more equitable balance between governmentunique requirements and the need to lower the government s cost of doing business, and also was designed to overhaul the federal government s cumbersome and complex procurement system. 17 One of the key provisions of FASA was the strongly stated preference for buying COTS and NDI items to the maximum extent practicable, rather than purchasing through the detailed bidding process required for government-unique items. To encourage the private sector to sell to the government, the statute defined commercial items more broadly and eliminated numerous statutory requirements for purchasing such items. The act also created the streamlined procedures of FAR Part 12 for the acquisition of commercial items, 18 which was intended to simplify the process of preparing and issuing solicitations, and evaluating offers for commercial items consistent with customary commercial practices. 19 With FASA, the FAR was significantly reorganized with the newly created FAR Part 12 serving as formal policy for open market!? purchases of commercial items. FAR Part 12 incorporated more streamlined purchasing practices and free market principles while exempting the TINA requirement of the submission of certified cost or pricing data by offerors. FASA also provided the impetus for the enormous growth in FSS sales as agencies were given the green light to buy more commercial products and services, hence the shift toward more commercial items acquisitions, and away from governmentunique requirements. This expansion also coincided with a similar shift from purchasing products/supplies to purchasing more services and solutions. For instance, commercial items (goods or services) that meet the threshold definition are exempted from cost accounting standards and certified cost or pricing data (under TINA) requirements. Information Technolog Reform Act (ITMRA) Just two years after the enactment of FASA, the U.S. Congress passed legislation enacting two additional acquisition reform initiatives: the ITMRA of 1996 and the Federal Acquisition Reform Act (FARA) of ITMRA s intent was to introduce commercial-like purchasing into federal IT procurements and accomplished several objectives: 1) it allowed agencies to procure IT directly without requiring delegation of procurement authority from GSA (i.e., a repeal of the Brooks Act of 1965), and 2) it formally designated an agency chief information officer position. Federal Acquisition Reform Act (FARA) FARA picked up where FASA left off by enacting the following: It authorized the Commercial Items Test Program by raising the simplified acquisition threshold to $5 million (currently $6.5 million) for the acquisition of commercial items, It required the FAR to list specific laws that were not applicable for the acquisition of COTS items, 20 and It exempted commercial items acquisition from the requirement for the submission of certified cost and pricing data with the offerors proposal. Subsequently, in 1997, ITMRA and FARA were combined and renamed the Clinger- Cohen Act of Clinger-Cohen Act (CCA) The CCA of amended the TINA exception for commercial items that was applicable to noncommercial items, and made it a requirement that the commercial item procured need not be sold in substantial quantities to the general public or at established catalog or market price to be exempt. The CCA also created a preference for establishing indefinite delivery/ indefinite quantity contracts to support the government s procurement of recurring product or service items. The Services Acquisition Reform Act (SARA) The SARA of 2003 established a chief acquisition officer position for civilian agencies along with the creation of the Chief Acquisition Officer s Council. It was section 1432 of SARA that amended FASA to allow the use of time-and-materials contracts to procure commercial services under FAR Part 12. As the SARA legislation progressed in Congress, the conference report for section 1432 underscored that the contracting officer s option to use time-and-materials contracting was not intended to preempt the preference for performance-based, fixed-price contracting for the acquisition of commercial services. Although enacted in 2003, it was not incorporated into the FAR until February Contract Management May 2015

8 The Federal Information Technology Acquisition Reform Act (FITARA) The FITARA of 2014, which led to the formalization of the chief information officer (CIO) role for each agency and the establishment of a CIO Council, is the most recent piece of legislation. The FITARA requires the CIO Council to implement: Guidance to clarify that the preference for commercial items in section 3307 of title 41, United States Code, includes proprietary, open source, and mixed-source software that meets the definition of the term commercial item in section 103 of title 41, United States Code, including all such software that is used for non-government purposes and is licensed to the public. 23 "Prior to 2010, the FAR did not formally define the term certified cost or pricing data." FAR-Related Changes to TINA Prior to 2010, the FAR did not formally define the term certified cost or pricing data. In 1997, FAR Part 15 had undergone a major rewrite, which included the term information other than cost or pricing data: Cost or pricing data (10 U.S.C. 2306a(h) (1) and 41 U.S.C. 254b) means all facts that, as of the date of price agreement or, if applicable, an earlier 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. Cost or pricing data are data requiring certification in accordance with Cost or pricing data are factual, not judgmental; and are verifiable. While they do not indicate the accuracy of the prospective contractor s judgment about estimated future costs or projections, they do include the data forming the basis for that judgment. Cost or pricing data are more than historical accounting data; they are all the facts that can be reasonably expected to contribute to the soundness of estimates of future costs and to the validity of determinations of costs already incurred. They also 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-orbuy decisions; estimated resources to attain business goals; and information on management decisions that could have a significant bearing on costs. Information other than cost or pricing data means any type of information that is not required to be certified in accordance with and is necessary to determine price reasonableness or cost realism. For example, such information may include pricing, sales, or cost information, and includes cost or pricing data for which certification is determined inapplicable after submission. 24 The TINA requirement for data other than certified cost or pricing data found its way into the FAR and made it easier for contracting officers to require data other than certified pricing data, even for FAR Part 12 commercial items acquisitions. In 2010, the Federal Acquisition Circular (FAC) clarified the terminology originally used in the FAR Part 15 rewrite to make it consistent with TINA by refining the regulatory definition of cost or pricing data as follows: Changed the term information other than cost or pricing data to data other than cost or pricing data, Added the definition of certified cost or pricing data as well as redefined the term cost or pricing data, Clarified the distinction between certified cost or pricing data and data other than certified cost or pricing data, and FAR Order of Preference to Establish Price Reasonableness FAR pricing policy stipulates that for contracting officers to establish price reasonableness, they: Shall obtain certified cost or pricing data when required, along with data other than certified cost or pricing data as necessary to establish a fair and reasonable price; or Shall obtain data other than certified cost or pricing data as necessary (when certified cost or pricing data are not required): o o No additional data from the offeror, if the price is based on adequate price competition, except as provided by (b), Data other than certified cost or pricing data such as Data related to prices (e.g., established catalog or market prices, sales to nongovernmental and governmental entities, etc.): Relying first on data available within the government; and Second, on data obtained from sources other than the offeror and, if necessary, on data obtained from the offeror. This policy also mandates that requesting unnecessary data can lead to increased proposal preparation costs, generally extend acquisition lead time, and consume additional contractor and government resources. Use techniques such as, but not limited to, price analysis, cost analysis, and/or cost realism analysis to establish a fair and reasonable price. If a fair and reasonable price cannot be established by the contracting officer from the analyses of the data obtained or submitted to date, the contracting officer shall require the submission of additional data sufficient for the contracting officer to support the determination of the fair and reasonable price. Contract Management May

9 Clarified the requirements for submission of cost or pricing data. 25 Certified cost or pricing data means cost or pricing data that were required to be submitted in accordance with FAR and and have been certified, or are required to be certified, certification states that, to the best of the person s knowledge and belief, the cost or pricing data are accurate, complete, and current as of a date certain before contract award. Cost or pricing data are required to be certified in certain procurements (10 U.S.C. 2306a and 41 U.S.C. 254b). 26 Data other than certified cost or pricing data means pricing data, cost data, and judgmental information necessary for the contracting officer to determine a fair and reasonable price or to determine cost realism. Such data may include the identical types of data as certified cost or pricing data, consistent with Table 15 2 of , but without the certification. The data may also include, for example, sales data and any information reasonably required to explain the offeror s estimating process, including, but not limited to 1) The judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data; and 2) The nature and amount of any contingencies included in the proposed price. 27 Although TINA has never explicitly defined the term certified cost or pricing data, the FAR defines cost or pricing data to mean certified cost or pricing data. FAC attempted to clarify the confusion surrounding the term cost or pricing data as follows: Clarifies responsibilities regarding the request for, and submission of, data other than certified cost or pricing data to establish fair and reasonable pricing, both in the case when certified cost or pricing data is required and is not required. 28 [W]hen certified cost or pricing data are required, data other than certified cost or pricing data may also be required. Additionally, cost analysis can be used when an item that was thought initially to be commercial is found not to have sufficient sales data or other information for determining the price to be fair and reasonable. In each situation, and in accordance with FAR , the contracting officer must exercise business judgment as to the level and type of data needed to determine that prices are fair and reasonable following the order of preference. 29 This reference has huge implications that should squelch any misunderstandings/ misperceptions that data other than certified cost or pricing data can be requested in order to establish price reasonableness, even for commercial items acquisitions. In the FAR Council s attempt to clarify the TINA and FAR definitions of cost or pricing data, there is still confusion among contracting professionals as to whether a contracting officer can request data other than certified cost or pricing data, even if TINA requirements are exempt from procurement. The FAR Council s response in FAC reiterates that: No negotiated procurements, including procurements of commercial items, are exempt from a contracting officer requiring submission of data other than certified cost or pricing data, when it is needed to determine a fair and reasonable price. 30 It is important to note that the FAC rule did not add any constraints on contracting officers seeking to obtain the necessary data/information to determine price reasonableness. If the TINA exemption applies (prohibiting a request for certified cost or pricing data), contracting officers may request (via FAR ) data (if necessary to determine price reasonableness) that is identical data as certified cost or pricing data 31 : This rule neither expands nor diminishes the existing rights of contracting officers to request cost or pricing data (whether certified or other than certified) or other information, or the existing responsibilities of the offeror to submit such data or other information. Similarly, the rule does not require, encourage, or authorize contracting officers to obtain cost or pricing data or other information unless it is needed to determine that prices offered are fair and reasonable. 32 Additionally, the FAR Council stated: However, when certified cost or pricing data are required, data other than certified cost or pricing data may also be required. Additionally, cost analysis can be used when an item that was thought initially to be commercial is found not to have sufficient sales data or other information for determining the price to be fair and reasonable. In each situation, and in accordance with FAR , the contracting officer must exercise business judgment as to the level and type of data needed to determine that prices are fair and reasonable following the order of preference at FAR (a). 33 Also of significance, the U.S. Code underwent a change in the way it refers to popular statutes such as TINA. In particular, Title 41 was revised to remove all references to names of acts such as TINA (Truth in Negotiations Act) and now refers to them as Truthful Cost or Pricing Data. The FAC , effective May 29, 2013, amended the FAR and renamed TINA Truthful Cost or Pricing Data 34 to correspond to the statutory title changes. Remedies for Defective Cost or Pricing Data As previously discussed, any violation of TINA can be considered a violation of law (i.e., defective pricing ) and thus, subjects a federal contractor to potential unilateral price reductions and civil and criminal liabilities. FAR instructs contracting officers to insert the clause , Price Reduction for Defective Cost or Pricing Data, in solicitations and contracts for negotiated procurements when it is contemplated that cost or pricing data will be required from the 20 Contract Management May 2015

10 contractor or any subcontractor. This clause is normally not included in procurements using the policies of FAR Part 12. Stay tuned to Contract Management Magazine for part two of this series, where we will discuss the evolution of commercial items purchases in the open market with the creation of FAR Part 12 and the subsequent issues surrounding its use, especially revolving around the commercial item determination and price reasonableness determination, thus the requirement for cost or pricing data. The authors will also explore the recent attempts to narrow the regulatory definition of a commercial item. CM ABOUT THE AUTHORS JEAN MARCEAU LOHIER, CPCM, CFCM, is a senior contracts manager with AT&T Government Solutions, Inc. He earned a graduate certificate in procurement and contracts management from the University of Virginia and a graduate certificate in paralegal studies from Georgetown University. He has published several professional articles and taught several courses involving contract management. He has been an active NCMA member for the past 11 years and currently serves on the Tysons Corner Chapter board of directors. RONALD FALCONE, CPCM, NCMA FELLOW, is co-founder and executive vice president of Distributed Solutions, Inc., where he oversees all aspects of contract management. As an active member of NCMA, he currently serves on the National Board of Directors and previously served as president of the Tysons Corner Chapter, in addition to other chapter officer roles. He is also an adjunct professor at the University of Virginia s Procurement and Contracts Management Program. He holds undergraduate and graduate degrees in business administration. Send comments about this article to cm@ncmahq.org. ENDNOTES 1. See John Chierichella and Jonathan Aronie, GSA Schedule Handbook (LegalWorks, 2012). 2. Pub. L Bloomberg BNA, The Mid-90s Commercial Item Reforms: Turning Back the Clock? (2012), available at publications_article.aspx?articlekey= DCA Contract Audit Manual, October 9, 2014, available at other_contract_audit_assignments.pdf. 5. Tim A. Di Guiseppe, Understanding the Truth and Negotiations Act in Federal Procurement (2011), available at (emphasis added). 6. Steve W. Allen, TINA Turns 40, Contract Management Magazine (September 2002). 7. See Di Guiseppe, op. cit. 8. See Allen, op. cit U.S.C. 2306a, available at edu/uscode/text/10/2306a. 10. Ibid. 11. Ibid. 12. See ibid. 13. See The Competition in Contracting Act (CICA), available at competition-contracting-act-cica. 14. Ibid. 15. Pub. L , 108 Stat (1994); see STATUTE-108-Pg3243.pdf. 16. Dr. Paul Kaminski, resources/tech_docs/gsam3/gsamv3.pdf. 17. Ibid. 18. Subpart 12.6, Streamlined Procedures for Evaluation and Solicitation for Commercial Items, available at gov/far/ current/html/fartocp12.html. 19. See FAR FAR Pub. L GAO Report GAO , Progress in Implementing the Services Acquisition Reform Act of 2003, available at assets/250/ pdf billsthisweek/ /bills-113hr1232-sus. pdf. 24. Federal Acquisition Circular (FAC) 97-2, available at changes/fac/fac97_2.htm. 25. Derived from FAC , FAR case Federal Register (August 30, 2010), available at /2010/08/30/ /federal-acquisitionregulation-federal-acquisition-circular introduction. 26. Ibid. 27. Ibid. 28. Ibid. 29. Ibid. 30. Ibid. 31. Ibid. 32. Ibid. 33. Ibid U.S.C. 35, Truthful Cost or Pricing Data, and 10 U.S.C. 2306a, Truth in Negotiations (see ). Contract Management May