Factors in Proper Disclosure Under TINA

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Forms of Disclosure

"Disclosure is not confined to a formal, written submission. Instead the contractor's disclosure obligation is fulfilled if the Government obtains the data in question in some other manner or had knowledge...[It] must be meaningful, regardless of the form it takes[1]. Whether there has been a meaningful disclosure depends upon application of a "rule of reason" to the particular circumstances of each case[2].

Meaningful Disclosure

To pass muster, "the disclosure must be meaningful, regardless of the form it takes[3]. This standard focuses, at least in part, upon whether the contractor furnished data in a usable, understandable format. Providing data with no relevance, or not providing the required relevance of the data will not meet the standard. Must like opening a door to a room full of filing cabinets or stacks of paper on a table, and dumping an incomprehensible volume of data of the Government, would not qualify as a "meaningful disclosure.

Rule of Reason

Adequacy of disclosure depends upon a highly fact-specific assessment in each case, which is described as a "rule of reason." Each individual case must be resolved on its own particular facts, by application of a rule of reason to determine whether the data was conveyed to the Government in a reasonably meaningful fashion. It forces the hard questions about the parties knowledge, nature of the data, relevance of the data, was the data complete, or did the contractor withhold certain data.

Relative Knowledge of Parties

If a contractor does not fully disclose, withholds all relative data, or keeps a secret, the contractor will almost surely lose a defective pricing claim.[4].

Equal Footing

Did the contractor disclose the facts sufficiently to level the field with the government to put the parties on equal footing to negotiate the contract.

Under the Truth in Negotiations Act, a contractor is obligated to disclose all facts necessary to place the Government in a position of equal footing to the contractor's with respect to making judgments on pricing. This standard focuses upon the balance of knowledge between the parties.



References

  1. ↑ Aerojet Ordnance Tennessee, ASBCA No. 36089, 95-2 BCA p27,922 at 139,437.
  2. ↑ Plessey Industries, ASBCA No. 16720, 74-1 BCA p10,603.
  3. ↑ Appeal of Aerojet Ordnance Tennessee
  4. ↑ Sylvania Elec. Products, Inc. v. U.S.
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