TINA - Waivers
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Waivers
The Federal Acquisiton Regulation, at FAR 15.403-1(c)(4) authorizes the Head of the Contracting Activity (HCA) to waive the requirement of the Truth in Negotiation Act (TINA) that contractors certify that cost or pricing data they have submitted in support of a proposed contract price is current, accurate, and complete. Such waivers may be granted by the HCA in exceptional cases. Section 817 of the National Defense Authorization Act of Fiscal Year (FY) 2003 directs that specific guidance regarding circumstances under which it is appropriate to grant such a waiver.
The FY2003 Act stipulates that the grant of an exceptional case waiver shall be made only upon a determination that:
1) the propoerty or services cannot be reasonably be obtained under the contract
2) the price can be determined to be fair and reasonable without the submission of certified cost or pricing data; and
3) there are demonstrated benefits to granting the waiver.
Waivers for Part of a Proposed Price
A TINA waiver may be made applicable to part of a contractors proposed price when it is possible to clearly indentify that part of a contractors cost proposal to which the waiver applies as seperate and distinct from the balance of the contractors proposal. In granting a partial waiver, in addition to complying with the guidance previously noted, the HCA must address why it is in the government's best interest to partially waive TINA, given that the contractor has no objection to certifying the balance of its cost proposal.
Waivers for Unpriced Options
Because it has no price, an unpriced option cannot be subject to TINA certification requirements. The government cannot agree in advance to waive a TINA certification requirement for an unpriced option, and can only consider a waiver at such time as the contractor proposes a price that would otherwise be subject to a TINA certification.
References and Notes
Source: Office Of The Under Sectretary of Defense Memo dated, February 11, 2003.
