Contract Management: DOD Needs Better Guidance on Granting Waivers for Certified Cost or Pricing Data
Released: 2002-04-22T00:00:00

Letter

Background

Historically, a principal concern in noncompetitive contracting situations has been how to ensure that the prices proposed by contractors are fair and reasonable. Recognizing this risk, the Congress enacted the Truth in Negotiations Act in 1962. The act represents the government’s key safeguard against inflated contract prices on noncompetitive contracts. The act requires contractors and subcontractors to provide the government with cost or pricing data supporting their proposed prices and to certify that the data are accurate, complete, and current. If the government later discovers that the contractor submitted data that were not accurate, complete, and current, the act allows the government to pursue remedies, such as a reduction in the contract price. Interest and penalties can also be assessed under certain conditions. These provisions are designed to give the government the information it needs to ensure fair and reasonable contract prices.

The negotiation process with certified cost or pricing data can be lengthy, and the documentation requirements for both sides can be extensive. The process starts when the contractor provides estimated costs for subcontracts and materials along with a detailed breakdown of the work to be performed, including estimated manufacturing labor costs, engineering costs, tooling costs, and other direct costs for each segment of the work. As figure 1 shows, DOD contracting officers then review these data along with price analysts from the Defense Contract Management Agency and auditors from the Defense Contract Audit Agency. The government and the contractor then negotiate cost elements to settle on a price. Once this is done, the contractor certifies the data as accurate, complete, and current. DOD may conduct an audit after the contract’s award.

When enacted in 1962, the Truth in Negotiations Act did not include an explanation of what constituted an “exceptional case” and it has never been amended to define that term. Up until 1995, the Federal Acquisition Regulation (the implementing regulation) largely mirrored the Truth in Negotiations Act. The waiver provision in the Federal Acquisition Regulation was amended in 1995 to allow contracting officers to waive data when sufficient information was available to determine a fair and reasonable price. However, the regulation still provided little guidance on the circumstances that would warrant a waiver in a particular case. The first sentence of the current provision states that the “head of the contracting activity . . . may, without power of delegation, waive the requirement for submission of cost or pricing data in exceptional cases.”The waiver provision also states that the head of the contracting activity “may consider waiving the requirement if the price can be determined to be fair and reasonable without submission of cost or pricing data.” Aside from stating that a waiver may be considered in this situation, the regulation provides no further guidance on the circumstances that would warrant a waiver. Finally, the regulation includes no other guidance to help agency officials weigh the potential risks and benefits of granting a waiver in a particular case, as opposed to obtaining certified data.

The conferees agree that the term “exceptional circumstances” requires more than the belief that it may be possible to determine the contract price to be fair and reasonable without the submission of certified cost and pricing data. For example, a waiver may be appropriate in circumstances where it is possible to determine price reasonableness without cost or pricing data and the contracting officer determines that it would not be possible to enter into a contract with a particular contractor in the absence of a waiver.

In response to these concerns, DOD was directed in 1998 to work with appropriate executive branch officials to clarify situations in which an exceptional case waiver may be granted. According to DOD, no actions have been taken to clarify when waivers should be granted.

DOD’s Use of Waivers for Certified Data

Using DOD’s contract database, we identified 20 waivers valued at more than $5 million each in fiscal year 2000. The total value of these waivers was about $4.4 billion. As table 1 shows, six buying organizations approved these waivers. Five of the contracts included waivers that covered multiple-year purchases. Six waivers that we identified involved large, complicated acquisitions, which combined represented about 94 percent of the dollar value of the waivers we reviewed. (See table 2.)

We could not assess the extent to which waivers are being used at DOD because DOD’s contract database is unreliable. However, for the contract actions we examined, we were able to verify data by reviewing the actual contracts and supporting documents.

Reasons Why Waivers Were Used

Contract pricing or waiver documents for all of the cases we reviewed stated that sufficient information was available to determine the price to be fair and reasonable without the submission of cost or pricing data and did not cite other circumstances to justify the waivers. This justification complies with the Federal Acquisition Regulation. In three cases, our review found that other factors strongly influenced the decision to waive certified cost or pricing data. These involved purchases for crashworthy fuel systems and combat vehicle track as well as a foreign military sale of F-16 fighter aircraft to Greece.

In the crashworthy fuel system purchase, the company’s business model requires the company to sell its products at catalog prices rather than use a traditional government approach based on certified cost or pricing data, which the company never provides. This unique supplier also developed all of its products and maintains a production base exclusively at the company’s expense. In the case of the purchase of combat vehicles track, the company’s commercial accounting system did not segregate unallowable costs from its overhead accounts, and the company did not want to run the risk of government claims and possible damage to its reputation because of the inadvertent failure to exclude such costs from government proposals. As a result, the company would not provide certified data. The Army and the company agreed to reduce general and administrative costs allocated to this buy by 25 percent to compensate for possible unallowable costs.

Finally, in the F-16 sale, two approaches were considered. The first called for accepting the price offered by the contractor during a competition between different aircraft types. The second called for traditional negotiations based on the certification of cost or pricing data. The contractor objected to providing certified data, arguing that adequate price competition had occurred. As a compromise, the Air Force waived the certification requirement but obtained and analyzed pricing data from the contractor.

Data and Analyses Used to Arrive at Prices

Contracting officers responsible for the 20 waivers we reviewed used a variety of techniques and approaches—sometimes a combination of several—to determine whether prices were fair and reasonable.

Many of the contracting officers conducted a price analysis. Under a price analysis, the contracting officer reviews the proposed price for the contract without a breakdown of supporting costs. In 11 cases, the contracting officers compared contractors’ proposed prices with prices that had been negotiated previously for the same systems with certified data. In some cases, if a significant amount of time had elapsed since the previous price had been established, the contracting officers adjusted the price to account for inflation and quantity changes.

In four cases, contracting officers conducted more thorough analyses using the contractors’ cost data, but the contractors were not required to certify the data as accurate, complete, or current. Under a cost analysis, the contracting officer reviews a breakdown of supporting costs in terms of materials, labor, and various overhead accounts. Such a breakdown, for example, could list various prices for materials as well as anticipated hours and rates for labor.

In five cases, a variety of other pricing techniques were employed, including the use of regression analyses, learning curves, and parametric estimates.

Table 3 summarizes primary techniques employed on each of the 20 waivers we reviewed.

Risk Depends Largely on Certainty of Data Being Used to Support Analyses

The government was at a higher risk of inflated pricing in situations where there was a lot of uncertainty about the data used to support analyses and a lower risk in situations where there was less uncertainty. Factors that increased uncertainty included changes in the design of the weapon system since a previous purchase, changes in the processes or equipment used to produce the system, or even changes in the amount being ordered by the government. More indirect factors contributing to uncertainty include mergers and acquisitions, cost-cutting measures, or changes in relationships with subcontractors. All of these things can significantly affect the costs of a product.

The practice of relying on previously certified data that are fairly old also increased risk—principally because it increased the potential for more uncertainty. In several cases we reviewed, the data relied on were 2 to 3 years old. At times, contracting officers took action to make up for the uncertainties associated with the time elapsed, such as adjusting the price to account for inflation. However, the contracting officers still could not be assured that all other conditions—such as production processes, business processes, subcontractor relationships— affecting the purchase remained the same. One case we identified, the Navy’s purchase of spare parts for Orion radar systems, was particularly risky—not only because the contracting officer relied on 7-year-old data, but the data had never been certified.

We also identified factors and practices that helped to minimize risk. Of course, relying on data that were certified fairly recently for systems where conditions had not changed lowered the risk to the government. This occurred in several cases that we reviewed.

In other cases, contracting officers employed pricing experts from the Defense Contract Management Agency and the Defense Contract Audit Agency to help them analyze costs and/or prices. Such officials lent substantial expertise and experience to the negotiation process by performing audits and reviews of the contractor’s purchasing systems, estimating systems, overhead rates, and operations in general.

In some cases, government and contractor personnel worked collaboratively and effectively within integrated product teams to analyze costs and prices. In doing so, they shared and used the same data to come to a consensus on issues affecting contract price. This arrangement also served to minimize the development of adversarial relationships between the contractor and the government.

Another factor that could lower risk is the contractor’s having sound estimating and purchasing systems—ones approved by government organizations. Such systems are integral to producing credible proposals. Nearly all of the contractors in the cases that we reviewed had such systems, and in a few cases, allowed government representatives direct access to the data within the systems. Specific examples highlighting risk factors are provided in the figure below.

DOD’s Guidance on the Waiver Process Is Not Adequate

DOD’s guidance on the waiver process is not adequate. First, DOD does not have guidance that would help clarify for buying organizations what an “exceptional” case might actually entail. The Truth in Negotiations Act does not define exceptional cases and the regulatory guidance is limited. The current guidance states that the head of the contracting activity may consider waiving the requirement if the price can be determined to be fair and reasonable without the submission of cost or pricing data. But the guidance cites only one example of a situation where a waiver may be granted: “if cost or pricing data were furnished on previous production buys and the contracting officer determines such data are sufficient, when combined with updated information.”

The trade-offs and complexities involved in making the decision to grant a waiver require more guidance. On the one hand, the certification process greatly lowers the risk of inflated pricing and provides the government with recourse in the event that items are found to be defectively priced. In fact, in fiscal year 2000, Defense Contract Audit Agency audits related to the Truth in Negotiations Act identified potential cost savings of $4.9 billion. On the other hand, the certification process can be costly to both the contractor and the government in terms of time, effort, and money. And there may be times—such as when there is an urgent need for the item or when the same item was purchased very recently using certified data—when the government may be willing to take a greater risk. By developing more detailed guidance, DOD could help buying organizations weigh these trade-offs and avoid using the waiver process as merely a shortcut to getting an item, even an expensive weapon system, quicker and easier.

Second, DOD does not have guidance that would help buying organizations draw the line between what type of data and analyses would be acceptable or not and what kinds of outside assistance, such as DOD contracting and pricing experts, should be obtained. Our analysis showed that there was a wide spectrum in the quality of the data and analyses being used. On one end, there were situations where the analysis focused only on the bottom-line price and not the supporting costs and where the data being relied on were exceptionally old. On the other end, were situations where the negotiations were based on data that were very recently certified with little change in quantity. In addition, in some situations, other risk mitigating techniques were employed, such as involving contract and pricing experts. Clearly, it is in DOD’s interest to encourage contracting officers to reduce the risk of inflated pricing as much as possible by conducting more rigorous analyses and taking advantage of DOD’s pricing and contracting expertise.

Third, we identified several issues, not covered within existing guidance, where there was some confusion on what the law and regulations allowed. For example, contracting officers’ views differed on whether the government can obtain a waiver that covers only a portion of costs associated with a procurement. In purchasing Apache helicopters, for example, the government, in fact, obtained a partial waiver covering subcontractor costs and recurring labor costs, estimated at $462.6 million of the total $2.3 billion contract. In contrast, in another case, the contracting officer told us that the regulations do not provide for partial waivers.

Another question that could be clarified is whether waivers can be applied to planned, but unpriced, contract options in later years. Specifically, under contracts which have options that are not priced or under which the price can be redetermined, it is not clear whether a waiver obtained in the first year of the contract should apply to price negotiations that occur in subsequent years of the contract. This question came up with the Army’s purchase of combat vehicle track from Goodyear Tire and Rubber. In another related situation involving the Army’s purchase of Black Hawk helicopter engines from General Electric, the waiver ultimately covered planned purchases over 5 years under two separate contracting actions.

Conclusions

For the majority of its sole-source purchases, DOD minimizes the risk of inflated pricing by requiring its contractors, under the Truth in Negotiations Act, to provide detailed cost or pricing data to support their proposed prices and certify that the data are accurate, complete, and current. But for several billion dollars in contracts, DOD is at a greater risk of inflated pricing because it is waiving the requirement. In some cases, contracting officers still make a considerable effort to reduce risks, such as performing detailed price or cost analyses, involving pricing and contracting experts, and relying on data that were recently certified. By developing guidance to encourage all contracting officers to take such steps and to help buying organizations weigh the decision to grant waivers, DOD could reduce its risk of inflated pricing even further.

Recommendations for Executive Action

We recommend that the secretary of defense work with the Office of Federal Procurement Policy to develop guidance to be included in the Federal Acquisition Regulation to minimize the risk of inflated pricing when waivers for certified cost or pricing data are granted to its contractors and subcontractors. This guidance should (1) clarify situations in which an exceptional case waiver may be granted, (2) identify what type of data and analyses are recommended for arriving at a price when waivers are granted, and (3) identify what kinds of outside assistance should be obtained.

We also recommend that the secretary develop guidance that clarifies whether the government can obtain a partial waiver and what should be done with contracts that have options that are not priced. We further recommend that the secretary survey buying organizations to assess whether additional specific issues not covered within existing guidance need to be clarified.

Agency Comments and Our Evaluation

In providing written comments on a draft of this report, DOD generally agreed with our findings and recommendations. Its only disagreement was with our recommendation to work with the Office of Federal Procurement Policy to incorporate new guidance in the Federal Acquisition Regulation.

DOD specifically acknowledged that the age and usefulness of data and analysis should be a concern for contracting officers. In response to our recommendations, DOD intends to develop additional guidance to the contracting community regarding (1) the approval of a waiver of the requirement for cost or pricing data, (2) the types of analyses that should be conducted when waivers are granted, and (3) outside expertise that should be engaged in conducting these analyses. DOD plans to include guidance in a memorandum to the military departments and defense agencies and incorporate it into the next update of its Contract Pricing Reference Guides. DOD also agreed with the need to address partial waivers and waivers on unpriced options. In addition, DOD agreed to survey buying organizations to assess whether specific issues not covered within existing guidance need to be clarified. DOD disagreed with our recommendation to place the revised guidance in the Federal Acquisition Regulation because it believed that such a listing would detract from the application of the best professional judgment by contracting officers.

We believe that DOD is taking constructive measures to reduce risks that come with the waiver process. In addition, we appreciate that providing additional guidance outside the Federal Acquisition Regulation will provide a more immediate benefit than amending the regulation. However, it is still appropriate for DOD to work with OFPP and the FAR Council to incorporate its guidance into the Federal Acquisition Regulation since the guidance would help clarify the regulation and since the regulation is the definitive source for contract management.

We are sending copies of this report to the secretary of defense; the secretaries of the army, navy, and air force; the director, Office of Management and Budget; the administrator, Office of Federal Procurement Policy; and interested congressional committees. We will also make copies available to others on request.

If you have any questions about this report or need additional information, please call me on (202) 512-4841. Key contributors to this report are listed in appendix IV.

Appendix I: Scope and Methodology

To meet our objectives, we reviewed 20 waivers valued at more than $5 million each in fiscal year 2000 at six buying organizations. In total, the waiver value of these 20 contracts amounted to about $4.4 billion. These 20 waivers involved an array of buying commands, weapon systems, major contractors, and purchasing circumstances.

The DOD contract database was used as the basis to identify sole source, fixed-price weapon system contracts, with more than $5 million in expenditures (or contract actions) in fiscal year 2000. The DOD database includes a variety of contracting actions, such as a basic award of a contract as well as modification of a contract. Modifications could include an exercise of an option to a basic contract or funding of the contract for a specific year on a contract funded on an incremental basis. As a result, in some cases with multiyear buys, the pricing of the contract or modification selected for review occurred before fiscal year 2000.

We selected six commands to visit during this review because these commands, based on DOD’s contract database, were the only locations that had individual waivers with more than $5 million in expenditures in fiscal year 2000. These six include the (1) Naval Air Systems Command, (2) Naval Sea Systems Command, (3) Naval Inventory Control Point, (4) Army Tank-Automotive and Armaments Command, (5) Army Aviation and Missile Command, and (6) Aeronautical Systems Center of the Air Force Materiel Command. Because of concerns regarding the reliability of computer-generated data, we also requested the commands to independently review their records to identify any additional waivers meeting these criteria. In total, through the use of the database and independent review process, we identified the 20 contracts with waivers amounting to about $4.4 billion. These six are large buying organizations and visiting these organizations, in our view, gives us visibility into the use of waivers for large contracts nationally in fiscal year 2000.

We reviewed the techniques associated with the methods of pricing the contracts. This review included the data used by contracting officers to determine whether the prices were fair and reasonable. To accomplish this review, we reviewed contract files and held discussions with contracting officers at the DOD buying organizations. In addition, we also held discussions with representatives of most of the contractors to obtain information on the orders as well as DOD officials located at contractor plants.

We conducted our review between March 2001 and April 2002 in accordance with generally accepted government auditing standards.

Appendix II: Federal Acquisition Regulation Provision on Waivers

Below is the waiver provision, which is at section 15.403-1 (c) (4) of the Federal Acquisition Regulation.

The head of the contracting activity (HCA) may, without power of delegation, waive the requirement for submission of cost or pricing data in exceptional cases. The authorization for the waiver and the supporting rationale shall be in writing. The HCA may consider waiving the requirement if the price can be determined to be fair and reasonable without submission of cost or pricing data. For example, if cost or pricing data were furnished on previous production buys and the contracting officer determines such data are sufficient, when combined with updated information, a waiver may be granted. If the HCA has waived the requirement for submission of cost or pricing data, the contractor or higher-tier subcontractor to whom the waiver relates shall be considered as having been required to provide cost or pricing data. Consequently, award of any lower-tier subcontract expected to exceed the cost or pricing data threshold requires the submission of cost or pricing data unless— 1. An exception otherwise applies to the subcontract; or 2. The waiver specifically includes the subcontract and the rationale supporting the waiver for that subcontract.

Appendix III: Comments from the Department of Defense

Appendix IV: GAO Contacts and Staff Acknowledgements

GAO Contacts

Staff Acknowledgments

In addition to those named above, Erin Baker, Cristina Chaplain, Ken Graffam, Martin Lobo, Ralph Roffo, John Van Schaik, and Paul Williams made key contributions to this report.