CHAPTER 1 Basic Pricing Policy and Concepts

The government policy is to contract for its products and services at fair and reasonable prices. No matter how the problem is approached, the decision comes down to a matter of good personal judgment on whether or not a particular asking price is fair and reasonable. We have to consider a broad range of factors that exist when the purchase is made.

The problem faced by government contracting people in deciding whether or not a price is reasonable is in many ways like that of an individual making purchases for his or her own private purposes at the local department store or supermarket. We all know that we usually have to pay more for high quality articles than we do for ordinary articles. We realize we are likely to pay more if we make emergency purchases, such as getting the furnace repaired after normal business hours or stopping at the local convenience market so we will not be delayed by a long line at the supermarket. We know that we may have to pay more for name brand items, such as an IBM personal computer rather than a no-name clone, and that an electric “water pic” will cost more than a conventional toothbrush.

PRICING RESTRAINTS IN GOVERNMENT CONTRACTING

Government contracting people encounter some restraints not faced by private individuals when trying to reach a decision on a reasonable price to pay.

Use of Public Funds

The government employee is spending public funds rather than his own money. If we, in our private lives, choose to spend $50,000 for an automobile, we are the ones who bear the expense and no one else is affected. However, the government employee is held responsible for use of good judgment so that excessive prices are not paid.

Promote Full and Open Competition

Federal Acquisition Regulation (FAR) 11.002(a) provides that agencies

1.Specify needs using market research in a manner designed to—

a.Promote full and open competition with due regard to the nature of the supplies or services to be acquired; and

b.Only include restrictive provisions or conditions to the extent necessary to satisfy the minimum needs of the agency or as authorized by law.

2.To the maximum extent practicable, ensure acquisition officials—

(1).State requirements with respect to an acquisition of supplies or services in terms of—

A.Functions to be performed;

B.Performance required; or

C.Essential physical characteristics;

(2).Define requirements in terms that enable and encourage offerors of commercial items and nondevelopmental items an opportunity to fill such requirements;

(3).Provide offerors of commercial and nondevelopmental items an opportunity to compete in acquisition to fill such requirements;

(4).Require prime contractors and subcontractors at all tiers under the agency contracts to incorporate commercial items or nondevelopmental items as components of items supplied to the agency; and

(5).Modify requirements in appropriate cases to ensure that the requirements can be met by commercial items or, to the extent that commercial items suitable to meet the agency’s needs are not available, nondevelopmental items.

Full and open competition, when referring to a contract action, means that all responsible sources are allowed an opportunity to compete (FAR 2.101(a)). Note also that the FAR citation above encourages the use of commercial items and nondevelopmental items to encourage maximum competition. Government contracting officers do not have the luxury of buying from one or even a very few sources, based on good business relations in the past. They cannot restrict their sources to suppliers who are already known for quality products and on-time delivery. The government does not have product or supplier loyalty. They must extend the opportunity to compete to all responsible sources. This approach is in marked contrast to that of private individuals and businesses who may well return to the known vendors repeatedly, rather than take a chance on some vendor with whom they have no experience.

PRICING ADVANTAGES IN GOVERNMENT CONTRACTING

Government buyers have some significant advantages in getting fair and reasonable prices. Some of these advantages are mentioned below.

The Government Is the Only Buyer

For certain commodities such as spacecraft and weapons systems, Uncle Sam is the only buyer. In these cases, the government has a strong negotiating position on pricing because the seller cannot turn to other consumers who are willing to pay a higher price.

High Volume Purchases

Private suppliers like to deal with high-volume buyers and are inclined to give better prices to such buyers. Government agencies typically deal in fairly large quantities, as much or more than individual buyers in the private sector. The government’s simplified acquisition activity (i.e., individual orders less than $100,000 each) alone is a major revenue source, particularly to small businesses near federal installations. This major revenue source for private businesses helps the government in securing reasonable prices for the products and services that it buys. The benefits are even greater when heavy competition exists to get government business.

The Government Pays Its Debts

Large volume buyers who are also good credit risks tend to get better prices because the seller runs less risk of taking a financial loss. It is taken for granted that the government pays its legal obligations. The Anti-Deficiency Act requires that government agencies have money to pay for contract work before signing the contract. It is not necessarily certain that the private sector buyer actually has all the funds required to pay for a buy “up front.” That commercial buyer may itself have to pass on the goods or services to another buyer and obtain payment before it has the money to meets all its own bills. The problem of cash flow is a very real concern to all businesses, large or small, and it takes cash in hand to pay bills. A government agency, on the other hand, has the money needed to pay its bills from the outset; otherwise it cannot contract to buy products or services. If the government decides not to buy after the contract is placed, the contractor is protected against financial loss without having to resort to expensive legal actions. Contractors do not need to “up their prices a shade” because their government customers may not pay.

Prompt Payment of Bills

The Prompt Payment Act is another factor that helps the government, already known for paying its legal debts, to get more reasonable prices. In almost all cases, the government contractor is very certain to be paid somewhere around 30 days after submission of a proper invoice. A fairly common practice among firms in the private sector is to alleviate their cash flow problems by paying suppliers late. This practice provides a way to have the use of money interest-free for a longer time. Such firms may even deliberately lose discounts. It may be better to delay paying the full amount, even though interest is added, than be short of cash to pay more pressing obligations such as payroll. In the worst cases, private firms may wait as long as possible to pay their bills and then take the offered discount long since expired. Such firms are depending on the fact that, as a practical matter, the most the supplier can do is refuse to sell to them again, and lose business in the process.

Most Favored Customer Treatment

The government is often in a good position to obtain “most favored customer” treatment from vendors because of its high-dollar value buying practices. It is common practice in the commercial sector for suppliers to grant special price concessions to customers who are favored because they buy in very large quantities, or pay very rapidly or provide other benefits to the supplier. The government is very often in the position of being able to buy large quantities with the promise of rapid payment and can successfully use that leverage to obtain price concessions not available to ordinary buyers. FAR 13.303-2(b) requires that after determining Blanket Purchase Agreements (BPA) would be advantageous, contracting officers shall:

Consider suppliers whose past performance has shown them to be dependable, who offer quality supplies or services at consistently lower prices, and who have provided numerous purchases at or below the simplified acquisition threshold. (Emphasis added.)

It is important to understand that no supplier is forced to give the government “most favored customer” treatment; no one forces the supplier to deal with the government in the first place. The requirement merely says that the supplier must give that pricing advantage to the government if it desires to enter into a BPA. The supplier knows that a BPA (a type of charge account) will very likely result in some government purchases.

Cost and Pricing Data

Under some conditions (covered in more detail in Chapter 5) the government may receive cost and pricing data from offerors prior to selecting one of them for an actual contract. These cost and pricing data give the government detailed information about how the offeror developed the asking price in its proposal. Government examination of that information is a major help in judging the reasonableness of the offeror’s price proposal. The Truth in Negotiations Act (PL 87-653) provides the legal basis for obtaining this information under prescribed conditions. Private companies and individuals do not have this advantage as a legal right in private contracting.

WHAT IS A FAIR AND REASONABLE PRICE?

A fair and reasonable price is different things to different people. The buyer tends to think on the low side, and the seller tends to think on the high side. The seller wants to make as much money as possible and the buyer wants to save as much as possible.

Although the FAR talks about payment of fair and reasonable prices, it does not define the term. The reason the term goes undefined is that whether or not a price is reasonable depends on great many factors, and it simply is not possible to define the term in a few words. However, you will see as we progress through this text that (1) the government prefers market-based pricing over cost-based pricing to judge fair and reasonable price, and (2) cost-based pricing is appropriate only when the forces of the marketplace cannot judge fair and reasonable price. The determination depends heavily on good personal judgment and experience, no matter how the problem is approached. One purpose of this text is to help you understand how to approach the problem.

It is a good idea to look at five means normally identified to establish a fair and reasonable price. Four of the means are market-based, and one is cost-based.

Market-Based Prices

Competitive Offers—Prices arrived at through this means are:

In response to solicitations encouraging competing offers;

Prepared with no effort by the buyer to suppress a known source;

Submitted by multiple responsible offerors who can satisfy the buyer’s requirements with priced offers responsive to the solicitation’s expressed requirements; and

Submitted by offerors who are competing independently for a contract to be awarded to the responsible offeror submitting the lowest evaluated price.

Sellers proposing prices that are too high risk seeing the business go to a competitor. The forces of the market push each offeror to propose a fair and reasonable price.

Established Catalog Price—Prices established by this means are:

Published by the seller in a regularly maintained catalog or price list;

Available for inspection by potential buyers; and

State current prices, including discounts and other price-related terms, for offered goods and services.

The published catalog or price list is the seller’s message that:

They are willing to offer goods and services at the prices published;

ll competing offerees may either accept the prices as published by placing an order, or decline the prices as published by refraining from placing an order; and

Market forces make it disadvantageous to use their income producing capacity to sell goods and services at lower prices than those published.

The seller is in effect saying, “other customers are willing to meet our price. We plan to continue servicing them with these prices that they find satisfactory. Therefore, it is not to our advantage to offer a lower paying customer (like you) the benefits of our income producing capacity.” The forces of the market push the buyer to accept a fair and reasonable price.

Established Market Price—Can be substantiated from sources independent of the seller; and are current sales prices established in the normal course of trade between buyers and sellers free to bargain in the market place.

The seller believes and is able to show to their satisfaction (and if necessary, to the customer’s satisfaction) that their proposed price for comparable goods and services is either better than or equal to prevailing prices for comparable goods and services in the marketplace.

The seller is in effect saying, “other customers are willing to meet our price. We are confident that current and potential customers will be satisfied to pay these prices. Therefore, it is not to our advantage to offer a lower paying customer (like you) the benefits of our productive capacity.” The forces of the market encourage the buyer to accept a fair and reasonable price.

Established by Law or Regulation—Prices are established by legislative or regulatory authority usually to protect buyers, punish buyers (for example, a fine or penalty), or to achieve some socioeconomic goal.

In these cases, the seller is able to demonstrate that (1) other authorities have established a ceiling or floor on their prices; and (2) all customers are consistently impacted by the established prices.

The seller is saying in effect, “other authorities regulate our prices. We are blameless. Presumably the regulating authorities have judged the price to be fair and reasonable under the circumstances.” Regulatory forces in the market encourage (or force) the buyer to accept a fair and reasonable price.

The four means above rely on the marketplace to determine a fair and reasonable price. However, when there are no competing sources or the competing sources are ineffective, the marketplace cannot be relied upon to produce a fair and reasonable price. In those cases, cost-based pricing serves as a surrogate to the market in determining a fair and reasonable price.

Cost-Based Prices

When the buyer cannot rely on the competitive forces of the market economy, it will often make extraordinary efforts to judge a fair and reasonable price. If the order is significant, the buyer may encourage or even demand that the seller prepare a detailed cost and price breakdown showing the composition and basis or estimate of the total cost by: Direct Cost; Indirect Cost; Profit; and Total Price. The cost and pricing data submitted is analyzed, and serves as a basis to negotiate a fair and reasonable price.

The seller’s cost and price breakdown is presumably the seller’s best estimate of what it feels it will cost to produce the goods and services called for in the solicitation, and the requested profit margin. The buyer then challenges the seller’s will cost position with its own should cost position. The buyer may also challenge the seller’s proposed profit.

The seller is forced to disclose data that may be challenged by the buyer. Ineconomies, inefficiencies, and ineffectiveness inherent in the seller’s proposal are hopefully disclosed and discussed. By analyzing such data as labor hours and labor mix, the buyer may also determine if the seller’s proposed effort is responsive to the buyer’s solicitation. Differences between buyer and seller positions are worked out through negotiation before contract award.

As we have seen, the definition of a “fair and reasonable price” is complicated. At this point, we turn to the simpler task of defining “price.”

Cost + Profit = Price

As shown by the above equation, price is made up of two component parts: cost and profit. Any definition of price must first define cost and profit.

Definition of Cost

For purposes of this text, cost is defined as the expenses a contractor will incur in performing contract work. It is important to clearly understand this definition from the outset so that the term “cost” is not mixed up with the term “price.” It is true that “cost” is often used, even in government publications, when “price” is really meant. You can save yourself a lot of trouble if you accept that there is a difference between “cost” and “price.”

Readers who have previous contracting experience are already accustomed to the term “cost” as described above. For example, they know about cost-reimbursement contracts and their general meaning. FAR 16.301-1 defines cost-reimbursement contracts as follows:

Cost-reimbursement types of contracts provide for payment of allowable incurred costs, to the extent prescribed in the contract. … (emphasis added)

Unfortunately this definition (and others in the FAR) reuses the word cost when defining a term containing the same word; however, the meaning is clear. The government says that it will reimburse the holder of a cost-reimbursement contract for its costs expended (expenses) to do the work as long as they are allowable, reasonable, and properly allocable to the contract. The government recognizes that contractors incur costs when doing government work. Normal government pricing policy is to ensure that the contractor recovers its reasonable costs.

A contractor’s costs comprise a wide variety of expenses that may have to be paid. Some are a direct result of accepting the contract work. The most common of these are the costs of labor and materials. Other costs that may be directly related to contract work include expenses such as travel and consultant costs. Other costs fall into the category of general operating expenses, such as costs for furniture and equipment, utility costs, pay of management personnel, property taxes and insurance, and a wide variety of other costs. Although these costs may not be directly related to specific contract jobs, they nevertheless have to be paid if the contractor is to stay in business.

Consider building occupancy costs. All contractors, except the very few whom operate in government facilities, need buildings to perform their government and commercial work. If the contractor rents the building, it is an expense, which has to be met by the business firm, an out-of-pocket expense. If the contractor owns the building, it did not get it without cost. There was an out-of-pocket expense at the outset to acquire the building. Since the building presumably will be usable for a considerable number of years, generally accepted accounting principles require that the business “charge off” the building expense over a number of years so that each year carries a part of the total cost. Accountants call this charge-off procedure depreciation.

The above discussion is an introduction to cost. Chapters 4, 6, 7, and 8 provide detailed coverage of cost.

Definition of Profit

In the broad sense, business profit is whatever monies are left after all costs have been paid. When talking about a particular contract, profit is the additional amount a contractor receives above out-of-pocket costs; profit makes it worthwhile to do the particular contract work. It is the reward for undertaking the contract task in the first place. As is obvious, if customers (including the government) pay prices that merely repay contractors for the costs to do work, it would be pointless for them to be in business. The owners of the firm would be better off to invest their money so it would earn interest, and go to work for someone else to draw a reward for their work.

All contractors, except the narrow category of not-for-profit institutions, are primarily interested in profit. The expectation of adequate profit is what makes it reasonable to invest money in a business at the outset and to let money stay in the business. The stockholders in a business receive dividends or see their capital investment grow as a direct result of the profit the business makes. If their invested money does not earn at least as much as it would invested in the money market or a savings account, they would be foolish to leave their money in the business.

The government fully understands that profit is a basic motivation for all private businesses. Government pricing policy provides for contractors to receive a fair and reasonable profit. Chapter 10 will cover methods for determination of a proper profit.

Definition of Price

We previously defined price as the sum of cost and profit. Now that we have learned more about the real meaning of cost and profit, we are in a better position to discuss price. We will do this from the standpoints of the government and the seller (contractor).

Price, to the government or any other buyer, is the financial outlay, which is made to pay for a product or service. In terms of our basic formula, a reasonable price is the sum of reasonable costs to do the work and a reasonable profit. It is very important to establish clearly at the outset (if possible) what the price will be for the work to be performed. It is possible to establish the price at the outset in many types of contract actions. In some cases, including much research and development (R&D) work, it is not practical to try to determine the ultimate price at the outset.

As we have mentioned previously, the government policy is to pay a fair and reasonable price for whatever it buys. This text will help you approach the difficult matter of determining a fair and reasonable price for a particular contract job.

The government knows well that a failure to pay reasonable prices will result in contractors selling their outputs in the private sector where they will be treated more fairly. On the other hand, if the government pays excessive prices, it is a waste of taxpayer money. When excessive prices have already been paid, it is not possible for the government to recover overpayments except in very limited circumstances.

Price to the contractor (seller) means the total payment received for work performed. In the normal course of events, the contractor expects to receive enough to repay it for actual costs expended to do the work plus a profit for doing the work. The determination of the price to charge (i.e., to bid or propose) is a very complex subject, which will be discussed in the next sections.

Cost-Plus-Profit Pricing

Almost all companies decide on the price to charge for their products or services by determining the cost to make or provide the product or service and then adding a profit. We will use a small bakery to illustrate this type of pricing called cost-plus-profit pricing.

A bakery produces a wide variety of bread and pastry products. It can determine the cost of the flour, sugar, and other raw materials used to make these products. The labor costs can also be established. The bakery has to consider all its other operating costs such as those for working space, equipment, utilities, taxes, and numerous other expenses. By using methods to be described later in this text, the bakery can establish a total cost for each output product. It can then calculate unit costs. It has to sell its products for at least that much just to break even. Since it wants to make a profit, it will add a profit figure to establish a selling price. If the bakery operates its own sales outlet, its costs must also include its selling expenses. If the bakery sells all its output to a grocery store, the price that the bakery receives is a cost to the grocery, i.e., and an out-of-pocket expense. The grocery goes through a similar cost-plus-profit pricing procedure to decide on the price to charge its customers.

Any firm that manufactures products uses certain specifications and standards for making its products. These specifications may be formal or informal but whatever they are the company must know (if it is to survive) its costs to perform its work. For the bakery, the specification is the recipe for each product. A company that manufactures electric appliances follows detailed drawing specifications and standards for making or buying various parts for the appliances and for assembling them into finished products. It can then calculate what it costs to produce each product and establish a price by adding a profit figure to the cost.

The same general analogy applies whether we are talking about bakery products, electric appliances, complex machine tools, or a new building. It also applies to services. A firm, which provides services, calculates the cost of providing the service and then adds a profit to establish the price to be charged.

The discussion above is satisfactory for the present; however, later parts of this text will bring out details that show price calculation is not as simple as this discussion has indicated. The appliance manufacturer may well go through all the calculations above to establish cost, profit, and price, and then discover that its price is higher than prices charged by competitors for comparable appliances. If so, the manufacturer will not be able to sell many appliances at that calculated price. Something must be done. The manufacturer may have to settle for a smaller profit, find ways to reduce costs, or get out of the appliance business. It may also discover that it is not calculating certain costs correctly, especially if it is producing various other products.

More on the Pricing of Commercial Products

The Manufacturer-Distributor-Retailer Chain: Primary manufacturers of commercial products will, for the most part, use the cost-plus-profit approach described above to arrive at prices for their products. Most of these primary manufacturers provide their products to the marketplace through distributors who in turn sell to retailers. The manufacturer’s price is a cost to the distributor. To determining its selling price, the distributor considers the cost of the product itself and adds its storage and handling costs plus a profit. This distributor price is a cost to the retailer who in turn adds its handling costs plus a profit. It is obvious that there is considerable pyramiding of costs and profits by the time most items find their way to the ultimate consumer.

(Note: Some very large mass-production companies use a method called rate-of-return pricing. This entails pricing so that a given percent of return on capital investment will be achieved. This particular approach will not be further described in this text.)

Heavy users of commercial items, whether private companies or the government, prefer to find ways to avoid the effects of pyramiding of costs and profits through the manufacturer-distributor-retailer chain. The government and most private companies solicit bids or proposals when their requirements are a high-dollar amount or for large quantities or both. Retailers are not generally in a position to compete with either the manufacturers or the distributors in these circumstances. Consequently, bids come in from manufacturers or distributors and the government and the private companies achieve price savings. The General Services Administration places contracts for thousands of commercial items used by various government agencies on this basis. These sources are published in the Federal Supply Schedules and, with rare exceptions, provide major price savings to government agencies compared to retail purchases.

“What the Traffic Will Bear”: Around the turn of the century, railroad operators coined this expression to describe their method of setting prices. Overland shippers had to use the railroads because no other overland mass transportation was available. The railroads took advantage of the situation by charging outrageous shipping rates. It was purely and simply “price-gouging.” The government corrected this and similar situations with legislation providing for public regulation of prices charged by monopolistic industries for essential services and with various pieces of anti-trust legislation.

In present usage, the term basically means that suppliers are likely to charge whatever they think they can reasonably get. If this bothers you, stop and consider how you would set your asking price if you decided to sell your house or car. The tendency to set prices at “whatever the market will bear” is one of the most fundamental rules of all pricing and one which the government buyer does well to remember. The government buyer also must remember that although people groan at the high cost of government, they take advantage of any opportunity to benefit personally from that vast storehouse of public funds.

Adapting to Established Prices: This pricing approach is commonly seen for commercial items and services. The supplier who sells products or services essentially the same as those sold by other sellers in the same marketing area is generally forced to conform to established prices. The penalty for charging more is that buyers will soon drift away to other sellers. The auto industry is a good example of adapting to established prices. Each car manufacturer attempts to come out with various models of their own product, which will compete with similar cars built by their competitors. This results in very heavy competition in the auto industry even though there are very few major automobile manufacturers.

Product Differentiation: Sometimes large companies are able to convince some buyers that their particular product or service is worth the extra price. Such efforts generally require heavy advertising and selling expenses, which themselves add to the cost of the products being sold. The Xerox Corporation is an excellent example of this approach. Many of us are inclined to think of Xerox copiers as the ultimate in reliability and technology, even though we may not actually have first-hand knowledge to support that belief. Smaller companies are much more likely to base their prices on established market prices because they cannot afford massive expenditures for advertising and selling.

The government prepares statements of work, specifications, and other purchase descriptions in ways that describe actual rather than “nice-to-have” features. “Nice-to-have” features—which may ultimately be unused—may needlessly limit competition and be more costly to the government.

Price Leadership: Some very large firms, such as Microsoft, may take the initiative by setting prices for the products they sell in their own catalogs and price lists. If they lower prices, other companies in the industry have little choice except also to lower prices, since the giant can easily take on the added business. If the leader raises prices, the other companies will often follow suit as a way to increase profits. This practice is not collusion in the anti-trust law sense unless the sellers have preagreed on the pricing arrangement as a price-setting scheme.

Customary or Convenient Prices: Small consumer-type items such as candy bars, soft drinks, chewing gum, and similar items are often individually priced for over-the-counter or vending machine sales at customary or convenient prices (e.g., 25 or 50 cents each). These prices remain pretty much the same for considerable periods of time regardless of fluctuations in the cost of materials and labor to make and distribute the products. This practice is rapidly spreading to other types of merchandise such as minor office supplies and small hardware items (e.g. pens, paper clips, wood screws, and bolts). Much of the price of these items is consumed by packaging. In almost all cases, significant price reductions can be achieved by purchasing the items in reasonable bulk quantities.

Variable (Incremental) Cost Pricing

The earlier discussion of cost-plus-profit pricing may have led you to believe that suppliers always price their outputs based on their total costs for the products or services plus a profit. Suppliers do not always do their pricing that way. For example, a supplier may have slow-moving items in its inventory and may choose to sell them at cost, or even a little less, just to recover the money invested in them so it can be used for other purposes. Or, a supplier may deliberately sell at cost plus a less-than normal profit level.

A similar type of pricing occurs when a firm’s business is temporarily down. The firm may not be getting enough work to keep it going at its usual profit levels, or for that matter at any profit level. Meanwhile its general operating expenses continue to exist and they have to be paid if the company is to exist at all. Examples are rent, taxes, utility bills, pay of owners and clerical staff, and similar expenses. There is a practical limit to how low these expenses can be pared if company doors are to stay open.

Under these circumstances, some business is better than no business. If the company can get work that recovers its variable costs to do the work plus makes a contribution to other costs, it is generally better to take that work. The example below will make this point more clear.

ACME Constructors, Inc., estimates the following costs for a job that will take 30 days:

Normally the company would price out this job as below, before adding its profit:

The company could get the job at a price of $43,000; the customer refuses to pay more because he has a $43,100 price from another offeror.

The company might well take the job because it will clear $4,000 over the actual costs caused by undertaking the work ($43,000–$39,000). It will have $4,000 toward its fixed costs (building rent, taxes, utilities, etc.) which go on in any case and have to be paid. If it turns down the job, it loses the $4,000 it would have had toward these expenses which must be paid.

Obviously the firm cannot continue for a long period taking a loss on all its jobs because it will fail to meet its total expenses. For the short-run, it may be acceptable to do so and survive on savings while waiting for a business upturn.

A firm might also take a job at less than full cost recovery if it has lots of other jobs going that are recovering all its general operating costs plus proper profit levels. The firm might undertake such work to establish a reputation for good work with new customers or to keep work crews busy who would otherwise be laid off. It might, in some cases, also do it to “buy-in,” a method of getting a contract by submitting a below-cost offer and then making up the money later using overpriced change orders. Chapter 11 will show how the government guards against this unseemly practice of contractors “getting well” through overpriced change orders.

Price Analysis

Price analysis is a set of methods for determining whether an asking price is reasonable without examining the details of the cost or profit included in the price. We do price analysis almost daily in our private lives. Every time we make a purchase, we consciously or unconsciously make a price analysis, which satisfies us that what we are paying, is reasonable. Rarely, in our private lives, do we know the actual costs and profit, which stand behind a quoted price. All we know is the “bottom line” price we see and we reach a judgment on whether or not to buy based on that quoted price. We may haggle about the price and may get a reduction to a new and lower price. Then we repeat the mental process of price analysis to decide if the new price is acceptable.

The government does a significant amount of contracting based on getting a price alone, with no information on how much cost and profit is included in the price. Such contracting will result in the award of a fixed-price type contract, in which the government commits itself to pay the asking price when the work is satisfactorily performed. The government buyer must be as certain as he or she can be that the asking price is fair and reasonable before committing the government to pay that price.

Before going further, one point must be emphasized. We must always do some form of price analysis before awarding any contract. But, when some contract types are used, we cannot rely on price analysis alone prior to contract award. In some circumstances, the government contracts to reimburse a contractor for its allowable costs of performance plus (in most cases) a fee or profit. In such cases, the actual costs for the work will not be known until the work is completed. This means that the actual price for the work is also unknown until the work is complete. In such cases, we are not in a position to rely on price analysis alone prior to awarding the contract. The only recourse is to augment price analysis with cost analysis.

Cost Analysis

Cost analysis is a set of procedures used to determine the reasonableness of proposed costs to do contract work. Of course we cannot do cost analysis unless we know what the costs are. Under certain conditions (to be discussed in Chapter 5) the government is entitled to receive complete details on the estimated cost and profit built into a bottom line asking price. The government is then in a position to examine the reasonableness of the estimated costs and profits and can determine whether the asking price is realistic for the firm in question.

Over time, the term “cost analysis” has come to mean the government’s analysis of proposed costs and profits. Strictly speaking, the analysis of proposed profit to determine if it is reasonable would be called “profit analysis,” and sometimes it is called by that term. For the most part, however, the term “cost analysis” is taken to mean analysis of proposed costs and profits.

Moreover, the fact that cost analysis shows that costs and profits for a given firm to do a job are reasonable does not automatically prove that the price is reasonable. For example, a firm located in a high labor cost area might well be able to justify the reasonableness of a $100,000 price to do the contract work in their own situation. If a firm located in a lower labor cost area offers to and can do the same work for $95,000, we would be foolish to go with the higher priced firm just because their price was reasonable for their firm. Obviously, we will not contract with a higher priced company simply because they are able to justify their own excessive costs.

We always do price analysis when dealing with prices, even though we may have already done cost analysis. In the cases above, we have two firms with proven reasonable prices of $100,000 and $95,000 for their own situations; however, we might have other valid evidence to show that neither price is reasonable, for example a highly reliable government cost estimate. Both cases might have resulted from a misunderstanding of the work required, perhaps because of a faulty government work description. Or maybe neither company was anxious to get the work, but no one else bothered to make an offer. Cost analysis alone is not a sufficient basis for determining price reasonableness and contract award.

Cost analysis is covered in detail beginning in Chapter 4. Profit analysis is covered in Chapter 10.

Adequate Price Competition

The government relies on adequate price competition to get fair and reasonable prices. The concept is that if offerors are competing against each other to get the work based on lowest price, the pressures of the competition itself will result in a reasonable price. The concept is correct and true only if actual adequate price competition exists.

FAR 15.403-1(c) states

1.A price is based on adequate price competition if—

(1).Two or more responsible offerors, competing independently, submit priced offers responsive to the Government’s expressed requirement and if—

A.Award will be made to the offeror whose proposal represents the best value where price is a substantial factor in source selection; and

B.There is no finding that the price of the otherwise successful offeror is unreasonable. Any such finding that the price is unreasonable must be supported by a statement of the facts and approved at a level above the contracting officer;

(2).There was a reasonable expectation, based on market research or other assessment, that two or more responsible offerors, competing independently, would submit priced offers responsive to the solicitation’s expressed requirement, even though only one offer is received from a responsible offeror and if —

A.Based on the offer received, the contracting officer can reasonable conclude that the offer was submitted with the expectation of competition, e.g., circumstances indicate that—

1.The offeror believed that at least one other offeror was capable of submitting a meaningful offer; and

2.The offeror had no reason to believe that the other potential offerors did not intend to submit an offer; and

B.The determination that the proposed price is based on adequate price competition, is reasonable, and is approved at a level above the contracting officer; or

(3).Price analysis clearly demonstrates that the proposed price is reasonable in comparison with current or recent prices for the same or similar items, adjusted to reflect changes in market conditions, economic conditions, quantities, or terms and conditions under contracts that resulted from adequate price competition.

Notice that the FAR provides the following important features of “adequate price competition”:

FAR 15.403-1(c)(i) highlights the traditional presumption of competition if two or more responsible offerors, competing independently, submit priced offers responsive to the Government’s expressed requirement.

FAR 15.403-1(c)(ii) acknowledges adequate price competition even when a single offeror prepares a price offer. Provided the buyer, in preparing a solicitation, anticipated multiple priced offerors from responsive sources. And the offeror, when submitting a priced offer, operated under the assumption that a (known or unknown) competitor(s) may also be simultaneously preparing a competing price offer. In effect, the FAR is saying that an offeror tendering an offer in ignorance of the absence of competition is tendering a competitive offer.

FAR 15.403-1(c)(iii) acknowledges that reasonableness of a proposed price can be judged by comparison with current or recent prices for the same or similar items purchased in comparable quantities, under comparable terms and conditions under contracts that resulted from adequate price competition.

Note that the description above is based on having actually received priced offers, i.e., the time when we finally have to determine if the price is reasonable. A complete analysis of this very detailed description above would be almost a book in itself. For our purposes, the following points need emphasis:

1.The customarily heard phrase “at least two offerors” does not in itself guarantee that adequate price competition exists. Numerous other conditions have to be met.

2.There must be at least two offerors who can actually satisfy the requirement (responsible) and they must be responsive (promise to do what the government says it wants).

3. The offerors must have competed independently. There must be no reason to believe that any collusion existed, or that anyone was under any pressure to make or not to make an offer.

4.The offerors must have known from the outset that the award would be made to the offeror with the lowest price meeting the criteria of responsibility and responsiveness. The lowest price is not always the sole criterion for contract award (for example, many negotiations for R&D) even though cost and profit must always be considered. When contract award is based on factors other than lowest price, the price effect has been diluted and price competition is not governing.

5.Adequate price competition may not exist if one or several firms known to be qualified for the work did not have a reasonable opportunity to compete. Maybe they were not given adequate time to make up their proposals or were deprived of an opportunity to compete because of unduly restrictive qualification requirements which, in effect, confined the award to a selected few.

6.Adequate price competition does not exist if one or a few offerors have a lock on the job. Often the incumbent contractor is fully aware of the precise and the risky pricing areas, whereas the stranger to the contracting action does not have that advantage. One offeror may already have fully amortized the cost of the special machinery needed to do the work. That offeror may be in a position to bid unreasonably high for his own costs, knowing full well that he can still beat other offerors who will include the cost of expensive machinery. The offeror who controls the sale of some major assembly has a great advantage over all other offerors who must come to him to get that major assembly.

A Single Reasonable Offer

What does the government do if it receives only one offer but the price is reasonable? FAR 15.403-1(c)(ii) acknowledges adequate price competition when a single offeror prepares a price offer—provided the buyer, in preparing a solicitation, anticipated multiple priced offerors from responsive sources and the offeror, when submitting a priced offer, operated under the assumption that a (known or unknown) competitor(s) may also be simultaneously preparing a competing price offer. In effect, the FAR is saying that an offeror tendering an offer in ignorance of the absence of competition is tendering a competitive offer.

Certificate of Independent Price Determination (FAR 3.103-1)

FAR 3.103-1 requires the insertion of a Certificate of Independent Price Determination in all solicitations when the government anticipates the award of either a firm-fixed-price contract or fixed-price a contract with economic price adjustment. The provision itself is stated at FAR 52.203-2.

In summary, the offeror is required to certify that:

1.It arrived at the offered prices independently and without consultation with other offerors or competitors for the purposes of restricting competition. This portion of the certificate covers price discussions, intent to submit a price, and methods of calculating a bid price.

2.Prices have not and will not knowingly be disclosed to any other possible offeror prior to bid opening time or, in the ease of negotiation, prior to contract award time.

3.No attempt has been made to influence any offeror or competitor to submit or not submit an offer.

In addition, the certificate contains certain other statements designed to show that the person or persons who sign the certificate are responsible for determining the offered prices and that they have not, and will not, violate the terms of the certificate.

The certificate is not required for acquisitions for (1) small purchase procedures, (2) utility services, (3) requests for technical proposals under Step 1 of two-step sealed bidding, and (4) work performed outside the United States, its possessions, and Puerto Rico.

Precautions against Buy-Ins

FAR Subpart 3.5 covers “buy-ins” as one of several improper business practices. The offeror engaging in a “buy-in” submits a below-cost offer just to get the contract and plans on making up the shortfall after award by unnecessary or overpriced change orders or by receiving follow-on contracts at artificially high prices.

FAR 3.501-2 states that the government should minimize the possibilities for a “buy-in” by seeking price commitments for as much of a total program as is practical. Some of the suggested means are:

Multi-year contracting using prices for the total quantity;

Priced options for additional quantities that considered with the basic quantity add up to the total requirement; and

Other safeguards such as referral of unreasonable quotations to higher level authorities for determination.

In practice, it is often difficult to know whether an offeror is engaging in a “buy-in” or exercising its right to provide a good faith below-cost offer (see Variable (Incremental) Cost Pricing). The Comptroller General has repeatedly ruled that a below-cost bid or proposal is not in itself a basis for rejection of an offer. An offeror may submit such a below-cost offer to keep people employed that he would otherwise have to discharge, to fill in work during a temporary lull in overall business, and for other legitimate reasons. The receipt of a known below-cost offer raises several questions:

Is it a mistake in the offer itself? If so, the FAR contains procedures for calling the offeror’s attention to suspected errors (FAR 14.407 and 15.508).

If the offeror reaffirms the stated price, the remaining questions are:

Is it a good faith intentional below-cost offer by a responsible offeror with no improper intent in mind?

Is it a below-cost offer caused by failure to understand fully the work to be done? If so, the offeror may not be responsive and hence would be ineligible for contract award. Award would very likely result in later contract administration problems.

Is it an actual “buy-in” submitted as an improper business practice? If so, the offeror is very unlikely to admit that fact openly.