Department of Defense Contract Pricing

Department of Defense Contract Pricing

Department of Defense Contract Pricing
December 19, 2023
The Department of Defense (DOD) frequently turns to private contractors to provide it with the
goods and services that DOD needs to carry out its mission. Federal contracting regulations
Alexandra G. Neenan
require that contract prices be “fair and reasonable,” and include several mechanisms that DOD
Analyst in U.S. Defense
may exercise to ensure that it is not overcharged by these private vendors. Still, in instances
Infrastructure Policy
throughout DOD’s history, it has accused some contractors of overcharging the government,

leading some observers to claim a loss of taxpayer money.

Congress has enacted legislation to establish processes by which DOD may determine whether a
contract’s price is fair and reasonable, including the Truthful Cost and Pricing statute (10 U.S.C. §§ 3701-08 and 41 U.S.C.
§§ 3501-09). In versions of the National Defense Authorization Act (NDAA) over the past ten years, Congress has enacted
changes to contract pricing-related statutes, including raising the Truthful Cost and Pricing statute cost threshold, and
changing criteria for contracting officers to use in determining if a contract’s price is fair and reasonable.
Private vendors have been accused of overcharging the U.S. government since the Revolutionary War. In the past five years,
several high-profile civil cases involving the Department of Justice have attracted public and congressional attention to the
issue of DOD contract pricing.
Congress is considering legislation that increases cost-related data submission requirements for DOD vendors. It could also
consider legislation that applies current requirements to more vendors. Alternatively, Congress might consider loosening
some of these requirements to allow more contractors to enter the field and bolster competition to drive down prices.
Congress may also consider whether or not to give DOD additional resources to improve how it collects and analyzes the
pricing data that it does receive directly from vendors.
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Contents
Department of Defense Contract Pricing: Purpose and Background .............................................. 1
Competitively Bid DOD Contracts ................................................................................................. 2
Sole-Source DOD Contracts............................................................................................................ 3
Statutes and Regulation Regarding Contract Pricing ...................................................................... 4
Truthful Cost or Pricing Data (10 U.S.C. §§3701-08; 41 U.S.C.§§3501-09) ........................... 4
DOD’s Defective Pricing Audit Process ................................................................................... 5
Pre-Negotiation ......................................................................................................................... 6
Negotiation ................................................................................................................................ 6
Post-Contract Award ................................................................................................................. 7
Cost Accounting Standards Rules ............................................................................................. 9
Selected Recent National Defense Authorization Act Provisions Related to DOD
Contract Pricing ................................................................................................................... 10
Fiscal Year 2018 NDAA (P.L. 115-91) .............................................................................. 11
John S. McCain NDAA for Fiscal Year 2019 (P.L. 115-232) ............................................ 11
Fiscal Year 2020 NDAA (P.L. 116-92) ............................................................................. 12
Waivers and Exceptions .......................................................................................................... 12
Indefinite Delivery, Indefinite Quantity Contracts ........................................................... 12
Commercial Items ............................................................................................................. 13
Issues for Congress ........................................................................................................................ 14
Regulatory Framework ............................................................................................................ 14
Dollar Thresholds .................................................................................................................... 15
Pricing Data Reliability ........................................................................................................... 16
Commercial Item Determinations ........................................................................................... 17
Tradeoffs for Small Businesses and Subcontractors ............................................................... 17

Contacts
Author Information ........................................................................................................................ 18

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Department of Defense Contract Pricing

Department of Defense Contract Pricing: Purpose
and Background
The Department of Defense (DOD) often relies on private contractors to provide the goods and
services needed to carry out its mission, and DOD spends more than any other federal agency on
contracts. DOD contract obligations in Fiscal Year 2022 (FY2022) totaled roughly $414.5 billion,
or about 60% of total federal contract obligations.1
While they are similar in some respects, the federal and private sectors frequently operate
differently. For example, the federal government may act as the single purchaser of certain goods
and services, which can result in a monopsony (a market with only one buyer), while the private
sector includes multiple buyers and multiple sellers, resulting in more competition.2 Furthermore,
federal contracting regulation requires that contract prices be “fair and reasonable,” and allows
government officials to ask contractors for pricing data to ensure this.3
DOD contracting-related statutes are covered in both Title 41 and Title 10 of the U.S. Code. Title
41 addresses general federal procurement policy that applies to DOD unless otherwise covered in
Title 10, which applies to the armed forces specifically. Title 10 addresses several DOD-specific
exceptions regarding procurement policy. The procurement provisions in Title 41 and Title 10 are
implemented by the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition
Regulation Supplement (DFARS)—the DOD-FAR supplement. (For additional information, see
CRS Report R42826, The Federal Acquisition Regulation (FAR): Answers to Frequently Asked
Questions, coordinated by Erika K. Lunder). Congressional clients seeking further information
may contact David H. Carpenter.
DOD’s process for procuring goods and services differs in some ways from that of other
executive agencies. DOD’s need for a unique set of rules and institutions is reflected in the DOD-
specific procurement statutes contained in Title 10 and its regulatory implementation, the Defense
Federal Acquisition Regulation Supplement (DFARS).4 Government officials aim to ensure that
DOD contract obligations fund “fair and reasonable” contracts and do not allow contractors to
gain what some sources call “excessive profits.”5
Federal regulations acknowledge that a lack of competition may result in the types of excessive
profits that the government aims to avoid. The Federal Acquisition Regulation (FAR) states that
“practices that eliminate competition or restrain trade usually lead to excessive prices and may
warrant criminal, civil, or administrative action against the participants.”6 Both the legislative and
executive branches have attempted to reduce the amount of “excessive profits” for DOD

1 Government Accountability Office, “A Snapshot of Government-Wide Contracting for FY 2022,” August 2023.
Obligations occur when an agency enters a contract with vendors, employs personnel, or otherwise commits to
expending appropriated funds.
2 RAND Corporation, “Profit Regulations of Defense Contractors and Prizes for Innovation,” 2005, pp. v-vii.
3 48 C.F.R. §15.402. Generally, it is common practice to refer to the “FAR” (e.g., “FAR 6.302,” or “Subpart 15.3 of the
FAR”) in conversation and text yet cite the Code of Federal Regulations (e.g., 48 C.F.R. §42.302) when identifying the
FAR as the source of material.
4 The DFARS is the DOD’s implementation and supplementation of the FAR.
5 RAND, “Price-Based Acquisition: Issues and Challenges for Defense Department Procurement of Weapon Systems,”
2005, p. 16
6 3 C.F.R. §3.301.
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contractors since the genesis of the defense acquisition system that emerged at the end of World
War II.7
Competitively Bid DOD Contracts
Title 10 and the DFARS reflect the idea that DOD sometimes must procure its goods and services
differently than other federal agencies, necessitating unique adaptations of the statutory and
regulatory framework. Notwithstanding such exceptions, the government-wide procurement
provisions of Title 41 and the FAR apply to DOD unless otherwise specified in Title 10 or the
DFARS. Section 3301 of Title 41 requires that executive agencies “obtain full and open
competition through the use of competitive procedures” when “conducting a procurement for
property and services.”8 This stipulation includes several exceptions, such as contracts that
acquire commercially available products, and contracting actions in which the prime contract is
valued at or below the simplified acquisition threshold, which is generally $250,000.9
The FAR states that “normally, effective price competition results in realistic pricing,” and
promotes competition as the primary method through which the government can ascertain a fair
and reasonable contract price.10 The FAR defines two or more competitive offerors for a given
contract as “adequate price competition.”11 Competitively bid contracts, or contracts with two or
more bidders, are the default mode for both DOD and the rest of the federal government. This
method incentivizes contractors to win the contract by bidding a lower price than their
competitor(s).12
DOD uses several types of competitively bid contracts, including fixed-priced contracting and
cost-reimbursement contracting.13 Fixed-priced contracting awards the contract to the vendor with
the lowest offered price that can meet all required specifications.14 The FAR states that this type
of contract places “full responsibility on the contractor for performance costs and resulting profit
or loss.”15 The FAR also states that fixed-price contracts are “ordinarily in the government’s
interest.”16 The government incurs less risk using this method. Critics of fixed-price contracting
argue that it is too inflexible for companies, and may lead to increased claims and litigation by
contractors.17

7 Thomas L. McNaugher, “New Weapons, Old Politics: America’s Military Procurement Muddle,” (The Brookings
Institution, 1989), Ch. 2.
8 41 U.S.C. §3301; See also 10 U.S.C. §3201.
9 Federal Register, “Federal Acquisition Regulation: Increased Micro-Purchase and Simplified Acquisition
Thresholds,” July 2020.
10 Federal Acquisition Regulation, §16.104.
11 Federal Acquisition Regulation, §15.403-1. The FAR defines “adequate price competition” but does not explicitly
define “fair and reasonable price.”
12 Defense Acquisition University, “Fair and Reasonable Price Determination.”
13 There are many other types of contracting types, including sub-categories of fixed-priced and cost-reimbursement
contracts, which can be found in the FAR, §16.
14 FAR, §16.202-1. Specifically, a firm-fixed-price contract’s price is “not subject to any adjustment on the basis of the
contractor’s cost experience in preforming the contract.”
15 Ibid.
16 FAR, §16.104.
17 Sandra I. Erwin, National Defense Magazine, “Pentagon Acquisition Chief Warns About Misuse of ‘Fixed Price’
Contracts,” February 2013.
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In contrast, cost-reimbursement contracting reimburses the contractor for the “allowable incurred
costs.”18 Cost-reimbursement contracts allow contractors to take on less financial risk when
developing a product and therefore may be more desirable to some vendors. The FAR states that
cost-reimbursement contracts provide “only a minimum incentive to control costs.”19 Critics of
cost-reimbursement contracts argue that while contractors are nominally prevented from over-
charging the government under this structure, companies can hide profits in overhead charges and
services fees.20
Sole-Source DOD Contracts
Sole-source contracts are contracts in which the government has only solicited, and negotiated
with, one source.21 Title 10 and Title 41 refer to sole-source contracts as procedures “other than
competitive procedures,” 22 while the FAR refers to sole-source contracts as “contracting without
providing for full and open competition.”23 This definition by negation may suggest that, per
statute and regulation, this type of contracting should be the exception and not the norm.
Title 10 states that DOD “shall obtain full and open competition through the use of competitive
procedures.” 24 It also contains several exceptions that allow for a sole-source contract under
certain circumstances, including if:
• Only one “responsible source” can fulfill the contract’s requirements;25
• Procurement of the good or service has an “unusual and compelling urgency”;26
• A national emergency or need to “achieve industrial mobilization” exists;27
• The offeror bids a concept that is “unique or innovative” and “not otherwise
available”;28
• The contract is for certain types of commercial products;29
• The contract is for certain types of research and innovation awards; and30
• The contract is for certain types of small businesses.31
Title 10 requires that DOD contracting officers provide detailed justification for such exceptions
and receive approval to proceed from their agency head or other designated official.32

18 FAR, §16.301-1.
19 FAR, §16.306.
20 Harvey Sapolsky et al, “U.S. Defense Politics: The Origins of Security Policy,” (Routledge, 2020), Ch. 8.
21 FAR, §2.101.
22 10 U.S.C., §3204. 41 U.S.C. § 4103.
23 FAR, §6.3.
24 10 U.S.C., §3201.
25 10 U.S.C. §3204(a).
26 10 U.S.C. §3204(c).
27 10 U.S.C. §3204(a).
28 10 U.S.C., §3204(b).
29 10 U.S.C. §3204(a).
30 10 U.S.C. §3204(d).
31 DFARS, PGI 219.808-1: Sole Source, September 2023.
32 10 U.S.C., §3204(e). Additionally, these justifications are required to be made publicly available within a certain
timeframe.
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Additionally, statute and regulation require DOD to conduct what is called a “price negotiation”
process for sole-source contracts.33 Some sole-source contracts also require that the contractor
submit pricing data and information to help prevent overcharging the government. This process is
explained in the next section of this report.
Statutes and Regulation Regarding Contract Pricing
Statutes and regulations regarding contract pricing aim to ensure that the contract price is both
fair and reasonable. Statute and regulation also recognize the role that profit plays in motivating
vendors to compete for government contracts.34 Reconciling incentives for vendors to bid for
government contracts with fair and reasonable prices is a central tension of federal acquisition
regulation.
In the absence of competition among multiple incentivized vendors, determining a fair and
reasonable cost of a DOD contract is complex. The FAR acknowledges “the uncertainties
involved in performance and their possible impact upon costs,” for sole-source contracts. It also
requires the government to identify and evaluate these uncertainties. The FAR also states that
contracts involving “complex requirements, particularly those unique to the government, usually
result in greater risk assumption by the Government.”35 Many DOD contracts contain complex,
government-unique requirements, particularly high-cost procurement contracts for complex
combat and weapons systems.
Government contracting officers are tasked with understanding these complex requirements and
ensuring that the final contract price is fair and reasonable. According to the FAR, contracting
officers are responsible for “evaluating the reasonableness of the offered prices” using a variety
of techniques and procedures.36 Several statutes and regulations provide guardrails for DOD
contract pricing, attempting to ensure that prices remain fair and reasonable. These guardrails
include requiring that contractors provide cost and pricing data, and that contractors submit this
data in a uniform and timely manner. Selected laws and regulations are discussed below. Certain
data requirements are not levied on all types of contracts.
Truthful Cost or Pricing Data (10 U.S.C. §§3701-08; 41 U.S.C.§§3501-
09)
The Truth in Negotiations Act (TINA) was enacted in 1962 to prevent government contractors
from overcharging the U.S. government.37 The name has since changed to be Truthful Cost or
Pricing Data, although it is still commonly called TINA. While certain parts of the statute have
changed since its original enactment, TINA is currently codified at 41 U.S.C. §§3501-09 and 10
U.S.C.§§3701-08.38 The current statute contains definitions and provides guidelines for how
agencies should require and certify cost and pricing data. TINA is implemented in regulation in
both the FAR and DFARS.39

33 10 U.S.C. §3204.
34 Federal Acquisition Regulation, §15.402.
35 FAR, §16.104.
36 FAR, §15.404-1.
37 P.L. 87-63, 70A §128, https://www.congress.gov/87/statute/STATUTE-76/STATUTE-76-Pg528.pdf.
38 41 U.S.C., Ch. 35; 10 U.S.C., Ch. 271.
39 See FAR, §15.403, and DFARS PGI 215.4: Contract Pricing, October 2023.
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TINA is intended to support contracting officers and other government officials involved in the
contracting process. According to the Department of Justice, TINA’s goal was to “help level the
playing field in sole-source contracts… by making sure that government negotiators have access
to the cost or pricing data that the offeror used when developing its proposal.”40 Similarly, the
Defense Contract Audit Agency (DCAA), which performs DOD’s contract audits, states “the
purpose of [TINA] is to put the Government on equal footing with the contractors when
submitting certified cost or pricing data.”41
The offeror of a sole-source contract that exceeds the TINA threshold (currently $2 million) must
submit certified cost or pricing data that is “accurate, complete, and current” to the government.42
These requirements are usually determined during the contract’s negotiation process, and often
must also include subcontract cost data. TINA also includes penalties for contractors that do not
comply with its requirements.
Under TINA, a contractor found to have provided the government defective pricing, or data that
is not “accurate, complete, and current,” can be subject to a “price adjustment remedy.” Such a
remedy may require the contractor to repay DOD a portion of the money it earned on the contract,
sometimes with interest applied.43 Contractors may also be held liable for making false or
fraudulent claims under, for example, the False Claims Act, the anti-fraud provision of the
Contracts Dispute Act, and the Program Fraud Civil Remedies Act. For more information, see
CRS Report R45322, Selected Legal Tools for Maintaining Government Contractor
Accountability, by David H. Carpenter.
DOD’s Defective Pricing Audit Process
Contractors may not always submit sufficiently accurate or up-to-date pricing data required by
TINA. According to DCAA, “defective pricing occurs when a contractor does not submit or
disclose to the government certified cost or pricing data that is accurate, complete, and current
prior to reaching a price agreement.”44 Throughout DOD’s contracting process, statutory and
regulatory requirements are in place to try to prevent, identify, and ameliorate defective pricing.
Federal regulations impose 14 principles of ethical conduct with which federal employees must
comply.45 One of these principles requires that federal employees “shall disclose waste, fraud,
abuse, and corruption to the appropriate authorities.”46 This includes any potential defective
pricing, and means that DOD contracting officers have an affirmative responsibility to report any
suspected cases of defective pricing. Title 10, United States Code, Sec. 3702 contains the
statutory requirements for DOD’s cost or pricing data certification process.

40 Department of Justice, “Government Contractor Agrees to Pay $8.4 Million to Resolve Claims Related to its Failure
to Disclose Cost or Pricing Data,” November 2022.
41 Defense Contract Audit Agency, “Guidebook,” Ch. 14, p. 11.
42 DFARS, PGI 215.4: Contract Pricing, October 2023.
43 Ibid.
44 Defense Contract Audit Agency, “Guidebook,” Ch. 14.
45 5 C.F.R. § 2635.101(b). This is not applicable to enlisted members of the uniformed service. The Uniform Code of
Military Justice does not contain an equivalent provision.
46 Department of Justice, “The 14 General Principles of Ethical Conduct.” The basis for these principles can be found
in 5 C.F.R., §2635.101, “Basic Obligation of Public Service,” which includes similar language.
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While not all cases of defective pricing are fraudulent, some defective pricing audits may become
fraud cases. Because DOD does not prosecute fraud, such a case would then be investigated by
the Department of Justice.47
Multiple factors and definitions from both statute and regulation determine how contractors may
be found responsible for overcharging the government. The phases of this process can be
separated into three categories: pre-negotiation, negotiation, and post-award, which are discussed
in turn below.
Pre-Negotiation
Before a contract is negotiated and ultimately awarded (pre-negotiation), DOD normally releases
a request for proposal (RFP). This is a document that outlines the contract’s requirements and its
anticipated terms and conditions.48 The FAR contains procedures contracting officers must follow
when drafting any contract’s RFP. The procedures require offerors to submit certified cost or
pricing data. Contractors must provide the cost and pricing data, the information used during the
contractor’s price estimating process, and “the relationship between line-item prices and the total
contract price.”49 The FAR specifically notes that:
there is a clear distinction between submitting certified cost or pricing data and merely
making available books, records, and other documents without identification. The
requirement for submission of certified cost or pricing data is met when all accurate
certified cost or pricing data reasonably available to the offeror have been submitted, either
actually or by specific identification, to the Contracting Officer or an authorized
representative.”50
This language explicitly requires offerors to submit cost or pricing data with a degree of
analytical rigor and curation beyond simply submitting raw data. It also establishes a standard
that the data submitted must be “reasonably available,” which is a requirement that DOD may
later assess during the audit process. Also subject to assessment in the event of an audit, per the
FAR, is the vendor’s obligation to provide the data to the government, whether or not the
government requests it.
Additionally, although contracting officers are responsible for examining cost and pricing data,
this wording of the FAR places some of the burden directly on the offeror as well, with
consequences should the offeror be found to have submitted inaccurate data. These consequences
will be discussed below.
Negotiation
During contract negotiations, contracting officers must develop a Price Negotiation Memorandum
(PNM), which DCAA may use later during the auditing process, if a contract is believed to have
defective pricing. Per the FAR, this document supports “[determination] of fair and reasonable
price” and “documents the contracting officer’s determination that the statutory price or fee

47 31 U.S.C. §3729-3733. According to the Department of Justice, the False Claims Act (FCA) was originally enacted
“in response to defense contractor fraud during the American Civil War.” https://www.justice.gov/civil/false-claims-
act. DOD can bring fraud claims under the Program Fraud Civil Remedies Act
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/550505p.pdf.
48 Defense Acquisition University, “Request for Proposal.”
49 FAR, §15.203.
50 FAR, §15.408.
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limitations have not been exceeded.”51 The FAR states that cost or pricing data must be submitted
“as close as practicable to the date of agreement on price” between the offeror and the
government.52 This submission includes an acknowledgement by the contractor that the data it is
submitting is “accurate, complete, and current.”53 TINA also requires that similar cost or pricing
data be submitted before a prime contract’s price is modified to exceed $500,000.54
The contracting officer is to conduct a “proposal analysis” of the data to “ensure that the final
agreed-to price is fair and reasonable.”55 DOD has specific guidelines and processes to analyze
the pricing of certain goods and services.56 Even if a contract is not subject to TINA requirements,
the contractor may still need to provide what statute and regulation refer to as “data other than
certified cost or pricing data.” The Government Accountability Office (GAO) defines this as
“pricing data, cost data, and judgmental information necessary for the contracting officer to
determine a fair or reasonable price or to determine cost realism.”57
Post-Contract Award
The defective pricing audit occurs post-contract award.58 DCAA may conduct Truth in
Negotiation audits to ensure that the contract cost has been accurate. It is to use the PNM that was
submitted pre-award, as well as any other data that it collected during the pre-negotiation and
negotiation phases as references during the audit.
When conducting the audit, DCAA analyzes the cost or pricing data that was submitted during the
negotiation process. It applies the standards outlined in TINA and regulation, including whether:
• The data was “reasonably available”;
• The data was disclosed to the government; and
• The government relied on this data during its price negotiation and agreement.59
According to its audit manual, DCAA begins post-award audits with a “risk assessment” and
scoping exercise. The risk assessment allows DCAA to understand what areas of the contract
require further evaluation.60
DOD has several options if it finds that a contractor has submitted defective cost and pricing data.
One option is to seek a “price adjustment remedy,” where the contractor and DOD can settle the
case. If this happens, DOD can issue a Recommended Price Adjustment (RPA), or “an amount
reported by DCAA in a post-award audit that reflects the estimated increase in contract price

51 FAR, §15.404-4.
52 FAR, §15.406-2.
53 Ibid.
54 10 U.S.C. §2306a.
55 DFARS, PGI 215.404-1: Proposal Analysis Techniques, September 2023.
56 For example, the Defense Contract Management Agency has specific guidance for contracting officers to determine
commercially available item pricing. See, https://www.dcma.mil/commercial-item-group/.
57 Government Accountability Office, “Federal Contracting: Implementation of Changes to Cost or Pricing Data
Requirements,” GAO-22-105307, April 2022, p. 6.
58 Defective Pricing, or Post-Award Audits, are one of several types of audits that DCAA conducts. Other types of
audits may be found in DODI 7640.02 Policy for Follow-Up on Contract Audit Reports, available at
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/764002p.pdf#page=14.
59 Defense Contract Audit Agency, “Guidebook,” Ch. 14.
60 Ibid.
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caused by a contractor submitting defective cost or pricing data.”61 It may also refer fraudulent
activity to the DOJ or administratively pursue a Program Fraud Civil Remedies Act fraud claim.62
DOD’s definition of an RPA reflects the FAR language about the responsibility of defective
pricing falling on the contractor instead of the government: the contract’s defective price is
caused by the contractor.63
As a second option, DOD can also recover its overpayment with interest. Per statute, if a
contractor is found to have submitted defective cost or pricing data that led to overpayment by the
government,
…the contractor shall be liable to the United States-
(A) for interest on the amount of such overpayment, to be computed-
(i) for the period beginning on the date the overpayment was made to the contractor
and ending on the date the contractor repays the amount of such overpayment to the
United States; and
(ii) at the current rate prescribed by the Secretary of the Treasury under section 6621
of the Internal Revenue Code of 1986; and
(B) if the submission of such defective data was a knowing submission, for an additional
amount equal to the amount of the overpayment. 64
Per the False Claims Act, a contractor may also be subject to paying up to three times the original
amount of damages, as well as a “penalty that is linked to inflation.”65
Case Study: DOD Inspector General Audit of TransDigm
In 2021, DOD’s Inspector General (DODIG) released a report of its audit on the TransDigm Group Inc.
(TransDigm), a DOD contractor that provides spare parts for aircraft. The audit was the result of a congressional
request to determine “whether TransDigm earned excess profits.”66
DODIG found that TransDigm earned a total excess profit of “at least $20.8 mil ion” in over one hundred
separate contracts and further noted that DOD was not ful y able to conduct a cost analysis as TransDigm did not
submit cost or pricing data for its contracts.67
The audit also asserted that TransDigm’s business model was to produce highly specialized spare parts, allowing it
to operate in a sole-source environment that often involved low dol ar-value contracts that did not surpass the
TINA threshold, but that added up to large revenue totals for the company.68
Finally, DODIG noted that the “the lack of policy compelling contractors to provide uncertified cost data when
requested” can lead to excess contractor profits. DOD IG recommended that DOD Defense Pricing and
Contracting (DPC) Principal Director review and potentially update the DFARS to strengthen cost analysis
requirements “to determine price reasonableness for sole-source parts not subject to TINA.”69

61 Department of Defense, “Policy for Follow-Up on Contract Audit Reports,” April 2015, p. 18. DFARS, PGI
215.402: Pricing Policy, September 2023.
62 CRS Report R45322, Selected Legal Tools for Maintaining Government Contractor Accountability, by David H.
Carpenter
63 FAR, §15.408.
64 10 U.S.C., §2306a.
65 U.S. Department of Justice, “The False Claims Act,” April 2023. https://www.justice.gov/civil/false-claims-act.
66 Department of Defense Office of Inspector General, “Audit of the Business Model for TransDigm Group Inc. and Its
Impact on Department of Defense Spare Parts Pricing,” December 2021.
67 Ibid.
68 Ibid. According to the audit, more than 95% of the contracts that TransDigm won from DOD were not subject to
TINA cost or pricing data requirements.
69 Ibid.
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According to testimony given by Deputy Inspector General Theresa S. Hul fol owing the report’s release, “the
issues raised in this audit are not limited to just this company and its contracts with DOD. Sole source
contractors’ unwil ingness to share cost data, and DOD contracting officers’ limited success in negotiating fair and
reasonable prices for sole-source parts are common findings that DODIG has highlighted in our audit reports for
more than 20 years.”70
Cost Accounting Standards Rules
DOD’s cost accounting standards (CAS) differ slightly from its process for auditing defective
pricing, although the two procedures share some purpose and execution. The purpose of the CAS
is to provide general accounting regularity and uniformity across all of DOD’s many
contractors.71 This, in turn, allows contracting officers to better understand contract accounting
data, including data that may be used in contract pricing. The cost elements included in a contract
proposal must also be consistent with the contractor’s cost accounting system.72
CAS requirements and their connection of cost information and contract negotiation are codified
in statute: according to 41 U.S.C. §1502 “cost accounting standards… shall be mandatory for use
by all executive agencies and by contractors and subcontractors in estimating, accumulating, and
reporting costs in connection with pricing and administration of… all negotiated prime contract
and subcontract procurements.”73
Several categories of procurement are exempt from CAS rules, including:
• Contracts for commercial items (explained in greater detail later in this report);
• Contracts where the prices are “set by law or regulation”;
• Firm fixed-price contracts “awarded on the bases of adequate price competition”;
and
• Contracts under $7.5 million.74
Additionally, the military departments and the Office of the Secretary of Defense are authorized
to grant CAS waivers in compliance with the FAR and statute. This includes proving that the
contract would not be “reasonably obtained” without the waiver; the price of the contract can still
be determined to be “fair and reasonable” without CAS data; and that “there are demonstrated
benefits to granting the waiver.”75
Title 41 also establishes the Cost Accounting Standards Board (CASB), a federal organization
tasked with generating and promulgating accounting practices and standards. These standards are
codified in Part 9904 of the FAR.76 The FAR notes that one of the federal government

70 Department of Defense Office of Inspector General, “Statement of Theresa S. Hull, Deputy Inspector General for a
Hearing on ‘Price Gouging in Military Contracts: New Inspector General Report Exposes Excess profit Obtained by
TransDigm Group,” January 2022, p. 3.
71 41 U.S.C. §1502.
72 DFARS, §252.215-7009.
73 41 U.S.C. §1502.
74 Ibid.
75 DFARS, §230.2.
76 FAR Part 9904. Additional exemptions and procedures can be found in the CFR. The FAR is Chapter 1 of CFR, Title
48, and the DFARS is Chapter 2 of the CFR, Title 48. https://www.ecfr.gov/current/title-48.
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representatives on the CASB must be a DOD representative with “experience in Government
contract cost accounting,” appointed by the Secretary of Defense.77
The DFARS contains specific criteria for an “acceptable accounting system,” including that the
system and its associated cost data are “reliable” and “consistent” with DOD billing procedures.78
DOD officials must be able to “rely upon information produced by the system that is needed for
management purposes.”79 Contracting officers must note the applicable CAS requirements when
issuing a contract solicitation.80
Critics of CAS requirements, including some commentators associated with the defense industry,
assert that auditing systems are inflexible and deter some companies from wanting to contract
with DOD.81
Case Study: Department of Justice Investigation of Booz Allen Hamilton
In July 2023, Booz Allen Hamilton, a company that frequently contracts with the Department of Defense and
other federal agencies, settled a Department of Justice lawsuit alleging that the company had overcharged
government customers.82 Booz Allen Hamilton agreed to pay $377 mil ion in response to allegations dating from
2011 to 2021 that it “improperly charged costs to its government contracts and subcontracts that should have
been bil ed to its commercial and international contracts.”83 According to the Department of Justice, Booz Al en
Hamilton also “failed to disclose to the government the methods by which it accounted for costs supporting its
commercial and international businesses." The lawsuit was filed under a “whistleblower provision” of the False
Claims Act by a former Booz Allen Hamilton employee. The Defense Contract Agency (DCAA) supported the
Justice Department during its investigation.84
Selected Recent National Defense Authorization Act Provisions
Related to DOD Contract Pricing
Congress has historically addressed contract pricing, particularly DOD contract pricing. Several
provisions in recent National Defense Authorization Acts (NDAAs) have focused on improving
DOD’s contract pricing processes. These include, but are not limited to, the provisions listed
below.

77 FAR, §30. The other Federal representative must be a representative from the General Services Administration
(GSA). Two individuals from the private sector are also members of the CASB, and the head of the CASB is the
Administrator of the Office of Federal Procurement Policy (OFPP), an office within the Office of Management and
Budget (OMB).
78 DFARS, §252.242-7006.
79 Ibid.
80 FAR, §30.201-3. “(a) The contracting officer shall insert the provision at 52.230-1, Cost Accounting
Standards Notices and Certification, in solicitations for proposed contracts subject to CAS as specified in
48 CFR 9903.201.”
81 Report of the Advisory Panel on Streamlining and Codifying Acquisition Regulations, January 2019,
https://discover.dtic.mil/wp-content/uploads/809-Panel-2019/Volume2/Recommendation_30.pdf.
82 Department of Justice, “Booz Allen Agrees to Pay $377.45 Million to Settle False Claims Act Allegations,” July
2023.
83 Ibid.
84 Ibid.
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Fiscal Year 2018 NDAA (P.L. 115-91)
Section 811 of the NDAA for FY2018 modified Title 10’s cost or pricing data and reporting
requirements.85 It increased the threshold for contracts requiring certified cost or pricing data
from $750,000 to $2,000,000. According to a GAO study on the impacts of this threshold
increase, this change halved the number of contracts subject to TINA requirements.86 This
provision also modified Title 10 to allow contracting officers to require that offerors submit data
other than certified cost or pricing data.87
John S. McCain NDAA for Fiscal Year 2019 (P.L. 115-232)
Section 890 of the NDAA for FY2019 established a pilot program to accelerate DOD’s
contracting and pricing processes for contracts greater than $50 million.88 The program allowed
selected contracts to reduce the required amount of cost or pricing data submitted to the
government, and allowed acquisition officials to base price reasonableness determinations on
“actual cost and pricing data for purchases of the same or similar [DOD] products.”89 The pilot
program was extended by two years in Section 825 of the FY2020 NDAA90 and by one additional
year in Section 818 of the FY2023 NDAA .91
DOD launched the pilot program in 2019, allowing contracting officers with prior approval from
the Principal Director, Defense Pricing and Contracting (DPC) to deviate from DFARS cost or
pricing data requirements.92 DOD noted in the issuance of guidance for the pilot program that the
program was intended to “assess the impact of the efficiencies achieved… including reducing
contractor proposal costs and the time required to award contracts” greater than $50 million.93
In early 2023, DOD extended the pilot program and issued guidance stating that contracting
officers may “determine the extent, structure, and level of detail of the historical actual cost data
the contractor will be required to submit in lieu of providing complete certified cost or pricing
data.”94 DOD noted that this pilot program is “best suited” for contracts with a “recurring nature
for which there is reliable, historical actual cost data, and with companies that have approved
business systems.”95 Additionally, DOD noted that fixed-price incentive contracts are not required

85 P.L. 115-91, §811.
86 Government Accountability Office, Federal Contracting: Implementation of Changes to Cost or Pricing Data
Requirements, April 2022, p. 14. With the $750,000 threshold, less than 1% of DOD and the National Aeronautics and
Space Administration’s (NASA) awards were subject to TINA cost or pricing data requirements; when the NDAA
increased the threshold to $2,000,000, approximately 0.5% of DOD and NASA’s awards were subject to these
requirements.
87 Ibid, p. 2.
88 P.L. 115-232, §890.
89 Ibid.
90 P.L. 116-92, §825.
91 P.L. 115-232, §818.
92 Department of Defense, “Class Deviation: Sec 890 Pilot Program to Accelerate Contracting and Pricing Processes,”
April 2019.
93 Department of Defense, “Class Deviation: Sec 890 Pilot Program to Accelerate Contracting and Pricing Processes,”
April 2019, p. 2.
94 Department of Defense, “Class Deviation: Sec 890 Pilot Program to Accelerate Contracting and Pricing Processes,”
March 2023. https://www.acq.osd.mil/dpap/policy/policyvault/USA002420-22-DPC.pdf.
95 Ibid.
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for the pilot program, but could reduce the cost risk and allow DOD to measure results more
easily.96
Fiscal Year 2020 NDAA (P.L. 116-92)
Section 803 of the NDAA for FY2020 renders an offeror “who fails to make a good faith effort to
comply with a reasonable request” for price or cost data ineligible to win the contract award
unless the head of the contracting agency submits certain criteria for justification.97 It also
requires that the Undersecretary of Defense for Acquisition and Sustainment (A&S) submit a
report identifying contractors that “have denied multiple requests” for cost or pricing data but still
received a contract award.98
Section 803 also bars contracting officers from determining whether a price is “fair or
reasonable” only using historical prices.99 DOD fully implemented this amendment to the U.S.
code as an amendment to the DFARS in August 2023.100
Waivers and Exceptions
Federal law provides several exceptions and authorizes waivers to various contract pricing
requirements. As a result, waivers and exceptions play an important role in contract pricing
oversight. Determining what contracts are or are not required to fulfill cost and pricing data
submission depends on how the exception process is codified, as well as the requirements for a
waiver. Below are several key categories of contracts that currently are generally exempt from
DOD contracting requirements. Procurement agency heads may also waive TINA requirements in
“an exceptional case.”101
Indefinite Delivery, Indefinite Quantity Contracts
The Federal Acquisition Regulation (FAR) definition of an indefinite delivery, indefinite quantity
(IDIQ) contract reads, “provides for an indefinite quantity, within stated limits, of supplies or
services during a fixed period. The Government places orders for individual requirements.”102
According to the General Services Administration (GSA), “[IDIQ contracts] are used when GSA
can’t determine, above a specified minimum, the precise quantities of supplies or services that the
government will require during the contract period.”103
According to a GAO study, IDIQ contracts account for roughly one-third of total government
contract obligations.104 While DOD’s sole-source IDIQ contracts must follow certified cost or

96 Ibid.
97 P.L. 116-92, §803. The justification criteria for exception requires that the head of the contracting activity determine
that the contract is “in the best interest of the Government” based on several considerations.
98 P.L. 116-92, §803.
99 Ibid.
100 Department of Defense, “Defense FAR Supplement Publication Notice,” October 2023.
101 10 U.S.C., §2306a. The FAR’s only example listed for its agency head exception determination is for cases where
an offeror has already provided cost and pricing data, but does not include any other potential examples of “exceptional
cases.” See DFARS PGI 125.4, “Contract Pricing.”
102 FAR, §16.504.
103 General Services Administration, “Indefinite Delivery, Indefinite Quantity Contracts,” https://www.gsa.gov/small-
business/register-your-business/explore-business-models/indefinite-delivery-indefinite-quantity-idiq.
104 U.S. Government Accountability Office, Federal Contracts: Agencies Widely Used Indefinite Contracts to Provide
Flexibility to Meet Mission Needs, 17-329, April 13, 2017, https://www.gao.gov/products/gao-17-329.
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pricing data requirements like other sole-source DOD contracts, the more flexible nature of the
timelines and ordering associated with IDIQ contracts arguably has led to less-defined prices, as
well as inconsistent application of pricing requirements.105 The 2017 GAO study found that prices
for IDIQ contracts at DOD “were established at different points, depending on how well-defined
the contract requirements were at the time of the contract award.”106
Commercial Items
The process of determining whether an item is commercial or not is a critical component of
defense contract pricing, as it normally determines the level of scrutiny a contract receives.
Commercial items are products or services that are sold or provided to the general public “under
terms and conditions similar to those offered to the Federal Government.”107 Commercial items
are exempt from many procurement-related statutory and regulatory requirements, including
those regarding pricing.108
Commercial items are often exempt from pricing requirements based on a presumption that a fair
market price has already been set on the commercial market. The DFARS treats commercial items
as a separate group from noncommercial items, but notes that “obtaining sufficient data from the
offeror is particularly critical in situations where an item is determined to be a commercial
product or service” that is sole source.109
DOD’s Defense Contract Management Agency (DCMA), maintains a Commercial Item Database
for DOD contracting officers’ use when writing and assessing contract solicitations.110A 2018
GAO study on how DOD makes commercial item determinations noted that “in some cases,
contracting officers reviewing a prior determination discovered that it was based on inaccurate
information.”111
According to DAU, “common items” of commercial applications include:
• Commercial off-the-shelf (COTS) Defense Business Systems, or information
systems that support DOD business operations (including contract pricing
systems);
• Cyber services;
• Cloud services;
• Software licenses; and
• Telecommunications and wireless services.112

105 For example, solicitations for multiple-award IDIQ contracts for similar services that are awarded to every
qualifying offeror do not require cost or price as a consideration for contract award. See 10 U.S.C. §3241.
106 U.S. Government Accountability Office, Federal Contracts: Agencies Widely Used Indefinite Contracts to Provide
Flexibility to Meet Mission Needs, 17-329, April 13, 2017, https://www.gao.gov/products/gao-17-329.
107 FAR, Subpart 2.1. The FAR also includes products or services that are “soon to be sold to the general public” as
commercial products, as well as products that “have evolved” from commercial products with “minor modifications of
a type not customarily available in the commercial marketplace.”
10810 U.S.C., §2306a. For example, commercial items are specifically exempt from TINA requirements.
109 DFARS PGI 125.4, “Contract Pricing.”
110Defense Contract Management Agency, “Commercial Item Group.”
111 Government Accountability Office, “Defense Contracts: Improved Information Sharing Could Help DOD
Determine Whether Items Are Commercial and Reasonably Priced,” July 2018, p. 2.
112 Defense Acquisition University, “Contracting Cone: Federal Supply Schedule.”
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While commercial items are often subject to less pricing-related requirements, DOD must still be
able to determine whether or not its price is reasonable. While marketplace information is often
available, GAO found that “obtaining market-related information can be challenging because the
products DOD requires may not be widely available in the commercial marketplace.”113 However,
because commercial items are subject to less pricing-related requirements, DOD may struggle to
obtain pricing data from vendors of commercial items. According to the same 2018 GAO study,
“while pricing data is key to DOD’s ability to determine price reasonableness, several contracting
officers reported that contractors were less willing to provide data once an item was determined
commercial.”114
Issues for Congress
Regulatory Framework
In the past, Congress has updated the regulatory framework for DOD contract pricing to try to
stop vendors from overcharging the government for goods and services. The Weapons Systems
Acquisition Reform Act of 2009 (P.L. 111-23), included provisions that aimed to “ensure
competition throughout the lifecycle of major defense acquisition programs”115 and to prevent
“critical cost growth in major defense acquisition programs."116
Other past acquisition reform initiatives, such as DOD’s “Better Buying Power,” also included
efforts to mandate contracting strategies conducive to improved pricing and increased
competition. For example, the initial 2010 Better Buying Power memorandum called to “phase
out Time and Material and sole-source ID/IQ contracts wherever possible,” and have “profit/fee
tied to weighted guidelines” for cost-plus-fixed-fee contracts.117
Congress may consider whether or not to add statutory guidelines that provide more rigor to the
contract pricing process to potentially reduce the chances that the government is overcharged.
Conversely, Congress may consider whether or not to pursue a streamlining of the contract
pricing process to potentially invite additional vendors into the market and foster competition.
Some critics of certain defense contract pricing statutes and regulations argue that these
additional regulatory compliance costs discourage nontraditional vendors, or vendors with little or
no recent experience with DOD, from working with DOD, and that the relative complexity of
DOD contracting requirements compared with those of the commercial sector constitute a barrier
to entry into the defense contracting sector.118 In line with these critiques, one survey of DOD
contractors claimed that a quarter of respondents “said their companies have considered pulling

113 Government Accountability Office, “Defense Contracts: Improved Information Sharing Could Help DOD
Determine Whether Items Are Commercial and Reasonably Priced,” July 2018, p. 2.
114 Ibid.
115 P.L. 111-23, §202.
116 P.L. 111-23, §206.
117 Undersecretary of Defense for Acquisition, Technology, and Logistics, Better Buying Power Mandate for Restoring
Affordability and Productivity in Defense Spending, June 28, 2010, pp. 5-6,
https://dair.nps.edu/bitstream/123456789/3837/1/SEC809-RL-10-0143.pdf.
118 See, for example, Daniel Wilson, “DOD Regulatory Burden Undercutting Small Biz Outreach,” Law360, February
13, 2023.
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out of at least some government markets,” due to “government-specific regulations that make it
too hard or not worthwhile to work for government.”119
Other commentators assert that the actual price of what some analysts call DOD’s “regulatory
cost premium,” or the cost imposed on contractors of adhering to contracting regulatory
requirements, particularly in comparison with the commercial market, is not certain, and that
criticisms claiming that regulation disincentivizes contractors from working with DOD are
unfounded. DOD has argued against criticism that contractors profit less with DOD than they
would in the commercial sector. A recent DOD study on the financial status of defense contractors
found that “in 8 out of 9 key financial metrics, defense contractors out-performed commercial
counterparts,” and that “although profit margins are somewhat lower than commercial
counterparts, the gap is more than offset by lower asset and investment requirements for defense
contractors.”120 The same DOD study found that assertions from industry that “in most cases the
profitability for government customers is insufficient to finance [R&D] investments did not
appear to be demonstrated by the data” that DOD found.121
A 2001 RAND study on the subject found that many regulatory burden estimates, often sponsored
by defense contractors, are “backed by limited data.” 122 The same RAND study estimated that the
costs of regulatory compliance for contractors is about 3%-4%, and states that “most regulatory
burden cost savings are in the area of indirect costs and should thus show up in overhead cost
savings.”123
According to the 2023 DOD contract finance study, “the Defense Industry is financially healthy.”
Furthermore, the DOD study found that “the performance of [the defense] industry, in aggregate,
has improved over the past twenty years,” and that profit margins have increased from 7%-9% to
11%-13%.124 Congress may consider whether or not to task DOD with performing additional
analysis about contractor profits, and/or studying the financial risk that contractors take when
working with DOD.
Dollar Thresholds
Only contracts valued above a set dollar amount threshold are subject to certain types of pricing-
related regulatory requirements. For example, any contract for less than $7.5 million is not
subject to Cost Accounting Standards and any contract under $2 million is not subject to Truth in
Negotiation Act cost and pricing data submission requirements.125
Many of these thresholds are established in statute and Congress may consider increasing or
decreasing them, depending on its policy objective. Decreasing the dollar threshold would likely
subject more contracts to pricing requirements, while increasing the threshold would likely
subject fewer contracts to pricing requirements. Inflation could also affect such policy choices, as

119 Moshe Schwartz and Michelle V. Johnson, “How Not to Alienate Business Partners: A Framework for Addressing
Factors Impacting Retention of Defense Contractors,” George Mason University Greg and Camille Center for
Government Contracting White Paper Series, vol. 19 (November 2023), p. 5.
120 Department of Defense, “Contract Finance Study Report,” April 2023, p. 18.
121 Department of Defense, “Contract Finance Study Report,” April 2023, p. 19.
122 RAND, “An Overview of Acquisition Reform Cost Savings Estimates,” 2001, p. xvi.
123 RAND, “An Overview of Acquisition Reform Cost Savings Estimates,” 2001, p. xx.
124 Department of Defense, “Contract Finance Study Report,” April 2023, p. 21.
125 41 U.S.C. §1502 and DFARS, PGI 215.4: Contract Pricing, October 2023.
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rising inflation rates may subject an increased proportion of contracts to pricing requirements
should the current threshold remain the same.126
Pricing Data Reliability
Verifying whether a vendor has submitted accurate and current pricing data can be challenging for
contracting officers, particularly given the lack of consistent and reliable indicators for military-
unique products. According to GAO, when vendors are not required to submit certified cost or
pricing data, contracting officers may use other data, including commercial or historical analogs,
to determine a fair and reasonable price.127 However, as RAND notes, “the widespread
competition so important in determining price in the commercial world may not be fully
functional in the marketplace for defense-unique weapons systems,”128 which makes using
commercial price analogs difficult.
Organizational limitations also make analysis of pricing data difficult. While past DOD
acquisition reforms, including the Weapon System Acquisition Reform Act of 2009 and the Better
Buying Power initiative, included acquisition workforce improvements, some analysts assert that
issues with the workforce still exist. For example, according to the Section 809 Panel, a
congressionally mandated committee tasked with studying acquisition regulations, “contracting
officers too often request a specific service from [DOD’s auditing offices] without consulting
internal technical specialists about the best way to meet their needs.”129 The Section 809 Panel
also found disconnects between different pricing-related roles within DOD. For example, DOD
contracting officers “express they do not believe auditors can or will tailor their services to meet
contracting officer needs, especially in the pre-award area relating to cost and pricing services.”130
DOD may be able to overcome these organizational and bureaucratic limitations with additional
capacity and/or training. The 809 Panel report found that DOD could “attempt to rebuild organic
pricing capability at the agency level” by “dedicating resources to build pricing expertise.”131 The
report also noted that “the primary dilemma confronting the Acquisition Workforce (AWF) is the
need to fill critical skill gaps,” partially due to DOD civilian workforce reductions in the 1990s.132
However, the defense acquisition workforce has increased overall from about 126,000 individuals
in 2008 to more than 187,000 in 2021.133 This may indicate that many of these issues may stem
from causes other than lack of personnel.

126 DOD’s 2022 guidance, “Managing the Effects of Inflation with Existing Contracts” is one example of DOD
attempts to provide Contracting Officers guidance on addressing inflation and its potential negative impacts on the
defense industrial base. https://www.acq.osd.mil/dpap/policy/policyvault/USA001773-22-DPC.pdf.
127 U.S. Government Accountability Office, Federal Contracting: Implementation of Changes to Cost or Pricing Data
Requirements, 22-105307, April 2022, p. 2, https://www.gao.gov/assets/gao-22-105307.pdf.
128 Mark A. Lorell, John C. Graser, and Cynthia R. Cook, Price Based Acquisition: Issues and Challenges for Defense
Department Procurement of Weapon Systems, RAND, 2005, p. 15,
https://www.rand.org/content/dam/rand/pubs/monographs/2005/RAND_MG337.pdf.
129 Section 809 Panel, “Report on the Advisory Panel on Streamlining and Codifying on Acquisition Regulations,
Volume 1,” January 2018, p. 70.
130 Ibid. The report found that many contracting officers do not find all these audits necessary but still must complete
them due to statutory and regulatory requirements and that these audits ultimately “delay the acquisition process.”
131 Section 809 Panel, “Report on the Advisory Panel on Streamlining and Codifying on Acquisition Regulations,
Volume 1,” January 2018, p. 71.
132 Section 809 Panel, “Report on the Advisory Panel on Streamlining and Codifying on Acquisition Regulations,
Volume 2,” January 2018, p. 64-65.
133 Office of the Undersecretary of Defense for Acquisition and Sustainment, Workforce Metrics: 2021 Executive
Summary, 2021, https://www.hci.mil/about/workforce-metrics.html.
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In addition to increasing the number of personnel in the AWF, DOD announced in 2022 that it
was “implementing the most significant update to acquisition certification since the 1990 Defense
Acquisition Workforce Improvement Act,” to allow personnel to get more practical experience
and spend less time in training.134 Congress may consider assessing the effectiveness of new
initiatives such as this to determine if DOD has adequately considered its pricing capabilities.
Commercial Item Determinations
A provision in the Conference Report of the FY2024 NDAA calls for the Undersecretary of
Defense for Acquisition and Sustainment (USD(A&S)) to conduct a study on the feasibility of
“establishing a default determination that products and services acquired by [DOD] are
commercial and do not require commercial determination.”135 If this provision were ultimately
enacted, it could impact DOD contract pricing requirements, as commercial items are often
exempt from some pricing-related requirements (see “Commercial Items” for additional detail).
Enacting this provision may eventually result in a default commercial determination for DOD
contracts may result in a higher percentage of commercial contract determinations than are
currently classified as such. Should Congress eventually establish the default contract
determination as commercial, this would decrease the administrative burden upon contracting
officers for use of commercial contracts, and could thus incentivize officials to determine that
more contracts are commercial than they currently do. In turn, this may render more contracts
exempt from contract pricing data requirements.
Tradeoffs for Small Businesses and Subcontractors
While cost accounting and pricing data requirements can be beneficial for DOD as it negotiates
contract prices, and can serve as a contractor accountability measure, some of these requirements
may drive away potential vendors, particularly small businesses, subcontractors, and
nontraditional vendors. The government-unique cost accounting capabilities required to contract
with DOD can add a cost burden that smaller companies may not be able to shoulder.
In January 2023, DOD released its “Small Business Strategy,” which acknowledged some of the
challenges small businesses face when contracting DOD, stating that “a complex web of entry
points and intricate regulations… are pushing firms away from us.”136 The Small Business
Strategy also acknowledged that DOD’s “regulations and business practices can be difficult to
understand or otherwise create barriers or increase the cost of doing business with DOD.”137 DOD
also noted that it had solicited input from industry on government practices and regulations and is
using those comments to inform how it can “improve small business participation in
procurements."138 Congress may consider whether or not to take steps to ensure that regulatory

134 Department of Defense, “Strengthening, Empowering the Acquisition Workforce Through Modernization,” press
release, February 2022, https://www.defense.gov/News/News-Stories/Article/Article/2927317/strengthening-
empowering-the-acquisition-workforce-through-modernization/.
135 Senate Armed Services Committee, conference report to accompany H.R. 2670, 118th Cong.,
December, 2023, Section 875.
136 Department of Defense, Small Business Strategy, January, 2023, p. 2,
https://media.defense.gov/2023/Jan/26/2003150429/-1/-1/0/SMALL-BUSINESS-STRATEGY.PDF.
137 Department of Defense, Small Business Strategy, January, 2023, p. 5,
https://media.defense.gov/2023/Jan/26/2003150429/-1/-1/0/SMALL-BUSINESS-STRATEGY.PDF.
138 Department of Defense, Small Business Strategy, January, 2023, p. 17,
https://media.defense.gov/2023/Jan/26/2003150429/-1/-1/0/SMALL-BUSINESS-STRATEGY.PDF.
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guardrails are strong enough to prevent government overpayment of contracts without making
DOD contracting an inaccessible for a diverse array of contractors.

Author Information

Alexandra G. Neenan

Analyst in U.S. Defense Infrastructure Policy

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