Title 10 — Armed Forces
Part V · Chapter 271 — Truthful Cost or Pricing Data (truth in Negotiations)
§ 3706. Price reductions for defective cost or pricing data
Statutory text
Provision Requiring Adjustment.—
In general.—
A prime contract (or change or modification to a prime contract) under which a certificate under section 3702(b) of this title is required shall contain a provision that the price of the contract to the United States, including profit or fee, shall be adjusted to exclude any significant amount by which it may be determined by the head of the agency that such price was increased because the contractor (or any subcontractor required to make available such a certificate) submitted defective cost or pricing data.
What constitutes defective cost or pricing data.—
For the purposes of this chapter, defective cost or pricing data are cost or pricing data which, as of the date of agreement on the price of the contract (or another date agreed upon between the parties), were inaccurate, incomplete, or noncurrent. If for purposes of the preceding sentence the parties agree upon a date other than the date of agreement on the price of the contract, the date agreed upon by the parties shall be as close to the date of agreement on the price of the contract as is practicable.
Valid Defense.—
In determining for purposes of a contract price adjustment under a contract provision required by subsection (a) whether, and to what extent, a contract price was increased because the contractor (or a subcontractor) submitted defective cost or pricing data, it shall be a defense that the United States did not rely on the defective data submitted by the contractor or subcontractor.
Invalid Defenses.—
It is not a defense to an adjustment of the price of a contract under a contract provision required by subsection (a) that—
the price of the contract would not have been modified even if accurate, complete, and current cost or pricing data had been submitted by the contractor or subcontractor because the contractor or subcontractor—
was the sole source of the property or services procured; or
otherwise was in a superior bargaining position with respect to the property or services procured;
the contracting officer should have known that the cost and pricing data in issue were defective even though the contractor or subcontractor took no affirmative action to bring the character of the data to the attention of the contracting officer;
the contract was based on an agreement between the contractor and the United States about the total cost of the contract and there was no agreement about the cost of each item procured under such contract; or
the prime contractor or subcontractor did not submit a certification of cost and pricing data relating to the contract as required under section 3702(b) of this title.
Offsets.—
When allowed.—
A contractor shall be allowed to offset an amount against the amount of a contract price adjustment under a contract provision required by subsection (a) if—
the contractor certifies to the contracting officer (or to a designated representative of the contracting officer) that, to the best of the contractor’s knowledge and belief, the contractor is entitled to the offset; and
the contractor proves that the cost or pricing data were available before the date of agreement on the price of the contract (or price of the modification) or, if applicable consistent with subsection (a)(2), another date agreed upon between the parties, and that the data were not submitted as specified in section 3702(c) of this title before such date.
A contractor shall not be allowed to offset an amount otherwise authorized to be offset under paragraph (1) if—
the certification under section 3702(b) of this title with respect to the cost or pricing data involved was known to be false when signed; or
the United States proves that, had the cost or pricing data referred to in paragraph (1)(B) been submitted to the United States before the date of agreement on the price of the contract (or price of the modification) or, if applicable consistent with subsection (a)(2), another date agreed upon between the parties, the submission of such cost or pricing data would not have resulted in an increase in that price in the amount to be offset.
Legislative history
Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.
William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 div. A title XVIII § 1831(a) · 134 Stat. 3388
Enacted · 10 U.S.C. § 3706
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1831(a), (g), Jan. 1, 2021, 134 Stat. 4209, 4214.)
Source evidence
Code source credit
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1831(a), (g), Jan. 1, 2021, 134 Stat. 4209, 4214.)Enacted provision · exact public law section
(a) New Chapter.— Part V of subtitle A of title 10, United States Code, as added by section 801 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115– 232), 10 USC prec. 3701. is amended by striking chapter 271 and inserting the following: “CHAPTER 271— TRUTHFUL COST OR PRICING DATA (TRUTH IN NEGOTIATIONS) “Sec. “3701. Definitions. “3702. Required cost or pricing data and certification. “3703. Exceptions. “3704. Cost or pricing data on below-threshold contracts. “3705. Submission of other information. “3706. Price reductions for defective cost or pricing data. “3707. Interest and penalties for certain overpayments. “3708. Right to examine contractor records. “§ 3701. Definitions “§ 3702. Required cost or pricing data and certification “§ 3703. Exceptions “§ 3704. Cost or pricing data on below-threshold contracts “§ 3705. Submission of other information “§ 3706. Price reductions for defective cost or pricing data “§ 3707. Interest and penalties for certain overpayments “§ 3708. Right to examine contractor records” .William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1831(g)(1) · 134 Stat. 3388
Struck · 10 U.S.C. § 3706
Pub. L. 116–283, § 1831(g)(1), transferred subsec. (e) of section 2306a of this title to this section, struck out subsec. (e) designation and heading “Price Reductions for Defective Cost or Pricing Data” at beginning
Redesignated · 10 U.S.C. § 3706
Pub. L. 116–283, § 1831(g)(1), transferred subsec. (e) of section 2306a of this title to this section, redesignated pars. (1) to (4) as subsecs. (a) to (d), resepectively
Source evidence
Code amendment note
Pub. L. 116–283, § 1831(g)(1), transferred subsec. (e) of section 2306a of this title to this section, struck out subsec. (e) designation and heading “Price Reductions for Defective Cost or Pricing Data” at beginning, and redesignated pars. (1) to (4) as subsecs. (a) to (d), resepectively.Enacted provision · exact public law section
(1) Transfer.— Subsection (e) of section 2306a of title 10, United States Code, is transferred to section 3706 of such title, as added by subsection (a), inserted after the section heading, and amended— (A) by striking the subsection designation and subsection heading; and (B) by redesignating paragraphs (1), (2), (3), and (4) as subsections (a), (b), (c), and (d), respectively.William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1831(g)(2) · 134 Stat. 3388
Redesignated · 10 U.S.C. § 3706(a)
Pub. L. 116–283, § 1831(g)(2), after redesignation of section 2306a(e)(1) of this title as subsec. (a) of this section, inserted subsec. heading
Redesignated · 10 U.S.C. § 3706(a)
Pub. L. 116–283, § 1831(g)(2), after redesignation of section 2306a(e)(1) of this title as subsec. (a) of this section, redesignated subpar. (A) as par. (1)
Redesignated · 10 U.S.C. § 3706(a)
Pub. L. 116–283, § 1831(g)(2), after redesignation of section 2306a(e)(1) of this title as subsec. (a) of this section, inserted heading
Redesignated · 10 U.S.C. § 3706(a)
Pub. L. 116–283, § 1831(g)(2), after redesignation of section 2306a(e)(1) of this title as subsec. (a) of this section, substituted “section 3702(b) of this title” for “subsection (a)(2)”
Redesignated · 10 U.S.C. § 3706(a)
Pub. L. 116–283, § 1831(g)(2), after redesignation of section 2306a(e)(1) of this title as subsec. (a) of this section, redesignated subpar. (B) as par. (2)
Redesignated · 10 U.S.C. § 3706(a)
Pub. L. 116–283, § 1831(g)(2), after redesignation of section 2306a(e)(1) of this title as subsec. (a) of this section, substituted “of this chapter” for “of this section”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 116–283, § 1831(g)(2), after redesignation of section 2306a(e)(1) of this title as subsec. (a) of this section, inserted subsec. heading, redesignated subpar. (A) as par. (1), inserted heading, and substituted “section 3702(b) of this title” for “subsection (a)(2)”, and redesignated subpar. (B) as par. (2), inserted heading, and substituted “of this chapter” for “of this section”.Enacted provision · exact public law section
(2) Conforming internal redesignations in new 3706(a).— Subsection (a) of such section 3706, as so transferred and redesignated, is amended— (A) by striking “(A) A prime contract” and inserting “ Provision Requiring Adjustment. — “(1) In general.— A prime contract” ; (B) by striking “subsection (a)(2)” and inserting “section 3702(b) of this title”; (C) by redesignating subparagraph (B) as paragraph (2); (D) by inserting “What constitutes defective cost or pricing data.—” before “For the purposes”; and (E) by striking “of this section” and inserting “of this chapter”.William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1831(g)(3) · 134 Stat. 3388
Redesignated · 10 U.S.C. § 3706(b)
Pub. L. 116–283, § 1831(g)(3), after redesignation of section 2306a(e)(2) of this title as subsec. (b) of this section, inserted heading
Redesignated · 10 U.S.C. § 3706(b)
Pub. L. 116–283, § 1831(g)(3), after redesignation of section 2306a(e)(2) of this title as subsec. (b) of this section, substituted “subsection (a)” for “paragraph (1)”
Source evidence
Code amendment note
Subsec. (b). Pub. L. 116–283, § 1831(g)(3), after redesignation of section 2306a(e)(2) of this title as subsec. (b) of this section, inserted heading and substituted “subsection (a)” for “paragraph (1)”.Enacted provision · exact public law section
(3) Conforming internal redesignations in new 3706(b).— Subsection (b) of such section 3706, as so transferred and redesignated, is amended— (A) by inserting “Valid Defense.—” before “In determining for”; and (B) by striking “paragraph (1)” and inserting “subsection (a)”.William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1831(g)(4)(A) · 134 Stat. 3388
Redesignated · 10 U.S.C. § 3706(c)
Pub. L. 116–283, § 1831(g)(4)(A)–(D), after redesignation of section 2306a(e)(3) of this title as subsec. (c) of this section, inserted heading
Redesignated · 10 U.S.C. § 3706(c)
Pub. L. 116–283, § 1831(g)(4)(A)–(D), after redesignation of section 2306a(e)(3) of this title as subsec. (c) of this section, redesignated subpar. (A), and its cls. (i) and (ii), and subpars. (B) to (D) as par. (1), subpars. (A) and (B), and pars. (2) to (4), respectively
Redesignated · 10 U.S.C. § 3706(c)
Pub. L. 116–283, § 1831(g)(4)(A)–(D), after redesignation of section 2306a(e)(3) of this title as subsec. (c) of this section, substituted “subsection (a)” for “paragraph (1)” in introductory provisions
Source evidence
Code amendment note
Subsec. (c). Pub. L. 116–283, § 1831(g)(4)(A)–(D), after redesignation of section 2306a(e)(3) of this title as subsec. (c) of this section, inserted heading, redesignated subpar. (A), and its cls. (i) and (ii), and subpars. (B) to (D) as par. (1), subpars. (A) and (B), and pars. (2) to (4), respectively, and substituted “subsection (a)” for “paragraph (1)” in introductory provisions.Enacted provision · exact public law section
(A) by inserting “Invalid Defenses.—” before “It is not”;William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1831(g)(4)(E) · 134 Stat. 3388
Substituted · 10 U.S.C. § 3706(c)(4)
Pub. L. 116–283, § 1831(g)(4)(E), substituted “section 3702(b) of this title” for “subsection (a)(2)”
Source evidence
Code amendment note
Subsec. (c)(4). Pub. L. 116–283, § 1831(g)(4)(E), substituted “section 3702(b) of this title” for “subsection (a)(2)”.Enacted provision · exact public law section
(E) in paragraph (4), as so redesignated, by striking “subsection (a)(2)” and inserting “section 3702(b) of this title”.William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1831(g)(5)(A) · 134 Stat. 3388
Redesignated · 10 U.S.C. § 3706(d)
Pub. L. 116–283, § 1831(g)(5)(A)–(C), after redesignation of section 2306a(e)(4) of this title as subsec. (d) of this section, inserted heading
Redesignated · 10 U.S.C. § 3706(d)
Pub. L. 116–283, § 1831(g)(5)(A)–(C), after redesignation of section 2306a(e)(4) of this title as subsec. (d) of this section, substituted “subsection (a)” for “paragraph (1)” in introductory provisions
Redesignated · 10 U.S.C. § 3706(d)
Pub. L. 116–283, § 1831(g)(5)(A)–(C), after redesignation of section 2306a(e)(4) of this title as subsec. (d) of this section, redesignated subpars. (A) and (B) as pars. (1) and (2), respectively
Source evidence
Code amendment note
Subsec. (d). Pub. L. 116–283, § 1831(g)(5)(A)–(C), after redesignation of section 2306a(e)(4) of this title as subsec. (d) of this section, inserted heading, substituted “subsection (a)” for “paragraph (1)” in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.Enacted provision · exact public law section
(A) by striking “(A) A contractor shall” and inserting “ Offsets .— “(1) When allowed.— A contractor shall” ;William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1831(g)(5)(A) · 134 Stat. 3388
Inserted · 10 U.S.C. § 3706(d)(1)
Pub. L. 116–283, § 1831(g)(5)(A), (B), (D), inserted heading
Substituted · 10 U.S.C. § 3706(d)(1)
Pub. L. 116–283, § 1831(g)(5)(A), (B), (D), substituted “subsection (a)” for “paragraph (1)” in introductory provisions
Redesignated · 10 U.S.C. § 3706(d)(1)
Pub. L. 116–283, § 1831(g)(5)(A), (B), (D), redesignated cls. (i) and (ii) of former section 2306a(e)(4)(A) as subpars. (A) and (B), respectively
Source evidence
Code amendment note
Subsec. (d)(1). Pub. L. 116–283, § 1831(g)(5)(A), (B), (D), inserted heading, substituted “subsection (a)” for “paragraph (1)” in introductory provisions, and redesignated cls. (i) and (ii) of former section 2306a(e)(4)(A) as subpars. (A) and (B), respectively.Enacted provision · exact public law section
(A) by striking “(A) A contractor shall” and inserting “ Offsets .— “(1) When allowed.— A contractor shall” ;William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1831(g)(5)(E) · 134 Stat. 3388
Substituted · 10 U.S.C. § 3706(d)(1)(B)
Pub. L. 116–283, § 1831(g)(5)(E), substituted “subsection (a)(2)” for “paragraph (1)(B)”
Substituted · 10 U.S.C. § 3706(d)(1)(B)
Pub. L. 116–283, § 1831(g)(5)(E), substituted “section 3702(c) of this title” for “subsection (a)(3)”
Source evidence
Code amendment note
Subsec. (d)(1)(B). Pub. L. 116–283, § 1831(g)(5)(E), substituted “subsection (a)(2)” for “paragraph (1)(B)” and “section 3702(c) of this title” for “subsection (a)(3)”.Enacted provision · exact public law section
(E) in subparagraph (B), as so redesignated by subparagraph (D)— (i) by striking “paragraph (1)(B)” and inserting “subsection (a)(2)”; and (ii) by striking “subsection (a)(3)” and inserting “section 3702(c) of this title”; andWilliam M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1831(g)(5)(F)(i) · 134 Stat. 3388
Substituted · 10 U.S.C. § 3706(d)(2)
Pub. L. 116–283, § 1831(g)(5)(F)(i), (ii), substituted “paragraph (1)” for “subparagraph (A)” in introductory provisions
Redesignated · 10 U.S.C. § 3706(d)(2)
Pub. L. 116–283, § 1831(g)(5)(F)(i), (ii), redesignated cls. (i) and (ii) of former section 2306a(e)(4)(B) as subpars. (A) and (B), respectively
Source evidence
Code amendment note
Subsec. (d)(2). Pub. L. 116–283, § 1831(g)(5)(F)(i), (ii), substituted “paragraph (1)” for “subparagraph (A)” in introductory provisions and redesignated cls. (i) and (ii) of former section 2306a(e)(4)(B) as subpars. (A) and (B), respectively.Enacted provision · exact public law section
(i) by striking “subparagraph (A)” and inserting “paragraph (1)”;William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1831(g)(5)(F)(iii) · 134 Stat. 3388
Substituted · 10 U.S.C. § 3706(d)(2)(A)
Pub. L. 116–283, § 1831(g)(5)(F)(iii), substituted “section 3702(b) of this title” for “subsection (a)(2)”
Source evidence
Code amendment note
Subsec. (d)(2)(A). Pub. L. 116–283, § 1831(g)(5)(F)(iii), substituted “section 3702(b) of this title” for “subsection (a)(2)”.Enacted provision · exact public law section
(iii) in subparagraph (A), as so redesignated, by striking “subsection (a)(2)” and inserting “section 3702(b) of this title”; andWilliam M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 § 1831(g)(5)(F)(iv) · 134 Stat. 3388
Substituted · 10 U.S.C. § 3706(d)(2)(B)
Pub. L. 116–283, § 1831(g)(5)(F)(iv), substituted “in paragraph (1)(B)” for “in subparagraph (A)(ii)”
Substituted · 10 U.S.C. § 3706(d)(2)(B)
Pub. L. 116–283, § 1831(g)(5)(F)(iv), substituted “with subsection (a)(2)” for “with paragraph (1)(B)”
Source evidence
Code amendment note
Subsec. (d)(2)(B). Pub. L. 116–283, § 1831(g)(5)(F)(iv), substituted “in paragraph (1)(B)” for “in subparagraph (A)(ii)” and “with subsection (a)(2)” for “with paragraph (1)(B)”.Enacted provision · exact public law section
(iv) in subparagraph (B), as so redesignated— (I) by striking “subparagraph (A)(ii)” and inserting “paragraph (1)(B)”; and (II) by striking “paragraph (1)(B)” and inserting “subsection (a)(2)”.
28 of 28 references resolved to an enrolled provision
Editorial Notes
Codification
The text of subsec. (e) of section 2306a of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1831(g), was based on Pub. L. 99–500, § 101(c) [title X, § 952(a)], , 100 Stat. 1783–82, 1783–166, and Pub. L. 99–591, § 101(c) [title X, § 952(a)], , 100 Stat. 3341–82, 3341–166; Pub. L. 99–661, div. A, title IX, formerly title IV, § 952(a), , 100 Stat. 3945, renumbered title IX, Pub. L. 100–26, § 3(5), , 101 Stat. 273; Pub. L. 103–355, title I, § 1204(1), , 108 Stat. 3275; Pub. L. 104–106, div. D, title XLIII, § 4321(b)(7)(B), , 110 Stat. 672. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections. Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Amendments
2021—Pub. L. 116–283, § 1831(g)(1), transferred subsec. (e) of section 2306a of this title to this section, struck out subsec. (e) designation and heading “Price Reductions for Defective Cost or Pricing Data” at beginning, and redesignated pars. (1) to (4) as subsecs. (a) to (d), resepectively.
Subsec. (a). Pub. L. 116–283, § 1831(g)(2), after redesignation of section 2306a(e)(1) of this title as subsec. (a) of this section, inserted subsec. heading, redesignated subpar. (A) as par. (1), inserted heading, and substituted “section 3702(b) of this title” for “subsection (a)(2)”, and redesignated subpar. (B) as par. (2), inserted heading, and substituted “of this chapter” for “of this section”.
Subsec. (b). Pub. L. 116–283, § 1831(g)(3), after redesignation of section 2306a(e)(2) of this title as subsec. (b) of this section, inserted heading and substituted “subsection (a)” for “paragraph (1)”.
Subsec. (c). Pub. L. 116–283, § 1831(g)(4)(A)–(D), after redesignation of section 2306a(e)(3) of this title as subsec. (c) of this section, inserted heading, redesignated subpar. (A), and its cls. (i) and (ii), and subpars. (B) to (D) as par. (1), subpars. (A) and (B), and pars. (2) to (4), respectively, and substituted “subsection (a)” for “paragraph (1)” in introductory provisions.
Subsec. (c)(4). Pub. L. 116–283, § 1831(g)(4)(E), substituted “section 3702(b) of this title” for “subsection (a)(2)”.
Subsec. (d). Pub. L. 116–283, § 1831(g)(5)(A)–(C), after redesignation of section 2306a(e)(4) of this title as subsec. (d) of this section, inserted heading, substituted “subsection (a)” for “paragraph (1)” in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.
Subsec. (d)(1). Pub. L. 116–283, § 1831(g)(5)(A), (B), (D), inserted heading, substituted “subsection (a)” for “paragraph (1)” in introductory provisions, and redesignated cls. (i) and (ii) of former section 2306a(e)(4)(A) as subpars. (A) and (B), respectively.
Subsec. (d)(1)(B). Pub. L. 116–283, § 1831(g)(5)(E), substituted “subsection (a)(2)” for “paragraph (1)(B)” and “section 3702(c) of this title” for “subsection (a)(3)”.
Subsec. (d)(2). Pub. L. 116–283, § 1831(g)(5)(F)(i), (ii), substituted “paragraph (1)” for “subparagraph (A)” in introductory provisions and redesignated cls. (i) and (ii) of former section 2306a(e)(4)(B) as subpars. (A) and (B), respectively.
Subsec. (d)(2)(A). Pub. L. 116–283, § 1831(g)(5)(F)(iii), substituted “section 3702(b) of this title” for “subsection (a)(2)”.
Subsec. (d)(2)(B). Pub. L. 116–283, § 1831(g)(5)(F)(iv), substituted “in paragraph (1)(B)” for “in subparagraph (A)(ii)” and “with subsection (a)(2)” for “with paragraph (1)(B)”.
Statutory Notes and Related Subsidiaries
Effective Date
Section and amendment by Pub. L. 116–283 effective , with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
Credits
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1831(a), (g), , 134 Stat. 4209, 4214.)