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Counsel Commentary: Management Decisions: When Is Disclosure Required Under ‘TINA?’

by Stephen L. Bacon

The Defense Contract Audit Agency (DCAA) has ramped up defective pricing audits over the past several years, potentially kickstarting new defective pricing claims brought by the government under the federal Truthful Cost or Pricing Data statute, also known as the Truth in Negotiations Act (TINA). 

TINA requires contractors to disclose “cost or pricing data” to the government during negotiations of certain contracting actions. Those who submit are also required to certify that the data is “accurate, complete and current.” This law provides that the government is entitled to a price adjustment if it proves that the contractor furnished defective cost or pricing data, but it also poses the question: When is disclosure required under TINA? 

RJO shareholder Stephen Bacon answers this question in his monthly Contract Management Magazine column, “Management Decisions: When Is Disclosure Required Under ‘TINA?’” In the article, Bacon discusses the impact of the Appeal of Lockheed Corp. case on disclosure, what legal framework this decision created and what lessons can be learned from it. 

“A contractor’s failure to disclose a consequential management decision with significant cost implications can create substantial liability under TINA,” Bacon writes. “By taking the protective measures outlined above, contractors can mitigate their potential legal exposure and put themselves in the best position to defend a TINA claim if that becomes necessary.”

The piece, which appears in the magazine’s June issue (subscription required), is the latest entry in Bacon’s monthly Counsel Commentary column and is published by the National Contract Management Association. It was used with permission.

 Read Bacon’s latest Contract Management article here.

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