Dentons’ Government Contracts group has published “Defective Pricing Cases Since the Turn of the Century,” in The Procurement Lawyer (Vol. 59, No. 1), which it has made available through this alert.

In light of the increased audit activity focusing on defective pricing issues, this article surveys recent defective pricing cases, specifically those decided since the turn of the century. The article begins with a brief overview of the Truthful Cost or Pricing Data statute (formerly known as the Truth in Negotiation Act or TINA) and the elements of a defective pricing claim. The survey then addresses a critical threshold issue, namely what is and is not cost or pricing data and includes cases exploring the line between verifiable facts versus judgments. Next is a discussion of cases which address what constitutes meaningful disclosure, whether it matters if the government had actual knowledge of the data at issue, and whether data was reasonably available to be disclosed in the first place. The article also touches on defective pricing and the Civil False Claims Act. Nearly 100 cases that discuss defective pricing in some way have been published over the nearly 25-year period this article covers—and this article includes a summary or citations to the most notable cases on this topic.

Download the PDF here.