Common use of DEFECTIVE COST OR PRICING DATA Clause in Contracts

DEFECTIVE COST OR PRICING DATA. If Contractor has submitted a Certificate or Current Cost or Pricing Data with its Bid and the County subsequently determines that such cost or pricing data is inaccurate, incomplete, or noncurrent as of the date stated in the Certificate, Contractor acknowledges the County’s right to adjust the contract price, including profit or fee, to exclude any significant sum by which the price, including profit or fee, was increased because of the defective data. Judgmental errors made by the Contractor in good faith concerning the estimated portions of future costs or projections do not constitute defective data. The County will presume that overstated cost or pricing data increased the contract price in the amount of the defect plus related overhead and profit or fee. Therefore, unless there is a clear indication that the defective data was not used or relied upon by the contractor in the formation of its Bid, the County will reduce the Contract price by such amount. In establishing that the defective data caused an increase in the Contract price, Contractor acknowledges that the Purchasing Director or his/her designee has no obligation to reconstruct the negotiation by speculating as to what would have been the mental attitudes of the negotiating parties if the correct data had been submitted at the time of agreement on price. In determining the amount of a downward adjustment, the Contractor shall be entitled to an offsetting adjustment for any understated cost or pricing data submitted in support of price negotiations for the same pricing action up to the amount of the County’s claims for overstated costs or pricing data arising out of the same pricing action. If the Contractor and the Purchasing Director or his/her designee cannot agree as to the existence of defective cost or pricing data or the amount of adjustment due to defective cost or pricing data, the Purchasing Director or his/her designee shall set an amount in accordance with Subsection 103.08, Pricing Adjustments, of the Contract, the Contractor may appeal this decision as a contract controversy under Article 9 of Chapter 120 of the Xxxxx County Code.