[Code of Federal Regulations]
[Title 28, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR100.19]

[Page 425-426]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
              CHAPTER I--DEPARTMENT OF JUSTICE (Continued)
 
PART 100--COST RECOVERY REGULATIONS, COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT ACT OF 1994--Table of Contents
 
Sec. 100.19  Adjustments to agreement estimate.

    (a) Adjustments prior to the incurrence of a cost. (1) In accordance 
with Sec. 100.17(d)(2), the carrier shall notify the FBI when any change 
affecting the level of reimbursement occurs.
    (2) Upon such notification, if the adjustment results in an increase 
in the estimated reimbursement, the FBI will review the submission and 
determine if
    (i) Funds are available;
    (ii) The adjustment is justified and necessary to accomplish the 
goals of the agreement; and
    (iii) It is in the best interest of the government to approve the 
expenditure.
    (3) The FBI will provide the decision as to the acceptability of any 
increase to the carrier in writing.
    (b) Adjustments after the incurrence of a cost. Any cost incurred 
that exceeds the provision in Sec. 100.16(e)(2) will be reviewed by the 
FBI to determine reasonability, allowability, and if it is in the best 
interest of the government to approve the expenditure for reimbursement.
    (c) Reduction for defective cost data. (1) The cost shall be reduced 
accordingly

[[Page 426]]

and the agreement shall be modified to reflect the reduction if any cost 
estimate negotiated in connection with the CALEA compliance effort, or 
any cost reimbursable under the effort is increased because:
    (i) The carrier or a subcontractor furnished cost data to the 
government that were not complete, accurate, and current;
    (ii) A subcontractor or prospective subcontractor furnished the cost 
data to the carrier that were not complete, accurate, and current; or
    (iii) Any of these parties furnished data of any description that 
were not accurate.
    (2) Any reduction in the negotiated cost under Sec. 100.19(c)(1) due 
to defective data from a prospective subcontractor that was not 
subsequently awarded the subcontract shall be limited to the amount by 
which either the actual subcontract or the actual cost to the carrier, 
if there was no subcontract, was less than the prospective subcontract 
cost estimate submitted by the carrier, provided that the actual 
subcontract cost was not itself affected by defective cost data.
    (3) If the FBI determines under Sec. 100.19(c)(1) that a cost 
reduction should be made, the carrier shall not raise the following 
matters as a defense:
    (i) The carrier or subcontractor was a sole source supplier or 
otherwise was in a superior bargaining position and thus the costs of 
the agreement would not have been modified even if accurate, complete, 
and current cost data had been submitted;
    (ii) The FBI should have known that the cost data at issue were 
defective even though the carrier or subcontractor took no affirmative 
action to bring the character of the data to the attention of the FBI;
    (iii) The carrier or subcontractor did not submit accurate cost 
data. Except as prohibited, an offset in an amount determined 
appropriate by the FBI based upon the facts shall be allowed against the 
cost reimbursement of an agreement amount reduction if the carrier 
certifies to the FBI that, to the best of the carrier's knowledge and 
belief, the carrier is entitled to the offset in the amount requested 
and the carrier proves that the cost data were available before the date 
of agreement on the cost of the agreement (or cost of the modification) 
and that the data were not submitted before such date. An offset shall 
not be allowed if the understated data were known by the carrier to be 
understated when the agreement was signed; or the Government proves that 
the facts demonstrate that the agreement amount would not have increased 
even if the available data had been submitted before the date of 
agreement on cost; or
    (4) In the event of an overpayment, the carrier shall be liable to 
and shall pay the United States at that time such overpayment as was 
made, with simple interest on the amount of such overpayment to be 
computed from the date(s) of overpayment to the carrier to the date the 
Government is repaid by the carrier at the applicable underpayment rate 
effective for each quarter prescribed by the Secretary of the Treasury 
under 26 U.S.C. 6621(a)(2).