Contracting Officer Unlimited Warrant Board

What information needs to be included in a Stop-work Order?

(1) A description of the work to be suspended; (2) Instructions concerning the contractor's issuance of further orders for materials or services; (3) Guidance to the contractor on action to be taken on any subcontracts; and (4) Other suggestions to the contractor for minimizing costs.

You are the PCO on a new source selection. Your team is encouraging the use oral presentations in lieu of written presentations for the proposal's technical volume and let the briefing serve as the documentation. Are oral presentations allowed? Please explain some advantages and disadvantages. Is there anything that you must get in writing? Also, can you talk to any areas of concern if there are exchanges within the oral presentation.

1. FAR 15.102 allows the use of oral presentations which may substitute or augment written proposals. Oral presentations are not mentioned in the DoD guide but use is not prohibited. PCO should look at complexity of acquisition. 2. Some advantages include reduced costs, advantage to companies that may not have the most elaborate proposal writing skills but are capable of meeting the Government's needs, and providing more opportunities for face to face dialog. Disadvantages include may be costly to industry or may not have briefing expertise, may be cumbersome to listen to many oral presentations. A record of the oral proposal, i.e audio, video recording or written record must be maintained and the method and level of detail is determined by the SSA. 3. Reps and Certs and any T&Cs intended to be in the resulting contract must be in writing. 4. The biggest disadvantage is how the team has to be careful with exchanges so that the team isn't entering discussions during oral proposals before a competitive range is approved by the SSA. The SSA makes the determination to enter discussions per DOD Source Selection Procedures 1.4.1.2.7. Per FAR 15.306(c), there are some steps to evaluate proposals before a competitive range such as rating the proposals against the criteria. This is not impossible but can be tricky when the information is presented in an oral presentation.

What are the four essential elements the PCO must address when making a Scope Determination?

1. Scope of the competition - could the original offerors have reasonable anticipated such a change? 2. Contract type - Requirments should be better defined in a FFP contract therefore require less changes. As opposed to a RDT&E contract. 3. Period of performance - will the PoP be extended significantly so as to constitute new work? 4. Overall cost/price change - what has been the total change in price throughout all modifications?

If the option price during a competitive source selection was not evaluated, is the option valid?

No. All options need to be priced because they were awarded on a competitive basis.

What must a PCO do before exercising an option?

The PCO must determine that: 1. Funds are available 2. The requirement fulfills an existing Government need 3. Exercising the option is the most advantageous method price and other factors considered 4. The option was synopsized IAW FAR 5 (or exempted) The PCO should have a written D&F in the file in order to use options The PCO should also consider if the contractor is responsible and if their performance is satisfactory.

Describe how the synopsis process can be streamlined when acquiring commercial items?

The synopsis required by FAR 5.203 and the issuance of the solicitation can be combined into a single document. Therefore, it is not necessary to publicize a separate synopsis 15 days before the issuance of the solicitation.

Where can a PCO look to help determine if a change is in-scope?

Various source documents to include: SOO/SOW/PWS, synopsis, RFP, exchanges with industry, market surveys, RFIs, etc.

You are the PCO on the Red, White and Blue (RWB) source selection for $100M. The RWB source selection is for offerors to take a 10 year old tech data package, do minimal testing and qualifications, and build to print for a specified quantity of RWB widgets. Based on market research you expect 3 proposals. You've been through business clearance, have an approved source selection plan and have released the RFP. You need to issue an amendment as you realize your most probably quantity has changed. What is your next step?

You would need to consult the MIRT chair to determine if there would be any impacts to your approved CDP 2 or if the MIRT would need to reconvene. AFMCMP 5301.9000(10) Requires you to obtain business clearance for amendments unless your amendment is administrative in nature. In this situation, your most probable quantity is more than an administrative change so another business clearance would be required.

Can a T&M contract be used for a commercial service?

a) Except as provided in paragraph (b) of this section, agencies shall use firm-fixed-price contracts or fixed-price contracts with economic price adjustment for the acquisition of commercial items. (b) (1) A time-and-materials contract or labor-hour contract (see Subpart 16.6) may be used for the acquisition of commercial services when— (i) The service is acquired under a contract awarded using— Competitive Procedures, Fair Opportunity, with an executed D&F

Define cost realism. When is a cost realism analysis required?

• "Cost realism" means that the costs in an offeror's proposal— (1) Are realistic for the work to be performed; (2) Reflect a clear understanding of the requirements; and (3) Are consistent with the various elements of the offeror's technical proposal. • Cost realism analyses shall be performed on cost-reimbursement contracts to determine the probable cost of performance for each offeror.

As a PCO, what kinds of things could cause you to lose your warrant?

A PCO loses their warrant upon retirement from employment, reassignment from the position requiring a warrant, termination of employment, or unsatisfactory performance. Terminations must be in writing, and requests must be submitted 30 days in advance of the requested termination along with the reason.

Describe a "cure notice" and when you would use one as a CO?

If a contract is to be terminated for default before delivery date, a "cure notice" is required by the Default clause. Before using this notice, it must be ascertained that the amount of time equal to or greater than the period of "cure" remains in the contract delivery schedule or any extension to it. If the amount of time remaining in the contract delivery schedule is not sufficient to permit a "cure" period of 10 days or more, the Cure Notice should NOT be issued, instead a "Show Cause Notice" may be issued.

You are the PCO. You have a requirement that you have determined to be sole source after conducting market research. The estimated value of the requirement is $70M. You write a J&A document citing the appropriate authority. What are the thresholds for approval of J&A documents, and who is the approval authority at this threshold?

J&As under $700K are approved by the Contracting Officer. Greater than $700K, but less than $13.5M are approved by the Competition Advocate for the Wing. Greater than $13.5M but less than $93M are approved by the flag officer or SES level, Mr. Robinson at AFMC. Greater than $93M needs approval by the Senior Procurement Executive at SAF/AQC. Since our estimate is for $70M, our approval authority would be the AFMC.

On 3 Sep 14 the CO awarded a contract for computer purchases using FY08 O&M (3400) funds. The computers were to be delivered upon completion of a new building expected sometime early in CY 15, but the contractor could have delivered the computers almost immediately upon contract award. Are there any fiscal issues here?

Yes. O&M (3400) funds are for one year. You cannot cross FYs unless there is an exception. This could be considered a violation of the bona fide need rule. The lead-time exception does not apply since the delivery delay is based on the government's request and not the reality of when the contractor could actually deliver the computers.

When a contractor refers to performing a "sweep", what are they talking about? Is this a Government requirement?

"Sweep data," the additional data that a contractor submits along with their Certificate of Current Cost or Pricing Data (the "cert"), is not a Government requirement. But yet, this data shows up on your desk anyway. Why? Because it existed prior to the date of handshake, had not yet been disclosed, and the contractor is trying to avoid any potential Defective Pricing by making their data submissions current, accurate, and complete by submitting the "sweep data" along with the cert. And, unfortunately, the "sweep data" can add significant time to your acquisition schedule. It's called "sweep data" because it results when the contractor performs a "sweep," or review to make certain that all data that existed prior to the date of price agreement, and that was not previously disclosed, is now provided to the Government in order to be compliant with the Truth in Negotiations Act (TINA).

You are the Contracting Officer on a large aircraft program. When you arrived at work this morning you are greeted with a notification that your contractor has been placed on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs. What are the rules on continuation of your current contracts with the Contractor?

(1) Agencies may continue contracts or subcontracts in existence at the time the contractor was debarred, suspended, or proposed for debarment unless the agency head or a designee directs otherwise. (2) Ordering activities may continue to place orders against existing contracts, including indefinite delivery contracts, in the absence of a termination. (3) Agencies shall not renew or otherwise extend the duration of current contracts (i.e. exercise options), or consent to subcontracts, unless the agency head or a designee authorized representative states, in writing, the compelling reasons for renewal or extension.

There are seven statutory exceptions to the Competition in Contracting Act (CICA). Please list them and the exception most likely to apply to Foreign Military Sales (FMS) contracts. What specific documentation would be necessary to support this FMS exception?

(1) FAR 6.302-1 - Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements: When there is a reasonable basis to conclude that the agency's minimum needs can only be satisfied by unique supplies or services available from only one source or a limited number of sources, or from only one or a limited number of suppliers with unique capabilities; it shall not be used when any of the other circumstances is applicable. (2) FAR 6.302-2 - Unusual and Compelling Urgency: An unusual and compelling urgency precludes full and open competition, and delay in award of a contract would result in serious injury, financial or other, to the Government. (3) FAR 6.302-3 - Industrial Mobilization; Engineering, Developmental, or Research Capability; or Expert Services: When it is necessary to keep vital facilities or suppliers in business, train a selected supplier, maintain properly balanced sources of supply, create or maintain the required domestic capability for production of critical supplies, continue critical supplies in production when there would be otherwise a break in production, to provide for an adequate industrial base. (4) FAR 6.302-4 - International Agreement: When a contemplated acquisition is to be reimbursed by a foreign country using a LOA directing source; of for services to be performed, or supplies to be used, in the sovereign territory of another country and the terms of a treaty or agreement specify or limit the sources to be solicited. (5) FAR 6.302-5 - Authorized or Required by Statute: When statutes expressly authorize or require that acquisition be made from a specific source or through another agency. (6) FAR 6.302-6 - National Security: When disclosure of the Government's needs would compromise the national security (e.g. would violate security requirements). (7) FAR 6.302-7 - Public Interest: When the agency head determines that it is not in the public interest in the particular acquisition; may be used when none of the other authorities in 6.302 apply. International Agreement: Full and open competition need not be provided for when precluded by the terms of an international agreement or a treaty between the United States and a foreign government or international organization (LOA), or the written directions of a foreign government reimbursing the agency for the cost of the acquisition (LOR) of the supplies or services for such government.

This week, a PCO contacted me because she is placing a decentralized order* for widgets on an IDIQ contract. The basic IDIQ contract is owned by the Navy. The order she is placing is for an FMS customer. The total value of her action is $30M. Of that $30M, $27M will be based on the widget quantity bands strictly from the IDIQ and $3M will be FMS-specific costs for facilitization which she will negotiate to add to the widget cost as prorated over each unit. Her question to me is whether she is exempt from the clearance process based on AFFARS 5301.9000(b)(2) which states clearance is not required for "Orders issued against existing contracts in accordance with the terms and conditions of the basic contract" What are some clearance considerations? Who is the business clearance authority at $3M and at $30M? After thinking through some clearance rules, what would be your response?

-$3M is no clearance as it is at the PCO level. $30M is the COCO for business clearance approval. -The first concern was that this is a Navy contract. Other than DoD Peer Review, all AF clearance procedures are defined in AFFARS or AFMC FARS which wouldn't apply for a Navy clearance. We had to find out the value of the Navy contract which was below $500M so no DoD Peer Review happened. -Next, while the reference included is correct, AFMC 5301.9000(b)(8) further clarifies when an clearance exception applies when issuing an order against a basic contract. "(8) Orders that are issued in strict accordance with the previously approved pricing arrangements/pricing tables and other terms and conditions of the basic contract vehicle. This exception includes orders where contractors are contacted solely to seek deeper discounts on known quantities. Orders that result from solicitation and negotiation of labor categories, hours, or scope/requirements with contractors require clearance." -Upon discussing with Pricing and Policy Chiefs, we were in agreement that her action did not meet the AFMC MP requirement for "in strict accordance with the previously approved pricing arrangement/pricing tables" from AFMC MPs. Therefore, must seek clearance approval at the $30M. However, AFMC MPs require charts only at the SCCO level (unless waived in writing). For COCO and below, charts are not required unless required by the CAA. In this case, we recommended that the CAA (COCO) not require charts. In other words, there with be a conversation with the COCO she'll and answer any questions, seek COCO approval on the clearance form, but no charts will be presented.

You are the PCO for an ACAT I program buying complex missiles for use on multiple aircraft from a sole source. You are currently drafting RFP for Lots 4, 5, and 6. A Contract Specialist mentions that both Australia and Belgium are interested in buying these missiles. The PM overhears his comment and interjects that the SML Colonel has already green lit adding Australian and Belgian requirements to the Lots 4,5,6 contract. You check with your Division Chief, and he agrees that the Aussie and Belgian requirements will be purchased under Lots 4,5,6. Discuss the unique considerations of the Lot 4,5,6 RFP and contract if you are to purchase assets for Australia and Belgium.

--Acq Strategy Plan must agree that FMS is authorized and contemplated --Letters of Offer and Acceptance (LOAs) must be executed for each FMS country; must contain proper language to buy your missile; and funding must match appropriate LOA lines. --International Agreement Competitive Restrictions (IACR) must be written because it is sole source (AFFARS 5306.302-4 International Agreement) --DFARS 225.7301 (b) Conduct FMS acquisitions under the same acquisition and contract management procedures used for other defense acquisitions. --Offsets. A U.S. defense contractor may recover all costs incurred for offset agreements with a foreign government or international organization if the LOA is financed wholly with customer cash or repayable foreign military finance credits. -- DFARS 225.7303-4 Contingent fees. (a) Except as provided in paragraph (b) of this subsection, contingent fees are generally allowable under DoD contracts, provided-- (1) The fees are paid to a bona fide employee or a bona fide established commercial or selling agency maintained by the prospective contractor for the purpose of securing business (see FAR Part 31 and FAR Subpart 3.4); and (2) The contracting officer determines that the fees are fair and reasonable.

You're a PCO and your buyer, Bob, has just concluded negotiations on a $5.2M cost plus fixed fee contract. At the conclusion of negotiations, the contractor asked Bob how long it would be before they would receive the signed contract. The contractor is very anxious to get started on the work because he doesn't have enough work to keep his employees on the payroll. If the contract you and Bob are awarding doesn't start soon, the contractor will be forced to lay off some of his employees. Bob tells the contractor that it shouldn't take more than 5 days to get the fully executed contract awarded. The contractor tells Bob that he may even be willing to begin work prior to contract award but he's concerned that all of his costs will be recognized once the contract is awarded. Bob tells the contractor that he'll talk to you to see if there are any contracting tools that can be used in this situation. What advice would you give Bob the buyer in this scenario?

-An early effective date could be agreed upon. -Approval for the use of an early effective date is at the Wing PK level or equivalent. -Have to agree on terms, conditions, price -Have to have funds -Have to notify contractor in writing & that there is risk on contractor until award -Have to have legal review if award is more than 30 days after effective date -Obtain legal review for early effective dates established more than 30 days prior to the envisioned contract award date.

You are the Contracting Officer for a Cost Plus Incentive Fee (CPIF) acquisition. The contractor made an offer that included an 80/20 share ratio over target and a 40/60 share ratio under target. Your Price/Cost Analyst rejected these share ratios as being favorable to the contractor and not in the best interest of the government. Your trainee buyer comes to you for an explanation of why the Price/Cost Analyst rejected these ratios. You decide to use an example of a $100,000 overrun and underrun to explain how the share ratios work mathematically. What would you say to the trainee buyer?

-On a $100,000 overrun, with a 80/20 share ratio, the government's share would be $80,000 and the contractor would end up paying $20,000 in the overrun. -On a $100,000 underrun, the government would recoup $40,000 and the contractor would receive $60,000 of the underrun. -In both the overrun and underrun scenarios, most of the risk is carried by the government, and that is not in the best interest of the government. DFARS says to give appropriate weight to each stage of the acquisition (ie. When in development, incentivize performance targets more and when in the later development and testing, incentivize cost more.)

Compare and contrast progress payments & Performance Based Payments (PBP).

-PBPs don't need approved contractor accounting system, progress payments do -both are not subject to interest provision of Prompt Payment Act -both are contract financing for default purposes -PBPs are based on completion of events while progress payments are given based on % of incurred costs -PBP's are capped at 90% price, progress payment rate varies for large (80%), small (90%), SDB (95%) -PBP are preferred -have to agree on terms for PBPs or you resort to progress payments -Both are for FFP contracts only.

What additional liabilities does the contractor incur when a fixed-price contract is terminated for default (in lieu of a termination for convenience)?

1. The Government is not liable for the contractor's costs on undelivered work and is entitled to the repayment of any advance and progress payments applicable to that work. 2. The contractor is liable to the Government for any excess costs incurred in acquiring supplies and services similar to those terminated for default.

You are the PCO on the XYZ missile tech support program. You intend to award an IDIQ contract valued at $21M to include a prenegotiated fee for all task orders. This prenegotiated fee will be captured in a special provision on the basic contract. The special provision would require all task orders to use this prenegotiated fee. During business clearance, your attorney determines your file to be legally insufficient and has a specific write up that your position isn't compliant with FAR 15.405(c) which states "The Government's cost objective and proposed pricing arrangement directly affect the profit or fee objective. Because profit or fee is only one of several interrelated variables, the contracting officer shall not agree on profit or fee without concurrent agreement on cost and type of contract." However, you disagree with legal's perspective as you have historical cost from the previous contract and most tasks are similar in nature with similar cost. You've briefed the ASR authority you intend to do this and have buy in from the contractor and program personnel. But legal still deems your file legally insufficient. Are there alternatives? Ultimately if the PCO disagrees with a legally insufficient comment who adjudicates? Is there anything that needs to happen?

1. You can take Legal's advice, remove the clause, and negotiate each task separately. You could work with legal to see if there is alternative clause language that includes the fee for convenience but doesn't mandate it. 2. Per AFMC MP5301.602-2(c)(i)(90), "If legal review indicates that a proposed course of action violates statute or regulation or is otherwise determined to lack legal sufficiency, the Contracting Officer must resolve the matter with the program attorney. Resolution of legal comments must be clearly stated in the contract file. If efforts to resolve legal concerns are unsuccessful, the Contracting Officer must highlight the unresolved issue in the clearance request and any clearance briefing." Ultimately it is the CAA who would adjudicate. 3. Be sure to document and have ensure the final decision documentation is signed by the CAA.

Per FAR 16.102(c), a Cost Plus Percentage of Cost contract type is not to be used for government contracting. Please define what a Cost Plus Percentage of Cost contract type is and the logic behind why it is prohibited.

A Cost Plus Percentage of Cost contract type is when an agreement is made to apply a pre-determined fee rate against actual that will be incurred in the future. This type contract is prohibited because it would incentivize the contract to run up costs in order to maximize their earned fee. If you apply a pre-determined fee rate against a negotiated prospective cost line, this is not a Cost Plus Percentage of Cost contract type.

What is a Savings/Reopener Clause and when might you use it?

A Savings/Reopener Clause is a special contract provision which creates a right for an equitable adjustment to the contract price. The equitable adjustment can be triggered by the occurrence of an event, the non-occurrence of an event, or some future event or condition which has an unpredictable outcome. Savings Clauses are used to overcome contingencies. When there will be a significant contingent cost either during negotiating the contract price or during contract performance, and the parties cannot mutually agree to resolve the contingency, the parties may consider using a Savings Clause to provide for an equitable adjustment once the contingent price can be finalized or the contingency does not materialize. A Savings Clause should only be used in extraordinary situations, where time does not permit resolution of the contingency and the uncertainty of the contingency could cause a significant impact to the contract price.

You are the Contracting Officer for a new program that is going to acquire repair and overhaul services. After conducting research you decide to use a Time-and-Material (T&M) contract type. The Program Manager is not familiar with this type contract and has asked you to explain what a T&M contract type is and some of the advantages and disadvantages. What would be your answer?

A Time-and-Material contract arrangement is used to buy time at a fixed and specified hourly rate that includes direct labor, indirect costs, and profit. Material is acquired at cost with no addition of profit. Advantages: 1) used when costs cannot be estimated realistically, 2) profit is saved on the material expenditures, 3) exclusion of profit on material makes it more likely the contractor will choose to repair rather than replace which is usually what we want to the extent it is economical. Disadvantages: 1) expending additional hours increases profit dollars, 2) contractor may use lower graded labor than was priced in the hourly rate, thus making more money on the rate differential, 3) use of lower graded laborers may result in more hours being expended, increasing profit dollars.

You are the Contracting Officer on a program where the contractor has recently submitted a very large claim based on a constructive change to the contract. The claim is based on direction that the Colonel, the Group Commander of the program, allegedly gave the contractor. The contractor maintains it was a constructive change to the contract. You find out from the Colonel's secretary that he is going out to the contractor's facility next week to meet with corporate management about the claim. You make inquiries and find out that nobody from the program's contracting division or JAG will be accompanying the colonel. What should you do?

A constructive change is sometimes called a 'change by implication' and occurs when the Government, by its actions, changes the contract without specifically adhering to the requirements of the 'Changes' clause. A constructive change order has been defined as an oral or written act or omission by the Contracting Officer or other authorized Government official, which is of such a nature that it has the same effect as a formal written change order under the Changes clause. You should notify you supervisor immediately and brief them on the situation. You should also express concern over not being involved in the situation and concern that the Colonel might be compromising the Government's position in this matter. You should recommend to your boss that the Group COCO should ask the colonel either to take along his PCO and JAG or cancel the trip altogether. If the colonel refuses, then the COCO should elevate the matter by alerting the SCCO and the JAG office.

In larger dollar, sole source procurements requiring the submission of certified cost or pricing data in accordance with the Truth in Negotiations Act, the contractor may wish to use a cutoff date. But what is a cutoff date? When is it best to use one? And how does one actually work?

A cutoff date is a date earlier than the date of price agreement to which certification of current, accurate and complete data applies. Use of a cutoff date relieves the contractor of the duty of disclosing the most current, accurate and complete data all the way up to the date of agreement on price. The data need only be current as of the cutoff date. In FAR 15.406-2, which provides the language of the Certificate of Current Cost or Pricing Data, there is an allowance for data to be certified on "an earlier date agreed upon between the parties that is as close as practicable to the date of agreement on price." That earlier date would be the cutoff date. Generally, use of cutoff dates is not encouraged, as their use represents a relinquishment of Government rights. Additionally, in this era of digital data, and information sometimes available at the touch of an icon or the click of a mouse, cutoff dates are not nearly as relevant as they were in years past. However, if a cutoff date is used, it's best to apply it only to those items of cost that are stable and predictable during the period between the cutoff date and the date of handshake. An example of a cost item that might be suitable for application of a cutoff date is labor standards based on a report issued once a month. The contractor may suggest a cutoff date for the entire proposal, but this is rarely a good idea. Items such as subcontracts can change significantly between any cutoff date and the date of price agreement. In addition, if a cutoff date is used, utilize a date as close as possible to the actual conclusion of negotiations. A cutoff date six months prior to handshake is not acceptable. Further, if a cutoff date for certain pieces of data is utilized, these dates and the data involved should be specifically called out in the Certificate of Current Cost or Pricing Data and any accompanying data log. The Contracting Officer should review the executed Certificate submitted by the contractor to insure that any cutoff dates match those previously agreed to by the Government and that the language in the certificate matches that required by the FAR. If there are concerns, don't hesitate to contact your Legal counsel. And finally, make certain that any use of cutoff dates, and the data associated with them is documented in your Price Negotiation Memorandum (PNM). This information in the PNM can be particularly helpful if there are later concerns about defective pricing.

What is a personal service? Are Personal Service Contracts allowed?

A personal services contract is characterized by the employer-employee relationship it creates between the Government and the contractor's personnel. The Government is normally required to obtain its employees by direct hire under competitive appointment or other procedures required by the civil service laws. An employer-employee relationship under a service contract occurs when, as a result of (i) the contract's terms or (ii) the manner of its administration during performance, contractor personnel are subject to the relatively continuous supervision and control of a Government officer or employee. However, giving an order for a specific article or service, with the right to reject the finished product or result, is not the type of supervision or control that converts an individual who is an independent contractor (such as a contractor employee) into a Government employee. Personal Service Contracts specifically authorized by statute are allowed. Examples: health care experts, subject matter experts.

When would you consider a preaward survey?

A preaward survey is normally required only when the information on hand or readily available to the contracting officer, including information from commercial sources, is not sufficient to make a determination regarding responsibility. In addition, if the contemplated contract will have a fixed price at or below the simplified acquisition threshold or will involve the acquisition of commercial items (see Part 12), the contracting officer should not request a preaward survey unless circumstances justify its cost.

You have been working as the PCO for a Colonel program manager who is ambitious, very results-driven, and somewhat forceful, but has only been in acquisition for a few months after a noteworthy career as a fighter pilot. The Colonel sends you an e-mail telling you that, since the organization has not really had the time to properly plan the award of a new contract, he is directing that an Undefinitized Contract Action (UCA) be used to preserve schedule. The Colonel also summons you to his office to discuss the issue. As you gather your thoughts and prepare to meet with the Colonel, how would you proceed?

According to the FAR, lack of planning is not a bona fide reason to issue a UCA - as a matter of fact, UCA approval documentation should include coverage of acquisition planning accomplished to avoid the use of a UCA. The PCO should point this out to the Colonel, but attempt to work with the Colonel to determine alternative ways to keep on schedule or to justify issuing a UCA. In any event, UCA approval is in the program management chain, probably at the Group/Wing Commander level. You can also inform your boss and /or ask for help or support from him/her.

What are the differences between apparent, implied and express authority?

Actual authority is specifically set forth orally or in writing (e.g., warrant, FAR). Implied authority is authority reasonable necessary to carry out the express grant of authority. It may be inferred from custom, conduct, writings such as rules/regulations. Implied authority exists in an individual by virtue of duties. QA inspector authorized to reject work has implied authority to change work through improper rejection. An example of apparent authority is a PCO that lacks actual authority, but the PCO's conduct allows a third party to believe they have authority. However if the government puts the PCO in a position of responsibility, the government is estopped to deny the PCO's authority. Elements of estoppel: 1) Government is aware of the true facts, 2) contractor is unaware of the true facts; 3) the government intends for the contractor to rely on the government conduct; and 4) the contractor relies to its injury.

Define Certified Cost or Pricing Data.

All facts, that as of the date of price agreement, or if applicable, an earlier date agreed upon between the parties that's as close as practicable to the date of agreement on price, prudent buyers and sellers would reasonably expect to affect price negotiations significantly.

You are in a kick-off meeting for a $20M R&D new-start effort and the Program Manager points out the list of potential offerors, three of which are small businesses. When asked, he states that all three are capable of doing the work. Are you required to set this acquisition aside for small business? What question would you ask the PM?

Although the FAR states: Acquisitions between $3,000 and $150,000 are automatically reserved for SB concerns. "The Contracting Officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns; and (2) award will be made at fair market prices." It also states, "In making R&D small business set-asides, there must also be a reasonable expectation of obtaining from small businesses the best scientific and technological sources consistent with the demands of the proposed acquisition for the best mix of cost, performance, and schedules." Your question for the PM would be whether two or more of the small businesses would offer the best technical solution for the best mix of cost, performance, and schedule.

You are the Contracting Officer on a large aircraft sustainment contract. The contract has a base year and several one year options for various support requirements. The contract period of performance runs from 1 Oct through 30 Sep of each year. On 5 Oct one of the Program Managers comes to you with a request to exercise an option for continued Tech Order Updates however the contract states that the particular option the PM has identified was to be exercised by 1 Oct. The PM asserts there is still a requirement for the TO support and is willing to give you a memo addressing the need and accepting responsibility for not notifying you of his requirement in sufficient time to exercise the option. How would you proceed?

Although the period for unilaterally exercising the option has expired your PM may still be able to have the requirement fulfilled. You should contact the contractor, express the Government's need to have the work performed, and see if the contractor is amenable to performing the work. If they are, you should contact your Legal Council, review the circumstances and get their buy-in for a contract modification. If your council agrees, you should prepare a J&A under FAR 6.302 and FAR 6.304, if there are no other suppliers who could perform the work, and there is rationale for other than full and open competition, and proceed with a bilateral contract agreement. The contractor is entitled to renegotiate the price as the option was not exercised IAW the contract terms and conditions.

What is an option?

An option is a unilateral right in a contract, for a specific period of time, where the Government may elect to purchase additional supplies or services called for by the contract, or extend the period of performance. The PCO should use options when (1) in the Governments best interest, (2) there is a need for service beyond the initial period, and (3) to ensure continuity of service. The use of options are not normally in the Governments best interest when (1) The foreseeable requirements involve minimum economic quantities and delivery requirements are far enough in the future to permit competitive acquisition, production, and delivery (2) an indefinite quantity or requirements contract would be more appropriate than a contract with options.

Recent focus has been on decreasing the amount of time it takes to negotiate a contract. There are several current examples of contracts that are taking months to negotiate from the date of business clearance to the handshake. What can you do, as the PCO, to shorten this timespan?

As the PCO on the effort, you have the ability to negotiate "rules of engagement" before the negotiation actually begins. You need to, with your counterparts, establish written rules regarding who the major participants will be, where negotiations will be conducted, a schedule for completion of negotiations, how much time will be permitted between offers and counteroffers, whether negotiations will be on the telephone, in person, or by e-mail, whether DCAA will participate, and whether you will accept "updated" proposals for anything other than BIG changes (not just rate changes, etc.) I would establish that anything that could be handled at the negotiation table to "update" the proposal, should not require an updated written proposal. I would keep the contractor aware of exceptions all along the way to avoid surprises in negotiations.

As the Contracting Officer on a source selection you recently sent out the notice to unsuccessful offerors and have received several requests for debriefings. Some of the requests are for pre-award debriefs and some are for post award debriefs. What are the things you may/may not tell the offerors in the debriefings?

At a minimum, Pre-Award debriefings shall include -- (1) The agency's evaluation of significant elements in the offeror's proposal; (2) A summary of the rationale for eliminating the offeror from the competition; and (3) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition. Preaward debriefings shall not disclose -- (1) The number of offerors; (2) The identity of other offerors; (3) The content of other offerors proposals; (4) The ranking of other offerors; (5) The evaluation of other offerors; or (6) Any of the information prohibited in 15.506(e). For a Post-Award (1) The Government's evaluation of the significant weaknesses or deficiencies in the offeror's proposal, if applicable; (2) The overall evaluated cost or price (including unit prices), and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror; (3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection; (4) A summary of the rationale for award; (5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and (6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed. The debriefing shall not include point-by-point comparisons of the debriefed offeror's proposal with those of other offerors. Moreover, the debriefing shall not reveal any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C. 552) including - (1) Trade secrets; (2) Privileged or confidential manufacturing processes and techniques; (3) Commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; and (4) The names of individuals providing reference information about an offeror's past performance

Describe, in general terms, the relationship between various data rights under a contract for noncommercial items and processes, and the types of funds used to develop the data?

Authority: DFARS 227.7103-5 Generally, the Government obtains unlimited rights to data developed exclusively with Government funds; the Government obtains government purpose rights in data when developed with mixed funding; the Government obtains limited rights to data developed exclusively at private expense.

What actions can a contracting officer take to ensure that any excess of the unliquidated progress payments over the contractual limitation is promptly corrected?

Authority: FAR 32.503-12 1. Increase the liquidation rate. 2. Reduce the progress payment rate. 3. Suspend progress payments.

You have been assigned as the CO for a new source selection. The Program Manager wants to receive brief written abstracts, followed by Oral Proposals and makes a convincing case that, from an evaluation standpoint; this is the easiest method to assess the offerors' technical abilities. What are some things you should both consider before proceeding?

Authority: FAR 15.102 / IG 5315.102 You should discuss the number of prospective offerors and the schedule/time available to receive oral proposals. If twice (or more) the number of expected offerors respond, government resources may not be available for the increased number. Are there facilities available for the entire (or extended) period? The method and criteria for documenting and evaluation the oral proposals. Are they to be filmed? Audio recorded? Presentation Costs. Would the cost associated with presenting oral proposals prohibit or restrict competition? Conversely, would the cost be so low as to encourage unqualified offerors whose presentations must be entertained (and further expend government resources). Presentation "style". The government evaluators must be sure not to be swayed or influenced by style over substance. The offeror with the most glossy presentation may not offer the best value to the government.

Please define what a Certificate of Current Cost or Pricing Data is and what is its purpose? What are some of the key things you would expect to see or review before accepting the certificate?

Authority: FAR 15.406-2 The definition is: A certificate of Current Cost or Pricing Data certifies that to the best of the company's knowledge, the cost or pricing data submitted were accurate, complete, and current as of the date of agreement on price or, if applicable, an earlier date agreed upon between the parties that is as close as practicable to the date of agreement on price. The purpose is to have the company commit as to the accuracy, completeness, and currency of submitted data. If the data is later found to be incorrect or appropriate data was not submitted, the government reserves the right to downward contract price adjustment for any monetary damages incurred. Key things we would expect to see or review in a Certificate of Current Cost or Pricing Data are: -The certificate is in the format shown in FAR 15.406-2 -Current as of the date of agreement on price or an earlier agreed on date -Signed by an authorized representative of the company and dates as close as practicable to the date when price negotiations were concluded -Check for qualifications or new information disclosed by the sweep and evaluate its impact on the negotiated price Exceptions: Adequate Price Competition Prices set by law or regulation Commercial Item Waiver has been granted Modifying a contract or subcontract for commercial items

When a contractor signs a Certificate of Current Cost or Pricing Data, what does the certificate constitute?

Authority: FAR 15.406-2(b) / AFFARS 5315.406-2(c) The certificate does not constitute a representation as to the accuracy of the contractor's judgment on the estimate of future costs or projections. It applies to the data upon which the judgment or estimate was based. This distinction between fact and judgment should be clearly understood. If the contractor had information reasonably available at the time of agreement showing that the negotiated price was not based on accurate, complete, and current data, the contractor's responsibility is not limited by any lack of personal knowledge of the information on the part of its negotiators. AFFARS: • defines "sweep" • requires the price impact summary • allows only downward adjustments (but does allow net-zero adjustments) • requires the "as of" date to be the date of the agreement on price instead of the date data submitted

What are some of the main conditions necessary to have defective pricing?

Authority: FAR 15.407 There are five: • The information in question fits the definition of cost or pricing data • Accurate, complete, and current data existed and were reasonably available to the contractor before the agreement on price • Accurate, complete, and current data were not submitted or disclosed to the Contracting Officer or one of the authorized representatives of the CO • The government relied on the defective data in negotiating with the contactor • The government's reliance on the defective data caused an increase in the contract price

Provide a brief description of defective pricing and name at least one thing you can during the pre-award process as a contracting officer in order to protect the government's interest during the post-award process.

Authority: FAR 15.407-1 Defective Pricing. A Contractor's failure to provide current, accurate and complete data as of the conclusion of negotiations that resulted in an increase to the contract price. Documentation - Document what data the contractor provided and your reliance on it in the PNM. If you did not rely on data, document this clearly in PNM. Make sure all data provided by the contractor is included in the official contract file. Certificate of Cost and Pricing Data - Review it! Make sure the cert does not contain any caveats or tries to limit the government's rights in any way. If there is a list of data attached to the cert as having been disclosed, make sure all of it was disclosed. TINA waiver. Only pursue TINA waivers that meet criteria in FAR & are in best interest of gov't. Disclosure - If contractor refuses to provide data, get refusal in writing. This is extremely important as it is an excellent tactic to get the data you need and if a contractor is crazy enough to put in writing a refusal to give data, then the government may be entitled to doubles (defective pricing) or it may constitute enough evidence for something far worse.

You are the Contracting Officer for a $500M acquisition that has a period of performance spanning six years. Because of the long period of performance, you are in agreement with the contractor that the contract includes an Economic Price Adjustment (EPA) clause. When the contractor sends in their clause you notice that the rate of inflation in the clause is 3% per year. You ask your Price Analyst what rate of inflation is in the proposal and she responds with 6%. Does this difference between the 3% and the 6% concern you and if so, why?

Authority: FAR 16.203-2(a) / DFARS PGI 216.203-4 This difference is definitely a concern. The two rates need to be the same so the clause is not "gamed" in order for the contractor to receive additional money that is not reasonable through the EPA clause. In this particular example the contractor has already priced 6% in the proposal. If the actual rate of inflation is 5% the contractor would receive an additional 2% through the EPA clause because the clause is built on only 3% inflation. The total inflation that would be recognized between the proposal and the EPA adjustment would be 8%. This would result in a windfall of the additional 2% over what is in the proposal which is a "no-no." The FAR says that when establishing a base level, the PCO should make sure there is no duplication. DFARS says that when using the EPA clause, use pricing assistance. AFFARS says that adjustments are retroactive.

Describe what a warranty provides and describe its use in a cost-reimbursement type contract?

Authority: FAR 46.702(b) / FAR 46.705(a) / DFARS 246.705 • Generally, a warranty provides a contractual right for the correction of defects notwithstanding any other requirement of the contract pertaining to acceptance of the supplies or services by the Government; and a stated period of time or use, or the occurrence of a specified event, after acceptance by the Government to assert a contractual right for the correction of defects. • Except for the warranties in the clauses at 52.246-3, Inspection of Supplies -- Cost-Reimbursement, and 52.246-8, Inspection of Research and Development -- Cost-Reimbursement, the contracting officer shall not include warranties in cost-reimbursement contracts. • DFARS gives one other exception to the rule against using warranties in cost-reimbursement contracts: Clause for Warranty of Data.

You are a PCO who has inherited a problem contract. This situation is your contractor is in the 5th year of a 15-year contract and it has now become obvious that the contractor "bought in" with a low price during the source selection. The contractor is currently complaining they are losing millions of dollars and are threatening to walk out of the contract. Your Program Manager comes to you for advice. Given the limited scenario, discuss some of the issues that you would consider in selecting a course of action. What possible courses of action would you consider recommending to your Program Manager?

Authority: FAR 49.402 Some issues to consider: contract type, government delays or other faults, changes in requirements, delivery schedule, other available sources, and termination options. Possible courses of action: (1) Hold the contractor's feet to the fire and demand performance (2) Alternate Disputes Resolution (3) Negotiate an acceptable "exit" (4) Terminate for Default (5) Establish incentives for meeting performance measures, helping the contractor offset a portion of their losses (6) Renegotiate the contract to satisfy the contractor

You get a call from the General who wants to know what technical data rights the Air Force has in a military purpose radar, which Company X is building for the Air Force. He wants to compete future buys of the radar to save money. He tells you he's pretty sure we "own" all the data since we are paying a fortune for the radar. What do you tell him? Do you have any questions for him?

Authority: FAR 52.227-14 The data rights the Air Force has in the radar depend upon the extent to which the U.S. Government (DoD) paid to develop the radar. If DoD agencies exclusively paid a contractor for the development of the radar, the USAF would then have "unlimited" rights in the data. If DoD funded part of the development of the radar, generally speaking the USAF would have "government purpose" rights in the data. If the contractor exclusively funded the development of the radar the USAF would only have "limited" rights - meaning the USAF could not disclose this data to other contractors without consent or in a very limited circumstances. To compete a future effort, the USAF would need government purpose rights or unlimited rights in the tech data. Note: Even in an instance wherein the USAF of other DoD agency exclusively funds the development of the radar via a contractor, the U.S. agency would not assume ownership of the data. The contractor "owns" the data while the USAF gets an unlimited license to use the data

If a contractor is included on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs, what are the rules on continuation of current contracts with the contractor?

Authority: FAR 9.405 1. Agencies may continue contracts or subcontracts in existence at the time the contractor was debarred, suspended, or proposed for debarment unless the agency head or a designee directs otherwise. 2. Ordering activities may continue to place orders against existing contracts, including indefinite delivery contracts, in the absence of a termination. 3. Agencies shall not renew or otherwise extend the duration of current contracts (i.e. exercise options), or consent to subcontracts, unless the agency head or a designee authorized representative states, in writing, the compelling reasons for renewal or extension.

What are the clearance thresholds for a competitive and noncompetitive acquisition? Who would be the CAA for each threshold?

Competitive: >$1B : SCCO >$50M < $1B: SCCO >$25M < $50M: One level below the SCCO ->Chief of the Contracting Office ->Chief of Contracting Division >$5M < $25M: Two levels below the SCCO Noncompetitive: >$500M: DAS(C)/ADAS(C), Business Clearance Only SCCO for Contract Clearance >$50M < $500M: SCCO >$25M < $50M: One level below the SCCO ->Chief of the Contracting Office ->Chief of Contracting Division >$5M < $25M: Two levels below the SCCO

What is the difference between business and contract clearance in a noncompetitive procurement?

Business clearance is required prior to beginning negotiations. Contract clearance is required prior to award (this may be waived at business clearance).

What is the difference between business and contract clearance in a competitive procurement?

Business clearance is required to issue the solicitation. When awarding without discussions, contract clearance is required to award. When awarding with discussions, contract clearance is required prior to the request for final proposal revisions (FPRs) and again prior to award.

• You are the PCO on a Fixed Price contract for missile stands. The stands were designed by the government and are built to print by the contractor. The first batch of 5 stands was delivered last week and there are rumblings in your office that something is wrong with them. They fall over when the wind blows too hard. DCMA inspected the stands and agrees with the contractor that the specification was followed precisely. Your PM asks you to tell the contractor to put the production on hold until a fix can be determined. How do you proceed?

Call the contractor and advise of the situation and attempt to work toward a plan to minimize costs while the imminent solution is being devised. If the contractor is not willing to slow work on his own, you should consider a stop work order (FAR 42.1303) which should be issued "only if it is advisable to suspend work pending a decision by the Government and a supplemental agreement providing for the suspension is not feasible." Issuance of a stop-work order shall be approved at a level higher than the contracting officer.

Is any approval required for an effort that is out of scope ?

Changes outside the scope of the original contract are considered new work and constitute a cardinal change, and in this case, one of two things should happen: 1. Compete the new work 2. Get a J&A and seek proper approval

You are in a source selection and according to the RFP the offerors are to submit a paper copy and an electronic version of their offer. One offeror submits both versions, on time, one hour before closing time for receipt of proposals. However, the next day, when the electronic version is loaded to begin evaluations, it is found to be defective and cannot be read. What do you do and why?

Check to make sure the paper version is complete and acceptable for evaluation. Then you may either use it or you should ask the offeror to submit another electronic version, verify that it is the same as the paper version you already have, and then use the new electronic version. Why? No one has been harmed or disadvantaged by this, the government could have evaluated the paper version alone so the electronic version is merely for the convenience of the government. FAR part 15 says that if any portion of a proposal received by the contracting officer electronically or by facsimile is unreadable, the contracting officer immediately shall notify the offeror and permit the offeror to resubmit the unreadable portion of the proposal. The method and time for resubmission shall be prescribed by the contracting officer after consultation with the offeror, and documented in the file. The resubmission shall be considered as if it were received at the date and time of the original unreadable submission for the purpose of determining timeliness under 15.208(a), provided the offeror complies with the time and format requirements for resubmission prescribed by the contracting officer.

You awarded a Far Part 15 $50M FFP competitive contract to a small business 6 months ago. You are now in the process of issuing a $750k modification to that contract. The contractor submits a cost proposal, but states they will not provide a certificate of current cost or pricing data. Are you ok with this? Is there an exception to TINA that applies under these circumstances?

Consider that the original award was made competitively. Authority: • Required for contract actions >$750k if one of the following exceptions does not apply • Adequate price competition • Price set by law or regulation • TINA Waiver • Commercial • Modification to commercial contract or subcontract • Reference FAR 15.403-1(b)

What is consideration? How would you address consideration on a Fixed Price type contract being modified to include additional Government Furnished Property (GFP) (e.g., not part of the original contract), and what is your reasoning? How would you address consideration on a Cost type contract being modified to include additional GFP (e.g. not part of the original contract), and what is your reasoning?

Consideration is the inducement to a contract: the cause, motive, price, or impelling influence that leads a party to enter a contract. A binding contract requires an offer, acceptance of the offer, and consideration. Consideration generally requires two elements: (1) something must be given that the law regards as of sufficient legal value for the purpose - either a benefit to the seller or a detriment to the buyer, and (2) the something (benefit or detriment of legal value) must be dealt with by the parties as the agreed-uponm price or exchange for the promise - there must be a "bargained-for exchange." The requirement for consideration does not require that what is relied upon for consideration be equivalent in value to the promise; the consideration need only have "some value." For Fixed Price: After determining the estimated value of the GFP, you would add something of value to the contract (i.e., additional within scope capability, an additional study, additional hours) in order to re-establish the original "balance" of the contractual consideration. For Cost Type: Textbook answer and preference is to reduce the base fee. After determining the estimated value of the GFP, you would get a reduction in the base fee on a cost type contract (if there is a base fee). This is because the GFP, in effect, reduces the estimated cost of the contract and therefore the fee associated with it should also be reduced. This re-establishes the original "balance" of the contractual consideration. In real life, if the value of the GFP is nominal and it is impractical to reduce the fee - you have a few other alternatives: requesting something of nominal value (additional copies of a report), documenting the file that your produce will be enhanced given the use of GFP or document the file that consideration was obtained through "cost avoidance" (over-run for example). Bottom line: consideration is required on both a FFP and Cost type contract, however since the government actually funds its own consideration in a cost-type environment, it is far less critical of an issue that supplying GFP in a FFP environment without "adequate" consideration.

You receive a letter from a contractor requesting a no cost time extension (NCTE). The contractor states that he is behind schedule due to his subcontractor's slow progress. Your program manager concurs with the request for the NCTE and suggests that it be processed as an "Excusable Delay". He says it is an "Excusable Delay" because the delay is not the fault of the prime contractor. How would you respond?

FAR 52.212-4(f) A subcontractor's slow progress is not an excusable delay. "Excusable Delay" is defined as something beyond the reasonable control of the contractor, and without its fault or negligence, such as, acts of God or the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. Response to contractor: NCTE is ok, but need different rationale.

You have just received the only proposal against a BAA solicitation issued last month. It is from the University of Southern California and you have to choose the most appropriate contract instrument for the work being proposed. What kinds of things would you consider in determining whether to award a contract, grant, cooperative agreement or other transaction for research?

Contract: If the principle purpose of the research is for the direct benefit of the government, then a procurement contract would be best. Grant or Cooperative Agreement: If the principal purpose of the research is to stimulate or support R&D for another public purpose, then a grant or cooperative agreement would be best. [A grant if there is NO substantial government involvement, a cooperative agreement if there will be involvement!] TIA: This is a used primarily to leverage businesses that have not dealt with the government before, but USC could be in a consortium with business, where a TIA might be appropriate. Other Transaction for Research: This would be if the university takes exception to the patent rights provisions. 50/50 cost share is required.

How many years does the current status last for construction (3300) funds, procurement (3010) funds, for R&D (3600) funds, and for O&M (3400) funds?

•O&M Funds - (3400) - active/current for 1 year; expired for 5 years; cancelled after that •RDT&E (3600) Funds - active/current for 2 years; expired for 5 years; cancelled after that •Procurement Funds (3010, 3020, 3080) - active/current for 3 years; expired for 5; cancelled after that •Construction Funds/ MILCON (3300) - active/current for 5 years; expired for 5; cancelled after that

Your office receives an urgent FMS requirement and after a few days discussing how to satisfy it, your team arrives at the conclusion that a UCA is the only acceptable course of action. Your Contract Specialist comes to you with the DFARS and points to a passage that states "The following undefinitized contract actions (UCAs) are not subject to this subpart. However, the contracting officer shall apply the policy and procedures to them to the maximum extent practicable (also see paragraph (b) of this section)—(1) UCAs for foreign military sales" The Specialist gets you thinking—there are compelling reasons for avoiding some of the specified regulations listed in that section of DFARS. What would you need to do in order to invoke that exception?

DFARS 217.7402(b) If the contracting officer determines that it is impracticable to adhere to the procedures of this subpart for a particular contract action that falls within one of the categories in paragraph (a)(1), (3), or (4) of this section, the contracting officer shall provide prior notice, through agency channels, to the Deputy Director, Defense Procurement and Acquisition Policy (Contract Policy and International Contracting). Further AFFARS 5317.7402: SCCOs at AFLCMC and SMC, must provide notification to SAF/AQC 30 days prior to the issuance of any UCA for a foreign military sale or congressionally mandated long-lead procurement contract that does not adhere to the policies and procedures described in DFARS 217.74. The notification must include detailed rationale to support the determination.

You are the PCO on a new acquisition and have just received the DCAA audit for the $12M proposal that you received last month. The audit had $100,000 in questioned material costs, and $100,000 in unsupported costs for the subcontractor labor hours. As you put together your clearance charts for the effort, you realize that you have only decremented $30,000 from the proposed materials costs in building your objective, and you find that decrement to be fair and reasonable. You have decremented the entire $100,000 that was unsupported in the audit from the costs proposed for the subcontractor labor, and you find that decrement to be fair and reasonable. What must you do?

DPAP policy letter dated 4 Dec 09 highlights the responsibilities of the PCO when he/she does not include significant audit recommendations in the Air Force Objective. The letter excludes "unsupported" costs, and focuses only on "questioned" costs in the audit. So we won't even focus on the "unsupported" cost category. When the PCO plans to sustain less than 75% of the recommended questioned costs in the Air Force Objective, and the proposal is $10M or more, the PCO must have a discussion with the auditor and document the disagreement in writing to the auditor, and through business clearance before negotiations! If business clearance is approved, then the disagreement is supported. If the auditor doesn't agree with the decision of the PCO, and the subsequent approval by the Clearance Approval Authority, then DCAA may request a higher level review, which could go all the way to DPAP. In our case, our proposal is over $10M, and the only 30% of the questioned costs were sustained by the PCO. Unless the PCO upholds at least $75,000 of the $100,000 in questioned costs, he/she will have to discuss why not with the auditor, document that in the business clearance, and possibly defend his/her decision at a level all the way up to DPAP.

You are the PCO on a CPFF program which includes Army and Navy personnel as well as personnel from your program office. The contractor contacts you to advise that additional costs have been incurred which result in a cost overrun. What actions do you take?

Determine if the effort resulting in additional costs was used to fulfill existing contract requirements of if government personnel asked the contractor to perform work not specifically required. If the former, process as a normal cost overrun. A determination would need to be made to 1) fund the overrun, 2) reduce the scope of the effort to match available funding, or 3) terminate the effort if that would be in the best interest of the government. If the later, advise all parties of contract provisions regarding legal methods of redirecting the contract and of the parties' related authority and responsibility. May end in denial of the costs or a ratification action.

Explain the minimum required elements of a D&F.

Each D&F shall set forth enough facts and circumstances to clearly and convincingly justify the specific determination made. As a minimum, each D&F shall include, in the prescribed agency format, the following information: (a) Identification of the agency and of the contracting activity and specific identification of the document as a "Determination and Findings." (b) Nature and/or description of the action being approved. (c) Citation of the appropriate statute and/or regulation upon which the D&F is based. (d) Findings that detail the particular circumstances, facts, or reasoning essential to support the determination Necessary supporting documentation shall be obtained from appropriate requirements and technical personnel. (e) A determination, based on the findings, that the proposed action is justified under the applicable statute or regulation. (f) Expiration date of the D&F, if required (see 1.706). [only for class D&F] (g) The signature of the official authorized to sign the D&F (see 1.707) and the date signed.

After much deliberation and analysis, you as the CO have decided that an item proposed as commercial does not fulfill the definition in FAR 2.101(b). You ask the contractor to submit certifiable cost or pricing data, however, the contractor refuses your request and still insists that its product is commercial. What steps would you now take?

Explain your position again to the contractor, emphasizing that you are the CO; you have the final determination regarding commerciality; and failure of the contractor to submit the data is a serious situation. 2) Elevate the impasse to management and solicit their help through the leverage they have with their contractor counterparts. 3) Examine the possibility of another source (unlikely at this point). 4) Ask the contractor to put into writing that the company refuses to supply certifiable cost or pricing data and the company will withdraw its proposal if the CO persists in determining that the item is not commercial. 5) If the contractor does what was requested in bullet (4) above, the next step would be a TINA waiver request since the government cannot otherwise obtain the item. 6) The TINA waiver package would also need to address how the price will be determined fair and reasonable without the submission of certified cost or pricing data AND that there are demonstrated benefits to granting the waiver. 7) Finally, develop a strategy for acquiring this item in the future.

The need date for contract award had passed, but you are in a deadlock negotiation. After several counter-offers the contractor finally states that he will split the difference. Can you do this? What do you consider? What part of the FAR allows you to split the difference and award the contract? What do you do?

FAR 15.405 talks to the fact that we don't have to agree on every cost element. Make sure the tech eval, audits, etc... support your position. The Contracting Officer should not become preoccupied with any single element and should balance the contract type, cost, and profit or fee negotiated to achieve a final result which is a price that is fair and reasonable to both the Government and the contractor. Far 15.405 (d) If, however, the contractor insists on a price or demands a profit or fee that the contracting officer considers unreasonable, and the contracting officer has taken all authorized actions (including determining the feasibility of developing an alternative source) without success, the contracting officer shall refer the contract action to a level above the contracting officer. Disposition of the action should be documented.

You have recently awarded 3 multiple award ID/IQ contracts in accordance with FAR 16.5. The contracts are for specialized support equipment and the ordering period is three years. FAR 16.505(b)(1) states that you must provide each awardee a fair opportunity to be considered for each order exceeding $3,000. Are there any exceptions to this, and are you required to publicize these orders in the Federal Business Opportunities Net?

FAR 16.505(b)(2) states: Exceptions to the fair opportunity process. The contracting officer shall give every awardee a fair opportunity to be considered for a delivery-order or task-order exceeding $3,000 unless one of the following statutory exceptions applies: (i) The agency need for the supplies or services is so urgent that providing a fair opportunity would result in unacceptable delays. (ii) Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized. (iii) The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order. (iv) It is necessary to place an order to satisfy a minimum guarantee. (v) Required by law or statue. (vi) Small Business Set-aside. Orders placed under ID/IQ contracts are exempt from synopsis by FAR 5.202(a)(6).

Under a current contract, Contractor A is to do testing, evaluation and validation of items to determine their use in a particular area. You are the Contracting Officer on a new source selection that will have the successful offeror submitting items to be tested by Contractor A under the current contract. Contractor A is one of many contractors who have expressed interest in the new source selection. As a CO what should you consider when determining if Contractor A may be allowed to bid as a prime contractor on this new source selection?

FAR 9.502(c) states "an organizational conflict of interest may result when factors create an actual or potential conflict of interest on an instant contract, or when the nature of the work to be performed on the instant contract creates an actual or potential conflict of interest on a future acquisition." In this latter case, some restrictions on future activities of the contractor may be required. In these cases, under FAR 9.504, the CO shall: (1) analyze planned acquisitions in order to (a) identify and evaluate potential conflicts of interests as early in the acquisition process as possible; and (b) avoid, neutralize, or mitigate significant potential conflicts before contract award. (2) obtain the advice of counsel and the assistance of appropriate technical specialists in evaluating potential conflicts and in developing any necessary solicitation provisions and contract clauses (3) before issuing the solicitation, recommend to the head of the contracting activity a course of action for resolving the conflict (4) avoid creating unnecessary delays, burdensome information requirements, and excessive documentation; and (5) shall award the contract to the apparent successful offeror unless a conflict of interest is determined to exist that cannot be avoided or mitigated.

Explain FAR Clause 52.244-2, Subcontracts and when it should be used?

FAR Clause 52.244-2, Subcontracts, is an under-used tool to protect the AF in a Letter Contract or UCA scenario. One of the primary concerns associated with a letter contract or unpriced contract action (UCA) is that the contractor is not highly motivated to control cost prior to definitization, as the Government generally accepts all costs incurred up to the point of definitization (subject, of course, to the "reasonableness" test). Subcontracts awarded prior to contract definitization can be a particularly high-risk area. Once the subcontract is awarded, the subcontract price becomes a "fact" rather than an estimate, and the Government loses much of its leverage with respect to the price we'll recognize for the subcontract. However, judicious use of the Subcontracts clause can provide a significant measure of protection, as consent to subcontract can be withheld if the Government does not find the subcontract price and/or terms reasonable. The prescription for the Subcontracts clause, found at FAR 44.204(a)(1), will lead the PCO to include the clause in fixed-price contracts where unpriced actions are anticipated. However, getting the clause into the contract is just the first step. The PCO must also specify in paragraph (d) of the clause, the specific subcontracts which are subject to the requirement to obtain the contracting officer's consent. These can be identified by subcontract number, by class of item, by contract type, by dollar value, etc. NOTE: If the undefinitized action is awarded via a contract modification, ensure that the mod also revises the contents of 52.244-2(d) to cover the specific subcontracts of interest as pertains to the instant contract action. Lastly, remember that, per FAR 44.202-1(a), the ACO is generally responsible for granting consent to subcontract, unless the PCO retains contract administration or the delegation of the responsibility to consent to subcontracts is specifically withheld from the responsibilities delegated to the ACO. When UCAs are anticipated, the PCO may wish to retain the authority to consent to subcontracts, in order to confirm that this tool is used to the best effect to ensure that the UCA definitization reflects a good business deal. Alternately, if the PCO decides not to retain the consent responsibility, the PCO, ACO, and price analyst should work closely together to ensure that the reasonableness of the subcontract prices is validated before consent is granted. In summary: If you are preparing to issue an unpriced action, be sure to take advantage of the clout provided by the Subcontracts clause to increase the AF's influence on subcontract pricing.

You receive a proposal for a sole source $50M FFP effort. Your Contract Specialist sends it over to Pricing for their assistance in reviewing the proposal for adequacy. The buyer comes to you and says "Pricing advises this proposal does not comply with FAR Table 15-2." What does that mean?

Far Table 15-2 provides instructions for preparing a contract pricing proposal when certified cost or pricing data are required. The proposal should follow the instructions listed in that section of FAR.

You are the PCO in Source Selection and dutifully following the FAR, DFARS, etc., on a particular issue. However, your higher leadership is now giving you "direction" which you believe is contrary to your legal guidance. What do you do? Do you comply with the law of higher leadership direction?

First check whether the particular legal guidance is mandatory or advisory. Check out how much discretion you have. It may be that you were being too strict or literal and what is being directed is within your discretion. Once you determine the legal parameters, if there is still a conflict, discuss it with your supervisor, and possibly others in the chain of command in resolving the issue with higher leadership. The point is, you do not have to "go it alone." Worst case scenario, if all of this fails, remember that it is your warrant on the line. It is your obligation to ensure the integrity of the procurement system, and if that means that you won't sign off on something, then that may be the answer.

You are the Contracting Officer for a $5,000,000 acquisition for which the contractor has taken the position that the product is commercial. You must now determine if you agree with this position. What documentation would you need to complete for you contract file and what steps would you take determining if you agree with the contractor's position of commerciality?

First, as PCO, you will review the definition of a "commercial item" in FAR 2.101(b) to make sure you fully understand what is required for an item to be determined commercial. The Commercial Item Determination (CID) may be written as a memorandum, and shall address the minimum components listed below. (i) Description of supplies or services; (ii) Basis on which the supplies or services meet the definition of a commercial item; (iii) Basis on which the commercial item satisfies the government's requirements; (iv) Contracting officer signature and date.

What is the requirement for obligating funds when awarding indefinite-quantity contracts?

For ID/IQ contracts all supplies and services to be furnished shall be obtained via delivery order(s) or task order(s) issued by individuals designated in the contract. Upon execution of the contract, an obligation shall be recorded based upon the issuance of a delivery or task order for the cost/price of the minimum quantity specified. Obtaining a certification of availability of funding from the finance office does not satisfy the requirement to record an obligation in the official accounting records of the Government for the minimum order amount established by the award of an IDIQ contract. The Government's actual obligation must be recorded at the time of contract award. Recording and subsequently reporting the required obligation using anything other than a delivery or task order will result in the action not being reported in FPDS-NG. The Recording of Obligations Act is implemented in the DoD Financial Management Regulation (FMR) (DoD 7000.14-R) (See paragraph 080504 of the FMR). The Defense Finance and Accounting Service (DFAS) is responsible for recording contractual obligations in the Air Force accounting records. Where the quantity required under a contract is indefinite, the ultimate amount of obligation is determined by subsequent orders; the amount of any required minimum order specified in the contract, however, shall be recorded as an obligation upon execution of the contract. For contracts that require the contractor to perform unilaterally placed orders above the required minimum, record an obligation in the amount of the order price or ceiling at the time the order is placed. An order in excess of the required minimum that has to be negotiated or accepted by the contractor under terms of the contract shall be recorded as an obligation upon contractor's acceptance of the order in the amount of the agreed price or ceiling . In the case of orders for services where a contractor cannot undertake performance without direction from an authorized Government official, order amounts may be consolidated periodically (at least monthly) into a list of orders placed with the contractor identifying the estimated dollar amount of each. On definite-quantity contracts, obligate the full amount of the definite quantity at the time of contract award.

You are a PCO for a Missile Program. You plan on awarding a $7M FFP contract for rocket motors to the Prime contractor. The Prime contractor intends on awarding a sole source non-commercial subcontract to it's rocket motor supplier in the amount of $5M to meet the Governments requirement. What factors must you consider as the PCO?

IAW 15.404-3(b), the prime must conduct cost/price analysis on subcontractor, include the results of the analysis with the proposal, submit subcontractor certified cost or pricing data to the Government as part of it's own certified cost or pricing data. 2. The contracting Officer must enforce excessive pass through charges IAW FAR 52.215-22 and the contract clause at FAR 52.215-23. These provisions define "excessive pass-through charges" and "added value" as follows: "Excessive pass-through charge", with respect to a Contractor or subcontractor that adds no or negligible value to a contract or subcontract, means a charge to the Government by the Contractor or subcontractor that is for indirect costs or profit/fee on work performed by a subcontractor (other than charges for the costs of managing subcontracts and any applicable indirect costs and associated profit/fee based on such costs). "Added value" means that the Contractor performs subcontract management functions that the Contracting Officer determines are a benefit to the Government (e.g., processing orders of parts or services, maintaining inventory, reducing delivery lead times, managing multiple sources for contract requirements, coordinating deliveries, performing quality assurance functions).

How is a warranty impacted if the Government specifies or doesn't specify the design of the item?

If the Government specifies the design of the end item and its measurements, tolerances, materials, tests, or inspection requirements, the contractor's obligations for correction of defects is usually be limited to defects in material and workmanship or failure to conform to specifications. If the Government does not specify the design, the warranty extends also to the usefulness of the design.

During a kick-off meeting for a new R&D effort in which a CPFF contract is contemplated, the Program Manager mentions that he heard about this new thing called Performance Based Payments and it sounded really good. He liked the idea of the contractor only getting paid when progress towards completion has been made. If your Program Manager wanted to use Performance Based Payments on a program, how would you advise her/him?

In October 1995, the FAR was changed to include Performance Based Payments It is only available on Fixed Price Contracts, and is preferred financing method. It differs from Progress Payments in that progress payments are interim payments based on the costs they incur in the performance on a job, but PBPs focus on the completion of milestones, and payment is made (90% OF PRICE when complete and the other 10% when the whole contract is done) when the milestone is 100% complete. Works well with production contracts...not so much with R&D. If you are planning on using PBPs, you must insert clause 52.232-32 in the solicitation, must include the terms required for the proposal and how they will be evaluated. Performance-based contracting methods are intended to ensure required performance quality levels are achieved and total payment is related to the degree that services performed meet contract standards. Performance-based contracts: (a) Describe the requirements in terms of results required rather than the methods of performance of the work; (b) Use measurable performance standards (i.e., terms of quality, timeliness, quantity, etc.) and quality assurance surveillance plans; (c) specify procedures for reductions of fee or for reductions to the price of a fixed-price contract when services are not performed or do not meet contract requirement; and (d) include performance incentives where appropriate.

You are the Contracting Officer negotiating an unclassified substantial research effort with a large business as the Prime Contractor. During negotiations the Contractor notifies you that one of its subcontractors, a Large University whose unique capabilities make it a major player in the effort, refuses to accept the DFARS clause 252.204-7000, Disclosure of Information. You want this clause included to prohibit the prime or its subs from releasing potentially sensitive information without your permission. The University has advised the prime they feel so strongly that this clause would impair their academic freedom that they will not participate in this effort unless the clause is removed. What should you consider in formulating your response?

In this case, the Government must have the right to protect sensitive information from release and will not agree to the deletion of the clause. The clause just requires that the contractor get permission from the contractor before release of information. It doesn't prohibit the contractor from releasing all data. The PCO should confer with the Program Manager, legal office and the Foreign Technology Office to determine if the effort will contain military critical technologies. While the clause will not be removed, it might be possible to designate certain portions of the effort that the university could release while protecting the remainder.

You are the Contracting Officer for a source selection and are in the process of preparing the RFP. A large business submits a query as to whether or not you will consider PBPs. What are the things you should consider before you respond?

Is this a program suitable for PBPs? Is it Fixed Price? How complex is it, how many items are you buying, how long is the period of performance, etc. How long will it take you to develop a PBP schedule with events and criteria that complies with the FAR? Are you trying to award without discussions and will this add time to the evaluation process? How will you ensure compliance with the FAR section on PBPs. What about the dollars? According to the FAR you have to decide up front whether or not the PBPs will affect the best value. Should you be calculating the cost to the treasury? How do you compare across companies, such as one company wanting PBPs at the max (90% every month) and one company wanting progress payments? Are you excluding competition if you don't allow PBPs? If it is a large business, they will probably have an adequate accounting system and that won't be an issue. Can you award with progress payments and change to PBPs at a later date? Yes, but remember that might require consideration.

FAR Table 15-2 requires "a time-phased breakdown of direct labor hours, rates, and cost by appropriate category". The proposal cost elements are broken out by year (2014, 2015, etc). Would you consider this to meet the requirement of the FAR Table 15-2?

It could meet the intended requirement, but good judgment indicates that rates probably vary some within a 1-year period and so the contractor should provide either monthly/quarterly rates, or an aggregate with an explanation that's what they're doing.

You were the Contracting Officer for a source selection that bought 500 engine trailers based on Adequate Price Competition (APC) from Engine Trailers, Inc. Three months later a decision was made to buy an additional 50 trailers from this company. As a Contracting Officer for this follow-on buy, would you need to request certified cost or pricing data or would it be acceptable to buy from this same source based on the TINA exception for adequate price competition?

It would be acceptable to buy the additional 50 trailers based on the TINA exception for adequate price competition per FAR 15.403-1(c)(1)(iii) which states "A price is based on adequate price competition if - Price analysis clearly demonstrates that the proposed price is reasonable in comparison with current or recent prices for the same or similar items, adjusted to reflect changes in market conditions, economic conditions, quantities, or terms and conditions under contracts that resulted from adequate price competition."

You are the PCO for Program Wild Card in Other Contracting valued at $50M. Two months ago, you were seeking ASP and Acquisition Plan approval. Your ASP authority, the SCCO, agreed to allow the ASP to serve as your Acquisition Plan as long as the elements of an acquisition plan were all covered, such as an N/A chart. You and your friendly procurement analyst ensured all elements of an Acq Plan were covered, the ASP was held, and ASP/AP minutes were approved by the SCCO. After ASP/AP approval, a J&A was approved in the amount of $50M. Two days ago you released your RFP, today your PM has approached you to let you know that real world events have resulted in a requirement change to buy more Wild Card systems. Your PM asks to forego some planned test assets and increase the maximum amount of WC production units based on increased funding, changing your total to $80M. Anything you need to consider related to the J&A? Anything you need to consider related to the approved ASP/Acq Plan and J&A?

J&A: Per AFFARS 5306.304(e), if the contract value changes after J&A approval but prior to award, you must submit an amendment to the J&A authority. This is within the same threshold so you would not be required to go to a higher level for J&A amendment approval. ASP/AP: AFFARS 5307.104-91 Changes states "If a change occurs to the program/acquisition that significantly affects the acquisition, the program manager with the assistance of the contracting officer must prepare a revised AP and a statement that summarizes the changes and obtain the approval from the appropriate approval authority." You must return to the SCCO and get approval for the change to the Acquisition Plan and ensure the file is properly documented.

What is a T&M contract?

Limitations. A time-and-materials contract may be used only if— (1) The contracting officer prepares a determination and findings that no other contract type is suitable. The determination and finding shall be— (i) Signed by the contracting officer prior to the execution of the base period or any option periods of the contracts; and (ii) Approved by the head of the contracting activity prior to the execution of the base period when the base period plus any option periods exceeds three years; and (2) The contract includes a ceiling price that the contractor exceeds at its own risk. The contracting officer shall document the contract file to justify the reasons for and amount of any subsequent change in the ceiling price. Also see 12.207(b) for further limitations on use of Time-and-Materials or Labor Hour contracts for acquisition of commercial items.

MIRTS and Peer Review are hot topics in today's acquisition arena. Describe the differences between a MIRT and a Peer Review.

MIRTS are multi-functional independent review teams. They act as an advisor to the Clearance Approval Authority (CAA), and are based on policy established in 2009. The CAA must use a MIRT when the acquisition is over $50M and competitive, but the CAA can waive the MIRT or even specific CDPs within the MIRT. (The use of a MIRT for a Sole Source acquisition is discretionary.) The CAA appoints the subject matter experts (SME) to constitute the MIRT, and they will review and assess CDPs as advisors. MIRT will convene an out-brief with the source selection team at the conclusion of each CDP. There are 5 CDPs to support formal clearance events. They are pre-ASP, pre-RFP, pre competitive range determination, pre FPR request, and pre-award. Peer Review kicks in when we have an acquisition over $1 billion. There are three CDPs for Peer Review for competitive acquisitions, and two CDPs for Peer Reviews for sole source acquisitions. They are pre-solicitation, pre-FPR, and pre-award for competitive. They are pre and post business clearance for sole source. Peer reviews are also advisory, and are made up of senior leaders across DoD. DPAP chairs the peer review. Peer Reviews are also required POST-AWARD for service contracts over $1 billion!

Can the PCO cite the "Changes Clause" to increase quantities on a production contract?

No. The Changes Clause cannot be used to increase quantities on a production contract. (a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following: (1) Drawings, designs, or specifications when the supplies to be furnished are to be specially manufactured for the Government in accordance with the drawings, designs, or specifications. (2) Method of shipment or packing. (3) Place of delivery.

You are the Contracting Officer on a large aircraft program. The engine is provided to the Prime Contractor as GFE and is purchased via a separate contract as a commercial item; engine spare parts (replenishment spares) are also purchased as commercial items as they also meet the FAR definition of commerciality. This morning you receive a call from the OSI informing you of an investigation they are conducting regarding inconsistencies in billing for engine spare parts between your contract and another commercial contract. The OSI tells you that the Government's contract prices are 5% higher than the "other" commercial customer they are using as a comparison. Do you have a problem? What should you do?

Not necessarily. You should ask the OSI what the terms and conditions are of the other commercial contract that they are using as a baseline to compare the Government's contract against. Are ALL the Ts and Cs the same? Is the period of performance for both contracts the same? Are the deliverables the same? Does one contract contain labor and the other stipulate it is strictly for parts only? Were there any extended warranty provisions included in one contract but not the other? Are these exactly the same configuration of parts and how many did each customer contract for? Without knowing the exact Ts and Cs of both contracts a valid comparison may not be made. There are limits on Government contracting (usually 5 year POPs) that are not present in the commercial sector; if the commercial customer had agreed to a longer POP, they may have realized an overall lower price. The Government may have organic repair - including supply chain management - that may not be available to the commercial customers (and might be included as part of their overall price) which may lower the Government's contract price (or vice versa). Due to unique flight parameters/aircraft missions the Government may have elected not to participate in an extended warranty program which may also drive a price deferential between the Government and the commercial sector. There may be numerous other commercial "updates/changes", etc. that could have been included or excluded from the contracts which drove the price deferential. Configuration or numeric/quantity differences could also affect the overall contract values. If you are able to obtain the relevant facts from the other contract you might be able to perform an analysis. However, as the engine was purchased as a commercial item it is likely that extensive market research was conducted to determine the reasonableness of the price the Government paid based upon its requirements. You should also have the OSI explain "billing inconsistencies"; as your contract is FFP the contractor is unable to bill for any amount in excess of that previously negotiated. You may not have negotiated the best deal but the contractor should not be able to bill in excess of those amounts negotiated.

Your PM approaches you with a requirement for customized packaging materials for BLU-121. He provides an estimate of $109K and says he understands the requirement will need to be competed because no justification for sole source exists to the best of his knowledge. He mentions that the work of a particular large business in California is noteworthy, and he wants to call them to let them know to be looking out for the sources sought and RFP once we post them to FBO. Is this a good idea?

Not particularly, because FAR 19.502-4 requires all acquisitions between $3,000 and $150,000 to be set aside for small businesses if there is a reasonable expectation of competition. •After releasing a sources sought synopsis and having 4 SB respondents, you release a SB set aside RFP for the effort. After waiting the appropriate length of time, you receive only 1 offer. The PM says, "Well, I guess we'll have to re-open the competition to include large businesses, right?" What do you say? A: DFARS 215.371-4 Exceptions to the "Only One Offer" Rule, except SB set asides from requiring Cost of Pricing Data. Bonus Question: What are other exceptions to that rule? A: Acquisitions less than or equal to SAT; contingency/humanitarian/peacekeeping; R&D using BAA; and A&E service contracts.

What must the PCO do for any change and/or modification estimated to be $1M or more?

Obtain legal review of the proposed action and document the review in the contract file

You have a contract for engineering services with a basic period of performance and several one year options for continued performance. The contract states that all options must be exercised by 1 October of each year. The basic period of performance has just expired and on 5 October, you realize that you never exercised the option for continued performance. There is still, however, an immediate need for the services. How would you try to rectify this error?

Once the option date has passed, the option has been nullified by expiration. To turn the contractor on for continued performance, the PCO would prepare a J&A under FAR 6.3, which provides the regulation for contracting without full and open completion. The J&A would have to show that it wasn't just a lack of planning. Some good reasons for a J&A would be 1) only one responsible source available, 2) unusual and compelling urgency, 3) expert services and national emergency, 4)International agreement, 5) Statutory authorization or requirement, 6) National security, or 7) Public interest. If the J&A is obtained, then the PCO would enter into a bilateral agreement with the contractor to obtain continued performance by the same contractor, and the contractor is entitled to renegotiate the price. The contractor is entitled to renegotiate the price. If a J&A is not approved because it doesn't fit within the requirements of FAR 6.302, then the PCO would need to publish a brand new solicitation for the requirements, opening it up to other contractors to bid.

Compliance with the Berry Amendment (preference for domestic specialty metals) is an extremely hot topic right now. What should a PCO do, in both a competitive acquisition and sole source acquisition, when dealing with Pre-Award Berry Amendment non-compliance?

Part 1: Competitive acquisitions, besides including the appropriate clauses in the RFP, include additional language whereby contractor must state they can comply. If offeror cannot comply with BA requirements, he may be given opportunity to revise proposal to result in compliant items. RFP should state that offerors who are currently in compliance may be more highly rated. Offerors who cannot become BA compliant may be considered nonresponsive. In situations where no offeror can become compliant by the time deliveries are to be made, then process Domestic Non-Availability Determination (DNAD) for offeror representing best value to the government. CO must use best judgment in case-by-case situations, document decision, and/or seek higher level advice. Part 2: In non-competitive acquisitions, CO shall impress upon the contractor to comply. If contractor encountered previous compliance problems, Contractor shall describe how compliance will be accomplished prior to delivery and CO shall review their plan to assure it is realistic. Of course, when contractor is 1) not compliant, 2) not able to become compliant, or 3) won't comply and alternate source is not available, a DNAD should be processed with contractor having responsibility to supply appropriate justification.

Is Past Performance required as an evaluation criterion in source selection? If it is not evaluated, what must be done?

Past performance need not be evaluated if the contracting officer documents the reason past performance is not an appropriate evaluation factor for the acquisition. FAR 15.304(c)(3)(iii)

You a PCO on the Rapid Acquisition Cell (RAC) supporting SOCOM. You have an approved ASP and J&A for ABC missile and associated support. SOCOM intends to send you funding for ABC missile support using Procurement funds just as soon as they receive fall out funds. Your SOCOM customer asks you to go ahead and issue the RFP. Can you issue the RFP? If so, what is required? Is there any alternative?

Per AFFARS MP 5332.7 a., Release of Solicitations in Advance of Funding Availability: When issuing solicitations in advance of available funds, the following statement must be included in any such solicitation: "Notice to Offeror(s)/Supplier(s): Funds are not presently available for this effort. No award will be made under this solicitation until funds are available. The Government reserves the right to cancel this solicitation, either before or after the closing date. In the event the Government cancels this solicitation, the Government has no obligation to reimburse an offeror for any costs." (a) When the resulting contract is to be funded by Procurement or Research, Development, Test, and Evaluation appropriations, the program/requirement must be included in the President's budget as submitted to Congress, and the program manager must provide the contracting officer a written statement. The statement must be coordinated with FM at the Center level (or equivalent) or as delegated to FM Organizational Senior Functional (OSF) that these investment funds will be used for the proposed acquisition and, although not presently available, a reasonable expectation exists that funding will be authorized and available upon enactment of the Authorization and Appropriations Acts. You can issue the RFP subject to obtaining the approvals IAW AFFARS MP 5332.7, including the required language. Another alternative is to send a draft RFP.

What are some factors that should be considered when selecting and negotiating contract type?

Price competition, price analysis, cost analysis, type and complexity of the requirement, urgency, period of performance, contractor's technical capability and financial responsibility, adequacy of the contractor's accounting system, concurrent contracts, proposed subcontracting, and acquisition history. Design stability should also be considered. AFFARS says that incentives are powerful tools that should be used when appropriate

Where is profit allowed and not allowed under a fixed-price contract terminated for convenience?

Profit is allowed on preparations made and work done by the contractor for the terminated portion of the contract but not on the settlement expenses. Anticipatory profits and consequential damages are not allowed. Profit is not allowed for material or services that, as of the effective date of termination, have not been delivered by a subcontractor, regardless of the percentage of completion. The TCO may use any reasonable method to arrive at a fair profit.

You have a cost proposal subject to TINA and there is a subcontract over the TINA threshold. The prime has not been forthcoming about providing a cost evaluation of the sub. What actions can you take?

Reduce the prime's profit Consider withholding award and take the issue to management for resolution Consider a joint review of the sub with the prime Notify DCAA/DCMA (potential estimating system deficiency).

There is a source selection for X, Y, Z system. The RFP was released a few months ago and proposals are due soon. It is expected that only 4 or less proposals will be received based on market research, sources sought, etc. One offeror sends a request for a 2 month extension. The initial gut reaction is "no" however the team asks for more information from the offeror. The offeror provides more information and it seems legitimate that the offeror is maturing technology internally and feel they can offer better proposal (and pricing) with a few more months. The PCO is agreeable to the 2mo extension given that it will help foster competition in a field with somewhat limited offerors. He intends to amend the RFP for the extension and make a few minor technical clarifications in the SOW and intends to get approval for an amendment through a delta business clearance. However, the SSA is not in agreement to extend the due date because of schedule criticality and maintaining schedule. The clearance approval authority is in agreement with the PCO that the schedule should be adjusted to ensure competition. -Explain the role of the PCO, SSA, and Clearance Authority in a source selection. How would this difference between SSA vs PCO/CAA be resolved?

Roles are defined as: - DoD Source Selection Procedures 1.4.1.2. states: The SSA shall: 1.4.1.2.5. Ensure that realistic source selection schedules are established and source selection events are conducted efficiently and effectively in meeting overall program schedules. The schedules should support proper and full compliance with source selection procedures outlined in this document and the established Source Selection Plan (SSP) for the acquisition. 1.4.2.2. The PCO shall: 1.4.2.2.5. Release the final solicitation only after obtaining all required approvals including the SSA approval of the SSP. AFFARS 5301.9001 Policy, Thresholds, and Approvals states: (a) The objectives of the business and contract clearance process are to ensure that: (1) Contract actions effectively implement approved acquisition strategies; (2) Negotiations and contract actions result in fair and reasonable business arrangements; (3) Negotiations and contract actions are consistent with laws, regulations, and policies; and (4) An independent review and assessment (e.g., by the clearance authority) for the proposed contract action is accomplished. (b) The clearance approval authority must ensure that the clearance process meets the objectives in paragraph (a) above. (e) The Source Selection Authority (SSA) must not be the clearance approval authority. The bottom line is that if there is a disagreement, the SSA, who approves the SSP, and the clearance approval authority, who approves clearance, must reach mutual agreement. The PCO's opinion will be considered, but the SSA and CAA must be in agreement on the final decision. My interpretation of AFFARS 5301.9001(e) is there is an intentional reason the SSA and CAA cannot be the same person. In the scenario above, some compromises could be considered such as a one month extension. Besides the roles, the important part of this question is really to pause and consider competitive implications even when there are schedule pressures.

You have just awarded 3 contract actions. You remember something in FAR Part 5 about synopsizing contract awards. The first action was a Small Business Innovation Research contract for $99,978. The second action was a $3M new delivery order under an existing IDIQ contract and the third action was a purchase order for $12,995. As a PCO, would you synopsize these contract actions?

SBIRs, delivery orders under existing IDIQ contracts and actions under the simplified acquisition threshold ($150K) do not require an award synopsis. However the dollar threshold is not a prohibition against publicizing an award of a smaller amount when publicizing would be advantageous to industry or to the Government.

You have just awarded 3 contract actions. You remember something in FAR part 5 about synopsizing contract awards. The first action was a Small Business Innovation Research contract for $99,978. The second action was a $3,000,000 new delivery order under an existing IDIQ contract, and the third action was a purchase order for $12,995. As a PCO, would you synopsize these contract actions?

SBIRs, delivery orders under existing IDIQ contracts and actions under the simplified acquisition threshold do not require an award synopsis. However, the dollar threshold is not a prohibition against publicizing an award of a smaller amount when publicizing would be advantageous to industry or to the government.

What is "scope creep?"

Scope creep occurs when a series of in-scope changes make the contract as a whole out-of-scope. The PCO must remain cognizant of scope creep when changing/modifying existing contracts.

Its 10:00 AM on Sep 30 2015, one of your A&AS contract specialists just walked out on you. You now have to find someone to award 10 of her contract actions by midnight. In addition, the Director of the squadron just dumped another $90K installation service acquisition on your desk and he wants it awarded by midnight. You do some research and find out this is a follow-on acquisition and was previously awarded under the 8(a) Business Development Program. Is there any way that you can get this awarded by midnight? Why/Why Not? What issues/challenges do you face?

Since this effort was under the 8(a) program previously, I would consult with my small business specialist to see if I could continue the effort with the same small business. I would also conduct market research to make sure that other small businesses could not perform the effort in accordance with 19.804-4, Repetitive Acquisitions. If the small business specialist indicated that award could be made and market research revealed that this should be a sole-source follow-on, then I would contact the SBA district office servicing my geographical area regarding acceptance of this effort. Technically, they have 10 days to respond but most offices have procedures in place for expedited processing of end of year requirements. I would also need to consider whether or not the award of this effort would violate the bona fide need rule. A recent memo from SAF/AQC reminds COs to consider severability of services and to exercise care when obligating annual funding for severable CLINs at the end of the fiscal year. In order for me to award, I would need to document the file with evidence that performance or a duty to perform occurred in the fiscal year funds were available and obligated in order to establish a bona fide need. The requirements official or financial management official would be required to provide the evidence. In this particular instance, it may be difficult to show a duty to perform or to show performance occurred in this fiscal year; however, if the PM or FM were able to provide evidence, then I may be able to award the contract before midnight. Since award is not guaranteed, I would make sure to inform the Director of the issues and I would let him know that if award is possible, I will need support and documentation from him in order to award by midnight. WHAT ABOUT THE 6 month EXTENSION OF SERVICES? The CLAUSE

You are the Contracting Officer for a commercial item acquisition. The Program Manager comes to your office and asks you to explain how a commercial item is supported for reasonableness. You tell the PM that FAR has an order of preference that involves three steps. Please explain what these three steps are and provide examples of each step.

Step 1 - Determine if information is available within the Government. Examples - prices from other Government contracts, ASC/PKF historical information, government independent cost estimates, historical data from other government services or agencies, records within DCAA and DCMA. Step 2 - Determine if information is available from sources other than the offeror. Examples - Market Research, published market prices, published price lists from both the offeror and other vendors, information requested from other vendors. Step 3 - Obtain information from the offeror. Examples - Prices at which the same or similar items have previously been sold in the commercial marketplace (sales data), catalogs, market priced items (market quotes from the vendor), cost or pricing data from the vendor that will not be certified.

As part of your UCA Definitization schedule, there is a milestone for "Submission of a Qualifying Proposal." What are some steps you might consider if the contractor does not comply with that milestone in a timely manner?

Submission of a qualifying proposal in accordance with the definitization schedule is a material element of the contract. If the contractor does not comply, suspension of progress payments IAW FAR 32.503-6 may be used. DFARS mentions other appropriate actions. This could include mentioning the deficiency on a resultant CPAR or other past performance reports.

When may a T&M contract be used? What must the D&F contain? Who would approve the following D&Fs: A T&M contract for $650K; A T&M contract for $500K in which the base period plus option periods will be a total of 4 years; A T&M contract for $1.5M of services (base plus options will be 5 years.)?

T&M contract may be used only when it's not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence, and ONLY if the PCO prepares a D&F that "no other contract type is suitable," and the contract includes a ceiling price that the contractor exceeds at their own risk. The D&F must contain sufficient facts and rationale to justify that no other contract type is suitable (should go through all the contract types). At a minimum the D&F shall include a description of the market research conducted and establish that it is not possible at the time of placing the contract or order to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of certainty. A T&M contract for less than $1 million would have the PCO as the approval for the D&F. A T&M contract for $500K in which the base plus options is 4 years would be approved by the HCA. A T&M contract for $1.5 of services, where the base plus options will be 5 years, would be approved by the COCO and then the HCA.

One of the exceptions to getting certified cost or pricing data is a TINA waiver. If a large contractor who does military business, such as Boeing, comes to you with a request for a TINA waiver, what do you do?

TINA Waivers: Section 817 of the FY03 Authorization Act directed the Head of the Contracting Activity (HCA) may only issue waivers upon a determination that: • the property or services being purchased by the government cannot be reasonably obtained without the grant of the waiver; • the price can be determined reasonable without submission of cost or pricing data; and • there are demonstrated benefits to granting the waiver. • is a significant change to the previous requirements for obtaining TINA waivers - in the past, waivers were essentially granted on the basis of (ii) and (iii) • Congressional Reporting Requirements for waivers over $15M (also includes commercial items over $15M) If it's a large contractor, odds are the items can be purchased without a waiver as they have an estimating system in place whereby they provide cost or pricing data.

What is the "Bona Fide Needs" Rule?

The Bona Fide Needs Rule basically means that a federal agency must have a legitimate or bona fide need for the requirement during the time period that the appropriation is available. Pursuant to 31 U.S.C. 1502(a), "The balance of an appropriation limited for obligation to a definite period is available only for payment of expenses incurred during the period of availability, or to complete contracts properly made during the period of availability and obligated consistent with Section 1501 of this title.." In other words, the basic rule states that a fiscal year's (FY) appropriation may be obligated to meet a legitimate or bona fide need existing in the FY for which the appropriation was made. This aspect of fund availability seeks to ensure that only appropriations, which are available for a specific FY are used to meet the legitimate needs of that FY. The bona fide needs rule applies to both multiple year and annual appropriations. TIME, PURPOSE, AMOUNT

You arrive as a new PCO on a XYZ WP/PEO program. The PM comes to you with an $84M -1 J&A in support of XYZ system as a follow-on J&A from a 2010 limited competition between two offerors with a down select to one Bockwell Rollins, large business. It is a class J&A and the intent is to award a 5 year IDIQ with various contract types. The type of support is logistics, such as support at fielded locations, field level maintainability improvements, integration support, such as mission planning, testing, and studies, and engineering support such as participation in Technical Interchange Meetings (TIMs), maintaining and updating the ICD and system software. The IDIQ ordering period is anticipated to be 5 years. Your -1 J&A is justified with unacceptable delays in fulfilling DoD requirements and qualifying another source would take 24-48 months to develop the same level of capability and certification. The J&A indicates that a sources sought synopsis was released and five large businesses submitted a statement of capability. The technical team rated the responses red, yellow, and green based on knowledge, experience and risk. Only the incumbent was rated green while the other four were rated yellow or red. For Section XI (11) related to removing barriers to competition, you review the previous J&A from 2010 which says there will be a rolling downselect for support and a follow-on competition for engineering, logistics, and overall XYZ support. When comparing it to the current J&A, the only information provided is there is an option to obtain a limited data rights package and market research will be conducted. Who is the J&A authority? What are your thoughts on the J&A as written? Any particular concerns related to length of IDIQ, -1 rationale for unacceptable delays, responses to sources sought synopsis and/or 2010 J&A Section XI on overcoming barriers in comparison to current J&A Section XI information? Is there anyone you'd consult?

The J&A would be approved at the Weapons PEO level. -If the sole source rationale is unacceptable delays for 24-48 months, you will be challenged on a 60 mo (5 year) period of performance. While you may have justification for up to 48 months, how is it sole source from 48-60 months if you can qualify another source in that time? -Even though a sources sought synopsis was posted, the amount of responses is concerning. If you received FIVE Statement of Capability in response, that indicates this may not be sole source or else your source sought did not properly explain the requirement. If at least one source or more is yellow, that indicates there is a potential for competition with an offeror who could be more competitive through discussions. -IAW DFARS PGI 206.304, a J&A must be approved at one level higher than the previous J&A authority (except SPE) if the J&A authority determines the actions to overcome competition barriers from the previous J&A did not happen. The current J&A doesn't explain if you held the downselect or more concerning, the follow-on competition the 2010 J&A stated. Therefore, the J&A will need an explanation of how those competitions were fulfilled or the J&A must be approved at the next higher level (SPE). -Recommend you talk to legal, policy, and competition advocate. Specifically I highly recommend you discuss the responses to the sources sought synopsis with the competition advocate as you may be going down a sole source path when she will determine after quite a bit of work that the effort is truly competitive.

You are the PCO for a major missile program under which costs have recently been increasing worryingly. Your management has been briefed and is well aware of the contributing factors, and the consensus is that some of the blame for increased costs is on the government and some is on the contractor. During one meeting, a Program Manager says, "We might as well prepare ourselves for a Nunn-McCurdy breach." What is a Nunn-McCurdy breach and what sorts of tools do you have as a PCO to lower the risk of having such a breach?

The Nunn-McCurdy Amendment in the United States 1982 Defense Authorization Act and made permanent in 1983, is designed to curtail cost growth in American weapons procurement programs. It requires notification of the United States Congress if the cost per unit grows of more than 15% beyond what was originally estimated, and calls for the termination of programs with total cost growth greater than 25%, unless the Secretary of Defense submits a detailed explanation certifying: 1) the program is essential to national security, that no suitable alternative of lesser cost is available, 2) new estimates of total program costs are reasonable, and 3) management structure is (or has been made) adequate to control costs. Contracting tools to avoid Nunn-McCurdy infractions include anything that motivates cost controls, such as FPIF or CPIF contract CLINs; EVM; Engineering Change Proposals; well-defined and communicated requirements; etc.

You are the PCO for a missile program. Last year's lot buy was $100M with roughly $38M tied to three subcontractor efforts. Subcontractor A's value was $15M, Subcontractor B's value was also $15M and Subcontractor C's value was $8M. This year, you included two options years to your base year, thus driving your total contract amount to $290M with roughly $110M tied to the subcontractor efforts. Subcontractor A's value is now $40M, Subcontractor B's value is also $40M and Subcontractor C's value is $30M. You meet with the Pricer to discuss the strategy on how to write the PPNM. The Pricer says she reviewed the PPNM from last year and plans to discuss only Subcontractor A & B. Do you have any problems with this approach? If so, why?

The PPNM must separately address each major subcontract that are (1) over $12.5M or (2) > $700K and more than 10% of the contractor's proposed price, whichever is lower. Under last year's scenario, the PPNM only needed to address Subcontractors A &B because their value was over $12.5M. Subcontractor C was under the $12.5M threshold and while it was over $700K it was not more than 10% of the contractor's proposed price. This year, you need to discuss all three subcontractors. They are all over $12.5M.

You are the new PCO on a $22M CPFF contract. At that dollar value, over $20M, and contract type, is there a specific clause that covers a DoD 5000 requirement that you would expect to see in the resulting contract? Would it make any difference if the contract were FPIF? Would it make a difference if the contract were a $55M CPFF contract? Is there any event that is required and can you give some idea of the timeline? If the clause is not included, what other documentation should be included in the file?

The clause is DFARS 252.234-7002 Earned Value Management System which is applicable to all cost and incentive type of contracts over $20M. Yes, FPIF would require this clause as an incentive type of contract. If this contract has a value of $50 million or more, the Contractor shall use an EVMS that has been determined to be acceptable by the Cognizant Federal Agency (CFA). If this contract has a value of less than $50 million, the Government will not make a formal determination that the Contractor's EVMS complies with the EVMS guidelines in ANSI/EIA-748 with respect to the contract. The Government will schedule integrated baseline reviews as early as practicable, and the review process will be conducted not later than 180 calendar days after— (1) Contract award; (2) The exercise of significant contract options; and (3) The incorporation of major modifications. If EVMS will not be obtained, both a waiver from the DoD 5000 process is required and an individual or class deviation from the DFARS clause is required.

When the contracting officer properly issues a unilateral change under the Changes clause, what responsibility, if any, does the contractor have to continue performance?

The contractor must continue performance of the contract as changed, except that in cost-reimbursement or incrementally funded contracts the contractor is not obligated to continue performance or incur costs beyond the limits established in the Limitation of Cost (fully funded) or Limitation of Funds (incrementally funded) clause.

You are negotiating a Firm Fixed Price contract type with Performance Based Payments (PBPs). During the negotiation of the PBPs your team discovers that the expenditure profile in the PBPs has significantly more effort occurring earlier in the period of performance than what is included in the priced proposal. What is your analysis of this situation?

The expenditure profile in the PBPs and in the proposal must match in order to be fair to the contractor and the government. In this situation the contractor wants money earlier using PBPs than what is in the proposal and the proposal is pricing the effort later in the period of performance where the rates will be higher. This scenario could lead to advance payments, which is inconsistent with the intent of PBPs as a financing method.

You are a brand new Contracting Officer and the first question that the Program Manager asks is the following. What are the four most commonly used contract types and what is the order from the most risky to the government to the least risky?

The four most common contract types are: Cost Plus Fixed Fee (CPFF), Cost Plus Incentive Fee (CPIF), Fixed Price Incentive Firm (FPIF), and Firm Fixed Price (FFP). The riskiest to the government is CPFF followed by CPIF, FPIF, and FFP.

You are the PCO on a large experimental aircraft program designed to achieve sustained flight at unprecedented Mach numbers. You are preparing to issue a competitive RFP with a CPFF contract type. The general in charge of the program summons you to her office and says that she is interested in incentivizing the contractor to achieve the unprecedented Mach numbers with a performance incentive based on measured flight test results. She asks your opinion on taking this approach and what in the RFP would need to be changed. What do you tell the General?

The general is talking about an objective performance incentive, which is technically not part of any award fee construct, but rather a stand-alone incentive provision. It is objective because the payment is based on an objective, measured result rather than a subjective assessment of the contractor's performance. Changes required for the RFP would be: • Development of an incentive provision for the contract that stipulates the terms, payment amounts, etc., as well as associated cost, quality, and schedule requirements that must be met. • The RFP model contract type needs to either be changed to an incentive (e.g. CPIF) contract or the performance incentive payment needs to be conditioned on the achievement of a certain level of cost performance under the current CPFF contract in the RFP. (FAR 16.402-4(b) states that a cost tradeoff is required when there are other incentives being used.) • The incentive will also have to require that a certain schedule be adhered to, to avoid the contractor taking an excessive amount of time to achieve the incentive payment to the detriment of the program's overall schedule. o Preparing the incentive will require all or almost all of the functional disciplines in the program office, so there is a resource commitment. o The incentive will have to have enough of a payment associated with it to motivate the contractor to expend cost to achieve it. o Finally the incentive will have to be "war-gamed" to ascertain if there are any possible unintended consequences of the incentive. An example of this would be the contractor placing so much emphasis on speed that other technical or performance elements of the program may be neglected. • Clause FAR 52.316-10; Incentive Fee clause will have to be added to resulting contract

Under what circumstances is ratification of an unauthorized commitment permitted?

The head of the contracting activity may ratify an unauthorized commitment. The ratification can only be valid when: • Supplies or services have been provided to and accepted by the Government, or the Government otherwise has obtained or will obtain a benefit resulting from performance of the unauthorized commitment; • The ratifying official has the authority to enter into a contractual commitment; • The resulting contract would otherwise have been proper if made by an appropriate contracting officer; • The contracting officer reviewing the unauthorized commitment determines the price to be fair and reasonable; • The contracting officer recommends payment and legal counsel concurs in the recommendation, unless agency procedures expressly do not require such concurrence; • Funds are available and were available at the time the unauthorized commitment was made • The ratification is in accordance with any other limitations prescribed under agency procedures.

How do you determine whether or not a change is within the scope of the contract?

The scope of a contract is not defined in regulations but is a fact-specific inquiry based on GAO decisions. The relevant cases are those in which a competitor has filed a bid protest arguing that the modification is so far outside the original scope for the contract that it should be considered a new contracting action for which other companies should be allowed to compete. In general, a modification is considered to be outside the scope of an existing contract when there is a "material difference" between the contract as modified and the contract as it existed before the modification. The rule is to examine any changes in the type of work, performance period and costs between the contract as awarded and as modified. The PCO must look at the Acquisition Plan, the SOW, the PNM, J&A, to determine if the change was contemplated by the parties at the time of contract award. Neither dollar amount nor quantity of changes are sole determinants in deciding whether a change is in or out of scope. The proposed change must also be evaluated with the consideration as to whether it would have significantly affected the original competition (more or different offerors, different technical approaches in the proposals, use of commercial items, etc.).

The end of the fiscal year '09 is coming up and you get a phone call from HQ. HQ tells you that several million dollars just became available. They didn't want the money to go to waste so they gave you a call. You call up a program director for a recon program who urges you to use the money to buy spare parts for his 4 recon aircraft, which have been operating "round the clock". He estimates that several million dollars will buy enough replenishment spares for the remainder of the "war." Do you have any concerns?

There are two issues. The Anti-Deficiency Act deals with time, purpose and amount. We don't know from the facts what kind of money just became available (color and appropriation year). The director wants to use the money for an O&M (Operations and Maintenance) purposes: spares. The money that became available might be something other than O&M money. And the Anti-deficiency Act will not allow O&M efforts to use funding other than O&M. The money might be FY'08 funds...which you would not be able to use either, because the requirement didn't exist in '08, and that violates the time prong of the Anti-Deficiency Act. The second issue deals with the Bona Fide Needs Rule, which says that appropriations are available only for the needs of the current year, (and sometimes the previous year, if it is a continuing need), but is not available for future year needs. In this case, the requirement for replenishment spares could possibly exist in FY09 (because by their very nature, spares need to be in place before the actual NEED to use them.) The problem with the director's response is that he said this will buy enough replenishment spares for the remainder of the "war." This could mean for the next year, if he only expects the war to last another year. But it could also mean that he expects this war to last 10 years...and buying that many spares with current year funding is not a "bona fide need," it is considered "stockpiling" and therefore the purchase should not be made.

You are the PCO on a new competitive program that is preparing for the System Development and Demonstration phase (SDD), and you are very close to issuing the RFP. The Captain, who is also the PM, comes up to you and says that the Colonel at the requirements office has asked that a few significant last minute requirements be put into the RFP, and he wants to know what your thoughts are. What do you tell the PM?

This is always tricky. The Captain here will most likely not say "no" to the Colonel. The correct response, however, is two-fold: The Program Manager should tell the Colonel that there will most likely be a cost, schedule, and/or performance impact from adding the new requirement. The impact may be as simple as a delay in contract award or more complex than that. The Captain has an obligation to tell the Colonel that he/she will obtain that information and provide it to the Colonel so that the Colonel can make an informed decision. The PM should also ask the Colonel if the new requirements can be inserted at a planned future date, perhaps along with other new or changed requirements. These new/changed requirements could be added at a later date as a planned "block" or separate increment of capability in a planned, organized, and less disruptive manner after the current contract is in performance. Most importantly, the Colonel must be made aware of the fact that in most situations, changing requirements this late in the acquisition process will undoubtedly lead to delays in the pre-award acquisition schedule and could have significant impact on the planned contract award date.

You have a UON for Acme Missile valued at $70M for sole source to Rockheed Harton. You have all required acquisition plan approvals. This requirement meets the DoD policy for UCA as the negotiation of a definitive contract action is not possible in sufficient need to meet the requirement and the Government's interest demands the contractor be given a binding commitment immediately. Due to real world threats you must issue a UCA contract so the resulting missiles are delivered on time. The period of performance will be 20 months. What needs to be approved, who needs to approve it, and what is required prior to UCA award? Is there anything in particular that you need to be concerned about regarding J&A postings?

Unless you have a -1 class J&A, a new J&A will be required, probably a 6.302-2 Unusual and Compelling Urgency J&A. Per FAR 6.302-2(d)(1)(ii), PoP of the effort in the J&A may not exceed 12 months unless approved by HCA. In this case it is over 12 months so a D&F must be approved by Deputy Assistant Secretary (DAS) for contracting. IAW AFFARS MP 5301.601(a)(i), the UCA approval must be approved by the SCCO and legal must sign off as well. The UCA request must be approved prior to UCA award. Per FAR 6.302-2, the D&F (para d1) and J&A (para c4) may be approved after award. However, a UCA J&A must be posted 30 days after award per FAR 6.305(b), so full D&F and J&A coordination and approval may not be reasonable within the posting deadline.

When is Certified Cost and Pricing data required?

When executing actions over $750,000 with the exception of prices established by statute, commercial items, with adequate price competition, and when a TINA waiver is granted.

You are the Contracting Officer negotiating a major upgrade to your aircraft program. During the negotiations the contractor expresses urgency regarding contract award as he wants to "get in line first to use the new test equipment" that will be purchased to support a portion of the system upgrade. When you ask what he means by "get in line" he tells you that the equipment will be used by programs other than the Air Force's and he needs award made soon so that his schedule is not impacted by the other Services' use. When you check the proposal it appears that the full purchase value of the equipment has been included as part of the contractor's plan for executing the work. Do you have any concerns and if so, what should you do?

Yes, you may have an Allocability issue. Allocable costs are chargeable to one or more cost objectives on the basis of relative benefits received. A cost is allocable to a gov't contracts if it is incurred specifically for the contract, can be distributed to the contract is reasonable proportion to the benefits received; or is necessary to the overall operation of the business. You should probably first check with your technical folks to determine if there is the possibility of other programs using the equipment. If they indicate that the equipment is not peculiar to your program you should probably verify in writing with the contractor that they intend to use the equipment on other programs. If the contractor confirms their intention to use the equipment on other programs you should formulate an objective that takes into consideration the appropriate share (usage) your program will require. If the equipment is determined to be peculiar at this time you may negotiate 100% of the value, and if the equipment is later determined to have applicability to other programs you could potentially provide rent-free, non-interference usage. FAR 31.201-4, Determining Allocability, provides that a cost is allocable to a government contract if it (a) is incurred specifically for the contract, (b) benefits both the contract and other work and can be distributed in reasonable proportion to the benefits received, or (c) is necessary to the overall operation of the business, although a direct relationship to any particular cost objective cannot be shown. FAR 31.205-40(b), Special tooling and special test equipment, states "The cost of special tooling and special test equipment used in performing one or more Government contracts is allowable and shall be allocated to the specific Government contract or contracts for which acquired..."

You get a call from a Program Manager. His program has been experiencing difficulty getting funding. He nearly had to stop work on his program last quarter due to a lack of funds. He is facing the same situation this quarter. He has been trying to locate funding and thinks he has come up with a solution. He explains to you that he can get enough procurement funding to cover the effort for the rest of the year. Previously, the effort was funded with RDT&E funding. As the PCO, what issues would you consider before taking action to obligate the procurement funds?

You cannot pay for RDT&E efforts with Procurement funds. This would be a violation of the Anti-deficiency Act, which creates a Bona-fide need that deals with time, purpose and amount. You would be augmenting the RDT&E appropriation with procurement funds. The only way that this would be permitted is if the program has moved to a production capability. If what you had put on contract before was RDT&E, and now you are past Milestone C and have moved into production, you will be using production money to accomplish your requirement. This is the only way your Program Manager can use such funds.

You have been assigned as the Contracting Officer for a new acquisition and the requirement has just been briefed by the Colonel as the Wing's number one priority. The Program Manager approaches you with a draft sole-source J&A and asks for your review and comment. Upon review you note that no mention of Market Research is made and the PM later confirms that none was accomplished as the Wing wants to use their "usual" contractor; she also tells you that she isn't really sure why any would be necessary or where to begin the research. What should you do?

You should inform her that Market Research is usually the foundation for sole-source or limited competition and without it (unless one of the other exceptions in 6.302 applies) you cannot process the J&A. You should also ensure that she understands that the Market Research will demonstrate if a commercial item is available, or could be modified, to meet the Government's requirement thereby saving time and money in the development and delivery of the item. You should direct her to FAR Part 10 which provides several avenues of conduction Market Research, some of which are: (1) Contacting knowledgeable individuals in Government and industry regarding market capabilities to meet requirements. (2) Reviewing the results of recent market research undertaken to meet similar or identical requirements. (3) Publishing formal requests for information in appropriate technical or scientific journals or business publications. (4) Querying the Government-wide database of contracts and other procurement instruments intended for use by multiple agencies available at www.contractdirectory.gov and other Government and commercial databases that provide information relevant to agency acquisitions. (5) Participating in interactive, on-line communication among industry, acquisition personnel, and customers. (6) Obtaining source lists of similar items from other contracting activities or agencies, trade associations or other sources. (7) Reviewing catalogs and other generally available product literature published by manufacturers, distributors, and dealers or available on-line. (8) Conducting interchange meetings or holding pre-solicitation conferences to involve potential offerors early in the acquisition process.

What if the basis for the exception to DFARS UCA regulations is "Purchases at or below the simplified acquisition threshold"? Are prior agency notifications and justification required? How would you handle that?

You would not need to notify DoD or SAF, but you are still required to comply with the DFARS direction to "apply the policy and procedures... to the maximum extent practicable". At a minimum, a consultation with Legal and your supervisor would be appropriate before invoking the exception for less than the SAT.

The PM gives you a requirement for 100 JDAM weapons stands with custom specifications. You decide a source selection is necessary. One of the proposals you receive is from a company which you and your team have never heard of. Research indicates the company is new, and acquired its production facility from a previous market source that went out of business. The offeror's proposal is competitive and could conceivably be the best value for your source selection. How would you ascertain an opinion on the responsibility of the contractor?

a. Adequate Financial Resources b. Comply with schedule c. Satisfactory Performance record d. Business Integrity/Ethics record e. Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them f. Equipment and facilities as necessary g. Qualified/eligible under law/regs

Your Program Manager receives an Unsolicited Proposal for a new defensive avionics system. The program team evaluates the proposal and finds it has some merits. However, you recommend the program manager reject the proposal. What are some of the reasons you could have for making that recommendation?

favorable comprehensive evaluation of an unsolicited proposal does not, in itself, justify awarding a contract without providing for full and open competition. The agency point of contact shall return an unsolicited proposal to the offeror, citing reasons, when it's substance- • Is available to the Government without restriction from another source; • Closely resembles a pending competitive acquisition requirement; • Does not relate to the activity's mission; or • Does not demonstrate an innovative and unique method, approach, or concept, or is otherwise not deemed a meritorious proposal.

You have recently awarded a contract for an infrared laser targeting system. It contains the FAR clause, "Export Controlled Data Restrictions." The contractor calls you and says that although not originally proposed, he now needs to have a Dr. McKenzie work on the contract. Dr. McKenzie is from Australia, although he will be working here at the US at the contractor's facility for this effort. What is your response to the contractor and what kinds of initial actions would you take? What would your response be if the work is not subject to ITAR? What would your response be if the work is subject to ITAR?

• If Dr. McKenzie is a foreign national, and although he is working here in the U.S., by giving him the data, it is equated to giving the information to Australia. If the information that he will be working on can be segregated from all of the ITAR sensitive data, then he will be able to work on the segregated data only...but if the information that Dr. McKenzie will require access to is ITAR sensitive data, then he will need an export license [under 22 CFR Sec. 125.2, Exports of Unclassified Technical Data] from the Dept. of State, or the contractor will need to find a U.S. national or citizen who can perform the work. • (a) Determine if the non-U.S. citizen is a permanent resident ("green-card" holder, admitted lawfully into the U.S. for permanent residence). If so, the individual is considered to have the same rights as a U.S. citizen as far as export-controlled data is concerned and no approval is required. • (b) If the individual is not a permanent resident, he/she is a foreign national and is not allowed to have access to any export-controlled data. The contractor must submit a description of the work to be performed by the foreign national and a determination must be made as to whether or not this work is export-controlled. This determination can be made by the Government Program Manager or the Foreign Disclosure Office. If the proposed work is not export-controlled, you may approve the use of the foreign national on the contract on the condition that the individual work only on those non-sensitive tasks. Another solution is to modify the contract to segregate the work into sensitive and non-sensitive areas, and let the contractor make the determination as to whether the proposed work is sensitive.

You are the Contracting Officer on a very large aircraft sustainment contract with world-wide performance requirements. There are contractor personnel stationed at various bases that provide maintenance and repair capabilities, via the contract's Over and Above clauses, should organic repair not be available. The Program Manager has just notified you of an incident that occurred last week at Frankfurter Air Base in Germany where an aircraft was damaged and required repair, but tells you not to worry as the aircraft has already been repaired and returned to service by the Contractor's on-site mechanics. The contract stipulates that before any repairs can begin, written authorization from the CO or the on-site Contracting Officer's Technical Representative (COTR) must be provided as the authorization allows the contractor to begin work and incur costs that will be paid under the contract. You ask the Program Manager for a copy of the COTR's work authorization and he hands you an email addressed to the Contractor from an individual you do not recognize (not the designated COTR) that directs the work to begin. What are your issues and what steps might you take?

• One of the first steps is to determine who the "authorizing" official was. If the individual was an A&AS employee, the authorization to repair the aircraft was not valid as any action that approves the expenditure of funds is Inherently Governmental and cannot be performed by a contractor. If the individual was not a contractor but was a legitimate employee of the U.S. Government you may have a Ratification Action provided the conditions for a Ratification can be met: (1) Supplies or services were received and accepted by the Government or the Government has or will get a benefit from the unauthorized action; (2) The ratifying official has the authority to enter into a contractual agreement; (3) The resulting contract would otherwise have been proper if made by a warranted CO; (4) The CO reviewing the unauthorized commitment determines the price to be fair and reasonable; (5) The CO recommends payment and legal counsel concurs in the recommendation, unless agency procedures expressly do not require such concurrence; and (6) Funds are currently and were available at the time the unauthorized commitment was made. • In either event, the individual did not have the actual authority to commit the Government by authorizing the work. The contractor, as well as the Frankfurter Air Base personnel, should also be reminded that only the CO or his/her designated representative can authorize the expenditure of funds.

FAR 15.406-1 requires the PCO to establish a prenegotiation objective before negotiating any pricing actions. When cost analysis is required, the contracting officer shall document the pertinent issues to be negotiated, the cost objectives, and a profit or fee objective. How would you fulfill this requirement?

• Pre-Price Negotiation Memorandum

You are negotiating a $3M FFP effort with a large contractor. The effort being negotiated is similar to work the contractor has done for your program several times in the past, and the contractor suggests that 13% profit is fair and reasonable for the effort because that has been agreed to on the previous similar items. Your negotiating counterpart asks you to accept 13% profit at the start of negotiations in order to "get at least one item in the 'done' column" before starting the process of fact finding and potentially questioning and decrementing labor and materials costs. What is your opinion of this approach?

• The Government's cost objective and proposed pricing arrangement directly affect the profit or fee objective. Because profit or fee is only one of several interrelated variables, the contracting officer shall not agree on profit or fee without concurrent agreement on cost and type of contract.

In a source selection for firm fixed price supplies, you receive 4 offers. Under these circumstances, would you choose to perform a price analysis? What about a cost analysis? Why or why not?

• When contracting on a firm-fixed-price or fixed-price with economic price adjustment basis, comparison of the proposed prices will usually satisfy the requirement to perform a price analysis, and a cost analysis need not be performed. • Cost analysis is not required for competition. Adequate price competition motivates low pricing.

What are the seven exceptions to full and open competition? Which exception is least preferred? Who is authorized to approve the justifications?

•1) only one responsible source available, 2) unusual and compelling urgency, 3) expert services and national emergency, 4)International agreement, 5) Statutory authorization or requirement, 6) National security, or 7) Public interest. Justification for contract actions below $700K can be approved by the PCO. Between $700K and $13.5M would be approved by the competition advocate.

Compare and contrast price analysis and cost analysis. Describe when each are used.

•Cost Analysis - Review and evaluation of the separate cost elements and profit in a contractor's proposal and the application of judgment to determine how well the proposed costs represent what the cost of the contract should be, assuming reasonable economy and efficiency. •COST ANALYSIS is required when (certified) cost or pricing data are required •May be used to evaluate information other than cost or pricing data •Price Analysis - Price analysis is the process of examining and evaluating a proposed price without evaluating its separate cost elements and proposed profit. (15.404-1(b)(1)) •Price analysis shall be used when cost or pricing data are not required. • (15.404-1(a)(2)) • Examples: Commercial Acquisitions, TINA Waivers, Buys less than $700k • Even when cost analysis is required, "Price analysis should be used to verify that the overall price offered is fair and reasonable." (15.404-1(a)(3)) •Methods -Comparison of proposed prices received in response to the solicitation. (Preferred) -Comparison of previously proposed prices and previous Government and commercial contract prices with current proposed prices (Preferred) -Use of parametric estimating methods/application of rough yardsticks -Comparison with competitive published price lists, published market prices of commodities, similar indices, and discount or rebate arrangements. -Comparison of proposed prices with independent Government cost estimates. -Comparison of proposed prices with prices obtained through market research for the same or similar items. -Analysis of pricing information provided by the offeror •While the methods are very different, both are analysis techniques we use to make sure we get fair and reasonable prices.

You are working a FAR Part 12 buy and the contractor requests commercial item financing. They propose a schedule of time phased payments with dollar amounts due, e.g. 90 days prior to delivery $1,250,000. What kinds of questions would you ask/research when reviewing this proposal?

•Is financing customary? (Yes or No) •What are normal financing terms - based on events, time, etc. •How much financing usually provided? How does this play with proposed price? •What kind of security will contractor provide? •Are advanced payments limited to 15%? •How does financing get liquidated?