Unlimited PCO Questions

As the PCO, you recently awarded a $130M Logistics Support Contract for a new weapon system. As the Contracting Officer, when should you de-brief the unsuccessful offerers and what are you allowed to tell them? What is the purpose of the debriefing?

(Post-award debrief) Offeror must make a written request within 3 day after award notice. The Contracting Officer should conduct the de-briefing for award within 5 day after receiving the written request from the offeror(s). Post-award debriefs shall include, at a minimum: (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 FOIA, 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 The purpose of a debriefing is: Explain rationale for award Instill confidence that offeror(s) were treated fairly Assure offeror(s) that their proposal was evaluated IAW RFP, laws and Regulations Identify proposal short coming (If any) Reduce misunderstanding and protests/Opportunity for feedback **Bonus: How long does the offerors have to file a protest? The contract needs to file a protest within 5 days after debriefing or 10 days after award notice, whichever one is later.

What are the for profit factors for WGL?

1. Performance Risk 2. Contract Type Risk 3. Facilities Capital Employed 4. Cost Efficiency

What are the different types of R&D funding?

6.1 - Basic Research 6.2 - applied research 6.3 - advanced technology development 6.4 - advanced component development & prototype 6.5 - system development and demonstration 6.6 - RDT&E 6.7 - operational systems development

10. QUESTION What are the elements of a contract

Legal capacity Offer Acceptance Consideration Clear terms Nothing illegal

In August of fiscal year 2013 (FY13), you awarded a contract to XYZ Company for $15,000 to assemble and deliver 10 leather reclining chairs for your newly upgraded VTC room. The Air Force needs these chairs by December to host a VTC with Congressional staffers to discuss better ways to make federal employees work longer hours for less pay. XYZ Company proposed to assemble and deliver the chairs in approximately three months. This contract was properly funded with FY13 Air Force Operations and Maintenance (3400) money. XYZ Company delivered the chairs on Friday, November 15, 2013, and you accepted delivery at the loading dock. On Monday, November 18, three Airmen from your office went to the loading dock to move the chairs into the VTC room. When they arrived at the loading dock, they discovered that the chairs had been stolen over the weekend. Security Forces opened an investigation, but to date do not have any leads. The VTC is now only a few weeks away. However, you learn that you can place an order off an existing ID/IQ contract from a company that can assemble and deliver 10 new chairs in time for the VTC. The program manager wants you to use the $15,000 in FY13 O&M funds that your organization was not able to spend before the end of the fiscal year. He explains that because the need for these chairs arose in FY13, you should be able to use FY13 funds to replace the stolen chairs. Can you use FY13 funds to replace these chairs? Why or why not?

REFERENCES/AUTHORITY: 31 U.S.C. 1502(a); GAO B-197274; GAO B-226198; GAO-04-261SP Appropriations Law—Vol. I ("Red Book"), p. 5-20 You may not use FY13 funds to replace these chairs. The bona fide needs rule is one of the fundamental principles of appropriations law: A fiscal year appropriation may be obligated only to meet a legitimate, or bona fide, need arising in, or in some cases arising prior to but continuing to exist in, the fiscal year for which the appropriation was made. There are situations in which it is not only proper but mandatory to use currently available appropriations to satisfy a need that arose in a prior year. We refer to this as the "continuing need." If a need arises during a particular fiscal year and the agency chooses not to satisfy it during that year, perhaps because of insufficient funds or higher priority needs, and the need continues to exist in the following year, the obligation to satisfy that need is properly chargeable to the later year's funds. An unfulfilled need of one period may well be carried forward to the next as a continuing need with the next period's appropriation being available for funding. Thus, an important corollary to the bona fide needs rule is that a continuing need is chargeable to funds current for the year in which the obligation is made, regardless of the fact that the need may have originated in a prior year. In this scenario, the chairs represent a continuing need, which is therefore chargeable to the current fiscal year (here, FY14). This situation is almost identical to one the GAO discussed in 1987. In late fiscal year 1986, the U.S. Geological Survey ordered certain microcomputer equipment, to be delivered in early fiscal year 1987, charging the purchase to fiscal year 1986 funds. The equipment was delivered and accepted, but was stolen before reaching the ordering office. The decision held that a reorder, placed in fiscal year 1987, had to be charged to fiscal year 1987 funds. The fact that the need for the equipment arose in 1986 was immaterial.

You brief an objective at Business clearance. At negotiations, the Contractor is willing to settle at a number higher than your objective. What do you do? What is the overall purpose of the clearance process?

REFERENCES/AUTHORITY: AFFARS 5301.9000 If the Business Clearance Approval Authority provided no latitude, you can: Reject the offer and continue negotiations. Shake hands contingent upon CAA approval of the number (this seems applicable only if face-to-face negotiations; if email based, seek CAA approval before hand shake). Get a subsequent Business Clearance from the CAA. The purpose of the clearance process is: Contract actions effectively implement approved acquisition strategies. Negotiations and contract actions result in fair and reasonable business arrangements. Negotiation and contract are consistent with laws, regulations, and policies. An independent review and assessment has been accomplished. It also: reinforces a culture of disciplined competencies. It holds us accountable for stewardship to our internal and external stakeholders. It builds confidence with our leadership in procurement processes and decisions.

Does the government receive a copyright license for technical data or computer software it acquires? If so, what is the scope of the license?

REFERENCES/AUTHORITY: DFARS 227.7103-9; 252.227-7013; 227.7203-9; and 252.227-7014 The Government receives a copyright license in any work of authorship (technical data or computer software) it acquires pursuant to a Government contract. The scope of the license is the same as the scope of the rights acquired in the underlying technical data or computer software.

When acquiring noncommercial computer software and noncommercial computer software documentation, what is the difference between a nonconforming marking and an unjustified marking? What initial actions should the contracting officer take?

REFERENCES/AUTHORITY: DFARS 227.7203-12; DFARS 227.7203-13 Authorized markings are identified in the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation. All other markings are nonconforming markings. To the extent practicable, the contracting officer should return computer software or computer software documentation bearing nonconforming markings to the person who has placed the nonconforming markings on the software or documentation to provide that person an opportunity to correct or strike the nonconforming markings at that person's expense. If that person fails to correct the nonconformity and return the corrected software or documentation within 60 days following the person's receipt of the software or documentation, the contracting officer may correct or strike the nonconformity at that person's expense. When it is impracticable to return computer software or computer software documentation for correction, contracting officers may unilaterally correct any nonconforming markings at Government expense. Prior to correction, the software or documentation may be used in accordance with the proper restrictive marking. An unjustified marking is an authorized marking that does not depict accurately restrictions applicable to the Government's use, modification, reproduction, release, or disclosure of the marked computer software or computer software documentation. For example, a restricted rights legend placed on computer software developed under a Government contract either exclusively at Government expense or with mixed funding (situations under which the Government obtains unlimited or government purpose rights) is an unjustified marking. Contracting officers have the right to review and challenge the validity of unjustified markings. Per DFARS 252.227-7013(f), contractors may only assert restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data by marking the deliverable data subject to restriction with an authorized legend: Government purpose rights, limited rights, special license rights, and/or a copyright notice. As noted above, all other markings are "nonconforming markings." Therefore, a deliverable marked "proprietary, competition sensitive" should cause you concern because (1) it may have been intended as a restrictive marking but it is not among those authorized, and (2) it tells you nothing about the Government's level of rights in this data. DFARS markings must be used. What would you do if you received a deliverable marked that way? When deliverables are received with nonconforming markings, to the extent practicable you should afford the contractor an opportunity to correct these markings. If the contractor fails to correct the nonconforming markings within 60 days, you may unilaterally correct them yourself (227.7103-12(a)(2)). Per DFARS 227.7103-12(a)(2), correction of nonconforming markings is not subject to the formal validation and challenge procedures found in DFARS 227.7103.13 and 252.227-7037 for markings that the Government suspects are unjustified. Huge Extra In-The-Weeds Bonus: Distinguish between nonconforming and unjustified markings and the procedures to correct both. Validation and challenge of "unjustified markings." Per 227.7103-12(b), unjustified markings are authorized markings that do not accurately depict restrictions on the Government's rights. Unjustified markings on deliverables may be disregarded by the Govt only after following the challenge procedure in 252.227-7037: a challenge; response by the contractor within 60 days; issuance of the contracting officer's final decision within 60 days after contractor's response; followed by either (a) no response (appeal, file suit, or notice of intent to file suit) by the contractor within 90 days; or (b) contractor's notice of intent to file suit (in the U.S. Claims Court) received within 90 days but no suit filed by CO's final decision plus one year. This time can be shortened by the head of the agency if urgent or compelling circumstances justify it.

4.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?

REFERENCES/AUTHORITY: FAR 1.602-3; AFFARS 5301.602-3; AFFARS MP 5301.602-3 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 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; (6) Funds are currently and were available at the time the unauthorized commitment was made; and (7) The ratification is in accordance with any other limitations prescribed under agency procedures 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.

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. OSI Week 10 Page 3 of 8 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?

REFERENCES/AUTHORITY: FAR 12.209 ANSWER: Not necessarily. The first thing I would do is caution OSI in jumping to conclusions based on comparison with a commercial contract. For starters, since you've already awarded this one, you likely accomplished extensive market research and made the determination that the price you're paying is both fair and reasonable. Next, I suspect that if there is a significant difference between the commercial contract and the Government contract, the terms and conditions might be different. FAR Part 12 says that when determining price reasonableness of commercial items, we must be aware of customary commercial terms and conditions when pricing. Therefore, I would challenge OSI to consider all aspects of the terms and conditions. For instance, is the period of performance for both contracts the same? Are the deliverables exactly the same? Does one have accelerated delivery? Does one include labor whereas the other is parts only? Were there any extended warranty provisions? These are the types of questions that lead me to believe that OSI might not be comparing apples to oranges. The Government may have unique requirements that lead to a higher price, such as limits on periods of performance (where commercial customers could secure better deals for long-term contracts) and unique warranty requirements. Configuration or numeric/quantity differences could also affect the overall contract values. You have likely accounted for all these things when determining this acquisition fair and reasonable in the first place, so you should be able to send that analysis to OSI. But without further information from the commercial contract, you can't go much farther. Finally, it is worth discussing with OSI what they mean by "billing inconsistencies". Commercial contracts are largely limited to fixed price vehicles, where the contractor will only bill once the items are delivered and accepted (commercial financing is typically rare, but could be authorized in some situations though). There shouldn't really be any room for discrepancies in billing for this reason. You could get OSI in touch with DCMA and/or DFAS to get to the bottom of these types of inconsistencies. Regardless of whether you negotiated the best deal, the contractor should not be able to bill in excess of the awarded price.

In source selections for negotiated competitive acquisitions, what factors, as a minimum, must be addressed or evaluated? Describe how you would evaluate each factor?

REFERENCES/AUTHORITY: FAR 15.304(c); FAR 15.305; DoD Source Selection Procedures IAW FAR 15.304(c) - copy of an extract of 15.304(c) is on the following page as well, below is a summary. The first is price or cost to the Government. Second, the quality of the product or service is evaluated through one or more non-cost factors, such as past performance, compliance with solicitation procedures, technical excellence, management capability, personnel qualifications, and prior experience. The third factor is past performance, and it is included in all source selections for negotiated competitive acquisitions that exceed the SAT. SubK plan (for solicitations not set aside for SB.....that offer a significant opportunity for subK) Past Performance Eval and Reporting Thresholds: DoD Class Deviation 2013-O0018 increases the thresholds for various categories of acquisition: (1) For systems and operations support contracts > $5M (2) For services and information technology contracts > $1M (3) For ship repair and overhaul contracts > $500K While each acquisition might be slightly different, section M of your solicitation will state exactly how each factor is evaluated. Section M will be developed with the DoD Source Selection Procedures in mind. Price or cost to the Government is normally evaluated through cost or price analysis; however, in a negotiated competitive acquisition, competition normally establishes price reasonableness. For FFP or fixed-price with EPA, comparison of proposed prices usually satisfies the requirement for price analysis. For cost-reimbursable, a cost realism analysis shall be performed. Next, technical factors are evaluated through one of two methodologies: combined technical/risk rating or separate technical/risk rating. Finally, past performance comes from multiple Government and non-Government sources and must first be recent (as defined in the solicitation), but then is rated on whether it is relevant and how well it was performed. AFFARS MP 5315.3 - 2019 edition DOD Source Selection Guide - March 2016 edition FAR 15.304(c) The evaluation factors and significant subfactors that apply to an acquisition and their relative importance, are within the broad discretion of agency acquisition officials, subject to the following requirements: (1) Price or cost to the Government shall be evaluated in every source selection (10 U.S.C.2305(a)(3)(A)(ii) and 41 U.S.C.3306(c)(1)(B)) (also see part 36 for architect-engineer contracts); (2) The quality of the product or service shall be addressed in every source selection through consideration of one or more non-cost evaluation factors such as past performance, compliance with solicitation requirements, technical excellence, management capability, personnel qualifications, and prior experience (10 U.S.C.2305(a)(3)(A)(i) and 41 U.S.C.3306(c)(1)(A)); and (3) (i) Past performance, except as set forth in paragraph (c)(3)(iii) of this section, shall be evaluated in all source selections for negotiated competitive acquisitions expected to exceed the simplified acquisition threshold. (ii) For solicitations that are not set aside for small business concerns, involving consolidation or bundling, that offer a significant opportunity for subcontracting, the contracting officer shall include a factor to evaluate past performance indicating the extent to which the offeror attained applicable goals for small business participation under contracts that required subcontracting plans (15 U.S.C.637(d)(4)(G)(ii)). (iii) Past performance need not be evaluated if the contracting officer documents the reason past performance is not an appropriate evaluation factor for the acquisition. (4) For solicitations, that are not set aside for small business concerns, involving consolidation or bundling, that offer a significant opportunity for subcontracting, the contracting officer shall include proposed small business subcontracting participation in the subcontracting plan as an evaluation factor (15 U.S.C.637(d)(4)(G)(i)). (5) If telecommuting is not prohibited, agencies shall not unfavorably evaluate an offer that includes telecommuting unless the contracting officer executes a written determination in accordance with FAR 7.108(b). (d) All factors and significant subfactors that will affect contract award and their relative importance shall be stated clearly in the solicitation (10 U.S.C.2305(a)(2)(A)(i) and 41 U.S.C.3306(b)(1)(A)) (see 15.204-5(c)). The rating method need not be disclosed in the solicitation. The general approach for evaluating past performance information shall be described. (e) The solicitation shall also state, at a minimum, whether all evaluation factors other than cost or price, when combined,- are- (1) Significantly more important than cost or price; (2) Approximately equal to cost or price; or (3) Significantly less important than cost or price (10 U.S.C.2305(a)(3)(A)(iii) and 41 U.S.C.3306(c)(1)(C)).

As the Contracting Officer, you were involved in a source selection for the overhaul and maintenance (which includes painting) of the C-130 fleet. The effort was competed among the incumbent ALC and several commercial repair facilities. A contractor won the competition and you issued a Requirements Contract, with FAR clause 52.216-21, for a performance period of one year. The contract also includes a three-year option. Prior to award, a Pre-Award Survey was performed by DCMA. DCMA verified that the contractor had the capability, quality control, and adequate capacity. However, after the first few units were painted, despite passing quality inspections, your Program Manager was unsatisfied with the quality of the paint jobs. He tells you that the contractor's paint job doesn't compare to the quality work of the ALC. Subsequently, your Program Manager directs the next few C-130s be delivered to the ALC for painting, where they still paint other aircraft. What would you advise the Program Manager?

REFERENCES/AUTHORITY: FAR 16.503; FAR 52.216-21 Since it is very early in the performance period, the contractual limits have not likely been met. No other condition justifies exception, per the Requirements clause (FAR 52.216-21) in the contract. Therefore, the PM will violate the conditions of the Requirements Clause by redirecting any work away from the contractor. The successful bidder's proposal was based on receiving all estimated work; subsequently, the Program Manager risks legal action (a claim) from the successful contractor. One point you might bring up is that the contract term is only for one year. If the PM is unhappy with the "quality" of the contractor's performance, even though the work complies with the contract, he should review the contractual requirements and determine if the quality should be upgraded on a later procurement. Perhaps, a higher quality requirement will result in less frequent paint jobs, thereby saving money. On the other hand, perhaps the higher quality is not necessary and not worth a premium to simply make the aircraft look better. In any event, the PM is obligated to send all work to the successful contractor for one year, up to the estimated amount, unless some authorized exception exists, like an urgency that the contractor in unable to perform. By the way, the Program Manager might be tempted to use the options as award-term incentives and convince the contractor to increase the "quality" of the work above the requirements. This could result in higher costs to the Government. Also, changing the quality terms in the contract ex post facto may tempt the losing competitors to protest. Before the Program Manager made any further moves, I would advise a meeting with legal counsel.

What is the purpose of a Certificate of Competency (COC)? Describe some examples of when a contracting officer might refer a small business for a possible COC?

REFERENCES/AUTHORITY: FAR 19.601; FAR 19.602 The purpose of a Certificate of Competency is to show that the holder of the COC is responsible (with respect to all elements of responsibility) for the purpose of receiving and performing a specific Government contract. The COC program empowers the SBA to certify to the elements of responsibility for an apparently successful offeror who would otherwise receive an award if not for the CO's determination of non-responsibility. If the CO determines the apparent successful offeror is not responsible, then the COC process would apply. The non-responsibility determination could occur for a number of reasons, to include the SB's capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting.

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

REFERENCES/AUTHORITY: FAR 43.201(b) ANSWER: 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.

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? Which exception is least preferred?

REFERENCES/AUTHORITY: FAR 6.302; DFARS 206.302-4; AFFARS 5306.302-4 The seven exceptions to full and open competition are: 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. 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. FAR 6.302-3 - Industrial Mobilization; Engineering, Developmental, or Research Capability; or Expert Services: There are three aspects to this exception, as the title implies. Industrial mobilization is basically the Government intervening to ensure vital facilities or suppliers are kept in business, trained, etc. in times of national emergency or other critical situations. The second portion involves maintaining essential capabilities in the technical fields of engineering, developmental work, or research. Expert services refer to retaining experts for use in litigation or disputes 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. 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. FAR 6.302-6 - National Security: When disclosure of the Government's needs would compromise the national security (e.g. would violate security requirements). 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. The exception most likely to apply to an FMS contract is FAR 6.302-4, International Agreement. While a J&A is normally the documentation required to process a sole source action, international agreements are slightly different for DoD. DFARS guidance says the J&A is not required if the HCA prepares a document that describes the terms of an agreement/treaty or the written directions, such as a Letter of Offer and Acceptance, that have the effect of requiring the use of other than competitive procedures. AFFARS states this document must be titled, "International Agreement Competitive Restrictions (IACR)" and authority to prepare it is delegated down to the PCO per AFFARS MP 5301.601(a)(i). The IACR and a copy of the associated Letter of Offer and Acceptance must be in the contract file. The least preferred option in my opinion is Public Interest because it's the most difficult to justify. It also requires a written determination by the SECDEF and requires Congressional notification prior to award of the contract.

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 that the program manager reject the proposal. What are some of the reasons you could have for making that recommendation?

REFERENCES/AUTHORITY: FAR Subpart 15.6; AFFARS MP 5315.606-90 Assuming this unsolicited proposal met all the initial requirements to justify a comprehensive evaluation, it still may not meet the criteria for award on a sole source basis. FAR 15.607 states that "a favorable comprehensive evaluation of an unsolicited proposal does not, in itself, justify awarding a contract without providing for full and open competition." The proposal should be returned, citing reasons, when its substance: (1) Is available to the Government without restriction from another source (2) Closely resembles a pending competitive acquisition requirement (3) Does not relate to the activity's mission (4) Does not demonstrate an innovative and unique method, approach, or concept, or is otherwise not deemed a meritorious proposal

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

REFERENCES/AUTHORITY: GAO Case Law ANSWER: 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.).

What are the method of financing for commercial items and for non commercial items? Give some characteristics of each.

Ref FAR 32 Commercial: FAR 32.2 Non Commercial FAR 32.1 Noncommercial:Advance payments Performance based payments Progress payments Loan guarantees Commercial: Advance payments Interim Installment And further answer information cut/pasted on following pages

QUESTION: An IDIQ contract is signed, but no money is available, so there is no accompanying order. The first order will be issued at a later time. Do you have a problem with the Anti-Deficiency Act? When should the minimum amount on an IDIQ be guaranteed?

AFFARS 5316.504: 5316.504 Indefinite-Quantity Contracts (a) Description. (2) 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. The Government s actual obligation must be recorded at the time of contract award. (See DoD 7000.14-R, Volume 3, Chapter 8, paragraph 080604) Also, further reading: From Ask a Professor Although Contracting Officers would typically order the "minimum order" at the time the IDIQ contract is awarded under the first task order, where in the FAR specifically states that the minimum order has to be satisfied by the first task order? SCENARIO When we issued the RFP for our requirement, a minimum order (dollar amount) was specified. Answer First to answer your question. The FAR does not explicitly state that the minimum order has to be satisfied by the first task order. However. providing the minimum guarantee at time of contract, especially in current economic times, is a prudent method of ensuring funds are available for the bargain the contracting officer is signing. Additionally, it provides the essence of consideration for the bargain. Additionally, Federal Acquisition Regulation (FAR) 52.216-22, which contains mandatory language indicating that the Government "shall" order the "minimum" quantity of services referenced in the contract should be considered mandatory. There are other methods of contract interpretation that lead the Armed Services Board of Contract Appeals (ASBCA) and the Court of Federal Claims (COFC), to rule on the appropriateness of minimum quantities for Federal contracts. Further, one should read Restatement (Second) of Contracts 204 "Requirement of a Bargain" and 79 "Adequacy of Consideration/ Mutuality of Obligation." Further readings should include "Howell v. U.S., 51 Fed. Cl. 516 (2002), the United States Court of Federal Claims" and The Board of Contract Appeals ruling Trans Com Sys. V. United States ASBCA No. 53,865, 2003 WL 2012889 (May 1, 2003). Recommend you read the blog provided here PROF Contracts blog http://lawprofessors.typepad.com/contractsprof_blog/2011/05/guest-post-by-steven-feldman-on-the-horn-case.html by Steven Feldman an attorney for the U.S. Army Corps of Engineers. Result. The contracting officer is wise to provide immediate consideration (minimum order), in accordance with FAR and rulings referenced above.

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

ANSWER: If a contract is to be terminated for default before delivery date, the Default clause requires a written notification specifying the contractual failure and a period of 10 days in which to cure the failure. This written notice is called a "cure notice." 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 CO on a Fixed Price supply contract, $10M, for delivery of production kits. The contract was awarded in July 2012 with FY11 3010 funds. The contract period of performance is three years (July 2012 - July 2015), and included Government Furnished Property. In July 2014, for one of the GFP items already provided to the contract, the contractor advised the PCO of a problem with this GFP item, and advised the PCO that the contractor can fix the GFP item for $50K. The Govt. Property Administrator determined the defects in the GFP item was not caused by the contractor and determined $50K is reasonable to fix the item based on his knowledge of repairs for similar GFP items. Both the Govt. Property Administrator and the PM think this is a good idea and wants the PCO to approve having the contractor fix the GFP item for $50K. Is this allowed and would you approve this?

ANSWER: Yes, this is allowed. FAR 52.245-1(d)(2)(ii), Government Property states: In the event property is received by the Contractor, or for Government-furnished property after receipt and installation, in a condition not suitable for its intended use, the Contracting Officer shall, upon the Contractor's timely written request, advise the Contractor on a course of action to remedy the problem. Such action may include repairing, replacing, modifying, returning, or otherwise disposing of the property at the Government's expense. Upon completion of the required action(s), the Contracting Officer shall consider an equitable adjustment to the contract (see also paragraph (f)(1)(ii)(A) of this clause). Also, I would approve based on the Govt. Property Administrators market research and recommendation. The file would need to be documented accordingly. **Bonus: What type of funds would you use? Use FY11 3010 funds for the reasons cited below: When an upward price adjustment is necessitated in a subsequent year, the general approach is to ask whether the adjustment is attributable to an "antecedent liability"—that is whether the government's liability arises and is enforceable under a provision in the original contract. If the answer is yes, then a within-scope, then a within scope price adjustment, which is requested and approved in a subsequent fiscal year, for example, under the "Changes" clause, will (with one qualification) be charged against the appropriation current at the time the contract was originally executed. HOWEVER, if the property was not received damaged by the Contractor, it would be appropriate to use funding current as of the date of breakage as this creates the new antecedent liability.

You are a PCO and a new trainee comes to you seeking advice. She says she just had a conversation with a Financial Manager who referred to funds categorized by status as either active, expired, or cancelled. She doesn't understand the differences. Can you explain the differences between the 3 status categories?

Authority: 31 U.S.C. 1551-1558 Active means the period of time that you are permitted to use funds for obligation on a contract. Usually that period of within the 12 months of a fiscal year, but there are multi-year appropriations, such as R&D (3600) money, that has a two-year life span in active status. All appropriations are cancelled 5 years after they cease to be active, and are no longer available for any purpose, and are returned to the Treasury. Under PL 101-510, any use of cancelled funds is prohibited and results in a violation of the Anti-Deficiency Act. The period of time between when the appropriation is no longer active, and when it cancels, it is expired, and it is only available to pay obligations that are properly chargeable to that account. So for example...FY09 - 3600 money can be obligated on R&D requirements in FY09 and FY10. Once you hit Oct 1, 2010, your 3600 money from FY09 will expire. Once it expires you cannot use it for new efforts, only for those efforts that have an overrun, etc., where the obligation was incurred in FY09 or FY10. It stays expired for a period of five more years, and then on Oct 1, 2015, it is cancelled. When it is cancelled, it goes back to the U.S. Treasury and cannot be used for any purpose.

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.

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?

Authority: FAR 15.207(c) 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.

When including options in a contract, what basic elements must be included in the contract?

Authority: FAR 17.208 / DFARS 217.208 1. The contract must specify limits on the purchase of additional supplies or services, or the overall duration of the term of the contract, including any extension. 2. The contract must state the period within which the option may be exercised. The period shall be set so as to provide the contractor adequate lead time to ensure continuous production. 3. The total of the basic and option periods shall not exceed 5 years in the case of services, and the total of the basic and option quantities shall not exceed the requirement for 5 years in the case of supplies. These limitations do not apply to information technology contracts. FAR 52.217 says that need: Various clauses for options, listed A requirement that the government give preliminary notice of intent to extend contrat A statement that the extension of the contract includes extension to the option Specified limitation on total duration of the contract DFARS: Sealed bid solicitations & FMS clause required if expected in contract

What are Inherently Governmental Functions?

FAR 7 -A function that is so intimately related to the public interest as to mandate performance by government employees. These functions include those activities that require either the exercise of discretion in applying government authority or the making of value judgments in making decisions for the Government. Two categories: 1) The Act of Governing 2) Monetary transactions and entitlements Examples of Inherently governmental functions which involve the interpretation and execution of the laws of the U.S. 1) To bind the U.S. to take or not to take some action by contract, policy, regulation, authorization, or order. 2) To determine, protect, and advance its economic, political, territorial, property or other interest by military or diplomatic action or criminal judicial proceedings or contract Management 3) To significantly affect the life, liberty or property of private persons. 4) To commission appoint, direct or control officers of U.S. employees. 5)To exert ultimate control over the acquisition, use or disposition of U.S. property including the collection, control, or disbursement of federal funds.

Can you patent a trade secret?

No, the whole point of a trade secret is to keep it secret as it offers no other protection. A patent would disclose the secret and render it pointless.

What are the data rights categories for noncommercial technical data, and when could we send that information to other contractors as part of a source selection?

PLACE HOLDER

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?

REFERENCE: FAR 15.404-3, DFARS 215.404-71-2(d) 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)

You as the Contracting Officer are involved in a very difficult Firm Fixed Price negotiation which is proposed at $120M. At the present time the two sides are $15M apart. The Air Force maximum position would allow movement of $8M. The Program Manager is concerned about the length of time the negotiation is taking and has asked you about the possibility of offering the contractor a 50/50 split of the present positions. What would be your response?

REFERENCE: FAR 15.405 If a fair and reasonable price for the government to pay is no more than the $8M that they can move...then splitting the difference is paying more than the taxpayer should fairly and reasonably pay. As a contracting officer, you must keep in mind that you are a steward for the taxpayer, and splitting the difference will not even guarantee that you will be successful in negotiating it, and it is not a fair and reasonable price. The Government should never offer a 50/50 split with the contractor for the following reasons: If the contractor says no, which is very likely with this magnitude of difference, the gov't team has nowhere to go. The credibility of the AFNT is now gone since it is now obvious that only the Government management can settle the acquisition. A move of this sort allows for little additional room for management to adjust (in this case, only $500K). If you reserve the right to go back to your previous position if the split is not accepted you would be in the same situation as telling the jury to ignore the previous statement. In other words, the contractor now knows you can go at least to the split position and they will now negotiate with this knowledge. The FAR makes clear in 15.405, that if the contractor insists on a price or demands a profit or fee that the PCO considers unreasonable, the PCO needs to refer the contract action to a level above the PCO, and document the file accordingly.

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?

REFERENCE: 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

Contracting Officer (CO) signed and awarded a contract on 01 Dec 10. The contract included a Depot Repair CLIN. The CLIN was negotiated CPFF, fully-funded utilizing FY11 3400 funds with a period of performance from 01 Dec 10 through 30 Nov 11. The Depot Repair CLIN had an Estimated Cost that was tracked, exclusive of other CLINs on the contract, against FAR 52.232-20, "Limitation of Cost". The contractor completed performance within the negotiated estimated cost. The contractor submitted a final indirect cost rate proposal in accordance with FAR 52.216-7, "Allowable Cost and Payment". The final audit was completed 15 Jan 13 and the contractor's actual cost experienced for the Period of Performance (PoP) of the contract was higher than the estimated cost on the contract. The contractor submitted a final invoice of $100,000. The CO needs additional funds to obligate to cover the final invoice. Based on the above situation, what is the appropriate fiscal year funds required?

REFERENCES/AUTHORITY: FY 11 3400 Funds When an upward price adjustment is required in a subsequent year (subsequent to FY11 in the above scenario), the CO must assess whether the adjustment is a result of an "antecedent liability". Or in other words, did the government's liability arise and is it enforceable under a provision in the original contract? If the answer is yes, then a within-scope adjustment, requested and approved in a subsequent fiscal year, can be charged against the appropriation current at the time the contract was originally executed. In this case the "antecedent liability" relates back to FAR 52.216-7, "Allowable Cost and Payment" and 52.232-20, "Limitation of Cost". Antecedent - definition: a preceding occurrence or cause or event. GAO Decision: B-195732, SEPTEMBER 23, 1982, 61 COMP.GEN. 609 "In our 1980 decision, we concluded that the cost of the 1979 modification to reflect an increase in allowable overhead rates was to be paid from the original appropriation obligated for the contract, even though the modification resulted in an increase in the contract's cost ceiling. The basis for our conclusion was that the increased overhead rates were based on an antecedent contractual liability within the scope of the original contract." General Electric Co. vs. U.S 194 Ct. Cl. 678, 440 F.2d 420 Ct. Cl. 1971 This case from the U.S. Court of Claims addressed the issue of responsibility for failure to notify the PCO of a prospective cost overrun. In overturning the Armed Services Board of Contract Appeals, the court held that on the facts the contractor could not anticipate the growth in its final overhead rates, treating the cost growth as an antecedent liability, relating basic to the award of the contract. The CO must take the following actions: Since the FY11 funds have expired for obligation, an Obligation Adjustment Reporting System (OARS) upward adjustment request must be processed to identify and obtain approval to use FY11 3400 funds. After receipt of certified funds, the CO will modify the contract, citing FAR 52-216-7, to increase the total estimated cost and funds obligated against the contract. Final invoice can be processed.

You are the PCO in a division at AFRL. You have a requirement that you have determined to be sole source after conducting market research. The estimated value of the requirement is $9M. 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? What if after award you need to amend the J&A and increase it to $12M, what if you have to increase it to $15M?

REFERENCES/AUTHORITY: AFFARS 5306.304 Approval authority for J&As is: < $700K - PCO $700K - $13.5M Competition Advocate $13.5M - $93M - HPA - head of procuring activity (procuring activity is synonymous with contracting activity) >$93M SPE AFFARS 5306.304(e) Prior to contract award: After a J&A has been approved, but prior to contract award, if the dollar value of the contract is expected to exceed the original J&A approval authority, the contracting officer must submit an amended J&A to the appropriate approving authority for approval. The amended J&A shall identify the dollar increase from the initial, approved J&A. (f) After contract award: When a proposed contract action is for new work outside the scope of the original contract, the contracting officer must submit a new J&A as a stand-alone document to the appropriate approving authority based on the dollar value of the contract action for the new work. New work should not commence until the new J&A is approved unless authorized in accordance with FAR 6.302-2, Unusual and Compelling Urgency. See 5343.102-90 regarding contract scope considerations. Answer: approval authority for $9M - CA If you increase to $11M, still CA

The Contracting Officer (CO) awarded a Cost-Plus-Fixed-Fee (CPFF) contract on 28 Sep 19. The contract was fully funded with FY19 3400 funds. The period of performance is from 28 Sep 19 to 27 Sep 20. On 01 Aug 20, the contractor notified the CO that funds were at 75% expenditure rate in accordance with FAR Clause 52.232-22, and an additional $50K was needed to complete performance. The CO requested additional FY19 3400 funds from finance to cover the cost overrun. Based on the above situation, are FY19 or FY20 3400 funds to be used on this overrun?

REFERENCES/AUTHORITY: AFI 65-601, V1, par. 6.3.7.5 FY20 3400 funds Change orders to cost reimbursement contracts with a limitation of cost or limitation of funds clause that cause the contract ceiling to be exceeded, and which are NOT based on antecedent liability, enforceable by the contractor, shall be charged to funds legally available when the contracting officer grants the discretionary increase. To recap: cost reimbursement with LOC/LOF Ceiling exceeded NOT based on antecedent liability Therefore must charge to the time when the CO grants the increase The CO must take the following corrective actions: If the CO intends to grant the increase, obtain FY20 3400 funds to fund the cost overrun via modification (when CO granted the increase). FYI this question modernized to current date, original question had older dates FY12 reference changed to FY19 FY13 reference changed to FY20

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 in 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?

REFERENCES/AUTHORITY: AFMC MP 5327.9002 / ITAR [22 CFR 121-128] 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. (1) 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. (2) 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. The program team will need to work with the Foreign Disclosure Office for this determination. 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'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 won't 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?

REFERENCES/AUTHORITY: AFMC PGI 5304.101-90 If you feel there is enough justification to allow the contractor to begin early, you could seek COCO approval for an early effective date. To use an early effective date, you need to have agreement on terms, conditions, and price, and funds must be available. You will need to advise the contractor in writing that only allowable, allocable, and reasonable costs will be accepted (same as those incurred after award), and that if the contract does not materialize, the costs must be at the contractor's own risk. You can provide contractual coverage with a letter contract or other UCA action. If the envisioned contract award date is more than 30 days from the early effective date, obtain legal review.

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?

REFERENCES/AUTHORITY: DFARS 204.404-70; DFARS 252.204-7000 The clause in question is required in solicitations and contracts when the contractor will have access to or generate unclassified information that may be sensitive and inappropriate for release to the public. If you truly believe that there will be sensitive information generated (confirm with the PM, legal office, and Foreign Technology Office to determine if military critical technologies will in fact be produced), you should not agree to delete this clause. The clause just requires that the contractor (and subcontractors) get permission from the PCO before release of information, not that all information disclosure is unauthorized out of principle. If explaining this distinction does not quell the university's fears, perhaps it might be possible to designate certain portions of the effort as "protected," requiring prior approval to release, with other portions that the university could release on its own. It would also be helpful to know if the university's portion of the effort even deals with anything that is sensitive.

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?

REFERENCES/AUTHORITY: DFARS 217.7403; AFMC MP 5317.7404-1(91) ANSWER: According to the regulations, 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. One course of action might be the Option to Extend Services clause, which could buy time for proper acquisition planning for the new requirement. The PCO should inform his/her chain about the situation to get some support at higher levels.

The Contracting Officer (CO) awarded a Firm-Fixed Price (FFP) contract on 30 Sep 13 for severable services with a 12 month period of performance (PoP) and obligated FY 2013 Operations and Maintenance (O&M) 3400 type funds. The effective date of the award is 1 Oct 13. Based on the above situation, is FY 2013 funding appropriate for this effort?

REFERENCES/AUTHORITY: DFARS 232.703-3; 31 U.S.C. 1502 (Bona Fide Needs Rule) The CO awarded the contract and obligated FY13 3400 funds when performance did not commence until 1 Oct 13. This is a violation of 10 U.S.C. 2410(a), which authorizes the use of current fiscal year appropriations to finance severable service contracts into the next fiscal year for a total period not to exceed 1 year. Since the effective date of the contract is 1 Oct 13, the services awarded were not a current year need (FY13), they were a FY14 need. Additionally, the awarded contract violates the Bona Fide Needs Rule, 31 U.S.C. 1502, which says that the appropriation is available only for payment of expenses incurred during the period of availability. Obligating current year money for future year requirements violates this rule. Therefore, it as it currently stands, the contract should be funded with FY14 funds since it is an FY14 requirement. To fix the issue, there are two possible courses of action. First, if the effective date was an error and it can be established that the contractor commenced performance prior to 1 Oct 13, a bilateral mod could be issued to correct the effective date to the date performance commenced. Then, FY13 funds could be used. If work did not commence until after 30 Sept 13, then the 1 Oct 13 effective date could remain and a modification would need to be issued to de-obligate the FY13 funds and replace them with FY14 funds.

You have received a request for equitable adjustment (REA) from your contractor. What do you do?

REFERENCES/AUTHORITY: DFARS 252.243-7002 ANSWER: Requests for equitable adjustment many times result from clauses in the contract that specifically authorize them. For instance, any time a change order is issued, the contractor has 30 days to submit a REA for any increased costs as a result of the change order. REAs are typically more informal than claims, so my first task would be to get all the facts and determine whether the contractor's REA has any merit. If it does, I would then determine whether it needs to be certified (&gt;$150K). If I believe it holds merit and is properly certified, then I would begin to take steps to negotiate a settlement with the contractor, involving my program attorney as necessary. If negotiating with the contractor is difficult, and the involvement of program counsel has not helped, the case can always be referred to AFMC LO for formal ADR. Formal ADR can be accomplished either before or after the issuance of a final decision. If I determine that the REA is without merit, I may still attempt to discuss the issues with the contractor prior to issuing a COFD. Once a stalemate has occurred and the REA can't be resolved at the CO level, a final decision is issued and the contractor can proceed IAW the Disputes clause if it desires.

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 or higher leadership direction?

REFERENCES/AUTHORITY: FAR 1.602-2; AFFARS 5301.602-2; AFMC MP 5301.602-2 This is a classic example of how your responsibilities as a PCO can sometimes conflict with your responsibilities as part of a chain of command in the Air Force. While you typically want to comply with the orders of your higher leadership, it may not be possible due to your responsibilities as a warranted PCO. In this case, I would first determine the legal parameters of the issue. Two citations from the regulations may help. First, AFFARS states that when there is doubt or controversy about the interpretation of statutes, directives, and regulations, you must seek legal advice. The issue at hand seems to have some controversy as to the original legal guidance. Second, the AFMC PGI 5301.9001-92 says files submitted for clearance approval should clearly evidence local legal review and comment resolution with the program attorney. If it can't be resolved, the PCO should highlight the issue in the clearance request and briefing. With these things in mind, I would first check to see if the legal guidance is mandatory or only advisory in nature. If mandatory, I would follow the legal guidance and then work with my supervisor to help resolve the situation with my higher leadership. I wouldn't need to "go it alone," but at the end of the day, it is my warrant on the line and my responsibility to ensure the integrity of the procurement system. I won't sign anything I don't feel comfortable signing. If there is flexibility in the legal guidance, I would consult with the attorney again to bring up the potential alternate course of action, and get his/her input, but I would ultimately determine whether or not to proceed and then document the file accordingly.

You are the contracting officer for the base snow removal contract. You just received a letter from the contractor requesting payment for additional snow removal services provided last Saturday after a bad snow storm. When you call the contractor he informs you that Colonel Barlow called in just prior to the snow storm and instructed the contractor to plow her parking spot every hour just in case she needed to come into the office. The contractor is asking to be paid $500 for the additional service. What should you consider in making a determination to pay this or not. Walk us through the process.

REFERENCES/AUTHORITY: FAR 1.602-3; AFFARS 5301.602-3; AFFARS MP 5301.602-3 RATIFICATION is the act of approving an unauthorized commitment by an official who has authority to do so. Circumstances: a) Supplies or services have been provided to and accepted by the Government b) The ratifying official has the authority to enter into a contractual commitment c) The resulting contract would otherwise have been proper if made by an appropriate contracting officer d) The contracting officer reviewing the unauthorized commitment determines the price to be fair and reasonable e) The contracting officer recommends payment and legal counsel concurs f) Funds are available and were available at the time the unauthorized commitment was made g) The ratification is in accordance with any other limitations prescribed under agency procedures Procedures: An investigation is required to be completed within 30 days of the unauthorized commitment explaining how and why it occurred, how future occurrences will be avoided and any corrective action including a legal review 1. The contracting officer initiates an investigation. 2. The commander of the organization in which the unauthorized commitment occurred ensures the following are provided to the contracting officer within 30 days of the request: a. A report on the circumstances surrounding the unauthorized commitment, to include a statement on corrective actions taken to prevent a recurrence of the event and a description of disciplinary action taken, or an explanation why no action was taken. b. A signed statement from the individual who made the unauthorized commitment detailing the incident. If a statement is unavailable, the commander explains in the report the reason for not providing the individual's statement. c. Relevant documentation and records. 3. The contracting officer analyzes the documentation and, if ratification is appropriate, prepares a file. The file contains the following: a. Statement of the contracting officer that summarizes the case and addresses each of the elements contained in FAR 1.602-3(c). b. Legal opinion. c. Contractor's invoice with relevant correspondence Approval Authority: < $30K COCO and > $30K SCO

When acquiring commercial items, what contract type(s) are normally used? What type(s) are prohibited?

REFERENCES/AUTHORITY: FAR 12.207; DFARS 212.207 ANSWER: Firm-fixed-price contracts or fixed-price contracts with economic price adjustment are required for purchasing commercial items. However, if commercial services are being acquired and certain conditions are met, then a T&amp;M or labor-hour contract may also be used. DFARS Part 212 places additional restrictions on those types of commercial service contracts. Indefinite-delivery contracts may be used where the prices are established based on a firm-fixed-price or fixed-price with economic price adjustment. These contract types may be used in conjunction with an award fee and performance or delivery. Use of any other contract type is prohibited.

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.

REFERENCES/AUTHORITY: FAR 12.209; FAR 15.402; DPAP Memo (4 Feb 15) - Commercial Items and the Determination of Reasonableness of Price for Commercial Items ANSWER: Commercial items are exempt from the requirement of certified cost or pricing data. However, we must still determine reasonableness of the offered price. FAR 15.402 says that we shall obtain other than certified cost or pricing data as necessary, in the following order of preference: (1) No additional data from the offeror if price is based on adequate price competition, (2) Data other than certified cost or pricing data, such as: (A) Data related to prices, or (B) Cost data to the extent necessary to determine a fair and reasonable. Week 10 Page 2 of 8 Within (2)(A), there is a three step flow of retrieving the data: First - Determine if information is available within the Government. Examples - prices from other Government contracts, AFLCMC/PKF historical information, government independent cost estimates, historical data from other government services or agencies, records within DCAA and DCMA. Second - 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. Third - 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. FAR 12.209 says that we should also be aware of customary commercial terms and conditions when pricing commercial items. Commercial items are affected by factors that include speed of delivery, length and extent of warranty, limitations of seller's liability, quantities ordered, length of performance period, and specific performance requirements. These things could lead to differences between Government requirements and commercial contract comparisons.

What is the purpose of Simplified Acquisition Procedures? How is the threshold for using SAP affected if you expect to only receive quotes using commercial items?

REFERENCES/AUTHORITY: FAR 13.002, FAR 13.5 The purpose of SAP is to- (a) Reduce administrative costs; (b) Improve opportunities for small, small disadvantaged, women-owned, veteran-owned, HUBZone, and service-disabled veteran-owned small business concerns to obtain a fair proportion of Government contracts; (c) Promote efficiency and economy in contracting; and (d) Avoid unnecessary burdens for agencies and contractors. Threshold for Commercial Items: (a) This subpart authorizes the use of simplified procedures for the acquisition of supplies and services in amounts greater than the simplified acquisition threshold but not exceeding $7 million ($13 million for acquisitions as described in 13.500(c)), including options, if the contracting officer reasonably expects, based on the nature of the supplies or services sought, and on market research, that offers will include only commercial items. Contracting officers may use any simplified acquisition procedure in this part, subject to any specific dollar limitation applicable to the particular procedure. The purpose of these simplified procedures is to vest contracting officers with additional procedural discretion and flexibility, so that commercial item acquisitions in this dollar range may be solicited, offered, evaluated, and awarded in a simplified manner that maximizes efficiency and economy and minimizes burden and administrative costs for both the Government and industry (10 U.S.C.2304(g) and 2305 and 41 U.S.C.3305, 3306, and chapter 37, Awarding of Contracts. (b) When acquiring commercial items using the procedures in this part, the requirements of part 12 apply subject to the order of precedence provided at 12.102(c). This includes use of the provisions and clauses in subpart 12.3. (c) Under 41 U.S.C. 1903, the simplified acquisition procedures authorized in this subpart may be used for acquisitions that do not exceed $13 million when- (1) The acquisition is for commercial items that, as determined by the head of the agency, are to be used in support of a contingency operation; to facilitate the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to support a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate provision of international disaster assistance; or to support response to an emergency or major disaster, or (2) The acquisition will be treated as an acquisition of commercial items in accordance with 12.102(f)(1).

4.You were the Contracting Officer for a source selection that bought 500 engine trailers based on adequate price competition 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?

REFERENCES/AUTHORITY: FAR 15.403-1(c)(1)(iii) 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." Since the trailers are being procured only 3 months later, the "recent prices for the same or similar items" appears to be the reason that these still fall under adequate price competition. Note: this reference no longer exists and this language is in 15.403-1(c)(1)(ii) which does not apply to DoD.

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

REFERENCES/AUTHORITY: FAR 15.404-1 and 15.403-1 Both price analysis and cost analysis are ways of analyzing a proposal to determine whether the final agreed-to price is fair and reasonable. Whereas price analysis only considers the final price, cost analysis breaks down and analyzes the separate cost elements and then combines them back together to arrive at the final price. Price analysis shall be used when cost or pricing data is not required. This makes sense, because you typically won't have insight into the individual cost elements when cost or pricing data is not required (ex: commercial items) when certified cost or pricing data exceptions apply, or anything under the threshold. Sometimes you might request (in an effort to determine fair & reasonable pricing) and receive the same exact data that would be provided for cost analysis, but it just won't be certified. Some specific techniques for performing price analysis are: Comparison of proposed prices received in response to the solicitation. (Preferred) Comparison of proposed prices to historical prices paid, whether by the Government or other than the Government, for the same or similar items (Preferred) Use of parametric estimating methods/rough yardsticks Comparison with competitive published price lists, public market prices of commodities, similar indexes, and discount or rebate arrangements Comparison of proposed prices with Independent Government Cost Estimates Comparison of proposed prices with prices obtained via market research for the same/similar items Analysis of data other than certified cost or pricing data provided by the offeror Cost analysis shall be used to evaluate the reasonableness of individual cost elements and profit/fee when certified cost or pricing data is required. It requires judgment to determine how well the proposed costs represent what the cost of the contract should be, assuming reasonable economy and efficiency. After completing the cost analysis, you should also use price analysis to verify that the overall price is fair and reasonable (though not required). Some techniques for performing cost analysis are: Verification of cost data or pricing data and evaluation of cost elements, to include: the necessity for and reasonableness of proposed costs; projections of the offeror's cost trends; reasonableness of estimates generated by parametric models or cost-estimating relationships; and the application of audited or negotiated indirect cost rates, labor rates, and cost of money or other factors Evaluating the effect of the offeror's current practices on future costs Comparison of costs proposed by the offeror for individual cost elements with: actual costs previously incurred by the same offeror; previous cost estimates for the same/similar items; other cost estimates received in response to the Government's request; IGCEs by technical personnel; and forecasts of planned expenditures Verification that the offeror's cost submissions are IAW contract cost principles and CAS Review to determine whether any cost or pricing data required for a suitable proposal have not been submitted Analysis of the results of any make-or-buy program reviews, in evaluating subcontract costs TINA Exceptions: APC Prices set by law or regulation Commercial Items Waiver has been granted Modifying contract/subcontract for commercial items

5.You are the CO on a new R&D program. Proposals were recently received in response to a Broad Agency Announcement, and a Cost Plus Fixed-Fee (CPFF) type contract is anticipated. The proposal most favored by the technical team was priced significantly under the Government estimate. The contractor proposed fee is an amount that equates to 20% of the estimated cost. The Program Manager (or user) has more than enough funds to cover the entire proposed price and wants you to accept the price as is. How should you advise the Program Manager (or user) and what factors should you consider in determining a reasonable fee?

REFERENCES/AUTHORITY: FAR 15.404-4(c)(4)(i) The statutory limitation on CPFF type contracts does not permit fee to exceed 15% of the estimated cost for experimental, developmental, or research performed under a CPFF contract. As the proposed amount of fee is outside the statutory limitations you need to determine what a fair and reasonable rate is that falls inside the limitations. The FAR recommends a structured approach for determining fee such as Weighted Guidelines, which considers four primary factors. These factors are performance risk, contract type risk, facilities capital employed and cost efficiency. I would tell the PM that I cannot accept the proposal as-is, but I plan to come up with a reasonable profit figure using Weighted Guidelines, then negotiate fee with the contractor (assuming costs are already acceptable/reasonable).

You are a PCO who has just been assigned as a trainer for a new employee. The new employee's name is Condoleezza. You are helping Condoleezza prepare for her first kick-off meeting for a new buy. She has been researching and gathering information pertaining to contract types. She's not very clear on the differences between a cost type contract and a fixed price contract. As a result of her research, she thinks that all Government contracts should be fixed price. She just can't understand why anyone would want to award a cost type contract. What advice or input would you offer to Condoleezza?

REFERENCES/AUTHORITY: FAR 16.101 - 16.104; FAR 16.301-2 - 16.301-3 The FAR says that an FFP contract, which best utilizes the basic profit motive of business enterprise, shall be used when the risk involved is minimal or can be predicted with an acceptable degree of certainty. However, when a reasonable basis for firm pricing does not exist, other contract types should be considered, and negotiations should be directed toward selecting a contract type that will appropriately tie profit to contractor performance. In other words, while the Government prefers fixed price, there are times when other contract types, including cost type, are appropriate and necessary. Cost type contracts are generally used when requirements are complex or not well-defined or there are uncertainties involved in contract performance that do not permit costs to be estimated with sufficient accuracy to use any type of fixed-price contract. In these cases, the Government assumes more of the risk in an attempt to attract more contractors and increase competition. The use of cost-type contracts does have other requirements, such as an adequate accounting system and appropriate Government surveillance. The CO must document the rationale for selecting contract type in the contract file. R&D is a prime example of a situation where a cost-type contract would be most appropriate.

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?

REFERENCES/AUTHORITY: FAR 16.402-2; FAR 16.402-4(b); FAR 16.405 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. Preparing the incentive will require all or almost all of the functional disciplines in the program office, so there is a resource commitment. The incentive will have to have enough of a payment associated with it to motivate the contractor to expend cost to achieve it. 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 52.216-10 - Incentive Fee will have to be added to resulting contract

Describe the requirements necessary to properly exercise a contract option.

REFERENCES/AUTHORITY: FAR 17.207; DFARS 217.207 There are several steps to accomplish prior to exercising an option: (1) Provide written notice to the contractor within the time period specified in the contract (2) If EPA & contractor requests revision of price, determine effect of adjustment prior to exercising (3) Prepare a D&F for the contract file, determining: a. Funds are available b. Requirement covered by option fulfills an existing Government need c. Exercise of option is most advantageous method of fulfilling the Government's need, price and other factors considered (i) Make determination based on either: new solicitation fails to produce a better price, informal analysis of prices/market, or time between award of contract and option exercise is so short that it indicates option price is more advantageous (ii) Other factors: Government's need for continuity of operations and potential costs of disrupting operations; and effect on small business d. Option was synopsized IAW FAR Part 5 unless exempted e. Contractor is not on SAM exclusions list f. Contractor's past performance on other actions have been considered g. Contractor's performance on the current contract has been acceptable (4) Additional DFARS requirements: a. Check SAM record is current, DUNS, CAGE, and address match contract document b. If option contains spare parts and contract is FFP, required to perform cost or price analysis (5) Cite option clause as the authority on contract modification document

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?

REFERENCES/AUTHORITY: FAR 17.2; FAR 6.302; FAR 6.304 The black and white answer to this is that the Government has lost its right to exercise the option since it was not done IAW the terms and conditions of the contract. Since this is the case, the Government would have to re-compete the requirement in order to have it met. Alternatively, there is a way to proceed that involves other than full and open competition, but this would be a tough sell. One of the main reasons that the FAR says other than full and open competition is not justifiable is due a lack of advance planning. That being said, the process would proceed as follows. You would 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 counsel, review the circumstances and get their buy-in for a contract modification. If your counsel 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.

You are in a kick-off meeting for a $20M R&amp;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?

REFERENCES/AUTHORITY: FAR 19.502-2(b)(2) Although the FAR states: Acquisitions between MPT and SAT are automatically reserved for SB concerns. "The Contracting Officer shall set aside any acquisition over simplified acquisition threshold 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.

Its 10:00 AM on Sunday Sep 30 2009, one of your A&amp;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 77th 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?

REFERENCES/AUTHORITY: FAR 19.804-4 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

In response to a sole source solicitation for 150 portable SHF terminals, Bridges and Daughters, Inc. (BDI) has submitted a proposal in which it has asserted that its Model TX-4 Omni-Sat is a commercial item. BDI's proposal contains unit pricing information $85K/unit (for a total price of $12.750M) however, no additional information was provided. In conducting market research you have been unable to independently determine price reasonableness from information within the Government or from sources other than BDI. Discuss how you would determine whether the TX-4 Omni-Sat is a commercial item AND whether the proposed price of $85K/unit is fair and reasonable.

REFERENCES/AUTHORITY: FAR 2.101 (commercial items definition); FAR 12; FAR 15 ANSWER: Commercial item means: (1) Any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and- (i) Has been sold, leased, or licensed to the general public; or (ii) Has been offered for sale, lease, or license to the general public; (2) Any item that evolved from an item described in paragraph (1) of this definition through advances in technology or performance and that is not yet available in the commercial marketplace, but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Government solicitation; (3) Any item that would satisfy a criterion expressed in paragraphs (1) or (2) of this definition, but for- (i) Modifications of a type customarily available in the commercial marketplace; or (ii) Minor modifications of a type not customarily available in the commercial marketplace made to meet Federal Government requirements. Minor modifications means modifications that do not significantly alter the nongovernmental function or essential physical characteristics of an item or component, or change the purpose of a process. Factors to be considered in determining whether a modification is minor include the value and size of the modification and the comparative value and size of the final product. Dollar values and percentages may be used as guideposts, but are not conclusive evidence that a modification is minor; (4) Any combination of items meeting the requirements of paragraphs(1), (2), (3), or (5) of this definition that are of a type customarily combined and sold in combination to the general public; (5) Installation services, maintenance services, repair services, training services, and other services if- Week 10 Page 5 of 8 (i) Such services are procured for support of an item referred to in paragraph (1), (2), (3), or (4) of this definition, regardless of whether such services are provided by the same source or at the same time as the item; and (ii) The source of such services provides similar services contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government; (6) Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions. For purposes of these services- (i) "Catalog price" means a price included in a catalog, price list, schedule, or other form that is regularly maintained by the manufacturer or vendor, is either published or otherwise available for inspection by customers, and states prices at which sales are currently, or were last, made to a significant number of buyers constituting the general public; and (ii) "Market prices" means current prices that are established in the course of ordinary trade between buyers and sellers free to bargain and that can be substantiated through competition or from sources independent of the offerors. (7) Any item, combination of items, or service referred to in paragraphs(1) through (6) of this definition, notwithstanding the fact that the item, combination of items, or service is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor; or (8) A nondevelopmental item, if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments. To determine whether the TX-4 is a commercial item the Contracting Officer should require BDI to provide product literature from a catalog or other market publication showing the its performance and physical characteristics; and sales data. To determine price reasonableness the Contracting Officer should require BDI to submit information other than cost or pricing data (submission of Cost or Pricing Data is prohibited—FAR 15.403-1 (b)(3) - when a commercial item is being acquiried) showing prices at which the item has been sold in the commercial marketplace. (Note: The fact that is included in a catalog does not make it fair and reasonable.) At a minimum the Contracting Officer must perform a price analysis. The Contracting Officer should also consider discounts obtained, quantities, delivery rates, and terms of the purchase

In order to meet the Government's shock and vibration requirements BDI tells you that it will have to modify the TX-4 by retrofitting its harness assembly at an estimated cost of $800K. Assuming that the TX-4 is a commercial item discuss what factors you would consider in determining whether or not the TX-4 retains its commerciality when modified. Week 10 Page 6 of 8 Discuss the type of cost information and the proposal analysis techniques you would use to determine a fair and reasonable price for the modified item.

REFERENCES/AUTHORITY: FAR 2.101, FAR 12 ANSWER: A modified item may retain its commerciality if the modification is "minor." (FAR 2.101) Minor modifications if it is of a type not customarily available in the commercial marketplace made to meet Federal Government requirements. Minor modifications means modifications that do not significantly alter the nongovernmental function or essential physical characteristics of an item or component, or change the purpose of a process. Factors to be considered in determining whether a modification is minor include the value and size of the modification and the comparative value and size of the final product. Dollar values and percentages may be used as guideposts, but are not conclusive evidence that a modification is minor;

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 your contract file and what steps would you take determining if you agree with the contractor's position of commerciality?

REFERENCES/AUTHORITY: FAR 2.101; DFARS 212.102; AFMC MP 5312.201-90 ANSWER: First, as a PCO, you will review the definition of a "commercial item" in FAR 2.101 to make sure you fully understand what is required for an item to be determined commercial. Although there are 8 aspects to the definition, the main consideration is whether the item has been sold or offered to the general public for purposes other than governmental purposes (or modifications/evolutions to those items). If it is not clear from reading the definition, you may need to interface with the contractor to see why it thinks the item is commercial and have them provide backup documentation. Next, since the acquisition is over $1 million, DFARS states that the PCO shall determine in writing that the commercial definition has been met. This does not apply, however, if the commercial item will be used to support defense or recovery from CBRN attacks (FAR 12.102(f)). In order to comply with the DFARS guidance, the AFMC MP lists exactly what is required for the Commercial Item Determination (CID). The CID may be written as a memorandum, and shall address the minimum components of: (i) Description of supplies or services; (ii) Basis on which the supplies or services meet the definition of a commercial item in FAR 2.101; (iii) Basis on which the commercial item satisfies the government's requirements; (iv) Contracting officer signature and date. The final step would be to gain approval at one level above the CO depending on which aspect of the commercial definition from FAR 2.101 is used ((1)(ii), (3), (4), or (6) require this approval).

Your program has identified a requirement for improved cockpit radios for your transport aircraft. The Program Manager conducted market research and has concluded that there is a commercial radio on the market that, with minor modification, would meet the minimum requirements. However there are sufficient funds available for the development of an entirely new cockpit radio to the exact military specifications. How would you advise the PM to proceed? Does the commercial radio meet the FAR definition of a commercial item? If so, does the PM have the option of developing a new military item?

REFERENCES/AUTHORITY: FAR 2.101; FAR 12.101(b) ANSWER: According to FAR 2.101, an item that otherwise meets the definition for a commercial or non-developmental item "but for modifications of a type customarily available in the commercial marketplace or minor modifications of a type not customarily available in the commercial marketplace made to meet Federal Government requirements" is a commercial item. As a Contracting Officer, you should advise the PM that you must purchase the commercial item under the circumstances. According to FAR 12.101(b), agencies shall acquire commercial items or non- developmental items when they are available to meet the needs of the agency.

You are the CO for a brand new acquisition, and you are procuring it as a service contract. The requirement is for maintenance of an aircraft and is worth $500K per year. The work takes place in the US. Does the Service Contract Labor Standards apply? If so, what actions do you need to take?

REFERENCES/AUTHORITY: FAR 22.10 ANSWER: Yes it applies to all service contracts &gt;$2500 where the work takes place in the US. Proceed by: 1. Add SCLS to the contract 2. Determine the DoL WD 3. Notify the DoL via SF98 4. Include the clause at FAR 52.222-42 Statement of Equivalent Rates for Federal Hires in the contract 5. Determine if KTR has a Collective Bargaining Agreement (CBA). If so, follow procedures at FAR part 22

You are now the CO on a sustainment services contract for the F-35. It was awarded to ABC Logistics with a one year basic period and four one-year options valued at $15M. The effort includes both professional and non-professional services. At the beginning of the final option year, the contractor submits a proposal for a price adjustment due to an increase in the Wage Determination (WD). The WD increased by $7 (from $20/hr to $27/hr). ABC's proposal documents a current wage rate of $25/hr and requests the $7/hr WD increase for 40 of their full time employees working the project. ($7/hr X 2080 annual hrs/yr = $14,560 X 40 employees = $582,400 total requested increase) Upon assuming the CO duties for the project, what services specific documentation would you review? Describe how you would apply labor law to this cation and how you would resolve the price adjustment request.

REFERENCES/AUTHORITY: FAR 22.10 and 22.11; FAR 37.6; AFI 63-138 In regards to reviewing the contract file, the following services specific information would be reviewed: -Performance Work Statement (PWS) -Requirements Approval Document (RAD) -Quality Assurance Surveillance Plan (QASP) -Contracting Officer Representative (COR) Designation and training documentation (If not admin'd by DCMA) -Document that ID's the labor categories, skill mix, etc. that applies to the Service Contract Labor Standards or professional status of employees, sometimes referred to as Skills Letter The labor law applicable to this effort is Service Contract Labor Standards. Key Concepts: -ID's minimum wage and/or other reqs for federal contracts; applicable to service contracts performed in US -Use a WD issued by Dept of Labor and incorporated into the contract; incorporate a new WD yearly (if applicable) into the contract -Professional services are exempt -Applies to non-professional technical personnel for efforts &gt;$2,500 The CO is responsible for evaluating the contractor's proposal against the new WD. The contractor should provide documentation (payroll records) of the current wage paid (the $25/hr noted above). While ABC has asked for $7/hr increase, they are only due the $2/hr increase - the delta between they currently pay and the new minimum per the new WD. The Government is not responsible for any amount over the WD that a contractor may choose to pay their employees. $2/hr X 2080 full time hrs = $4160 X 40 employees = $166,400

You are writing a service contract for repair and return of spares. The total cost of the acquisition will be approximately $7.5M. You are discussing the requirements of doing a service contract with your PM, and trying to explain the difference between the old way of doing this as a supply contract, and the correct way of writing the contract as a service. What are the requirements of a service contract you will need to explain to your PM?

REFERENCES/AUTHORITY: FAR 22.10; AFI 63-138; FAR 37; FAR 1.602-2 The PWS must be performance based - describe what the work is, not how to do it. You will need to write a QASP. The PWS must contain a services summary, based on what's listed in the QASP, that indicates the critical services to be performed and the performance threshold. Does Service contract labor standards apply? If so, you need to obtain a WD to attach to the contract, and include equivalent rates for federal employees in the contract. You will need to designate a COR.

When is an Equal Employment Opportunity Preaward Clearance required? What are the procedures for requesting a clearance?

REFERENCES/AUTHORITY: FAR 22.805 ANSWER: 1. Preaward clearances are required for proposed contracts and proposed first-tier subcontracts of $10M or more (excluding construction). The requirement also pertains to modifications of an existing contract for new effort that would constitute a contract award. 2. CO doesn't need to request a preaward clearance if: a. The specific proposed contractor is listed in OFCCP's (Office of Federal Contract Compliance Programs) National Preaward Registry at http://www.dol- esa.gov/preaward Week 7 Page 5 of 6 b. Projected award date is within 24 mos of proposed contractor's Notice of Compliance completion date in the Registry 3. As soon as the apparently successful offeror can be determined, the CO shall process a preaward clearance request, assuring the preaward clearance request is submitted to OFCCP regional office at least 30 days before proposed award date. 4. Within 15 days of the clearance request, OFCCP will inform the awarding agency of its intention to conduct a preaward clearance compliance evaluation. a. If OFCCP does not inform the awarding agency within that period, clearance shall be presumed and the awarding agency is authorized to proceed with award. b. If OFCCP informs the awarding agency of its intention to conduct a preaward compliance evaluation, OFCCP shall be allowed an additional 20 days. If OFCCP does not provide its conclusions within that period, clearance shall be presumed and the awarding agency is authorized to proceed with the award. 5. If an OFCCP evaluation would delay award of an urgent and critical contract, award may be made without the preaward clearance. If an award is made under this authority, the CO shall immediately request a post award evaluation from the OFCCP regional office.

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 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?

REFERENCES/AUTHORITY: FAR 32.10; DFARS 232.10; DPAP PBP Guide 2014 The first thing I would say to my PM is that contract financing is only applicable to fixed-price contracts, so PBPs would not work for the CPFF R&D effort in question. Assuming this is for informational purposes though, I would explain that PBPs are the preferred method of contract financing (when deemed practical by the CO), and are based on measurable performance events, rather than costs incurred. However, they take a lot of work to do correctly. While I wouldn't get into too many of the specifics at this point, I would say that some of the advantages include enhanced technical and schedule focus, reduced cost of oversight, broadened contractor participation, and potentially improved cash flow for the contractor. To realize these benefits, however, it requires support from the PM, technical team, and DCMA/DCAA, to initially set up the event criteria for PBPs, as well as the monitoring of event completion during contract performance. These benefits also depend heavily on the type of effort. While ideal for production efforts, there may be challenges with development work because of the uncertainty of the expenditure profile, the follow-up actions required to close out discrepancies identified at PDR/CDR, and may incentivize the contractor to sacrifice quality in order to get paid sooner. The next two pages gives further details as well

Upon notice that a protest has been filed with the GAO after award, what are some immediate steps the procuring agency must take?

REFERENCES/AUTHORITY: FAR 33.104; AFFARS MP5333.104; AFMC MP 5333.104 ANSWER: Upon notification of a GAO protest, the CO shall, IAW the AFFARS MP: (1) Forward to legal and awardee (redact if necessary) within 1 day (2) Advise legal and HCA on status of stay of performance or any intended override within 1 day (3) Email AFLOA/JAQ the contact information of the CO and local program attorney within 1 day (4) Consult with legal within 3 days to determine: summary dismissal or corrective action (5) Prepare draft statement of facts for legal within 10 days and to AFLOA/JAQ within 15 (6) Prepare/submit agency report to AFLOA/JAQ within 20 days (coordinate with COCO, AFMC MP) (7) Report is submitted to GAO within 30 days after notice of protest to GAO

Describe what steps the contracting officer should follow in reaching a decision on a properly certified claim? What are the time limits in reaching a decision?

REFERENCES/AUTHORITY: FAR 33.211 When a claim cannot be satisfied or settled by mutual agreement and a decision is necessary, the CO shall: (1) Review the facts pertinent to the claim (2) Secure assistance from legal and other advisors (3) Coordinate with the contract administration office or contracting office, as appropriate (4) Prepare a written decision to include: (a) A description of the claim or dispute (b) Reference to the pertinent contract terms (c) Statement of the factual areas of agreement and disagreement (d) Statement of the contracting officer's decision, with supporting rationale (e) Paragraph substantially the same as in 33.211 (v) (f) Demand for payment prepared in accordance with 32.610(b) in all cases where the decision results in a finding that the contractor is indebted to the Government (5) Furnish a copy of the decision to the contractor The contracting officer shall issue the decision within the following statutory time limitations: (1) For claims of $100,000 or less, 60 days after receiving a written request from the contractor that a decision be rendered within that period, or within a reasonable time after receipt of the claim if the contractor does not make such a request. (2) For claims over $100,000, 60 days after receiving a certified claim; provided, however, that if a decision will not be issued within 60 days, the contracting officer shall notify the contractor, within that period, of the time within which a decision will be issued.

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?

REFERENCES/AUTHORITY: FAR 35.003; 31 USC 6303-6305 The first cut line is whether we intend to acquire supplies or services for the direct benefit of the Government, or carry out a transaction that will stimulate or support research and development for a public purpose. If the former, it should be a procurement contract; the latter, an assistance instrument. When choosing assistance instruments, it comes down to largely two things: do we plan to have substantial Government involvement, and does the recipient accept the required patent provisions? If the recipient agrees to a paid up license and march-in rights, it will be either a grant or cooperative agreement. If we want to be substantially involved, it has to be a cooperative agreement. If not, it will be a grant. If the recipient does not agree to the patent terms, then the only other option is other transaction. OT can only be used for basic, applied, or advanced research, and a 50/50 cost share is required unless waived. Contract: If the principle purpose of the research is for the direct benefit of or use by the government, then a procurement contract would be best. Assistance Instrument: The three main types of assistance are: (1) Grant. Used when there will be no substantial involvement between the Government and recipient. To use this method, you must obtain a paid up license and march-in rights in any patents developed. (2) Cooperative Agreement. Used when there will be substantial involvement between the Government and recipient. Like a grant, you must obtain a paid up license and march-in rights for patents. (3) Other Transactions. Any instrument other than a contract, grant, or cooperative agreement. The distinction is that a paid up license and march-in rights are not required and a 50/50 cost share is required unless waived. They are used only for basic, applied, and advanced research. Other terms you might hear that are technically assistance instruments as well: (1) Cooperative Research and Development Agreement (CRADA). An agreement between a Government laboratory and a private entity to conduct R&D where no funds change hands. (2) Technology Investment Agreements (TIA). A vehicle to provide cooperative agreements or other transactions (depending on patent rights provisions) to for-profit firms.

The BAA process is commonly used in the R&D environment. A new program manager tells you he has heard of a BAA being used instead of RFPs. He asks you, What is a BAA? When do you use it? What are the advantages?

REFERENCES/AUTHORITY: FAR 35.016 The BAA is a competitive solicitation method for basic and applied research and that part of development not related to a specific weapon system or hardware procurement. As a result, it is more general in nature than an RFP. BAA's should be considered when the Government desires unique, creative solutions and/or advances in knowledge, understanding, technology, the state-of-the-art, etc., and is able to state its requirements in terms of areas of need or interest rather than specific solutions or outcomes. Meaningful proposals with varying technical/scientific approaches should be anticipated. One advantage to BAAs is flexibility. They aren't bound by FAR Part 15 procedures for source selection and can be prepared in a simple Word document. Next, they allow open communications through most of the process, which allows for clarifications in proposals as necessary. Next, the Government can acquire either all or part of the proposal. Finally, any type of contract or assistance instrument can result from it. Open, closed, calls.

What characterizes a personal services contract? What elements should be used as a guide in assessing whether or not a proposed contract is personal in nature?

REFERENCES/AUTHORITY: FAR 37.104; DFARS 237.104; AFFARS 5337.104 ANSWER: A personal services contract is characterized by the employer-employee relationship it creates between the Government and the contractor's personnel. This occurs when, as a result of the contract's terms or the manner of its adminstration during performance, contractor personnel are subject to the relatively continuous supervision and control of a Government 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 (such as a contractor employee) into a Government employee. DFARS requires a D&amp;F and that it's authorized by statute. AFFARS gives the approval authorities. The elements that should be used as a guide in assessing whether or not a proposed contract is personal in nature are (CO determines): 1. Performance on site 2. Principal tools and equipment furnished by the Government 3. Services are applied directly to the integral effort of agencies or an organization subpart in furtherance of assigned function or mission 4. Comparable services, meeting comparable needs, are performed in the same or similar agencies using civil service personnel 5. The need for the type of service provided can reasonably be expected to last beyond one year 6. The inherent nature of the service, or the manner in which it is provided, reasonably requires directly or indirectly, Government direction or supervision of contractor employees in order to adequately protect the Government's interest; retain control of the Week 7 Page 6 of 6 function involved; or retain full personal responsibility for the function supported in a duly authorized Federal officer or employee. What determines a Personal Service vs. Non-Personal Services contract? 1. Personal has appearance of employer/employee relationship between Govt and KTR - requires SAF approval; only authorized by law 2. Non-personal - consumer/provider relationship; KTR controls/supervises their people

What is the ultimate objective of a performance based contract? What are the basic elements of a performance based contract?

REFERENCES/AUTHORITY: FAR 37.601 ANSWER: -Results oriented, not manner in which work is performed -Intended to ensure required performance quality levels are achieved and total payment is related to the degree services performed meet contract standards. Performance based contracts: -Describe the requirements in terms of results required rather than the methods of performance of the work -Use measurable performance standards (ex: terms of quality, timeliness, quantity, etc.) and QASPs -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 requirements -Include performance incentives where appropriate

Which administration functions are usually NOT handled by the contracting officer unless the cognizant agency has designated the contracting officer to perform these functions?

REFERENCES/AUTHORITY: FAR 42.302; DFARS 242.302 ANSWER: There is an extensive list of functions in FAR 42.302 that the PCO normally delegates to DCMA, but the PCO cannot retain the following functions unless the cognizant agency SAYS the PCO will do them: (5) Negotiate forward pricing rate agreements (9) Establish indirect final cost rates and billing rates (11) Practically everything related to Cost Accounting Standards (CAS), including disclosure statements, compliance with CAS, and negotiating price adjustments &amp; supplemental agreements under CAS clauses (12) Determine the adequacy of the contractor's accounting system (S-71) Review EVMS plans and verifying compliance with DoD EVMS criteria (DFARS)

Describe the distinction between billing rates and final indirect cost rates? Who is responsible for establishing the billing rates? What types of information are normally used to establish billing rates?

REFERENCES/AUTHORITY: FAR 42.701; FAR 42.703-1; FAR 42.302(a)(9) ANSWER: Billing rates provide a method for interim reimbursement of indirect costs at estimated rates subject to adjustment during contract performance and at the time the final indirect cost rates are established. Final indirect cost rates are based on costs the contractor has certified. Final indirect cost rates are binding on all agencies and their contracting offices, unless otherwise specifically prohibited by statute. The establishment of billing and final indirect cost rates is an ACO function listed in FAR 42.302. Billing rates are based on information from a recent review, previous rate audits or experience, or similar reliable data.

You are the CO on a firm fixed price contract for the purchase of modular power supply units for AIM-9 missile launchers. The contract has a base quantity of 2,000 units and two fixed price option quantities, each for 1,000 units. It's time to exercise the first option, and your buyer notes that the original contract doesn't contain some required FAR and DFARS clauses - most notably the Drug Free Workplace, Prompt Payment, Discounts for Prompt Payment, and Electronic Funds Transfer Payment Methods clauses. The buyer suggests that you save time and add those clauses to your unilateral option exercise modification. What do you do?

REFERENCES/AUTHORITY: FAR 43.103 ANSWER: The crux of the issue here is that the addition of clauses will have to be a bilateral modification, whereas, taken by itself, the option exercise is meant to be a unilateral modification. The acceptance of an option must be unconditional and in exact accord with the terms offered. Any attempt by the Government to alter the conditions of the contractor's obligation as part of an attempted option exercise renders the option invalid. Therefore, it is usually wiser to simply exercise the option unilaterally without any other changes to protect the Government. Alternatively, if you can add release language that would protect the Government from any type of future equitable adjustment due to the bilateral agreement and legal concurs, you may be able to include the additional clauses with the option exercise. It is largely a situation-dependent scenario based on your relationship with the contractor.

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 Division Chief for 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?

REFERENCES/AUTHORITY: FAR 43.104; FAR 52.243-7; Gov't Contracts Reference Book, 4 th Ed, FAR 1.602-3; FAR 43.202 ANSWER: A constructive change is sometimes called a &#39;change by implication&#39; and occurs when the Government, by its actions, changes the contract without specifically adhering to the requirements of the &#39;Changes&#39; 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. The first thing I would do in this situation is notify my PK chain of command immediately, since they will likely be able to interface with the Colonel more easily. In today's acquisition environment, I don't think anyone in my chain would think this is a good idea. Not only did the Colonel lack authority to direct the contractor in the first place (i.e. an unauthorized commitment), he's now trying to discuss the claim as well (where he also has no contractual authority). Whether my chain discusses it, or I discuss it directly with the Colonel, he needs to know that this will have to be a ratification action to fix the unauthorized commitment. I would also advise him that by going out himself, he would compromise the Government's position and it would be inappropriate (in a tactful manner, obviously). If the Colonel insists on going, I need to be equally insistent on going with him (or at least someone in my chain), along with legal if possible. If the Colonel disagrees, continue to elevate the matter. I would also instruct the contractor that only I have the authority to bind the Government and of their responsibility under the Notification of Changes clause to notify me of anything they consider would constitute a contract change.

A basic principle of the Federal Acquisition Regulations System is that, upon contract award, contractors bring all the necessary organization, experience, accounting and operational controls, property, and technical skills, or the ability to obtain them. Government property, as defined at FAR 45.101, must be contractually accountable to a single contract and only one contract at a time. Although accountable to only one contract at a time, contract terms and conditions may allow Government property to be used on other contracts and contractors should have the means to provide effective and efficient stewardship of Government property. You are early in the acquisition planning process, and the program manager wants the resulting contract to include providing GFP to the winning contractor. When shall the Government provide property to contractors and what documentation is required to provide GFP?

REFERENCES/AUTHORITY: FAR 45 Government Property ANSWER: The requiring activity is the decision point as to whether or not to furnish property to contractors. The basis for any decision to provide Government property shall be documented by the requiring activity and provided to the contracting officer. Contracting officers shall provide property to contractors only when it is clearly demonstrated: (1) To be in the Government's best interest; (2) That the overall benefit to the acquisition significantly outweighs the increased cost of administration, including ultimate property disposal; (3) That providing the property does not substantially increase the Government's assumption of risk; and (4) That Government requirements cannot otherwise be met. The contractor's inability or unwillingness to supply its own resources is not sufficient reason for the furnishing or acquisition of property. BE SURE APPROPRIATE GFP CLAUSES ARE INCLUDED IN THE CONTRACT - Mandatory in all cost and T&amp;M contracts, applicable if FFP contracts if GFP is included. DFARS PGI 245.103-72 establishes requirements for documenting in contract attachments (in Section J) the property to be provided as GFP or authorized as GFP in performance of a contract. Exception: Property provided under contracts for repair, maintenance, overhaul, or modification is not subject to these requirements.

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?

REFERENCES/AUTHORITY: FAR 45 Government Property, FAR 16 Types of Contracts ANSWER: 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 product will be enhanced given the use of GFP or document the file that consideration was obtained through &quot;cost avoidance&quot; (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 if far less critical of an issue than supplying GFP in a FFP environment without adequate consideration.

You are the CO on an airframe IPT. The Program Manager just showed up at your desk in a panic. The contractor has called to say that one of the engines they just installed and tested does not meet spec and as a result, the ACO will not accept delivery of the aircraft. The contractor said it's not their fault since the engines are GFE and they want paid. In addition, they want assurances this will not adversely affect their incentive fee payment. The Program Manager wants you to resolve this problem. Is this your problem to solve? What issues are involved here and how do you address them?

REFERENCES/AUTHORITY: FAR 46.407; FAR 52.242-17; FAR 52.245-1; FAR 52.249-14 ANSWER: There are several issues here, such as whether this is a problem with only the one engine or all of them, whether there is any slack in the contract delivery date, and whether this is really a GFE only problem. To address these issues, we first need to clarify the problem by talking with the ACO and the contractor. We must also discuss this with the other contracting officer for the engine program providing the engines as GFE. We can then confirm the contract delivery date by simply looking in the contract. If it is determined to be a GFE problem, then the contractor wouldn't be held responsible for the delay nor would the delay impact their incentive fee since these issues were beyond their control. To get things moving, one course of action would be to see if there is a spare engine that could be installed for the acceptance flight tests, which would then allow the contractor's delivery to be conditionally accepted and payment made. Once a good engine is located/procured, it could be installed.

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

REFERENCES/AUTHORITY: FAR 49.402-2; FAR 49.402-7 ANSWER: The Government is not liable for the contractor's costs on undelivered work and is entitled to the repayment of advance and progress payments, if any, applicable to that work. Additionally, the contractor is liable to the Government for any excess costs incurred in acquiring supplies and services similar to those terminated for default (i.e. excess re-procurement costs), and for any other damages, whether or not repurchase is affected. Other damages can be any other ascertainable damages, including administrative costs, as a result of the contractor's default.

You have a contractor who is continually failing to meet delivery requirements. You've met with the contractor several times in an attempt to resolve this issue but the contractor's performance has not improved. As a PCO, what actions are left for you to take?

REFERENCES/AUTHORITY: FAR 49.402; FAR 49.607 ANSWER: Since it appears you've already attempted some informal methods of correcting the problem, your next step is to issue something in writing - either a cure notice or show cause depending on the time remaining on contract. Provide a copy to SBA if it's a small business firm. If the contractor cannot cure the problem within the 10 day period, begin the termination for default process by drafting a termination notice and submitting it (along with the contract file) to AFLOA/JAQ IAW the AFFARS procedures. Depending on the results of the legal review, you will then issue the termination notice to the contractor.

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?

REFERENCES/AUTHORITY: FAR 5.301(b); FAR 5.002 In general, we publicize contract actions in order to: (a) increase competition, (b) broaden industry participation in meeting Government requirements, and (c) assist small business concerns in obtaining contracts and subcontracts, as outlined in FAR 5.002. However, there are various reasons prescribed in FAR 5.301(b) where synopses for contract awards are not required. In particular, synopses are not required for awards under the Small Business Innovation Development Act of 1982, for orders placed under FAR 16.5 (ID/IQ), or for orders below the SAT. However, 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 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?

REFERENCES/AUTHORITY: FAR 52.232-20 & -22 (Limitation of Cost/Funds Clauses) Since this is a CPFF contract, either the Limitation of Cost or Limitation of Funds clause was required (depending on whether incrementally funded). These clauses require the contractor to notify the CO in writing when expected costs to be incurred within the next 60 days, when added to all previously incurred costs, will exceed 75 percent of the NTE cost, or when the total cost will be either greater or substantially less than had been previously estimated. My first question in this case is: why I am just hearing about this now if an overrun has already occurred? The contractor did not notify me as required by these clauses. These specific clauses also state that the Government is not obligated to reimburse the contractor for costs incurred in excess of the estimated cost specified in the contract. Additionally, the contractor is not obligated to continue performance or incur excess costs until the CO notifies the contractor in writing that the estimated cost has been increased and provides a revised estimated total cost of the contract. No notice, communication, or representation in any form other than this, or from any person other than the CO, shall affect the contract's estimated cost to the Government. All that being said, I could take a hard line in this case and tell the contractor that they were under no obligation to incur the additional costs and that it is not the Government's responsibility to pay them. But I would likely try to get some facts first. Was this overrun caused by existing requirements on the contract, or was it for work not specifically required? If the former, you could process as a normal cost overrun and determine if you should fund it, reduce the scope of the effort to match available funding, or terminate the effort. If the latter, you might have a strong case to take a hard line and deny the costs, or you may even have an unauthorized commitment on your hands that would require ratification. Moving forward, I would let the contractor know that it is unacceptable not to notify the Government as required by the Limitation of Cost/Funds clauses.

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?

REFERENCES/AUTHORITY: FAR 52.249-14 ANSWER: Assuming this is a CR contract that includes the Excusable Delays clause, the subcontractor's slow progress may or may not be an excusable delay. In general, an 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. If the subcontractor's slow progress is the result of one of these excusable delays, then the prime would not be held in default either (unless the CO directed the purchase from another source and the contractor failed to comply). If the subcontractor's slow progress results from another reason, the prime will be in default and an excusable delay is not appropriate. The CO can either extend the PoP and receive some type of consideration, terminate for default, or work out some other mutually beneficial solution with the contractor.

Currently, there is a non-Government contractor employee who is working in a unique technical area. A new source selection is planned and the technical director would like to make this contractor employee chief of the technical evaluation team. As such, this employee would be a voting member of the source selection board. Is it permissible to have a non-Government contractor employee as chief of the technical evaluation team and a voting member of the source selection board?

REFERENCES/AUTHORITY: FAR 7.503(c)(12)(ii) It is not permissible to have a non-Government employee as a voting member of any source selection board, as this is an inherently governmental function. FAR policy states that contracts shall not be used for the performance of inherently governmental functions. Inherently governmental functions include: control of criminal investigations or prosecutions, command of military forces, determination of agency policy and application of regulations, determining budget priorities, and direction and control of federal employees, among other. (The list is not all inclusive!)

What are the priorities for use of mandatory Government sources?

REFERENCES/AUTHORITY: FAR 8.002, DFARS 208.7402 (a) Except as required by 8.003, or as otherwise provided by law, agencies shall satisfy requirements for supplies and services from or through the mandatory government sources and publications listed below in descending order of priority: (1) Supplies. (i) Inventories of the requiring agency. (ii) Excess from other agencies (see subpart 8.1). (iii) Federal Prison Industries, Inc. (see subpart 8.6). (iv) Supplies which are on the Procurement List maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled (see subpart 8.7). (v) Wholesale supply sources, such as stock programs of the General Services Administration (GSA) (see 41 CFR 101-26.3), the Defense Logistics Agency (see 41 CFR 101- 26.6), the Department of Veterans Affairs (see 41 CFR 101-26.704), and military inventory control points. (2) Services. Services that are on the Procurement List maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled (see subpart 8.7). (b) Sources other than those listed in paragraph (a) of this section may be used as prescribed in 41 CFR 101-26.301 and in an unusual and compelling urgency as prescribed in 6.302-2 and in 41 CFR 101-25.101-5. Week 10 Page 7 of 8 (c) The statutory obligation for Government agencies to satisfy their requirements for supplies or services available from the Committee for Purchase From People Who Are Blind or Severely Disabled also applies when contractors purchase the supplies or services for Government use. 208.7402 General. (1) Departments and agencies shall fulfill requirements for commercial software and related services, such as software maintenance, in accordance with the DoD Enterprise Software Initiative (ESI) (see website at http://www.esi.mil/). ESI promotes the use of enterprise software agreements (ESAs) with contractors that allow DoD to obtain favorable terms and pricing for commercial software and related services. ESI does not dictate the products or services to be acquired. (2) Include an evaluation factor regarding supply chain risk (see subpart 239.73) when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined in 239.7301.

2.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 System for Award Management Exclusions list. What are the rules on continuation of your current contracts with the Contractor?

REFERENCES/AUTHORITY: FAR 9.405-1 Unless the agency head directs otherwise, you may continue a contract or subcontract with a firm that is debarred, suspended or proposed to be debarred. If you decide to terminate, the FAR recommends seeking review by contracting and technical personnel, and by counsel to ensure the propriety of the proposed action. Additionally, unless the agency head makes a determination of the compelling reasons for doing so, you must not: (1) Place orders exceeding the guaranteed minimum under indefinite quantity contracts, (2) Place orders under FSS contracts, BPAs, or BOAs, or (3) Add new work, exercise options, or otherwise extend the duration of the contract.

3.When dealing with potential organizational and consultant conflicts of interest, what are the two underlying principles? What contracts are more likely to have potential conflicts of interest? What are the CO's responsibilities in regards to potential conflicts of interest?

REFERENCES/AUTHORITY: FAR 9.5 The two underlying principles are: Preventing the existence of conflicting roles that might bias a contractor's judgment; and Preventing unfair competitive advantage. This exists where a contractor competing for award of any Federal contract possesses: Proprietary info obtained from a Government official without proper authorization; or Source selection info relevant to the contract, but is not available to all competitors, and such info would asist that contractor in obtaining the contract Contracts more likely to encounter potential conflicts of interest are: Management support services Consultant or other professional services Contractor performance of or assistance in technical evaluations; or Systems engineering and technical direction work performed by a contractor that does not have overall contractual responsibility for development or production The CO's responsibilities are: Analyze planned acquisitions in order to: Identify and evaluate potential OCIs as early as possible; and Avoid, neutralize, or mitigate significant potential conflicts before award Obtain advice/assistance of counsel and technical team in evaluating potential conflicts and developing any necessary provisions and clauses. Before issuing a solicitation that may involve a significant potential conflict, CO shall recommend to the HCA a COA for resolution. In doing this, COs should avoid unnecessary delays, burdensome info requirements, and excessive documentation. CO shall award to apparent successful offeror unless conflict of interest cannot be avoided or mitigated. Request waiver if in best interest of Govt to award contract notwithstanding a conflict of interest.

You recently released an RFP for an anticipated $15M FFP contract and you believe there are several interested offerors. Two weeks after RFP release, you realize that you forgot to include the requirement for a Small Business Subcontracting Plan. You amend your solicitation with the new requirement to submit a plan. You then receive three offers, as follows: Offeror A: Large business - Did not submit a subcontracting plan Offeror B: Small business - Plan shows that they will subcontract 75% to a large business Offeror C: Large business - Claims they are in Comprehensive Subcontracting Program Do you have any concerns with these offers?

REFERENCES/AUTHORITY: FAR Subpart 19.7; FAR 52.219-14; FAR 52.215-23 For Offeror A, I would consider them non-responsive at the current time. Perhaps they did not see the amendment to the solicitation, but this would definitely be an issue to address. For Offeror B, my concern is that small businesses are not required to submit subcontracting plans. However, since I have the information now, their plan to subcontract 75% to a large business concerns me. This could potentially be a situation in violation of the Limitations on Subcontracting clause (typically only for SB set asides though), nonmanufacturer rule (typically not applicable for full &amp; open), or if nothing else, the rules on excessive pass-through charges. This would need to be addressed before considering them for award. Finally, Offeror C appears to be a responsive offeror. The Comprehensive Subcontracting Program has been extended until 2017 and it would be very easy to check the validity of the contractor's claim on the program's website and/or with DCMA.

a. Explain what a contingent liability is. b. Give some examples of contingent liabilities. c. When the existence of a contingent liability has been determined, what actions should the Contracting Officer take?

REFERENCES/AUTHORITY: GAO-05-734SP; DoD 7000.14-R, Vol 3, Ch 8; AFI 65-601v1; Government Contracts Reference Book, 4th Ed 1a. A contingent liability is a contractual obligation that makes the government legally liable for payment of some amount of money contingent on the occurrence of some future event. The occurrence of the event is uncertain and often beyond the control of the government. Since the potential liability for payment is created at the time of contract award, funds sufficient to cover the potential liability shall be committed at the time of award using appropriate fiscal year funds (bona fide need rule applies!) 1b. Examples include Award Fees, overruns, and potential cancellation and/or termination costs for a multi-year contract. 1c. Estimate the amount and probable time the liability will happen by asking the contractor, the PM, & other sources. The determination is made part of the contract file documentation. The contractor's estimate of the amount of the liability is in the form of a "not-to-exceed", which is included in the contractual provision covering the contingent liability. Make an independent estimate including consideration of all inputs Estimate when the liability will take place. If it is a multiple year contract that is fully funded, request commitment of the funds at the time of contract award. If it is annually funded, request the commitment at the beginning of the fiscal year during which the liability may occur. If funds are not available, promptly terminate or descope the contract. Periodically review all such commitments to determine whether the funds may be released or reduced or is additional funds should be committed. This is especially important when O&M funds are involved. Legal- Last year your PM had difficulty getting funding for an ongoing R&D study. Facing the same situation, he wants to use procurement funding (3010) to cover the effort for the rest of the year. Previously, the effort was funded with RDT&E funding (3600). As PCO, what issues would you consider before taking action to obligate the procurement funds?A1: You cannot pay for RDT&E efforts with Procurement funds. This would be violation of the Anti-Deficiency Act. Bona Fide needs deals with time, purpose and amount. You would be augmenting the RDT&E appropriation with procurement funds.

You are working on a competitive RFP and are nearing completion of Section L, containing information and instructions to offerors, and Section M, containing evaluation factors for award. You have just completed a cross-check of Sections L and M to make sure that there is correlation between the contents of the two sections and you are satisfied that there is 100% correlation. Your PM comes into your office all excited and tells you that he wants to include a request for additional information in Section L. In talking to him, you find that this new information request is not related to any other information requested from the offerors in Sec L. You also know from your work on the RFP that there is no corresponding evaluation criteria in Sec M for this information. You ask him why he wants to include the request in the RFP and he states that this is important information that he absolutely has to obtain for the success of the program. What do you tell the program manager?

REFERENCES/AUTHORITY: Various GAO decisions; AFFARS MP 5315.3 Section L and Section M must match...exactly! You have to evaluate the offerors fairly, using the same criteria that exists in Section M, and you should not be asking the offerors for any information that will not be part of the evaluation criteria. Although this information may be helpful in making the decision, it isn't fair to the offerors to have them provide everything but the kitchen sink, when you aren't evaluating the whole package. If the information that the PM is now requesting is necessary to be able to evaluate the offerors, the only option available to the PCO is to include that as another evaluation criteria in Section M. If the information is helpful but not necessary to conduct a thorough evaluation, then we should not be including it in Section L or M. So the question to the PM is whether it is necessary or just helpful. If necessary, add it to both. If only helpful, keep the RFP the way that it is written. Other notes: AFFARS MP 5315.3 - 2019 edition DOD Source Selection Guide - March 2016 edition AFRL PGI has guidance on eval factors/subfactors should consider AFRL does NOT have sample Sec L or M (SMC PGI does for SMC) Source Selection Training Is 'Source Selection" required or is the acquisition exempt from DD SS - AFFARS MP 5315.3 para 1.2.1.1

6.You are the Contracting Officer for an $8M acquisition. The buy includes two sole source subcontracts valued at $1.2M and $2.70M. The contractor has three questions for you concerning these subcontractors. They are: (1) Do these subcontractors need to submit certified cost or pricing data? (2) If one or both need to submit certified data, does this data need to be submitted to the PCO? (3) Does the prime contractor need to accomplish a Vendor Cost Analysis on these subcontractor proposals?

REFERENCES: FAR 15.404-3 & 2) The $1.2M subcontractor data does not need to be submitted to the PCO (<TINA) The $2.7M subcontractor data does. The thresholds for submission of the data to the PCO is lower of either $13.5M or $2M and > 10% of the prime proposed price. The $2.7M subcontractor is over $2M and is 10% or more of the price. 3) Yes, the prime contractor does need to perform a vendor cost analysis on subcontractors over the certification level of $2M.

Discuss the different types of exchanges with offerors after receipt of proposals. Before establishment of competitive range After establishment of competitive range What are limitation on exchanges

Ref: FAR15.306 Exchanges with offerors after receipt of proposals. (a) Clarifications and award without discussions. CLARIFICATIONS: FAR 15.306 Clarifications are limited exchanges, between the Government and offerors that may occur when award without discussions is contemplated. (2) If award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror's past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors. (3) Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions. If the solicitation contains such a notice and the Government determines it is necessary to conduct discussions, the rationale for doing so shall be documented in the contract file (see the provision at 52.215-1) (10 U.S.C.2305(b)(4)(A)(ii) and 41 U.S.C. 3703(a)(2)). COMMUNICATIONS: FAR 15.306(b) Communications with offerors before establishment of the competitive range. Communications are exchanges, between the Government and offerors, after receipt of proposals, leading to establishment of the competitive range. If a competitive range is to be established, these communications- (1) Shall be limited to the offerors described in paragraphs (b)(1)(i) and (b)(1)(ii) of this section and- (i) Shall be held with offerors whose past performance information is the determining factor preventing them from being placed within the competitive range. Such communications shall address adverse past performance information to which an offeror has not had a prior opportunity to respond; and (ii) May only be held with those offerors (other than offerors under paragraph (b)(1)(i) of this section) whose exclusion from, or inclusion in, the competitive range is uncertain; (2) May be conducted to enhance Government understanding of proposals; allow reasonable interpretation of the proposal; or facilitate the Government's evaluation process. Such communications shall not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal. Such communications may be considered in rating proposals for the purpose of establishing the competitive range; (3) Are for the purpose of addressing issues that must be explored to determine whether a proposal should be placed in the competitive range. Such communications shall not provide an opportunity for the offeror to revise its proposal, but may address- (i) Ambiguities in the proposal or other concerns (e.g., perceived deficiencies, weaknesses, errors, omissions, or mistakes (see 14.407)); and (ii) Information relating to relevant past performance; and (4) Shall address adverse past performance information to which the offeror has not previously had an opportunity to comment. (c) Competitive range. (1) Agencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the competitive range. Based on the ratings of each proposal against all evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the most highly rated proposals, unless the range is further reduced for purposes of efficiency pursuant to paragraph (c)(2) of this section. (2) After evaluating all proposals in accordance with 15.305(a) and paragraph (c)(1) of this section, the contracting officer may determine that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted. Provided the solicitation notifies offerors that the competitive range can be limited for purposes of efficiency (see 52.215-1(f)(4)), the contracting officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals (10 U.S.C.2305(b)(4) and 41 U.S.C.3703). (3) If the contracting officer, after complying with paragraph (d)(3) of this section, decides that an offeror's proposal should no longer be included in the competitive range, the proposal shall be eliminated from consideration for award. Written notice of this decision shall be provided to unsuccessful offerors in accordance with 15.503. (4) Offerors excluded or otherwise eliminated from the competitive range may request a debriefing (see 15.505 and 15.506). EXCHANGES: (d) Exchanges with offerors after establishment of the competitive range. Negotiations are exchanges, in either a competitive or sole source environment, between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal. These negotiations may include bargaining. Bargaining includes persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract. When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions. (1) Discussions are tailored to each offeror's proposal, and must be conducted by the contracting officer with each offeror within the competitive range. (2) The primary objective of discussions is to maximize the Government's ability to obtain best value, based on the requirement and the evaluation factors set forth in the solicitation. (3) At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the offeror's proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal's potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting officer judgment. (4) In discussing other aspects of the proposal, the Government may, in situations where the solicitation stated that evaluation credit would be given for technical solutions exceeding any mandatory minimums, negotiate with offerors for increased performance beyond any mandatory minimums, and the Government may suggest to offerors that have exceeded any mandatory minimums (in ways that are not integral to the design), that their proposals would be more competitive if the excesses were removed and the offered price decreased. (5) If, after discussions have begun, an offeror originally in the competitive range is no longer considered to be among the most highly rated offerors being considered for award, that offeror may be eliminated from the competitive range whether or not all material aspects of the proposal have been discussed, or whether or not the offeror has been afforded an opportunity to submit a proposal revision (see 15.307(a) and 15.503(a)(1)). LIMITATIONS (e) Limits on exchanges. Government personnel involved in the acquisition shall not engage in conduct that- (1) Favors one offeror over another; (2) Reveals an offeror's technical solution, including unique technology, innovative and unique uses of commercial items, or any information that would compromise an offeror's intellectual property to another offeror; (3) Reveals an offeror's price without that offeror's permission. However, the contracting officer may inform an offeror that its price is considered by the Government to be too high, or too low, and reveal the results of the analysis supporting that conclusion. It is also permissible, at the Government's discretion, to indicate to all offerors the cost or price that the Government's price analysis, market research, and other reviews have identified as reasonable (41 U.S.C.2102 and 2107); (4) Reveals the names of individuals providing reference information about an offeror's past performance; or (5) Knowingly furnishes source selection information in violation of 3.104 and 41 U.S.C.2102 and 2107).

A cost plus fixed fee contract contains a basic and options. The contract is incrementally funded. The period to exercise the option has arrived, but funding for the option is delayed. Can the CO exercise the option without receipt of those funds?

Since this is an incrementally funded contract, the CO can exercise the option without the delayed funds if there is still adequate funding remaining on the basic to fund both the basic and the option until the expected funds arrive. The CO would have to contact the contractor first to determine exactly how long the remaining funds would carry the contractor on both the basic and exercised option before exercising it to ensure the delayed funding doesn't impact a work stoppage in the near term.

Describe the Anti Deficiency Act and list some actions that could constitute violation. What are penalties for violation?

The anti-deficiency act means that Government officials have no authority to obligate or spend funds unless the funding is available prior to the obligation occurring. Some of the violations of the ADA include: a. Obligation in excess of available funds b. Expenditure in excess of available funds c. Involving the Government in a contract or obligation in advance of appropriates d. Improper augmentation of appropriations e. accepting most voluntary services 1b. administrative discipline including suspension without pay and removal from job, criminal prosecution - up to two years imprisonment and $5,000 fine, and the contract may be declared null and void, although the contractor may still be owed compensation

QUESTION: What is the "Bona Fide Need" Rule?

The concept of the "legal availability" of Congressional appropriations is defined in terms of three elements - purpose, time, and amount. The Bona Fide Need rule covers the "time" aspect of legal availability and is one of the primary means of congressional control over its appropriations. The Bona Fide Need 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. It is codified in 31 U.S.C. 1502(a), which says, "The balance of an appropriation or fund limited for obligation to a definite period is available only for payment of expenses properly incurred during the period of availability or to complete contracts properly made within that period of availability and obligated consistent with Section 1501 of this title." In other words, the rule states that a fiscal year's appropriation may be obligated only to meet a legitimate need arising in the FY for which the appropriation was made. Several GAO decisions have validated that the bona fide needs rule also applies to multiple year appropriations (B-132900, FEBRUARY 19, 1976, 55 COMP.GEN. 768; B-215825, DEC 21, 1984, 64 COMP.GEN. 163).