CO WB Questions

Defective Pricing

Occurs when contractor fails to provide current, accurate, and complete data as of the conclusion of negotiations and failure results in an increase in price Not same as fraud Usually found by DCAA during post-award audit TINA provides basis to make downward contract adjustment and interest is collected on principal ASC/PKFB is focal point

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

(1) For indefinite-delivery indefinite-quantity (IDIQ) contracts all supplies and services to be furnished shall be obtained via delivery orders(s) or task order(s) issued by individuals designated in the contract. (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. Obtaining a certification of availability of funding from the finance office does not satisfy the requirement to record an obligation in the official accounting records of the Government for the minimum order amount established by the award of an IDIQ contract. The Government's actual obligation must be recorded at the time of contract award. Recording and subsequently reporting the required obligation using anything other than a delivery or task order will result in the action not being reported in FPDS-NG. the Recording of Obligations Act is implemented in the DoD Financial Management Regulation (FMR) (DoD 7000.14-R - see paragraph 080504 of the FMR). The Defense Finance and Accounting Service (DFAS) is responsible for recording contractual obligations.

List some of the ways the Contracting Officer should involve the Small Business Office (ASC/BC) and the SBA early and often in the acquisition process in order to insure maximum opportunities, including subcontracting opportunities, for Small Businesses.

(FAR 19.201 & 19.202) 1) The local Small Business office gets involved early in that they must coordinate on all synopses prior to publication. This includes Sources Sought and Pre-Solicitation Synopses. 2) A Small Business Procurement Representative should be invited to participate in early strategy sessions and Acquisition Strategy Panel (ASP) if appropriate for the acquisition. 3) The Small Business Specialist and an SBA representative must review all acquisitions in excess of $25,000 and coordinate on a DD Form 2579, Small Business Coordination Record. 4) A Small Business Specialist must be given an opportunity to review and comment on all Acquisition Plans and Single Acquisition Management Plans (SAMPs). ASC/BC is a required signature on the coordination page of the plans.

Inherently Governmental Functions

- 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 To exert ultimate control over the acquisition, use or disposition of U.S. property including the collection, control, or disbursement of federal funds.

Procurement funds that have 3 years for obligation

1. 3010 = Aircraft a. Congress controls how many aircraft we can purchase this way 2. 3011 Funds: used for: Ammo & weapons 3. 3020 Funds for: Missiles, rockets, and Satellites 4. 3080 Funds are for: other procurement (like software systems and/or aircraft ground equipment) 5. Investment expense threshold < $250K = use O&M funds (A procurement verses a network or system)

J&A approval thresholds

1. > $700,000 = PCO (if delegated by COCO and commensurate with warrant value) 2. $700,000 to >$13.5 Million = CA (Ms. Wade) 3. $13.5 Million to >$93 Million = Head of Procuring Activity (HPA) SCCO (Ms. Andrews) 4. $93M and above = SPE (Mr. Van Buren - SAF/AQ)

Commercial Item Financing, FAR Part 32

1. Advance Payments - made before performance work; 15% cap 2. Interim Payments - some work accomplished; basis may be events, passage of time, specified dates prior to delivery 3. Installment Payments - fixed number of equal payments; must be customary in the marketplace; limited to 70% of the unit price.

What is included in a Source Selection Plan (SSP)?

1) A brief description of the requirement, including reference to any applicable guidance such as a Program Management Directive (PMD) 2) A summary of the acquisition strategy, including when applicable, type of contract anticipated, incentives contemplated, milestone demonstrations intended, special contract clauses, performance metrics 3) Source Selection team. Recommended members and advisors by name, position title, company affiliation or by functional area. Identify other Government organizations that will participate in the source selection. 4) Pre-solicitation activities. Describe the activities leading up to the release of the solicitation such as market research, draft solicitations, and synopsis. 5) Evaluation factors and sub factors. Describe the evaluation factors and sub factors and their relative order of importance by attaching the relevant portions of the instructions to offerors and evaluation criteria (Section L&M). Describe the evaluation process. 6) Schedule of events. 7) Address the use of non-government personnel. 8) Identify and explain requested or approved deviations and delegations.

You are a PCO and a new trainee comes to you seeking advice. She says she just had a conversation with FM 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?

1. Active - appropriation is available for obligation & disbursement 2. Expired - Appropriations expire for new obligations at the end of the period for which they were appropriated, but are available to adjust and liquidate previous obligations for a 5 year period (available for disbursement, not new obligations). 3. Cancelled - no longer available for any purpose. Expired appropriations are cancelled at the end of the 5th full fiscal year following expiration.

Parts of a J&A

1. Agency and Activity 2. Description of Action 3. Description of the Supplies/Services 4. Statutory Authority 5. Justification for use of authority 6. Efforts made to obtain competition 7. Fair and Reasonable price (anticipated) 8. Market Research 9. Other Facts 10. List of sources that expressed an interest, in writing, in the acquisition 11. Statement of actions to overcome barriers to competition 12. Contracting Officers certification (accurate and complete) 13. Technical/Requirements personnel certification (accurate and complete)

Definition (word for word) of a Commercial Item.

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: a. Has been sold, leased, or licensed to the general public; or, b. Has been offered for sale, lease, or license to the general public 2. Any item that evolved through advances in technology or performance that is not yet available in the commercial marketplace, but will be available in the commercial marketplace in time to satisfy the delivery requirements; 3. Two types of mods that can be made to a commercial item a. Customarily made in the marketplace b. Minor modification - mod to meet a Gov requirement b1. Doesn't alter form, fit, or function b2. size/value of item in relation to size/value of Mod

What are all the key elements of a UCA as well as the required approvals?

1. Be as complete & definite as possible 2. Include NTE price 3. Schedule must be Definitized by the earlier of: a. 180 days after UCA issuance or receipt of qualifying proposal b. Date amount obligated = or > 50% of NTE 4. There are Two special clauses when using UCAs a. Limitation of Gov Liability (capps our liability at NTE)...52.216-24 a1. Ktr not authorized to incur cost greater than 50% of NTE a2. Max amount government is liable for if terminated b. Contract Definitization Clause (252.217-7027) b1. Definitization schedule b2. Authorizes CO, with HCA approval, to determine reasonable price/fee b2a. Can be appealed through Disputes Clause Note: You want to work quickly towards a Statement of Work, and Terms and Conditions and make sure to negotiate as many of them as you can, to include, Period of Performance. Make sure to REQUIRE Contractors signature!!

Describe some techniques for conducting market research?

1. Contacting knowledgeable individuals in Government and industry regarding market capabilities to meet requirements. 2. Reviewing the results of recent market research undertaken to meet similar or identical requirements. 3. Publishing formal requests for information in appropriate technical or scientific journals or business publications. 4. Querying the Government-wide database of contracts and other procurement instruments intended for use by multiple agencies and other Government and commercial databases that provide information relevant to agency acquisitions. 5. Participating in interactive, on-line communication among industry, acquisition personnel, and customers. 6. Obtaining source lists of similar items from other contracting activities or agencies, trade associations or other sources. 7. Reviewing catalogs and other generally available product literature published by manufacturers, distributors, and dealers or available on-line. 8. Conducting interchange meetings or holding pre-solicitation conferences to involve potential offerors early in the acquisition process.

What do Current, Expired and Cancelled Funding mean?

1. Current year funds are active - available for obligation 2. Expired Funds means a. Funds are active for an additional 5 years beyond the obligation but are - Not available for obligation, and - Can only be used to pay bills/liquidations of previously incurred obligations, make adjustments to the contract, w/in scope mods, award fee, overruns, claims, rate increases, contingent liabilities - There is an O.A.R.S. process to obligate expired funds; and the PCO must coordinate on it 3. Cancelled Funding cannot be used in any way

You are a Contracting Officer on a research and development program for non-commercial technologies required for the next generation turbine engine. You receive a proposal from a potential offeror that included the delivery of technical data that: 1) had been developed by the offeror with their funding; 2) was to be developed under the proposed research and development effort with mixed funding (USAF and company funding). How would you approach this issue?

1. DOD Policy is to acquire only technical data and rights in that data necessary to satisfy agency needs. 2. To the extent possible - solicitation/announcement should specify the technical data to be delivered under the contract with delivery schedule and criteria for determining acceptability of technical data. Also, require offerors to identify (to the extent practicable) the technical data to be furnished with restrictions on Government's rights. 3. Contracting Officers shall work closely with requirements personnel to assure that the required technical data to be delivered is that which meets the Government's minimum needs. 4. Contracting Officers should consider the source of the development funds for technical data as a significant consideration in determining what rights the Government should attempt to obtain. 5. For technical data that was developed totally at private expense the Contracting Officer should (in most cases) obtain Limited Rights which allows the Government to only use, release, or disclose the technical data within the Government without obtaining the permission of the contractor asserting the restriction. 6. For technical data that is to be developed with mixed private and Government funding, the Contracting Officer should obtain Government purpose rights. During the period of Government purpose rights (the period of Government purpose rights is negotiable) the Government may not use, or authorize other persons to use, the Government purpose rights technical data, for commercial purposes. The Government may release the technical data to Government contractors for use in the performance under a Government contract, provided the recipient has entered into a non-disclosure agreement with the contractor who developed the data. 7. Contracting Officers should negotiate specifically negotiated license rights in technical data when the Government and the Contractor agree to modify the standard license rights granted to the Government or when the Government wants to obtain rights in technical data in which it does not have rights.

What is the purpose of the Contract Clearance Process?

1. Ensure contract actions effectively implement approved acquisition strategies 2. It ensures negotiations and contract actions result in fair and reasonable business arrangements 3. it ensures that the negotiation and contract are consistent with laws, regulations, and policies 4. It is an independent review and assessment 5. It also reinforces a culture of disciplined competencies 6. It holds us accountable for stewardship to our internal and external stakeholders, and 7. It builds confidence with our leadership in procurement processes and decisions

Competition in Contracting Act (10 U.S.C. 2304) Authorizes three (3) Levels of Competition:

1. Full and Open Competition (Default) 2. Full and Open Competition After the Exclusion of Sources 3. "Other Than" Full and Open Competition

ACRONYMS

1. GCA - General Contracting Authority 2. DAS(C) - Deputy Assistant Secretary (Contracting) 3. ADAS(C) - Associate Deputy Assistant Secretary (Contracting) 4. HCA - Head of Contracting Activity 5. PEO - Program Executive Officer 6. SCO - Senior Contracting Official 7. SCCO - Senior Center Contracting Official 8. COCO - Chief of Contracting Office 9. CO - Contracting Officer 10. OARS - Obligation Adjustment Reporting System (USAF)

Six Agency Head determinations to exclude sources. FAR 6.202

1. Increased competition will result in reduced overall cost for the acquisition. 2. Interest of National Defense in having a facility available in case of a National Emergency or industrial mobilization. 3. Maintain R&D capability from educational/non-profit/or FFRDC . 4. Ensure continuous availability of a reliable source of supplies and services. 5. Satisfy projected needs based on high demand. 6. Satisfy a critical need for medical, safety or emergency supplies.

HCA

1. Individual with overall responsibility for managing the contracting activity. 2. The HCA has authority to approve certain actions/strategies/documents related to contracts. 3. All the delegable HCA authority is given to the SCCO. 4. Some HCA authority is non-delegable (i.e. authority to waive cost and pricing data).

What are all the key elements of OCI and an OCI Mitigation Plan?

1. NDA 2. Nature of conflict and steps to mitigate 3. Org chart 4. OCI awareness and training plan 5. Oversight increase 6. Physical separation 7. Controlled access to sensitive information 8. Transfer of Personnel rules

Clearance Approval Thresholds

1. Non-operational a. $5M < $25M - Branch Chief. b. >$25M < $50M - Division Chief. c. >$50M - SCCO 2. Operational a. $500K - $1M - One level above the CO. b. $1M - $10M - Branch Chief c. $10M - $25 M COCO/Division Chief. d. >$25M - SCCO

What would you do as PCO to minimize the chances of defective pricing in a major negotiation?

1. Obtain DCAA audits prior to completion of negotiation s 2. Audit the work in process 3. Pressure the KTR to correct deficiencies cited in the audit 4. Have KTR evaluate subcontract proposals properly

Legal Review Thresholds

1. Other Contracting Non-Operational: $1M or more. 2. Other Contracting Operational: $500K or more 3. J&As >$650K require legal review. Legal review occurs prior to business or contract clearance when required. Legally Insufficient Comments: Per AFMC MP5301.602-2, CO must resolve with attorney. If cannot be resolved, CO must identify the unresolved issue(s) in clearance briefing

Non-Commercial Item Financing

1. Performance Based Payments (preferred method) - performance measured by objective, quantifiable methods; accomplishment of defined PBP events; contractor potential for more favorable cash flow; does not require approved accounting system; less government oversight; fixed-price type contract; cannot mix with any other method of financing; payments do not exceed 90% of contract price or delivery item price. 2. Progress Payments - made on the basis of incurred costs as work progresses or based on a percentage of completion; customary rates are 80% LB, 90% SB, and 95% SDB; requires adequate accounting system. 3. Loan Guarantees - arranged by Federal Reserve banks on behalf of designated guaranteeing agencies to enable contractor to obtain financing from private sources. Guaranteeing agency is obligated to purchase a stated percentage of the loan and share any loss. 4. Advance Payments (least preferred) - made before, in anticipation of, for purposes of contract performance; requires agency approval; requires adequate security; may be in addition to progress/partial payments, interest may be required.

What are the Contents of a PNM?

1. Purpose of negotiation 2. Description of acquisition, Summary , particulars 3. Name, position, and Org representing the Government and contractor 4. Exception used and basis for not getting cost and pricing data 5. Extent PCO relied on cost or pricing data submitted 6. Reference tech evaluation 7. Summary of Contractors Proposal: a. Field assistance recommendations b. Summary of Proposed, Government Objective and Negotiated Positions c. Price Fair and Reasonableness of each cost element based on cost analysis d. If Price analysis used, include source and type of data used 8. Most significant facts or considerations regarding differences 9. Impact of direction given by Congress or other agencies 10. Basis of Fee or Profit 11. Document of fair and reasonable pricing Signature of the author, buyer negotiator and CO.

Publicizing and Response Time:

1. The CO must provide access to pre-solicitation notices through the GPE and must synopsize a proposed contract action before issuing any resulting solicitation. 2. The notice of contract action must be published at least 15 days before issuance of a solicitation. Except, for acquisition of commercial items, the CO may: - establish a shorter period for issuance of the solicitation - use the combined synopsis and solicitation procedure 3. The CO must establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond depending on the circumstances of the individual acquisition such as complexity, commerciality, availability and urgency. 4. Except for the acquisition of commercial items, agencies shall allow at least a 30 day response time for receipt of bids/proposals from the date of issuance of a solicitation if the acquisition is over SAT. 5. Agencies must allow at least a 45 day response time for receipt of bids/proposals from the date of publication of the notice for proposed contract actions categorized as research and development if the proposed contract action

CPARS

1. The primary purpose of the CPARS is to ensure that data on contractor performance is current and available for use in responsibility determinations and in selecting best value contractors. Performance assessments will be used as an aid in awarding contracts to contractors that consistently produce quality, on-time products and conform to contractual requirements. The CPAR can be used to effectively communicate contractor past performance experiences to source selection officials.

Three fiscal constraints and definition of bonafide need

1. Time - Period of availability: a. Bona fide need- A fiscal years appropriation must only be obligated for a legitimate or bona fide need arising in (or before) the Fiscal Year for which the appropriation was made. b. supplies are generally a bona fide need of the year they are used (except for lead time and to maintain normal stock levels) c. svs generally bona fide need of the year when svs is performed 2. Purpose: a. Funds must be expended for the purpose established by congress. b. Necessary expense doctrine - Logically related to the appropriation - Not be prohibited by law - Not be otherwise provided for 3. Amount: a. Funds cannot be obligated in excess of the appropriation established by congress

Four (4) Exceptions to Fair Opportunity (Multiple Award IDIQ)—memorize them in order

1. Urgent...providing F/O would result in unacceptable delays 2. Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized 3. Sole Source basis for economy and efficiency as a logical follow on (to an effort that was previously competed) 4. To Satisfy a minimum guarantee FAR 16.505(b)(2)

Four (4) key elements a contractor must certify to on Claims over $100,000

1. it's Made in good faith 2. Accurate current and complete 3. Amount accurately reflects the contract adjustment for which the government is liable, and 4. Can only be made by a person authorized to bind the contractor with respect to the claim.

Fair Opportunity Exception D&A approval thresholds

1. less than $650,000 = PCO 2. equal to $650,000 but less than $12.5 Million = CA (Ms Andrews) 3. equal to $12.5 Million but less than $85.5M, SCCO (Ms Andrews) for one capable & logical follow-on, PEO for urgent 4. equal to or greater than $85.5 Million is the SPE (SAF/AQ-Mr Van Buren)

Indefinite Delivery Contracts

1.Requirements: No obligation to buy a specific quantity, but Gov't is required to buy from the one source for the duration of the contract 2. Indefinite Quantity: An indefinite quantity contract provides for an indefinite quantity, within stated limits, of supplies or services during a fixed period. Minimum to the Ktr, but no more is req'd 3. Definite quantity: Provides for the delivery of a definite quantity of specific supplies and service for a fixed period

Describe the Anti-deficiency Act and list some actions that would constitute a violation of it. 1b.What are the potential penalties for a violation of the ADA?

1a. 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. You cannot make purchases in advance of (time), excess of (amount), or not for the (purpose) intended. 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 appropriations. d. Improper augmentation of appropriations e. Accepting most voluntary services. 1b. Administrative discipline including suspension without pay and removal from job, criminal prosecution (if knowing and willful violation) - 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.

Upon notice that a protest has been filed with the GAO, the contracting officer shall immediately begin compiling the information necessary for a report to the GAO. The agency shall submit a complete report to the GAO within how many days? What is to be included in the "Protest File" and when is it accessible?

30 Days the report is due. A protest file shall include an index and as appropriate -- (A) The protest; (B) The offer submitted by the protester; (C) The offer being considered for award or being protested; (D) All relevant evaluation documents; (E) The solicitation, including the specifications or portions relevant to the protest; (F) The abstract of offers or relevant portions; and (G) Any other documents that the agency determines are relevant to the protest, including documents specifically requested by the protester. When a protest is filed with the GAO, and an actual or prospective offeror so requests, the procuring agency shall, in accordance with any applicable protective orders, provide actual or prospective offerors reasonable access to the protest file. The protest file shall be made available to non-intervening actual or prospective offerors within a reasonable time after submittal of an agency report to the GAO. However, if the GAO dismisses the protest before the documents are submitted to the GAO, then no protest file need be made available. Information exempt from disclosure under 5 U.S.C.552 may be redacted from the protest file.

7 Steps to PBSA

7 Steps to PBSA 1) Form a team 2) identify the problem 3) examine the market 4) develop PWS 5) determine how to measure 6) select the KTR 7) Manage the Performance

Definition of allowable, reasonable and allocable

a. allowable -properly chargeable to the contract, incurred under & meets applicable laws & regulations. b. reasonable -what a prudent person would consider reasonable when conducting a competitive business. c. allocable -cost is specifically incurred in performance of that contract or necessary

What to consider when selecting a contract type?

a. price or cost analysis appropriate? b. type & complexity of requirement. c. adequate accounting system. d. Acquisition history.

What is a CO, what is the authority given to a CO, and what are the responsibilities of a CO? What is the limit of the CO?

A CO is an agent of the Government that safeguards the Government's interests. A CO has actual authority to enter into, administer, or terminate contracts, and make related determinations and findings only to the extent of the authority delegated to them. Responsibilities: A CO is responsible for performance of all necessary contract actions, ensuring compliance with terms and conditions, safeguarding Government interest in contractual relationships, ensuring all requirements of law, Executive Orders, and Regulations are met, ensuring sufficient money is available, ensuring contractors receive impartial, fair, and equitable treatment, and consider the advice of specialists.

Contingent Liability

A contingent liability is an existing condition, situation, or set of circumstances that poses the possibility of a loss to an agency that will ultimately be resolved when one or more events occur or fail to occur. Examples include: • Award fees • Multi-year contract cancellation ceilings • Estimated amounts for the difference between target and ceiling amounts • Upward adjustments under savings clauses • Overruns on FPIF contracts • Unpriced options

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

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

Your mission partner is new to contracting policies and procedures and asks to explain a "D&F"

A prerequisite to taking certain contracting actions. The "determination" is a conclusion or decision supported by the "findings". - Findings are statements of fact or rationale essential to support the determination and must cover each requirement of the statute or regulation. - Class D&F - authority for a class of contract actions - will have an expiration date

What is the purpose of ratification and what conditions must first be met?

A ratification is the act of approving an unauthorized commitment. Unauthorized commitments may be ratified only when the conditions of FAR 1.602-3(c) are met.a) Use of appropriated funds b) Provided to or accepted by the Government - received a benefit c) Ratification official has the authority to ratify d) Resulting contract must otherwise be proper e) Price must be fair & reasonable f) Funds are available and were available at the time the action occurred g) The CO recommends payments h) It is IAW other requirements and limitations

A. Under what circumstances is ratification of an unauthorized commitment permitted? B. In general, what are the generic procedures for handling ratification actions? C. Who are the approval authorities for ratifications?

A. If the contract award would have been proper if executed by a warranted PCO, the price can be determined to be fair and reasonable, and there must have been enough of the proper type of funding available to pay for the item both at the time of the commitment and at the time of the ratification. B. An investigation is required to be completed within 30 days of discovery of the unauthorized commitment explaining how and why it occurred, how future occurrences will be avoided, and describing any corrective actions taken against responsible individuals. Legal review is also required. C. The ratification approving official for all unauthorized commitments valued at or above $1M is the SPE. The ratification approving official for all Non-DISA unauthorized commitments (regardless of amount) and DISA unauthorized commitments valued below $1M is the HCA. (DARS 1.602-3(b)(2))

You are the Contracting Officer negotiating a multi-million dollar, non-classified, research effort, on a tight schedule, with a large business as a prime. Near the end of negotiations, the prospective contractor advises you that one of its subcontractors, a university whose unique capabilities render it a major player in the effort, refuses to accept the DFARS clause 252.204-7000, Disclosure of Information. You want to include this clause, which typically goes in solicitations and contracts when the contractor will have access to or generate unclassified information that may be sensitive or inappropriate for release to the public. With the inclusion of this clause the prime and its subs will be prohibited 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. Since you put this clause in your RFP and model contract, the prime has requested your concurrence to their deleting the clause in their agreement with the university. What should you consider in formulating your response?

A. Public Law 98-94 sets forth policies, procedures and responsibilities for withholding of unclassified technical data from public disclosure when it is determined that such disclosure could reveal military critical technologies. B. In this case the government must have the right to protect sensitive information from release and will not agree to the deletion of this clause. Nevertheless the CO should confer with the Program Manager, to determine if the effort will contain military critical technologies; with JAG; and with the Foreign Technology Office. While the clause will not be removed, it might be possible to designate certain portions of the effort that the university could release while protecting the remainder.

FAR prescribes limitations on contracting in four general areas in order to mitigate organizational conflicts of interest. (a) What are these four general areas? (b) What are the two basic problems we are trying to prevent?

A2: (a) 1. Providing Systems engineering and technical direction 2. Preparing specifications of work statements 3. Providing evaluation services 4. Obtaining access to proprietary information (b) 1. Conflicting roles that might bias a contractor's judgment 2. Unfair competitive advantage

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

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

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

After determining the estimated value of the GFP, you would add something of value to the contract (i.e., additional within scope capability, an additional study, additional hours) in order to re-establish the original "balance" of the contractual consideration.

You're in a kick-off meeting for a new $20M R&D 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 businesses? What question would you ask the Program Manager?

Although FAR 19.502-2(b)(2) states: "(b) The contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns (but see paragraph (c) of this subsection); and (2) award will be made at fair market prices. Total small business set-asides shall not be made unless such a reasonable expectation exists (but see 19.502-3 as to partial set-asides). Although past acquisition history of an item or similar items is always important, it is not the only factor to be considered in determining whether a reasonable expectation exists. 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, performances, and schedules." Your question for the engineer 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.

On 3 Sep 08 the CO awarded a contract for computer purchases using FY08 O&M (3400) funds. The computers were to be delivered upon completion of a new building expected sometime early in CY 09, but the contractor could have delivered the computers almost immediately upon contract award. Are there any fiscal issues here?

Authority: 31 USC 1502(a) "Bona Fide Needs Rule" Yes. O&M (3400) funds are for one year. You cannot cross FYs unless there is an exception. This could be considered a violation of the bona fide need rule. The lead-time exception does not apply since the delivery delay is based on the government's request and not the reality of when the contractor could actually deliver the computers.

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

Authority: FAR 10.002 You should inform her that Market Research is usually the foundation for sole-source or limited competition and without it (unless one of the other exceptions in 6.302 applies) you cannot process the J&A. You should also ensure that she understands that the Market Research will demonstrate if a commercial item is available, or could be modified, to meet the Government's requirement thereby saving time and money in the development and delivery of the item. You should direct her to FAR Part 10 which provides several avenues of conduction Market Research, some of which are: (1) Contacting knowledgeable individuals in Government and industry regarding market capabilities to meet requirements. (2) Reviewing the results of recent market research undertaken to meet similar or identical requirements. (3) Publishing formal requests for information in appropriate technical or scientific journals or business publications. (4) Querying the Government-wide database of contracts and other procurement instruments intended for use by multiple agencies available at www.contractdirectory.gov and other Government and commercial databases that provide information relevant to agency acquisitions. (5) Participating in interactive, on-line communication among industry, acquisition personnel, and customers. (6) Obtaining source lists of similar items from other contracting activities or agencies, trade associations or other sources. (7) Reviewing catalogs and other generally available product literature published by manufacturers, distributors, and dealers or available on-line. (8) Conducting interchange meetings or holding pre-solicitation conferences to involve potential offerors early in the acquisition process.

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.

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

Authority: FAR 15.505 / FAR 15.506 At a minimum, Pre-Award debriefings shall include -- (1) The agency's evaluation of significant elements in the offeror's proposal; (2) A summary of the rationale for eliminating the offeror from the competition; and (3) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition. Preaward debriefings shall not disclose -- (1) The number of offerors; (2) The identity of other offerors; (3) The content of other offerors proposals; (4) The ranking of other offerors; (5) The evaluation of other offerors; or (6) Any of the information prohibited in 15.506(e). For a Post-Award (1) The Government's evaluation of the significant weaknesses or deficiencies in the offeror's proposal, if applicable; (2) The overall evaluated cost or price (including unit prices), and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror; (3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection; (4) A summary of the rationale for award; (5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and (6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed. The debriefing shall not include point-by-point comparisons of the debriefed offeror's proposal with those of other offerors. Moreover, the debriefing shall not reveal any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C. 552) including - (1) Trade secrets; (2) Privileged or confidential manufacturing processes and techniques; (3) Commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; and (4) The names of individuals providing reference information about an offeror's past performance

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

Authority: FAR 16.601(c) A Time-and-Material contract arrangement is used to buy time at a fixed and specified hourly rate that includes direct labor, indirect costs, and profit. Material is acquired at cost with no addition of profit. Advantages: 1) used when costs cannot be estimated realistically, 2) profit is saved on the material expenditures, 3) exclusion of profit on material makes it more likely the contractor will choose to repair rather than replace which is usually what we want to the extent it is economical. Disadvantages: 1) expending additional hours increases profit dollars, 2) contractor may use lower graded labor than was priced in the hourly rate, thus making more money on the rate differential, 3) use of lower graded laborers may result in more hours being expended, increasing profit dollars.

What are some examples of relevant contractor past performance information? How long should past performance information be retained?

Authority: FAR 42.15 Past performance information includes the contractor's record of conforming to contract requirements and to standards of good workmanship; the contractor's record of forecasting and controlling costs; the contractor's adherence to contract schedules, including the administrative aspects of performance; the contractor's history of reasonable and cooperative behavior and commitment to customer satisfaction; and generally, the contractor's business-like concern for the interest of the customer. Past performance information shall not be retained to provide source selection information for longer than three years after completion of contract performance.

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

Authority: FAR 43.104 / FAR 52.243-7 A constructive change is sometimes called a 'change by implication' and occurs when the Government, by its actions, changes the contract without specifically adhering to the requirements of the 'Changes' clause. A constructive change order has been defined as an oral or written act or omission by the Contracting Officer or other authorized Government official, which is of such a nature that it has the same effect as a formal written change order under the Changes clause. You should notify you supervisor immediately and brief them on the situation. You should also express concern over not being involved in the situation and concern that the Colonel might be compromising the Government's position in this matter. You should recommend to your boss that the Group COCO should ask the colonel either to take along his PCO and JAG or cancel the trip altogether. If the colonel refuses, then the COCO should elevate the matter by alerting the SCCO and the JAG office.

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

Authority: FAR 43.201(b) 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 or Limitation of Funds clause.

You are the Contracting Officer in a major weapon system program. The program is under a lot of pressure to get through flight test and into production. There are cost overruns. Numerous IPTs are working with the contractor. The engineers are meeting regularly with the contractor and making decisions on how to accomplish flight test. Senior Program Management is working with the contractor's management group deciding how to get to production. Decisions are not getting documented. No PCO letters have been issued for over six months. What do you do?

Authority: FAR 43.202 There seems to be a major communications breakdown. It appears that many folks may have given constructive changes to the contractor. You should communicate to both Government and contractor personnel that no one is authorized to give direction or take action on a decision unless they receive a PCOL. You need to try to document the past agreements/decisions, etc. that have been made, on both sides, and bring the contract up to date to reflect these things. You may also need to prepare for an eventual claim from the contractor. The PCO is the only one authorized to make a change to a contract, unless it's been delegated to the ACO, per FAR 43.202.

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

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

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

Authority: FAR 49.402-2 1. The Government is not liable for the contractor's costs on undelivered work and is entitled to the repayment of any advance and progress payments applicable to that work. 2. The contractor is liable to the Government for any excess costs incurred in acquiring supplies and services similar to those terminated for default.

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

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

When dealing with potential organizational and consultant conflicts of interest, what are the two underlying principles?

Authority: FAR 9.5 1) Preventing the existence of conflicting roles that might bias a contractor's judgment; and 2) preventing unfair competitive advantage.

3600 Funds and life cycle

Research Development Test and Evaluation (RDT&E) has: 1. 2 years to obligate and is generally the only one you can incrementally fund a. You are expected to use funds in first year because Congress wants annual control over our obligation b. We can obligate in 2nd year but you're supposed to plan better so that obligations occur within 1st year c. Used for R&D, Test, Design

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

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

What are some benefits of competition? What are some keys of effective competition?

Benefits of competition: 1) drives cost savings 2) improves quality of product/service 3) enhances solutions and the industrial base 4) promotes fairness and openness leading to public trust 5) prevents waste, fraud, and abuse, because KTR's know they must perform at a high level or else be replaced 6) increases likelihood of efficiencies and innovations Keys to Effective Competition (MR Objective) 1) gather information from relevant sources in and outside the organization to support a) commercial product/service that meet minimum requirement and mission needs b) expand insight into commercial marketplace 2) Use results to determine if: a) if capable sources exists b) availability of commercial and/or non-developmental items

Best Value

Best Value means; the expected outcome of an acquisition, that, in the Govt's estimation provide the greatest overall benefit in response to the requirement. Best Value Continuum: Agencies can obtain best value in negotiated acquisitions by using any one or a combination of source selection approaches. The relative importance of cost or price may vary, i.e., clearly defined acquisitions have less risk of unsuccessful performance, so cost or price may play a dominant role in the source selection. Less defined requirements typically require more development work and have more risk (performance, technical, or past performance), so cost or price are less important than technical factors.

FAR PARTS

CICA - 6 Cost or Pricing data - 15 Contract Types - 16 Funding/Fiscal Law - 32 Changes/ESC Scope Policy - 43 IDIQ - 16 Claims/REAs - 33 UCA - 217 Commercial Items - 12 OCI (Organizational and Consultant Conflicts of Interest) - 9.5 Source Selection -MP 5315.3 Options - FAR Part 17, clause 217 Non DoD/Economy Act -

What is a claim? What has to happen in regard to the claim if it is over $100,000?

Claims Far 33.206 "Claim" means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. However, a written demand or written assertion by the contractor seeking the payment of money exceeding $100,000 is not a claim under the Contract Disputes Act of 1978 until certified as required by the Act. Note: A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim.

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

Once the option has expired there is no contract. You may have to prepare a J&A (depending on your original authorizations) and enter into a bilateral agreement with the contractor to obtain continued performance by the same contractor. The contractor is entitled to renegotiate the price.

What is consideration?

Consideration is the inducement to a contract: the cause, motive, price, or impelling influence that leads a party to enter a contract. A binding contract requires an offer, acceptance of the offer, and consideration. Consideration generally requires two elements: (1) something must be given that the law regards as of sufficient legal value for the purpose - either a benefit to the seller or a detriment to the buyer, and (2) the something (benefit or detriment of legal value) must be dealt with by the parties as the agreed-upon price or exchange for the promise - there must be a "bargained-for exchange." The requirement for consideration does not require that what is relied upon for consideration be equivalent in value to the promise; the consideration need only have "some value."

When can incremental funding be used and what is the rationale for allowing its use? What safeguards keep the contract from violating the Anti-Deficiency Act? What does the incremental funding amount have to cover?

Contracts using procurement appropriations must, under most circumstances, be fully funded to ensure stable production runs, lower costs, and the availability of sufficient funds to complete the product. Half an airplane or tank would not be very useful. Contracts using R&D appropriations are normally incrementally funded, allowing more flexibility and control, to provide funding as needed and as progress in the research project is accomplished. The cost and progress in R&D projects are not as predictable as in more mature production programs. In R&D, even if a program is stopped before full funding is provided, some benefit is gained from the research accomplished to date. For Fixed Price contracts, incremental funding can only be used if: (see DFAR 232.702 Policy.. Fixed-price contracts shall be fully funded except as permitted by 232.703-1) (1) A fixed-price contract may be incrementally funded only if— (i) The contract (excluding any options) or any exercised option— (A) Is for severable services; (B) Does not exceed one year in length; and (C) Is incrementally funded using funds available (unexpired) as of the date the funds are obligated; or (ii) The contract uses funds available from multiple (two or more) fiscal years and— (A) The contract is funded with research and development appropriations; or (B) Congress has otherwise authorized incremental funding. The Limitation of Funds Clause (FAR 52.232-22 - for Cost Reimbursement contracts) or the Limitation of Government Obligation clause (DFARS 252.232-7007 for Fixed Price contracts) caution the contractor that he is not obligated to incur costs, nor is the Government obligated to pay in excess of the amount allotted. Incremental funding is obligated to cover the amount allotted and any corresponding increment of fee.

In regards to the availability and life cycle of funds, explain the meaning of the terms "current", "expired" and "cancelled". For what purposes can each of the three phases of funds be used? How many years does the current status last for construction (3300) funds, procurement (3010) funds, for R&D (3600) funds, and for O&M (3400) funds?

Current - The funds are available for obligation. This stage is primarily for obligating or placing funds on contract for a specific purpose. The "current" phase lasts five years for construction (3300) funds, three years for procurement (3010) funds, two years for R&D (3600) funds, and one year for O&M (3400) funds. Expired - The funds are not available for obligation but may be used for liquidation of previously incurred obligations or certain adjustments to these obligations. They may be used to pay existing, unpaid bills on the contract. Funding in this phase remains available for 5 years from the year the appropriation expires, regardless of the appropriation type. No obligations for new requirements can be incurred against expired funds during this phase. Cancelled - The funds are no longer available and cease to exist for any purpose. Under PL 101-510 any use of cancelled funds is prohibited and results in a violation of the Anti-Deficiency Act. This includes incurring any new obligation or payment against a previous obligation. Obligations or adjustments that would otherwise be chargeable to these years must be charged to current funds.

The ITARs applies to a contract you just awarded. The contract contains the Export-Controlled Data Restrictions clause. Your contractor requires approval for one of its personnel, a non-US citizen, to work on your program. What actions are necessary?

Determine if the non-US citizen is a permanent resident (green card holder - admitted lawfully into the US for permanent residence). If so, the individual is considered to have the same rights as a US citizen as far as Export-Controlled Data is concerned, and no approval is required. If the individual is not a permanent resident, they are considered to be a foreign national, and are not allowed to have access to any Export-Controlled Data. The contractor must submit a description of the work to be performed by the FN, and a determination must be made as to whether or not this proposed work is export-controlled. The determination may be made by the PM or the FDO. If the proposed work is not E-Controlled, you may approve the use of the FN 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 have just received a request for equitable adjustment from your contractor. What do you do?

First you should notify your attorney that you have received an REA. Then, you will need to determine whether the contractor's request has any merit. If you determine that the request has merit, you may attempt to negotiate a settlement with the contractor, involving your attorney as you deem necessary. If negotiating with the contractor is difficult, and the involvement of your program counsel has not helped, you may refer the case to legal for formal ADR. Formal ADR can be accomplished either before or after the issuance of a final decision. If you determine that the REA is without merit, you may still attempt to discuss the issues with the contractor prior to issuing a CO's final decision. Once a stalemate has occurred and the claim can't be resolved at the CO level, a final decision is issued and an appeal is processed.

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

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

Name the methods of government financing available under FAR 32.1 for non-commercial item financing and FAR 32.2 for commercial item financing. Bonus points: give some characteristics of each method.

For Non-commercial: a. Performance based payments b. Progress payments c. Loan guarantees d. Advance payments For Commercial: a. Advance payments b. Interim c. Installment

You are the CO on a program where the contractor is a Small Business and new to government business. They call you up one day very concerned about what they heard from one of their business consultants. The consultant mentioned the Government is not bound by apparent authority and anyone entering into an arrangement with the Government takes the risk that the person they are dealing with stays within the bounds of their authority. First, is this true or is the Government bound by apparent authority? What can you do to help relieve the contractor's concerns?

FAR 1.602-1 Authority. (a) CO's have authority to enter into, administer, or terminate contracts and make related determinations and findings. CO's may bind the Government only to the extent of the authority delegated to them. Apparent Authority: It is well-settled in Government contracting that apparent authority will never bind the Government. Apparent authority is, in effect, an application off the doctrine of estoppels in which a "representation" is made by creating the appearance that a person has certain authority that he or she does not actually have. Although a firm in the commercial marketplace may be bound when other parties reasonably rely on the appearance that its agent has authority to take certain action, the Government will not be bound unless its agent has actual (not merely apparent) authority to take the action.

You are the Contracting Officer in Source Selection and dutifully following the FAR and 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 legal guidance or the higher direction of leadership?

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

3400 Funds and life cycle

O&M funding has 1 fiscal year to obligate for: a. Maintenance b. base ops c. travel d. minor construction up to <$750,000

Are there Synopsis Exceptions?

Found in FAR 5.202 1. National security would be compromised 2. Compelling urgency would cause the Government to be seriously injured if the agency complied with the time periods specified 3. A foreign government is reimbursing the agency for the cost of the acquisition; or an international agreement or treaty between the U.S. and a foreign government/international organization has the effect of requiring that the acquisition shall be from specified sources. 4. The contract action is expressly authorized or required by statute 5. The contract action is for utility services (other than telecommunications) and only one source is available 6. The contract action is an order under an indefinite delivery contract 7. The action results from acceptance of a proposal under the Small Business Innovation Development Act of 1982 8. The proposed contract action results from the acceptance of an unsolicited research proposal that demonstrates a unique and innovative concept and any notice would improperly disclose the originality of the proposed research or proprietary information. 9. The proposed contract action is made for perishable supplies and advanced notice is not reasonable 10. The proposed contract action is made under conditions described in 6.302-3, or 6.302-5 with regard to brand name commercial items for authorized resale, or 6.302-7, and advance notice is not appropriate or reasonable 11. The proposed contract action is made under the terms of an existing contract that was previously synopsized 12. The proposed contract action will be made and performed outside the U.S. and only local sources will be solicited. 13. The proposed contract action will not exceed the simplified acquisition threshold, will be made through a means that provides access to the notice through GPE, and permits the public to respond to the solicitation electronically 14. The proposed contract action is made under conditions described in 6.302-3 with respect to the services of an expert to support the Federal Government in any current or anticipated litigation or dispute.

You are the CO on a Commercial Services contract estimated to be $100M. Your PM calls a meeting with all the functional leads to discuss the acquisition strategy. During the meeting, the PM inquires what types of incentives are available to ensure that the contractor meets the minimum contractual requirements given the high visibility of the program. How would you respond?

I would point out first that contractual incentives must only apply to performance that exceeds the minimum requirements. If there are no performance objectives (requirements beyond the minimum requirement), a FFP contract should be plenty of incentive to the contractor to perform. If there are areas where we would be able to quantify performance and provide incentive to the contractor for exceeding the minimum contractual requirements, I would look in to another type of arrangement such as an FPIF, FPAF, or FPAT type contract. I would also investigate, during the market research stage, the typical commercial practices for this industry.

You receive notification from the Contractor they will submit a new CDRL based on request by Lead Engineer on your contract. The KTR will be sending an invoice since this CDRL is at additional cost. What are the ramifications of this notification and what actions would you take?

IDENTIFY POSSIBLE RATIFICATION (Ratification Processing Procedures) 1) Conduct CO Investigation 2) write determination (within 30 days) 3) would the CO mod the contract (scope determination) 4) Legal Opinion 5) Were funds available 6) Ratification on Mod 7) Thresholds for Ratification approval is <30K by COCO; if >$30K by SCCO or HCA

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

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

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

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

You are working on a competitive RFP and are nearing completion of Sections L containing information and instructions for 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 program manager comes into your office very excited and tells you that he wants to include a request for additional information in Sec 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 criterion 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?

It is critical that the information requested in Sec L be held to an absolute minimum and then be requested only to the extent that the information will be relevant to the evaluation criteria in Sec M. A sure protest loser is where information is received in a proposal, is not relevant to an evaluation criterion, and is considered in the final source selection decision. This situation is called an "undisclosed evaluation criterion" by the GAO. If the information is so critical to the success of the program, then why isn't there a corresponding evaluation criterion in Sec M that will consider the information in making the final source selection decision?

You are working on a competitive RFP and are nearing completion of Sections L, containing information and instructions for 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 are satisfied that there is 100% correlation. Your PM comes into your office all excited and tells you that this new information requires 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 criterion 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 PM?

It is critical that the information requested in Sec L be held to an absolute minimum, and then be requested only to the extent that the information will be relevant to the evaluation criteria in Sec M. A sure protest loser is where information is received in a proposal, is not relevant to an evaluation criterion, and is considered in the final source selection decision. This situation is called an "undisclosed evaluation criterion" by the GAO. IF the information is so critical to the success of the program, then why isn't there a corresponding evaluation criterion in Sec M that will consider the information in making the final source selection decision?

You are the CO for a small organization that is very short of manpower to accomplish the mission. The program has a significant source selection coming up and is in the process of selecting the source selection evaluation team. The colonel in charge of the program office comes to your desk and asks you if it is OK to select Fred Smith, an A&AS contractor, to be the source selection Performance Confidence Assessment Group (PCAG) chief. What do you tell the colonel?

It is not OK. Support contractors are not allowed to access CPAR reports, the CPAR data base, or to serve on PCAGs. Follow up QUESTION: Is it OK for the support contractor to serve as a PCAG member? ANSWER: No. See first answer.

You are the Contracting Officer for a follow-on buy source selection. The current effort has had the same Program Manager for over 10 years. She began as the PM while still a Military Officer and then retired and was re-hired as an A&AS employee to continue to manage the program. She has extensive experience on the program and is considered a Primary "Go To" person for all Program-related managerial issues. The Program Director wants to utilize the PM's experience to the fullest extent possible and has proposed that the PM be listed as chief of the technical evaluation team and also a voting member of the source selection board. Is it permissible to have a non-Government employee (A&AS contractor) as chief of the technical evaluation team and a voting member of the source selection board?

It is not permissible to have a non-Government employee as a voting member of any source selection board. FAR 7.503(c)(12)(ii). FAR policy states that contractors shall not be used for the performance of inherently governmental functions. OMB may review Agency decisions to determine whether a function is or is not an inherently governmental function, but a list of examples is in FAR 7.503(c). They 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. Specifically, included in this list are determining what supplies or services shall be acquired by the Government on a prime contract and being a voting member of any source selection boards

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?

It is not permissible to have a non-Government employee as a voting member of any source selection board. 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!)

You are working a $100M acquisition. The price analyst has received business clearance with 5% latitude. You reach a point where you don't feel you can go any further but are still well within your latitude. The PM suggests the team should just use the rest of our latitude in order to get it done. What do you do?

Just because you have the latitude doesn't mean you should use it. The price still has to be fair and reasonable. Any move you make regarding price should be related to additional information you receive from the contractor or changes in risk. You have to be able to write to and support your final price agreement.

What are the elements of a contract?

Legal capacity, offer, acceptance, Consideration, Clear terms (unambiguous) and must not include performance of acts that are illegal.

3300 Funds and life cycle

Milcon funding has up to 5 years to obligate (FF)

Taking into account the ADA, please advise what you would do. In response to a solicitation you issued, you have received a proposal from the Widget Company to provide 10,999 high-strength plastic widgets. In order to take advantage of a qty price break on high-strength plastic, the Widget Company needs to place an order immediately with their high-strength plastic vendor. The Widget Company Contract Administrator contacts you as the PCO and explains the situation. The Contract Administrator knows that you won't have the money to award the K until 1 Oct. The CA explains that if she can get you to give her a letter stating that K award is imminent; her manager will allow her to order the high-strength plastic at a substantial savings. Would you issue the letter? Why?

NO!!!! IF you issue the letter you are authorizing expenditure in excess of available funds.

You awarded a UCA and the contractor is taking a long time to definitize. Your office has received a qualified proposal, though you are nearing 180 day time for definitization. You have yet to obligate over 50% of the NTE. What do you do?

Per 217.7404-3 (b) Submission of a qualifying proposal in accordance with the definitization schedule is a material element of the contract. If the contractor does not submit a timely qualifying proposal, the contacting officer may suspend or reduce progress payments under FAR 32.503-6, or take other appropriate action. As the CO, I can elevate the issue and get my management involved. I can stop Progress Payments, or withhold money because they have not met the schedule that was outlined in the UCA.

What are performance-based payments? When are they applicable? What are the advantages/disadvantages of performance-based payments? PBP are payments made based on the negotiated payment schedule in the contract. The schedule includes quantifiable events or milestones, definitions for completion of performance, and associated payment amounts. Applicable to non-commercial, definitized, fixed priced contracts. Must be agreed upon by both Ad - improved cash flow for contractor, less administratively burdensome for both Dis - little cash flow until payment received, more work upfront,

Performance-based payments (PBP) are the preferred financing method for definitized negotiated fixed price contracts when the CO and contractor are able to agree on PBP terms. The payments are made for performance measured by quantifiable methods or accomplishment of defined events; they are not payments for accepted items. The contract must include a complete, fully defined schedule of events or performance criteria, definitions of successful completion of events or performance criteria, and associated payments amounts. Payments may be established on a CLIN or total contract basis, and may be based on severable or cumulative events/criteria. Payments may not exceed 90 percent of the price of the associated CLIN or contract. The events or performance criteria should be integral, necessary parts of contract performance and may not include events such as contract award or option exercise. PBP amounts must be commensurate with the value of the events or performance criteria and cannot result in a negative or unreasonably low investment on the part of the contractor. Applicable to negotiated fixed price contracts not for commercial items. Applicable only to definitized contracts, and not available for use with any other method of contract financing. Both contractor and government must agree on use of PBP and payment terms. Advantages: Contractor can achieve better cash flow than with progress payments (up to 90% of price vs progress payment percentage of costs) Less burdensome to administer than progress payments, both for contractor and government (contractor prepares vouchers based on PBP schedule amounts vs tracking actual costs incurred; payment only made if contractor performs - no need to take action to suspend payment for lack of performance; no need to verify "progress" before payment) Advantages cited above should result in lower costs to government - less financing needed by contractor due to better cash flow; lower administrative costs Disadvantages: Contractor has no cash flow until payment event or criteria satisfied More difficult to establish than progress payments Current guidance subject to different interpretations - 90% of price vs maintain positive investment

3500 Funds and life cycle

Personnel funding for 1 fiscal year a. Civilian pay

What is difference between price and cost analysis?

Price analysis - involves overall evaluation of total price and is required for all acquisitions. Based essentially on data that is obtained from sources other than the prospective KTR. 2. Cost Analysis - involves an evaluation of each cost element to include profit/fee.

You are the Contracting Officer for a much-delayed effort. On Friday you finally receive the necessary authority to release the contract for signature. It's late on Friday afternoon when you e-mail the modification to the contractor for signature. The only person at the contractor's office on Friday afternoon is the Company President's 17 year old daughter who is working there as a summer-hire secretary. She knows her father urgently wants the contract modification so she signs the document and returns it to your office. You note the last name is the same as the President's so assume that he's the one who signed the modification. Is this a legal agreement?

Probably not. The elements of a contract are - offer, acceptance, consideration, for a lawful purpose, certainty of terms, and legal capacity. It is unlikely that a 17 year old summer hire would have the authority to bind the company, regardless of her relationship to the Company President. Courts may generally find that individuals lack "the age majority" if they are under 18 years of age. The law in a given jurisdiction may never actually use the term "age of majority" and the term thereby refers to a collection of laws bestowing the status of adulthood. The age of majority is a legally fixed age, concept, or statutory principle, which may differ depending on the jurisdiction, and may not necessarily correspond to actual mental or physical maturity of an individual. In practical terms, there are certain specific actions which a person who attains the age of majority is permitted to take, which they could not do before. These may include entering into a binding contract, buying stocks, voting, buying and/or consuming alcoholic beverages, driving motor vehicles on public roads, and marrying without obtaining consent of others. The ages at which these various rights or powers may be exercised vary as between the various rights and as between different jurisdictions. For example, the ages at which a person may obtain a license to drive a car or consume alcoholic beverages vary considerably between and also within jurisdictions.

WHEN IS COST OR PRICING DATA REQUIRED? (TINA EXCEPTIONS)

Required for contract actions >$750k if one of the following exceptions does not apply ◦ Adequate price competition ◦ Price set by law or regulation - very, very RARE!! (i.e. prices set by local/regional Government utilities) ◦ TINA Waiver ◦ Modification to commercial contract or subcontract ◦ Commercial For modifications, threshold determined by adding value for increases and decreases ◦ Ex: $200k modification based on increases of $450k and decreases of $250k requires cost or pricing data ($450k+$250k=$700k)

Your PM is thinking about doing a risk workshop with the ACE for the program you are both working on. He asks you how a risk workshop would benefit the program and what impact it would have on the program's acquisition strategy. What would you say to the PM?

Risk management is the preferred method in the DoD for dealing with events that could impact the PM's ability to successfully execute the program and is the expectation of most senior acquisition decision makers when reviewing acquisition strategies. High and many moderate risks that are identified in a risk workshop should have handling or mitigation strategies, such as contract clauses, that become part of the acquisition strategy.

The Purpose of SAP & SAT

SAP -

What can you change using the unilateral right of the "Changes" clause ?

SUPPLIES (1) Drawings, designs, or specifications when the supplies to be furnished are to be specially manufactured for the Government in accordance with the drawings, designs, or specifications. (2) Method of shipment or packing. (3) Place of delivery SERVICES (1) Description of services to be performed. (2) Time of performance (i.e., hours of the day, days of the week, etc.). (3) Place of performance of the services. Of course, if at all possible a mutal or bilateral agreement is recommended.

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

See 15. 304 1. Price or cost to the Government shall be evaluated in every source selection. For fixed-price type contracts, evaluate through competition and price analysis. For cost-reimbursement contracts, a cost analysis or cost realism analysis is required. 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 . To evaluate Past performance (for acquisitions over $100,000). The currency and relevance of the information, source of the information, context of the data, and general trends in contractor's performance shall be considered. Consider information provided by the offeror and information obtained from any other source. In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance.

There are seven specific statutory exceptions to the Competition in Contracting Act (CICA) that allow a CO to award a contract using other than full and open competition.

Seven Exceptions to Full and Open Competition FAR 6.302-1 - One Responsible Source; No other Will Satisfy 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 are 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, Development, or Research Capability; or Expert Services; When it is necessary to keep vital facilities or suppliers in business, train selected supplier, maintain properly balanced sources of supply, create or maintain the required domestic capability for production of critical supplies, continue critical supplies in production when there would otherwise be a break in production, to provide for an adequate industrial mobilization base. FAR 6.302-4 - International Agreement [Negotiated by the Depth of State]; When a contemplated acquisition is to be reimbursed by a foreign country using LOA (Letter of Offer and Acceptance) directing source; or 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 specified 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 concerned; may be used when none of the other authorities in 6.302 apply.

You are the CO on a new competitive program that is preparing for the System Development and Demo phase, and you are very close too issuing the RFP. The Col who is the PM comes up to you and says that the General at the user's requirements office has asked that a few significant last minute requirements be put into the RFP, and he wants to know what your thoughts are. What do you tell the PM?

Since it is difficult for a Col to say "no" to the Gen...explain the situation in the following manner. The PM should tell the Gen that there will most likely be a cost, schedule, and/or performance impact from adding the new requirement. It may be as simple as a delay in contract award, or it could be more complex than that. The Col has an obligation to tell the Gen that he/she will obtain all the info needed for the Gen to make an informed decision. The PM should also ask the Gen if the new requirements can be inserted at a planned future date, perhaps along with other new or changed requirements. The new/changed rqrmts could be added at a later date as a planned "block" or separate increment of capability in a planned, organized, and less disruptive manner after the current contract is in performance.

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?

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 Program Manager 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.

Assume you are assigned to a new program and that you are trying to determine feasible acquisition strategies. In what areas can Market Research help?

Some of the strategy considerations Market Research can help with are: whether to buy Commercial or Non-Developmental Items, use FAR Part 12 or 15, go competitive or sole-source, decide if the contract will be cost type or fixed price, decide if there will be an incentive or award fee, and evaluation criteria.

You have a commercial item acquisition for which you are the Contracting Officer. 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 for each step.

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

WHy does the government synopsize it's solicitations?

Synopsis of Proposed Contract Actions (Purpose) 1) improve SB access to acquisition information 2) enhance competition by identifying contracting and subcontracting opportunities Over $25K - must synopsize in GPE (FBO) $15K to $25K - display in public place or any electronic means. Post for at least 10 days

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?

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 "cost avoidance" (over-run for example). Bottom Line: consideration is required on both a FFP and Cost type contract, however since the government actually funds its own consideration in a cost-type environment it if far less critical of an issue than supplying GFP in a FFP environment without "adequate" consideration.

In a Fixed Price Incentive Firm (FPIF) contract type, one of the most important elements is the Point of Total Assumption (PTA). Please explain what the PTA is. Bonus points: Can you tell us the formula for the PTA?

The PTA is A cost value The point where the contractor will now pay all overrun costs The contract in effect becomes a Firm Fixed Price (share ratio of 0/100) First time the sum of the cost dollars and the profit dollars equal the ceiling price All costs expended beyond the PTA are taken directly out of profit by the contractor The PTA can be developed by three methods: Visual estimate from a graph; Cost element grass-roots build-up to determine most probably cost overrun; formula The PTA formula is [(Ceiling Price-Target Price)/Government Share] + Target Cost

What is the Bona Fide need rule?

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.

What does the term "Equitable Adjustment" mean to you?

The definition from the Government Contract Law textbook states: "The concept of "equitable adjustment" is one of the larger unresolved issues in Government contracting. Although the phrase appears expressly or implicitly in the "adjustment clauses" e.g., the determination of what constitutes an equitable adjustment has not been objectively quantified by the regulation. The term "equitable adjustment" is construed as a "fair", "reasonable", "just", or "right" arrangement or settlement. As mentioned above, in Government contracts this involves a determination as to an adjustment of the contract price, the period of performance, or both."

Please define a Certificate of Current Cost or Pricing Data and its purpose. What are some of the key things you would expect to see or review before accepting the certificate? There are several exceptions to obtaining a Certificate - please list some of them.

The definition is as follows: 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 a downward contract price adjustment for any monetary damages incurred. Key things we would expect to see or review in a Certificate 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 upon date Signed by an authorized representative of the company and dated 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: 1. Adequate Price Competition 2. When the CO determines that prices agreed upon are based on law or regulation 3. Commercial Item is being acquired 4. Waiver has been granted 5. Modification to a contract/subcontract for commercial items

You are the CO for a $5M 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 in determining if you agree with the contractor's position of commerciality?

The document you would need to complete for the contract file is a Commercial Item Determination (CID). There are various ways to proceed when deciding if I agree with the contractor. The best way to start would be to review the definition of a "commercial item" at FAR 2.101(b) to make sure I completely understood what is required for an item to be determined commercial. Next, you would ask the contractor to provide support for its position in the form of prices at which the same or similar items have previously been sold in the commercial marketplace. At the same time, you can be doing research to determine if info is available within the government that may assist and also perform market research to determine if published market prices exist for this item from this contractor or other contractors that may have similar products.

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

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

One of your Program Managers calls you to tell you that she has just been allocated an additional $10M of FY10 3600 funds. She is very excited because she has a project that she really wants to begin and these funds will allow her to start. She tells you that the project will span 5 years and probably cost close to $100M when it is finally completed. She anticipates receiving additional project funding for the next 3 years but isn't sure how she will cover the costs of years 4 and 5. She mentions that she may be able to dip into a procurement (or production) funds account in years 4 and 5 to pay for project completion. She proposes that you two meet soon to discuss the acquisition strategy for this effort. What considerations would you as the Contracting Officer discuss with the PM?

The first consideration is propriety of funds. RDT&E/3600 funds are used for research, development, test and evaluation efforts. Procurement (or production) funds are used for the acquisition of items that are already developed. From the information provided it doesn't sound like procurement funds would be appropriate to complete the project in years 4 and 5, so you need to clarify the nature of the requirement. The second consideration is the lack of budget for years 4 and 5. If the funding profile indicates budget for only the first 3 years, you could not award all five years, but you may be able to set up options for the last two years.

You are a brand new CO and the first question that the PM asks is the following: What are the four most commonly used contract types and what is the order from the most risky to the government to the least risky?

The four most common contract types are: CPFF, CPIF, FPIF, and FFP. The riskiest to the government is CPFF followed by CPIF, FPIP and FFP.

You have a requirement for a radio communication system. After some market research your PM thinks there is a commercially available item that the Government could buy and modify in order to meet our minimum requirement. The PM would like to develop a new item to satisfy the Government's requirement, and he knows he has enough money budgeted to pay for a developmental item. First, does the item that the PM found commercially fit the definition of a commercial item? And secondly, can the Government develop the item?

The item found in the marketplace may very well fit the definition of a commercial item in FAR 2.101. I would first double check the definition of what a commercial item is. Currently, that definition states that an item can be considered commercial if it is "of a type" of item sold in the commercial marketplace, therefore, depending on the extent of the modifications being performed on the item, it could very likely be considered a commercial item, which is something the contracting Officer can determine. Secondly, if the item is determined to fit the definition of a commercial item and satisfies the Government's minimum requirement, the Government cannot develop an item to satisfy the requirement.

What are some elements that would warrant using Alternative Dispute Resolution?

The objective of using ADR procedures is to increase the opportunity for relatively inexpensive and expeditious resolution of issues in controversy. Essential elements of ADR include -- (1) Existence of an issue in controversy; (2) A voluntary election by both parties to participate in the ADR process; (3) An agreement on alternative procedures and terms to be used in lieu of formal litigation; and (4) Participation in the process by officials of both parties who have the authority to resolve the issue in controversy.

You are the Contracting Officer on a new Research and Development program. Proposals were recently received in response to a Broad Agency Announcement, and a Cost Plus Fixed Fee contract type is anticipated. The proposal most favored by the technical team was priced significantly under what was estimated for the effort. The contractor proposed fee in an amount that equates to 20% of the estimated cost. The users have more than enough funds to cover the proposal and want you to accept the price as is. How should you advise the user and what factors should you consider in determining a reasonable fee?

The statutory limitation on fee for CPFF type contracts do no permit exceeding 10% except when for estimated cost for experimental, developmental, or research performed under a CPFF contract; then 15%. Since the proposed amount of fee is outside the statutory limitations you need to determine what a fair and reasonable rate is that falls within the limitations. The FAR recommends a structured approach for determining fee such as Weighted Guidelines. If a cost reasonableness review determines the estimated costs to be acceptable, we can still negotiate and adjust the fee. I would also question why the 'significant' difference.

1279 REPORTS-DFARS 205.303

The threshold for DoD awards is $7 million. Report all contractual actions, including modifications, that have a face value, excluding unexercised options, of more than $7 million. - For undefinitized contractual actions, report the not-to-exceed (NTE) amount. Later, if the definitized amount exceeds the NTE amount by more than $7 million, report only the amount exceeding the NTE. - For indefinite delivery, time and material, labor hour, and similar contracts, report the initial award if the estimated face value, excluding unexercised options, is more than $7 million. Do not report orders up to the estimated value, but after the estimated value is reached, report subsequent modifications and orders that have a face value of more than $7 million. - Do not report the same work twice.

You are the PCO on a new $2B aircraft development program. The program is in contract negotiations for a Fixed Price Incentive (Firm Target) System Development and Demonstration contract award to a sole source contractor. The program director, a fast-burning young colonel, e-mails you that she is very concerned with the aircraft's ultimate speed at the full specification payload. She would like the contractor to achieve the faster, desired objective speed rather than the mandatory threshold speed, and thinks that an objective performance incentive would be the way to go to achieve her goal. You are asked to go to her office and discuss the matter and the issues involved in using such an incentive. What do you tell the colonel?

There are a number of considerations for the colonel: The desired additional speed should provide benefit to the Government in order to justify the expenditure of funds to achieve it. The colonel should be able to articulate the justification. The situation is very amenable to a classic performance incentive that would allow the contractor to earn profit for achieving the desired speed above and beyond what the final FPIF profit would be for achieving threshold speed. If the contractor perceives this can't happen, he will either not sign up to the incentive or will ignore it from Day One. The incentive and resulting payment have to be structured so as to be based on observable, measurable results that would determine how much is earned by the contractor. Subjectivity is not allowable under current AF policy without HCA approval. We have to be very careful to understand what possible unintended consequences could be caused by the existence of this feature in the contract. For example, will the contractor reduce aircraft weight beyond safe limits in order to help achieve the payment? Also, will the contractor consume excessive schedule to get the extra speed? There has to be a cost incentive in place so that the contractor doesn't spend an unconstrained amount of money to win the payment, such as under a CPFF contract. The FPIF share line serves this purpose when balanced against the incentive. The incentive has to be balanced with the FPIF share line so that the contractor doesn't spend more money to achieve the desired speed than he has potential to earn by receiving the payment. Similarly, the contractor can't be allowed to spend an excessive amount of money with little cost penalty to achieve success.

We often hear that it is the Contracting Officer's responsibility to determine that a contractor is "Responsible and Responsive". In your own words please define what it means for a contractor to be Responsible and Responsive.

To be determined RESPONSIBLE, a prospective contractor must - 1) Have adequate financial resources to perform the contract or the ability to obtain them; 2) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments; 3) Have a satisfactory performance record; 4) Have a satisfactory record of integrity and business ethics; 5) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them; 6) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them; 7) Be otherwise qualified and eligible to receive an award under applicable laws and regulations. In other words, capable of performing the work as required. To be considered RESPONSIVE, a contractor's bid must comply in all material respects with the invitation for bids. Such compliance enables bidders to stand on equal footing and maintain the integrity of the sealed bidding system. Bids should be filled out, executed, and submitted in accordance with the instructions in the invitation (timeliness is a factor). Any bid that does not conform to the requirements, specifications, or delivery schedule will be rejected. In a source selection, the SSA determination of the overall value of each proposal is judged against the source selection evaluation criteria and responsiveness to the government's business, contractual and technical requirements. In general, responsiveness deals with the question of whether the contractor has promised to do exactly what the government has requested. Responsibility deals with the question of whether the contractor can or will perform as he has promised.

You are the Contracting Officer 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 Government's 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 you tell the Program Manager?

Unless the differences are small, the Government should never offer a 50/50 split with the contractor for the following reasons: 1. If the contractor says "No", which is very likely with this magnitude of difference, the Government Negotiation Team has nowhere to go 2. The credibility of the Negotiation Team is now gone since it is now obvious that only Government management can settle the acquisition 3. A move of this sort allows little additional room for management to adjust (in this case only $500K) 4. 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.

What is the Economy Act, when does it apply, and what supporting documentation must you obtain prior to issuing an Economy Act order?

What is the Economy Act, when does it apply, and what supporting documentation must you obtain prior to issuing an Economy Act order? A1: The Economy Act is a law which authorizes agencies to enter into mutual agreements to obtain supplies or services by inter-agency acquisition. It may NOT be used by an agency to circumvent conditions and limitations imposed on the use of funds. It applies when more specific statutory authority does not exist. Each Economy Act shall be supported by a D&F and it shall state: The use of an interagency acquisition is in the best interest of the Government, and The supplied and services cannot be obtained as conveniently or economically by contracting directly with a private source.

PEO - Program Executive Officer

When PEO is in effect, follow PEO procedures rather than Other Contracting procedures

Describe a situation where a fixed-price type contract may be appropriate in an R&D effort?

When levels of effort can be specified in advance, a short-duration fixed-price contract may be useful for developing system design concepts, resolving potential problems, and reducing Government risks. DFARS 235.06 Says no fixed price in development unless: realistic pricing & sensible allocation of program risk between gov't and contractor

In some cases, Contracting Officers are also Grants Officers. They can award Grants and Assistance Instruments as well as contracts. What is Assistance? How does it differ from Acquisition? What gives the Grants Officers their authority to enter into assistance? What are the types of Assistance?

When the principal purpose is to transfer a thing of value, to carry out a public purpose of support or stimulation authorized by law of the United States, it is Assistance. Acquisition, by contrast, has the principal purpose of acquiring property or services for the direct benefit or use of the United States Government. Federal agencies must be authorized by statute to support or stimulate a public purpose. The statutory authority from Congress must exist either in broad legislation or in a program-specific statute. Absent that statutory authority, a Grants Officer may not use an assistance instrument. Authorities to issue Assistance can be of three types: (1) Provide to the Secretary of Defense by statute, e.g., 10 U.S.C. 2391; (2) Authority provided to DoD components that requires no delegation by the Secretary of Defense, e.g., 10 U.S.C. 2358; (3) Authority coming indirectly from statutes, i.e., federal statute authorizing a program that is consistent with using a grant or cooperative agreement. Two types of Assistance are Grants and Cooperative Agreements. They differ in the following way: In a Grant, substantial involvement is not expected between the agency and the recipient. In Cooperative Agreement, substantial involvement is expected between the agency and the recipient. Cooperative Agreements, then, are particularly useful in the research arena when the Government is interested in being involved in program decisions or may be doing some testing or research themselves.

Can the KO reject a request for ADR?

Yes. If the contracting officer rejects a contractor's request for ADR proceedings, the contracting officer shall provide the contractor a written explanation citing one or more of the conditions in 5 U.S.C. 572(b) or such other specific reasons that ADR procedures are inappropriate for the resolution of the dispute. In any case where a contractor rejects a request of an agency for ADR proceedings, the contractor shall inform the agency in writing of the contractor's specific reasons for rejecting the request.

You are the PCO for a major competitive negotiated source selection. The RFP, which reflects the user's requirements and is based on the user's budget, has a requirement for 220 cargo loaders to be delivered at 55 per year over the next four years. One offeror proposes to deliver all 220 loaders in the first year at a dramatically reduced price. Can you accept the offeror's proposal? What factors should you consider in your decision?r

You can accept the offeror's proposal under certain circumstances. Firstly, what did the RFP say about alternate proposals? Is this a situation where requirements are changed and the other offerors should be allowed to propose on the basis of the changed requirements? You need to ask the user if he wants all 220 in the first year and are the operating locations physically able to accommodate their loaders in the first year. Finally, the offeror could be taken into discussions and asked to conform to the RFP with there being the possibility of not being selected for award or elimination from the competitive range if the proposal is not made compliant with the RFP.

PM had difficulty getting funding (stopped work last qtr due to lack of funds). Facing same situation this quarter. 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?

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.

The end of the fiscal year 10 is coming up and you get a phone call from HQ telling you that several million dollars just became available - they don't want the money to go to waste and want to give it to you to support your requirements. Your Program Director urges you to use the money to buy spare parts for his aircraft which have been operating 24/7 since "the war" began. The Program Director has estimated the funds will by enough replenishment spares for the remainder of the war. Do you have any concerns?

You have two major concerns. First, you have to ask HQ the color of money and year of the funds they want to send you. Do not assume that they are sending you FY10 O&M funds. If they are sending you FY10 O&M funds you can use the funds for "operations and maintenance' but you will have to obligate the money before the end of the fiscal year closes out. Once you have determined the kind and year of money, you can address the Program Director's request. Since the Program Director is asking you to buy replenishment spares, you can use the money to buy these spares assuming the Program Director can show you a bona fide need for the spares. This means you can buy sufficient spares for a current need (which includes a reasonable inventory) but you cannot stockpile. Even if the contractor cannot deliver the spares in FY10, you still have a bona fide need of FY10 if the contractor can deliver the spares in a "reasonable" time. Here the Program Director appears to want you to buy spares sufficient to satisfy his needs for the entire war, a sure indication of his intent to stockpile. You will have to go back to the program director to find out the spares he can actually put on an aircraft right now plus find out what a reasonable inventory is for his program. You cannot use current O&M funds to satisfy a "future" need since that violates the bona fide needs rule.

You are the Contracting Officer for a well established transport aircraft program. The program is nearing the end of production. A Program Manager approaches you requesting that you issue a Broad Area Announcement (BAA) to support the development of a source list to supply active noise reducing headsets. The headsets are commercially available from multiple sources and the PM wants to receive performance specification sheets from each offeror and then request sample headsets be submitted for testing. The end result of the effort will be the development of a source list that can be used by various government entities to individually procure the needed headsets for their specific requirements. The PM tells you that he will not be procuring any of the headsets as a result of the BAA. What do you advise the PM?

You should advise the PM that BAAs are a method of solicitation and can only be used if the Government intends to award a contract. You might suggest that the development of the source list could be achieved by issuing a Sources Sought Synopsis with the synopsis specifying the 2 step process (spec sheets first and then sample headsets from selected offerors), and the ultimate intent of the process, e.g., a source list for use by individual users in future procurements. You might also advise the PM that there could be liability issues associated with the use, handling, and return of the headsets to the offerors and that it might be appropriate for the Government to cover shipping and any damage/wear to the units for the testing.

Clauses to know

a. LOC (Limitation of Cost)- 52.232-20 b. LOF (Limitation of Funds) - 52.232-22 c. Availability of Funds - 52.232-18 d. LOGO (Limitation of Government Obligation) - 252.232-7007 e. Definitization - 252.217-7027 f. Applicable Law for Breach of contract claim - 52.233-4 g. Disputes - 52.233 h. Changes - 52.243-1 (FP) 52.243-2 (CR) I. Notification of contract change - 52.243-7 j. Limitation of Government Liability - 52.216-24 k. Fee adjustment formula - 52.216-10 l. Incentive price revision- Firm Target - 52.216-16

PCO DUTIES INCLUDE THE FOLLOWING:

a. Assist in Formulating Acquisition Strategy/Formal notification to industry of the proposed Acquisition b. Releasing of a draft Request for Proposal for industry comment c. Conducting a pre-solicitation conference d. Ensuring evaluation criteria in the Request for Proposal is consistent with the acquisition strategy/Release of RFP e. Handling protests g. Contract administration h. Preparation of solicitations and contracts i. Communications with potential offerors j. Ensuring consistency of the source selection plan with requirements of the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS) k. Award of the contract

A firm-fixed-price contract:

• provides for a price that is not subject to any adjustment on the basis of the contractor's cost experience in performing the contract. • places upon the contractor maximum risk and full responsibility for all costs and resulting profit or loss. • provides maximum incentive for the contractor to control costs and perform effectively • imposes a minimum administrative burden upon the contracting parties. Application: FFP is suitable for: acquiring commercial items (FFP or FFP with EPA required for commercial items (FAR 16.201)) other supplies or services on the basis of reasonably definite functional or detailed specifications when CO can establish fair and reasonable prices at the outset, such as when- a. there is adequate price competition b. there are reasonable price comparisons with prior purchases of the same or similar supplies or services made on a competitive basis or supported by valid cost or pricing data c. available cost or pricing information permits realistic estimates of the probable costs of performance; or d. performance uncertainties can be identified and reasonable estimates of their cost impact can be made, and the contractor is willing to accept a FFP representing assumption of the risks involved