Warrant Questions
Multi-year contracting
"Multi-year contract" means a contract for the purchase of supplies or services for more than 1, but not more than 5, program years. A multi-year contract may provide that performance under the contract during the second and subsequent years of the contract is contingent upon the appropriation of funds, and (if it does so provide) may provide for a cancellation payment to be made to the contractor if appropriations are not made. The key distinguishing difference between multi-year contracts and multiple year contracts is that multi-year contracts, defined in the statutes cited at 17.101, buy more than 1 year's requirement (of a product or service) without establishing and having to exercise an option for each program year after the first.
You have been working as the PCO for PM who is ambitious, vey results driven, and somewhat forceful, but has only been. In acquisition for a few months after a noteworthy career as a fighter pilot The PM sends you an e-mail telling you that since the organization has not really had the time to properly plan the award of a new contract, he is directing that an undefinitized contract action (UCA) be used to preserve schedule. the PM also summons you to his office to discuss the issue. A you gather your thoughts and prepare to meet with the PM, how od you proceed?
According to the FAR lack of planning is not a bona fide reason to issue an UCA as a matter of fact UCA approval documentation should include coverage of acquisition planning accomplished to avoid the use of an UCA. The PCO should point this out to the PM, but attempt to work with the PM to determine an alternative way to keep on schedule or to justify issuing an UCA. In any event I in the You can also inform your supervisor or ask or help or support from him/her.
Price Adjustment
Is a change to the established price of the contract arrived at by mutual agreement between the Government and contractor.
Examples of Service Bona Fide Need
Services are a bona fide of the FY in which the services are performed. Thus, service contracts have not normally been permitted to cover a period which involves two different FY.
Elements of a Written Acquisition Plan
Statement of need. Applicable conditions. Cost. Capability or performance. Delivery or performance-period requirements Trade-offs. Risks.
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 Application of urgent and compelling
This authority applies in those situations where (1) An unusual and compelling urgency precludes full and open competition, and (2) Delay in award of a contract would result in serious injury, financial or other, to the Government (a) Authority. When the agency's need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals, full and open competition need not be provided for. (b) Application. This authority applies in those situations where (1) An unusual and compelling urgency precludes full and open competition, and (2) Delay in award of a contract would result in serious injury, financial or other, to the Government. c) Limitations. (1) Contracts awarded using this authority shall be supported by the written justifications and approvals. These justifications may be made and approved after contract award when preparation and approval prior to award would unreasonably delay the acquisition. (2) This statutory authority requires that agencies shall request offers from as many potential sources as is practicable under the circumstances. (d) Period of Performance. (1) The total period of performance of a contract awarded or modified using this authority— (i) May not exceed the time necessary— (A) To meet the unusual and compelling requirements of the work to be performed under the contract; and (B) For the agency to enter into another contract for the required goods and services through the use of competitive procedures; and (ii) May not exceed one year, including all options, unless the head of the agency determines that exceptional circumstances apply. This determination must be documented in the contract file. (2) (i) Any subsequent modification using this authority, which will extend the period of performance beyond one year under this same authority, requires a separate determination. This determination is only required if the cumulative period of performance using this authority exceeds one year. This requirement does not apply to the exercise of options previously addressed in the determination required at (d)(1)(ii) of this section. PGI 206.302-2 Unusual and compelling urgency. (b) Application. The circumstances under which use of this authority may be appropriate include, but are not limited to, the following: (i) Supplies, services, or construction needed at once because of fire, flood, explosion, or other disaster. (ii) Essential equipment or repair needed at once to- (A) Comply with orders for a ship; (B) Perform the operational mission of an aircraft; or (C) Preclude impairment of launch capabilities or mission performance of missiles or missile support equipment. (iii) Construction needed at once to preserve a structure or its contents from damage. (iv) Purchase requests citing an issue priority designator under DoD 4140.1-R, DoD Materiel Management Regulation, of 4 or higher, or citing "Electronic Warfare QRC Priority." PGI 206.303 Justifications. PGI 206.303-2 Content. (b)(i) Justifications citing the authority at FAR 6.302-1 to permit the use of other than full and open competition, shall-- (A) Include the results of the request for information or sources sought notice posted in accordance with PGI 206.302-1 (unless the requirement to post has been waived); and (B) For non-competitive follow-on acquisitions of supplies or services previously awarded on a non-competitive basis, include a copy of the previous justification to assist the approval authority in determining whether the planned actions to remove any barriers to competition cited on the previous justification were completed
FAR 6.302-4 International agreement: when a contemplated acquisition is to be reimbursed by a foreign country using a LOA directing source; of for services to be performed, or supplies to be used, in the sovereign territory of another country and the terms of a treaty of agreement specify or limit the sources to be solicited.
This authority may be used in circumstances such as -- (1) When an acquisition is to be reimbursed by a foreign country that requires that the product be obtained from a particular firm as specified in official written direction such as a Letter of Offer and Acceptance; or (2) When an acquisition is 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 DFARS The justifications and approvals described in FAR 6.303 and 6.304 are not required if the head of the contracting activity prepares a document that describes the terms of an agreement or treaty or the written directions, such as a Letter of Offer and Acceptance, that have the effect of requiring the use of other than competitive procedures for the acquisition.
Property
all property owned or leased by the Government. Government property includes both Government-furnished property and contractor-acquired property (FAR 52.245-1). The FAR provides definitions for the various types of property that are considered to be Government Property and they are described below
Equitable Adjustment
An equitable adjustment, in government contracting, is a contract adjustment pursuant to a changes clause, to compensate the contractor expense incurred due to actions of the Government or to compensate the Government for contract reductions. An equitable adjustment includes an allowance for profit; clauses that provide for adjustments, excluding profit, are not considered "equitable adjustments."
Responsive
An objective, nondiscretionary determination by the contractor at the time of opening of sealed bids The concept of responsiveness does not apply to procurements by negotiation
When would use a bilateral modification and when would you issue a unilateral modification
Bilateral modification are negotiated equitable adjustments as a result of a change order and additional work modification within scope. Unilateral modification can be issued when there are only administrative changes, funding modification, to issue change orders, and termination notices.
Price Analysis Techniques
Comparison of proposed prices received in response to the solicitation Comparison of proposed prices to historical prices paid, whether by the Government or other than the Government, for the same or similar items Use of parametric estimating methods/application of rough yardsticks (such as dollars per pound or per horsepower, or other units) Comparison with competitive published price lists Comparison of proposed prices with independent Government cost estimates Comparison of proposed prices with prices obtained through market research Analysis of data other than certified cost or pricing data provided by the offeror
Multiple Year
Contract having a term of more than 1 year regardless of fiscal year funding
Firm Fixed Price
None. Thus, the contractor assumes all cost risk The requirement is well-defined. Contractors are experienced in meeting it. Market conditions are stable. Financial risks are otherwise insignificant A firm-fixed-price for each line item or one or more groupings of line items. Provide an acceptable deliverable at the time, place and price specified in the contract. Generally realizes an additional dollar of profit for every dollar that costs are reduced. Commercial supplies and services. Generally NOT appropriate for R&D Firm-Fixed-Price Level-of-Effort
Adjustment in estimated quantities
is a contract adjustment pursuant to the contract clause on variation in estimated quantities.
Bilateral modification
is a supplemental agreement on which the Contracting Officer and the contractor have agreed to a price and/or time adjustment.
Incentive contracting
is an integral part of a contract type discussion conducted during planning for many acquisitions. Section 401 of FAR Part 16 provides general instructions on the use of incentive contracting. For example, incentive contracting is only permitted when other contract types do not sufficiently focus contractor efforts and discourage waste. It is never the "default" selection. When appropriately used, an Incentive, Award Fee, or Award Term allow the Contracting Officer to further address risk concerns for key acquisition objectives. In recent additions to FAR 16.401, data collection and the sharing of best practices are required to support the effective application of incentives. Another major condition for incentive contracting -- the anticipated benefit derived from the use of an incentive -- must outweigh the estimated cost. The true cost of an incentive is more than just the incremental profit/fee used to motivate a contractor. Each incentive type has its own administrative burden that drives cost. That is why the FAR also mandates that the Head of the Contracting Activity (HCA) must sign a Determination and Finding (D&F) to substantiate that incentive contracting is in the Government's best interest. Three general rules for incentive contracting are: Align incentive criteria to performance, cost, or scheduling results ; Ensure the cost benefit equation justifies the incentive you've selected; and Use a D&F to document your selection in the contract file.
Price Analysis
is the process of examining and evaluating a proposed price without evaluating its separate cost elements or the proposed profit.
Cost analysis Techniques
is the review and evaluation of the separate cost elements and profit or fee in an offeror's or contractor's proposal to determine a fair and reasonable price or to determine cost realism. Cost analysis includes the application of judgment to determine how well the proposed costs represent what the cost of the contract should be, assuming reasonable economy and efficiency.
Certified cost and pricing data
means "cost or pricing data" that were required to be submitted in accordance with FAR 15.403-4 and 15.403-5 and have been certified, or are required to be certified, in accordance with 15.406-2. This certification states that, to the best of the person's knowledge and belief, the cost or pricing data are accurate, complete, and current as of a date certain before contract award. Cost or pricing data are required to be certified in certain procurements
Terminations for default
means the exercise of the Government's right to completely or partially terminate a contract because of the contractor's actual or anticipated failure to perform its contractual obligations
Market research
means; collecting and analyzing information about capabilities within the market to satisfy agency needs. A more elaborated definition of the concept is that "Market research is a continuous process for gathering data on product characteristics, suppliers' capabilities, and the business practices/trends that surround them -- plus the analysis of that data to make smart acquisition decisions." Discover prevailing industry practices Identify the availability (if any) of commercially available solutions Identify customary industry terms, conditions, and warranties Understand distribution and logistics capabilities Uncover historical acquisition information Ensure maximum competition Reveal pricing information
Delegation of Ratification
(1) Agencies should take positive action to preclude, to the maximum extent possible, the need for ratification actions. Although procedures are provided in this section for use in those cases where the ratification of an unauthorized commitment is necessary, these procedures may not be used in a manner that encourages such commitments being made by Government personnel. (2) Subject to the limitations, the HCA, unless a higher level official is designated by the agency, may ratify an unauthorized commitment. (3) The ratification authority may be delegated IAW agency procedures, but in no case shall the authority be delegated below the level of chief of the contracting office. (4) Agencies should process unauthorized commitments using the ratification authority of this subsection instead of referring such actions to the Government Accountability Office for resolution.
Not Inherently governmental function
(1) Services that involve or relate to budget preparation, including workload modeling, fact finding, efficiency studies, and should-cost analyses, etc. (2) Services that involve or relate to reorganization and planning activities. (3) Services that involve or relate to analyses, feasibility studies, and strategy options to be used by agency personnel in developing policy. (4) Services that involve or relate to the development of regulations. (5) Services that involve or relate to the evaluation of another contractor's performance. (6) Services in support of acquisition planning. (7) Contractors providing assistance in contract management (such as where the contractor might influence official evaluations of other contractors). (8) Contractors providing technical evaluation of contract proposals. (9) Contractors providing assistance in the development of statements of work. (10) Contractors providing support in preparing responses to Freedom of Information Act requests. (11) Contractors working in any situation that permits or might permit them to gain access to confidential business information and/or any other sensitive information (other than situations covered by the National Industrial Security Program described in 4.402(b)). (12) Contractors providing information regarding agency policies or regulations, such as attending conferences on behalf of an agency, conducting community relations campaigns, or conducting agency training courses. (13) Contractors participating in any situation where it might be assumed that they are agency employees or representatives. (14) Contractors participating as technical advisors to a source selection board or participating as voting or nonvoting members of a source evaluation board. (15) Contractors serving as arbitrators or providing alternative methods of dispute resolution. (16) Contractors constructing buildings or structures intended to be secure from electronic eavesdropping or other penetration by foreign governments. (17) Contractors providing inspection services. (18) Contractors providing legal advice and interpretations of regulations and statutes to Government officials. (19) Contractors providing special non-law enforcement, security activities that do not directly involve criminal investigations, such as prisoner detention or transport and non-military national security details.
Inherently Government Functions
(1) The direct conduct of criminal investigations. (2) The control of prosecutions and performance of adjudicatory functions other than those relating to arbitration or other methods of alternative dispute resolution. (3) The command of military forces, especially the leadership of military personnel who are members of the combat, combat support, or combat service support role. (4) The conduct of foreign relations and the determination of foreign policy. (5) The determination of agency policy, such as determining the content and application of regulations, among other things. (6) The determination of Federal program priorities for budget requests. (7) The direction and control of Federal employees. (8) The direction and control of intelligence and counter-intelligence operations. (9) The selection or non-selection of individuals for Federal Government employment, including the interviewing of individuals for employment. (10) The approval of position descriptions and performance standards for Federal employees. (11) The determination of what Government property is to be disposed of and on what terms (although an agency may give contractors authority to dispose of property at prices within specified ranges and subject to other reasonable conditions deemed appropriate by the agency). (12) In Federal procurement activities with respect to prime contracts -- (i) Determining what supplies or services are to be acquired by the Government (ii) Participating as a voting member on any source selection boards; (iii) Approving any contractual documents, to include documents defining requirements, incentive plans, and evaluation criteria; (iv) Awarding contracts; (v) Administering contracts (vi) Terminating contracts; (vii) Determining whether contract costs are reasonable, allocable, and allowable; and (viii) Participating as a voting member on performance evaluation boards. (13) The approval of agency responses to Freedom of Information Act requests (other than routine responses that, because of statute, regulation, or agency policy, do not require the exercise of judgment in determining whether documents are to be released or withheld), and the approval of agency responses to the administrative appeals of denials of Freedom of Information Act requests. (14) The conduct of administrative hearings to determine the eligibility of any person for a security clearance, or involving actions that affect matters of personal reputation or eligibility to participate in Government programs. (15) The approval of Federal licensing actions and inspections. (16) The determination of budget policy, guidance, and strategy. (17) The collection, control, and disbursement of fees, royalties, duties, fines, taxes, and other public funds, unless authorized by statute, such as 31 U.S.C. 952 (relating to private collection contractors) and 31 U.S.C. 3718 (relating to private attorney collection services), but not including -- (i) Collection of fees, fines, penalties, costs, or other charges from visitors to or patrons of mess halls, post or base exchange concessions, national parks, and similar entities or activities, or from other persons, where the amount to be collected is easily calculated or predetermined and the funds collected can be easily controlled using standard case management techniques; and (ii) Routine voucher and invoice examination. (18) The control of the accounts. (19) The administration of treasury - public trusts. (20) The drafting of Congressional testimony, responses to Congressional correspondence, or agency responses to audit reports from the Inspector General, the Government Accountability Office, or other Federal audit entity.
Show Cause
(b) Show cause notice. If the time remaining in the contract delivery schedule is not sufficient to permit a realistic "cure" period of 10 days or more, the following "Show Cause Notice" may be used. It should be sent immediately upon expiration of the delivery period. SHOW CAUSE NOTICE Since you have failed to ____ [insert "perform Contract No. ___ within the time required by its terms," or "cure the conditions endangering performance under Contract No _____ as described to you in the Government's letter of _____ (date)"], the Government is considering terminating the contract under the provisions for default of this contract. Pending a final decision in this matter, it will be necessary to determine whether your failure to perform arose from causes beyond your control and without fault or negligence on your part. Accordingly, you are given the opportunity to present, in writing, any facts bearing on the question to ____ [insert the name and complete address of the contracting officer], within 10 days after receipt of this notice. Your failure to present any excuses within this time may be considered as an admission that none exist. Your attention is invited to the respective rights of the Contractor and the Government and the liabilities that may be invoked if a decision is made to terminate for default. Any assistance given to you on this contract or any acceptance by the Government of delinquent goods or services will be solely for the purpose of mitigating damages, and it is not the intention of the Government to condone any delinquency or to waive any rights the Government has under the contract.
Total evaluated probable cost
(i) The probable cost may differ from the proposed cost and should reflect the Government's best estimate of the cost of any contract that is most likely to result from the offeror's proposal. The probable cost shall be used for purposes of evaluation to determine the best value. (ii) The probable cost is determined by adjusting each offeror's proposed cost, and fee when appropriate, to reflect any additions or reductions in cost elements to realistic levels based on the results of the cost realism analysis.
Services Crossing FY
- Authorized DoD agencies to obligate funds available at the time of contract award to finance a severable service contract with a period of performance not to exceed 12 months. - For example, the DoD agency may obligate FY 08 funds for a 12 month severable service contract that begins anytime during FY 08 and continues into FY 09. - This provision of the statutes provides greater flexibility to DoD agencies and also allows for a better distribution across the year for the workload of the contracting offices supporting buying organizations. - However, a Service or Defense Agency has the discretion to limit application of this exception and require subordinate activities to budget for and execute this type contract on a strictly fiscal year basis or a period less than the 12 months.
1. What Is the "Bona Fide Needs Rule"?
- Means that an agency must have a legitimate need for the requirement during the time period the appropriation is available - Basic rule states that FY appropriation may be obligated to meet a legitimate need existing in the FY for which the appropriation was made - Aspect of fund availability seeks to ensure that only appropriations, which are available for a specific FY are used to meet the legitimate needs of the FY - Applies to both multiple year and annual appropriation - Balance of an appropriation or fund limited for obligation to a definite period is available only for payment of expenses properly incurred during the period of availability or to complete contracts properly made within the period of availability and obligated consistent with TIME PURPOSE AMOUNT
Contracting Officer authorities / responsibilities
1.602-1 -- Authority. (a) Contracting officers have authority to enter into, administer, or terminate contracts and make related determinations and findings. Contracting officers may bind the Government only to the extent of the authority delegated to them. (b) No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met. 1.602-2 -- Responsibilities. Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall -- (a) Ensure that the requirements of 1.602-1(b) have been met, and that sufficient funds are available for obligation; (b) Ensure that contractors receive impartial, fair, and equitable treatment; (c) Request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate; (d) Designate and authorize, in writing and in accordance with agency procedures, a contracting officer's representative (COR) on all contracts and orders other than those that are firm-fixed price, and for firm-fixed-price contracts and orders as appropriate, unless the contracting officer retains and executes the COR duties. unauthorized acts.
Stop work order
42.1303 Stop-work orders. (a) Stop-work orders may be used, when appropriate, in any negotiated fixed-price or cost-reimbursement supply, research and development, or service contract if work stoppage may be required for reasons such as advancement in the state-of-the-art, production or engineering breakthroughs, or realignment of programs. (b) Generally, a stop-work order will be issued only if it is advisable to suspend work pending a decision by the Government and a supplemental agreement providing for the suspension is not feasible. Issuance of a stop-work order shall be approved at a level higher than the contracting officer. Stop-work orders shall not be used in place of a termination notice after a decision to terminate has been made. (c) Stop-work orders should include— (1) A description of the work to be suspended; (2) Instructions concerning the contractor's issuance of further orders for materials or services; (3) Guidance to the contractor on action to be taken on any subcontracts; and (4) Other suggestions to the contractor for minimizing costs. (d) Promptly after issuing the stop-work order, the contracting officer should discuss the stop-work order with the contractor and modify the order, if necessary, in light of the discussion. (e) As soon as feasible after a stop-work order is issued, but before its expiration, the contracting officer shall take appropriate action to— (1) Terminate the contract; (2) Cancel the stop-work order (any cancellation of a stop-work order shall be subject to the same approvals as were required for its issuance); or (3) Extend the period of the stop-work order if it is necessary and if the contractor agrees (any extension of the stop-work order shall be by a supplemental agreement).
Unilateral modification
A modification on which the Contracting Officer and the contractor cannot agree to a price and/or time adjustment equal to or within the Government Estimate. In such cases the modification containing the adjustment in price and/or time price contained in the Government Estimate may be issued unilaterally, with or without a Contracting Officer's Final Decision. Unilateral modifications are also used to make administrative changes and to issue termination notices.
FAR 6.302-3 Industrial mobilization; engineering, developmental, or research capability, or expert services: When it is necessary to keep vital facilities or suppliers in business, train a selected supplier, maintain properly balanced sources of supply, create or maintain the required domestic capability for production of critical supplies, continue critical supplies in production when there would be otherwise a break I production, to provide for an adequate industrial base
Application. (1) Use of the authority when it is necessary to -- (i) Keep vital facilities or suppliers in business or make them available in the event of a national emergency; (ii) Train a selected supplier in the furnishing of critical supplies or services; prevent the loss of a supplier's ability and employees' skills; or maintain active engineering, research, or development work; (iii) Maintain properly balanced sources of supply for meeting the requirements of acquisition programs in the interest of industrial mobilization (when the quantity required is substantially larger than the quantity that must be awarded in order to meet the objectives of this authority, that portion not required to meet such objectives will be acquired by providing for full and open competition, as appropriate, under this part); (iv) Create or maintain the required domestic capability for production of critical supplies by limiting competition to items manufactured in-- (A) The United States or its outlying areas; or (B) The United States, its outlying areas, or Canada. (v) Continue in production, contractors that are manufacturing critical items, when there would otherwise be a break in production; or (vi) Divide current production requirements among two or more contractors to provide for an adequate industrial mobilization base.
Affordability Caps
Approved cost constraints for major systems acquisitions determined by the resources a DoD component can allocate, which provide a threshold for procurement & sustainment costs that cannot be exceeded. For other procurements, this is the approved funding for a given acquisition.
LPTA
At one end of the continuum, the Government uses the LPTA source selection process, where all factors other than cost or price (i.e. addressing quality of product or service) are evaluated on an "acceptable vs. unacceptable" basis. No evaluation credit is given or may be considered for exceeding the acceptability standards of the solicitation. For all offers which are rated "acceptable" for all factors other than cost or price, the Government then selects the offer with the lowest evaluated price. (FAR 15.101-2(b)(1)) The Government must state in the solicitation if it is using the LPTA process (FAR 15.101-2(b)(1)). In effect, the Government has determined in advance that the Best Value will be the offer with the lowest evaluated price among those offers rated "acceptable". One may view the LPTA as the endpoint of the continuum where price being the only (or most heavily weighted) evaluation factor while all other factors are not weighted at all (i.e. simply treated as "acceptable vs. unacceptable" factors).
The end of the FY is coming up and you get a phone call telling you that several million dollars just become available. They didn't want the money to go to waste so they gave you a call. You call up a Program Director for a recon program who urges you to use the money to buy spare parts for his recon aircraft, which have been operating "round the clock". He estimates that several million dollars will buy enough replenishment spares for the remainder of the war". Do you have any concerns"
Bona Fide Needs Rule and Anti-Deficiency Act There are two issues. The Anti-Deficiency Act deals with time, purpose and amount. We don't know from the facts what kind of money just became available (color and appropriation year.) The director wants to use the money for an O& purposed -- spares. The funding that became available might be something other than O&M. The Anti-deficiency Act will not allow) & efforts to use funding other O&M. The funding might be the previous year funding, which you can't use either, because the requirement didn't exit in the previous fiscal year. The second issue deals with the Bona Fide Needs Rule, which says that appropriations are available only for the needs of the current year, (and sometimes the previous year, if it is a continuing need), but is not available for future year needs. In this case, the requirement for replenishment spares could possible exist in current FY (because by their very nature spares need to be in place before the actual need to use them. ) The problem with the director's response is that he said this will buy enough replenishment spares for the remainder of "war" This could mean for the next year. If he only expects the war to last another year. But it could also mean the he expects this war to last 10 years and buying that many spares with current year funding is not a "bona fide need" It is considered "stockpiling" therefore the purchase should not be made.
Examples of Supplies Bona Fide Need
Bona fide need is determined by when the government actually requires the supplies being acquired. Supply needs of a future year are bona fide need of the year in which they are required, unless an exception applies: Lead-time exception Stock level exception
Cost realism
Cost realism analysis is the process of independently reviewing and evaluating specific elements of each offeror's proposed cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed; reflect a clear understanding of the requirements; and are consistent with the unique methods of performance and materials described in the offeror's technical proposal. (2) Cost realism analyses shall be performed on cost-reimbursement contracts to determine the probable cost of performance for each offeror.
You have a contractor who is continually falling to meet delivery requirement. You've met with the contractor several times in an attempt to resolve this issue but the contractor's performance has not improved. As a PCO what actions are left for you to take.
Cure notice, show cause, then T for D
What Techniques can be used to incentivize contractors to support definitization of UCAs?
DFARS 217.7404-3 - withhold progress payments - impacted award fee determinations - CPARS
VATEP Trade-Off
Definition: Value Adjusted Total Evaluated Price (VATEP) is a tradeoff source selection process where the offeror's total proposed price may be adjusted based on the "value" placed on better performance as identified in the solicitation. The Source Selection Authority (SSA) must then determine if a higher rated technical offer is "worth" the additional cost to the Government.
Best Value Continuum
Describes how the importance of the cost or price evaluation factor may vary in relation to factors other than cost or price in a competitive environment (FAR 15.101).
Describe some techniques for conducting market research
FAR 10.002(b)(2) 1. Contacting knowledgeable individuals in government and industry regarding market capabilities requirements 2. Reviewing the results of recent surveys to meet similar requirements 3. Publishing formal request for information in appropriate technical or scientific journals or business publications 4. Querying the government-wide data base of contracts 5. Participating in on-line communication among industry, acquisition personnel and customers 6. Obtaining source lists of similar items 7. Reviewing catalogs published by manufacturers, distributors, and dealers or available on-line 8. Conducting interchange meetings or holding pre-solicitation conference to involve potential offerors early in the acquisition process
When including options in a contract, what basic elements must be included in the contract?
FAR 17.204 / DFARS 217.204 1. The contract must specify limits on the purchase of additional supplies or services, or the over all duration of the term of the contract, including any extension. 2. The contract must state the period within which the option maybe exercised. 3. The period shall be set so as to provide the contractor adequate time to ensure continuous production 4. The period may extend beyond the contract completion date for service contracts. This is necessary for situations when exercise of the option would result in the obligation of funds that are not available in the fiscal year in which the contract would otherwise be completed. 5. The total of the basic and option period shall not exceed 5 years in the case of services, and the total of the basic and option quantities shall not exceed the requirement for 5 years in the case of supplies. These limitation do not apply to information technology contracts 6. Contracts may express extensions of the term of the contract as an amended completion date or as additional time for performance; e.g., days, weeks, or months 7. The ordering period of a task order or delivery order contract (including a contract for information technology) awarded by DoD pursuant to 10 U.S.C. 2304a— (A) May be for any period up to 5 years; (B) May be subsequently extended for one or more successive periods in accordance with an option provided in the contract or a modification of the contract; and (C) Shall not exceed 10 years unless the head of the agency determines in writing that exceptional circumstances require a longer ordering period.
Describe the requirements necessary to properly exercise a contract option
FAR 17.207 / DFARS 217.207 - CO shall provide written notice within the time period specified in the contract - When the contract provides for economic price adjustment and the contractor requests a revision of the price, the contracting officer shall determine the effect of the adjustment on prices under the option before the option is exercised. - The contracting officer may exercise options only after determining that -- (1) Funds are available; (2) The requirement covered by the option fulfills an existing Government need; (3) The exercise of the option is the most advantageous method of fulfilling the Government's need, price and other factors considered; (4) The option was synopsized (5) The contractor is not listed in the System for Award Management Exclusions (see 9.405-1); (6) The contractor's past performance has been considered; and (7) The contractor's performance on this contract has been acceptable, e.g., received satisfactory ratings
You are the CO on a program where the contractor has recently submitted a vey large claim based on a constructive change to the contract. The claim is based on direction the PM of the program, allegedly gave the contractor. The contractor maintains it was a constructive change to the contract. You find out the from that the PM is going out 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 legal will be accompanying the PM. What should you do?
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' clauses. A constructive change has been defined an oral or written act or omission by the CO or other authorized government official which is of such a nature that is has the same effect a formal written change order under the Changes clause. You should notify your supervisor immediately and brief them on the situation. You should also express concern over not being involved in the situation and concern the the PM might be compromising the Government's position in this matter. You should recommend to your supervisor that the Director of Contracts (DX) should ask the PM either to take along this PCO and legal or cancel the trip altogether. IF the PM refuses, then the Director of Contract (DX) should elevate the matter by alerting the Director of Contracts (Agency) and the legal office
When the contracting officer properly issues an unilateral change under the Changes clause, what responsibility, if any, does the contractor have to continue performance?
FAR 43.201 The contractor must continue performance of the contract as changed, except that in cost reimbursement or incrementally funded contracts the contractor is not obligated to continue performance or incur costs beyond the limits established in the limitation of cost (fully funded) or Limitation of Funds (Incrementally funded) clauses.
You get a call from a PM who wants to know what technical data rights the government has in a military purpose radar, which company X is building for the government. He wants to compete future buys of the radar to save money. He tells you, he's pretty sure we "won" all the data since we are paying a fortune for the radar. What do you tell him: Do you have any questions for him?
FAR 52.227-14 The data rights the government has in the radar depends upon the extent to which the government paid to develop the radar. If DoD exclusively paid a contractor for the development of the radar, the government would then have "unlimited" rights in the data. If DoD funded part of the development of the radar, general speaking the government would have "government purpose" rights in the data. If the contractor exclusively funded the development of the radar the government would only have "limited" rights - meaning the government could not disclose this data to other contractor without consent or in a very limited circumstances. To compete a future effort, the government would need government purpose right or unlimited right in the tech data
FAR 6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements. Application required for only one responsible source
FAR 6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements. Use of this authority may be appropriate in situations such as the following: (1) When there is a reasonable basis to conclude that the agency's needs can only be satisfied by -- (i) Unique supplies or services available from only one source, (ii) For DoD, NASA, and the Coast Guard, unique supplies or services available from only one or a limited number of sources or from only one or a limited number of suppliers with unique capabilities. (2) limited rights in data, patent rights, copyrights, or secret processes; the control of basic raw material; or similar circumstances, make the supplies and services available from only one source (3) When acquiring utility services (4) The agency's standardization program that only specified makes and models of technical equipment and parts will satisfy the agency's needs for additional units or replacement items, and only one source is available. DFARS 206.302-1 (2) prohibit departments and agencies from entering into contracts for studies, analyses, or consulting services on the basis of an unsolicited proposal without providing for full and open competition, unless— (1) The head of the contracting activity, or a designee no lower than chief of the contracting office, determines that— (i) Following thorough technical evaluation, only one source is fully qualified to perform the proposed work; (ii) The unsolicited proposal offers significant scientific or technological promise, represents the product of original thinking, and was submitted in confidence; or (iii) The contract benefits the national defense by taking advantage of a unique and significant industrial accomplishment or by ensuring financial support to a new product or idea; (2) A civilian official of the DoD, whose appointment has been confirmed by the Senate, determines the award to be in the interest of national defense; or (3) The contract is related to improvement of equipment that is in development or production. (d) Limitations. When utilizing the authority at FAR 6.302-1, the contracting officer shall post a request for information or a sources sought notice, and shall include the results of this inquiry in the justification required by FAR 6.303. This requirement to post may be waived by the Head of the Contracting Activity, or designee. The waiver authority may not be delegated lower than a general or flag officer or a member of the Senior Executive Service.
There are seven statutory exceptions to the Competition in Contracting Act (CICA). Please list them and the exception most likely to apply to Foreign Military Sales (FMS) contracts. What specific documentation would be necessary to support this FMS exception?
FAR 6.302-4 (OUIISNP) FAR 6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements. When there is a reasonable basis to conclude that the agency's minimum needs can only be from only one or a limited number of suppliers with unique supplies or services available from only one source or a limited number of sources, or from only one of limited number suppliers with unique capabilities; it shall not be used when any of the other circumstances is applicable FAR 6.302-2 Unusual and compelling urgency: An unusual and compelling urgency precludes full and open competition, and delay in award of a contract would result in serious injury, financial or other, to the Government FAR 6.302-3 Industrial mobilization; engineering, developmental, or research capability, or expert services: When it is necessary to keep vital facilities or suppliers in business, train a selected supplier, maintain properly balanced sources of supply, create or maintain the required domestic capability for production of critical supplies, continue critical supplies in production when there would be otherwise a break I production, to provide for an adequate industrial base FAR 6.302-4 International agreement: when a contemplated acquisition is to be reimbursed by a foreign country using a LOA directing source; of for services to be performed, or supplies to be used, in the sovereign territory of another country and the terms of a treaty of agreement specify or limit the sources to be solicited. FAR 6.302-5 Authorized or required by statue: When statues expressly authorize or require that acquisition be made from a specific source or through another agency FAR 6.302-6 National Security: When disclosure of the government's needs would compromise the national security (e.g. would violate security requirements) FAR 6.302-7 Public Interest: When the agency head determines that it is not in the public interest in the particular acquisition; may be used when none of the other authorities in 6.302 apply International Agreement: full and open competition need not be provided for when precluded by the terms of an international agreement or a treaty between the US and a foreign government or international organization (LOA), or the written directions of a foreign government reimbursing the agency for the cost of the acquisition (LOR) of the supplies or services for such government
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 nongovernment contractor employee as chief of the technical evaluation team and a voting member of the source selection board?
FAR 7.503 It is not permissible to have a non-government employee as a voting member of any source selction board. FAR policy states that contracts shall not be used for performance of inherently governmental functions. Inherently governmental functions include: (1) control of criminal investigation or prosecution (2) command of the military forces (3) determination of agency policy and application of regulations (4) determining budget priorities (5) direction and control of federal employees
Contractor responsibility and responsiveness
FAR 9.103 The status of a prospective contractor determining that is has the capability, tenacity, and perseverance to perform a contract Implements this requirement by stating that CO should make an "affirmative determination" of reponsiblity before making an awar CO's signature on a contract constitutes a determination that the contractor is responsible with respect to that contract
Standards of Responsibility
FAR 9.104-1 1) Be able to obtain adequate financial resources 2) Be able to comply with the required delivery 3) Have a satisfactory performance record 4) Have a satisfactory record of integrity and business ethics 5) Be able to obtain the necessary technical skills 6) Be able to obtain the necessary equipment and facilities 7) Be otherwise qualified and eligible to receive an award under applicable laws and regulations
What Is the requirement for obligating funds when awarding Indefinite quantity contracts?
For ID/IQ contracts all supplies and services to be furnished shall be obtained via delivery order(s) or task order(s) Issued by Individuals designated in the contract. Upon execution of the contract, an obligation shall be recorded based upon the Issuance of a delivery or task order for the cost/price of the minimum quantity specified. Obtaining a certification of availability of funding from the finance office does not satisfy the requirement to record an obligation. In the official accounting records of the Government for the minimum order amount established by the award of an IDIQ contract. The Government's actual obligation must be recorded at the time of contract award. Recording and subsequently reporting the required obligation using anything other than a delivery or task order will result in the action not being reported In FPDS-NG.
Tradeoff Example
For example, if two proposals were received, the winning proposal could be the offer with: both the higher overall rating for non-price factors and the lower evaluated price; or both higher overall rating for non-price factors and the higher evaluated price if the SSA determines the benefits offered are worth paying a price that is higher than the offer with a lower evaluated price and lower technical rating; or both the lower overall rating for non-price factors and the lower evaluated price if the SSA determines the benefits offered by the higher rated proposal are not worth paying the additional amount in price; or the lower evaluated price when the non-price factor ratings of the two proposals are indistinguishable; or the higher overall rating for non-price factors when the evaluated prices of the two proposals are indistinguishable. As long as there is at least one non-price evaluation factor that is not rated on an "acceptable vs. unacceptable" basis, the tradeoff process applies. However, if an offer is rated "unacceptable" on any non-price factor rated on an "acceptable vs. unacceptable" basis, that offer is not subject to the tradeoff process as it has been deemed unacceptable for award. In addition, only those non-price factors not rated on an "acceptable vs. unacceptable" basis can be used in the tradeoff process.
FAR 6.302-5 Authorized or required by statue: When statues expressly authorize or require that acquisition be made from a specific source or through another agency
Full and open competition need not be provided for when (i) A statute expressly authorizes or requires that the acquisition be made through another agency or from a specified source, or (ii) The agency's need is for a brand name commercial item for authorized resale. (b) Application. This authority may be used when statutes, such as the following, expressly authorize or require that acquisition be made from a specified source or through another agency: (1) Federal Prison Industries (UNICOR) -- 18 U.S.C. 4124 (see Subpart 8.6); (2) Qualified Nonprofit Agencies for the Blind or other Severely Disabled -- 41 U.S.C. 85, Committee for Purchase From People Who Are Blind or Severely Disabled (see Subpart 8.7); (3) Government Printing and Binding -- 44 U.S.C. 501-504, 1121 (see Subpart 8.8). (4) Sole source awards under the 8(a) Program (15 U.S.C. 637), but see 6.303 for requirements for justification and approval of sole-source 8(a) awards over $22 million. (See Subpart 19.8.) (5) Sole source awards under the HUBZone Act of 1997—15 U.S.C. 657a (see 19.1306). (6) Sole source awards under the Veterans Benefits Act of 2003 (15 U.S.C. 657f). (7) Sole source awards under the WOSB Program-15 U.S.C. 637(m) (see 19.1506). Agencies may use this authority to— (i) Acquire supplies and services from military exchange stores outside the United States for use by the armed forces outside the United States in accordance with 10 U.S.C. 2424(a) and subject to the limitations of 10 U.S.C. 2424(b). The limitations of 10 U.S.C. 2424(b)(1) and (2) do not apply to the purchase of soft drinks that are manufactured in the United States. For the purposes of 10 U.S.C. 2424, soft drinks manufactured in the United States are brand name carbonated sodas, manufactured in the United States, as evidenced by product markings. (ii) Acquire police, fire protection, airfield operation, or other community services from local governments at military installations to be closed under the circumstances in 237.7401 (Section 2907 of Fiscal Year 1994 Defense Authorization Act (Pub. L. 103-160)). (c) Limitations. (i) 10 U.S.C. 2361 precludes use of this exception for awards to colleges or universities for the performance of research and development, or for the construction of any research or other facility, unless— (A) The statute authorizing or requiring award specifically— (1) States that the statute modifies or supersedes the provisions of 10 U.S.C. 2361, (2) Identifies the particular college or university involved, and (3) States that award is being made in contravention of 10 U.S.C. 2361(a); and (B) The Secretary of Defense provides Congress written notice of intent to award. The contract cannot be awarded until 180 days have elapsed since the date Congress received the notice of intent to award. Contracting activities must submit a draft notice of intent with supporting documentation through channels to the Director of Defense Procurement and Acquisition Policy, Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics). (ii) The limitation in paragraph (c)(i) of this subsection applies only if the statute authorizing or requiring award was enacted after September 30, 1989. (iii) Subsequent statutes may provide different or additional constraints on the award of contracts to specified colleges and universities. Contracting officers should consult legal counsel on a case-by-case basis.
FAR 6.302-7 Public Interest: When the agency head determines that it is not in the public interest in the particular acquisition; may be used when none of the other authorities in 6.302 apply
Full and open competition need not be provided for when the agency head determines that it is not in the public interest in the particular acquisition concerned. (b) Application. This authority may be used when none of the other authorities in 6.302 apply. (c) Limitations. (1) A written determination to use this authority shall be made in accordance with Subpart 1.7, by -- (i) The Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, the Secretary of Homeland Security for the Coast Guard, or the Administrator of the National Aeronautics and Space Administration; or (ii) The head of any other executive agency. This authority may not be delegated. (2) The Congress shall be notified in writing of such determination not less than 30 days before award of the contract. (3) If required by the head of the agency, the contracting officer shall prepare a justification to support the determination under paragraph (c)(1) of this subsection. (4) This Determination and Finding (D&F) shall not be made on a class basis. ) Limitations. For the defense agencies, the written determination to use this authority must be made by the Secretary of Defense.
FAR 6.302-6 National Security: When disclosure of the government's needs would compromise the national security (e.g. would violate security requirements)
Full and open competition need not be provided for when the disclosure of the agency's needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals. (b) Application. This authority may be used for any acquisition when disclosure of the Government's needs would compromise the national security (e.g., would violate security requirements); it shall not be used merely because the acquisition is classified, or merely because access to classified matter will be necessary to submit a proposal or to perform the contract. (c) Limitations. (1) Contracts awarded using this authority shall be supported by the written justifications and approvals described in 6.303 and 6.304. (2) See 5.202(a)(1) for synopsis requirements. (3) This statutory authority requires that agencies shall request offers from as many potential sources as is practicable under the circumstances.
Cost or Cost Sharing
Highly uncertain and speculative labor hours, labor mix, and/or material requirements (and other things) necessary to perform the contract. The Government assumes the risks inherent in the contract, benefiting if the actual cost is lower than the expected cost, or losing if the work cannot be completed within the expected cost of performance. The contractor expects substantial compensating benefits for absorbing part of the costs and/or foregoing fee or the vendor is a non-profit entity. Total estimated cost No fee If CS, an agreement on the Government's share of the cost. Make a good faith effort to meet the Government's needs within the estimated cost in the Contract, Part I the Schedule, Section B Supplies or services and prices/costs. Joint research with educational institutions
Cost Plus Award Fee
Highly uncertain and speculative labor hours, labor mix, and/or material requirements (and other things) necessary to perform the contract. The Government assumes the risks inherent in the contract, benefiting if the actual cost is lower than the expected cost, or losing if the work cannot be completed within the expected cost of performance. Objective incentive targets are not feasible for critical aspects of performance. Judgmental standards can be fairly applied. Potential fee would provide a meaningful incentive. Estimated cost Base amount, if applicable, and an award amount Award fee evaluation criteria and procedures for measuring performance against the criteria Make a good faith effort to meet the Government's needs within the estimated cost in the Contract, Part I the Schedule, Section B Supplies or services and prices/costs. Realizes a higher fee by meeting judgmental performance standards. Large scale research study. The contractor must have an adequate accounting system. The Government must exercise surveillance during performance to ensure use of efficient methods and cost controls. Must be negotiated. Must be justified. Statutory and regulatory limits on the fees that may be negotiated. Must include the applicable Limitation of Cost clause at FAR 52.232-20 through 23.
Cost Plus Fixed Fee
Highly uncertain and speculative labor hours, labor mix, and/or material requirements (and other things) necessary to perform the contract. The Government assumes the risks inherent in the contract, benefiting if the actual cost is lower than the expected cost, or losing if the work cannot be completed within the expected cost of performance. Relating fee to performance (e.g., to actual costs) would be unworkable or of marginal utility Estimated cost Fixed fee Make a good faith effort to meet the Government's needs within the estimated cost in the Contract, Part I the Schedule, Section B Supplies or services and prices/costs. Realizes a higher rate of return (i.e., fee divided by total cost) as total cost decreases Research study.
You are the PCO on a large program with a CPFF contract. The schedule calls for delivery of a prototype on 30 Sep, the PM tells you that we need it sooner than that, not later than end of June. The PM tells you that the contractor is willing to sign up for a 30 June delivery if the government pays him an additional incentive bonus fee of $1M. How would you respond to the PM?
How do we know that the $1M amount of Incentive fee is reasonable in light of the effort required to accelerate schedule by 3monts? The PCO should have been part of the discussion process with the contractor, and a price analyst would have been helpful as well. Merely adding the Incentive fee to the contract to accelerate schedule is not appropriate, since there is no off-setting incentive to control cost under a CPFF contract. Theoretically, the contractor can spend unlimited amounts of funds to achieve the incentive payment, since there is no share line or other restriction on spending other than what the government is willing to obligate; this is not a good idea. In addition, once funds are exhausted, there is also no requirement for the contractor to deliver if the government to obligate additional funding and the contract is not complete yet, so any funding spent to achieve the schedule. The preferred solution would be to convert the CPFF to a CPIF with an added incentive on schedule. A CPFF contract type be used for the schedule incentive it there is also an incentive on cost that is added.
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 mus be ascertained that the amount of time equal to greater than the period or "cure" remains in the contract delivery schedule or any extension to it if the amount or time remaining in the contract delivery schedule is not sufficient to permit a "cure" period or 10 days or more,, the cure notice should not be issued, instead a "show cause notice" may be issued.
Nonseverable services
If the services produce a single or unified outcome, product or report, the services are nonseverable and the government may fund the entire effort with dollars available for obligation at the time the contract is warded and the contract execution may cross FY. A nonseverable contract is essentially a single undertaking that cannot be subdivided. The base concept is that the government does not receive value from the service rendered until the service is completed.
Unauthorized commitment
Means an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government.
Ratification
Means the act of approving an unauthorized commitment by an official who has the authority to do so.
Termination for Convenience
Means the exercise of the Government's right to completely or partially terminate performance of work under a contract when it is in the Government's interest.
Source Selection Process
Refers to the process of evaluating a competitive bid or proposal to enter into a Government procurement contract. The term "source selection" is used for referring to acquisitions awarded according to Federal Acquisition Regulation Parts 13 (Simplified Acquisition), 14 (Sealed Bidding), or 15 (Contracting by Negotiation). However, it is most commonly used specifically for FAR Part 15 acquisitions. The Source Selection process may be formal or informal. Formal source selection is used for high-dollar value or complex acquisitions where someone other than the procuring contracting officer is the source selection authority (SSA). The process begins with the establishment of an evaluation plan for a proposed acquisition, and ends when the SSA selects a contractor to receive a contract award and debriefs the offerors. Informal source selection procedures are less complex, as the procuring contracting officer (PCO) can determine which offer constitutes best value for the Government without formal input from other Government officials specifically designated for that purpose. Agency heads are ultimately responsible for source selection. The contracting officer is designated as the SSA unless the agency head appoints another individual for a particular acquisition or group of acquisitions. In DoD, the SSA must be an individual other than the PCO for acquisitions with a total estimated value of $100M or more.
You have Just awarded 3 contract actions. You remember something In FAR Part 5 about synopsizing contract a wards. The first action was a Small Business Innovation Research contract for $99,978. The second action was a $3M new delivery order under an existing IDIQ con tract an d the third action was a purchase order for $12 ,995. As a PCO , would you synopsize these contract actions?
SBIRs, delivery orders under existing IDIQ contracts and actions under the simplified acquisition threshold ($150K) do not require an award synopsis. However the dollar threshold Is not a prohibition against publicizing an award of a smaller amount when publicizing would be advantageous to Industry or to the Government
Ratification Procedures
The authority in paragraph (b)(2) of this subsection may be exercised only when— (1) Supplies or services have been provided to and accepted by the Government, (2) Ratifying official has the authority to enter into a contractual commitment; (3) Contract would otherwise have been proper if awarded by contracting officer; (4) Contracting officer reviewing the udetermines the price to be fair and reasonable; (5) The contracting officer recommends payment and legal counsel concurs in the recommendation, unless agency procedures expressly do not require such concurrence; (6) Funds are available and were available at the time the unauthorized commitment was made; and (7) The ratification is in accordance with any other limitations prescribed under agency procedures.
You are working with an engineer in the Program Office to make a change to the existing contract and the engineer says that the contractor had sent an email saying they planned to submit a request for an equitable adjustment. He doesn't understand the term and asks you to explain an equitable adjustment, what it means, and the impact on what you are trying to do with the contract change.
The determination of what constitutes an equitable adjustment has not been objectively quantified by the regulation. Equitable adjustment is construed as a "fair", "reasonable" or "just" arrangement or settlement. As mentioned above, in Government this involves a determination as to an adjustment of the contract price, the period of performance, or both REQUESTS FOR EQUITABLE ADJUSTMENT (DEC 2012) (a) The amount of any request for equitable adjustment to contract terms shall accurately reflect the contract adjustment for which the Contractor believes the Government is liable. The request shall include only costs for performing the change, and shall not include any costs that already have been reimbursed or that have been separately claimed. All indirect costs included in the request shall be properly allocable to the change in accordance with applicable acquisition regulations. (b) In accordance with 10 U.S.C. 2410(a), any request for equitable adjustment to contract terms that exceeds the simplified acquisition threshold shall bear, at the time of submission, the following certificate executed by an individual authorized to certify the request on behalf of the Contractor: I certify that the request is made in good faith, and that the supporting data are accurate and complete to the best of my knowledge and belief. (c) The certification in paragraph (b) of this clause requires full disclosure of all relevant facts, including (1) Certified cost or pricing data, if required, in accordance with subsection 15.403-4 of the Federal Acquisition Regulation (FAR); and (2) Data other than certified cost or pricing data, in accordance with subsection 15.403-3 of the FAR, including actual cost data and data to support any estimated costs, even if certified cost or pricing data are not required. (d) The certification requirement in paragraph (b) of this clause does not apply to (1) Requests for routine contract payments; for example, requests for payment for accepted supplies and services, routine vouchers under a cost-reimbursement type contract, or progress payment invoices; or (2) Final adjustments under an incentive provision of the contract.
You are the CO on an airframe IPT. The Program Manager just showed up at your desk in a panic. The contractor has called to say that one of the engines they just installed and test does not meet spec and as a result, the ACO will not accept delivery of the aircraft. the contractor said it's not their fault since the engines are GFE and they want paid. In addition the want assurances this will not adversely affect their incentive fee payment. the PM wants you to resolve this problem. Is this your problem to solve? What issues are involved here and how do you address them?
This is a problem our team must solve - therefore as a team member and business advisor, it is my responsibility to help the team solve this problem. There are several issues: Is this a problem with only that one engine or others in the pipeline? What is the contract delivery date for this aircraft? Is there any slack? If this is a GFE problem, the contractor has right to expect to be epaid and not harmed by this event How do we address thes issues:
Fixed-Price Economic Price Adjustment
Unstable market prices for labor or material over the life of the contract. The market prices at risk are severable and significant. The risk stems from industry-wide contingencies beyond the contractor's control. The dollars at risk outweigh the administrative burdens of an FPEPA. A fixed-price, ceiling on upward adjustment, and a formula for adjusting the price up or down based on: Established prices. Actual labor or material costs. Labor or material indices. Provide an acceptable deliverable at the time and place specified in the contract at the adjusted price. Generally realizes an additional dollar of profit for every dollar that costs are reduced. Long-term contracts for commercial supplies during a period of high inflation. Must be justified.
Cure notice/show cause
a) Cure notice. If a contract is to be terminated for default before the delivery date, a "Cure Notice" is required by the Default clause. Before using this notice, it must be ascertained that an 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 time remaining in the contract delivery schedule is not sufficient to permit a realistic "cure" period of 10 days or more, the "Cure Notice" should not be issued. The "Cure Notice" may be in the following format: CURE NOTICE You are notified that the Government considers your ____ [specify the contractor's failure or failures] a condition that is endangering performance of the contract. Therefore, unless this condition is cured within 10 days after receipt of this notice [or insert any longer time that the Contracting Officer may consider reasonably necessary], the Government may terminate for default under the terms and conditions of the _______ [insert clause title] clause of this contract.
Cost Analysis
is the review and evaluation of the separate cost elements and profit or fee in an offeror's or contractor's proposal to determine a fair and reasonable price or to determine cost realism. Cost analysis includes the application of judgment to determine how well the proposed costs represent what the cost of the contract should be, assuming reasonable economy and efficiency. must be used to evaluate the reasonableness of individual cost elements when certified cost or pricing data are required. Cost analysis may also be used to evaluate data other than certified cost or pricing data to determine cost reasonableness or cost realism when a fair and reasonable price cannot be determined through price analysis alone (FAR 15.404-1 is also used when selecting and negotiating the contract type. In the absence of effective price competition and if price analysis is not sufficient, the cost estimates of the offeror and the Government provide the bases for negotiating contract pricing arrangements. It is essential that the uncertainties involved in performance and their possible impact upon costs be identified and evaluated, so that a contract type that places a reasonable degree of cost responsibility upon the contractor can be negotiated (FAR 16.104(c)).
Inherently Governmental Function
is used when referring to a particular task or function that must be performed by a Government official. - IGF is a policy term which encompasses those governance areas that require officials to exercise discretion, e.g., policy decision-making, performance/mission accountability, and execution of monetary transactions and entitlements. - If a task or function isn't determined to be inherently governmental, it may be eligible for performance by contractors through a contract. - Policy limits contractors to the performance of common commercial services (custodial, aircraft maintenance, refuse removal, groundskeeping, etc.) and other services related to gathering information on its behalf for the purpose of advising, offering opinions, providing recommendations and/or presenting ideas. These types of services are not inherently governmental because they do not require contractors to establish Government policies, render actionable mission/organizational decisions, or expend taxpayer dollars.
acquisition planning
must involve all personnel responsible for significant aspects of the acquisition. The purpose of this planning is to ensure that the Government meets its needs in the most effective, economical, and timely manner. Some Department of Defense (DoD) agencies have a detailed acquisition planning system in place that goes beyond the general requirements of FAR Part 7. should begin as soon as the agency's need is identified, preferably well in advance of the fiscal year in which contract award or order placement is necessary. In developing the plan, the planner forms a team consisting of all those who will be responsible for significant aspects of the acquisition, such as contracting, fiscal, legal, and technical personnel. If contract performance is to be in a designated operational area or supporting a diplomatic or consular mission, the planner shall also consider inclusion of the combatant commander or chief of mission, as appropriate. The planner should review previous plans for similar acquisitions and discuss them with the key personnel involved in those acquisitions. At key dates specified in the plan or whenever significant changes occur, and no less often than annually, the planner shall review the plan and, if appropriate, revise it. While acquisition planning is required for all acquisitions (FAR 7.102), DFARS 207.103 requires written acquisition plans in DoD for: Acquisitions for "development" (as defined in FAR 35.001) when the total cost of all contracts for the acquisition program is estimated at $10 million or more; Acquisitions for production or services when the total cost of all contracts for the acquisition program is estimated at $50 million or more for all years or $25 million or more for any fiscal year; and Any other acquisition considered appropriate by the department or agency.
Trade-off
the RFP identifies all evaluation factors and significant subfactors that will affect contract award by clearly stating their relative importance in the solicitation (FAR 15.204-5(c)). The general approach for evaluating past performance information shall be described where the solicitation states, at a minimum, whether all evaluation factors other than cost or price, when combined, are significantly more important than cost or price; approximately equal in importance to cost or price; or significantly less important than cost or price The Government uses the tradeoff source selection process across the whole remainder, not just the opposite end, of the Best Value continuum. This process permits tradeoffs among cost or price and non-cost factors, which allows the Government to award to other than the lowest priced offeror or other than the highest technically rated offeror (FAR 15.101-1(a)). Unlike the LPTA process, the Government cannot determine in advance which offer will represent the Best Value when using the tradeoff process. Only after the evaluation and comparative analysis of the proposals may the Source Selection Authority (SSA) exercise his or her independent judgment to select the proposal that represents the Best Value.
