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Contracting > Contract Principles > Flashcards

Contract Principles Flashcards

1
Q

Two types of authority:

A

Actual Authority and Apparent Authority

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2
Q

Two types of Actual Authority:

A

Express Actual Authority: created by explicit language, either in writing or verbal

Implied Actual Authority: No express agreement is executed, it is just implied

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3
Q

Apparent authority

A

Exists when someone reasonably believes an individual has the authority to act on behalf of the Government, based on his or her conduct, even though that individual has no actual authority to bind the Government.

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4
Q

Delegation of Authority

A

Authority is delegable unless specifically stated otherwise

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5
Q

What is a contract?

A

A contract is a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing.

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6
Q

Essential elements of a contract (not UCF):

A

Capacity

Mutual Assent

Consideration

Lawful purpose

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7
Q

Capacity

A

Refers to the legal competence of a person to enter into a valid contract. To be legally bound to a contract, a party must have the capacity to understand and appreciate the terms of the contract.

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8
Q

Mutual Assent

A

“Meeting of the minds.” Mutual assent means that partied involved in a contract must come to an agreement about the details of the transaction and each party either makes a promise or begins or renders performance.

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9
Q

Consideration:

A

Consideration is something of value that a promisor (the offeror) receives from a promisee (the offeree) in return for his or her offer - without consideration, a contract is not enforceable

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10
Q

Lawful purpose:

A

A contract is unenforceable if any terms of the agreement is contrary to public policy

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11
Q

Market research is the process …

A

“used to determine if industry can support the acquisition “need” of the Government. It is a continuous process for gathering and analyzing information about products and services that are available in the marketplace.

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12
Q

Strategic market research:

A

Conducted continuously throughout the acq process

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13
Q

Tactical market research:

A

Conducted throughout specific points during the acq process

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14
Q

Competition:

A

Unless an exception applies or is otherwise expressly authorized by statue, KO’s shall promote and provide for full and open competition in soliciting offers and awarding Government contracts

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15
Q

Competitive Procedures available for use in fulfilling the requirement for full and open competition:

A
  • Sealed bids
  • Competitive proposals
  • Combination of competitive procedures
  • Other competitive procedures
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16
Q

Full and Open Competition:

A

with certain limited exceptions (FAR 6.2 and 6.3), KO’s shall promote and provide for full and open competition in soliciting offers and awarding Government contracts

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17
Q

Full and Open Competition After Exclusion of Sources:

A

Agencies may exclued a particular source from a contract action in order to establish or maintain an alternative source or sources: various small business concerns

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18
Q

Other Than Full and Open Competition:

A

Under certain conditions, contracting without providing for fulland open competition is authorized:

  • Only one responsible source and no other supplies or services will satisfy the agency requirements
  • Unusual and compelling urgency
  • Industrial mobilization; engineering, developmental, or research capability; or expert services
  • international agreement
  • authorized or required by statute
  • national security
  • public interest
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19
Q

Fair and Reasonable Price: Contracting officers shall -

A

Purchase supplies and services from responsible sources at fair and reasonable prices

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20
Q

The general rule for Ethics:

A

To avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships

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21
Q

Gifts:

A

As a rule, no Government employee may solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, or anything of monetary value from anyone who is seeking to obtain Government business

22
Q

Procurement integrity:

A

Competing offerors may not receive from the government nonpublic information that would provide an unfair competitive advantage.

23
Q

Acceptance:

A

the act of an authorized representative of the government by which the government, for itself or as agent of another, assumes ownership of existing identified supplies tendered or approves specific services rendered as partial or completed performance of the contract.

24
Q

Acceptance may take place:

A

before delivery, at the time of delivery, or after delivery, depending on the provisions of the terms and conditions of the contract.

25
Q

Responsibility for Acceptance:

A

Acceptance of supplies or services is the responsibility of the KO. When this responsibility is assigned to a cognizant contract administration or to another agency, acceptance by that office or agency is binding on the government.

26
Q

Place of Acceptance:

A

Each contract shall specify place of acceptance. Contract that provide for government contract quality assurance at source shall ordinarily provide for acceptance at source. Contract that provide for government contract quality assurance at destination shall ordinarily provide for acceptance at destination.

Supplies accepted at a place other than destination shall not be re-inspected at destination for acceptance purposes, but should be examined at destination for quantity, damage in transit, and possible substitution or fraud.

27
Q

Uses for a Certificate of Conformance:

A

may be used in certain instances instead of a source inspection (whether the contract calls for acceptance at source or destination) at the discretion of the contracting officer if the following conditions apply:

  • acceptance on the basis of a contractor’s certificate of conformance is in the government’s interest
  • small losses would be incurred in the event of a defect
  • because of the contractor’s reputation for past performance, it is likely that the supplies or services furnished will be acceptable and any defective work would be replaced, corrected, or repaired without contest.
28
Q

Title transfer:

A

Title to supplies shall pass to the government upon formal acceptance, regardless of when or where the government takes physical possession, unless the contract specifically provides for earlier passage of title

29
Q

Excusable Delay:

A

if the KO determines that any failure to perform results from one or more excusable delays, the delivery schedule shall be revised, subject to the rights of the government under the termination clause of the contract

30
Q

Examples of excusable delays:

A

-acts of God or the public enemy
- acts of the government in either its sovereign or contractual capacity
- fires
- floods
- epidemics
- quarantine restrictions
- strikes
- freight embargoes
- unusually severe weather

31
Q

The principal purpose of a warranty in Government contracts are:

A
  1. to delineate the rights and obligations of the contractor and the Government for defective items and services
  2. to foster quality performance
32
Q

The KO shall ensure that warranties clearly state:

A
  1. exact nature of the item and its components and characteristics that the contractor warrants
  2. extend of the contractor’s warranty including all of the contractor’s obligations to the government for breach of warranty
  3. specific remedies available to the government
  4. scope and duration of the warranty
33
Q

Remedies (icw Warranties)

A

Normally, a warranty shall provide as a minimum that the Government may:

  1. obtain an equitable adjustment of the contract, or
  2. direct the contractor to repair or replace the defective items at the contractos’ expense
34
Q

Duration of the warranty:

A

The time period or duration of the warranty must be clearly specified and shall be established after consideration of such factors such as :

  • the estimated useful life of the item
  • the nature of the item including storage or shelf-life
  • trade practice
35
Q

Warranty notice:

A

the warranty shall specify a reasonable time for furnishing notice to the contractor regarding the discovery of defects - this time period shall be long enough to assure that the government has adequate time to give notice to the contractor.

36
Q

Warranty consistency:

A

KO’s shall ensure that the warranty clause and any other warranty conditions in the contract are consistent. To the extent practicable, all of the warranties to be contained in the contract should be expressed in the warranty clause.

37
Q

Warranty markings:

A

the packaging and preservation requirements of the contract shall require the contractor to stamp or mark the supplies delivered or otherwise furnish notice with the supplies of the existence of the warranty

38
Q

Types of warranties for commercial products / services:

A

Implied warranty

Express warranty

39
Q

Implied warranties:

A

The government’s post award rights contained in FAR 52.212-4 are the implied warranty of merchantability, the implied warranty of fitness for particular purpose and the remedies contained in the acceptance paragraph.

the implied warranty of merchantability provides that an item is reasonably fit for the ordinary purposes for which such items are used. The items must be of at least average, fair or medium grade quality and must be comparable in quality to those that will pass without objection in the trade or market for items of the same description.

40
Q

Express warranties:

A

Required KO’s to take advantage of commercial warranties. To the maximum extent practicable, solicitations for commercial items shall require offerors to offer the government at least the same warranty terms offered to the general public

41
Q

Bilateral modification

A

a contract modification signed by the contractor and the KO

  • make negotiated equitable adjustments resulting from the issuance of a change order
  • definitize letter contracts
  • reflect other agreements of the parties modifying the terms of the contracts
42
Q

Unilateral modification

A

a contract modification that is signed only by the KO

  • make administrative changes
  • issue change orders
  • make changes authorized by clauses other than a change clause
  • issue termination notices
43
Q

Termination:

A

the KO shall terminate contracts, whether for default or convenience, only when it is in the government’s interest

44
Q

Two main types of termination:

A

Termination for Convenience

Termination for Default

**Termination for cause is similar to a default termination except it applies to commercial contract formats

45
Q

The KO shall terminate contracts for convenience or default only by a _________ notice to the contractor:

A

written

46
Q

Termination for convenience (T4C):

A

the government’s unilateral contractual right to partially or completely terminate a contract without being required to pay damages, despite full contractor compliance with its contractual obligations

47
Q

Termination for default (T4D):

A

termination for default is generally the exercise of the government’s contractual right to completely or partially terminate a contract because of the contractor’s actual or anticipated failure to perform its contractual obligations

48
Q

Delinquency Notices:

A

A delinquency notice must be sent by the KO to the KTR if it appears that the KTR has breached the contract and the GVT is considering a termination action.

49
Q

Two types of delinquency notices:

A
  1. Cure notice is used when:
    - KTR fails to make progress and performance is endangered
    - Performance problems do not involve terms for delivery
    - At least 10 days remain in contract performance and correction of the problem can be reasonably expected in the time remaining
  2. Show cause is used after the cure cause notice fails to correct the delinquency or when there is insufficient time remaining in the schedule - less than 10 days
50
Q

Termination for Cause (Commercial products and services)

A

The clause at 52.212-4 permits the GVT o terminate a contract for commercial products and commercial services either for convenience of the GVT or for cause - but FAR Part 49 do not apply when terminating contracts for commercial items and KO’s shall follow the procedures in FAR Part 12.

Contracting (11 decks)

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