Contracting Test 3 Flashcards
What type of modification requires the signature of the Contracting Officer and the contractor
Bilateral Modification
Written order signed by PCO, directing the contractor to make a change without prior agreement
Change Order Authorized by the “Changes Clause” Limitations to Changes: Place of delivery Change in packaging Change to design or specifications
Oral or written act or failure to act by Government official (in a position of authority) construed by contractor as having same effect as a written change order
Constructive Change
Must involve:
Change in performance beyond minimum contract requirements, and
Word or deed by Government representative which requires contractor effort that is not a necessary party of the contract
Requires Ratification
What is a change to a contract called?
Modification
In scope modifications will not ______ or ________
Place an undue burden on the contractor
Does not disrupt the competitive aspect
Which part of the FAR covers contract financing
Part 32
Least preferred contract financing method?
Advance payments
Why does the gov’t provide contract financing?
- To expedite the performance of essential contracts
- Increase competition
- High dollar production
- Aid Small Business
- Meets contractors need/minimizing Government risk
Preferred financing method?
Performance-based payments
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
Claim
The date when all events, that fix the alleged liability of either the Government or the contractor and permit assertion of the claim, were known or should have been known
Accrual of a Claim
Any type of procedure or combination of procedures voluntarily used to resolve issues in controversy
ADR
A certificate which alters or otherwise deviates from the language in 33.207(c) or which is not executed by a person duly authorized to bind the contractor with respect to the claim.
Defective Certification
A material disagreement between the Government and the contractor that:
May result in a claim
Is all or part of an existing claim
Issue in controversy
A false statement of substantive fact, or any conduct which leads to the belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead
Misrepresentation of fact
Contract Disputes Act of 1978
Establishes procedures and requirements for asserting and resolving claims subject to the Act
When does the Contract Disputes Act of 1978 apply?
Contract Disputes Act applies to any express or implied contract covered by the Federal Acquisition Regulation unless:
The contract is with a foreign government or agency of that government, or
An international organization or a subsidiary body of that organization if the agency head determines that the application of the Act to the contract would not be in the public interest
What are the 6 essential elements of a contract?
- Mutual Assent
- Consideration
- Capacity
- Lawful Purpose
- Certainty of Terms
- Form Provided by law
What type of authority does a KO have? Express or implied?
Express Authority
What is an unauthorized commitment?
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
What is ratification?
The act of approving an unauthorized commitments by an official who has the authority to do so.
Does the gov’t recognize apparent authority?
No
Define Mutual Assent
Meeting of the Minds
What is consideration?
Each party receives something of value and gives something of value
Define Capacity
Right to legally contract
What does lawful purpose mean?
Contracts which violate a statute or conflict with public welfare will not be enforced
What does certainty of terms mean?
Term must be unambiguous and include:
price, delivery schedule, quantity and pws/sow.
What are the three type of contracting authority?
- Express
- Implied
- Apparent
What is express authority
Contracting Officer authority through formal appointment
Appointed on SF 1402 (warrant)
Implied actual authority
Some authorized reps may have implied actual authority
Inspectors may have this type of authority when they are authorized to accept/reject work
Apparent Authority
a principal leads a third party to believe that an agent has authority to bind the principal, even where the agent lacks the actual authority to bind the principal
Define Solicitation
A document sent to prospective contractors by a Government agency, requesting the submission of offers or information.
You are required to put 3 provisions and 3 clauses in solicitations for commercial items.
True or False
False - only two provisions and two clauses are mandatory for commercial item solicitations
Most common form of solicitation?
Written
What is the form used for Army solicitation/contracts for commercial items?
SF 1449
What is a provision?
A written term or condition used only in solicitation and applies only before contract award.
- Required provisions: 52.212-1, 52.212-3
What is a clause?
A term or condition that is used in a Solicitation and a contract
- Required clauses: 52.212-4, 52.212-5
FOB
Free on Board
FOB Origin: the unit will pick up from vendor
FOB Delivery: vendor is responsible for delivery to the unit
What SHALL be considered when evaluating source selection for awards exceeding the SAT?
Past performance shall be evaluated for negotiated competitive procurements exceeding the SAT
What are benefits of providing financing?
increased competition
aid to small businesses
What is a change to a solicitation?
Amendment
Responsiveness of Bids
A bid must comply in all material respects with the invitation for bids
Bid Submission
Bids shall be submitted NLT the exact time set for the opening of bids and safeguarded from unauthorized disclosure.
Is Bid opening open to public?
No
When are bids rejected?
Any bid that fails to conform to the material requirements of the invitation for bids shall be rejected
When the bidder imposes conditions
rejected if the contracting officer determines in writing that it is unreasonable as to price.
Who approves correction of minor mistakes in bids?
Approval levels under FAR 14.407 for Army are each PARC who shall exercise the authority
Who is the Source Selection Authority (SSA)?
The KO
Source Selection Advisory Council (SSAC)
Reviews decisions of Source Selection Evaluation Board recommendation on programs over 100M
Source Selection Evaluation Board
conducts a comprehensive review and evaluation of proposals against the solicitation requirements and the approved evaluation criteria.
Provides evaluation results to the SSA, or the SSAC, if applicable
limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.
Clarification
exchanges in a competitive environment that are undertaken with the intent of allowing the offeror to revise its proposal
Discussion
What is the primary source to get a contractor’s past performance data when conducting source selections?
PPIRS - past performance information retrieval system
______________________is the determination that a price is consistent with what a prudent buyer would be willing to pay given market conditions and other factors
Price Reasonableness
Steps in making an award decision
- Documenting the award/selection decision
- notify successful and unsuccessful offerors
- making the contract award
appoint a COR - Assigning/documenting the contract for admin
- fedbizops notice and public 6. announcement
- debriefings
When is post award notice due?
Within 3 days of date of award in writing to those offerors who were in the competitive range
Public Announcement of contract awards DFARS 205.303
DoD contracts >$7M
FAR threshold is $4M
FAR Subpart 5.3 - Synopses of Contract Awards
Contracting officers must synopsize through the GPE
Contract awards exceeding $25,000 that are—
Covered by the World Trade Organization Government Procurement Agreement or a Free Trade Agreement (see subpart 25.4); or
Likely to result in the award of any subcontracts.
Which FAR part governs protest procedures
FAR part 33
any offeror or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to make the award
interested party
written objection by an interested party to a solicitation or a award of a contract by or for a federal agency
Protest
How long to the KTR have to request a debrief after notification of contract award
3 days
How long after request must the KO give the debrief
5 days
When are protest filed?
NLT 10 days after the basis of protest is known or should have been known
10 days after contract award or w/in 5 days after debriefing
Where are protest filed?
Agency
Government Accountability Office (GAO)
U.S. Court of Federal Claims
In the event of a protest, who prepares the agency report?
the KO
What is the suspense to resolve an agency protest
35 days
What is the suspense to resolve a GAO protest
100 day or 65 day is express option is used
Whats in the Agency report and when is it due?
w/in 30 days Contract value Memorandum of Law List and copy of all relevant documents Solicitation Abstract of bids/offers
What are the possible protest decisions?
Dismiss
Deny - for the gov’t
Sustain - for the protester
When a protest is submitted to GAO the protester has 30 days to furnish the KO with a copy
True or False?
False - 1 day
After a debriefing is requested the KO has __day(s) to provide the debriefing
5
What is partnering?
a technique of Alternative Dispute Resolution (ADR) to resolve disputes
A post award orientations always required?
No
What is contract Admin
All activities after contract award
Things to consider when determining whether a post-award orientation is necessary (slide 15)
Type, value, and complexity of the contract
Contractor’s performance history and experience with the product or service
Length of the planned production cycle
Safety precautions required for hazardous materials or operations
When there are indications that the contractor lacks a clear understanding of the requirements in the contract
Two types of post award orientation
Letter – Can be used for less complex contract actions to meet the basic requirements of the orientation.
Formal Conference – probably the best method. Allows face-to-face meeting to provide real time feedback to questions, concerns or issues.
Type of delay that protects the contractor from sanctions for late performance when the event is:
- “beyond the control” of the contractor;
- without “fault or negligence” of the contractor;
- Unforeseeable
Excusable Delay
______________
Gives the contractor more time, but not money
Excusable delays cited in contract clauses:
Strikes
Weather
Government Acts (contractual or sovereign)
Floods
Fires
Epidemics
Freight embargoes
Acts of God — singular, unexpected and irregular visitation of a force of nature
Delays generally directed by the KO
Compensable (gov’t delays)
remedy is time & money
Suspension of Work clause under construction contractsStop Work clause
Delays resulting from KTR:
Normally not excused from delays due to: Financial difficulties Lack of facilities and equipment Lack of materials Lack of Know-how Labor problems (in absence of a strike) Vendor problems
Contractor Delays
combination of compensable, excusable, or contractor delays that occur at the same time
Concurrent Delay
Which FAR part covers quality assurance?
Far part 46
QASP
Quality Assurance Surveillance Plan (QASP) for services (usually used & developed by the COR)
Who is empowered to execute contract modifications?
The KO
How many types of contact modifications are there?
2; unilateral and bilateral
What is the form of payment where the gov’t disburses funds to a contractor after acceptance?
Delivery payment
Prompt Payment Act
Requires payment w/in 30 days of receipt of “proper invoice”; 14 days for construction
How long does the contractor have to file a claim?
6 yrs, unless the parties agree to a shorter period
How long does the KO have to issue a final decision on a claim?
60 days after review of the claim and all associated facts to include legal review
When must claim certification be done in writing?
When the claim exceeds $100K
Which FAR part governs terminations?
FAR part 49
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
Termination for Convenience
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
Termination for Default
the exercise of the Government’s right to terminate a contract because of the contractor’s failure to deliver goods / services or otherwise breaches a COMMERCIAL contract
Termination for Cause
How many types of termination are there?
3
A notice to the KTR that the gov’t is considering termination for default
Show cause notice
When don’t you terminate a contract for convenience?
When the balance of the contract is
A notice to the KTR that the gov’t is considering termination for default and there are at least 10 day remaining in the period of performance
Cure Notice
What must you do in order to T4D a small business?
Provide a copy of the cure or show cause notice to the SBA
What are closeout standards?
Simplified acquisition procedures – upon receipt of evidence of physical completion.
Firm fixed price contracts (not using SAP) – six months after the receipt of physical completion.
Contracts requiring settlement of indirect rates – 36 months after receipt of physical completion
Physically complete Contracts
The contractor has completed required deliveries and Government has inspected and accepted
The contractor has performed all services and Government has accepted
All options provisions, if any have expired
OR
The Government has given the contractor a notice of complete contract termination
What form is the contract closeout checklist?
DD 1597
What is the DD 1594
Contract Completion Statement
