Final Key Cards Flashcards
Build up of final details
What is the FAR?
2,000-page section of U.S. Code of Federal Regulations that lays out all
federal rules and regulations related to contracting
How is the FAR issued?
as Chapter 1 of Title 48 of the Code of Federal Regulations and is
published in two volumes. Volume 1 contains Subchapters A through G, and Volume 2
contains Subchapter H. Each of the eight subchapters deals with a different element of
the acquisition process:
Subchapter A: General (Parts 1–4)
Subchapter B: Acquisition Planning (Parts 5–12)
Subchapter C: Contracting Methods and Types (Parts 13–18)
Subchapter D: Socioeconomic Programs (Parts 19–26)
Subchapter E: General Contracting Requirements (Parts 27–33)
Subchapter F: Special Categories of Contracting (Parts 34–41)
Subchapter G: Contract Management (Parts 42–51)
Subchapter H: Clauses and Forms (Parts 52–53)
Part 38
Federal Supply Schedule Contracting:
Prescribes policies and procedures for contracting for supplies and services under the Federal Supply Schedule (FSS) program (also called the GSA Schedules Program or the Multiple Award Schedule Program), a GSA program which provides federal agencies with a simplified process for obtaining commercial supplies and services at prices associated with volume buying.
applying the FAR to the acquisition of goods and services is how government funds are?
used effectively to reduce waste and get the best value for federal dollars spent. It also
helps protect federal tax dollars from unethical people and businesses. Think of federal
contracting like driving a vehicle and the FAR as a set of traffic laws. The FAR, like traffic
laws, helps us get where we are going, on time, in the safest and best way possible.
The FAR System is issued pursuant to
the Office of Federal Procurement Policy (OFPP) Act, which established the Office of Federal Procurement Policy within the Office of Management and Budget (OMB).
FAR 1.103 Authority
- The Federal Acquisition Regulation (FAR) is issued under the joint authority of the Administrator of General Services, the Secretary of Defense, and the Administrator of the National Aeronautics and Space Administration, under their several statutory authorities.
- The FAR System is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies.
- The FAR is prepared ,issued, and maintained ,and the FAR System is coordinated, by the two agencies acting jointly.
FAR 1.105-1 Publication and Code Arrangement
(a) The FAR is published
in the daily issue of the Federal Register and, in
cumulative form, in the Code of Federal Regulations (CFR).
FAR 1.105-1 Publication and Code Arrangement
(b) The FAR is codified
in Chapter 1 of Title 48 of the CFR.
What Are the Guiding Principles?
The FAR system wil:
Satisfy the customer in terms of cost, quality, and timeliness of the delivered product or service by.
* Maximizing the use of commercial products and services,
* Using contractors who have a track record of successful past
performance or who demonstrate a proven ability to perform, and
* Promoting competition
Minimize administrative operating costs
Conduct business with integrity, fairness, and openness
Fulfil public policy objectives
The FAR’s Establishment and Authority
Aug 30 1974 Executive Office of the President
OFPP
To create an office of Federal Procurement Policy designed to promote economy, efficiency and effectiveness in procurement of goods, services and facilities by and for the executive branch of the Federal Government
How is the FAR maintained
The FAR is published in:
Federal Register: In the daily issue
Code of Federal Regulations: In cumulated form
Loose leaf: As a separate edition
Responsible for establishing and operating the FAR
GSA
Secretariat to print, publish, and distribute
the FAR through the Code of Federal Regulations system, including aloose-leaf edition with periodic updates
On-going maintenance of FAR
DAR Council: Defense Acquisition Regulations Council
CAA Civilian Agency Acquistion Council
On-going maintenance of FAR.
Each council shall be responsible for (DAR Council, CAA Council)
Agreeing on all revisions with the other council,
- Submitting to the FAR Secretariat the information required for publication
in the Federal Register of a notice soliciting comments on a proposed
revision to the FAR, - Considering all comments received in response to notice of proposed
revisions, - Arranging for public meetings,
- Preparing any final revision in the appropriate FAR format and language, and
- Submitting any final revision to the FAR Secretariat for publication in the Federal Register and printing for distribution.
GSA Authorizes the FAR Secretariat to print,
publish, and distribute the FAR
Shall provide the two councils with centralized services for:
- Keeping a synopsis of current FAR cases and their status,
- Maintaining official files,
- Assisting parties interested in reviewing the
files on completed cases, and - Performing administrative tasks pertaining to FAR maintenance.
How Is the FAR Arranged?
The FAR is divided into subchapters, parts (each of which covers
a separate aspect of acquisition), subparts, sections, and subsections.
9.106-4(d)
9=Part
1=Subpart
06=Section
4=Subsection
(d) paragraph
More FAR Conventions
When an imperative sentence directs action,
the contracting officer is responsible for the action, unless another party is expressly cited.
“Must” “Should” “Shall” “Will”
What Are Threshold Adjustments?
The FAR Council periodically adjusts all statutory acquisition-
related dollar thresholds in the FAR for inflation, except thresholds
- established by the Wage Rates Requirements
(formerly Davis-Bacon Act),
- the Service Contract Labor
Standards (formerly Service Contract Act of 1965),
- or the United States Trade Representative pursuant to the authority of the
Trade Agreements Act of 1979.
This adjustment is calculated every 5 years, starting in October 2005, using the Consumer Price Index (CPI) for all-urban consumers.
Ref.: FAR 1.109
Determination and Findings
A special form of written approval by an authorized official that is required by statute or regulation as a prerequisite to taking certain contract actions.
- The determination is a conclusion or decision supported by the findings.
- The findings are statements of fact or rationale essential to support the
determination and must cover each requirement of the statute or regulation
IMPERATIVE SENTENCES: When an imperative sentence (containing verbs such as shall, must, or will) directs action,
the contracting officer is responsible for the action, unless another party is expressly cited.
- Recommended revisions to the FAR shall be transmitted to
the FAR Secretariat by agency heads, or their designees, for authorizing class deviations.
Determination and Findings (D&F) means
a special form of written approval by an authorized official
that is required by statute or regulation as a prerequisite to taking certain contract actions.
The “determination” is a conclusion or decision supported by the
“findings.”
The findings are statements of fact or rationale essential to support the determination and must cover each requirement of the statute or regulation.
At a minimum, a D&E shall include, in the prescribed agency format, the following information:
identification of the agency and of the contracting activity and specific identification of the document as a D&F;
nature and/or description of the action being approved;
citation of the appropriate statute and/or regulation upon which the D&F is based;
findings that detail the particular circumstances, facts, or reasoning essential to support the determination;
a determination, based on the findings, that the proposed action is justified under the applicable statute or regulation;
an expiration date of the D&F, if required;
the signature of the official authorized to sign the D&F; and the date signed.
Micro-Purchase Threshold
Micro-Purchase Threshold means $10,000, except it means
(1) For acquisitions of construction subject to the Wage Rate Requirements (Construction), $2,000;
(2) For acquisitions of services subject to the Service Contract Labor Standards, $2,500; and
(3) For acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack, as described in paragraph (1) of the definition of micro-purchase threshold at 2.101, except for construction subject to the Wage Rate Requirements (Construction) (41 U.S.C. 1903)—
(i) $20,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and
(ii) $35,000 for any contract to be awarded and performed, or purchase to be made, outside the United States.
Simplified Acquisition Threshold
Simplified Acquisition Threshold means $250,000,except for—
* (1) Acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack (41 U.S.C. 1903)—
* (i) $800,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and
* (ii) $1.5 million for any contract to be awarded and performed, or purchase to be made, outside the United States; and
(2) Acquisitions of supplies or services that, as determined by the head of the agency, are to support a humanitarian or peacekeeping operation (10 U.S.C. 2302(7))—
* (i) $800,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and
* (ii) $1.5 million for any contract to be awarded and performed, or purchase to be made, outside the United States.
Commercial product
Any item, other than real property, that is of a type customarily used for nongovernmental purposes and that:
* Has been sold, leased, or licensed to the general public; or
* Has been offered for sale, lease, or license to the general public
Commercial items also include items that evolved from an item
described in this definition through advances in technology or
performance and that is not yet available in the commercial marketplace, but wil be available ni the commercial marketplace ni time to satisfy the delivery requirements under a government solicitation.
May
Denotes the permissive
- However, the words “no person may…” mean that no person is required, authorized, or permitted to do the act described
Shall
- Denotes the imperative
Simplified acquisition
A less rigorous method for entering into relatively low-dollar-threshold contracts
Simplified acquisition usually occurs without the elaborate and
formal solicitation techniques required by sealed bidding and negotiation.
Very small purchases should be made using simplified acquisition tools such as charge cards.
Simplified Acauisition Threshold (SAT)
Threshold amount updated in FAR 2.101
For acquisitions of supplies or services to support contingency operations, or to
defend against or recover from a nuclear, biological, chemical, or radiological attack:
- $300,000 for any contract to be awarded and performed, or purchase to be made, inside the United States
- $1,000,000 for any contract to be awarded and performed, or purchase to be made, outside the United States
Micropurchase
An acquisition of supplies or services using simplified acquisition procedures, the aggregate amount of which does not exceed $3,500 (micropurchase threshold)
- Does not exceed $2,000 for acquisitions subject to the Wage Rates Requirements statute (Construction)
- Does not exceed $2,500 for acquisitions subject to the Service Contract Labor Standards statute
- Does not exceed $20,000 for acquisitions of supplies or services to support contingency operations inside the United States
- Does not exceed $35,000 for acquisitions of supplies or services to support contingency operations outside the United States
Micro Purchase
10k everything
2k construction
25k services
Simplified Acquisition Treshold
250k except
contingent 800k 1.5m international
humanity 800k 1.5m international
1) Clause means
a term or condition used in contracts or in both solicitations and contracts, and applying after contract award or both before and after award.
Provision means
a term or condition used only in solicitations and applying only before contract award.
(1) FAR provisions and clauses. Provisions and clauses prescribed by this regulation (48 CFR chapter 1) are identified as follows:
- (i) A provision or clause is identified by a number in the format 52.xxx-xx, where the first pair of digits is the part number and the second pair (after the decimal) is the sequence number.
- (ii) The sequence number shall use 01 for the first provision or clause in each part and be numbered consecutively.
Agency provisions and clauses. Agency provisions and clauses are identified by the same number format as FAR provisions and clauses, except that
the number is preceded by a hyphen and the agency’s abbreviation or symbol. For example, a provision or clause prescribed by the Department of the Treasury would be identified as “52.TREAS-xxx-xx.”
(d) Matrix.
A matrix listing the FAR provisions and clauses in numerical order and cross-referenced to the appropriate FAR prescription is located in subpart 52.3.
This matrix is a reference tool and should not be used in lieu of the prescriptions in FAR subparts 52.2 and 52.3.
Whenever any FAR provision or clause is used without deviation in a solicitation or contract, whether it is incorporated by reference or in full text, it must be identified by
by number, title, and date. This identification shall also be used if the FAR provision or clause is used with an authorized deviation, except that the contracting officer must then insert
“(DEVIATION)” after the date.
The FAR accommodates a major variation in a provision or clause by use of an alternate. The FAR prescribes alternates to a given provision or clause in the FAR where the provision or clause is prescribed.
The alternates to each provision or clause are titled
“Alternate I,” “Alternate II,”
“Alternate III,” etc.
When an alternate is used, its date will be cited along with the date of the basic provision or clause; e.g., 52.209-3 First Article Approval-Contractor Testing (OCT 1983)-Alternate I (DEC
1983). When more than one alternate is used, they are cited sequentially (e.g., Alternate I (DEC
1983) and Alternate II (FEB 1984)).
53.102 Current editions.
The form prescriptions in subpart 53.2 and the FAR forms located at https://www.gsa.gov/forms contain current edition dates. Contracting officers shall use the current editions unless otherwise authorized under this regulation.
The following forms are prescribed as stated in this section for use in simplified acquisition procedures, orders under existing contracts or agreements, and orders from required sources of supplies and services:
(a) SF 18 (Rev.6/95), Request for Quotations, or SF 1449 (Rev. Nov 2021), Solicitation/Contract/Order for Commercial Products and Commercial Services.
SF 18 is prescribed for use in obtaining price, cost, delivery, and related information from suppliers as specified in 13.307(b).
SF 1449, as prescribed in 53.212, or other agency forms/automated formats, may also be used to obtain price, cost, delivery, and related information from suppliers as specified in 13.307(b).
The following forms are prescribed as stated in this section for use in simplified acquisition procedures, orders under existing contracts or agreements, and orders from required sources of supplies and services:
(b) SF 30 (Rev.11/2016),
Amendment of Solicitation/ Modification of Contract. SF 30, prescribed in 53.243, may be used for modifying purchase orders, as specified in 13.307(c)(3).
The following forms are prescribed as stated in this section for use in simplified acquisition procedures, orders under existing contracts or agreements, and orders from required sources of supplies and services:
(c) SF 44 (Rev.10/83),
Purchase Order Invoice Voucher. SF 44 is prescribed for use in simplified acquisition procedures, as specified in 13.306.
Purpose of Par 53
Outlines forms required for procurement by government agencies
Contains requirements and information for the forms prescribed in the FAR
Requirements for use of forms prescribed in FAR
Subpart 53.2 - Specific location of each requirement
SF 1449
Solicitation/Contract/Order for Commercial Products and Commercial Services
SF 26
Award/Contract
SF 33
Solicitation, Offer &Award
SF 1442
Solicitation, Offer, Award (Construction, Alteration, or Repair)
SF 30
Amendment of Solicitation/Modification of Contract
Altering and Overprinting
No alteration for standard forms without exception approval
May be overprinted with names, addresses, and other uniform entries; overprinting does not require exception
approval
Contracting officers may request exceptions
to SFs for special construction and printing.
Bona fide agency means
an established commercial or selling agency, maintained by a contractor for the purpose of securing business, that neither exerts nor proposes to exert improper influence to solicit or obtain Government contracts
nor holds itself out as being able to obtain any Government contract or contracts through improper influence.
Bona fide employee means
a person, employed by a contractor and subject to the contractor’s supervision and control as to time, place, and manner of performance,
who neither exerts nor proposes to exert improper influence to solicit or obtain Government contracts
nor holds out as being able to obtain any Government contract or contracts through improper influence.
(b) The Government should minimize the opportunity for buying-in by seeking a price commitment covering as much of the entire program concerned as is practical by using-
(1) Multiyear contracting, with a requirement in the solicitation that a price be submitted only for the total multi-year quantity; or
(2) Priced options for additional quantities that, together with the firm contract quantity, equal the program requirements (see subpart 17.2).
The Kickbacks statute-
(a) Prohibits any person from-
(1) Providing, attempting to provide, or offering to provide any kickback;
(2) Soliciting, accepting, or attempting to accept any kickback; or
(3) Including, directly or indirectly, the amount of any kickback in the contract price charged by a subcontractor to a prime contractor or a higher tier subcontractor or in the contract price charged by a prime contractor to the United States.
(b) Imposes criminal penalties on any person who knowingly and willfully engages in the prohibited conduct addressed in paragraph (a) of this section.
(c) Provides for the recovery of civil penalties by the United States from any person who knowingly engages in such prohibited conduct and from any person whose employee, subcontractor,
or subcontractor employee provides, accepts, or charges a kickback.
Among the sources of personal conflicts of interest are-
(i) Financial interests of the covered employee, of close family members, or of other members of the
covered employee’s household;
(ii) Other employment or financial relationships (including seeking or negotiating for prospective employment or business); and
(iii) Gifts, including travel.
Contractors Offering o r Giving Gratuities to Federal Employees
If a violation occurs, the government may:
Terminate the contractor’s
right to
proceed;
Initiate debarment or suspension measures, and
Assess exemplary damages, fi the contract uses money appropriated to the Department of Defense.
Contracts may be voided or rescinded by the government if an ethical violation has occurred:
There has been a final conviction for bribery,
conflict of interest, disclosure, or selling of bid or proposal information; or
The agency head determines that bid or proposal information has been sold.
Aformer official of a federal agency may not accept compensation from a contractor that
has been awarded a contract within a period of 1 year after such former official:
Personally made for the federal agency a
decision to:
Award a contract, subcontract, modification of a contract or subcontract, or a task order or delivery order in excess of $10,000,000 to that contractor;
Establish overhead or other rates applicable to a contract or contracts for that contractor that are valued in excess of
$10,000,000;
Approve issuance of a contract payment or payments in
excess of $10,000,000 to that contractor; or
Pay or settle a claim in excess of $10,000,000 with that
contractor. in excess of $10,000,000 awarded to that contractor
Contractor Compensation o f FormerFederalOfficials
The 1-year prohibition begins on the date:
Of contract award, or the date of contractor selection if the official w a s not
serving in the position on the date of
award,
The official last served in one of the
positions described, or
The official made one of the decisions
previously described.
It is not prohibited to accept compensation from a division or affiliate that does not produce the same or similar products or services as the contractor that is responsible for the contract.
Part 24
Protection of Privacy and Freedom of Information
This part prescribes policies and procedures that apply requirements of the Privacy Act of1974 ( 5 U.S.C.552a) (the Act)
and OMB CircularNo.A- 130, December 12,1985, to Government contracts and cites the Freedom of Information Act ( 5 U.S.C.552, as amended).
How Does the Privacy Act Apply to Contractors?
The Privacy Act requires that when an agency contracts for the design,
development, or operation of a system of records on individuals on behalf of the agency to accomplish an agency function the agency must
apply the requirements of the Act to the contractor and its employees working on the contract.
The contracting officer shall ensure that the contract work statement specifically identifies the system of records on individuals and the
design, development, or operation work to be performed; and make available, in accordance with agency procedures, agency rules and
regulation implementing the Privacy Act.
The Freedom of Information Act (5 U.S.C. 552, as amended) (FOIA) provides that information is to be made available to the public either by
Publication in the Federal Register;
Providing an opportunity to read and copy records at convenient locations; or
Upon request, providing a copy of a reasonably described record.
The act, among other things, specifies how agencies shall make their records available upon public request, imposes strict time standards for agency responses, and exempts certain records from public disclosure.
Contracting officers may receive requests for records that may be exempted from mandatory public disclosure. The exemptions most often applicable are
those relating to classified information,
to trade secrets and
confidential commercial or financial information,
to interagency or intra-agency memoranda, or
to personal and medical information pertaining to an individual
Part 31
Contract Cost Principles and Procedures
This part contains cost principles and procedures for-
(a)Thepricingofcontracts, subcontracts, and modifications to contracts and subcontracts whenever cost analysis is performed (see 15.404-1(c)); and
(b)Thedetermination, negotiation, or allowance of costs when required by a contract clause.
Subpart 31.2 - Contracts with Commercial Organizations
31.201General.
31.201-1 Composition of total cost.
(a) The total cost, including standard costs properly adjusted for applicable variances, of a contract is the sum of the direct and indirect costs allocable to the contract, incurred or to be incurred, plus any allocable cost of money pursuant to 31.205-10, less any allocable credits. In ascertaining what constitutes a cost, any generally accepted method of determining or estimating costs that is equitable and is consistently applied may be used.
(b) While the total cost of a contract includes all costs properly allocable to the contract, the allowable costs to the Government are limited to those allocable costs which are allowablepursuanttopart 31andapplicableagencysupplements.
Contracts with Commercial Organizations
Total Cost
Allocable direct costs
Allocable indirect costs
Allocable cost of money
Minus any
applicable credits
Examples:
Allowable and Unallowable Costs
Taxes
Federal, state, and local taxes are generally allowable costs
Federal income tax is unallowable
Other exceptions listed at FAR 31.205-41 (b)
List of what is generally unallowble
entertainment
influence
crime or fraud
fines
alcohol
donations
advertising
promotional items
golden parachutes
severance
insurance own defects
fun not doing it
FAR Part 7
Acquisition Planning
Acquisition Plans
Planning for the Purchase of Supplies in Economic Quantities
Contractor Versus Government Performance
Equipment Lease or Purchase
Inherently Governmental Functions
7.105 Contents of written acquisition plans.
In preparing the plan, the planner must follow the applicable instructions in paragraphs (a) and (b) of this section, together with the agency’s implementing procedures.
Statement of need
Introduce the plan by a brief statement of need.
Summarize the technical and contractual history of the acquisition.
Discuss feasible acquisition alternatives, the impact of prior acquisitions, and any related in-house effort.
7.107-3 (a) Bundling may provide substantial benefits to the Government.
However, because of the potential impact on small business participation, before conducting an acquisition strategy that involves bundling, the agency shall make a written determination that the bundling is necessary and justified in accordance with 15 U.S.C. 644(e).
A bundled requirement is considered necessary and justified if the agency would obtain measurably substantial benefits as compared to meeting its agency’s requirements through separate smaller contracts or orders.
(2) The methods of acquisition to be compared in the analysis shall include, at a minimum—
(i)Purchase;
(ii)Short-term rental or lease;
(iii)Long-term rental or lease;
(iv)Interagency acquisition ;and
(v)Agency acquisition agreements, if applicable, with a State or local government.
Acquisition planning promotes and provides for:
Acquisition of commercial or nondevelopmental items to the maximum extent practicable
Full and open competition when required, or the
maximum amount of competition practicable
Selection of the appropriate contract type
Appropriate consideration of
the use of preexisting contracts before awarding
new contracts
Considerations When Determining Whethert oLeaseo rBuyEquipment
Estimated length of the period the equipment is to be used, and the extent of use within that period
Financial and operating advantages of alternative types and makes of equipment
Cumulative rental payments for the estimated period of use
Net purchase price
Transportation and installation costs
Maintenance and other service costs
Potential obsolescence of the equipment because of imminent technological improvements
Part 11 - Describing Agency Needs Selecting and Developing Requirements Documents
11.002 (a) In fulfilling requirements of 10 U.S.C. 3206(a), 10 U.S.C. 3453, 41 U.S.C.3306(a), and 41
U.S.C.3307, agencies shall-
- (1) Specify needs using market research in a manner designed to-
- (i) Promote full and open competition or maximum practicable competition when using simplified acquisition procedures, with due regard to the nature of the supplies or services to be acquired; and
- (ii) Only include restrictive provisions or conditions to the extent necessary to satisfy the needs of the agency or as authorized by law.
11.002 (a)(2) To the maximum extent practicable, ensure that acquisition officials-
(i) State requirements with respect to an acquisition of supplies or services in terms of-
* (A) Functions to be performed;
* (B) Performance required; or
* (C) Essential physical characteristics;
11.101 Order of precedence for requirements documents.
11.101 (a) Agencies may select from existing requirements documents, modify or combine existing requirements documents, or create new requirements documents to meet agency needs, consistent with the following order of precedence:
- *
*
(1) Documents mandated for use by law.
(2) Performance-oriented documents (e.g., a PWS or SOO).
(3) Detailed design-oriented documents.
(4) Standards, specifications and related publications issued by the Government outside the Defense or Federal series for the non-repetitive acquisition of items.
General: The time of delivery or performance is essential and must be clearly stated in solicitations. (FAR 11.401(a))
Factors to Consider:
Urgency of need, industry practices, market conditions, transportation, production time, capabilities of small businesses, administrative time, conditions precedent to contract performance, and government obligations. (FAR 11.402(a))
For construction, variation in estimated quantities of unit- priced items may be authorized. When the variation between
the estimated quantity and the actual quantity of a unit-priced
item is more than plus or minus
15 percent, an equitable adjustment in the contract price shall be made upon the
demand of either the government or the contractor.
The contractor may request an extension of time fi the quantity variation is such as to cause an increase in the time necessary for completion.
The contracting officer must receive
the request in writing within 10 days from the beginning of the period of delay.
Part 43 - Contract Modifications Forms
Use of Forms:
Standard Form 30 (SF 30) is used for amendments, change orders, unilateral contract modifications, administrative changes, supplemental agreements, and fund adjustments. (FAR 43.301(a)(1))
The Optional Form 336 (OF 336) or a blank sheet can be used as a continuation sheet for a contract modification. (FAR 43.301(b))
The Changes clause in a contract permits the
contracting officer to make
unilateral changes in designated areas within the contract scope.
Upon receipt of the change order, the contractor must comply with the change without stopping work.
Negotiation of equitable adjustments may result from change orders.
Competition Requirements
Full and Open Competition
Full and Open Competition After Exclusion of Sources
Other Than Full and Open Competition
Sealed Bidding and Competitive Proposals
Advocates for Competition
Part 6 - Competition Requirements
6.2 Full and Open Competition After Exclusion of Sources
Establishing or Maintaining Alternative Sources (FAR 6.202):
Reasons to Exclude Sources:
Increase or maintain competition and reduce costs
National defense interests
Essential engineering, research, or development capability
Reliable source availability
High demand history
Critical medical, safety, or emergency supplies
Documentation (FAR 6.202(b)):
o A determination and findings (D&F) is required, signed by the agency head or designee.
Circumstances Permitting Other Than Full and Open Competition (FAR 6.302):
OnlyOneResponsibleSource(FAR6.302-1)
Unusual and Compelling Urgency (FAR6.302-2)
Industrial Mobilization, Engineering, Developmental, or Research Capability; Expert Services (FAR 6.302-3)
International Agreement(FAR6.302-4)
Authorized or Required by Statute( FAR6.302-5)
National Security(FAR6.302-6)
Public Interest(FAR6.302-7)
6.5 Advocates for Competition
Duties and Responsibilities (FAR 6.502):
Promote Commercial Products and Services:
Promote full and open competition.
Challenge non-competitive requirements.
Annual Reports:
Identify opportunities for commercial products and services.
Report on actions taken to promote competition.
Recommend goals and plans for increasing competition.
System of Accountability: Recommend personal and organizational accountability for promoting competition.
When Is Full and Ope n Competition Not Required?
When the contract has been awarded using
the simplified acquisition procedures of Part 13.
When the contract has been awarded using contracting procedures (other than those addressed ni this part) that are expressly authorized by statute.
In contract modifications, including the exercise of priced options that were evaluated as part of the initial
competition, that are within the scope and under the terms of an existing contract.
In orders placed under requirements contracts or definite-quantity contracts.
In orders placed under indefinite-quantity contracts that were entered into pursuant to this part when:
* The contract was awarded under Subpart 6.1 or 6.2 and all responsible sources were realistically permitted to compete for the requirements contained in the order, or
* The contract was awarded under Subpart 6.3 and the
required justification and approval adequately covers the requirements contained in the order.
In orders placed under indefinite-quantity contracts that were entered into pursuant to this part when:
* The contract was awarded under Subpart 6.1 or 6.2 and all responsible sources were realistically permitted to compete for the requirements contained in the order, or
* The contract was awarded under Subpart 6.3 and the
required justification and approval adequately covers the requirements contained in the order.
If the order was placed against task order and delivery order contracts entered into pursuant to subpart 16.5
Contract Set-asides for Certain Classes of Business Concerns
Contracting officers may set aside contracts for these classes of business concerns. No separate justification or D&F is required
To fulfill the statutory requirements relating to small business concerns, contracting officers may set aside solicitations to allow only such business concerns to compete.
To fulfill the statutory requirements relating to section 8(a) of the Small Business Act, contracting officers may limit competition to eligible 8a contractors
To fulfill the statutory requirements relating to the HUBZone Act of 1997, contracting officers in participating agencies may set aside solicitations to allow only qualified HUBZone small business concerns to
To fulfill the statutory requirements relating to the Veterans Benefits Act of 2003, contracting officers may set aside solicitations to allow only service-disabled veteran-owned small businesses to compete.
To fulfill the statutory requirements relating to 15 U.S.C. 637(m), COs may set aside solicitations for only economically disadvantaged women-owned small business or women-owned small business concerns eligible under the WOSB program.
To fulfill the statutory requirements relating to the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, COs may set aside solicitations to allow only offerors residing or doing business primarily in the area affected by a major disaster or emergency to compete.
Circumstances Permitting Other Than Full and Open Competition
There are seven exceptions to full and open competition:
USC 41
Only one responsiible source
Unusual and compelling urgency
Industrial mobilization
International agreement
Source authorized or required by statute
National security
Public interest
The justification for other than full and open competition
exceeding $750,000 shall be approved in writing as follows:
Contracts exceeding $750,000 but less than $15 million are approved by the competition advocate.
Refer to the FAR for the thresholds approving authority for contracts exceeding $15 million
Contracts exceeding this amount must be approved by the senior procurement executive of the agency.
The agency shall make publicly available the justifications required by this part.
ESTABLISHING OR MAINTAINING ALTERNATIVE SOURCES: Agencies may exclude sources if the agency head determines that to do so
would increase or maintain competition and
likely result in reduced overall costs;
would be in the interest of national defense;
would ensure the continuous availability of a reliable source of supplies or services;
would satisfy projected needs based on a history of high demand;
or satisfy a critical need for medical, safety, or emergency supplies.
Every proposed contract action that falls under this provision must be supported by a D&F signed by the head of the agency or designee and not made on a class basis.
Sealed bids are appropriate
when time permits;
award will be made on the basis of price and other price-related factors,
no discussions are required,
and when there is reasonable expectation of receiving more than one bid
The Reasons for Acquisition Planning
Acquisition planning promotes and provides for
Acquisition of commercial or nondevelopmental items to the maximum extent practicable
Full and open competition when required, or the
maximum amount of competition practicable
Selection of the appropriate contract type
Appropriate consideration of
the use of preexisting contracts before awarding
new contracts
Inherently governmental functions do not include functions
that are primarily ministerial and internal in
nature, such as
security, mail, cafeteria operations, housekeeping and maintenance, or other routine services.
Inherently governmental functions do not normally
include
gathering information for or providing advice, opinions, recommendations, or ideas to government officials.
Agencies shall perform acquisition planning and conduct market research for all acquisitions in order to promote and provide for:
- Acquisition of commercial items or, to the extent that commercial items suitable to meet the agency’s needs are not available, nondevelopmental items, to the maximum extent practicable (10 U.S.C. 2377 and 41 U.S.C.
3307. - Full and open competition (see part 6) or, when full and open competition is not required in accordance with part 6, to obtain competition to the maximum extent practicable, with due regard to the nature of the supplies or services to be acquired (10 U.S.C. 2305(a)(1)(A) and 41 U.S.C.
3306(a)(1)); - Selection of appropriate contract type in accordance with part 16; and
- Appropriate consideration of the use of preexisting contracts, including interagency andintra-agency contracts, to fulfill the requirement, before awarding new contracts.
Written acquisition plans generally will have two sections:
a. Acquisition Background and Objectives (FAR 7.105(a)): This portion of the plan provides information on the nature, context, and background of the
- Statement of need: A brief description of the requirement.
- Applicable conditions: Discuss any external constraints, in addition to requirements for computability with existing systems.
- Cost: This should address cost goals for the acquisition and may include the following types of analysis: life-cycle cost, design-to-cost, or should-cost.
- Capability or performance: This should address the required capabilities or performance characteristics and how they relate to the Statement of Need.
- Delivery or performance-period
requirements: This should discuss delivery requirements, including the rationale forany urgency that may result in a noncompetitive acquisition. - Trade-offs: Discuss any potential cost, capability performance, and schedule goal trade-offs.
- Risks: Discuss any cost, technical, and schedule risks, along with planned efforts to reduce those risks.
- Acquisition streamlining: Discuss the use of presolicitation industry outreach efforts and tailoring of requirements vcxz
Written acquisition plans generally will have two sections:
b. Plan of Action (FAR 7.105(b)): This portion of the plan addresses the proposed approach for conducting the acquisition. The major elements to address include:
- Sources: Discuss potential sources for the need, including consideration of mandatory sources of supply, small business concerns, and interagency contracting vehicles.
- Competition: Describe how competition will be sought, promoted, and sustained throughout the course of the acquisition or, if the acquisition will be noncompetitive, discuss which authority from FAR 6.302 applies and why.
- Contract type selection: Explain the selection of contract type, including any additional documentation required for use of other than a firm-fixed-price contract.
- Source-selection procedures: Discuss the source-selection procedures for the acquisition, including the timing for submission and evaluation of proposals, and the relationship of evaluation factors to the attainment of the acquisition objectives.
- Acquisition considerations:
For each contract contemplated, discuss use of multiyear contracting, options, or other special contracting methods (see part 17);any special clauses, special solicitation provisions, or FAR deviations required (see subpart 1.4); whether sealed bidding or negotiation will be used and why; whether equipment will be acquired by lease or purchase (see subpart 7.4) and why; and any other contracting considerations.
Provide rationale if a performance-based acquisition will not be used or if a performance-based acquisition for services is contemplated on other than a firm-fixed-price basis. - Budgeting and funding: Include budget estimates, explain how they were derived, and discuss the schedule for obtaining adequate funds at the time they are required (see subpart 32.7).
- Product or service descriptions: Explain the choice of product or service description types (including performance-based acquisition descriptions) to be used in the acquisition.
- Priorities, allocations, and allotments:
When urgency of the requirement dictates a particularly short delivery or performance schedule, certain priorities may apply. If so, specify the method for obtaining and using priorities, allocations, and allotments, and the reasons for them (see subpart 11.6). - Contractor versus government performance:
Address the consideration given to OMB
Circular No. A-76 (see subpart 7.3). - Inherently
governmental functions:
Address the consideration given to subpart 7.5. - Management information requirements:
Discuss, as appropriate, what management system will be used by the government to monitor the contractor’s effort. If an Earned Value Management System (EVMS) is to be used, discuss the methodology the government will employ to analyze and use the earnedvalue data to assess and monitor contract performance. In addition, discuss how the offeror’s/contractor’s EVMS will be verified for compliance with the American National Standards Institute/ Electronics Industries Alliance (ANSI/EIA) Standard-748, “Earned Value Management Systems,” and the timing and conduct of integrated baseline reviews (whether prior to or post-award). (See 34.202.) - Make or buy: Discuss any consideration given to make-or-buy programs (see subpart 15.407-2).
- Test and evaluation: To the extent applicable, describe the test program of the contractor and the government.
Describe the test program for each major phase of a major system acquisition.
If concurrency is planned, discuss the extent of testing to be accomplished before production release. - Logistics
considerations: Logistics
consideration should discuss
the
assumptions made in determining contractor or agency support, both initially and over the life of the acquisition (see subpart 7.3); the reliability, maintainability, and quality assurance requirements, including any planned use of warranties (see part 46); the requirements for contractor data (including repurchase data) and data rights, their estimated cost, and the use to be made of the data (see part 27); and standardization concepts, including the necessity to designate, in accordance with agency procedures, technical equipment as “standard” so that future purchases of the equipment can be made from the same manufacturing source. - Government-furnished
property:
Indicate any government property to be furnished to contractors, and discuss
any associated considerations, such as its availability or the schedule for its acquisition (see 45.102). - Government-furnished information:
Discuss any government information (such as manuals, drawings, and test data) to be provided to prospective offerors and contractors.
Indicate which information that requires additional controls to monitor access and distribution (e.g., technical specifications, maps, building designs, schedules, etc.), as determined by the agency, is to be posted via the enhanced controls of the GPE, refer to FAR 7.105(b)(16) for the current website. (see
5.102(a)). - Environmental and energy conservation objectives:
Discuss all applicable
environmental and energy conservation objectives
associated with the
acquisition (see
part 23),
the
applicability of an environmental assessment or environmental impact statement (see 40 CFR 1502), the proposed resolution of environmental issues, and any environmentally related requirements to be included in solicitations and contracts (see 11.002 and 11.303). - Security considerations: For acquisitions dealing with classified matters, discuss how adequate security will be established, maintained, and monitored (see subpart 4.4). For information technology acquisitions, discuss how agency information security requirements will be met.
For acquisitions requiring routine contractor physical access to a federally controlled facility and/or access to a federally controlled information system, discuss how agency requirements for personal identity verification of contractors will be met (see subpart
4.13). For acquisitions that may require federal contract information to reside in or transit through contractor information systems, discuss how that information will be safeguarded (see subpart 4.19). - Contract administration: Describe how the contract will be administered.
In contracts for services, include how inspection and acceptance corresponding to the work statement’s performance criteria will be enforced. - Other considerations.
Discuss,
as
applicable:
i. Standardization concept;
ii. The industrial readiness program;
iii. The Defense Production Act;
iv. The Occupational Safety and Health
Act;
v. Support Antiterrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act) (see subpart 50.2);
vi. Foreign sales implications;
vii. Special requirements for contracts to be performed in a designated operational area or supporting a diplomatic or consular mission; and
vili. Any other matters germane to the
plan not covered elsewhere. - Milestones for the acquisition cycle:
Address the major milestones outlined from approval of the acquisition plan through contract award. Add any additional steps as appropriate. - Identification of
participants in
acquisition
plan
preparation: List
the individuals who participated in preparing the acquisition plan, giving contact information for each.
The FAR also outlines the minimum factors that agencies must analyze to determine the most
advantageous acquisition method.
At a minimum pending price adjustments to Federal Supply Schedule these must include
length of use, financial and operating advantages, cumulative rent, net purchase price, transportation, maintenance and repair,
and the potential for the equipment to become obsolete due to technological improvement.
The subpart also outlines additional factors that agencies must consider depending on the details of the equipment and planned usage, including availability, flexibilities around cancelling, extending, or swapping, warranties, requirements, and long-term utility considerations such as potential for future use by other agencies, trade-in or salvage, value and imputed interest.
When requested by an agency, the General Services Administration (GSA) will assist in rent, lease, or
purchase decisions by providing information such as
pending price adjustments to Federal Supply Schedule (FSS) contracts, recent or imminent technological developments, new techniques, and industry or market trends.
11.101 Order of precedence for requirements documents.
11.101 (a) Agencies may select from existing requirements documents, modify or combine existing requirements documents, or create new requirements documents to meet agency needs, consistent with the following order of precedence:
- *
*
(1) Documents mandated for use by law.
(2) Performance-oriented documents (e.g., a PWS or SOO).
(3) Detailed design-oriented documents.
(4) Standards, specifications and related publications issued by the Government outside the Defense or Federal series for the non-repetitive acquisition of items.
For supplies or services, relevant factors when establishing a contract delivery or performance schedule include:
Urgency of need
Industry practices
Market conditions
Transportation time
Production time
Capabilities of small business concerns
Administrative time to obtain and evaluate offers and award contracts
Time for contractors to comply with conditions of contract performance
Time for the government to perform its obligations
For construction, variation in estimated quantities of unit- priced items may be authorized. When the variation between
the estimated quantity and the actual quantity of a unit-priced
item is more than plus or minus
15 percent, an equitable adjustment in the contract price shall be made upon the
demand of either the government or the contractor.
The contractor may request an extension of time fi the quantity variation is such as to cause an increase in the time necessary for completion.
The contracting officer must receive
the request in writing within 10 days from the beginning of the period of delay.
Overview of Sealed Bidding
Elements of Sealed Bidding (FAR 14.101)
Preparation of invitations for bids.
Publicizing the invitation.
Submission of bids.
Evaluation of bids without discussions.
Contract award to the lowest responsive and responsible bidder.
Part 14 - Sealed Bidding
14.3 Submission of Bids
Bid Submission Rules
Responsiveness of Bids (FAR 14.301)
o Bids must comply in all material respects with the invitation for bids.
o Non-compliance results in rejection.
Submission Guidelines (FAR 14.302)
o Bids must be submitted by the exact time specified. o Various transmission methods allowed if specified.
Modifications and Withdrawals
Modification and Withdrawal Conditions (FAR 14.303)
o Bids can be modified or withdrawn before the opening time.
o Specific protocols for handling facsimile and electronic bids (FAR 14.304).
Late Bids (FAR 14.304)
o Generally not considered unless specific criteria are met.
Preparing the Invitation for Bids
Section A Solicitation/contract form
Section B Supplies or services and prices/costs
Section C Description / specifications / statement of work
Section D Packaging and marking
Section E Inspection and acceptance
Section F Deliveries or performance
Section G Contract administration data
Section H Special contract requirements
Preparing the Invitation for Bids
The contracting officer has flexibility in preparation and organization of the simplified contract format.
To the maximum practical extent, it should contain:
Standard Form 1447, Solicitation/Contract * Contract schedule
Clauses
List of documents and attachments
Representations and instructions
Part 10 - Market Research
FAR Part 10 - Market Research: Policy
10.001Policy
Agencies must:
- Identify legitimate needs and evaluate trade-offs to acquire items that meet those needs (FAR
10.001(a)(1)).
2.Conduct market research appropriate to the circumstances before developing newr equirements, soliciting offers, and awarding task or delivery orders under ID/IQ contracts (FAR 10.001(a)(2)).
3.Use commercially available market research methods to identify the capabilities of small businesses and new entrants (FAR 10.001(a)(2)(vi)).
Conduct market research to determine if needs can be met by:
Commercial products/services (FAR 10.002(b)(1)(i)(A)).
Modified commercial products/services (FAR 10.002(b)(1)(i)(B)).
Products/services used exclusively for governmental purposes (FAR 10.002(b)(1)(i)(C)).
Techniques for market research include:
Consulting knowledgeable individuals (FAR 10.002(b)(2)(i)).
Reviewing recent market research (FAR 10.002(b)(2)(ii)).
Publishing formal requests for information (FAR 10.002(b)(2)(iii)).
Querying Government and commercial databases (FAR 10.002(b)(2)(iv)). o Participating in online communication (FAR 10.002(b)(2)(v)).
Reviewing catalogs and product literature (FAR 10.002(b)(2)(vii)).
Holding presolicitation conferences (FAR 10.002(b)(2)(viii)).
Reevaluate needs if commercial products/services are not available (FAR 10.002(c)).
Use part 12 policies if needs can be met by commercial products/services (FAR 10.002(d)(1)).
Document market research results appropriately (FAR 10.002(e)).
The FAR requires an agency to conduct market research: Before
Developing new requirements documents for an acquisition by that agency;
Soliciting offers for acquisitions with an estimated value ni excess of the SAT
Soliciting offers for acquisitions with an estimated value less than SAT when adequate information is not available and the circumstances justify its cost
Soliciting offers that could lead to consolidation or bundling
Awarding a task or delivery order under an IDIQ contract for other than a commercial product or commercial service ni excess of the SAT
On an ongoing basis, take advantage of commercialy available market research methods in order to effectively identify the capabilities of small businesses and new entrants into Federal contracting
Market research conducted within 18 months before the award of any task or delivery order may be used if the information is still current, accurate, and relevant.
Techniques for conducting market research include the following:
Contacting knowledgeable individuals in government and industry regarding market capabilities to meet requirements;
Reviewing the results of recent market research undertaken to meet similar or identical requirements;
Publishing formal requests for information in appropriate technical, scientific, or business publications;
Querying government databases that provide information relevant to agency acquisitions;
“Communicating online with industry, acquisition personnel, and customers;
Obtaining source lists of similar items from other contracting activities or agencies;
Reviewing catalogs and other generally available product literature published by manufacturers, distributors, and dealers, or available online; and
Conducting interchange meetings or holding presolicitation conferences.
Similar obligations exist for prime contractors. Under prime contracts greater than $5.5 million for other than commercial items, FAR part 52.210-1,
“Market Research,” requires that before awarding any subcontract greater than the simplified acquisition threshold for other than commercial items, the contractor is required to determine the following:
- If commercial items or nondevelopmental items can meet the agency’s requirements, could be modified to meet the agency’s requirements, or could meet the agency’s requirements if such requirements were modified to a reasonable extent; and
- The extent to which commercial or nondevelopmental items could be incorporated at the component level.
Exchanges with Industry (FAR 15.201)
Encourages exchanges of information from the earliest identification of a requirement through receipt of proposals (FAR 15.201(a)).
Purpose is to improve understanding of government requirements and industry capabilities to enhance quality and efficiency in procurement (FAR 15.201(b)).
Techniques include industry conferences, market research, and presolicitation notices (FAR 15.201(c)).
Best value
The expected outcome of an acquisition that, in the government’s estimation, provides the greatest overall benefit in response to the requirement
Lowest price
technically acceptable
Best Value Continuum
Tradeoff analysis
Uniform Contract Format
Part I: The Schedule
A
Solicitation/contract form
Title
B
Supplies or services and prices/costs
C Description/specifications/statement of work
D
Packaging and marking
E
Inspection and acceptance
F
Deliveries or performance
G
Contract administration data
H
Special contract requirements
Uniform Contract Format
Part II: Contract Clauses
I
Contract Clauses
Uniform Contract Format
Part III: List of Documents, Exhibits, and Other Attachments
J
List of attachments
Uniform Contract Format
Part IV: Representation and Instructions
K
Representations, certifications, and other statements of offerors or respondents
L
Instructions, conditions, and notices to offerors or respondents
M
Evaluation factors for award
Uniform Contract Format
Part I: The Schedule
Section A
Title Solicitation/contract form
Issuing agency’s name and address
Solicitation number
Date of issuance
Closing date and time
Number of pages
Purchase authority
Brief description of item
or service
Requirement for offeror to provide information
Offer expiration date
Uniform Contract Format
Part I: The Schedule
Section B
Title Supplies or services and prices/costs
Includes a brief description of the supplies or services: * Item number
* National stock number/part number fi applicable * Nouns
* Nomenclature
* Quantities
This includes incidental deliverables such as
manuals and reports
Uniform Contract Format
Part I: The Schedule
Section A
Title Solicitation/contract form
Section B
Title Supplies or services and prices/costs
Section C
Title Description/specifications/statement of work
Section D
Title Packaging and marking
Section E
Title Inspection and acceptance
Requirements are described in FAR Part 46, Quality Assurance
Uniform Contract Format
Part I: The Schedule
Section A
Title Solicitation/contract form
Section B
Title Supplies or services and prices/costs
Section C
Title Description/specifications/statement of work
Section D
Title Packaging and marking
Section E
Title Inspection and acceptance
Section F
Title Deliveries or performance
Requirements are described in FAR 11.4, Delivery or Performance Schedules
Uniform Contract Format
Part I: The Schedule
Section A
Title Solicitation/contract form
Section B
Title Supplies or services and prices/costs
Section C
Title Description/specifications/statement of work
Section D
Title Packaging and marking
Section E
Title Inspection and acceptance
Section F
Title Deliveries or performance
Section G
Title Contract administration data
Section H
Title Special contract requirements
Uniform Contract Format
Parts Il and Il
Section I
Title Contract clauses
Part III: List of documents, exhibits, and other attachments
Section J
Title Contract clauses
Uniform Contract Format
Parts IV: Representation and Instructions
Section K
Title Evaluation factors for award
Upon award, contracting officers shall not physically include Part IV in the resulting contract, but shall retain it in the contract file.
Uniform Contract Format
Parts IV: Representation and Instructions
Section K
Title Representations, certifications, and other statements of offerors or respondents
Section L
Title Instructions, conditions, and notices to offerors or respondents
Includes solicitation provisions and other information and instructions not required elsewhere for preparing responses to RFPs or RFIs
May contain specific format instructions for proposals or information
May specify further organization of parts, such as:
* Administrative
* Management * Technical
* Past performance
* Certified cost or pricing data or data other than cost or pricing data
Prohibition on obtaining certified cost or pricing data
Truthful Cost or Pricing Data
41 U.S. Code Chapter 35
Formerly the Truth in Negotiations Act (TINA)
Requires offers to submit certified cost or pricing data if a procurement exceeds a certain threshold and none of the exceptions to certified cost or pricing data requirements applies
Techniques used for proposal analysis include
Price analysis
Cost analysis
Cost realism analysis
Technical analysis
The contractor shall submit certified cost or pricing data to the
government for subcontracts that are the lower of either:
$15 million or more; or
More than the pertinent certified cost or pricing data threshold and more than 10% of the prime’s proposed price
Profit does not necessarily represent net income to the contractor.
Structured approaches for determining profit
provide a discipline for ensuring that all relevant factors are considered.
Agencies making noncompetitive contract awards over $100,000 totaling $50 million per year shall use a structured approach.
Agencies may use another agency’s
structured approach.
The following limitations on profit are imposed by 10 U.S.C. 2306(d) and 41 U.S.C. 3905:
For experimental, developmental, or research work performed under a cost- plus-fixed-fee contract,
the fee shall not exceed 15 percent of the contract’s estimated cost, excluding fee.
The following limitations on profit are imposed by 10 U.S.C. 2306(d) and 41 U.S.C. 3905:
For architect-engineer services for public works or utilities, the contract price or the
estimated cost and fee for production and
delivery of designs, plans, drawings, and specifications shall not
exceed 6 percent of the estimated cost of construction of the
public work or utility, excluding fees
The following limitations on profit are imposed by 10 U.S.C. 2306(d) and 41 U.S.C. 3905:
For other cost-plus-fixed-fee contracts, the fee
the fee shall not exceed 10 percent of the contract’s estimated cost, excluding fe.
Preaward Debriefs: “Shalls”
Preaward debriefs must include:
The agency’s evaluation of significant elements in the offeror’s proposal,
A summary of the rationale for eliminating the offeror from the
competition, and
Reasonable responses to relevant questions about whether
source selection procedures contained in the solicitation,
applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from competition.
Preaward Debriefs: “Shall Nots”
Preaward debriefs shall not disclose
The number of offerors,
The identity of the offerors,
The content of other offeror’s proposals,
The ranking of the offerors,
The evaluation of other offerors,
Point-by-point comparisons of the proposal with those of other offerors,
Trade secrets, or privileged or confidential manufacturing processes,
Commercial or financial information that is privileged or confidential, or
The names of the individuals providing reference information about an offeror’s past performance.
Postaward Debriefs: “Shalls”
Postaward debriefs must include:
The government’s evaluation of the significant weaknesses or deficiencies in
the offeror’s proposal, fi applicable,
The overall evaluated cost or price and technical rating, fi applicable, of * The successful offeror and
* This offeror, and
* Past performance information on this offeror,
For commercial items, the make and model of the item to be delivered,
The overall ranking of all offerors, when any ranking was developed by the agency during the source selection,
A summary of the rationale for award, and
Reasonable responses to relevant questions about whether source selection procedures in the solicitation, applicable regulations, and other applicable authorities were followed
Postaward Debriefs: “Shall Nots”
Postaward debriefs shall not disclose:
Point-by-point comparisons of the proposal with those of other offerors,
Trade secrets, or privileged or confidential manufacturing processes,
Commercial or financial information that is privileged or
confidential (including cost breakdowns, profit, indirect cost rates, or similar information), or
The names of the individuals providing reference information about an offeror’s
past performance.
RFIs may be used
when the government does not presently intend to award a contract,
but wants to obtain price, delivery, other market information, or capabilities for planning purposes.
Responses to these notices are not offers and cannot be accepted by the government to form a binding contract.
There is no required format for RFI’s
Exceptions to the cost and pricing data requirement include when
when prices are based on adequate price competition,
when prices are set by law or regulation,
or for items that meet the commercial item definition in 2.101.
In these instances, the contracting officer shall not require submission of cost or pricing data to support any action (contracts, subcontracts, or modifications), but may require information other than cost or pricing data to support a determination of price reasonableness or cost realism.
The head of the contracting activity (HCA) may, without power of delegation, waive the requirement for submission of certified cost or pricing data in exceptional cases. The authorization for the waiver and the supporting rationale shall be in writing.
The HCA may consider waiving the requirement if the price can be determined to be fair and reasonable without submission of certified cost or pricing data.
Consequently, award of any lower-tier subcontract expected to exceed the certified cost or pricing data threshold requires the submission of cost or pricing data unless an exception otherwise applies,
or the wavier specifically includes that subcontract and the rationale supporting the waiver for that subcontract.
SUBCONTRACT PRICING CONSIDERATIONS
(FAR 15.404-3)
The contracting officer is responsible for the
determination of a fair and reasonable price for the prime contract, including subcontracting costs.
The contracting officer should consider whether a contractor or subcontractor has an approved purchasing system, has performed cost or price analysis of proposed subcontractor prices, or has negotiated the subcontract prices before negotiation of the prime contract, in determining the reasonableness of the prime contract price.
This does not relieve the contracting officer from the responsibility to analyze the contractor’s submission, including the subcontractor’s cost or pricing data.
The prime contractor or subcontractor shall conduct appropriate cost or price analyses to establish the reasonableness of proposed subcontract prices and, if required, submit subcontractor certified cost or pricing data to the government as part of its own certified cost or pricing data.
Any contractor or subcontractor that is required to submit certified cost or pricing data also shall obtain and analyze certified cost or pricing data
The contracting officer shall not negotiate a price or fee that exceeds the following statutory limitations:
For experimental, developmental, or research work performed under a cost-plus-fixed-fee contract, the fee shall not exceed 15 percent of the contract’s estimated cost, excluding fee.
For architect-engineer services for public works or utilities, the contract price or the estimated cost and fee for production and delivery of designs, plans, drawings, and specifications shall not exceed 6 percent of the estimated cost of construction of the public work or utility, excluding fees.
For other cost-plus-fixed-fee contracts, the fee shall not exceed 10 percent of the contract’s estimated cost, excluding fee.
Post-award notice must be provided to unsuccessful offerors within three days of contract award. The notice shall list the following:
- The number of offerors solicited;
- The number of proposals received;
- The name and address of each offeror receiving an award;
- The items, quantities, and any stated unit prices of each award, or if impractical, the total contract price. However, the items, quantities, and any stated unit prices of each award shall be made publicly available upon request; and
- In general terms, the reason(s) the offeror’s proposal was not accepted, unless the price information readily reveals the reason.
In no event shall an offeror’s cost breakdown,profit, overhead rates, trade secrets, manufacturing processes and techniques, or other confidential business information be disclosed to any other offeror.
The contracting officer shall award a contract to the successful offeror by furnishing the executed contract or other notice of the award to that offeror.
Debriefings may be done verbally, in writing, or by any other method acceptable to the contracting officer.
PRE-AWARD DEBRIEFINGS (FAR 15.505)
- An offeror may request a pre-award debriefing by submitting a written request for debriefing to the contracting officer within three days after receipt of a notice of exclusion from the competition.
- Debriefings must include the agency’s evaluation of significant elements in the offeror’s proposal; a summary of the rationale for eliminating the offeror from the competition; and reasonable responses to relevant questions about whethersource selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition.
- Debriefings shall not disclose the number of offerors; the identity of other offerors; the content of other offerors’ proposals; the ranking of other offerors; the evaluation of other offerors; point-by-point comparisons of this offeror’s proposal with those of other offerors; trade secrets; privileged or confidential manufacturing processes and techniques; commercial or financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; and the names of individuals providing reference information about an offeror’s past performance.
POST-AWARD DEBRIEFINGS (FAR 15.506)
- An offeror may request a post-award debriefing by submitting a written request for debriefing to the contracting officer within three days after receipt of a notice of contract award. To the maximum extent practicable, the debriefing should occur within five days after receipt of the written request.
- Debriefing
must include the government’s
evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable; the overall evaluated cost or price and technical rating, if applicable, of the successful offeror and this offeror, and past performance information on this offeror; the overall ranking of all offerors, when any ranking was developed by the agency during the source selection; a summary of the rationale for award; for commercial items, the make and model of the item to be delivered by the successful offeror; and reasonable responses to relevant questions about whether source selection procedures containedin the solicitation, applicable regulations, and other applicable authorities were followed. - Debriefings shall not include point-by-point comparisons of this offeror’s proposal with those of other offerors; trade secrets; privileged or confidential manufacturing processes and techniques; commercial or financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; and the names of individuals providing reference information about an offeror’s past performance.
Introduction to FAR Subpart 46.1 - Quality Assurance
General Principles
Definitions (FAR 46.101)
Acceptance: The Government’s assumption of ownership of supplies or approval of services (FAR 46.101).
Conditional Acceptance: Acceptance of non-conforming supplies/services requiring correction (FAR 46.101).
Contract Quality Requirements: Technical requirements and clauses related to quality assurance (FAR 46.101).
Counterfeit Item: Unauthorized reproduction misrepresented as authentic (FAR 46.101).
Critical and Major Nonconformance: Definitions related to the severity of noncompliance and its potential
impact (FAR 46.101).
Part 46 - Quality Assurance
Overview of Contract Quality Requirements
Types of Contract Quality Requirements (FAR 46.202)
Commercial Products and Services: Rely on contractors’ existing quality systems, substituting
Government inspection unless market practices dictate otherwise (FAR 46.202-1).
Government Reliance on Contractor Inspection: Standard for acquisitions at or below the simplified acquisition threshold, unless specific Government testing is required (FAR 46.202-2).
Standard Inspection Requirements: Contractors must maintain an acceptable inspection system, with Government rights to in-process inspections (FAR 46.202-3).
Part 46 - Quality Assurance
Advanced Quality Requirements and Criteria for Use
Criteria for Use of Contract Quality Requirements (FAR 46.203)
Technical Description: Items classified either as commercial or military-federal based on
descriptions and standards (FAR 46.203).
Complexity: Differentiates between complex items requiring detailed control and noncomplex items where simple tests are sufficient (FAR 46.203).
Criticality: Distinguishes between critical applications (where failure could cause severe consequences) and noncritical applications (FAR 46.203).
Part 46 - Quality Assurance
46.4 - Specialized Quality Assurance Procedures
- Acquisitions Below the Simplified Acquisition Threshold (46.404):
Quality assurance depends on the criticality and potential losses. Inspection is generally at the
destination and limited to basic checks unless special situations dictate otherwise (FAR 46.404).
Part 46 - Quality Assurance
46.5 - Specific Acceptance Conditions
- Certificate of Conformance (46.504):
A certificate of conformance may be used instead of source inspection if it serves the Government’s interest, considering the contractor’s reliability and the minor impact of potential defects (FAR 46.504).
Who is Responsible
Contract Administration Office
Develop QA procedures
Verify compliance of supplies or services
Implement any instructions
Report defects
Recommend any
needed changes
Contract Quality Requirements
Commercial items: Government shall rely on contractors existing quality assurance systems
At or below the SAT: Government shall rely on the contractor to accomplish all inspection and testing
Above the SAT: Standard inspection requirements
Complex or critical item: Higher-level contract quality requirements or product/process specific quality standards
Criteria for use of contract quality requirements
Technical description
* The classification of a contract item as either commercial or
military-federal
Complexity
* Contract items having characteristics which must be
measured, tested, or controlled precisely
Criticality
* Failure of contract items could injure personnel or jeopardize a vital mission
Latent and Patent Defects
Latent defect
* Adefect which existed at the time of acceptance and could not have been discovered by a reasonable inspection
Patent defect
* Any defect which existed at the time of acceptance and is not a latent defect
Part 47 – Transportation
General Policies (FAR 47.101)
Contract Administration Office (CAO) Responsibilities
Efficiency and Economy: Ensure contractor instructions result in efficient and economical use of transportation services and equipment.
Assistance: Transportation personnel provide management expertise to CAO.
Regulations: Detailed responsibilities in Federal Management Regulation (41 CFR parts 102-117 and 102-118) and DoD 4500.9-R (Defense Transportation Regulation) (FAR 47.101(b)).
Part 47 – Transportation
Additional Policies and Regulations (FAR 47.101 - 47.105)
Preferred Transportation Methods
Commercial Carriers: Preferred method for transporting supplies.
Government-Owned Vehicles: Used if:
1. Available and not fully utilized.
2. Results in substantial economies.
3. Complies with statutes, policies, and regulations (FAR 47.101(d)).
Part 47 - Transportation
Contract Types and Preparation (FAR 47.204 - 47.208)
Contracts and Basic Ordering Agreements (BOAs)
Execution: Agencies can contract for transportation services and execute BOAs unless agency
regulations state otherwise.
Economical and Efficient: Generally more efficient to use term contracts and BOAs executed by experienced agencies like DoD and GSA (FAR 47.205).
Bill of lading
A transportation document, used as a receipt of goods, as documentary evidence of title, for clearing customs, and generally used as a contract of carriage
A government bil of lading (GBL) is an accountable transportation document, authorized and prepared by a government official.
A commercial bill of lading (CBL) si not an accountable transportation document.
Part 48 - Value Engineering
VECP Processing and Sharing Arrangements
Sharing Arrangements (FAR 48.104)
Determining Sharing Period (FAR 48.104-1):
o Sharing period starts with the first unit incorporating the VECP and lasts 36-60 months or until the last scheduled delivery date.
Sharing Acquisition Savings (FAR 48.104-2):
o Different sharing rates based on contract type and VE clause used.
o Contractor entitled to a percentage of net acquisition savings.
Sharing Collateral Savings (FAR 48.104-3):
o Government shares collateral savings with contractors.
o Contractor’s share ranges from 20-100% of estimated annual savings, not exceeding the contract’s firm-fixed-price or $100,000
Agencies shall
Establish guidelines for processing VECP’s,
Process VECP’s objectively and expeditiously
Provide contractors a fair share of the savings on acceptedVECP’s
45 days to process, evaluate, and accept or reject the VECP
Sharing periods and sharing rates are on a case-by-case basis. In establishing a sharing period and sharing rate, the contracting officer must consider the following, as appropriate, and must insert the supporting rationale in the contract
- extent of the change.
- complexity of the change.
- development risk (contractor’s financial risk).
- development cost.
- performance and/or reliability impact.
- production period remaining at the time of VECP acceptance.
- number of units affected.
Value engineering incentive payments do not constitute profit or fee within the limitations imposed by law. (FAR
48.102 (e)).
FAR Part 5 - Publicizing Contract Actions:
Ensuring Transparency
Key Objectives
Increase competition (FAR 5.002(a)).
Broaden industry participation (FAR 5.002(b)).
Assist small businesses in obtaining contracts (FAR 5.002(c)).
Governmentwide Point of Entry (GPE):
Centralizing Information
Role of GPE: Central platform for publishing notices of contract actions (FAR 5.003).
Benefits:
* Centralized access to contracting information (FAR 5.101(a)).
* Enhances transparency and accessibility (FAR 5.102).
Requirement: All notices must be transmitted to the GPE to ensure consistent and broad dissemination of information (FAR 5.003).
Subpart 5.3 - Synopses of Contract Awards:
Promoting Transparency Post-Award
Purpose: Requires publicizing contract awards to ensure transparency (FAR 5.301).
Criteria for Synopses:
* Awards exceeding $25,000 (FAR 5.301(a)(1)).
* Task or delivery orders exceeding the simplified acquisition threshold (FAR 5.301(a)(2)).
Transparency Impact: Ensures the public is informed about the use of federal funds and the awarding of contracts.
Preparing and Transmitting Synopses
Steps:
* Include essential details such as contract value, awardee, and contract performance
location (FAR 5.302).
* Use GPE for dissemination (FAR 5.207).
PublicAnnouncement:
* For awards over $4.5 million, information must be made available by 5 p.m. on the
award date (FAR 5.303(a)).
Goal: Maintain a transparent and open federal procurement process.
Subpart 5.4 - Specific Release Situations:
Handling Specific Information Requests
GeneralPublicRequests:
* Process in accordance with FOIA and Privacy Act (FAR 5.402).
Congressional Requests:
* Provide detailed contract information unless classified or confidential (FAR 5.403).
Long-Range Acquisition Estimates:
* Publicize estimates to assist industry planning and locate additional sources (FAR 5.404-1).
Public Disclosure of Justification Documents:
*FAR5.406mandatesthepublicdisclosureofjustificationdocumentsforspecificcontract
actions. This includes:
* Justifications for other than full and open competition.
* Limited-source justifications for Federal Supply Schedule orders.
* Justifications for task or delivery orders awarded without providing fair opportunity.
Publicizing Postaward Actions: Postaward Transparency for Recovery Act Actions
Requirement: Publicize awards exceeding $500,000 (FAR 5.705(a)).
Rationale: Include justification for non-fixed-price or non-competitive
awards (FAR 5.705(b)).
Goal: Enhance transparency and accountability for Recovery Act-funded projects.
When Must Notices of Proposed Contract Actions be Posted?
For proposed contract actions expected to exceed $25,000, by synopsizing in the GPE
For proposed contract actions expected to exceed $15,000, but not expected to exceed $25,000, by displaying in a public place, or by any appropriate electronic means, an unclassified notice of the solicitation or a copy of the solicitation
Whati st h e GovernmentPointofEntry?
https://sam.gov
SAM.GOV is the single government point of entry (GPE) for federal government procurement opportunities over $25,000.
Government buyers are able to publicize their business opportunities by posting information directly to SAM.GOV via the internet.
Through one portal, SAM.GOV commercial vendors seeking federal markets for their products and services can search, monitor, and retrieve opportunities solicited by the entire federal contracting community.
When Must Notices of Proposed Contract Actions be Posted?
A notice of proposed contract action, when required, must be published at least 15 days before issuance of a solicitation.
For acquisitions of commercial items, the contracting officer
may establish a shorter period for issuance of the solicitation, or use the combined synopsis and solicitation procedure.
Contracting officers should consider the circumstances of the
individual acquisition, such as the complexity, commerciality, availability, and urgency when establishing solicitation response times for either contract actions estimated to be
greater than $25,000, but less than the Simplified Acquisition Threshold, or contract actions for the acquisition of
commercial items in an amount estimated to be greater than $25,000.
Except for the acquisition of commercial items, agencies shall
alow at least a 30-day response time for receipt of bids or proposals from the date of issuance of a solicitation, if the proposed contract action is expected to exceed the Simplified
Acquisition Threshold.
All publicizing and response times are calculated on the date
of publication, which is the date the notice appears on the GPE.
Contracting officers may, unless they have evidence to the
contrary, presume the notice was published one day after transmission to the GPE.
Publicizing Subcontracting Opportunities
A contractor awarded a contract exceeding $150,000 that is likely to result in the award of any subcontract, or a subcontractor or supplier at any tier under a contract exceeding $150,000, that has a subcontracting opportunity exceeding $15,000, may seek competition by posting a notice of the subcontracting opportunity on the GPE.
This notice must describe:
The business opportunity
Any prequalification requirements
Where to obtain technical data needed to respond to the requirement
When Must Synopses of Contract Awards be Posted?
Contracting officers must synopsize,
through the GPE, awards exceeding $25,000 that are covered by the World Trade Organization Government Procurement Agreement
or a Free Trade Agreement, or likely to result in the award of any subcontracts.
The dollar threshold is not a prohibition against publicizing an award of a smaller amount when publicizing would be advantageous toward industry or to the government.
Justifications for other than full and open competition must be
posted. Contracting officers shall release to the public and make information available on awards over $4 million.
The Governmentwide Database of Contracts and Other Procurement Instruments
Interagency Contract Directory
https://www.contractdirectory.gov
A searchable database used to identify existing contracts and
other procurement instruments intended for use by multiple agencies (GWACs, GSA, VA schedules)
The Governmentwide Database of Contracts and Other Procurement Instruments
FederalProcurementDataSystem
https://www.fpds.gov/
Provides data on procurement activities of federal agencies, and contains reporting tools for searching through that
information
Part 33
33.1 - Protests: Promoting Fairness and Transparency
Definition and Purpose: A protest is a written objection to a solicitation or award, ensuring fairness and transparency (FAR 33.101).
Eligibility: Defines who can file a protest and the grounds for doing so (FAR33.102).
Procedures for Handling Protests
Filing Process: Detailed steps for filing a protest, including timelines and required information (FAR 33.103).
* Protests must be filed within specified time frames (e.g., before bid opening or within 10 days of award) (FAR 33.103).
* Must include details such as the solicitation number, detailed grounds for the protest, and supporting evidence (FAR 33.103).
Impact of Protests: Potential suspension of contract actions during protest resolution (FAR 33.104).
* Contracting officers may withhold the award or suspend performance of an awarded contract pending resolution (FAR 33.104).
* Ensures that procurement actions do not proceed until fairness is ensured (FAR 33.104)
33.2 - Disputes and Appeals: Ensuring Transparency in Contract Administration
Framework for Resolving Disputes
Purpose: Establishes procedures for resolving contract disputes and
appeals to maintain transparency (FAR 33.200).
Authority: Defines the contracting officer’s role and authority in resolving disputes (FAR 33.210).
* Contracting officers have the authority to decide claims and must issue written decisions (FAR 33.210).
* Decisions must be based on the facts and include a detailed explanation (FAR 33.210).
* Written Decisions: Contracting officers must provide written decisions on claims, ensuring transparency (FAR 33.211).
Written decisions should include findings of fact, conclusions, and the rationale for the decision (FAR 33.211).
* Claimants must be informed of their right to appeal (FAR 33.211).
Appeals Process: Defines the process for appealing decisions to
boards, ensuring fairness and transparency (FAR 33.212).
* Contractors may appeal to boards such as the Armed Services Board of Contract Appeals (FAR 33.212).
* The appeals process includes deadlines, submission requirements, and hearing procedures (FAR 33.212).
Protest
A written objection by an interested party to any of the following:
A solicitation or other request by an agency for offers,
Cancellation of a solicitation or other request,
An award or proposed award of a contract, or
A termination or cancellation of an award of a contract a s long a s the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract
A protest may be filed with either the agency or the Government Accountability Office (GAO).
Protest General Procedures
Within one work day of filing a protest with GAO, a copy must be provided to the contracting officer.
The CO must immediately give notice of the protest to the contractor fi
the award has been made, or if no award has been made, to all parties who appear to have a reasonable prospect of receiving award fi the
protest is denied.
Within 30 days (20 if express option is used) after notification, the contracting officer must submit a complete report to the
GAO, with a copy to the protester and any other interested parties.
The protester and other interested parties are required to furnish a copy of any comments on the agency report directly to the GAO within 10 days (5 fi express option is used) after receipt, with copies to the contracting officer and to other participating interested parties.
Use of Funds Beyond the Period of Availability
Funds available to an
agency for a contract at the time a protest is filed remain
available for obligation for
100 days after the final
ruling is rendered, if they would otherwise have
expired.
Protests after award
If notified within 10 days or award
If notified within 5 days of debriefing
Contract performance must be immediately suspended or the contract terminated
Certification of Claims
Claims in excess of $100,000, or when using any alternative dispute resolution technique (regardless of the amount claimed), must be accompanied by certification:
That the claim is made ni good faith
That supporting data are accurate and complete to the best of the contractor’s knowledge and belief
That the amount requested accurately reflects the contract
adjustment for which the contractor believes the government is liable
Alternative Dispute Resolution (ADR)
Any procedure or combination of procedures voluntarily used to resolve issues in controversy
ADR procedures include, but are not limited to:
Conciliation,
Facilitation,
Mediation,
Fact finding,
Mini-trials,
Arbitration, and/or
Use
of ombudsmen.
Final Decisions
When a claim cannot be settled by mutual agreement and a
decision is necessary, the matter is resolved through
The contracting officer shall issue the decision within:
For claims over $100,000
60 days after receipt of certification, provided that fi a decision wil not be issued within 60 days, the contracting officer notifies the contractor, within 60 days, of the time within which a decision wil be issued.
Part 8 - Required Sources of Supplies and Services
Overview of Part 8
Purpose:
Establishes priorities for acquiring supplies and services to reduce
costs (FAR 8.000).
KeySections:
* 8.1: Excess Personal Property (FAR 8.101).
* 8.4: Federal Supply Schedules (FAR 8.402).
* 8.5: Acquisition of Helium (FAR 8.501).
* 8.6: Acquisition from Federal Prison Industries (FAR 8.602).
* 8.7: Acquisition from Nonprofit Agencies (FAR 8.703).
* 8.8: Acquisition of Printing and Related Supplies (FAR 8.802).
* 8.11: Leasing of Motor Vehicles (FAR 8.1100).
Part 8 - Required Sources of Supplies and Services
Subpart 8.1 - Excess Personal Property
Purpose:
Encourage agencies to use excess personal property first (FAR
8.102).
Benefits: Reduces costs by utilizing existing resources, minimizes new purchases (FAR 8.103).
Priorities for Using Government Supply Sources
For supplies, agencies should use, in the following order:
Agency inventories
Excess from other agencies
Federal Prison Industries, Inc.
Supplies which are on the Procurement List maintained by the Committee for Purchase from People Who Are Blind or Severely Disabled
Wholesale supply sources, such as stock programs of the GSA, the Defense Logistics Agency, the Department of Veterans Affairs, and military inventory control points
Small business concerns
Optional use Federal Supply Schedules
Commercial sources (including educational and nonprofit institutions)
Priorities for Using Government Services Sources
For services, agencies should use, in the following order:
Services which are on the Procurement List maintained by the Committee for Purchase from People Who Are Blind or Severely Disabled
Mandatory Federal Supply Schedules
Optional use Federal Supply Schedules
Federal Prison Industries, Inc.
Commercial sources (including educational and nonprofit institutions)
Acquisition of Excess Personal Property
Excess personal property
Property under control of an agency or activity that the agency or activity has declared is excess to its needs
Catalogs and bulletins of available excess personal property are available through the General Services Administration.
Procuring agencies may also obtain personal property through the agency or activity which has the property under its control.
Federal Supply Schedules and Policy for Their Use
Federal Supply Schedules provide federal agencies with
a simplified process for obtaining commercial supplies and services at prices associated with volume buying.
Also known as the GSA Schedules Program or the Multiple Award Schedule Program.
Indefinite delivery contracts are awarded to provide supplies and services at stated prices for given periods of time.
Department of Defense (DoD) manages similar systems of schedule-
type contracting for military items. GSA has delegated authority to the VA to procure medical supplies under the VA Federal Supply Schedules program.
Federal Supply Schedules and Policy for Their Use
GSA Advantage
is an online shipping service through which ordering agencies may place orders against Federal Supply Schedules
http://www.gsaadvantage.gov/
Federal Supply Schedules and Policy for Their Use
eBuy
allows ordering activities to post requirements, obtain quotes, and issue orders electronically.
Blanket purchase agreement (BPA)
A method for the government to fil purchase requirements for related supplies, material, equipment, or services by establishing accounts with established sources of supply
Includes certain conditions and provisions that have been negotiated and agreed to in advance
Allows the government to make frequent purchases or calls, verbally or in writing, and receive one monthly bill for all supplies or services purchased
The time limit for a BPA is generally not
more than 5 years
Federal Supply Schedules and Policy for Their Use
GSA has already determined
the prices of supplies and services under Schedule contracts to be fair and reasonable.
By placing an order against a Schedule contract using these
procedures, the ordering activity has concluded that the order represents the best value and results in the lowest overall cost
alternative to meet the government’s needs.
Federal Prison Industries, Inc, also referred to as UNICOR, is a
self-supporting, wholly owned government corporation of the District of Columbia.
FPI provides training and
employment for prisoners confined in federal penal and correctional institutions through the sale of its supplies and services to government agencies.
FPI diversifies its supplies and services to prevent private industry from experiencing unfair competition from prison workshops or activities.
Supplies manufactured and services performed by FPI are listed in the FPI Schedule.
UNICOR
http://www.unicor.gov
Before purchasing an item of supply listed in the FPI Schedule,
conduct market research to determine whether the FPl item is comparable to
supplies available from the private sector that best meet the government’s needs in terms of price, quality, and time of delivery.
If the FPI item is comparable, purchase the item from FPI following the UNICOR ordering procedures.
If the FPl item is not comparable in one or more of the areas of price,
quality, and time of delivery, acquire the item using competitive procedures, set-aside procedures, or FSS.
AbilityOne is
the Committee for Purchase from People Who Are Blind or Severely Disabled. The National Industries for the Blind (NIB) and the National Industries for the Severely Handicapped (NISH) are central nonprofit agencies that were established under the AbilityOne Program.
The Committee for Purchase from People Who Are Blind or Severely Disabled maintains a Procurement List of all supplies and services required to be purchased from AbilityOne participating nonprofit
agencies.
AbilityOne procurement list http://www.abilityone.gov/procurement_list/
Ordering offices shall purchase supplies and services in the following order of priorities:
Supplies
1 Federal Prison Industries, Inc.
- AbilityOne participating nonprofit agencies
- Commercial sources
Ordering offices shall purchase supplies and services in the following order of priorities:
Services
1 AbilityOne participating nonprofit agencies
- Federal Prison Industries, Inc., or commercial sources
Generally, agencies shall satisfy requirements for supplies and services from or through the sources and publications listed here in descending order of priority:
Supplies:
* Agency inventories;* Excess from other agencies;
* Federal Prison Industries, Inc.;
* Supplies on the Procurement List maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled; and
*Wholesale supply sources, such as stock programs of the General Services Administration (GSA), Defense Logistics Agency, Department of Veterans Affairs, and military inventory control points.
Services:
* Services on the Procurement List maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled.
The Federal Supply Schedule (FSS) program is also known as the GSA Schedules Program or the Multiple Award Schedule (MAS) Program.
The program, directed and managed by the GSA, provides federal agencies with
a simplified process for obtaining commercial supplies and services at prices associated with volume buying.
Indefinite delivery contracts are awarded to provide
supplies and services at stated prices for given periods of time.
The Department of Defense (DOD) manages similar systems of schedule-type contracting for military items; however, DOD systems are not covered by this subpart.
Part 12 - Acquisition of Commercial Products and Commercial Services
Slide 9: Overview of Part 12
Purpose: Simplify acquisition of commercial items to align with
market practices (FAR 12.000).
KeySections:
* 12.1: General guidelines for acquisition (FAR 12.101).
* 12.2: Special requirements for commercial items (FAR 12.201).
* 12.3: Solicitation provisions (FAR 12.301).
* 12.4: Terms and conditions (FAR 12.401).
* 12.5: Applicability of certain laws (FAR 12.500).
* 12.6: Streamlined procedures (FAR 12.601).
Part 12 - Acquisition of Commercial Products and Commercial Services
Subpart 12.1 - General
- Purpose: Use market-driven practices to streamline acquisition (FAR
12.101). - Benefits: Reduces transaction costs, increases procurement efficiency (FAR 12.102).
Part 12 - Acquisition of Commercial Products and Commercial Services
Subpart12.6 Streamlined Procedures
Purpose: Simplify evaluation and solicitation for commercial items(FAR12.601)
* Oral Presentations (FAR 12.602(c)): Allowing offerors to present their proposals orally rather than in writing can significantly speed up the evaluation process.
* Simplified Evaluation Factors (FAR 12.602(b)): Using fewer and less complex evaluation factors, such as technical capability and past performance, helps streamline the process.
* Combined Synopsis/Solicitation (FAR 12.603): Issuing a combined synopsis and solicitation in a single document reduces the administrative burden and accelerates the procurement timeline.
* Electronic Commerce (FAR 12.603(d)): Utilizing electronic commerce methods to distribute solicitations and receive offers improves efficiency and reduces processing times.
Benefits: Reduces administrative costs, speeds up procurement cycles, enhances efficiency (FAR 12.602).
Commercial item
Any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental
purposes, and
* Has been sold, leased, or licensed to the general public; or
* Has been offered for sale, lease, or license to the general public
Any item that evolved from an item as defined above through advances
in technology or performance and that is not yet available in the
commercial marketplace, but wil be available in the commercial marketplace in time to satisfy the delivery requirements under a
government solicitation, is also a commercial item.
Commercial items with modifications remain
commercial items
fi the modification is available commercially. Modifications that are uniquely governmental move the item further from the
definition of commercial item.
Computer
Computer with improved performance
Computer functioning underwater
Nondevelopmental item
Any previously developed item of supply used exclusively for governmental
purposes by a federal agency, a state or local government, or a foreign government with which the United States has a mutual defense cooperation agreement
Any item so described that requires only minor modification or modifications of a type customarily available in the commercial marketplace in order to meet the requirements of the procuring department or agency
Any item of supply being produced that does not meet the requirements above solely because the item is not yet in use
Use of Technical Information in Commercial Item Evaluation
The contracting officer must establish price reasonableness
in accordance with the appropriate
FAR clauses, and should also be aware of customary commercial terms and conditions that may affect the pricing being provided to the government.
Tailoring of CommercialItem Specifications
Tailoring
The process by which individual sections, paragraphs, or sentences of a specification or solicitation are modified to meet the minimum requirements and
specific needs of the requestor
The following paragraphs of the Contract Terms and Conditions – Commercial Items clause implement statutory requirements and shall not be tailored:
* Assignments
* Disputes
* Payment (except as provided in Subpart 32.11)
* Invoice
- Compliance with laws unique to government contracts and other compliances
- Unauthorized obligations
Commercial Item Terms and Conditions
FAR 12.4 provides guidance on tailoring specific paragraphs in 52.212-4 when they do not reflect customary practice.
Termination
Permits the government to terminate a contract for either convenience or cause
The government’s rights after a termination for cause
includes all the remedies available to any commercial buyer
The preferred remedy is to acquire similar items and charge the defaulted contractor with excess reprocurement costs and incidental or consequential damages
Commercial Warranties
Express Warranty
A written statement arising out of a sale to the consumer of a consumer good, pursuant to which the manufacturer, distributor, or retailer undertakes to preserve
or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance
It is not necessary to the creation of an express warranty that formal words such as “warrant” or “guarantee” be used, or that a specific intention to make a warranty be present.
For commercial contracts, an express warranty must be included in the contract by addendum.
Commercial Warranties
Implied Warranty
A promise arising by operation of law that something that is sold shall be merchantable and fit for the purpose for which the seller has reason to know that ti is required
Some types of implied warranties:
* Implied warranty of merchantability
* Implied warranty of fitness for a particular purpose
* Implied warranty of title
* Implied warranty of wholesomeness
* Spearin Doctrine (implied warranty of specifications)
What Drives
Commercial Item Pricing?
Speed of delivery and distribution channels
Length and extent of warranty
Limitation on seller’s liability
Purchasing in quantity
Length of the performance period
Specific performance requirements
Advances in technology
FAR part 12 does not apply
to the acquisition of commercial items at or below the MPT,
or those acquired using the Standard Form 44,
the imprest fund,
the governmentwide commercial purchase card,
or directly from another federal agency.
In general, all provisions that apply to commercial items also apply to commercially available off-the-shelf items.
Unless it is mandated by agency specific statute, the government acquires only the technical data
and the rights in that data that are provided to the general public with the commercial item.
The contracting officer shall assume the data was developed exclusively at private expense.
If the government requires technical data rights, the contracting officer must include specific contract clauses.
TERMINATION: The clause permits the government to terminate a contract for either convenience or cause.
The government’s rights after a termination for cause shall include all the remedies available to any buyer in the marketplace.
The government’s preferred remedy will be to acquire similar items from another contractor and to charge the defaulted contractor with any excess reprocurement costs together with any incidental or consequential damages incurred because of the termination.
Part 13 - Simplified Acquisition Procedures
Subpart 13.1 - Procedures
Purpose: Provide simplified methods for small acquisitions (FAR
13.101).
*CombineRelatedItems(FAR13.101(b)(1)):Include related items in one solicitation and make awards on an “all-or-none” or “multiple award” basis.
*Incorporate Provisions by Reference(FAR13.101(b)(2)):Use provisions and clauses by reference in solicitations and awards when appropriate.
*Maximize Trade and Prompt Payment Discounts(FAR13.101(b)(3)):Make efforts to obtain trade and prompt payment discounts, which should not be considered in the evaluation of quotations.
* Use Bulk Funding (FAR13.101(b)(4)):Utilize bulk funding to streamline financial authorization for numerous purchases over a specified period.
Benefits: Quick and efficient procurement, minimizes costs, reduces paperwork (FAR 13.102).
Part 13 - Simplified Acquisition Procedures
Subpart 13.3 - Simplified Acquisition Methods
Purpose:Providevariousmethodsforsimplifiedacquisitions(FAR13.301).
*Purchase Orders (FAR13.302): A streamlined method for acquiring goods and services, reducing the need for lengthy contracts.
* Blanket Purchase Agreements(BPAs)(FAR13.303):Allow agencies to establish agreements with suppliers for recurring needs, further simplifying the procurement process.
* Imprest Funds and Third-PartyDrafts(FAR13.305):Methods for small purchases that enable quick transactions with minimal administrative burden.
*Simplified Acquisition Threshold(SAT)(FAR13.000):Increases the threshold for simplified acquisitions, allowing more purchases to qualify for streamlined procedures
Benefits:Offers flexibility in procurement, reduces lead times and administrative costs (FAR 13.302).
Part 13 - Simplified Acquisition Procedures
Subpart 13.5 - Simplified Procedures for Certain Commercial Items
Purpose: Simplify acquisition of specific commercial products and
services (FAR 13.501).
*Streamlined Solicitation Process(FAR13.501(a)):Contracting officers can combine the synopsis and solicitation in a single document, making it easier and faster to procure necessary items.
*Flexible Evaluation Methods(FAR13.501(b)):Simplified evaluations can be used, such as considering only price and past performance, without needing to use complex scoring systems.
Benefits: Reduces costs and procurement time, streamlines evaluation and award processes (FAR 13.502).
Simplified Acquisition Overview
Simplified acquisition
A less rigorous method for entering into relatively low-dollar-threshold contracts
Usually occurs without the elaborate and formal solicitation techniques required by
sealed bidding and negotiation
Simplified acquisition procedures are used for acquisitions which do not exceed the simplified acquisition threshold.
They may be used to purchase supplies and services, including construction; research and development; and commercial
items.
Agency requirement for supplies or services exceeding the simplified
acquisition threshold
$270K
$90K $90k$90K
Do not break down requirements aggregating more than the SAT into several purchases that
are less than the SAT merely to permit use of simplified acquisition procedures.
Do not break down requirements aggregating more than the micropurchase threshold into several purchases that are less than the micropurchase threshold merely to avoid requirements for purchases exceeding the micropurchase threshold.
Sources of Information
System for Award Management
https://www.sam.gov/
Contracting officers should use the SAM database as their primary source of vendor information. Offices maintaining additional vendor source files
or listings should identify the small-business status of each source when known.
The contracting officer shall promote competition to the maximum extent practicable, considering what is most advantageous ot the government.
Authorized individuals do not have to obtain individual
quotations for each purchase. Standing price quotations may
be used fi the pricing information is current, and the government obtains the maximum discounts before award.
Evaluation of Quotations
COs are encouraged to use best value.
COs have broad discretion ni fashioning suitable evaluation procedures. The procedures prescribed in
FAR Parts 14 and 15 are not mandatory.
Prior to award, the contracting officer must determine that the proposed price is fair and reasonable.
ContractAward
If there was only one response, price reasonableness may be determined based on:
Market research
Prices previously found reasonable
Price lists, catalogs, or advertisements
Comparison to similar items
Personal knowledge of the item
Independent government estimat
Micropurchases and the Micropurchase Threshold
Micropurchase
An acquisition of supplies or services, the aggregate amount of which does not exceed the micropurchase threshold
The micropurchase threshold is $3,500 generally
For acquisitions of construction subject to 40
U.S.C. chapter 31, subchapter IV, Wage Rate Requirements (Construction), the micropurchase threshold is $2,000.
For acquisitions of services subject to 41 U.S.C.
chapter 67, Service Contract Labor Standards, the micropurchase threshold is $2,500.
For acquisitions of supplies or services that are to be used to support a contingency operation or to facilitate defense against or
recovery from nuclear, biological, chemical or radiological attack, the micropurchase threshold is $20,000 for any contract to be
awarded and performed, or purchase to be made, inside the United States.
For acquisitions of supplies or services that are to be used to support a contingency operation or to facilitate defense against or
recovery from nuclear, biological, chemical or radiological attack, the micropurchase threshold is $35,000 for any contract to be awarded and performed, or purchase to be made, outside the United States.
The governmentwide commercial purchase card is the preferred method of payment for micro purchases
Simplified Acquisition Methods
Blanket purchase agreement (BPA)
A simplified method of filing anticipated repetitive needs for supplies or services by establishing “charge accounts” with qualified sources of supply
A wide variety of items is generally purchased, but the exact items, quantities, and delivery requirements are not known
Commercial sources of supply must be provided for offices or projects that do not have authority to purchase otherwise
To avoid writing numerous purchase orders
Simplified Acquisition Methods
Imprest fund
A cash fund of a fixed amount established by advance of funds for disbursement as needed, in cash, for relatively smal purchases.
Used when the transaction does not exceed $500, its use is advantageous to the government, and the use complies with any additional conditions established by agencies
Simplified Acquisition Methods
Third-party draft
An agency bank draft, similar to a check, that is used to acquire and to pay for supplies and
services
Used when the transaction does not exceed $2,500, its use is advantageous to the government, and the use complies with any additional conditions established by agencies
Simplified Acquisition Methods
Standard Form 44
SF 44, Purchase Order - Invoice - Voucher, is a multipurpose pocket-size purchase order form designed primarily for on-the-
spot, over-the-counter purchases of supplies and nonpersonal services while
away from the purchasing office or at isolated activities. tI also can be used as a receiving report, invoice, and public voucher.
The fast payment procedure allows payment under limited conditions to a contractor prior to the government’s verification that supplies have been received and accepted.
Dollar threshold
for FPP is $35,000
For deliveries of supplies to locations
where there is geographical separation and a lack of communication with
government activities that will make it impractical to make timely payment based on evidence of government acceptance
Simplified Procedures for Certain Commercial Items
Simplified procedures for the acquisition of supplies and services in amounts greater than the simplified acquisition threshold but not exceeding $7.5 million
including options.
Used when the contracting officer reasonably expects, based on the nature of the supplies or services sought and on market research, that offers wil include only commercial items.
Contracting officers may use any simplified acquisition procedure in this part, subject to any specific dollar limitation applicable to the particular procedure.
The procedure vests contracting officers with discretion and flexibility, so that commercial item acquisitions in this dollar range may be solicited, offered, evaluated, and awarded in a simplified manner.
GOVERNMENTWIDE COMMERCIAL PURCHASE
CARD (FAR 13.301)
The governmentwide commercial purchase card is authorized for use in making and/or paying for purchases of supplies, services, or construction and may be used by contracting officers and other designated individuals. The card may be used only for purchases that are otherwise authorized by law or regulation.
The governmentwide commercial purchase card may be used to
make micro-purchases;
place a task or delivery order (if authorized in the basic contract, basic ordering agreement,
or blanket purchase agreement);
or make payments, when the contractor agrees to accept payment by the card.
BLANKET PURCHASE AGREEMENTS (FAR
13.303)
A blanket purchase agreement (BPA) is a simplified method
of filling anticipated repetitive needs for supplies or services by establishing “charge accounts” with qualified sources of supply.
BPAs are appropriate
(1) when requirements exist for a wide variety of items within a broad class of goods, but the exact items, quantities, and delivery requirements are not known in advance;
(2) when there is a need to provide commercial sources of supply for one or more offices in a given area that do not have or need authority to purchase otherwise;
(3) when the writing of numerous purchase orders can be avoided through the use of this procedure; or
(4) when there is no existing requirements contract for the same supply or service that the contracting activity is required to
Purchases made using imprest funds or third-party drafts shall be based upon
an authorized purchase requisition, contracting officer verification statement, or another agency approved method of ensuring that adequate funds are available for the purchase.
Normally, purchases should be placed verbally and without soliciting competition if prices are considered reasonable.
For all practical purposes, there is simultaneous placement of the order and delivery of the items.
Therefore, clauses are not required for purchases using imprest funds or third-party
Part 17 - Special Contracting Methods
Overview of Part 17
Purpose: Provides various contracting methods to enhance flexibility and efficiency in procurement (FAR 17.000).
KeySections:
* 17.1: Multi-Year Contracting (FAR 17.101).
* 17.2: Options (FAR 17.201).
* 17.4: Leader Company Contracting (FAR 17.401).
* 17.5: Interagency Acquisitions (FAR 17.500).
* 17.6: Management and Operating Contracts (FAR 17.600).
* 17.7: Interagency Acquisitions by Nondefense Agencies (FAR 17.700).
Use of multi-year contracting is encouraged in order to:
Lower costs
Enhance standardization
Reduce administrative burden in contract administration
Stabilize contractor work forces
Allow substantial continuity of performance and avoid costs
of startup, preproduction testing, readiness, and phaseout
Avoid establishing new quality control procedures each year *
Encourage participation by firms not willing or able to
compete for lesser quantities
Leader Company Contracting
Adeveloper or sole producer of a product or
system is designated to be the leader company, to furnish assistance and expertise under an
approved contract to one or more designated
follower companies, so they can become a source of supply
The objectives of leader company contracting are:
To reduce delivery time,
To achieve geographic dispersion of suppliers,
To maximize the use of scarce tooling or special equipment, * To achieve economies in production,
To ensure uniformity and reliability in equipment, compatibility or standardization of components, and interchangeability of parts,
To eliminate problems in the use of proprietary data, and
To facilitate the transition from development to production and to subsequent competitive acquisition of end items or major components
When leader company contracting is used
the government shall reserve the right to approve
subcontracts between the leader company and the follower company or companies.
The leader company may be the prime contractor, and the
follower company the subcontractor, or both the leader and follower companies may be awarded prime contracts.
Management and operating contract
An agreement under which the government contracts for the operation, maintenance, or support of a government-owned or controlled research, development, special production, or testing establishment
Government-owned or controlled facilities must be utilized; for instance, * In the interest of national defense or mobilization readiness;
* To perform the agency’s mission adequately; or
* Because private enterprise is unable or unwilling to use its own facilities for the work.
The government must maintain a special, close relationship with the contractor and the contractor’s personnel in various important areas such as safety, security, cost control, or site conditions.
The conduct of the work is wholly or at least substantially separate from the contractor’s other business, or the work is closely related to the agency’s mission and is of a long-term or continuing need
Management and operating contracts involve high levels of expertise, continuity of operations and personnel. Because of this, the government is often limited in its ability to effect competition or to replace a contractor.
Using multiyear contracting is encouraged to take advantage of one or more of the following:
lower costs;
enhancing standardization;
reducing administrative burden in placing and administering contracts;
substantial continuity of production or performance, thus avoiding annual startup costs, preproduction testing costs, make-ready expenses,
and phase-out costs;
stabilizing contractor work forces;
avoiding the need for establishing quality control techniques and procedures for a new contractor each year;
broadening the competitive base with opportunity for participation by firms not otherwise willing or able to competelesser quantities, particularly in cases involving high startup costs; and providing incentives to contractors to improve productivity through investment in capital facilities, equipment, and advanced technology.
D. INTERAGENCY ACQUISITION (FAR
17.5)
Interagency acquisitions are commonly conducted through
indefinite-delivery contracts, such as task-and-delivery-order contracts.
The indefinite-delivery contracts used most frequently to support interagency acquisitions are Federal Supply Schedule (FSS) contracts, governmentwide acquisition contracts (GWACs), and multiagency contracts (MACs).
An agency shall not use an interagency acquisition to circumvent conditions and limitations imposed on the use of funds
Part 18 - Emergency Acquisitions
Slide 29: Overview of Part 18
Purpose: Provides agencies with flexibilities to respond to
emergencies efficiently (FAR 18.000).
KeySections:
* 18.1: Available Acquisition Flexibilities (FAR 18.101).
* 18.2: Emergency Acquisition Flexibilities (FAR 18.201).
Available Acquisition Flexibilities
The flexibilities listed in FAR 18.1
are generally available when there is an urgent or compelling need for an acquisition, or for work to begin immediately.
System for Award Management
Contractors are not required to be
registered in SAM for contracts to support emergency acquisitions.
Limitation of Sources or Competition
Agencies may limit the number of sources and full and open competition need not be provided for contracting actions involving urgent requirements.
Federal Prison Industries and AbilityOne
Purchase from FPI is not mandatory and a waiver is not required. Contracting officers do not need to notify when changes in AbilityOne specifications are required
LetterContracts
Letter contracts may be used when contract performance must begin immediately.
Streamlined Small Business Programs
Contracts may be awarded for performance by eligible 8(a) or WOSB firms on either a sole source or competitive basis, or to HUBZone or SDVOSB firms on a sole source basis.
Emergency Acquisition Flexibilities
The flexibilities listed in FAR 18.2 are only available under prescribed circumstances such as a declared disaster.
Contingency operation
A military operation that is designated by the Secretary of Defense as an operation
in which members of the armed forces are or may become involved in military
actions, operations, or hostilities against an enemy of the United States or against an opposing military force
A military operation that results in the call or order to, or retention on, active duty of members of the uniformed services under any provision of law during a war or
during a national emergency declared by the President or Congress
Emergency Acquisition Flexibilities
For acquisitions to support a contingency operation or to
facilitate defense against or recovery from nuclear, biological, chemical or radiological attack:
Micropurchase Threshold
$20,000 for any contract to be awarded and performed, or purchase to be made, inside the
United States
Emergency Acquisition Flexibilities
For acquisitions to support a contingency operation or to
facilitate defense against or recovery from nuclear, biological, chemical or radiological attack:
Micropurchase Threshold
$35,000 for any contract to be awarded and performed, or
purchase to be made, outside the United States
Emergency Acquisition Flexibilities
For acquisitions to support a contingency operation or to
facilitate defense against or recovery from nuclear, biological, chemical or radiological attack:
Simplified Acquisition Threshold
$800,000 for any contract to be awarded and performed, or
purchase to be made, inside the United States
Emergency Acquisition Flexibilities
For acquisitions to support a contingency operation or to
facilitate defense against or recovery from nuclear, biological, chemical or radiological attack:
Simplified Acquisition Threshold
$1.5million for any contract to be
awarded and performed, or
purchase to be made, outside the United State
Emergency Acquisition Flexibilities
For acquisitions to support a contingency operation or to
facilitate defense against or recovery from nuclear, biological, chemical or radiological attack:
Simplified Acquisition Threshold for Certain Commercial Items
$15 million, including options, if the contracting officer reasonably
expects that offers will include only commercial items
Contractors are not required to be registered in the
System for Award Management (SAM) at the time of submission of offers or quotations for contracts awarded without full and open competition due to unusual and compelling urgency; or contracts awarded by a contracting officer deployed in a military operation or located outside the US for work to be performed in support of diplomatic or developmental operations designated for danger pay; or in the conduct of emergency
However, contractors are required to be registered in SAM to gain access to the Disaster Response Registry which contracting officers use to determine availability of contractor for debris removal, supply distribution, reconstruction, and other disaster or emergency relief activities inside the US.
Contracting officers may take advantage of
preexisting Federal Supply Schedules, multiagency blanket purchase agreements, and multiagency indefinite-delivery contracts to streamline the contracting process. (FAR
8.405-3(a)(6) and 16.505(a)(7))
Flexibility summaries
Public Law 85-804 authorizes extraordinary contractual actions to facilitate the national defense, including the modification of contracts without consideration, correcting or mitigating mistakes in a contract, and formalizing informal commitments. (FAR 50.1)
Federal Prison Industries is not considered a required source when public exigency requires immediate performance. (FAR 8.605(b))
Agencies may relax or not enforce qualification requirements when an emergency exists. (FAR
9.206-1)
Contracting officers may utilize both verbal requests for proposals and letter contracts. (FAR
15.203(f) and 16.603)
Agencies may employ interagency acquisition.
(FAR 17.5)
Agencies may take advantage of streamlined small business programs, including 8(a) awards and sole-source awards to historically underutilized business zone (HUBZone) or service-disabled-veteran-owned small business concerns. (FAR 19.8, 19.1306, 19.1406, and 19.15)
Contracts may be awarded to economically disadvantaged women-owned small business
(EDWOSB) concerns and women-owned small business (WOSB) concerns eligible under the
WOSB Program on a competitive or sole source basis. (See subpart 19.15.)
Contracting officers may retroactively approve overtime. (FAR
Part 38 - Federal Supply Schedule Contracting
Subpart 38.1 - Federal Supply Schedule Program
Purpose: Describes the general policies and procedures for the Federal Supply Schedule program (FAR 38.101).
Benefits: Simplifies procurement, provides access to pre-negotiated contracts, offers competitive pricing (FAR 38.102).
Federal Supply Schedule (FSS) Program
A program directed and managed by GSA that provides federal agencies with a simplified process for obtaining commonly used supplies and services at prices associated with volume buying
Types of Federal Supply Schedules:
Single Award
Multiple Award
New Item Introductory
International
Multiple Award Schedule (MAS)
Contracts made with multiple suppliers, pursuant to the Federal Supply Schedule Program, for relatively the same items at varying prices for delivery within the same geographic area.
WhatAreFederalSupplySchedules?
Schedules are:
IDIQ contracts
Awarded competitively
To commercial firms
To provide supplies and services
- At stated prices
* For given periods of time
* In the United States and to U.S. activities overseas
Ordering from Schedules
GSA eLibrary
http://www.gsaelibrary.gsa.gov/
GSA schedules are composed of Special Item Numbers (SINs), which group similar products, services, and solutions together to aid ni the acquisition process
Schedule descriptions are found at the List of Schedules in the GSA eLibrary, categorized by SIN
Products, supplies, and services may be ordered from GSA Schedule contractors or through the GSA Advantage! system
FAR Part 9: Contractor Qualifications
Subpart 9.1 - Responsible Prospective Contractors
Purpose: Outlines the standards for determining contractor responsibility (FAR 9.104).
Key Criteria:
Adequate financial resources (FAR 9.104-1(a)).
Ability to comply with performance schedules (FAR 9.104-1(b)).
Satisfactory performance record (FAR 9.104-1(c)).
Integrity and business ethics (FAR 9.104-1(d)).
Necessary organization, experience, and technical skills (FAR 9.104-1(e)).
Compliance with public policy (FAR 9.104-1(f)).
Necessary equipment and facilities (FAR 9.104-1(g)).
FAR Part 9: Contractor Qualifications
FAR Subpart 9.1 Responsible Prospective Contractors
Instructor Dialogue:
“Subpart 9.1 sets the standards for determining the responsibility of prospective contractors.
These standards include financial stability, the ability to meet performance schedules, a satisfactory performance record, and integrity.
Ensuring that contractors meet these criteria is crucial for mitigating risks associated with contract performance and ensuring project success.”
FAR Part 9: Contractor Qualifications
Subpart 9.3 - First Article Testing and Approval
Instructor Dialogue:
Subpart 9.3 deals with the first article testing and approval process.
This step ensures that the initial product meets all contract specifications before mass production begins.
By thoroughly testing the first article, agencies can identify and address any issues early, reducing the risk of widespread defects or non-compliance in subsequent production batches
FAR Part 9: Contractor Qualifications
Subpart 9.4 - Debarment, Suspension, and Ineligibility
Purpose: Protects the government’s interests by excluding unreliable contractors (FAR 9.401).
Key Criteria:
Causes for debarment include fraud, criminal offenses, and serious violations (FAR 9.406-2).
Suspension based on adequate evidence of contractor misconduct (FAR 9.407-2).
Procedures for debarment and suspension ensure fairness and due process (FAR 9.406-3, FAR 9.407-3).
FAR Part 9: Contractor Qualifications
Subpart 9.7 - Defense Production Pools and Research and Development Pools
Instructor Dialogue:
Subpart 9.7 focuses on defense production pools and research and development pools.
These pools allow for the sharing of resources, expertise, and costs among multiple contractors, which is particularly beneficial for complex defense and R&D projects.
By pooling resources, agencies can mitigate financial and operational risks while ensuring compliance with relevant legal and regulatory requirements
9.1 Responsible Prospective Contractors
Determining If a ContractorIs Responsible
To be determined responsible, a prospective contractor must:
- Have adequate financial resources to perform the contract, or the ability ot obtain them
- Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments
- Have a satisfactory performance record, but a prospective contractor shall not be determined nonresponsible solely on the basis of a lack of relevant performance history
- Have a satisfactory record of integrity and business ethics
- Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them
- Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them
- Be otherwise qualified and eligible to receive an award under applicable laws and regulations
9.1 Responsible Prospective Contractors
Responsibility and Subcontracting
Generally, prospective prime contractors are responsible for determining the responsibility of their prospective subcontractors.
Determinations of prospective subcontractor responsibility may affect the government’s determination of the prospective prime contractor’s responsibility.
A prospective contractor may be required to provide written evidence of a proposed subcontractor’s responsibility.
When ti is the government’s interest to do so, the contracting officer may directly determine a prospective subcontractor’s
responsibility. In this case, the same standards used to determine a prime contractor’s responsibility shall be used by
the government to determine subcontractor responsibility.
If the pending contract requires a subcontracting plan
pursuant to FAR 19.7, the contracting officer shall also consider the prospective contractor’s compliance with
subcontracting plans under recent contracts in
establishing the prospective contractor’s performance record.
9.1 Responsible Prospective Contractors
The Certificate of Competency
Upon making a determination of nonresponsibility with regard to a small business concern, the contracting officer shall refer the matter to the
Small Business Administration, which wil decide whether to issue a Certificate of Competency.
Issued by the Small Business Administration
Certifies that the holder is
responsible for the purpose of receiving and performing a specific government contract
9.1 Responsible Prospective Contractors
Preaward survey
GSA SF-1403
Preaward Survey of Prospective Contractor
- Identifies additional factors about which information is needed
- Includes the complete solicitation package (unless ti has previously been furnished), and any information indicating prior unsatisfactory performance by the prospective contractor
- States whether the contracting office will participate in the survey
- Specifies the date by which the report is required
- Specifies limitations on the scope of the survey
9.2 Qualifications Requirements
Qualification Requirements: Policy
Qualification requirement
- Agovernment requirement for testing or other quality assurance demonstration that must be completed before a contract
If an agency determines that a qualification requirement is necessary, the agency activity responsible for establishing the requirement must urge manufacturers and other potential sources to demonstrate their ability to meet the standards specified for qualification and, when possible, give sufficient time to arrange for qualification before award.
9.4 Debarment, Suspension, and Ineligibility
Agencies shall solicit offers from, award contracts to, and consent to subcontracts with responsible contractors only.
Debarment and suspension are discretionary actions that, taken in accordance with FAR 9.4, are appropriate means to effect this policy.
Suspension
Action taken by a suspending official to disqualify a contractor temporarily from government contracting and government-approved subcontracting
9.4 Debarment, Suspension, and Ineligibility
Agencies shall solicit offers from, award contracts to, and consent to subcontracts with responsible contractors only.
Debarment and suspension are discretionary actions that, taken in accordance with FAR 9.4, are appropriate means to effect this policy.
Debarment
Action taken by a debarring official to exclude a contractor from government contracting and government-approved subcontracting for a reasonable, specified period.
9.4 Debarment, Suspension, and Ineligibility
Agencies shall solicit offers from, award contracts to, and consent to subcontracts with responsible contractors only.
Debarment and suspension are discretionary actions that, taken in accordance with FAR 9.4, are appropriate means to effect this policy.
Ineligible
Excluded from government contracting (and subcontracting, iff appropriate) pursuant to statutory, executive order, or regulatory authority (other than the FAR)
9.4 Debarment, Suspension, and Ineligibility
The System for Award Management lists
all contractors debarred, suspended, proposed for debarment, declared ineligible, or
excluded or disqualified by agencies or the GAO.
Each agency is
responsible for updating SAM, generally within five days
after the action becomes effective or is modified or rescinded.
9.6 Contractor Team Arrangements
A contractor team arrangement is an arrangement in which two or more
companies form a partnership or joint venture to act as a potential prime
contractor; or a potential prime contractor agrees with one or more other companies to have them act as its subcontractors under a specified government contract or acquisition program.
Contractor team arrangements may be desirable from both a government and industry standpoint in order to enable the companies
involved to complement each other’s unique capabilities and offer the
government the best combination of performance, cost, and delivery for the system or product being acquired.
9.7 Defense Production Pools and Research and Development Pools
Pool
* A group of concerns that have:
Associated together in order to obtain and perform, jointly or in conjunction with
each other, defense production or research and development contracts;
Entered into an agreement governing their organization, relationship, and
procedures; and
Obtained approval of the agreement
Except as specified in FAR 9.702, a pool shall be treated the same as any other prospective or actual contractor.
The offer leading to the contract submitted by the pool must be submitted ni its own name or by an individual pool member expressly stating that the offer is on behalf of the pool.
The contracting officer shall verify the pool’s approved status and document ni the contract file that the verification was made
Pools approved by the SBA under the Small Business Act are entitled to the preferences and privileges accorded to small business concerns. Approval under
the Defense Production Act does not confer these preferences and privileges
Before awarding a contract to an unincorporated pool, the contracting officer shall require each pool member participating in the contract to furnish a certified copy of a power of attorney identifying the agent authorized to sign the offer or contract on that member’s behalf. The contracting officer shall attach a copy of each power of attorney to each signed copy of the contract.
Note that there is a prohibition to contracting with an inverted domestic corporation at FAR
9.108. An inverted domestic corporation, as used in this section, means
a foreign incorporated entity treated as an inverted domestic corporation under 6 U.S.C.395(b), (ie., a corporation that used to be incorporated in the United States or used to be a partnership in the United States but now is incorporated in a foreign country or is a subsidiary whose parent corporation is incorporated in a foreign country that meets the criteria specified in 6 U.S.C395(b) applied in accordance with the rules and definitions of 6
U.S.C. 395(c)).
B. QUALIFICATIONS REQUIREMENTS (FAR
9.2)
A qualification requirement is a government
requirement for testing or other quality assurance demonstration that must be completed before award of a contract.
The activity responsible for establishment of the qualification requirements must periodically furnish through the governmentwide point of entry GPE a seeking additional sources or products for qualification unless the contracting officer determines that such publication would compromise the national security.
Potential offerors need not be on a Qualified Bidders List
(QBL), Qualified Manufacturers List (QML), or Qualified Products List (QPL) if they demonstrate they can meet the requirements before the specified award date.
D. DEBARMENT, SUSPENSION, AND INELIGIBILITY (FAR 9.4)
“Debarment” means action taken by a debarring official
to exclude a contractor from government contracting and government-approved subcontractingfor a reasonable, specified period. Generally, debarment should not exceed three years, though exceptions to this are listed in FAR 9.406-4.
“Suspension” means action taken by a suspending official to disqualify a contractor temporarily from government contracting and government-approved subcontracting.
“Ineligible” means excluded from government contracting (and subcontracting, if appropriate) pursuant to statutory, executive order, or regulatory authority (other than the FAR).
Agencies are to solicit/award/consent to subcontract with responsible contractors only.
Debarment and suspension are discretionary actions that are imposed only in the public interest for the government’s protection and not for the purposes of punishment.
SYSTEM FOR AWARD MANAGEMENT EXCLUSIONS:
GSA operates the web-based System for Award Management (SAM) Exclusions. SAM
SAM lists all contractors debarred, suspended, proposed for debarment, declared ineligible, or excluded or disqualified under the nonprocurement common rule by agencies or by the Government Accountability Office (GAO). Each agency is responsible for updating SAM, generally within five days after the action becomes effective or an action is modified or rescinded. After opening of bids or receipt of proposals, and immediately prior to award, the contracting officer shall review the list to ensure that the agency does not solicit offers, award contracts, or consent to subcontracts with contractors on the list.
Contractors debarred, suspended, or proposed for debarment are excluded from receiving contracts, and agencies shall not solicit offers from, award contracts to, or consent to subcontracts with these contractors, unless the agency head determines that there is a compelling reason for such action. Contractors shall not enter into any subcontract other than a subcontract for a commercially available off-the-shelf item, with a contractor that has been debarred, suspended, or proposed for debarment unless there is a compelling reason to do so, refer to FAR 9.405(b) for limitations.
If a contractor intends to subcontract, other than a subcontract for a commercially available off-the-shelf item, with a party that is debarred, suspended, or proposed for debarment as evidenced by the party’s inclusion in the SAM Exclusions, a corporate officer or designee of the contractor is required by operation of the clause at 52.209-4, “Protecting the Government’s Interests when Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment,” to notify the contracting officer in writing before entering into such contract.
Notwithstanding the debarment, suspension, or proposed debarment of a contractor, agencies may continue contracts or subcontracts in existence at the time the contractor was debarred, suspended, or proposed for debarment unless the agency head directs otherwise
Overview of FAR Part 11 - Describing Agency Needs
Purpose: Establishes policies and procedures for determining agency needs (FAR 11.000).
Key Sections:
11.1 Selecting and Developing Requirements Documents
11.2 Using and Maintaining Requirements Documents
11.3 Acceptable Material
11.4 Delivery or Performance Schedules
11.5 Liquidated Damages
11.6 Priorities and Allocations
11.7 Variation in Quantity
11.8 Testing
FAR Part 11: Describing Agency Needs
Subpart 11.2 - Using and Maintaining Requirements Documents
Instructor Dialogue:
Subpart 11.2 focuses on the use and maintenance of requirements documents.
It’s essential to regularly review and update these documents to ensure they remain relevant and compliant with current policies.
This practice helps mitigate risks by preventing outdated or incorrect requirements from affecting procurement outcomes
FAR Part 11: Describing Agency Needs
Subpart 11.6 - Priorities and Allocations
Purpose: Ensures prioritization of contracts that support national defense and other critical needs (FAR 11.601).
Key Points:
Implementation of the Defense Priorities and Allocations System (DPAS) (FAR 11.602).
Prioritizing contracts that support national defense and critical infrastructure (FAR 11.603).
Coordination with relevant agencies to ensure proper allocation of resources (FAR 11.604).
DescribingAgencyNeeds
Agencies shall specify needs using
market research in a manner designed to promote full and open
competition, or maximum practicable competition
when using simplified acquisition procedures, with due regard to the nature of the supplies or services to
be acquired; and only include restrictive provisions or conditions to the extent necessary to satisfy the needs of the agency or as authorized by law.
Requirements Documents
Agencies may select from existing requirements documents, modify or combine existing requirements documents, or create new requirements documents to meet agency needs.
The order of precedence for requirements documents is:
- Documents mandated for use by law
- Performance-oriented documents (such as a PWS or SOO)
- Detailed design-oriented documents
- Standards, specifications and related publications issued by the government outside the Defense or Federal series
Market Acceptance
Criteria for demonstrating an item’s commercial market acceptance shall:
- Reflect the minimum need of the agency and be reasonably related to the demonstration of an item’s acceptability
- Relate to an item’s performance and intended use, not an offeror’s capability
- Be supported by market research
- Consider the entire relevant commercial market, including small business concerns
Using Brand-Name Specifications
The use of brand name or equal purchase descriptions may be advantageous under certain circumstances.
Brand name or equal purchase descriptions must include, in addition to the brand name, a general description of those
salient physical, functional, or performance characteristics of the brand name item that an “equal” item must meet to be
acceptable for award.
Use brand name or equal descriptions when the salient characteristics are firm requirements.
Delivery and Performance Schedules
For supplies or services, relevant factors when establishing a contract delivery or performance schedule include:
- Urgency of need
- Industry practices * Market conditions
- Transportation time * Production time
- Capabilities of small business concerns
- Administrative time to obtain and evaluate offers and award contracts
- Time for contractors to comply with conditions of contract performance * Time for the government to perform its obligations
Priorities and Allocations
DX = #1 First rated and second rated treated equally
DO = #2 First rated and second rated treated equally
Unrated = #3 First rated and second rated treated equally
Variation in Quantity
For construction, variation in estimated quantities of unit- priced items may be authorized.
When the variation between
the estimated quantity and the actual quantity of a unit-priced
item is more than plus or minus 15 percent, an equitable adjustment in the contract price shall be made upon the demand of either the government or the contractor.
The contractor may request an extension of time fi the quantity variation is such as to cause an increase in the time
necessary for completion.
The contracting officer must receive
the request in writing within 10 days from the beginning of the period of delay.
Acquisition officials, to the maximum extent practicable, should state requirements with respect to an acquisition of supplies or services in terms
*Functions to be performed,
- Performance required, or
- Essential physical characteristics.
Acquisition officials should define requirements in terms that enable and encourage offerors to supply
commercial items,
or to the extent that commercial items suitable to meet the agency’s needs are not available, nondevelopmental items, in response to the agency solicitations.
Offerors of commercial items and nondevelopmental items should be provided an opportunity to compete in any acquisition to fill such requirements.
Prime contractors and subcontractors at all tiers should be required to incorporate commercial items or nondevelopmental items as components of items supplied to the agency.
Requirements (in appropriate cases) should be modified to ensure that they can be met by commercial items or, to the extent that commercial items suitable to meet the agency’s needs are not available, nondevelopmental
C. LIQUIDATED DAMAGES (FAR 11.5)
This section contains policies and procedures for using liquidated damages clauses in solicitations and contracts for supplies, services, research and development, and construction. This subpart does not apply to liquidated damages for subcontracting plans (see 19.705-7) or liquidated damages related to the Contract Work Hours and Safety Standards (Contract Work Hours and Safety Standards Act). (See subpart 22.3.)
The contracting officer must consider
the potential impact on pricing, competition, and contract administration before using a liquidated damages clause.
Liquidated damages clauses should be used only when
(1) the time of delivery or timely performance is so important that the government may reasonably expect to suffer damage if the delivery or performance is delinquent, and
(2) the extent or amount of such damage would be difficult or impossible to estimate accurately or prove.
Liquidated damages are not punitive in nature nor are they negative performance incentives (see 16.402-2).
Liquidated damages are used to compensate the government for the probable damages it will experience.
Therefore, the liquidated damages rate must be a reasonable forecast of fair compensation for the harm that will be caused by late delivery or untimely performance of the particular contract.
D. PRIORITIES AND ALLOCATIONS (FAR
11.6)
The Defense Priorities and Allocations System (DPAS) authorizes the use of priorities to require
that contracts in support of the national defense be accepted and performed on a preferential or priority basis over all other contracts, and to allocate materials and facilities in such a manner as to promote the national defense.
There are two levels of priority, identified by the rating symbols “DO” and “DX.” DO-rated orders have equal priority with each other and take preference over unrated orders. DX-rated orders have equal priority with each other and take preference over both DO-rated and unrated orders.
E. VARIATION IN QUANTITY (FAR 11.7)
The government may authorize the acceptance of a variation in the quantities delivered under a fixed-price supply contract.
There should be no standard or usual variation percentage, and the variance amount should be based on the normal commercial practices of a particular industry. Generally, the difference should not exceed 10 percent, unless a different limitation is established by agency regulations. Consideration shall be given to the quantity to which the percentage variation applies.
FAR Part 16: Types of Contracts
Overview of FAR Part 16 - Types of Contracts
Purpose: Provides guidance on selecting and managing different types of contracts (FAR 16.000).
Key Sections:
16.1 Selecting Contract Types
16.2 Fixed-Price Contracts
16.3 Cost-Reimbursement Contracts
16.4 Incentive Contracts
16.5 Indefinite-Delivery Contracts
16.6 Time-and-Materials, Labor Hour, and Letter Contracts
16.7 Agreements
FAR Part 16: Types of Contracts
Subpart 16.1 - Selecting Contract Types
Purpose: Provides criteria for selecting the appropriate contract type (FAR 16.101).
Key Considerations:
Nature and complexity of the requirement (FAR 16.104(a)).
Uncertainties involved in contract performance (FAR 16.104(b)).
Need for flexibility and incentives (FAR 16.104(c)).
Market conditions and competition (FAR 16.104(d)).
FAR Part 16: Types of Contracts
Subpart 16.2 - Fixed-Price Contracts
Purpose: Establishes fixed-price contracts to provide a firm price for the work (FAR 16.201).
Key Features:
Contractor assumes full responsibility for performance costs (FAR 16.202-1).
Suitable for projects with well-defined requirements (FAR 16.202-2).
Includes firm-fixed-price and fixed-price with economic price adjustment (FAR 16.203).
FAR Part 16: Types of Contracts
Subpart 16.3 - Cost-Reimbursement Contracts
Purpose: Allows payment of allowable incurred costs to the extent prescribed in the contract (FAR 16.301).
Key Features:
Government assumes more risk by reimbursing allowable costs (FAR 16.301-1).
Suitable for projects with uncertain or unpredictable costs (FAR 16.301-2).
Includes cost-plus-fixed-fee and cost-plus-incentive-fee contracts (FAR 16.304).
FAR Part 16: Types of Contracts
Subpart 16.4 - Incentive Contracts
Purpose: Provides incentives to contractors to improve performance (FAR 16.401).
Key Features:
Incentives linked to achieving specific performance targets (FAR 16.402).
Includes fixed-price incentive and cost-reimbursement incentive contracts (FAR 16.403).
Encourages cost savings and efficiency (FAR 16.405).
FAR Part 16: Types of Contracts
Subpart 16.5 - Indefinite-Delivery Contracts
Purpose: Provides flexibility for acquiring supplies and services when the exact times or quantities are unknown (FAR 16.501).
Key Features:
Types include definite-quantity, indefinite-quantity, and requirements contracts (FAR 16.504).
Suitable for recurring needs (FAR 16.503).
Allows for flexibility in delivery schedules (FAR 16.505).
FAR Part 16: Types of Contracts
Subpart 16.6 - Time-and-Materials, Labor Hour, and Letter Contracts
Purpose: Provides contracts based on direct labor hours and materials used (FAR 16.601).
Key Features:
Suitable for projects with uncertain durations or scopes (FAR 16.601-1).
Includes time-and-materials and labor-hour contracts (FAR 16.602).
Letter contracts allow immediate start of work pending negotiation (FAR 16.603).
FAR Part 16: Types of Contracts
Subpart 16.7 - Agreements
Purpose: Establishes agreements that outline terms for future contracts (FAR 16.701).
Key Features:
Includes basic ordering agreements and blanket purchase agreements (FAR 16.702).
Provides pre-negotiated terms and conditions (FAR 16.703).
Facilitates faster procurement processes (FAR 16.704).
Buyers Risk
Highest to lowest
Fixed Price
- FFP
- FPw/EPA
- FPIncentive
T&M
- T&M
- Labor hour
Cost reimbursement
- Cost
- Cost plus
- Cost plus %
The cost-plus-a-percentage-of-cost system of contracting shall not be used
Cost-plus-percentage-of-cost contracts pay a fee that rises as the contractor’s costs rise. Because this contract type provides no incentive for the contractor to control costs it is not used.
16.2 Fixed-Price Contracts
A firm-fixed-price contract:
- Places maximum risk on the contractor
- Places maximum responsibility for profit (or loss) on the contractor
- Provides maximum incentive for the contractor to control costs and perform effectively
- Imposes minimum administrative burden on the contracting parties
- May be used in conjunction with a performance incentive or award fee if not based on cost
- Remains a firm-fixed-price contract when used with incentives
- May be used to purchase commercial items
16.2 Fixed-Price Contracts
Fixed-price incentive (FPI) contract
- A type of contract that provides for adjust-ing profit and establishing the final contract price by application of a formula based on the relationship of total final negotiated cost to total target cost
The final price is subject to a price ceiling, negotiated at the outset
16.2 Fixed-Price Contracts
Fixed-price contract with prospective price redetermination
A contract that provides for a firm-fixed-price for an initial period of contract deliveries or performance and prospective redetermination (at a stated time or times
during performance) of the price for subsequent periods of performance
16.2 Fixed-Price Contracts
Level of effort (LOE)
The devotion of talent or capability to a predetermined level of activity, over a stated period of time, on the basis of a fixed-price or cost-reimbursement pricing
arrangement; payment is usually based on effort expended rather than results achieved
16.3 Cost-Reimbursement Contracts
Cost-reimbursement contract
A form of pricing arrangement that provides for payment of allowable, allocable, and reasonable costs incurred in the performance of a contract to the extent that
such costs are prescribed or permitted by the contract
Types of cost-reimbursement contracts include:
* Cost
* Cost-plus-incentive-fee
* Cost-plus-award-fee
* Cost-plus-fixed-fee
The contracting officer shall document the rationale for selecting the contract type in the written acquisition plan and
ensure that the plan is approved and signed by at least one level above the contracting officer
Cost-reimbursement contracts may
not be used for acquisitions of commercial items
16.3 Cost-Reimbursement Contracts
Cost-plus-incentive-fee (CPIF) contract
A cost-reimbursement type of contract with a provision for a fee that is adjusted by a formula in accordance with the relationship between total allowable costs and
target costs.
Appropriate for services or development and test programs, as wel as others if use of both cost and technical performance incentives is desired and administratively practical.
16.3 Cost-Reimbursement Contracts
Cost-plus-award-fee (CPAF) contract
A cost-reimbursement type contract with special incentive fee provisions used to provide motivation for excellence in contract performance
Areas of “excellence” in performance may include:
*Quality
* Timeliness
* Ingenuity
* Cost effectiveness
16.3 Cost-Reimbursement Contracts
Cost-plus-fixed-fee (CPFF) contract
A cost-reimbursement type contract that provides for the payment of a fixed fee to the contractor
The fee does not vary with actual costs, but may be adjusted as a result of any subsequent changes in the work or services to be performed under the contract
There are two types:
* Completion form has a clearly defined task with a definite
goal and specific end product
* Term form comes with a scope of work described in general
terms
16.4 Incentive Contracts
Fixed-price-incentive (FPI) contract
A type of contract that provides for adjusting profit and establishing the final contract price by application of a formula based on the relationship of total final
negotiated cost to total target cost
The final price is subject to a price ceiling, negotiated at the outset
There are two types of FPI contracts:
- Firm target specifies target cost, target profit, price ceiling, and a profit adjustment formula. These elements are all negotiated at the
outset.
- Successive target negotiates final cost target later.
16.5 Indefinite-Delivery Contracts
Requirements contact
An indefinite-delivery contract that provides for filling all actual purchase requirements of designated government activities for supplies or services during a specified contract period
Deliveries or performance to b scheduled by placing orders with the contractor
Provides for the filling of all actual purchase requirements of specific supplies or services for a designated activity during a specified contract period
16.6 Time-and-Materials, Labor-Hour, and Letter Contracts
Time-and-materials contract
Provides for acquiring supplies/services on the basis of direct labor hours at
specified fixed hourly rates that include wages, overhead, profit, and materials
Used only when ti is not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence
16.6 Time-and-Materials, Labor-Hour, and Letter Contracts
Letter contract
A written, preliminary contractual instrument that authorizes the contractor to begin
immediately manufacturing supplies or performing services
Must include price ceiling (“not to exceed”) and milestones for definitization
Used when the government’s interests demand that the contractor’s work must commence
immediately and it is
not possible to negotiate a definitive contract in sufficient time
Must be superseded by a definitized contract at the earliest
possible date
16.7 Agreements
Basic ordering agreement
Contains terms and conditions for future orders and describes
supplies or services to be provided and methods for pricing, issuing, and delivering the orders
Basic agreements and basic
ordering agreements are not contracts
A FIXED-PRICE CONTRACT WITH AN AWARD FEE is
appropriate when the government wishes to motivate a contractor and other incentives cannot be used because contractor performance cannot be measured objectively.
Such contracts include a fixed price (including normal profit) for the effort. This price is paid for satisfactory performance.
Award fee earned (if any) is paid in addition to that fixed price. This contract type is appropriate when the administrative cost of conducting award-fee evaluations is not expected to exceed the expected benefits; procedures have been established for conducting the award-fee evaluation; the award-fee board has been established; and an individual above the level of the contracting officer approved the fixed-price-award-fee incentive.
There are two forms of cost-reimbursement incentive contracts: cost-plus-incentive-fee and cost-plus-award-fee (reference paragraph c).
A DEFINITE-QUANTITY CONTRACT provides
for delivery of a definite quantity of specific supplies or services for a fixed period, with deliveries or performance to be scheduled at designated locations upon order.
It is appropriate when it can be determined in advance that a definite quantity of supplies or services will be required during the contract period and the supplies or services are regularly available or will be available after a short lead time.
An INDEFINITE-QUANTITY contract provides
for an indefinite quantity, within stated limits, of specific supplies or services to be furnished during a fixed period, with deliveries or performance to be scheduled by placing orders.
Quantity limits may be expressed in terms of numbers of units or as dollar values. The contract shall require the government to order and the contractor to furnish at least a stated minimum quantity of supplies or services.
In addition, if ordered, the contractor shall furnish any additional quantities, not to exceed the stated maximum.
The contracting officer should use an indefinite-quantity contract only when a recurring need is anticipated. The government prefers to make multiple awards.
The contracting officer must, to the maximum extent practicable, give preference to making multiple awards under a single solicitation for the same or similar supplies or services to two or more sources. (Exception: indefinite-quantity contracts for advisory and assistance services.)
The contracting officer must provide each awardee a fair opportunity to be considered for each order exceeding the MPT issued under multiple delivery-order contracts or multiple task-order contracts.
Exceptions include:
- Urgency of need results in an unacceptable delay;
- Only one awardee is capable of performing;
- The order must be issued on a sole-source basis in the interest of economy and efficiency as a logical follow-on to an order already issued under the contract;
- It is necessary to place an order to satisfy a minimum guarantee;
- For orders exceeding the simplified acquisition threshold a statute expressly authorizes or requires that the purchase be made from a specified source; and
- In accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644(r)), contracting officers may, at their discretion, set aside orders for any of the small business concerns identified in 19.000(a)(3). When setting aside orders for smallbusiness concerns, the specific small business program eligibility requirements identified in part 19 apply. Orders placed under a task-order contract or delivery-order contract awarded by another agency (i.e., a governmentwide acquisition contract or multiagency contract) are not exempt from developing acquisition plans (see subpart 7.1), and an information technology acquisition strategy (see part 39). In addition, placing such orders may not be used to circumvent conditions and limitations imposed on the use of funds (e.g., 31 U.S.C. 1501(a)(1)).
F. TIME-AND-MATERIALS, LABOR-HOUR, AND LETTER CONTRACTS (FAR 16.6)
TIME-AND-MATERIALS CONTRACTS provide
for acquiring supplies/services on the basis of direct labor hours at specified fixed hourly rates that include wages, overhead, profit, and materials (at cost).
They may be used only when it is not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence.
This contract type is appropriate for engineering and design services.
LABOR-HOUR CONTRACTS are
a type of time-and-materials contract differing only in that materials are not furnished by the contractor (often used in conjunction with other contract types).
BASIC ORDERING AGREEMENTS are
written instruments of understanding that contain terms and conditions that apply to future orders; a description of supplies and services to be provided; and methods for pricing, issuing, and delivering future orders under the basic ordering agreement. They are not contracts.
FAR Part 28: Bonds and Insurance
Subpart 28.1 - Bonds and Other Financial Protections
Instructor Dialogue
Subpart 28.1 establishes the use of bonds to protect the government against financial loss.“
“Types of bonds include bid bonds, performance bonds, and payment bonds.“
“Bid bonds ensure that bidders will honor their bids.“
“Performance bonds guarantee the contractor’s performance.“
“Payment bonds ensure that subcontractors and suppliers are paid.”
FAR Part 28: Bonds and Insurance
Subpart 28.2 - Sureties and Other Security for Bonds
Purpose: Provides guidelines for the use of sureties and other security forms (FAR 28.200).
Key Features:
Acceptable sureties include corporate sureties and individual sureties (FAR 28.202-1).
Corporate sureties must be listed in the Department of the Treasury’s Listing of Approved Sureties (FAR 28.202-2).
Individual sureties must pledge assets to cover the bond amount (FAR 28.203-1).
Alternatives to sureties include letters of credit and escrow accounts (FAR 28.204).
FAR Part 28: Bonds and Insurance
Subpart 28.3 - Insurance
Instructor Dialogue:
Subpart 28.3 outlines the requirements for insurance in government contracts.“
“Contractors must obtain and maintain insurance as required by the contract.“
“Types of required insurance may include worker’s compensation, liability, and property insurance.“
“Contractors must provide evidence of insurance coverage.”
Bond
A written instrument executed by a first party and a second party (except as provided in 28.204), to assure fulfillment of the first party’s obligations to a third
party identified in the bond
Assures payment, to the extent stipulated, of any loss sustained by the third party if the bidder or contractors obligations are not met
The first party: the principal - the bidder or contractor
The second party: the surety — usually an insurance company
The third party: the obligee - the government
Bid Guarantees
Penal sum
Penal amount
The amount of money specified in a bond (or a percentage of the bid price in a bid bond) as the maximum payment for which the surety is obligated
The amount of security required to be pledged to the government in liuw of a corporate or individual surety for the bond
Bonds for Construction Contracts
Bonds statute requires performance and payment bonds for any U.S. construction
contract exceeding $150,000
The contractor shall furnish all
bonds or alternative payment protection before receiving a notice to proceed with the work or being allowed to start work
Penal amount of performance bonds must equal 100% of the original contract price
Amount of payment bonds must equal 100% of the original contract price
If the contract price increases, the bond amount must increase
by 100% of the increase
Sureties
Individual surety
* One person, versus a business entity, is liable for the entire penal amount of the bond
Corporate surety
* Licensed under various insurance laws, and, under its charter, has legal power to act as surety for others
Co-surety
* Two or more sureties are jointly liable for the penal sum of the bond
BOND TYPES:
- Advance payment bond-secures fulfillment of the contractor’s obligations under an advance payment provision;
*Annual bid bond—a single bond, in lieu of separate bonds, which secures all bids on other than construction contracts requiring bonds submitted during a specific fiscal year;
- Annual performance bond-a single bond, in lieu of separate performance bonds, to secure fulfillment of the contractor’s obligations under contracts other than for construction requiring bonds entered into during a specific fiscal year;
*Patent infringement bond-secures fulfillment of the contractor’s obligations under a patent provision;
- Payment bond-ensures payments as required by law to all persons supplying labor or material in the prosecution of the work provided for in the contract; and
*Performance bond-secures performance and fulfillment of the contractor’s obligations under the contract.
The Bonds statute (formerly Miller Act) requires performance and payment bonds
for any construction contract valued in excess of the amount referred to in
(FAR 28.102-3(a). Generally, such bonds are not required for other than construction contracts; however, in some situations, performance bonds may be appropriate.
FAR Part 32: Contract Financing
Overview of FAR Part 32 - Contract Financing
Purpose: Provides policies and procedures for contract financing (FAR 32.000).
Key Sections:
32.1 Non-Commercial Item Purchase Financing
32.2 Commercial Item Purchase Financing
32.3 Loan Guarantees for Defense Production
32.4 Advance Payments for Non-Commercial Items
32.5 Progress Payments Based on Costs
32.6 Contract Debts
32.7 Contract Funding
32.8 Assignment of Claims
32.9 Prompt Payment
32.10 Performance-Based Payments
32.11 Electronic Funds Transfer
Contract Financing Methods
The most commonly used financing
methods include:
Advance payments
Advances of money by the government to a prime contractor
Loan guarantees
Guarantees backed by the Federal Reserve designed to enable contractors to obtain financing from private sources
Performance-based payments
Made on the basis of performance measured by objective, quantifiable methods, accomplishment of defined events, or other quantifiable measures of results
Order of Preference
Private financing without government guarantee
Customary contract financing
Loan guarantees
Unusual contract financing
Advance payments
Commercial Item Purchase Financing
Financing for the purchase of
commercial items is normally the contractor’s responsibility.
Commercial advance payment
* The payment is made before any performance of work
* The payment shall not exceed 15% of the contract price
* Payments are not subject to advance payments for noncommercial items
Commercial interim payment
* A payment that is not a commercial advance payment or a delivery payment
* Payment is given to the contractor after some work has been done
Delivery payment
*Payment for accepted supplies or services, including payments for accepted partial deliveries
Loan Guarantees for Defense Production
Federal Reserve Banks are authorized to act, on behalf of guaranteeing agencies, such as the DoD, as fiscal agents of the U.S. in the making of loan guarantees for defense
production.
Same as conventional loans made by banks, except:
* The guaranteeing agency is obligated, on demand of the lender, to purchase a stated percentage of the loan
* To share any losses in the amount of the guaranteed percentage
Contract Funding
Anti-Deficiency Act:
- No officer or employee of the government may create or
authorize an obligation in excess of the funds available, or in advance of appropriations unless otherwise authorized by law - Before executing a contract, the contracting officer must obtain written assurance from responsible fiscal authority that adequate funds are available, or expressly condition the contract upon availability of funds
Limitation of Cost or Funds
Contracts that contain the Limitation of Cost
or Funds clause must be monitored closely
The contracting officer, upon learning that the contractor is approaching the estimated cost or limit of the funds allotted must promptly notify the
contractor in writing that:
* Additional funds have been allotted or the estimated cost increased,
* The contract will not be further funded,
* The contract is to be terminated, or
* The government si considering whether to allot additional funds or increase the estimated cost.
Assignment of claims
The transfer or making over by the contractor to a bank, trust company or other financing institution, as security for a loan to the contractor, of its right to be paid by the government for contract performance
A contractor may assign monies due or to become due under a government contract
only when:
* The value exceeds $1,000,
* The assignment is made to a bank, trust company, or other
financing institution,
* The contractual document does not prohibit the assignment, and
* The assignee sends a written notice of the assignment to the contracting officer or the agency head.
CONTRACT FINANCING METHODS
- Advance payments advances of money by the government to a prime contractor;
- Progress payments based on costs-made on the basis of costs incurred by the contract or as work progresses;
- Loan guarantees guarantees backed by the Federal Reserve designed to enable contractors to obtain financing from private sources;
*Partial payments for accepted supplies and services-more of a payment versus financing method;
- Progress payments based on a percentage or stage of completion-again, more of a payment versus financing method
Performance-based payments-made on the basis of performance measured by objective, quantifiable methods, accomplishment of defined events, or other quantifiable measures of results
ORDER OF PREFERENCE
Private financing without government guarantee (it is not intended, however, that the con-tractor be required to obtain private financing at unreasonable terms or from other agencies); customary contract financing; loan guarantees; unusual contract financing; advance payments.
Unusual contract financing is any contract financing arrangement that deviates from customary contract financing procedures delineated in
Offerors may propose only the customary contract financing specified in the solicitation.
If the contractor is a small business concern, the contracting officer must give special attention to meeting the contractor’s financial need. A contractor’s receipt of a CoC from the Small Business Administration has no bearing on the contractor’s need for or entitle-ment to contract financing
The contracting officer is not to treat the contractor’s need for contract financing as a handicap in making the contract award; e.g, as a responsibility factor or evaluation criterion, as long as the contractor or offeror meets the standards prescribed for responsible prospective contractors at 9.104. Also, if a contractor failed to indicate a need for contract financing before the contract was awarded, it does not disqualify them from seeking contract financing after award.
Commercial interim payments and commercial advance payments may be made under the following circumstances:
contract item financed is a commercial supply or service; contract price exceeds the simplified acquisition threshold; contracting officer determines it is appropriate/customary in the commercial marketplace to make financing payments for the item and determines it is in the best interest of the government; adequate security is obtained; or prior to any performance of work under the contract, the aggregate of commercial advance payments shall not exceed 15 percent of contract price (competitive environment). If contract is sole source, adequate consideration obtained; and concurrence from the payment office regarding liquidation provisions, if required.
The Limitation of Cost clause (FAR 52.232-20) is used in cost-reimbursement contracts that are fully funded.
The Limitation of Funds clause (FAR 52.232-22) is used
in incrementally funded cost-reimbursement contracts.
Contracts that contain a Limitation of Cost or Funds clause must also be monitored closely. The contracting officer, upon learning that the contractor is approaching the estimated cost or limit of funds allotted, must promptly notify the contractor in writing that (1) additional funds have been allotted or the estimated cost increased, (2) the contract will not be further funded, (3) the contract is to be terminated, or (4) the government is considering whether to allot additional funds or increase the estimated cost.
FAR Part 49: Termination of Contacts
Overview of FAR Part 49 - Termination of Contracts
Purpose: Establishes policies and procedures for terminating contracts (FAR 49.000).
Key Sections:
49.1 General Principles
49.2 Additional Principles for Fixed-Price Contracts Terminated for Convenience
49.3 Additional Principles for Cost-Reimbursement Contracts Terminated for Convenience
49.4 Termination for Default
49.5 Contract Termination Clauses
49.6 Contract Termination Forms and Formats
Instructor Dialogue:
“FAR Part 49 focuses on the policies and procedures for terminating contracts.”
“This part helps manage risks associated with contract termination, ensuring that the process is handled fairly and efficiently.”
“Understanding these procedures is crucial for mitigating financial and operational risks in contract management.”
Termination for convenience
Termination of a contract by the unilateral right of the government to do so, for the convenience of the government when the contract no longer serves the government’s best interests
Terminations for convenience often result from a change in government
priorities, program termination, downsizing, or other significant events that were not anticipated at the time of contract formation.
When the government pursues a termination for convenience, a termination agreement is negotiated with the seller.
The government always has the right ot terminate a contract for convenience.
“Convenience” means the convenience of the government.
Termination for default
Termination of a contract resulting from one party’s failure to perform one or more actions required by the contract
Termination for default is normally a right of law in addition ot a right vested as the result of inclusion of appropriate terms and conditions in the contract.
If the surety does not arrange for completion of the contract,
the contracting officer wil normaly arrange for completion of
the work by awarding a new contract based on the same plans and specifications.
Alternativest oTermination
In certain cases, lieu of a termination, a contracting officer may effect a no-cost settlement.
This can be done when it is known that
The contractor will accept it,
No government-furnished property was furnished, and
The contractor has no outstanding debts or obligations to the government.
Excusable Delays
The contractor shall not be in default because of any failure to perform this contract under its terms fi the failure arises from causes beyond the
control and without the fault or negligence of the contractor. Examples include:
Acts of God or of the public enemy
Acts of the government in either its sovereign or contractual capacity
Fire
Flood
Epidemic
Quarantine restrictions
Strike
Freight embargo
Unusually sever weather
FAR PART 49. TERMINATION
OF CONTRACTS
A. GENERAL PRINCIPLES (FAR 49.1)
The government exercises termination for convenience or default when it is in its best interests.
No-cost settlements may be effected in lieu thereof only when it is known that the contractor will accept one, government-furnished property was not furnished,
and there are no outstanding payments/debts due the government or other contractor obligations
When the price of the undelivered balance of the contract is less than the amount prescribed in
FAR 49.101(c), the contract should not normally be terminated for convenience but rather permitted to reach completion.
If the same item is under contract with both a large and small business and it becomes necessary to terminate for convenience part of the units, preference will be given to continue performance of the small business over the large business unless not in the government’s interest.
Terminations are generally settled by one of the following methods: negotiated agreement, terminating contracting officer (TCO) determination, costing out under SF 1034, or a combination of these methods.
When possible, the TCO should negotiate a fair and prompt settlement with the contractor. The TCO shall settle a settlement proposal by determination only when it cannot be settled by agreement.
After receiving notice of termination, the prime contractor shall
stop work immediately on the terminated portion of the contract and stop placing subcontracts; terminate all subcontracts related to the terminated portion of the prime contract; immediately advise the TCO of any special circumstances precluding the stoppage of work; perform the continued portion of the contract and submit promptly any supported request for equitable adjustment; take necessary or directed action to protect and preserve government furnished property and deliver it to the government; promptly notify the TCO in writing of any legal proceedings growing out of any subcontract or other commitment related to the terminated portion of the contract; settle outstanding liabilities; promptly submit the settlement proposal; and dispose of terminated
The TCO shall estimate the funds required to settle the termination, and within
30 days after the receipt of the termination notice, recommend the release of excess funds to the contracting officer.
The initial deobligation of excess funds should be accomplished in a timely manner by the contracting officer (or the TCO, if delegated the responsibility). The TCO shall not recommend the release of amounts under $1,000 unless requested by the contracting officer.
B. ADDITIONAL PRINCIPLES FOR FIXED-PRICE CONTRACTS TERMINATED FOR
CONVENIENCE (FAR 49.2)
A settlement should compensate the contractor fairly for the work done and the preparations made for the terminated portions of the contract, including
a reasonable allowance for profit. Fair compensation is a matter of judgment and cannot be measured exactly.
The use of business judgment, as distinguished from strict accounting principles, is the heart of a settlement.
The primary objective is to negotiate a settlement by agreement.
The TCO shall allow profit on preparations made and work done by the contractor for the terminated portion of the contract but not on the settlement expenses.
Anticipatory profits and consequential damages shall not be allowed. In the negotiation or determination of any settlement, the TCO shall not allow profit if it appears that the contractor would have incurred a loss had the entire contract been completed.
FAR Part 19: Small Business Programs
Overview of FAR Part 19 - Small Business Programs
Purpose: Encourages the use of small businesses in federal contracting to promote economic development and wealth distribution
Key Sections
- 19.1 Size Standards
- 19.2 Policies
- 19.3 Determination of Small Business Status for Small Business Programs
- 19.4 Cooperation with the Small Business Administration
- 19.5 Small Business Total Set-Asides, Partial Set-Asides, and Reserves
- 19.6 Certificates of Competency and Determinations of Responsibility
- 19.7 The Small Business Subcontracting Program
- 19.8 Contracting with the Small Business Administration (The 8(a) Program)
- 19.13 Historically Underutilized Business Zone (HUBZone) Program
- 19.14 Service-Disabled Veteran-Owned Small Business Procurement Program
- 19.15 Women-Owned Small Business Program
FAR Part 19: Small Business Programs
Subpart 19.6 - Certificates of Competency and Determinations of Responsibility and 19.7 - The Small Business Subcontracting Program
Purpose:Ensures small businesses are competent and responsible (FAR 19.601).
KeyFeatures:
SBA-issued certificates of competency for qualified small businesses (FAR 19.602).
Subcontracting plans for large contractors to include small businesses (FAR 19.701).
FAR Part 19: Small Business Programs
Subpart 19.8 - Contracting with the Small Business Administration (The 8(a) Program)
Purpose: Supports socially and economically disadvantaged businesses (FAR 19.800).
KeyFeatures:
The 8(a) program provides opportunities for disadvantaged businesses (FAR 19.801).
Procedures for 8(a) contract awards (FAR 19.802).
FAR Part 19: Small Business Programs
Subpart 19.13 - Historically Underutilized Business Zone (HUBZone) Program and 19.14 - Service-Disabled Veteran-Owned Small Business Procurement Program
Purpose: Promotes economic development in underutilized areas and supports veteran-owned businesses (FAR 19.1300).
KeyFeatures:
HUBZone program incentives for businesses in underutilized areas (FAR 19.1301).
Service-disabled veteran-owned small business set-asides (FAR 19.1401).
The Small Business Administration
Created by the Small Business Act of 1953
An independent agency of the federal government
Aids, counsels, assist and protects the interests of small business
concerns
FAR Part 19 implements acquisition-related sections of the Small Business Act, applicable sections of the Armed Services Procurement Act, and Executive Order 12138.
Size Standards
NAICS codes are updated by the Office of Management and Budget through its Economic Classification Policy Commitee.
North American Industry Classification System
NAICS Manual groups different businesses into industries
Each industry receives a six digit code
Each digit of the NAICS code categorizes the industry more specifically.
Each digit of the NAICS code categorizes the industry more specifically.
459210
45 Economic sector
9 Economic subsector
2 Industry group
1 North American Industry
0 National Industry
Table of Size Standards
https://www.sba.gov/document/support-table- size-standards
AICS Codes
445291 445292 445298 445320
NAICS Industry Description
Baked Goods Retailers Confectionery and Nut Retailers Al Other Specialty Food Retailers Beer, Wine, and Liquor Retailers
Size standards ni millions of dollars
16, 19, 20
Size starndards in number of employees
Size Standards
Updated every five years
New NAICS codes are not
available until the SBA publishes a
corresponding industry size standard
Agencies apply size standards by:
Classifying the product or service by its industry ni the NAICS Manual
Identifying the size standard established for that industry *
Specifying the size standard in the solicitation so that offerors can appropriately represent themselves as small or large
For size standard purposes, a product or service shall be classified ni only one industry, whose definition best describes its principal nature.
If a product or service could be
classified ni multiple industries with different size standards, the size standard for the industry accounting for the greatest percentage of the contract price applies.
SmallBusinessContractingPolicy
The contracting officer must, to the extent practicable:
Plan acquisitions such that, fi
practicable, more than one small
business concern may perform the work
Publicize solicitations and contract awards through the
governmentwide point of entry; NCMA
Preparing solicitations that allow the maximum time practical for response
Divide proposed acquisitions of into smaller lots to permit offers on
quantities less than the total requirement
Ensure that delivery schedules are established o n a realistic basis that
will encourage small business participation
Small Business Contracting Policy
There is no order of precedence among the
8(a) Program, HUBZone Program, Service- Disabled Veteran-Owned Small Business
Procurement Program, or Women-Owned Small Business Program.
Protest of a Size Representation
An offeror may represent that it is a small business for a solicitation if:
* It meets the applicable definition, and
* SBA has not determined it a s other than small
A contracting officer who receives a protest, ! or who wishes to protest the small business representation of an offeror, shall forward the protest to the SBA area office where the
concern in question is located
To be timely, a protest must be received by the contracting officer within five days of bid opening (for sealed bids) or receipt of notification of the apparently successful offeror (in negotiated acquisitions).
The SBA will review evidence of the small business status of the offeror and make a decision within 15 days.
Set-Asides for Small Business
For acquisitions above the simplified acquisition threshold, the priority shall be:
- 8(a), HUBZone, Service-Disabled Veteran-Owned Small Business, or Women-Owned Small Business
- Small business set-aside
- Acquisition using full and open competition
Exceeding Micropurchase Not exceeding SAT
Automatically reserved exclusively for small business concerns
Shall be set aside for small business
Exceeding SAT
Should be set-aside for small business if there is a reasonable expectation of at least two small business offerors.
Certificate of Competency
The certificate issued by the Small Business Administration stating that the holder is responsible (with respect to all elements of responsibility) for the purpose of
receiving and performing a specific government contract
If an apparent successful small business is determined to be nonresponsible, the contracting officer shall:
* Withhold contract award, and
* Notify the cognizant SBA area office
Within 15 business days of receiving this notification, the SBA office shall:
* Notify the oferor of the COs’ decision, and 15
* Provide the small business an opportunity ot apply for a COC
Upon timely receipt of an application, the SBA shall:
* Review the offeror’s responsibility,
* Determine whether to issue a COC, and
* Notify the offeror and the contracting officer of the decision
If a COC si issued, the CO shal l award the contract to the offeror.
fI the SBA does not issue a COC within 51 days, award is made to another responsible and appropriately selected offeror.
A subcontracting plan is required for solicitations:
For contracts or contract modifications
For which subcontracting opportunities exist
That are expected to exceed
Supplies o r services
$750,000
Construction $1.5 million
An acceptable subcontracting plan must contain:
Separate percentage goals for using small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns as subcontractors
A description of the supplies and services to be subcontracted, and
Identification of the types planned for subcontracting to small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, and women-owned small business concerns
The name of an individual employed by the offeror who wil administer the offeror’s subcontracting program, and a description of the duties of that individual
The 8(a) Program
To qualify as a small disadvantaged business, an offeror must:
Be a small business for its primary industry classification
Demonstrate good character and potential for success
Be not less than 51% owned and controlled by socially and
economically disadvantaged individuals who are U.S. citizens and reside in the United States.
Section 8(a) of the Small Business Act authorizes the SBA to enter into all types of contracts with other agencies and let subcontracts for
performing those contracts to firms eligible for program
participation.
Contracts may be awarded to the SBA for performance by eligible 8(a) firms on either a sole source or competitive basis.
The SBA and an agency cooperate to match the agency’s requirements with the capabilities of 8(a) concerns.
To qualify as a service- disabled veteran-owned small
business, an offeror must be:
A small business for its primary industry classification,
Not less than 51%
directly owned and controlled by one or more veterans with a service-
connected disability, as determined by the VA or DoD.
Created by the Veterans Benefit Act of 2003
Developed to provide federal
contracting assistance to service-disabled veteran-owned small business concerns
The contracting officer must, to the extent practicable, provide maximum participation opportunity to small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and woman-owned small business concerns in acquisitions by taking the following actions:
- Plan acquisitions such that, if practicable, more than one small business concern may perform the work;
- Before issuing solicitations, make every reasonable effort to find additional small business concerns, unless lists are already excessively long and only some of the concerns on the list will be solicited. This effort should include contacting the agency SBA procurement center representative, or if there is none, the SBA office serving the activity;
- Publicize solicitations and contract awards through the GPE;
- In the event of equal low bids, awarding first to small business concerns which are also labor surplus area concerns, and second to small business concerns that are not also labor surplus
area concerns; and - Preparing solicitations that allow the maximum time practicable for response, and furnishing necessary information or explaining where to obtain or examine it, and other related information.
- Divide proposed acquisitions of supplies and services (except construction) into reasonably
small lots to permit offers on quantities less than the total requirement. - Ensure that delivery schedules are established on a realistic basis that will encourage small business participation.
REREPRESENTATION REQUIREMENTS (FAR
19.301-2 AND 19.302(K))
A contractor that represented itself as a small business concern before contract award must rerepresent its size status for the NAICS code upon the occurrence of any of the following:
Within 30 days of execution of a novation agreement or within 30 days after modification of the contract to include the clause
52.219-28, “Post-Award Small Business Program Rerepresentation,” if the novation agreement was executed prior to inclusion of this clause in the contract;
Within 30 days after a merger or acquisition of the contractor that does not require a novation or within 30 days after modification of the contract to include the clause 52.219-28, “Post-Award Small Business Program Rerepresentation,” if the merger or acquisition occurred prior to inclusion of this clause in the contract; and
For long-term contracts,
* Within 60 to 120 days prior to the end of the fifth year of the contract, and
* Within 60 to 120 days prior to the date specified in the contract for exercising any option thereafter.
In order to affect a specific solicitation, a protest must be timely. To be timely, a protest
by any concern or other interested party must be received by the contracting officer by the close of business of the fifth business day after bid opening (for sealed bids) or receipt of the special notification from the contracting officer that identifies the apparently successful offeror (in negotiated acquisitions).
A protest may be made verbally if it is confirmed in writing either within the five-day period or by letter postmarked no later than one business day after the verbal protest.
A protest may be made in writing if it is delivered to the contracting officer by hand, telegram, or letter postmarked within the five-day period.
E. SET-ASIDES FOR SMALL BUSINESS (FAR 19.5)
In accordance with FAR 19.502-2, small business set-asides have priority
over acquisitions using full and open competition.
The purpose of small business set-asides is to award certain acquisitions exclusively to small business concerns.
Determinations to make a set-aside may be unilateral (made by the contracting officer) or joint (recommended by the SBA procurement center representative and concurred in by the contracting officer). Unilateral determinations are preferred.
Acquisitions that are over the MPT but not over the SAT in E are automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery.
The contracting officer shall set aside any acquisition over the SAT for small business participation when there is a reasonable expectation that offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns, and award will be made at fair market prices.
Set-asides may be total or partial.
Total set-asides are addressed at FAR 19.502-2 while FAR 19.502-3 provides details on partial set-asides.
The contracting officershall set aside a portion of an acquisition that is not subject to SAP, except for construction, for exclusive small business participation when a total set-aside is not appropriate and the requirement is severable into two or more economic production runs or reasonable lots where one or more small business concerns are expected to have the technical competence and productive capacity to satisfy the set-aside portion of the requirement at a fair market price. A partial set-aside shall not be made if there is a reasonable expectation that only two concerns (one large and one small) with capability will respond with offers unless authorized by the head of a contracting activity on a case-by-case basis. Similarly, a class of acquisitions, not including construction, may be partially set aside.
Under certain specified conditions, partial set-asides may be used in conjunction with multiyear contracting procedures.
For multiple-award contracts there are three acquisition techniques encouraged to facilitate contracting with small businesses:
* Setting aside part or parts of the requirement.
* Reserving one or more contract awards.
* Setting aside orders place against multiple-award contracts.
None of the following is, in itself, sufficient cause for not setting aside an acquisition: a large percentage of previous contracts for the required items) have been placed with small business concerns, the item is on a qualified products list, a period of less than 30 days is available for receipt of offers, or the acquisition is classified. (See FAR 19.502-6 for additional insufficient causes for not setting aside an acquisition.)
Contracting officers may reject SBA’s set-aside recommendations; however, SBA may appeal. Pending resolution, all action on the acquisition is suspended.
This requirement does not apply to purchases at or below the MPT or purchases from required sources of supply under part 8.
In making an award that requires a subcontracting plan, the contracting officer shall
consider the contractor’s compliance with the subcontracting plans submitted on previous contracts as a factor in determining contractor responsibility and ensure that a subcontracting plan was submitted when required.
The contracting officer shall notify the SBA procurement center representative of the opportunity to review the proposed contract (including the plan and supporting documentation)
and shall provide the representative a reasonable time to review the material and submit advisory recommendations, but failure of the representative to respond in a reasonable period of time shall not delay contract award.
The contracting officer shall determine any fee that may be payable if an incentive is used in conjunction with the subcontracting plan, and shall ensure that an acceptable plan is incorporated into and made a material part of the contract.
Letter contracts and similar undefinitized instruments, which would otherwise require a sub-contracting plan shall contain at least a preliminary basic plan addressing the requirements of 19.704 and in such cases require the negotiation of the final plan within 90 days after award or before definitization, whichever occurs first.
J. THE SERVICE-DISABLED
VETERAN-OWNED SMALL BUSINESS
PROCUREMENT PROGRAM (FAR 19.14)
The Veterans Benefit Act of 2003 created the procurement program for small business concerns owned and controlled by service-disabled veterans (commonly referred to as the “Service-Disabled Veteran-owned Small Business (SDVOSB) Procurement Program”). The purpose of the SDVOSB Program is to
provide federal contracting assistance to service-disabled veteran- owned small business concerns.
At the time that a service-disabled veteran-owned small business concern submits its offer, it must represent to the contracting officer that it is a service-disabled veteran-owned small business concern and a small business concern under the North American IndustryClassification System (NAICS) code assigned to the procurement.
The contracting officer shall verify that the offeror:
Is registered in the System for Award Management (SAM);
Is self-certified as an EDWOSB or WOSB concern in SAM; and
Has submitted documents verifying its eligibility at the time of initial offer to the
WOSB Program Repository.
The contract shall not be awarded until all required documents are received.
FAR Part 22: Application of Labor Laws to Government Acquisitions
Overview of FAR Part 22 - Application of Labor Laws to Government Acquisitions
Purpose: Ensures fair labor practices in government contracts (FAR 22.000).
Key Sections:
22.1 Basic Labor Policies
22.2 Convict Labor
22.3 Contract Work Hours and Safety Standards Act
22.4 Labor Standards for Contracts Involving Construction
22.5 Use of Project Labor Agreements for Federal Construction Projects
22.6 Contracts for Materials, Supplies, Articles, and Equipment
22.8 Equal Employment Opportunity
22.9 Nondiscrimination Because of Age
22.10 Service Contract Labor Standards
22.11 Professional Employee Compensation
22.13 Equal Opportunity for Veterans
22.14 Employment of Workers with Disabilities
22.15 Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor
22.16 Notification of Employee Rights Under the National Labor Relations Act
22.17 Combating Trafficking in Persons
22.18 Employment Eligibility Verification
22.19 Establishing a Minimum Wage for Contractors
22.21 Establishing Paid Sick Leave for Federal Contractors
Basic Labor Policies
Agencies must maintain sound relations with industry and labor to ensure prompt receipt of information involving labor relations and to assure that the government obtains needed supplies and services without delay.
Agencies shall remain impartial concerning any dispute between labor and contractor management and not undertake the conciliation, mediation, or arbitration of a labor dispute.
To the extent practicable, agencies should ensure that the parties to the dispute use all available methods to resolve it.
Basic Labor Policies
Available methods for labor dispute resolution include:
Services of the National Labor Relations Board
Federal Mediation and Conciliation Service
National Mediation Board
Other federal, state, or local agencies
Private agencies
Labor Standards for Construction Contracts
Separate labor standards apply to contracts valued at greater
than $2,000, for construction, alteration, or repair, including painting and decorating, of public buildings and public works.
Wage Rate Requirements statute:
Formerly known as Davis-Bacon Act
No laborer or mechanic employed on the site shall receive less than
prevailing wage rates as determined by the Secretary of Labor
Labor Standards for Construction Contracts
Separate labor standards apply to contracts valued at greater
than $2,000, for construction, alteration, or repair, including painting and decorating, of public buildings and public works.
Kickbacks statute:
Formerly Copeland “Anti-Kickback” Act
Prohibits inducing any person to
give up any compensation to which that person is entitled under a
contract of employment
Project Labor Agreement (PLA)
A pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project
Contracts for Materials, Supplies, Articles, and Equipment
Formerly known as Walsh-Healy Public Contracts Act
Required in supply contracts valued over $15,000
Addresses minimum wages,
Maximum hours, * Child labor,
Convict labor, and
Safe and sanitary working conditions
Equal Employment Opportunity
All nonexempt governmental prime and subcontractors are required to promote equal opportunity for employment to all persons,
regardless of race, color, religion, sex, or national origin.
ServiceContractLaborStandards
Formerly known as McNamara-O’Hara Service Contract Act
Service contracts valued in excess of $2,500 must contain mandatory provisions for:
Minimum wage
Fringe benefits
Safe and sanitary working conditions
Notification of minimum allowable compensation, and
Equivalent federal employee classifications and wage rate
FAR Part 25: Foreign Acquisition
Overview of FAR Part 25 - Foreign Acquisition
Purpose: Establishes policies and procedures for acquiring supplies and services from
Key Sections:
25.1 Buy American Act—Supplies
25.2 Buy American Act—Construction Materials
25.3 Contracts Performed Outside the United States
25.4 Trade Agreements
25.5 Evaluating Foreign Offers—Supply Contracts
25.6 American Recovery and Reinvestment Act—Buy American Statute—Construction Materials
25.7 Prohibited Sources
25.8 Other International Agreements and Coordination
25.9 Customs and Duties
25.10 Additional Foreign Acquisition Regulations
25.11 Solicitation Provisions and Contract Clauses
What Is the Buy American Statute?
The Buy American statute restricts the purchase of supplies, that are not domestic end products, for use within the United States.
Buy American Construction
The Buy American statute requires that only domestic construction materials be used in construction contracts
performed in the United States. Exceptions to the act are found at FAR 25.202.
The contracting officer must review allegations of Buy American statute violations and when necessary, take appropriate action such as process a determination concerning the inapplicability of the Buy American statute in accordance with 25.205.
The Trade Agreements Act of 1979 is an Act of Congress that governs trade agreements negotiated between the United States and other countries under the Trade Act of 1974.
The stated purposes of the TAA are to:
Approve and implement the trade agreements negotiated under the Trade Act of 1974
Foster the growth and maintenance of an open world trading system *
Expand opportunities for the commerce of the United States in
international trade, and
Improve the rules of international trade and to provide for the
enforcement of such rules, and for other purposes.
A. BUY AMERICAN STATUTE (BUY AMERICAN ACT-SUPPLIES) (FAR 25.1)
The Buy American statute restricts the purchase of supplies that are
not domestic end products. The FAR defines a domestic end product based on where it was manufactured and where the components were sourced, including specific thresholds for all supplies and special thresholds for steel and iron.
A foreign end product may be purchased if an exception applies. These include when the purchase is determined to be in the public interest, products are offered for resale, nonavailability of items items not mined, produced, or manufactured in the U.S., in sufficientquantity, or of a satisfactory quality), or if the price is determined to be unreasonable using a formula detailed in FAR 25.105.
C. TRADE AGREEMENTS (FAR 25.4)
The trade agreements waive the applicability of the Buy American statute for some foreign supplies and construction materials from certain countries.
Free Trade Agreements and the World Trade Organization (WTO) Government Procurement Agreement specify procurement procedures designed to ensure fairness.
The value of the acquisition is a determining factor in the applicability of the trade agreements.
When the restrictions of the Buy American statute are waived for eligible products, offers of those products (eligible offers) receive equal consideration with domestic offers.
Under the Trade Agreements Act, only United States-made end products or eligible products may be acquired (also see FAR 25.403(c)). FAR 25.402 lists the applicablethresholds. See subpart 25.5 for evaluation procedures for supply contracts subject to trade agreements. The dollar thresholds are subject to revision every two years.
FAR Part 27: Patents, Data, and Copyrights
Overview of FAR Part 27 - Patents, Data, and Copyrights
Purpose: Establishes policies and procedures for managing
intellectual property (IP) in government contracts (FAR 27.000).
Key Sections:
27.1 General
27.2 Patents and Copyrights
27.3 Patent Rights Under Government Contracts
27.4 Rights in Data and Copyrights
27.5 Foreign License and Technical Assistance Agreements
General Policies
The Government:
Encourages commercial use of inventions made under
government contracts
Will not generally refuse to award a contract on the grounds
that a patent may be infringed
Should generally be indemnified against liability for patent
infringement
Recognizes rights in privately-developed data
Requires contractors to obtain permission to use
copyrighted material
Patent
A government grant of exclusive rights to an inventor that prohibits others from
making, using, or selling an invention
The current term for patents is generally 20 years (increased in 1995 from 17 years)
Trademark
Distinctive mark of authenticity
Words, symbols, devices, or designs affixed to or placed on an article or its container to identify an article offered for sale
Copyright
A royalty-free, non-exclusive, and irrevocable license to reproduce, translate, publish, use, and dispose of written or recorded
material, and ot authorize others ot do so
Valid for the life of the author plus 70 for works published after 1978
Patent and Copyright Infringement
For infringement by or on behalf of the government:
No injunctive relief is available
There is no direct cause of action against the infringing contractor
Remedy is a suit for monetary damages against the government in the Court of Federal Claim
Patent and Copyright Infringement
Notice and Assistance Clause FAR52.227-2
Requires the contractor to report any notices of infringement to the CO
Requires the contractor to provide any relevant evidence in the event of an infringement suit against the government
Royalty
Royalty payment
A payment made by one party (the licensee to another that owns a particular asset (the licensor) for the right to ongoing use of that asset
Royalties must be: *Reasonable
* Proper
* Consistent with government patent rights
The contracting officer makes this determination by obtaining royalty information from prospective contractors
Al information about royalties shall be provided to the office having cognizance of patent matters for the contracting agency
Royalty information must be provided for subcontractors fi ti is required for the prime contract
The Government’s Rights in Patents
Title
The legal right to control and dispose of property
Generally, a contractor may retain title to an invention made under a federal contract, except:
* If the contractor has no place of business in the United States
* In exceptional circumstances, fi the agency determines it to be in the best interest of the government
* To protect foreign intelligence or counterintelligence activities, or certain military and weapons programs
* Pursuant to statute or in accordance with agency regulations
The Government’s Rights in Patents
At a minimum, the government shall have a:
Nonexclusive,
Nontransferable,
Irrevocable,
Paid-up license
To practice (use) any subject invention
Or have the invention practiced on its behalf,
Throughout the world.
The Government’s Rights in Patents
March-in rights
The right of an agency to require a contractor to grant a non-exclusive, partially exclusive, or exclusive license in any field of use to a responsible applicant or applicants, with respect to any invention of the contractor conceived or first actually reduced to practice in the performance of work under a government contract in which the contractor has acquired title
fI the contractor refuses such a request, the agency is granted a license fi the agency determines that such action is necessary.
Unlimited Rights Data
Unlimited rights
Rights to use, duplicate, release, or disclose technical data or computer software in whole or in part in any manner and for any purpose and to have or permit others to do so
Except for copyrighted works, the government acquires unlimited rights in:
* Data first produced in the performance of a contract
* Except minor modifications to limited rights data or restricted
computer software
Except for copyrighted works, the government acquires unlimited rights in:
* Form, fit, and function data delivered under contract
Except for copyrighted works, the government acquires unlimited rights in:
* All other data delivered under the contract other than limited rights data or restricted computer software.
Limited Rights Data
Limited rights
The rights to use, duplicate, or disclose technical data in whole or in part, by or for
the government, with the express written permission of the party furnishing the technical data
Enables the contractor to protect qualifying limited rights data and restricted computer software by withholding the data from the government and instead delivering form, fit, and function data
Publication and Marking of Data
Publishing information concerning an invention before a patent application is filed on a subject invention may create a bar to a
valid patent.
To avoid this bar, agencies may withhold information from the public that discloses any invention in which the government
owns or may own a right, title, or interest.
Agencies shall not restrict the publication or release of the results of unclassified basic or applied research performed under contract with universities or colleges.
Agencies may place limitations or restrictions on the contractor’s exercise of its rights in any other data first produced ni the performance of a contract.
The government may reject any
such data delivered to it that is incorrectly marked.
A. GENERAL (FAR 27.1)
The government encourages the maximum practical commercial use of inventions made under government contracts. Generally,
the government will not refuse to award a contract on the grounds that the prospective contractor may infringe a patent.
The government may authorize and consent to the use of inventions in the performance of certain contracts, even though the inventions may be covered by U.S. patents.
Generally, contractors providing commercial items should indemnify the government against liability of the infringement of U.S. patents. The government recognizes rights in data developed at private expense and limits its demands for delivery of that data. When such data is delivered, the government will acquire only those rights essential to its needs.
The government requires that contractors obtain permission from copyright owners before including copyrighted works, owned by others, in data to be delivered to the government.
With respect to patented technology covered under trade agreements, there are specific notice requirements when the patent holder is from a country that is a party to the North American Free Trade Agreement (NAFTA). Article 1709(10) of NAFTA generally requires a user of technology covered by a valid patent to make a reasonable effort to obtain
authorization prior to use of the patented technology. However, NAFTA provides that this requirement for authorization may be waived in situations of national emergency or other circumstances of extreme urgency, or for public noncommercial use. Section 6 of Executive Order 12889, “Implementation of the North AmericanFree Trade Act,” of December 27, 1993, waives the requirement to obtain advance authorization for an invention used or manufactured by or for the federal government.
The government acquires unlimited rights in the following data, except for copyrighted works:
Data first produced in the performance of a contract (except to the extent the data constitute minor modifications to data that are limited rights data or restricted computer software);
Form, fit, and function data delivered under contract;
Data (except as may be included with restricted computer software) that constitute manuals or instructional and training material for installation, operation, or routine maintenance and repair of items, components, or processes delivered or furnished for use under a contract; and
All other data delivered under the contract other than limited rights data or restricted computer software. (FAR 27.404-2)
The basic clause at FAR 52.227-14, Rights in Data-General, enables the contractor to protect qualifying limited rights data and restricted computer software by withholding the data from the government and instead delivering form, fit, and function data.
Part 34 Major System Acquisition
Subpart 34.1 - Testing, Qualification, and Use of Industrial Resources Developed Under Title III, Defense Production Act
Purpose:
Ensures proper testing and qualification of major systems (FAR 34.101).
Key Features
Requirements for rigorous testing and qualification of systems (FAR 34.102).
Use of industrial resources developed under Title III of the Defense Production Act (FAR 34.103).
Comprehensive testing protocols to ensure system reliability and performance (FAR 34.102(a)).
Procedures for qualification to verify compliance with specifications (FAR 34.102(b)).
Part 34 Major System Acquisition
Subpart 34.2 - Earned Value Management System (EVMS)
Purpose: Implements an EVMS for effective management of major system
acquisitions (FAR 34.201).
Key Features:
Use of EVMS to track performance, schedule, and cost objectives (FAR 34.202).
Requirements for integrating EVMS into the acquisition process (FAR 34.203).
Guidelines for implementing EVMS in major system acquisitions (FAR 34.204).
Specific requirements for contractors to use EVMS (FAR 34.205).
34.1 Testing, Qualification and Use of industrial Resources Developed Under Title I, Defense Production Act
Full-scale development contracts provide for the contractors to submit priced proposals for production that are based on latest quantity, schedule, and logistics and other considerations used in making production decisions
Full production awarded fi agency head
- Reaffirms the mission need and program objectives; and
- Grants approval to proceed with production
Pay for any testing and qualifications required to incorporate industrial resources under Title III
Contractors forward requests ot contracting officer ot evalute and determine whether the Title Il industrial resource is being or potentially may be used
Contracting officer determines whether major systems in
production, remaining quantities to be acquired are sufficient to justify incurring the cost of testing and
qualifications
FAR 34.001 DEFINITION
“Effective competition,” as used in this
part is a market condition that exists when two or more contractors, acting independently, actively contend for the government business in a manner that ensures that the government will be offer the lowest cost or price alternative or best technical design meeting its minimum needs.
- Mission
oriented solicitations-
contracting officer should, promulgate advance notifications of acquisition, conduct presolicitation conferences appropriate, and seek industry input, prior to issuing a solicitation. The solicitation shall
“describe the nature of the need in terms of mission capabilities required, without reference to any specific systems to satisfy the need;
“indicate and explain when appropriate,
the schedule,
capability, and cost objectives and any known constraints in the acquisition;
- provide, or indicate how access can be obtained to, all government data related to the acquisition;
- include selection requirements consistent with the acquisition strategy;
- clearly state that each offeror or is free to propose its own technical approach, main design features, subsystems, and alternatives to schedule, cost, and capability goals; and
*include of an earned value management system that complies with the guidelines of Electronic Industries Alliance Standard 748.
B. TESTING, QUALIFICATION AND USE OF INDUSTRIAL RESOURCES
DEVELOPED UNDER TITLE III
DEFENSE PRODUCTION ACT (FAR
FAR 34.100 SCOPE
It is the policy of the government, as required by section 126 of Public Law 102-558, to pay for
any testing and qualification required for the use or incorporation of the industrial resources manufactured or developed with assistance provided under Title III of the Defense Production Act of 1950.
C. EARNED VALUE MANAGEMENT SYSTEM (FAR 34.201, 34.202, AND 34.203)
Thumbnail Synopsis: EVMS offers the government and contractor
a structured approach toward managing major acquisitions by creating visibility through Integrated Baseline Reviews and frequent reporting of schedule, cost, and resource concerns affecting the major acquisition.
C. EARNED VALUE MANAGEMENT SYSTEM (FAR 34.201, 34.202, AND 34.203)
FAR 34.202 INTEGRATED BASELINE
REVIEWS
The Integrated Baseline Review (IBR) is designed to be a joint assessment by both offeror/ contractor and the government. The integrated baseline review will assess:
- the ability of the project’s technical plan to achieve the objectives of the scope of work;
- adequacy of the time allocated for performing the defined tasks successfully achieve the project schedule objectives;
- ability of the performance measurement baseline (PMB) to successfully execute the project and attain cost objectives, recognizing the relationship between budget resources, funding, schedule, and scope of work;
- availability of personnel, facilities, and equipment when required, to perform the defined tasks needed to execute the program successfully; and
- the degree to which the management process provides effective and integrated technical/schedule/cost planning and baseline control.
What is Research and Development?
Research and development (R&D) contracts are
contracts for basic research, applied research, or development
Basic research
* Research that is directed toward increasing knowledge
Applied research
* Research that is directed toward improving or expanding new scientific discoveries, technologies, materials, processes, or technique
Development
* Directed production of, or improvements in, useful products to meet specific performance requirements through the systematic application of scientific
knowledge
Contracting for Research and Development
The primary purpose of contracted R&D programs is to advance scientific and technical knowledge and apply that knowledge to the extent necessary to achieve agency and national goals
Most R&D contracts are directed toward objectives for which the work or methods cannot be precisely described in advance.
It is difficult to judge the probability of success or required effort for technical approaches, which may not assure full success.
Contract Types for R&D Acquisition
Fixed-price contracts are preferred only to the extent
practicable, considering: * Goals
* Objectives
* Specifications * Cost estimates
The type of contract wil depend on how precisely these can be defined
Cost-reimbursement contracts are usually appropriate because of:
*Absence of precise specifications
* Difficulty in accurately estimating costs * Lack of confidence in cost estimates
The nature of development work often requires a cost-reimbursement completion arrangement.
What should be considered when developing statements of work for R&D?
A statement of the area of exploration, tasks
to be performed, and objectives of the research or development effort
Background information helpful to a clear understanding of the objective or requirement
(e.g., any known phenomena, techniques, methodology, or results of related work)
Information on factors such as personnel,
environment, and interfaces that may constrain the results of the effort
Reporting requirements and information on any additional items that the contractor is required to
furnish (at specified intervals) as the work progresses
The type and form of contract contemplated by the government and, for level-of-effort work statements, an estimate of applicable professional and technical effort involved
Any other considerations peculiar to the work to
be performed; for example, any design-to-cost requirements
Subcontracting of R&D Work
The contractor must not subcontract technical or scientific work without the contracting officer’s advance knowledge
The contracting officer shall obtain complete information concerning the contractor’s plans for subcontracting any
portion of the experimental, research, or development effort during the negotiation of cost-reimbursement type contracts.
Broad agency announcement
A general announcement of an agency’s research interest including criteria for selecting proposals and soliciting the participation of all offerors capable of satisfying the government’s needs
May be used by agencies to fulfill their requirements for
scientific study and experimentation directed toward advancing the states of the art or increasing knowledge or understanding
rather than focusing on a specific system or hardware solution
Shall only be used when meaningful proposals with varying
technical or scientific approaches can be reasonably anticipated
Proposals received are evaluated ni accordance with specified criteria through a peer or scientific review process
Written evaluation reports on individual proposals wil be necessary, but proposals are not evaluated against each other
Proposals shall be selected based on:
* Technical evaluation
* Importance to agency programs
* Availability
* Cost realism only to the extent appropriate
* Cost reasonableness only to the extent appropriate
R&D solicitations shall require offerors to
describe their technical and management approach, identify technical uncertainties, and make specific proposals for the resolution of any uncertainties.
In reviewing work statements, contracting officers should ensure
that language suitable for a level-of-effort approach, which requires the furnishing of technical effort and a report on the results, is not intermingled with language suitable for a task-completion approach, which often requires the development of a tangible end item designed to achieve specific performance characteristics.
The wording of the work statement should also be consistent with the type and form of contract to be negotiated.
For example, the work statement for a cost-reimbursement contract promising the contractor’s best efforts for a fixed term would be phrased differently than a work statement for a cost-reimbursement completion contract promising the contractor’s best efforts for a defined task.
Differences between work statements for fixed-price contracts and cost-reimbursement contracts should be even clearer.
Part 36 Construction and Architect Engineer Contracts
Overview of FAR Part 36 - Construction and Architect-Engineer Contracts
Purpose: Establishes policies and procedures for construction and architect-engineer (A-E) contracts (FAR 36.000).
Key Sections:
36.1 General
36.2 Special Aspects of Contracting for Construction
36.3 Two-Phase Design-Build Selection Procedures
36.5 Contract Clauses
36.6 Architect-Engineer Services
36.7 Standard and Optional Forms for Contracting for Construction, Architect- Engineer Services, and Dismantling, Demolition, or Removal of Improvements
Part 36 Construction and Architect Engineer Contracts
Subpart 36.3 - Two-Phase Design-Build Selection Procedures
Purpose: Establishes procedures for two-phase design-build selection
(FAR 36.301).
Key Features:
Phase One: Evaluation of technical approach and qualifications (FAR 36.302).
Phase Two: Evaluation of detailed technical and price proposals (FAR 36.303).
Contracting Methods for Construction and A&E Contracts
Contracting officers shall acquire construction using sealed bid procedures for construction contracts performed in the United States fi the conditions in
6.401(a) apply.
Contracting officers shall acquire architect-engineer services by negotiation, and select sources in
accordance with applicable law, Subpart 36.6, and agency regulations.
Disclosure of the Magnitude of Work
The estimated price should be described in terms of one of the following price ranges:
Less than $25,000
Between $25,000 and $100,000
Between $100,000 and $250,000
Between $250,000 and $500,000
Between $500,000 and $1,000,000
Between $1,000,000 and $5,000,000
Between $5,000,000 and $10,000,000
More than $10,000,000
Contract Types for Construction Work
Generally, firm-fixed-price contracts shall be used to acquire construction.
They may be priced:
* On a lump-sum basis
* Alump sum is paid for the total work or defined parts of the work
* On a unit-price basis
* Aunit price is paid for a specified quantity of work units
* Using a combination of these two methods
Fixed-price contracts with economic price adjustment may be used if:
* Such a provision is customary ni contracts for the
type of work being acquired, or
* When omission of an adjustment provision would
preclude a significant number of firms from
submitting offers or would result in offerors including unwarranted contingencies in proposed prices.
Two-Phase Design-Build
Design
* Defining the construction requirement
(including the functional relationships and technical systems to be used, such as architectural, environmental, structural,
electrical, mechanical, and fire protection), producing the technical specifications and drawings, and preparing the construction cost estimate
Design-bid-build
* The traditional delivery method where design and construction are sequential and contracted for separately with two contracts and two contractors
Design-build
* The combination of design and construction ni a single contract with one contractor
This type of partnership can reduce time, yield better construction cost estimates and therefore save money, provide stronger guarantees, and allocate additional project risk to the private sector.
Differing site conditions
Subsurface or latent physical conditions at the site which differ materially from those indicated in this contract; or
Unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided
for in the contract
fI differing site conditions cause an increase or decrease in the contractor’s cost, or the time required for performance, an equitable adjustment shall be made and the contract modified in writing
Architect-engineer services
Services which include professional services of an architectural or engineering nature that are required to be performed or approved by a person licensed,
registered, or certified to provide such services
Associated with research, planning, development, design, construction, alteration, and repair of real property; and other related professional services, such as studies and surveys
Source Selection for A&E Contracts
An architect-engineer evaluation board is established, composed of people who, collectively, have experience in architecture, engineering, construction, and government and related acquisition matters.
Members shall be appointed from among highly qualified professional employees of the agency or other agencies, and private practitioners of architecture, engineering, or related professions.
The selection authority (designated by Head of Agency) shall review the recommendations of the evaluation board and shall, with the advice of appropriate technical and staff representatives, make the final selection
Al firms on the final selection list are considered “selected firms” with
which the contracting officer may negotiate in accordance with FAR Subpart 36.606.
Forms
SF 1442
Solicit and award construction contracts over SAT
OF 347
For construction contracts below the SAT
SF 252
For fixed-price AE services in the U.S.
B. SPECIAL ASPECTS OF CONTRACTING FOR
CONSTRUCTION (FAR 36.2)
An independent government estimate of construction costs shall
be prepared and furnished to the contracting officer for each proposed contract and contract modification anticipated to exceed the simplified acquisition threshold.
Advance notices and solicitations shall state the magnitude of the requirement in terms of physical characteristics and estimated price range.
In no event shall the statement of magnitude disclose the government’s estimate.
Overview of FAR Part 37 - Service Contracting
Purpose: Establishes policies and procedures for acquiring services by
contract (FAR 37.000).
Key Sections:
37.1 Service Contracts—General
37.2 Advisory and Assistance Services
37.3 Dismantling, Demolition, or Removal of Improvements
37.4 Nonpersonal Health Care Services
37.5 Management Oversight of Service Contracts
37.6 Performance-Based Acquisition
Performance-based acquisition is the
preferred method for acquiring services.
Use performance-based acquisition methods
to the maximum extent practicable, except for architect-engineer, construction, utility
services, or services that are incidental to supply purchases.
Policy for Performance-Based Acquisition
The order of precedence is:
1 A firm-fixed price performance-based contract or task order
2 A performance-based contract or task order that is not firm-fixed price
3 A contract or task order that is not performance-based
“Personal”and”Nonperonal” Services
Personal services contract
A contract under which the personnel rendering the services are subject, either by the contract’s terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the government and its employees
A personal services contract is characterized by the
employer-employee relationship it creates between the government and the contractor’s personnel.
The government is normally required to obtain its employees by direct hire under competitive appointment or other procedures required by the civil service laws.
Obtaining personal services by contract, rather than by direct hire, circumvents those laws unless Congress has specifically authorized
acquisition
of the services by contract.
Agencies shall not award personal services contracts unless specifically authorized by statute (e.g., 5 U.S.C.3109) to do so.
Advisory and assistance services
Those services provided under contract by nongovernmental sources to support or improve organizational policy development, decision-making, management and administration, program and/or project management and administration, or research and development activities
The furnishing of professional advice or assistance rendered to improve the effectiveness of federal management processes or procedures (including those of an engineering and technical nature)
Contracts for dismantling, demolition, or removal of improvements are subject
to either the Service
Contract Labor Standards statute (Service Contract Act)
or the Construction Wage Rate Requirements
statute (Davis-Bacon Act).
If the contract is solely for dismantling, demolition, or removal of improvements, the Service Contract Labor Standards statute applies unless further work which will result in the
construction, alteration, or repair of a public building or public work at that location is contemplated.
NONPERSONAL SERVICES CONTRACT:
A contract under which the personnel rendering the services are not subject, either by the contract’s terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the government and its employees.
An employer-employee relationship under a service contract occurs when,
as a result of either the contract’s terms or the manner of its administration during performance, contractor personnel are subject to the relatively continuous supervision and control of a government officer or employee.
Each contract arrangement must be judged in the light of its own facts and circumstances, the key question always being:
Will the government exercise relatively continuous supervision and control over the contractor personnel performing the contract?
The following descriptive elements should be used as a guide in assessing whether a proposed contract is personal in nature:
Performance on the government’s site;
Principal tools and equipment furnished by the government;
Services are applied directly to the integral effort of agencies or an organizational subpart in furtherance of an assigned function or mission;
Comparable services meeting comparable needs are performed in the same or similar agencies using civil service personnel;
The need for the type of service provided can reasonably be expected to last beyond one year; and
The head of an executive agency, except NASA,
may contract for severable services for a period that begins in one fiscal year and ends in the next fiscal year if the term does not exceed one year.
Contracts for dismantling, demolition, or removal of improvements are subject to either the Service Contract Labor Standards statute (formerly Service Contract Act) or the Construction Wage Rate Requirements statute (formerly Davis-Bacon Act).
If the contract is solely for dismantling, demolition, or removal of improvements, the Service Contract Labor Standards statute applies unless further work that will result in the construction, alteration, or repair of a public building or public work at that location is contemplated.
If such further construction work is intended, even though by separate contract, then the Construction Wage Rate Requirements statute applies to the contract for dismantling, demolition, or removal.
Part 39 Acquisition of Information Technology
Subpart 39.1 - General
Purpose: Provides general policies for IT acquisition (FAR 39.101).
Key Features:
Emphasizes the importance of strategic planning and management in IT
acquisitions (FAR 39.102).
Requires adherence to federal IT standards and guidelines (FAR 39.103).
What Is Information Technology?
Information technology (IT)
The hardware and software operated by a federal agency, a contractor of a federal agency, or other organization that processes information on behalf of the federal government to accomplish a federal function, regardless of the technology involved, whether computers, telecommunications, or others
Any equipment or interconnected system or subsystem of equipment that is used
ni the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the executive agency
Includes computers, ancillary equipment, software, firmware, services, and related resources
Preparing an Acquisition Plan for InformationTechnology
Agency requirements shall be identified considering:
- OMB Circular A-130
- Security of resources
- Protection of privacy
National security
Emergency preparedness
Accommodation of disabilities - Energy efficiency
NOTE: Contracting officers shall
not procure or obtain, extend or renew a contract or enter into a
contract for any equipment,
system, or service that uses covered telecommunications
equipment or services as defined in FAR 4.101.
National security system
Any telecommunications or information system operated by the United States government, the function, operation, or use of which
- Involves intelligence activities
- Involves cryptologic activities related to national security * Involves command and control of military forces
- Involves equipment that is an integral part of a weapon or weapons system; or * Is critical to the direct fulfillment of military or intelligence missions
FAR Part 39 does not apply to acquisition of TI for national security systems
Preparing an Acquisition Plan for InformationTechnology
Reasonable risk, including
- Schedule risk
- Risk of technical obsolescence
- Cost risk
- Risk implicit in contract type
- Technical feasibility
- Dependencies on or of other systems
- Number of simultaneous projects
- Availability of funding
- Program management risk
Information Technology Laws
Privacy Act of 1974
Privacy Act of 1974
No agency shall disclose any record which is contained in a system
of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains
Access for People with Disabilities
Section 5 0 8 Accessibility Program
https://www.section508.gov/
Agencies must ensure that federal employees with disabilities have access to and use of information and data, and
Members of the public with disabilities seeking information or services from an agency have access to and use of information and data
NATIONAL SECURITY SYSTEM means
means any telecommunications or information system operated by the U.S. government, the function, operation, or use of which involves intelligence activities; cryptologic activities related to national defense, command, and control of military forces; equipment that is an integral part of a weapon system; or is critical to the direct fulfillment of military or intelligence missions.
Agencies shall ensure that contracts for information technology address protection of privacy in accordance with the Privacy Act.
Prior to entering a contract for information technology, an agency should
analyze risks, benefits, and costs. Reasonable risk-taking is appropriate if risks are controlled and mitigated.
Types of risk may include schedule risk, risk of technical obsolescence, cost risk, risk implicit in a particular contract type, technical feasibility, dependencies between a new project and other projects or systems, the number of simultaneous high-risk projects to be monitored, funding availability, and program management risk.
Appropriate techniques should be applied to manage and mitigate risk during the acquisition of information technology.
To promote compatibility, the information technology acquired through modular contracting for each increment should
comply with common or commercially acceptable information technology standards when available and appropriate and shall conform to the agency’s master information technology architecture.
Additionally, the performance requirements of each increment should be consistent with the performance requirements of the completed, overall system within which the information technology will function and should address interface requirements with succeeding increments.
For each increment, contracting officers shall choose an appropriate contracting technique that facilitates the acquisition of subsequent increments. Contracts shall be structured to ensure that the government is not required to procure additional increments.
B. ELECTRONIC AND INFORMATION
TECHNOLOGY (FAR 39.2)
This subpart implements section 508 of the Rehabilitation Act of 1973. This ensures that both federal employees with disabilities and members of the public seeking service from the government have
equal access to technology as nondisabled members of the public and employees.
This requirement does not apply if the electronic and information technology (EIT) is a micro-purchase; is for a national security system;
is acquired by a contractor incidental to a contract; is in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment; or would impose an undue burden on the agency.
Applicability
Does not apply to:
Utility sold by another
Federal agency
Cable television &telecommunications
Natural or manufactured gas
Utility service in foreign countries
Rights in real property
Third part financed shared-savings projects
Procedures
“Entire Utility Service” term
Provision of the utility service capacity
Energy
Water
Quality assurance
System reliability
System operation and maintenance
Sewage Metering
Transportation Billing
GSA Areawide Contracts
GSA enters into areawide contracts for use by Federal Agencies to provide a pre-established contractual vehicle for ordering utility services
Full search engine at GSA.gov
Areawide contract means
a contract entered into between the General Services Administration
(GSA) and a utility service supplier to cover utility service needs of federal agencies within the franchise territory of the supplier.
Separate contract means
a utility services contract (other than a GSA areawide contract, an Authorization under an areawide contract, or aninteragency agreement), to cover the acquisition of utility services.
Termination liability means
a contingent government obligation to pay a utility supplier the unamortized portion of a connection charge and any other applicable nonrefundable service charge as defined in the contract in the event the government terminates the contract before the cost of connection facilities has been recovered by the utility supplier.
GSA has delegated its authority to enter into utility service contracts for periods not exceeding 10 years to DOD and DOE, and for connection charges only to the Department of Veteran Affairs. Other agencies
requiring utility service contracts for periods over one year, but not exceeding 10 years, may request a delegation of authority from GSA.
In keeping with its statutory authority, GSA will, as necessary, conduct reviews ofensure compliance with the terms of the delegation and applicable laws and regulations.delegated agencies’ acquisitions of utility services to
Agencies are required to obtain utility services from sources of supply which are the most advantageous to the government in terms of
economy, efficiency, reliability, or service. For acquisitions above
the simplified acquisition threshold, agencies are required to acquire utility services by a bilateral written contract, with required clauses (see 41.501), regardless of whether rates or terms and conditions of service are fixed or adjusted by a regulatory body.
Prior to acquiring electric utility services on a competitive basis, the contracting officer must determine that the competition is not inconsistent with state law governing the provision of electric utility services.
GSA enters into areawide contracts to provide preestablished contractual vehicles for federal agencies to
order utility services. Agencies may order utility service at rates approved and/or established by a regulatory body or agencies may negotiate other rates and terms and conditions of service with the supplier.
An agency requirement for utility services within an area covered by an areawide contract must be acquired under that areawide contract unless
- service is available from more than one supplier in which case a competitive acquisition is required; and
the head of contracting activity (HCA) or designee determines that use of the areawide contract is not advantageous to the government.
GSA assistance is available to agency acquisitions via a separate contract. Agency contracting officers are required to document the contract file with the:
- The number of available suppliers.
- Any special equipment, service reliability, or facility requirements and related costs.
- The utility supplier’s rates, connection charges, and termination liability.
- Total estimated contract value (including costs in paragraphs (b)(2) and (3) of this subsection).
- Any technical or special contract terms required.
- Any unusual characteristics of services required.
- The utility’s wheeling or transportation policy for utility service.
Agencies must use
interagency agreements (e.g., consolidated purchase, joint use, or cross-service agreements) when acquiring utility services or facilities from other government agencies. These agreements must comply with the policies and procedures of The Economy Act (see 17.502-2).
Part 4 - Administrative Matters
Purpose:Establishespoliciesandprocedures for administrative matters in federal contracting (FAR 4.000).
- 4.1 Contract Execution
- 4.2 Contract Distribution
- 4.3 Paper Documents
- 4.4 Safeguarding Classified Information Within Industry
- 4.5 Electronic Commerce in Contracting
- 4.6 Contract Reporting
- 4.7 Contractor Records
- 4.8 Government Contract Files
- 4.9 Taxpayer Identification Number Information
- 4.10 Uniform Use of Line Items
- 4.11 System for Award Management
- 4.12 Representations and Certifications
- 4.13 Personal Identity Verification
- 4.14 Reporting Executive Compensation and First-Tier Subcontract Awards
- 4.16 Unique Procurement Instrument Identifiers
Covered Contractor Information Systems - 4.20 Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by aspersy Lab
- 4.21 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment
Retention - 4.17 Service Contracts Inventory
- 4.18 Commercial and
Government Entity Code - 4.19 Basis Safeguarding of
Contract Execution
The contracting officer’s name and official title shall be printed on the contract.
The contracting officer signs the contract after it has been signed by the contractor.
Only the contracting officer is authorized to sign a contract on behalf of the government!
The type of signatory required depends on the type of legal entity involved.
-Individual: Contract signed by that individual
-Partnership: Contract signed with the name of the partnership
-Corporation: An individual authorized to bind the corporation, with the corporate name and “by”
-Joint venture: Any combination of individuals, partnershios, or corporations
Contractor Registration
Prospective contractors shall be registered in the SAM database prior to award of a contract or agreement, except for:
- SAM
-Purchases that use a
government-wide commercial purchase card as both the
purchasing and payment mechanism
-Classified contracts when
registration in the SAM database, or use of SAM data, could compromise the safeguarding of classified information or national security
-Contracts awarded by deployed contracting officers in the course of
military
operation or contracting officers in the conduct of emergency operations
-Contracts to support unusual or compelling needs
Awards made to foreign vendors for work performed outside the
United States, fi it is impractical to obtain SAM registration
-Micro-purchases that do not use
the electronic funds transfer (EFT) method for payment and
are not required to be reported
Personal Identity Verification
When contract performance requires
routine access to a federally controlled facility or information
system, a contractor may be required
to implement policies for personal identity verification.
Guidance for these policies will be
provided by the Office of Management and Budget.
Executive Compensation
Contractors are required to report subcontractor award data and the total compensation of the five most highly compensated individuals of the contractor and subcontractor.
This requirement applies to all contracts with a value of
$30,000 or more
Unique Procurement Instrument Identifiers
PIID
Procurement Instrument IDentifier
Identifies a solicitation or government action
Is unique government-wide
Identifies solicitation or contract action within the SAM
database, FPDS, and other reporting systems
C. CONTRACT REPORTING (FAR 4.6)
On October 17, 2020, the FPDS reports module retired and the SAM.gov Data Bank is the only place to create and run both standard and ad hoc reports on federal contract data. Federal agencies
report data to the Federal Procurement Data Center (FPDC), which collects, processes, and disseminates official statistical data on federal contracting.
All federal contract award data must be made public. Executive agencies shall use FPDS to maintain publicly available information about all unclassified contract actions exceeding the micro-purchase threshold, and any modifications to those actions that change previously reported contract action report data, regardless of dollar value (FAR 4.603).
G. SYSTEM FOR AWARD MANAGEMENT (FAR 4.11)
This subpart prescribes policies and procedures for requiring contractor registration in the System for Award Management (SAM) database, to both
increase visibility of vendor sources (including their geographical locations) for specific supplies and services and establish a common source of vendor data for the government. Generally, contractors must be registeredin the SAM prior to contract award. Specific exceptions and guidance are contained within this subpart.
H. REPRESENTATIONS AND CERTIFICATIONS (FAR 4.12)
This subpart prescribes policies and procedures for requiring submission and maintenance of representations and certifications through the System for Award Management (SAM) to eliminate
the administrative burden for contractors of submitting the same information to various contracting offices and establish a common source for this information to procurement offices across the government. SAM is the one common source for contractors submitting and maintaining representations and certifications.
Contractors shall update the representations and certifications submitted to SAM as necessary, but at least annually, to ensure they are kept current, accurate, and complete.
K. UNIQUE PROCUREMENT INSTRUMENT
IDENTIFIERS (FAR 4.1601)
Agencies shall have in place a process that ensures that each Procurement Instrument Identifier (PIID) used to identify
a solicitation or contract action is unique governmentwide and will remain so for at least 20 years from the date of contract award. The PIID shall be used to identify all solicitation and contract actions.
The PIID shall also be used to identify solicitation and contract actions in designated support and reporting systems (e.g., Federal Procurement Data System, System for Award Management), in accordance with regulations, applicable authorities, and agency policies and procedures.
Critical technology means:
- Defense articles or services included on the US
Munitions List; - Items included on the Commerce Control List controlled for reasons of national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or reasons relating to regional stability or surreptitious listening
- Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology relating to assistance to foreign atomic energy activities)
- Nuclear facilities, equipment, and material relating to export and import of nuclear equipment and material
- Select agents and toxins covered by the Code of Federal Regulations; or
- Emerging and foundational technologies controlled pursuant to the Export Control
Reform Act of 2018.
Overview of FAR Part 29 - Taxes
- Purpose: Establishes policies and procedures related to taxes in
federal contracting (FAR 29.000). - Key Sections:
- 29.1 General
- 29.2 Federal Excise Taxes
- 29.3 State and Local Taxes
- 29.4 Contract Clauses
Part 29 - Taxes
Subpart 29.2 - Federal Excise Taxes
- Purpose: Addresses the treatment of federal excise taxes in federal
contracts (FAR 29.201). - Key Features:
- Procedures for excluding federal excise taxes from contract prices (FAR 29.202).
- Guidelines for obtaining tax exemptions or refunds (FAR 29.203).
B. FEDERAL EXCISE TAXES (FAR 29.201, 29.202, and 29.203)
Federal excise taxes are taxes that are levied on the sale or use of a particular supplies or services.
Common supplies or services to which excise taxes are imposed are
motor vehicle articles tires inner tubes gasoline lubricating oils etc. other are some special fuels excise tax that are imposed at the retail level and diesel and special motor fuels.
Questions arising in this area should be directed to the agency designated counsel.
There are exemptions from federal excise tax and position.
The contracting officer should solicit prices on tax exclusive basis
when it is known that the government is exempt from these taxes and on a tax inclusive basis when no exemption exists, FAR part 29.202 and 29.203 provide further explanation of exemptions.
C. STATE AND LOCAL TAXES (FAR
29.300-305)
Generally, purchases and leases made by the federal government are immune from state and local taxation, however
as taxation is a legal matter consultation with the agency designated counsel is advised. When possible, where exemptions do exist the contracting officer shall take maximum advantage.
Two notable exceptions to this are the states of North Carolina and New Mexico.
In matters of prime and subcontractor purchases on a federal contract the question of immunity from
taxation is less clear. As a prime or a subcontractor is not an agent of the federal government, they don’t enjoy the general immunity; however,
there are state and local laws that might provide exemptions to taxation based on a contract with the federal government.
In such cases consultation with the designated agency counsel is required.
Contractors are encouraged to seek nontaxable transaction exemptions for purchases or subcontracts that are for resale to the federal government to avoid double taxation.
Specific state and local tax policies may require special contract considerations, such as:
special contract terms and conditions, applicable in the of the state local tax, location of use particularly of equipment, and even refunds it.
Where exemptions are available, there must be evidence of exception and the then furnishing proof of exemption.
Part 30 - Cost Accounting Standards Administration
Overview of FAR Part 30 - Cost Accounting Standards Administration
- Purpose: Establishes policies and procedures for applying cost accounting standards (CAS) to federal contracts (FAR 30.000).
- Key Sections:
30.1 General
30.2 CAS Program Requirements
30.6 CAS Administration
Cost Accounting Standards (CAS)
Federal standards designed to provide a consistency and coherency in defense and other government contract accounting
Developed by the Cost Accounting Standards Board (CASB)
- An independent board within OFPP
Five members:
* OFPP Administrator
* Two government members (one from DOD, one from GSA) * One person from private industry
* One person from accounting
Cost Accounting Standards
Printed in title 48 of the Code of Federal Regulations, Chapter 99, and incorporated by reference ni FAR Part 30
41 U.S.C. 422 requires certain contractors and subcontractors
ot comply with CAS and ot disclose ni writing and folow consistently their cost accounting practices
CAS Applicability
CAS requirements do not apply to contracts:
- Awarded using sealed bidding procedures;
- Below the threshold for Truthful Cost or Pricing Data;
- With small businesses or foreign governments;
- In which the price is set by law or regulation;
- For commercial items, fi using FFP, FFP with economic price adjustment, time-and-materials, or labor-hour pricing;
- Under $7.5 million, fi
the contractor is not
performing any
CAS-covered contracts valued at $7.5 million or greater; or - Awarded without submission of cost or pricing data
Types of CAS Coverage
Full coverage
Requires that the contractor comply with all CAS in effect on the date of award and any CAS that become applicable because of a later award
Applies to contractors receiving $50 million or more in
CAS-covered awards, either as a single award or net awards during its preceding cost accounting period
Types of CAS Coverage
Modified coverage
Requires that the contractor comply only with certain CAS
May be applied to a covered contract of less than $50 million awarded to a contractor that received less than $50 million in net CAS-covered awards in the immediately preceding cost accounting period.
Waiving the CAS Requirements
The head of the agency may waive the applicability of CAS for a particular contract or subcontract f:i
The value is less than $15 million
The segment of the contractor is primarily engaged ni the sale of commercial items and
has no CAS-subject contracts
OR
- The agency head determines and
documents in writing that exceptional circumstances require
a waiver of CAS to meet agency needs
Disclosure Statements
Submitted by:
Contractors and subcontractors awarded contracts or subcontracts
exceeding the $50 million threshold *
Contractors and subcontractors
whose net CAS-covered awards exceed $50 million in the most recent accounting period
Disclosure Statements
Contains
- General information
- Direct costs
- Direct vs indirect costs
- Indirect costs
- Depreciation and capitalization
*Other costs and credits
- Deferred compensation and insurance
- Home office expenses
Disclosure Statements
Cognizant federal agency official (CFAO)
The contracting officer assigned by the cognizant federal agency to administer the CAS
Responsible for determining that any disclosure statement is adequate and compliant
The contracting officer shall not award a CAS- covered contract until the CFAO has made this
determination in writing
Responsible for performing CAS administration for al contracts and subcontracts ni a business unit notwithstanding retention of other administration functions by the contracting officer
Within 30 days after award of a CAS-covered contract or subcontract, the contracting officer, contractor, or subcontractor making the award shall request the CFAO to perform administration
The head of the agency may waive the applicability of
CAS for a particular contract or subcontract when either of the following situations exists:
- The contract or subcontract value is less than the threshold prescribed in FAR 30.201-5(b)(1), and the segment of the contractor or subcontractor that will perform the contract or subcontract is primarily engaged in the sale of commercial items and has no contracts or subcontracts that are subject to CAS; or
Exceptional circumstances exist whereby a waiver of CAS is necessary to meet the needs of the agency. Exceptional circumstances exist only when the benefits to be derived from waiving the CAS outweigh the risk associated with the waiver. The determination that exceptional circumstances exist must be set forth in writing and include a statement of the specific circumstances that justify granting the waiver.
UNILATERAL CHANGES:
The contractor may unilaterally change its disclosed or established cost accounting practices, but the government shall not pay any increased cost, in the aggregate, as a result of the unilateral change.
Part 42 - Contract Administration and Audit Services
Overview of FAR Part 42 - Contract Administration and Audit Services
- Purpose:Establishespoliciesand procedures for contract administration and audit services (FAR 42.000).
- Key Sections:
- 42.1 Contract Audit Services
- 42.2 Contract Administration Services
- 42.3 Contract Administration Office Functions
- 42.4 Correspondence and Visits
- 42.5 Postaward Orientation
- 42.6 Corporate Administrative Contracting Officer
- 42.7 Indirect Cost Rates
- 42.8 Disallowance of Costs
- 42.9 Bankruptcy
- 42.11 Production Surveillance and Reporting
- 42.12 Novation and Change-of-Name Agreements
- 42.13 Suspension of Work, Stop-Work Orders, and Government Delay of Work
- 42.15 Contractor Performance Information
- 42.16 Small Business Contract Administration
- 42.17 Forward Pricing Rate Agreements
Interagency Agreements
Agencies requiring field contract administration or audit
services are encouraged to use existing cross-servicing agreements for the audit of costs incurred under contracts of two or more agencies being performed at the same business entity.
When an interagency agreement is established, the agencies are encouraged to consider establishing procedures for the
resolution of issues that may arise under the agreement
The Auditor’s Responsibility
The auditor shall
- Submit information and advice on the contractor’s financial and accounting records or other related data as to the acceptability of the
contractor’s incurred and estimated costs, - Review financial and accounting aspects of the contractor’s control systems, and
- Perform other analyses and reviews that require access to the
contractor’s financial and accounting records supporting proposed and incurred costs.
The Contract Administration Office
The Contract Administration Office’s functions are listed in FAR 42.302(a).
The CAO may also perform functions delineated in FAR 42.302(b) when authorized by the contracting office.
Contract administration functions not listed in FAR 42.302 remain the responsibility of the contracting office.
In determining whether to hold a postaward conference, the contracting officer shall consider factors including:
- The type, value, and extent of the contract;
- The complexity and acquisition history of the product or service;
- Requirements for additional parts or equipment;
- Urgency of delivery schedule and relationship of the product or service to critical programs;
- The contractor’s past performance and status as a small business eligible for set-asides.
The Corporate Administrative Contracting Officer
Contractors with more than one operating location often have corporate-wide policies/procedures requiring government review and approval.
The Corporate Administrative Contracting Officer is appointed to deal with corporate management and to perform selected contract administration functions on a corporate-wide basis.
TheCorporateAdministrative ContractingOfficer
The responsibilities of the CACO typically include
- Determination of final indirect cost rates for cost- reimbursement contracts,
- Establishment of advance agreements on corporate or home office expense allocations, and
- Administration of Cost Accounting Standards applicable to the corporate level.
Production Surveillance and Reporting
Production surveillance is used
to determine contractor progress and identify and factors that may cause delay.
The contractor is responsible for timely contract performance.
The government will maintain surveillance of contractor
performance as necessary to protect its interests.
Suspension and Delay of Work
Suspension of Work may be ordered by the Contracting Officer
for a reasonable period of time.
Stop Work Orders are used fi it is advisable to suspend work pending a decision by the government, and a supplemental agreement providing for the suspension si not feasible.
Government Delay of Work does not
authorize the contracting officer to order a suspension, delay, or interruption of work, nor is ti to be used as the basis of such an order.
Contractor Performance Information
The government and the contractor agree to use certain rates
or indices for a specified future period of time in pricing contracts or contract modifications.
Establishment of a Forward Pricing Rate Agreement will be determined by the cognizant contract administration agency.
The government and the contractor agree to use certain rates
or indices for a specified future period of time in pricing contracts or contract modifications.
Forward Pricing Rate Agreements
The government and the contractor agree to use certain rates
or indices for a specified future period of time in pricing contracts or contract modifications.
Establishment of a Forward Pricing Rate Agreement will be determined by the cognizant contract administration agency.
The government and the contractor agree to use certain rates
or indices for a specified future period of time in pricing contracts or contract modifications.
Agencies shall avoid duplicate audits, reviews, inspections, and examinations of contractors or subcontractors by more
than one agency through the use of interagency agreements.
Subject to the fiscal regulations of the agencies and applicable interagency agreements, the requesting agency shall reimburse the servicing agency for rendered services in accordance with the Economy Act (31 U.S.C. 1535).
When an interagency agreement is established, the agencies are encouraged to consider establishing procedures for the resolution of issues that may arise under the agreement.
A. CONTRACT AUDIT SERVICES (FAR 42.1)
The auditor is responsible for
submitting information and advice to the requesting activity based on the auditor’s analysis of the contractor’s financial and accounting records or other related data as to the acceptability of the contractor’s incurred and estimated costs; reviewing the financial and accounting aspects of the contractor’s cost control systems; and performing other analyses and reviews that require access to the contractor’s financial and accounting records supporting proposed and incurred costs.
A single agency shall be responsible for establishing
final indirect cost rates for each business unit, and these rates shall be binding on all agencies and their contracting offices unless otherwise specifically prohibited.
Final indirect cost rates shall be used for contract closeout unless the quick-closeout procedure is used.
In general, no proposal shall be accepted or agreement made to establish final indirect cost rates unless the contractor has certified the costs.
L. SUSPENSION OF WORK, STOP-WORK ORDERS, AND GOVERNMENT DELAY OF WORK (FAR 42.13)
The contracting officer may order
suspension of work for a reasonable period of time under a construction or architectural and engineering contract.
Stop-work orders are generally issued only if it is advisable to suspend work pending a decision by the government and a supplemental agreement is not feasible.
Stop-work orders are applicable to any negotiated fixed-price or cost-reimbursement supply, research, development, or service contract. Issuance ofa stop-work order is approved at a level higher than the contracting officer.
Government delay of work does not authorize the contracting officer to order a suspension, delay, or interruption of work; and it is not to be used as the basis or justification of such an order.
Past performance evaluations shall be prepared at the
time the work under the contract or order is completed.
The content of the evaluations should be tailored to the size, content, and complexity of the contractual requirements.
Past performance evaluations shall be prepared for each construction contract in accordance with FAR 42.1502 and FAR 42.1502.(f) for each architect-engineer services contract or more as well as any contract terminated for default.
Past performance evaluations shall not be done on contracts awarded under subpart 8.7. Past performance evaluations are required for all other contracts and orders greater than the SAT.
In addition, agencies are required to prepare an evaluation if a modification to the order causes the dollar amount to exceed the SAT.
Agencies shall prepare and submit all past performance evaluations electronically in the
CARS.
The contractor will receive a CPARS-system generated notification when an evaluation is ready for comment.
Contractors shall be afforded up to 14 calendar days from the date of notification of availability of the past performance evaluation to submit comments, rebutting statements, or additional information; refer to FAR 42.1503(d).
Agencies shall use the past performance information in
CPARS that is within three years (six for construction and architect-engineer contracts) of the completion of performance of the evaluated contract or order, and information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS), e.g., terminations for default or cause.
Agencies shall also submit past performance information in FAPIIS within three working days after a contracting officer:
- Issues a final determination that a contractor has submitted defective cost or pricing data;
Makes a subsequent change to the final determination concerning defective cost or pricing data;
*Issues a final termination for cause or default notice;
- Makes a subsequent withdrawal or a conversion of a termination for default to a termination for convenience; or
- Receives a final determination after an administrative proceeding, in accordance with FAR 22.1704(d)(1), that substantiates an allegation of a violation of the trafficking in persons prohibitions.
Part 44 - Subcontracting Policies and Procedures
Subpart 44.1 - General
Purpose: Provides general policies for subcontracting under federal
contracts (FAR 44.101).
Key Features:
- Defines the responsibilities of prime contractors in managing subcontracts (FAR
44.102). - Emphasizes the need for prime contractors to ensure subcontractor compliance with contract requirements (FAR 44.103).
Consent to Subcontracts
The requirement for consent to subcontract depends on the contractor’s purchasing system.
Approved purchasing system
Consent is only required for
a subcontract identified by the contracting officer ni the subcontracts clause of the contract.
No approved purchasing system
Consent is required for all subcontracts.
Considerations for Consent to Subcontract
Is the decision to subcontract consistent with the contractor’s
approved make-or-buy program, fi any?
Is the subcontract for
special test equipment, equipment, or real property that is available from government sources?
Has the contractor
complied with the prime contract requirements regarding small business subcontracting and purchase from nonprofit agencies
Was adequate price competition obtained or
its absence properly justified?
Did the contractor adequately assess and dispose of subcontractors’ alternate proposals, fi offered?
Has the contractor
performed adequate cost or price analysis or price
comparisons and obtained
certified cost or pricing data and data other than certified
cost or pricing data
Is the proposed
subcontract type
appropriate for the risks involved and consistent
with current policy
Has adequate consideration been
obtained for any proposed subcontract that will involve
the use of government-
provided equipment and real property?
Has the contractor
adequately and reasonably translated
prime contract technical
requirements into subcontract
requirements?
Does the prime contractor
comply with applicable cost accounting
standards for awarding the subcontract
Is the proposed
subcontractor in the System for Award Management Exclusions?
Considerations for Consent to Subcontract
Careful consideration is necessary when:
- The prime contractor’s purchasing system or performance is inadequate
- Close working relationships or ownership affiliations between the prime and subcontractor may preclude free competition or result in higher prices
- Subcontracts are proposed for award on a non-
competitive basis, at prices that appear unreasonable, or at prices higher than those offered to the government in comparable circumstances - Subcontracts are proposed on a cost-reimbursement, time-and-materials, or labor-hour basis
Contractor’s Purchasing Systems Reviews
The objective of the CPSR is to evaluate the efficiency an effectiveness with which the contractor spends government funds and I complies with government policy when subcontracting.
The ACO shall determine the need for a CPSR based on, but not limited to, the past performance of the contractor, and the volume, complexity and dollar value of the subcontracts.
Once an initial determination has been made, at least every
three years the ACO shall determine whether a CPSR is
necessary. fI necessary, the cognizant contract administration office will conduct a review.
B. CONTRACTOR PURCHASING SYSTEMS
REVIEWS (FAR 44.3)
The objective of a contractor purchasing system review (CPSR) is to
evaluate the efficiency and effectiveness with which the contractor spends government funds and complies with government policy when subcontracting.
The review provides the administrative contracting officer (ACO) a basis for granting, withholding, or withdrawing approval of the contractor’s purchasing system.
The ACO shall determine the need for a CPSR based on, but not limited to, the past performance of the contractor, and the volume, complexity, and dollar value of the subcontracts. If a contractor’s sales tothe government (excluding competitively awarded firm-fixed-price and competitively awarded fixed-price with economic price adjustment contracts and sales of commercial items pursuant to part 12) are expected to exceed $25 million during the next 12 months, perform a review to determine if a CPSR is needed.
C. SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS
(FAR 44.4)
Contractors and subcontractors at all tiers shall be required
to incorporate commercial items or nondevelopmental items as components of items delivered to the government to the maximum extent practicable.
Only contract clauses identified at FAR 52.244-6 are required to be in subcontracts for commercial items or commercial components.
Overview of FAR Part 45 - Government Property
- Purpose: Establishes policies and procedures for managing
government property in the possession of contractors (FAR 45.000). - Key Sections:
- 45.1 General
- 45.2 Solicitation and Evaluation Procedures
- 45.3 Authorizing the Use and Rental of Government Property
- 45.4 Title to Government Property
- 45.5 Support Government Property Administration
- 45.6 Reporting, Reutilization, and Disposal
Types of Government Property
Contractor-acquired property
* Property acquired, fabricated, or otherwise provided by the contractor for performing a contract and to which the government has title
Government-furnished property
* Property in the possession of, or directly acquired by, the government and subsequently furnished to the contractor for performance of a contract
Government property
* Property owned by or leased to the government, or acquired by the government under the terms of the contract
* Includes both government-furnished property and contractor-acquired property
Contractor-acquired property
- Property acquired, fabricated, or otherwise provided by the contractor for performing a contract and to which the government has title
Contracting officers shall provide property to contractors only when it is clearly demonstrated
To be in the government’s best interest
- That the overall benefit to the acquisition significantly outweighs the increased cost of administration
- That providing the property does not substantially increase the government’s assumption of risk
- That government requirements cannot otherwise be met
Loss of Government Property
With respect to loss of government property, the contracting officer, in consultation with the property
administrator, shall determine:
The extent, fi any, of contractor liability based upon the amount of damages corresponding to the associated property loss; and
The appropriate form and method of government recovery
(may include repair, replacement, or other restitution
Authorizing the Use of Government Property
Government property shall normally be provided on a rent-free basis in performance of the contract under which it is accountable i
or otherwise authorized
Requests by,
or for the benefit of, foreign governments or international organizations to use government property shall be processed in accordance with agency procedures.
The government retains title to all government-furnished property until properly disposed of, as authorized by law or regulation.
CONTRACTOR-ACQUIRED PROPERTY
is property acquired, fabricated, or otherwise provided by the contractor for performing a contract and to which the government has title.
GOVERNMENT-FURNISHED PROPERTY is
property in the possession of, or directly acquired by, the government and subsequently furnished to the contractor for performance of a contract.
GOVERNMENT PROPERTY is
all property owned by or leased to the government or acquired by the government under the terms of the contract. It includes both government-furnished property and contractor-acquired property.
Agencies will not generally require contractors to establish
property management systems that are separate from a contractor’s established procedures, practices, and systems used to account for and manage contractor-owned property.
Generally, contractors are not held liable for loss of government property under cost-reimbursement, time-and-materials, labor-hour, or fixed-price contracts awarded on the basis of certified cost or pricing data in accordance with FAR 52.245-1, Government Property. Contracts other than those specified should include Alternate I to FAR 52.245-1,
Government Property, which holds the contractor liable for loss of government property, except for reasonable wear and tear in performing the contract.
The government retains title to all government-furnished property until properly
disposed of.
Title vests in the government for all property acquired or fabricated by the contractor in accordance with the contract requirements for passage of title.
Under cost-type and time-and-materials contracts, the government acquires title to all property to which the contractor is entitled to reimbursement.
Part 50 - Extraordinary Contractual Actions and The Safety Act
Subpart 50.2 - Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act)
- Purpose: Establishes procedures for implementing the SAFETY Act to support anti-terrorism technologies (FAR 50.201).
- Key Features:
- Guidelines for qualifying technologies under the SAFETY Act (FAR 50.202).
- Procedures for obtaining liability protections for anti-terrorism technologies (FAR 50.203).
Subpart 50.1
* Extraordinary Contractual Actions
Subpart50.2
* SupportAnti-terrorism by Fostering Effective Technologies Act of 2002
Authority for Specific Federal Agencies
Extraordinary contractual relief
* contractual adjustments,
* advance payments
* the exercise of residual powers
Public Law 85-804
FAR 50.103-2 Contractual adjustments
1.Amendments without consideration
2 . Correcting Mistakes
* A mistake or ambiguity consisting
of the failure to express
* A contractor’s mistake
* A mutual mistake as to a material fact
3 . Formalizing informal commitments
For all three types of
contractual adjustments, COs shouldrefert oFAR5 0a n d
document appropriately
The primary purpose of the Extraordinary Contractual Actions and SAFETY Act is
to provide policies and procedures to address emergency matters, by providing additional contract authority to include indemnification protections for contractors and standardizing approvals in government.
It also addresses the Support Antiterrorism by Fostering Effective Technologies Act 2002 (SAFETY
Act) by
identifying authorities, policies, and procedures required to implement the statute.
As SAFETY Act is about antiterrorism technologies, it provides considerations for prequalification, approval of technology contingent upon Safety Act designation, and award of contract presuming a SAFETY Act designation is forthcoming
Part 51 - Use of Government Sources by Contractors
Overview of FAR Part 51 - Use of Government Sources by Contractors
- Purpose: Establishes policies and procedures for the use of government supply sources and interagency fleet management system (IFMS) vehicles by contractors (FAR 51.000).
- Key Sections:
- 51.1 Contractor Use of Government Supply Sources
- 51.2 Contractor Use of Interagency Fleet Management System (IFMS) Vehicles
FAR 51.101 describes the policy used by the government should contractor use of government supply sources be advantageous.
This authorization applies to subcontractors when delegated by the prime as well. It presents three instances where contracting officers may authorize contractors to use these sources:
- government cost reimbursement contracts;
- other types of negotiated contracts when the agency determines that a substantial dollar portion of the contractor’s contracts are of a government cost reimbursement nature; or
- a contract under 41 U.S.C Chapter 85 Committee for the Purchase from People Who Are Blind or Severely Disabled provided that the nonprofit agency is providing a commodity or serviceto the federal government and the supplies or services received are directly used in making providing a commodity or service approved by the committee for the purchase from the Committee for the Purchase from People Who Are Blind or Severely Disabled, to the government.
FAR 51.102 requires the contracting officer to place in the contract file a determination and finding supporting the issuance of the authorization; except when the authorization is to acquires supplies or services from Committee for the Purchase from People Who Are Blind or Severely Disabled. The determination shall be based on, but not limited to, considerations of the following factors:
- the administrative cost of placing orders with government supply sources and the program impact of delay factors, if any.
- the lower cost of items available through government supplies sources.
- suitability of items
available through
government supply sources. - delivery factors such as cost and time.
- recommendations of the contractor.
B. CONTRACTOR USE OF INTRA-AGENCY FLEET MANAGEMENT SYSTEM (IFMS)
VEHICLES (FAR 51.2)
At times it may be in the government’s interest to authorize contractor use of the Interagency Fleet Management System. In subpart 51.2 it addresses the policies and procedures for use by contractors. It also extends to subcontractors when authorized.
The services include
- fuel and lubricants;
- vehicle inspection, maintenance, and repair;
- vehicle storage; and
- commercially rented vehicles for short-term
The contracting officer may authorize use of IFMS vehicles (FAR 51.202) by cost-reimbursable contractors when they have:
- determined that the authorization will accomplish the agency’s contractual obligation and effect demonstrable economies;
- received evidence that the contractor has obtained a motor vehicle liability insurance covering bodily injury and property damage, with limits of liability is required or approved by the agency, protecting the contractor and the government against third-party claims arising from ownership, maintenance, or the use of and intra-agency fleet management system vehicle (IFMS);
- arranged for periodic checks to ensure that authorize contractors are using vehicles and related services exclusively cost-reimbursement contracts;
- ensured that contractor shall establish and enforce suitable penalties for their employees use authorize the use of government other than performance government contracts;
- received a written statement that the contractor will assume, without rate of reimbursement from the government, cost or expense of any use intra-agency fleet management vehicles and services (IFMS) not related to contract; and
- consider any recommendations
of the contractor.
This part prescribes policies and procedures supporting the government’s program for ensuring a drug-free workplace, occupational safety, and for protecting and improving the quality of the environment by
- Reducing or preventing pollution;
- Managing energy and water use in government facilities efficiently;
- Using renewable energy and renewable energy technologies;
Acquiring energy- and water-efficient products and services, environmentally preferable products, and products that use recovered materials and bio-based products;
“Requiring contractors to identify hazardous materials.
*Encouraging contractors to adopt and enforce policies that ban text messaging while driving; and
Requiring contractors to comply with agency environmental management systems.
A. ENERGY AND WATER EFFICIENCY AND RENEWABLE ENERGY (FAR
The government’s policy is to acquire supplies and services that promote energy and water efficiency, advance the use of renewable energy products, and help foster markets for emerging technologies.
This policy extends to all acquisitions, including those below the SAT and those at or below the MPT (including those made with a government purchase card).
B. USE OF RECOVERED MATERIALS (FAR
23.4)
Government policy on the use of products containing recovered materials and bio-based products considers cost, availability of competition, and performance.
Agencies shall purchase these products or require in the acquisition of services the delivery, use, or furnishing of such products.
The objective is to acquire competitively, in a cost-effective manner, products that meet reasonable performance requirements and that are composed of the highest percentage of recovered materials practicable.
D. CONTRACTING FOR
ENVIRONMENTALLY PREFERABLE AND ENERGY EFFICIENT PRODUCTS AND SERVICES (FAR 23.7)
Agencies must implement cost-effective contracting preference programs promoting energy-efficiency, water conservation, and the acquisition of environmentally preferable products and services; and employ acquisition strategies that maximize the utilization of environmentally preferable products and services (based on EPA-issued guidance); promote energy-efficiency and water conservation; eliminate or reduce the generation of hazardous waste and the need for special material processing (including special handling, storage, treatment, and disposal); promote the use of nonhazardous and recovered materials; promote the use of bio-based products; promote cost-effective waste reduction; purchase only plastic ring carriers that are degradable; and realize life-cycle cost savings.
F. CONTRACTOR COMPLIANCE WITH ENVIRONMENTAL MANAGEMENT
SYSTEMS (FAR 23.9)
An environmental management system (EMS) is a set of processes and practices that enable an organization to reduce its environmental impacts and to increase its operating efficiency.
Where contractor activities affect the environmental management performance of the agency, the contracting officer is required to specify the EMS directives with which the contractor must comply, and to ensure contractor compliance to the same extent as the agency would be required to comply, if the agency operated the facilities or vehicles.
Part 26
OTHER SOCIOECONOMIC PROGRAMS
This part addresses socioeconomic programs not addressed in FAR part 29 or other FAR parts. It includes the Indian Incentive Program, Major Disaster or Emergency Assistance Activities, Historically Black Colleges and Universities and Minority Institutions, and Food Donations to Nonprofit Organizations.
INDIAN-OWNED ECONOMIC ENTERPRISE
means any Indian-owned (as determined by the Secretary of the Interior) commercial, industrial, or business activity established or organized for the purpose of profit, provided that Indian ownership constitutes not less than 51 percent of the enterprise.
The policy is intended to maximize the participation
of Indian organizations and Indian-owned economic enterprises in performing
contracts awarded by the government. The Indian Incentive Program allows an incentive payment equal to 5 percent of the amount paid to a subcontractor in performing the contract if the subcontractor is an Indian organization or Indian-owned economic enterprise.
Contracting officers and prime contractors may rely on the representation of an Indian organization or Indian-owned economic enterprise as to its eligibility, unless
an interested party timely challenges its status, or the contracting officer has an independent reason to question that status.
The contracting officer must notify the prime contractor upon receipt of a challenge. To be considered timely, a challenge must be in writing, identify the basis of the challenge, provide detailed evidence supporting the claim, and be file with and received by the contracting officer prior to award of the subcontract in question.
Challenges to the representation are to be referredto the BIA, who will determine eligibility and notify the contracting officer. When the prime contractor isnotified prior to award, it must withhold award of itssubcontract pending the BIA investigation. Challengesreceived after award are also forwarded to the BIA forinformation only.
26.2 MAJOR DISASTER OR EMERGENCY
ASSISTANCE ACTIVITIES
A. SCOPE (FAR 26.200)
This subpart implements the Robert I. StaffordDisaster Relief and Emergency Assistance Act (42U.S.C. 5150), which provides a preference forlocal organizations, firms, and individuals whencontracting for major disaster or emergencyassistance activities.
MAJOR DISASTER OR EMERGENCY AREA
means the area included in the official presidential declaration(s) and any additional areas identified by the Department of Homeland Security. Major disaster declarations andemergency declarations are published in the Federal Register and are available at FEMA’s website.
26.202 LOCAL AREA PREFERENCE
When awarding emergency response contracts during a major disaster or emergency presidential declaration,
preference should be given to local firms where feasible and practicable.
The preference may take the form of an evaluation preference or a local-area set-aside.
The contracting officer in consultation with the requirements office should define the geographic area for the local set-aside, as well as whether to restrict the set-aside to local small businesses.
Increased micro-purchase and simplified acquisition thresholds are also available (see 2.101 definitions).
26.204 JUSTIFICATION FOR EXPENDITURES
TO OTHER THAN LOCAL FIRMS
During an emergency, any contracts not awarded to a local firm must be justified
in writing. The justification should include consideration for the scope of the disaster or emergency and the immediate requirements needed to ensure life is protected, victims are cared for, and property is protected. The justification may be on an individual or class basis and is approved by the contracting officer.
APPARENTLY WHOLESOME FOOD
means food that meets all quality and labeling standards imposed byfederal, state, and local laws and regulations even though the food may not be readily marketable due to appearance, age, freshness, grade, size, surplus, or other conditions.
In solicitations and contracts greater than $30,000
for the provision, service, or sale of food in the U.S., contracting officers should
insert clause 52.226-6 to encourage food donation by contractors. In the event a contractor donates food, agencies are not to assume any costs or logistics involved, reimburse any costs, or all any costs to be incurred.