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Contracting Officer warrant board questions

Terms in this set (109)

There are a number of considerations for the colonel:
The desired additional speed should provide benefit to the Air Force in order to justify the expenditure of funds to achieve it. The colonel should be able to articulate the justification.
The situation is very amenable to a classic performance incentive that would allow the contractor to earn profit for achieving the desired speed above and beyond what the final FPIF profit would be for achieving threshold speed. If the contractor perceives this can't happen, he will either not sign up to the incentive or will ignore it from Day One.
The incentive and resulting payment have to be structured so as to be based on observable, measurable results that would determine how much is earned by the contractor. Subjectivity is not allowable under current AF policy without HCA approval.
We have to be very careful to understand what possible unintended consequences could be caused by the existence of this feature in the contract. For example, will the contractor reduce aircraft weight beyond safe limits in order to help achieve the payment? Also, will the contractor consume excessive schedule to get the extra speed?
There has to be a cost incentive in place so that the contractor doesn't spend an unconstrained amount of money to win the payment, such as under a CPFF contract. The FPIF share line serves this purpose when balanced against the incentive.
The incentive has to be balanced with the FPIF share line so that the contractor doesn't spend more money to achieve the desired speed than he has potential to earn by receiving the payment. Similarly, the contractor can't be allowed to spend an excessive amount of money with little cost penalty to achieve success.
1. DOD Policy is to acquire only technical data and rights in that data necessary to satisfy agency needs.
2. To the extent possible - solicitation/announcement should specify the technical data to be delivered under the contract with delivery schedule and criteria for determining acceptability of technical data. Also, require offerors to identify (to the extent practicable) the technical data to be furnished with restrictions on Government's rights.
3. Contracting Officers shall work closely with requirements personnel to assure that the required technical data to be delivered is that which meets the Government's minimum needs.
4. Contracting Officers should consider the source of the development funds for technical data as a significant consideration in determining what rights the Government should attempt to obtain.
5. For technical data that was developed totally at private expense the Contracting Officer should (in most cases) obtain Limited Rights which allows the Government to only use, release, or disclose the technical data within the Government without obtaining the permission of the contractor asserting the restriction.
6. For technical data that is to be developed with mixed private and Government funding, the Contracting Officer should obtain Government purpose rights. During the period of Government purpose rights (the period of Government purpose rights is negotiable) the Government may not use, or authorize other persons to use, the Government purpose rights technical data, for commercial purposes. The Government may release the technical data to Government contractors for use in the performance under a Government contract, provided the recipient has entered into a non-disclosure agreement with the contractor who developed the data.
7. Contracting Officers should negotiate specifically negotiated license rights in technical data when the Government and the Contractor agree to modify the standard license rights granted to the Government or when the Government wants to obtain rights in technical data in which it does not have rights.
Seven Exceptions to Full and Open Competition
FAR 6.302-1 - One Responsible Source; No other Will Satisfy Requirements: When there is a reasonable basis to conclude that the agency's minimum needs can only be satisfied by unique supplies or services available from only one source or a limited number of sources, or from only one or a limited number of suppliers with unique capabilities; it shall not be used when any of the other circumstances are applicable.

FAR 6.302-2 - Unusual and Compelling Urgency; An unusual and compelling urgency precludes full and open competition, and delay in award of a contract would result in serious injury, financial or other, to the Government.

FAR 6.302-3 - Industrial Mobilization; Engineering, Development, or Research Capability; or Expert Services; When it is necessary to keep vital facilities or suppliers in business, train selected supplier, maintain properly balanced sources of supply, create or maintain the required domestic capability for production of critical supplies, continue critical supplies in production when there would otherwise be a break in production, to provide for an adequate industrial mobilization base.

FAR 6.302-4 - International Agreement; When a contemplated acquisition is to be reimbursed by a foreign country using LOA directing source; or for services to be performed, or supplies to be used, in the sovereign territory of another country and the terms of a treaty or agreement specify or limit the sources to be solicited.

FAR 6.302-5 - Authorized or Required by Statute; When statutes expressly authorize or require that acquisition be made from a specified source or through another agency.

FAR 6.302-6 - National Security; When disclosure of the Government's needs would compromise the national security (e.g., would violate security requirements).

FAR 6.302-7 - Public Interest; When the agency head determines that it is not in the public interest in the particular acquisition concerned; may be used when none of the other authorities in 6.302 apply.
Since it is very early in the performance period, the contractual limits have not likely been met. No other condition justifies exception, per the Requirements clause (FAR 52.216-21) in the contract. Therefore, The Program Manager will violate the conditions of the Requirements Clause by redirecting any work away from the contractor. The successful bidder's proposal was based on receiving all estimated work; subsequently, the Program Manager risks legal action (a claim) from the successful contractor.

One point you might bring up is that the contract term is only for one year. If the PM is unhappy with the "quality" of the contractor's performance, even though the work complies with the contract, he should review the contractual requirements and determine if the quality should be upgraded on a later procurement. Perhaps, a higher quality requirement will result in less frequent paint jobs, thereby saving money. On the other hand, perhaps the higher quality is not necessary and not worth a premium to simply make the aircraft look better. In any event, the PM is obligated to send all work to the successful contractor for one year, up to the estimated amount, unless some authorized exception exists, like an urgency that the contractor in unable to perform.

By the way, the Program Manager might be tempted to use the options as award-term incentives and convince the contractor to increase the "quality" of the work above the requirements. This could result in higher costs to the government. Also, changing the quality terms in the contract ex post facto may tempt the losing competitors to "protest." Before the Program Manager made any further moves, I would advise a meeting with legal counsel.
Performance-based payments (PBP) are the preferred financing method for definitized negotiated fixed price contracts when the CO and contractor are able to agree on PBP terms. The payments are made for performance measured by quantifiable methods or accomplishment of defined events; they are not payments for accepted items. The contract must include a complete, fully defined schedule of events or performance criteria, definitions of successful completion of events or performance criteria, and associated payments amounts. Payments may be established on a CLIN or total contract basis, and may be based on severable or cumulative events/criteria. Payments may not exceed 90 percent of the price of the associated CLIN or contract. The events or performance criteria should be integral, necessary parts of contract performance and may not include events such as contract award or option exercise. PBP amounts must be commensurate with the value of the events or performance criteria and cannot result in a negative or unreasonably low investment on the part of the contractor.

Applicable to negotiated fixed price contracts not for commercial items. Applicable only to definitized contracts, and not available for use with any other method of contract financing. Both contractor and government must agree on use of PBP and payment terms.

Advantages:
Contractor can achieve better cash flow than with progress payments (up to 90% of price vs progress payment percentage of costs)
Less burdensome to administer than progress payments, both for contractor and government (contractor prepares vouchers based on PBP schedule amounts vs tracking actual costs incurred; payment only made if contractor performs - no need to take action to suspend payment for lack of performance; no need to verify "progress" before payment)
Advantages cited above should result in lower costs to government - less financing needed by contractor due to better cash flow; lower administrative costs

Disadvantages:
Contractor has no cash flow until payment event or criteria satisfied
More difficult to establish than progress payments
Current guidance subject to different interpretations - 90% of price vs maintain positive investment
: To be determined responsible, a prospective contractor must -

1) Have adequate financial resources to perform the contract or the ability to obtain them;

2) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;

3) Have a satisfactory performance record;

4) Have a satisfactory record of integrity and business ethics;

5) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them;

6) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them;

7) Be otherwise qualified and eligible to receive an award under applicable laws and regulations.

In other words, capable of performing the work as required.

To be considered responsive, a contractor's bid must comply in all material respects with the invitation for bids. Such compliance enables bidders to stand on equal footing and maintain the integrity of the sealed bidding system.

Bids should be filled out, executed, and submitted in accordance with the instructions in the invitation (timeliness is a factor). Any bid that does not conform to the requirements, specifications, or delivery schedule will be rejected.

In a source selection, the SSA determination of the overall value of each proposal is judged against the source selection evaluation criteria and responsiveness to the government's business, contractual and technical requirements.

In general, responsiveness deals with the question of whether the contractor has promised to do exactly what the government has requested. Responsibility deals with the question of whether the contractor can or will perform as he has promised.
Consideration is the inducement to a contract: the cause, motive, price, or impelling influence that leads a party to enter a contract. A binding contract requires an offer, acceptance of the offer, and consideration. Consideration generally requires two elements: (1) something must be given that the law regards as of sufficient legal value for the purpose - either a benefit to the seller or a detriment to the buyer, and (2) the something (benefit or detriment of legal value) must be dealt with by the parties as the agreed-uponm price or exchange for the promise - there must be a "bargained-for exchange." The requirement for consideration does not require that what is relied upon for consideration be equivalent in value to the promise; the consideration need only have "some value."
For Fixed Price: After determining the estimated value of the GFP, you would add something of value to the contract (i.e., additional within scope capability, an additional study, additional hours) in order to re-establish the original "balance" of the contractual consideration.
For Cost Type: Textbook answer and preference is to reduce the base fee. After determining the extimated value of the GFP, you would get a reduction in the base fee on a cost type contract (if there is a base fee). This is because the GFP, in effect, reduces the estimated cost of the contract and therefore the fee associated with it should also be reduced. This re-establishes the original "balance" of the contractual consideration. In real life, if the value of the GFP is nominal and it is impractical to reduce the fee - you have a few other alternatives: requesting something of nominal value (additional copies of a report), documenting the file that your produce will be enhanced given the use of GFP or document the file that consideration was obtained through "cost avoidance" (over-run for example). Bottom line: consideration is required on both a FFP and Cost type contract, however since the government actually funds its own consideration in a cost-type environment, it is far less critical of an issue that supplying GFP in a FFP environment without "adequate" consideration.
1. National security would be compromised
2. Compelling urgency would cause the Government to be seriously injured if the agency complied with the time periods specified
3. A foreign government is reimbursing the agency for the cost of the acquisition; or an international agreement or treaty between the U.S. and a foreign government/international organization has the effect of requiring that the acquisition shall be from specified sources.
4. The contract action is expressly authorized or required by statute
5. The contract action is for utility services (other than telecommunications) and only one source is available
6. The contract action is an order under an indefinite delivery contract
7. The action results from acceptance of a proposal under the Small Business Innovation Development Act of 1982
8. The proposed contract action results from the acceptance of an unsolicited research proposal that demonstrates a unique and innovative concept and any notice would improperly disclose the originality of the proposed research or proprietary information.
9. The proposed contract action is made for perishable supplies and advanced notice is not reasonable
10. The proposed contract action is made under conditions described in 6.302-3, or 6.302-5 with regard to brand name commercial items for authorized resale, or 6.302-7, and advance notice is not appropriate or reasonable
11. The proposed contract action is made under the terms of an existing contract that was previously synopsized
12. The proposed contract action will be made and performed outside the U.S. and only local sources will be solicited.
13. The proposed contract action will not exceed the simplified acquisition threshold, will be made through a means
Authority: FAR 15.505 / FAR 15.506
At a minimum, Pre-Award debriefings shall include --
(1) The agency's evaluation of significant elements in the offeror's proposal;
(2) A summary of the rationale for eliminating the offeror from the competition; and
(3) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition.

Preaward debriefings shall not disclose --
(1) The number of offerors;
(2) The identity of other offerors;
(3) The content of other offerors proposals;
(4) The ranking of other offerors;
(5) The evaluation of other offerors; or
(6) Any of the information prohibited in 15.506(e).

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