Contracting Issues for the Departmental Research Administrator David Mayo, Director Office of...
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![Page 1: Contracting Issues for the Departmental Research Administrator David Mayo, Director Office of Sponsored Research California Institute of Technology david.mayo@caltech.edu.](https://reader031.fdocuments.in/reader031/viewer/2022032605/56649e735503460f94b72bcd/html5/thumbnails/1.jpg)
Contracting Issues for the Departmental Research
Administrator
David Mayo, DirectorOffice of Sponsored ResearchCalifornia Institute of [email protected]
Samantha Westcott, ManagerSponsored Projects TeamChildren’s Hospital Los [email protected]
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Introduction
• What is a federal contract (procurement)?– An award of federal funds for the purpose of buying
goods and services for the government’s use• How is a contract different from a grant or
cooperative agreement (financial assistance)?– A grant is an award of federal funds for the purpose
of supporting a public need– A cooperative agreement is the same as a grant
except that the government intends to participate or “cooperate” in the conduct of the project
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Solicitation
• What is a solicitation?– A document that describes what the government
wants to buy and how potential contractors can compete for the contract.
– A solicitation will include instructions for preparing the proposal and often includes the award terms that the contractor will receive if selected
– Contract solicitations are often called requests for proposals (RFP) or requests for quotes (RFQ)
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Solicitation Caveats
• The proposal cover page may also be the award cover page (e.g., Form SF 33). – In this case signature on the proposal cover page equates
to acceptance of the award terms. – Any unacceptable terms must be identified at the
proposal stage and submitted along with the proposal. Otherwise, there will be no opportunity to negotiate terms later.
• Proposal preparation instructions will be in Section L, but other important proposal information may be spread throughout the RFP
Review NASA RFP to provide examples
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Solicitation Caveats
• Contractors do not have the ability to terminate federal contracts, so it is important to get it right at the proposal stage
• Make sure the appropriate institutional offices have a chance to review the contract solicitations – bring them into the discussion as soon as your PI informs you.
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Uniform Contract Format
Part I - The ScheduleA. Solicitation/contract formB. Supplies or services and
prices/costsC. Description/specifications/work
statementD. Packaging and markingE. Inspection and acceptanceF. Deliveries or performanceG. Contract administration dataH. Special contract requirements
Part II - Contract ClausesI. Contract clauses
Part III - List of Documents, Exhibits, and Other AttachmentsJ. List of attachments
Part IV - Representations and InstructionsK. Representations, certifications,
and other statements of offerors or quoters
L. Instructions, conditions, and notices to offerors or quoters
M. Evaluation factors for award
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OMB Circulars and the FAR
77
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Overview of Requirements
8
Type of AwardCost
PrinciplesAdmin.
RequirementsAudit
Requirements
EducationalAssistance A-21 A-110 A-133
Procurement A-21 FAR A-133
Non-ProfitAssistance A-122 A-110 A-133
Procurement A-122 FAR A-133
HospitalAssistance 45 CFR 74-E A-110 A-133
Procurement 45 CFR 74-E FAR A-133
State & LocalAssistance A-87 A-102 A-133
Procurement A-87 FAR A-133
For-Profit Procurement FAR FAR FAR8
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9
A-133Audit
Requirements
A-133SubrecipientMonitoring
Procurement
FARAdministrative Requirements
Goods & Services
Programmatic Effort
Grants & Cooperative Agreements
A-110AdministrativeRequirements
Financial Assistance
Goods &Services
Goods &Services
ProgrammaticEffort
C-RContracts
F-PContracts
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1010
Prior Approval Requirements
• A-110 does not apply to contracts – this means– No Expanded Authorities
• No cost extension• Pre-award costs• Title to equipment
– No prior approval of items in budget• Only requirements/restrictions specified in
contract apply• PIs often don’t distinguish and may assume that
contracts follow the same rules as grants
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1111
Subcontracts
• Subcontracts vs. Subawards– There is no distinction between subawards and
vendor agreements in the FAR• Such distinction only exists in A-110...• All contractual agreements issued under a federal
contract are considered “subcontracts”
– All buyer-type processes must be applied to all subcontracts• Cost/Price Analysis • Open competition/sole-source determination
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1212
Subcontracts
• Prior Consent/Notification– Approval of your budget is not approval of the
subcontract or subcontractor in your budget, only of the need to subcontract
– ACO prior approval, or at least notification, may be required depending on the subcontracts clause
– Required by 52.244-2• 44.201-1: Consent• 44.201-2: Notification
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1313
Subcontracts
• Prior Consent/Notification– Determined by• Approved purchasing system (CPSR)• Specific listing of subcontracts in paragraph (d) of
52.244-2• Type and amount of subcontract to be issued• Alternate I to 52.244-2 – notification required
regardless of need for prior approval
– See Decision Tree...
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1414
Reporting Requirements
• Material Inspection & Receiving Report– Each deliverable (including reports)– Usually required by DoD – 252.246-7000
• Limitation of Funds/Costs– Notification to CO when contract expenditures
will, in the near future, reach a percentage of obligated funds
– Usually 2 months/75%– 52.232-20 and 52.232-22
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1515
Reporting Requirements
• Invention Reports– Not required by 52.227-11, but can be added by
agency supplemental clauses or special requirements– 252.227-7039
• Annual and Final Report of Inventions & Subcontracts• DD Form 882
• Property Reports– Generally required at end of contract– Required even if property vests in contractor– 52.245-1 and Alternate I
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1616
Reporting Requirements
• Financial Reports– NASA Financial Management Reporting• 1852.242-73• NASA Form 533• Quarterly/Monthly
• Travel Reports– Usually required when foreign travel required
prior approval– Usually with NASA and DOE
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1717
Contract Privity
• “Privity of contract” means that only the entities who entered into a contract (and who are privy to it) are entitled to enforce it
• The subcontractor does not have recourse to bypass the prime contractor and approach the funding agency – the subcontractor must deal with the prime, and vice versa.
• The same applies to a subcontractor’s subcontractor relative to the prime contractor’s terms.
• Designed to protect the relationships between contracting parties.
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1818
Exceptions to Privity
• When one party gives another party permission, such as if subcontractor needs to talk directly to funding agency, and the prime contractor agrees
• When the government reserves rights, such as with intellectual property
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1919
Closeout
• Closeout triggers release of final payment, thus prime contractor and government acceptance of subcontractor’s deliverables is of critical importance
• Government policy is to follow Part 4.804• Agencies are encouraged to use the Quick
Closeout procedures at Part 42.708
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2020
Closeout
• Closeout often includes– Completion of all deliverables, including final
reports and resolution of pending issues– Return of any prime or government-owned
equipment and other property– Submission of final invoices and closeout
documents– Submission of audit/rate information, as
applicable
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2121
Closeout
• PI usually responsible for deliverables, such as reports, and oversight of return of property
• Department Administrator will be the one called to provide proof of deliverables and property return
• Timelines for subcontractor closeout are usually tight
• Make sure to retain records for the requisite period of time (minimum 3 years after final payment), or your institutional requirements, which ever is longer
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22
Questions?