EXAM PREP COURSE – 2016 SESSION UNIT 2 BY DONALD E. SHANNON CPCM,CFCM, FELLOW Certified Federal...

EXAM PREP C O UR S E – 2016 S ESS IO NU NIT 2

BYDO NALD E . S HAN NO N C PC M, C FC M, FELLO W

Certified Federal Contracts Manager

© 2015 – Rio Grande Chapter NCMA

Copyright Notice

This presentation is the property of the Rio Grande Chapter of the National Contract Management Association © 2015. All rights reserved. This presentation is intended for the private, non-commercial use of the Rio Grande Chapter of the National Contract Management Association (NCMA) for the education and training of candidates seeking certification by the NCMA as a Certified Federal Contracts Manager.This presentation may not be duplicated, reproduced or used in any form or by any means including photocopying and recording or by any information storage and retrieval system without permission in writing from the publisher.

What We Will Cover Today

CFCM Study Guide Pages 1 – 20FAR Parts 1 – 7

1. The Federal Acquisition Regulation System2. Definitions of Words and Terms3. Improper Business Practices and Personal Conflicts

of Interest4. Administrative Matters5. Publicizing Contract Actions6. Competition Requirements

THE FEDERAL ACQUISITION REGULATION SYSTEM

ISSUED BY THE GENERAL SERVICES ADMINISTRATION

DEPARTMENT OF DEFENSENATIONAL AERONAUTICS AND SPACE

ADMINISTRATION

FAR Part 1

Purpose

The Federal Acquisition Regulations System is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies.

The Federal Acquisition Regulations System consists of the Federal Acquisition Regulation (FAR), which is the primary document, and agency acquisition regulations that implement or supplement the FAR.

48 CFR – Federal Acquisition Regulation System

CHAPTER 1 - FEDERAL ACQUISITION REGULATION CHAPTER 2 - DEFENSE ACQUISITION REGULATIONS SYSTEM,

DEPARTMENT OF DEFENSE CHAPTER 3 - HEALTH AND HUMAN SERVICES CHAPTER 4 - DEPARTMENT OF AGRICULTURE CHAPTER 5 - GENERAL SERVICES ADMINISTRATION CHAPTER 6 - DEPARTMENT OF STATE CHAPTER 7 - AGENCY FOR INTERNATIONAL DEVELOPMENT CHAPTER 8 - DEPARTMENT OF VETERANS AFFAIRS CHAPTER 9 - DEPARTMENT OF ENERGY CHAPTER 10 - DEPARTMENT OF THE TREASURY CHAPTER 12 - DEPARTMENT OF TRANSPORTATION CHAPTER 13 - DEPARTMENT OF COMMERCE CHAPTER 14 - DEPARTMENT OF THE INTERIOR


CHAPTER 15 - ENVIRONMENTAL PROTECTION AGENCY CHAPTER 16 - OFFICE OF PERSONNEL MANAGEMENT FEDERAL

EMPLOYEES HEALTH BENEFITS ACQUISITION REGULATION CHAPTER 17 - OFFICE OF PERSONNEL MANAGEMENT CHAPTER 18 - NATIONAL AERONAUTICS AND SPACE

ADMINISTRATION CHAPTER 19 - BROADCASTING BOARD OF GOVERNORS CHAPTER 20 - NUCLEAR REGULATORY COMMISSION CHAPTER 21 - OFFICE OF PERSONNEL MANAGEMENT, FEDERAL

EMPLOYEES GROUP LIFE INSURANCE FEDERAL ACQUISITION REGULATION

CHAPTER 23 - SOCIAL SECURITY ADMINISTRATION CHAPTER 24 - DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT CHAPTER 25 - NATIONAL SCIENCE FOUNDATION CHAPTER 28 - DEPARTMENT OF JUSTICE CHAPTER 29 - DEPARTMENT OF LABOR


CHAPTER 30 - DEPARTMENT OF HOMELAND SECURITY, HOMELAND SECURITY ACQUISITION REGULATION (HSAR)

CHAPTER 34 - DEPARTMENT OF EDUCATION ACQUISITION REGULATION CHAPTER 51 - DEPARTMENT OF THE ARMY ACQUISITION REGULATIONS CHAPTER 52 - DEPARTMENT OF THE NAVY ACQUISITION REGULATIONS CHAPTER 53 - DEPARTMENT OF THE AIR FORCE FEDERAL ACQUISITION

REGULATION SUPPLEMENT [Reserved] CHAPTER 54 - DEFENSE LOGISTICS AGENCY, DEPARTMENT OF DEFENSE CHAPTER 57 - AFRICAN DEVELOPMENT FOUNDATION CHAPTER 61 - CIVILIAN BOARD OF CONTRACT APPEALS, GENERAL

SERVICES ADMINISTRATION CHAPTER 63 - DEPARTMENT OF TRANSPORTATION BOARD OF

CONTRACT APPEALS CHAPTER 99 - COST ACCOUNTING STANDARDS BOARD, OFFICE OF

FEDERAL PROCUREMENT POLICY, OFFICE OF MANAGEMENT AND BUDGET

Chapter 1 – Federal Acquisition Regulation

Subchapter A – General (parts 1-4)Subchapter B – Competition and Acquisition Planning

(parts 5-12)Subchapter C – Contracting Methods and Contract

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)

Vision

The vision for the Federal Acquisition System is to deliver on a timely basis the best value product or service to the customer, while maintaining the public’s trust and fulfilling public policy objectives.

Question: What are some of these “Public Policy Objectives”?

Vision

The Federal Acquisition System Will Satisfy customer requirements in terms of cost,

schedule and quality Maximize the use of commercial products Promote competition Minimize administrative operating costs Conduct business with integrity, fairness, openness

The Acquisition Team

Members of the team are empowered to make decisions within their areas of responsibility

Authority to be delegated to the lowest level within the system consistent with law

Team must be prepared to perform the functions assigned

The system will foster cooperative relationships between Government and Industry consistent with its responsibility to the taxpayers

“That which is not expressly forbidden is allowed”

If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. 1

1. FAR 1.102-4(e)

Publication

The FAR is published in the daily issue of the Federal Register This applies to revisions or additions known as “FAR

Cases”The FAR is published in culminated form the

Code of Federal Regulations (Chapter 1 of Title 48, CFR)

Electronic versions of the FAR are available at no charge from www.acquisition.gov and www.farsite.hill.af

http://www.farsite.hill.af/

Navigating the FAR

The FAR is subdivided into 52 “Parts”Common reference is made by the below

scheme25.108-2

Part Sub-Part Section Sub-Section

Navigating the FAR

Clauses and Provisions are identified by the following code 52.222-8

FAR Part 52 - Solicitation Provisions and Contract Clauses

Subpart 52.2 – Text of Provisions and Clauses FAR Part 22 (the prescribing section for the clause) -8 – a sequential number assigned to clauses from that

FAR Part Clauses with a number ahead of the 52.xxx-x such as

252.xxx-x are prescribed in an agency supplement. For example 252 is the DFAR

The FAR Council

FAR is prepared, issued, and maintained jointly by: Secretary of Defense Administrator of GSA Administrator of NASA

Two councils who must agree to all changes Defense Acquisition

Regulation Council (DoD/NASA)

Civilian Agency Council (GSA)

FAR is published and distributed by FAR Secretariat (GSA)

Richard T. GinmanDirector, Defense Procurement & Acquisition Policy, Department of Defense

Mr. William P. McNallyAssistant Administrator for ProcurementNational Aeronautics and Space Administration

Mr. Jeffrey A. Koses Senior Procurement Executive General Services Administration

The Two (FAR) Councils

Defense Acquisition Council Department of Defense NASA

Civilian Agency Acquisition Council Administrator, GSA One representative from Agriculture, Commerce,

Energy, Health and Human Services, Homeland Security, Interior, Labor, State, Transportation, and Treasury

One representative from Environmental Protection Agency, Social Security Administration, Small Business Administration, and Department of Veterans Affairs.

The FAR Secretariat

The General Services Administration is responsible for establishing and operating the FAR Secretariat to print, publish, and distribute the FAR through the Code of Federal Regulations system

Additionally, the FAR Secretariat shall provide the two councils with centralized services for-(1) Keeping a synopsis of current FAR cases and their status;(2) Maintaining official files;(3) Assisting parties interested in reviewing the files on completed cases; and(4) Performing miscellaneous administrative tasks pertaining to the maintenance of the FAR.

Proposed Changes to the FAR

Proposed changes are published in the Federal Register

Know as “FAR Cases” Public Comment

PeriodAdoption of proposed

change announced in Federal Register

Electronic copy of FAR updated with revision

Dollar Thresholds

Many FAR actions are controlled by specific dollar thresholds. These thresholds are evaluated and adjusted every 5 years. The latest

revision (November 2015)1

The micro-purchase threshold of $3,000 increases to $3,500 (FAR 2.101). The threshold for use of simplified acquisition procedures for acquisition of commercial items

increases from $6.5 million to $7 million (FAR 13.500). The cost or pricing data threshold (FAR 15.403-4) and the Cost Accounting Standards

threshold (FAR 30.201-4 and FAR clause 52.230-5) increases from $700,000 to $750,000. The prime contractor subcontracting plan floor increases from $650,000 to $700,000. The

subcontracting plan threshold for construction contracts remains the same at $1.5 million (FAR 19.702).

The threshold for reporting first-tier subcontract information, including executive compensation, increases from $25,000 to $30,000 (FAR Subpart 4.14 and FAR clause 52.204-10).

The threshold for including the clause requiring contractors to provide equal employment opportunities to veterans increases from $100,000 to $150,000 (FAR 22.1303 and FAR clause 52.222-35).

The threshold requiring contractors to flowdown the clause regarding a contractor’s Code of Business Ethics and Conduct increases from $5 million to $5.5 million (FAR clause 52.203-15).

The threshold restricting subcontracts with a contractor that has been debarred, suspended, or proposed for debarment increases from $30,000 to $35,000 (FAR 9.409 and FAR clause 52.209-6).

1. Summary provided by contractingacadamy.gatech.edu

Agency Acquisition Regulations

As previously stated, agencies may issue or authorize supplemental or implementing regulations to the FAR

Supplements are limited to those needed to implement FAR guidance within the agency

May contain unique or agency specific solicitation provisions or contract clauses

Deviations from the FAR

Deviations (such as waiving a requirement or conducting acquisition actions in a manner different from that described in the FAR) may be granted to meet the needs of the agency.

Deviations are limited by the underlying law which still must be observed

Two types of deviations Individual. Unique to one contract action. May be approved by

agency head. Class. Affect more than one contract action. Consideration should

be given to making it a FAR revision. Approved by agency head with consultation or as per the DFAR.

Deviations may be required so as to comply with treaty or executive agreement.

Contracting Officers

Have authority to enter into, administer or terminate contracts or make related determinations and findings

Authority is limited to that delegated to them Appointment made via SF1402 Certificate of appointment Authority terminated by letter or expiration of certificate.

No contract shall be entered into unless the CO ensures all requirements of law, executive orders, regulations, and other applicable procedures (including clearances and approvals) have been met.

CO Responsibility

Ensure all legal and regulatory requirements have been met and sufficient funds are available for obligation

Ensure contractors receive impartial and fair treatment

Request advice from experts (legal etc.)Designate and authorize Contracting Officer’s

Representatives where needed

Ratification of Unauthorized Commitments

“Unauthorized commitment” is an agreement that is not binding on the government because it was made by a person lacking the capacity to enter into that agreement on behalf of the government

“Ratification” is the act of approving an unauthorized commitment Agencies should take positive action to preclude the need for

ratification The head of an contracting activity (unless a higher level is

specified) may approve an unauthorized commitment if: Supplies or services have been provided and accepted resulting in a benefit to

the government The ratifying official has the authority to do so The resulting contract would have been proper if made by an authorized CO Fair and reasonable price Funds available

Non-ratifiable commitments referred to GAO as a claim

Determinations and Findings (D&F)

A D&F is a special form of of written approval required by statute or regulation before taking certain actions Determination is a conclusion Findings are facts supporting the conclusion

D&F is usually for a single contract although “class” D&Fs may be issued

D&F must set forth enough facts and circumstances to to justify the conclusion (determination) being made

Content and format are as per FAR 1.704

DEFINITIONS OF WORDS AND TERMS

FAR Part 2

Scope

This part – Defines words and terms that are frequently used in the

FAR; Provides cross-references to other definitions in the

FAR of the same word or term; and Provides for the incorporation of these definitions in

solicitations and contracts by reference. Other parts, subparts, and sections of this

regulation (48 CFR Chapter 1) may define other words or terms and those definitions only apply to the part, subpart, or section where the word or term is defined (see the Index for locations).

Subpart 2.1—Definitions

A word or a term, defined in this section, has the same meaning throughout this regulation, unless—

(1) The context in which the word or term is used clearly requires a different meaning; or (2) Another FAR part, subpart, or section provides a different definition for the particular part or portion of the part.

If a word or term that is defined in this section is defined differently in another part, subpart, or section of this regulation, the definition in—

(1) This section includes a cross-reference to the other definitions; and (2) That part, subpart, or section applies to the word or term when used in that part, subpart, or section.

FAR 2.101 Definitions.

“Acquisition” means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract.


“Affiliates” means associated business concerns or individuals if, directly or indirectly Either one controls or can control the other; or A third party controls or can control both.

Note: Please visit the Small Business Administration (SBA.gov)

website for more detailed information concerning affiliation.


“Assignment of claims” means 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.


“Best value” means the expected outcome of an acquisition that, in the Government’s estimation, provides the greatest overall benefit in response to the requirement. Best Value implies a trade-off such that additional

value may be obtained albeit at increased cost.


“Broad agency announcement” means 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 (see 6.102(d)(2)).

The BAA is typically associated with R&D contracts (see FAR Part 35)


“Certified cost or pricing data” means “cost or pricing data” that were required to be submitted in accordance with FAR 15.403-4 and 15.403-5 and have been certified, or is required to be certified, in accordance with 15.406-2. This certification states that, to the best of the person’s knowledge and belief, the cost or pricing data are accurate, complete, and current as of a date certain before contract award. Cost or pricing data are required to be certified in certain procurements (10 U.S.C. 2306a and 41 U.S.C. 254b).

http://uscode.house.gov/


“Claim” means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or related to the contract.


“Day” means, unless otherwise specified, a calendar day.

“Delivery order” means an order for supplies placed against an established contract or with Government sources.

“Task order” means an order for services placed against an established contract or with Government sources.


“Full and open competition,” when used with respect to a contract action, means that all responsible sources are permitted to compete.


“Invoice” means a contractor’s bill or written request for payment under the contract for supplies delivered or services performed (see also “proper invoice”).

“Proper invoice” means an invoice that meets the minimum standards specified in 32.905(b).

FAR 2.101 Definitions

“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” or “Will” means the imperative. “Should” means an expected course of action

or policy that is to be followed unless inappropriate for a particular circumstance.


“Performance Work Statement (PWS)” means a statement of work for performance-based acquisitions that describes the required results in clear, specific and objective terms with measurable outcomes.

“Statement of Objectives (SOO)” means a Government-prepared document incorporated into the solicitation that states the overall performance objectives. It is used in solicitations when the Government intends to provide the maximum flexibility to each offeror to propose an innovative approach.


“Registered in the System for Award Management (SAM) database” means that- (1) The Contractor has entered all mandatory information, including

the DUNS number or the DUNS+4 number, the Contractor and Government Entity (CAGE) code, as well as data required by the Federal Funding Accountability and Transparency Act of 2006 (see subpart 4.14), into the SAM database;

(2) The Contractor has completed the Core, Assertions, Representations and Certifications, and Points of Contact sections of the registration in the SAM database;

(3) The Government has validated all mandatory data fields, to include validation of the Taxpayer Identification Number (TIN) with the Internal Revenue Service (IRS). The contractor will be required to provide consent for TIN validation to the Government as a part of the SAM registration process; and

(4) The Government has marked the record Active.


“Simplified acquisition threshold” means $150,000, except 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, the term means— (1) $300,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and (2) $1 million for any contract to be awarded and performed, or purchase to be made, outside the United States.

IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

Far Part 3

Subpart 3.1 -- Safeguards

No Government employee may solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, or anything of monetary value

Agencies are required to prescribe “Standards of Conduct”

The contracting officer shall insert the provision at 52.203-2, Certificate of Independent Price Determination, in solicitations when a firm-fixed-price contract is contemplated

Procurement Integrity

Prohibition on disclosing procurement information Prohibitions on a former official’s acceptance of

compensation from a Contractor Includes offers of employment

Remedies Cancel the procurement; Disqualify an offeror; or Take any other appropriate actions Appropriate contractual remedies, including profit recapture Void or rescind the contract Suspension or debarment Civil and Criminal Penalties

Contractor Gratuities to Government Personnel

Insert the clause at 52.203-3, Gratuities, in solicitations and contracts with a value exceeding the simplified acquisition threshold

Not applicable to Personal ServicesThe right of the Contractor to proceed may be

terminated if, the agency head or a designee determines that the Contractor, its agent, or another representative -- (1) Offered or gave a gratuity (e.g., an entertainment or gift)

to an officer, official, or employee of the Government; and (2) Intended, by the gratuity, to obtain a contract or

favorable treatment under a contract

Reports of Suspected Anti-Trust Violations

Agencies are required to report any bids or proposals that evidence a violation of the antitrust laws. “Industry price list” or “price agreement” A sudden change from competitive bidding to identical bidding Simultaneous price increases or follow-the-leader pricing Rotation of bids or proposals Division of the market Collusive price estimating system Unwarranted joint bid incidents suggesting direct collusion among competitors

(identical wording, calculations, errors, etc.) Assertions that an agreement to restrain trade exists

Contingent Fees

“Contingent fee” means any commission, percentage, brokerage, or other fee that is contingent upon the success that a person or concern has in securing a Government contract.

Contractors’ arrangements to pay contingent fees have long been considered contrary to public policy

Permit contingent fee arrangements between contractors and bona fide employees or bona fide agencies; and

Provide that, for breach or violation the Government may annul the contract without liability or deduct from the contract price or otherwise recover, the full amount of the contingent fee.

Required Clause 52.203-5, Covenant Against Contingent Fees, in all solicitations and contracts exceeding the simplified acquisition threshold, other than those for commercial items

Other Improper Business Practices

“Buying-in,” as used in this section, means submitting an offer below anticipated costs, expecting to – Increase the contract amount after award (e.g., through

unnecessary or excessively priced change orders); or Receive follow-on contracts at artificially high prices to

recover losses incurred on the buy-in contract. “Kickbacks”Unreasonable Restrictions on Subcontractor Sales

Clause at 52.203-6 Restrictions on Subcontractor Sales to the Government, in solicitations and contracts exceeding the simplified acquisition threshold

Contracts With Government Employees

… A contracting officer shall not knowingly award a contract to a Government employee or to a business concern or other organization owned or substantially owned or controlled by one or more Government employees.

Voiding and Rescinding Contracts

Provides for discretionary authority to declare void and rescind contracts in relation to which There has been a final conviction for bribery, conflict

of interest, disclosure or receipt of contractor bid or proposal information or source selection information

There has been an agency head determination that contractor bid or proposal information or source selection information has been disclosed or received in exchange for a thing of value, or for the purpose of obtaining or giving anyone a competitive advantage in the award of a Federal agency procurement contract

Limitation on the Payment of Funds to Influence Federal Transactions

(a) 31 U.S.C. 1352 prohibits a recipient of a Federal contract, grant, loan, or cooperative agreement from using appropriated funds to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any covered Federal actions.

(b) 31 U.S.C. 1352 also requires offerors to furnish a declaration consisting of both a certification and a disclosure, with periodic updates of the disclosure after contract award. These requirements are contained in the provision at 52.203-11, Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions, and the clause at 52.203-12, Limitation on Payments to Influence Certain Federal Transactions.

Whistleblower Protections for Contractor Employees

(a) Any employee of a contractor who believes that he or she has been discharged, demoted, or otherwise discriminated against contrary to the policy in 3.903 may file a complaint with the Inspector General of the agency that awarded the contract.

(a) If the head of the agency or designee determines that a contractor has subjected one of its employees to a reprisal for providing information to a Member of Congress, or an authorized official of an agency or of the Department of Justice, the head of the agency or designee may take one or more of the following actions: (1) Order the contractor to take affirmative action to abate the reprisal. (2) Order the contractor to reinstate the person

Use the clause at 52.203–15, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 in all solicitations and contracts funded in whole or in part with Recovery Act funds.

Contractor Code of Business Ethics and Conduct

(a) Government contractors must conduct themselves with the highest degree of integrity and honesty.

(b) Contractors should have a written code of business ethics and conduct. …contractors should have an employee business ethics and compliance training program and an internal control system that— (1) Are suitable to the size of the company and extent of its involvement in

Government contracting; (2) Facilitate timely discovery and disclosure of improper conduct in

connection with Government contracts; and (3) Ensure corrective measures are promptly instituted and carried out. (3)

Ensure corrective measures are promptly instituted and carried out. The requirements at 52.203-13, Contractor Code of Business

Ethics and Conduct, and 52.203-14, Display of Hotline Poster(s), are mandatory if the value of the contract is expected to exceed $5,000,000 and the performance period is 120 days or more

ADMINISTRATIVE MATTERS

FAR Part 4

FAR 4.1 Contract Execution

Only contracting officers (CO) shall sign contracts on behalf of the United States. CO signs the contract after the contractor has signed

for contracts and bilateral modifications. CO only signs unilateral changes and execution of

optionsContractor signature may be provided by:

Individuals Partnerships Corporations Joint Ventures Agents

Contract Distribution

Contracting officers shall distribute copies of contracts or modifications within 10 working days after execution by all parties.

Taxpayer Identification Information (TIN) Contractor must provide TIN and type of organization

information Information typically available in SAM

Safeguarding Classified Information Within Industry

4.402 Executive Order 12829, January 6, 1993 (58 FR 3479, January 8, 1993), entitled “National Industrial Security Program” (NISP), establishes a program to safeguard Federal Government classified information that is released to contractors, licensees, and grantees of the United States Government.

The National Industrial Security Program Operating Manual (NISPOM) incorporates the requirements of the NISP Executive orders.

4.403, 4.404 CO shall review proposed solicitations and determine security

requirements. CO ensures acquisition is NISP compliant.

Electronic Commerce in Contracting

The Federal Government shall use electronic commerce whenever practicable or cost effective.

Federal Procurement Data System (FPDS)

FPDS Purpose Provide database of information regarding business

types, types of contracts awarded, products purchased and associated costs, from which reports can be generated for the Government or general public.

Definitive contracts, including purchase orders and imprest fund buys over the micro-purchase threshold awarded by a contracting officer

Indefinite delivery vehicles, including Task and Delivery Order contracts, GSA Federal supply schedules, Blanket Purchase Agreements, and any other agreement or contract against which purchases can be placed

Funding Obligations – FPDS-NG

Contractor Records Retention

Applicable to contracts where FAR 52.214-26, Audit and Records – Sealed Bidding or FAR 52.215-2, Audit and Records - Negotiation have been incorporated into the contract

Contractors are required to have available: records (i.e. books, documents, accounting procedures and practices, and other source data) for 3 years after final payment.

Financial and cost accounting records, pay administration, acquisition and supply records – 2-4 years.

Government Contract Files

Contract files are kept for all contract actions.

Files document complete history of the contract Files are readily accessible to principal users Include quotations, certifications, source selection

information, etc.

Government Contract Files

Closeout of Contract Files Simplified contracts closed upon CO receipt of

evidence of receipt of property and final payment FFP contracts should be closed within 6 months

after CO receipt of evidence of physical completion.

Contracts requiring settlement of indirect cost rates should be closed within 36 months after CO receipt of evidence of physical completion.

All others – within 20 months.

FAR 4.9 Taxpayer Identification Number Information (TIN)

Purpose of TIN Debt collection Internal Revenue Service (IRS) reporting

System for Award Management (SAM)

Contractors shall be registered in SAM prior to award of contract (see list of exceptions in FAR 4.1102)

CO shall verify contractor listing prior to award

Representations and Certifications

Prospective contractors shall complete electronic annual representations and certifications at SAM accessed via https://www.acquisition.gov as a part of required registration

Prospective 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.

The contracting officer must reference the date of SAM verification in the contract file, or include a paper copy of the electronically-submitted representations and certifications in the file

Personal Identity Verification

Applicable when contractor and/or subcontractor personnel are performing services routinely at Federally-controlled facilities and/or have routine access to an information system that is Federally controlled.

Personal Identity Verification is also applicable to the acquisition of products and services.

Reporting Executive Compensation and First-Tier Subcontract Awards

Applicable to contracts awarded at $25k or higher, the exception being classified contracts and contracts awarded to individuals.

Contractors is required to report its five most highly compensated executives and of its first tier subcontractors.

Exception – contractors and subcontract whose gross income in the prior tax year was under $300k.

Unique Procurement Instrument Identifiers (PIID)

PIID is a standardized method by which the Government identifies contract actions

Consists of four fields: Agency identification: 6 characters e.g., FA5941 Fiscal year: 2 characters e.g. 14 Type instrument: 1 character e.g., C, D, Sequential serial number: 4 characters Supplemental: 4 characters

Mxxx = Solictation amendment xxx Axxx = Administrative modification xxx Pxxx = PCO Contract modification xxx

Type Instrument Codes

B Invitations for bids C Contracts of all types except indefinite delivery contracts, facilities contracts, sales contracts, and

contracts placed with or through other Government departments or agencies or against contracts placed by such departments or agencies outside OPM

D Indefinite delivery contracts E Facilities contracts F Contracting actions placed with or through other Government departments or agencies or against

contracts placed by such departments or agencies outside the DoD (including actions with the National Industries for the Blind (NIB), the National Industries for the Severely Handicapped (NISH), and the Federal Prison Industries (UNICOR))

G Basic ordering agreements H Agreements, including basic agreements and loan agreements, but excluding blanket purchase

agreements, basic ordering agreements, and leases K Short form research contract L Lease agreement M Purchase orders—manual (assign W when numbering capacity of M is exhausted during the fiscal year) N Notice of intent to purchase P Purchase order—automated (assign V when numbering capacity of P is exhausted during a fiscal year) Q Request for quotation—open market R Request for proposal S Sales contract T Request for quotation—GSA schedule (assign U when numbering capacity of T is exhausted during a fiscal

year)

FAR Part 5

PUBLICIZING CONTRACT ACTIONS

Why Publicize?

Contracting Officers (CO) must publicize proposed contract actions in order to: Increase competition Broaden industry participation Assist socioeconomic concerns in obtaining

contracts and subcontracts

GPE

The Government-wide Point of Entry (GPE) is the single point where Government business opportunities greater than $25K can be accessed electronically by the public

For all of Federal contracting, the GPE is located at http://www.fedbizopps.gov

http://www.fedbizopps.gov/

Requirements for Disseminating Info

COs are required to disseminate information on proposed contract actions as follows (FAR 5.101): Actions exceeding $25K must be synopsized in

FedBizOpps (the GPE) Actions exceeding $15K, but less than $25K, should

be displayed in a public place Can display a notice or a copy of the solicitation GPE can be used instead of the display approach Some exceptions apply [FAR 5.101(a)(2)(ii)]

We’ll talk about exceptions later!

Other Options for Releasing Info

The posting requirements listed on the previous slide are mandatory

There are additional methods of sharing information that we can consider Periodic handouts listing proposed contracts Communication with local trade associations No-cost announcements in newspapers, trade

journals, magazines, or other media Paid advertisements in newspapers or other

media (some limitations apply)

Synopsis

What is a synopsis? Brief summary of the proposed action Should give a vendor enough information to decide

whether or not he wants to see the solicitation As mentioned earlier, a synopsis is required for

any action exceeding $25K Requirement includes modifications to existing contracts

for additional supplies or services exceeding $25KIf advantageous, the Government can choose to

synopsize an action of any amountSynopses are very important because they help

contractors identify business opportunitiesFedBizOpps makes life easier for contractors by

giving them one spot to search all Federal contracting opportunities

Exceptions to Synopsizing

The synopsis cannot be worded to preclude disclosure of classified information that would compromise national security (the fact that an action involves classified information does not, in itself, justify this exception)

Unusual and compelling urgency exists and we don’t have time to synopsize (must establish risk of serious injury to the government)

A foreign government is funding the action and has specified a source

The action is authorized or specified by statute to be made through another Government agency, e.g. 8(a) and Ability One Program (more to come on these later)

The proposed action is for utility services other than telecommunication services and only one source is available

The proposed action is an order under an existing contract The proposed action results from a proposal under the

Small Business Innovation Development Act The proposed actions resulted from a unique and

innovative unsolicited proposal

Exceptions to Synopsizing, cont.

The proposed action involves perishables and advance notice is not reasonable

The proposed action is for brand name commercial items for authorized resale in commissaries (e.g. Coca Cola, Kellogg’s, etc.)

The proposed action is made under the current terms of an existing contract that was previously synopsized (e.g. exercising an option under an existing contract)

The proposed action will be made and performed outside the US an only local sources will be solicited

The proposed action is for an amount not expected to exceed the simplified acquisition threshold (currently $150K) and the solicitation will made through a means that provides notice through the GPE and allows vendors to respond electronically

The proposed action is for the services of an expert that will support the Government in litigation or dispute

The Head of the Agency determines in writing that a synopsis is not appropriate or reasonable (requires consultation with other parties)

Content of a Synopsis

A synopsis includes information such as (FAR 5.207): Name and address of the contracting office Solicitation number Opening and closing date of the forthcoming solicitation Classification code Point of contact (CO information) Place of performance Clear and concise description of the supplies or services to be

acquired (includes part number, quantity, delivery date or performance period, etc.)

If non-competitive, identification of the intended source and statement of the reason competition is not sought

A statement that “All responsible sources may submit a bid, proposal, or quote which shall be considered by the agency”

Numbered notes as appropriate, which have assigned meanings and identify aspects such as “100% small business set-aside”

Response Times, cont.

Synopsis

Solicitatio

n

Proposal

15 Days

30 Days

FAR 5.203


For commercial item actions, the CO may: Establish a shorter period between the synopsis

and the issuance of the solicitation, i.e. <15 days Establish a shorter period between the

solicitation and proposal due date, i.e. <30 days Utilize a combined synopsis/solicitation

The FAR does not specify any minimums for commercial items but does caution us to allow offerors “reasonable opportunity to respond” We should consider circumstances…urgency,

complexity, availability, etc.


Remember that simplified actions less than $25K do not have to be synopsized if you are releasing the RFQ to the GPE

The FAR does not establish a minimum posting time for these RFQs

Again, we should allow offerors “reasonable opportunity to respond”

Note that the vast majority of simplified acquisitions are executed for commercial items, but it is possible for a simplified acquisition to be non-commercial

Subcontracting Opportunities

Most large contracts involve the use of subcontractors

Though our relationship is directly with the prime, we want the prime to utilize small businesses and other socioeconomic concerns to the maximum extent possible for their subcontracting needs

To assist in locating “subs,” prime contractors with contracts exceeding $150K can use the GPE by submitting a notice for business opportunities Subs or suppliers at any tier can also use the GPE See FAR 5.206

Of course, most large contractors have well established networks in place

Publicizing Contract Awards

To promote subcontracting opportunities, the CO must release a synopsis to announce a contract award over $25K if the award of subcontracts is likely (FAR 5.301) Some exceptions apply, including orders against

existing contracts and simplified acquisitions that were conducted through the GPE

Publicizing Contract Awards, cont.

COs must also provide a “public announcement” for significant awards (FAR 5.303) For DoD, the threshold is $6.5M For NNSA, the threshold is $4M The agency must release the notice by 5pm

(Washington DC time) on the day of contract award Announcement includes an overview of the

requirement, dollar value, contractor information, funding information, competition information (how many offers received), and point of contact information

COMPETITION REQUIREMENTS

FAR Part 6

FAR Part 6 - Page 2

Scope

FAR Part 6 establishes policies and procedures to promote Full and Open Competition

Also addresses Full and open competition after exclusion of sources Other than full and open competition Competition advocates

FAR Part 6 - Page 3

ApplicabilitySubpart 6.001

Applies to ALL acquisitions EXCEPT Contracts awarded using Simplified Acquisition Contracts awarded by “other procedures” allowed by

statute Orders under requirements contracts or definite

quantity contracts Orders placed under indefinite-quantity (IQ) if

The IQ was awarded under F&OC and all sources allowed to compete

The IQ was awarded as Other than F&OC and the justification covers the order

Orders placed against Task Order or Delivery Order contracts

FAR Part 6 - Page 4

Full and Open Competition (F&OC)Subpart 6.1

COs shall promote F&OC in soliciting offers and awarding Gov’t contracts

COs shall provide for F&OC through the use of Competitive procedures … best suited to the circumstances … and consistent with the need to fulfill Government’s requirements efficiently

FAR Part 6 - Page 5

Competitive ProceduresSubpart 6.102

Competitive Procedures available include: Sealed Bids Competitive Proposals Combination of competitive procedures e.g., two step

sealed bids Other competitive procedures

Using the FAR Part 36 procedures for Construction & Architect-Engineer contracts

Using the FAR Part 35 (R&D) procedures for BAAs Use of Multiple Award Schedules from the GSA

FAR Part 6 - Page 6

Full and Open Competition After Exclusion of SourcesSubpart 6.2

Still required to use “Competitive Procedures” May exclude a source to establish or maintain an

alternative source (Requires a D&F) Must result in increasing or maintaining competition Be in interest of National Defense Ensure continuous availability of a reliable source of supply Satisfy projected needs or critical need for supplies

Small Business Set-aside – FAR 19.5 Section 8a Competition – FAR 19.8 Hub Zone Set-aside – FAR 19.1305 Service Disabled Veterans Set aside – FAR 19.405 EDWOSB or WOSB – FAR 19.1505 Local firms following major disaster or emergency – FAR

26.2

FAR Part 6 - Page 7

Other than Full and Open CompetitionSubpart 6.3

Is a violation of statute unless permitted by an exception

Each contract so awarded must reference the specific authority under which it was awarded

May NOT be justified based on urgency due to lack of planning or expiration of funds.

FAR Part 6 - Page 8

Circumstances Permitting Other than Full and Open CompetitionSubpart 6.302

Only one responsible source and no other supplies or services will satisfy agency requirements (long list of attributes) - FAR 6.302-1 (discussed in detail on next few slides)

Unusual and Compelling Urgency – 6.302-3

Industry Mobilization; engineering developmental or research capabilities; or expert services – 6.302-3

Required by International Agreement – 6.302-4

Authorized or required by statute - 6.302-5

National Security – 6.302-6

Public Interest - 6.302-7

FAR Part 6 - Page 9

Only One Responsible Source

Unsolicited research proposal demonstrating unique and innovative

technique not otherwise available

to the Government Does not resemble the

substance of a pending solicitation

Follow-on contract for continued development of system or specialized equipment if Would result in

substantial duplication of cost or unacceptable delays

Follow-on Services if would result in

substantial duplication of costs or unacceptable delays

FAR Part 6 - Page 10

Only One Responsible SourceJustification Required When

Reasonable basis to conclude agency’s minimum needs can only be met by Unique supplies or services available from only one source with

unique capabilities (Civilian) Unique supplies or services available from only one or a limited

number of sources or from only one or a limited number of suppliers with unique capabilities

The existence of intellectual property rights or secret processes make supplies and services available from only one source

Utility servicesWhen agency head has determined the agency

standardize on one specified makes/models of equipment


Only One Responsible SourceBrand Names

Use of brand name does not promote full and open competition regardless of number of sources solicited

Any brand name procurement must be approved by a justification for other than full and open competition (aka “Sole Source”)

“Brand name or equal” is acceptable if it permits suppliers to provide other brands of supplies or equipment that meet the essential requirements


Only One Responsible SourceJustification Process

CO must justify decision in writing (See required content in 6.303-2) certify the accuracy and completeness of the justification obtain required approval

Certification shall contain sufficient facts and rationale to justify the use of the authority cited

Justification shall be approved in writing by: CO if < $650k and agency does not establish higher limit Competition Advocate if > $650K and < $12.5M The head of the procuring activity if > $12.5M and < $62.5M (< $85.5M if DoD, NASA,

and Coast Guard) who is: A general or flag officer If a civilian, above GS-15

The Senior Procurement Executive of the procuring activity who is designated by agency procedures if >$62.5M (>$85.5M if DoD, NASA, and the Coast Guard)

Justification shall be made a public record within 14 days following contract award.


Sealed Bidding and Competitive Proposals Subpart 6.4

Both are acceptable procedures when appropriateSealed Bids

Time must permit the solicitation, submission and evaluation of bids

The award will be based on the basis of price and other price related factors

Discussions not required Reasonable expectation of receiving more than one bid.

Competitive proposals May be requested if sealed bids not appropriate If discussions are required prior to award.

Typically applies to contracts awarded outside U.S. territory


Competition Advocates

One designated for each executive agency and one for each procuring activity

Responsible for promoting acquisition of commercial items promoting full and open competition challenging requirements written so as to limit competition

Report on actions taken to advance the above actions as well as ensuring task order awards over $1M are properly planned and comply with other FAR requirements

Recommend goals and plans for increasing competition.

Coming Next Week

Class #3

Read Pages 18 thru 38 of the Study GuideFAR Part 7 – Acquisition PlanningFAR Part 8 – Required Sources of SupplyFAR Part 9 – Contractor QualificationsFAR Part 16 – Types of ContractsFAR Part 17 – Special Contracting MethodsFAR Part 18 – Emergency Acquisitions

EXAM PREP COURSE – 2016 SESSION UNIT 2 BY DONALD E. SHANNON CPCM,CFCM, FELLOW Certified Federal...

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