The Federal Acquisition Institute

The Federal Acquisition InstituteThe Federal Acquisition Institute

Preparing Today’s Workforcefor Tomorrow’s Challenges

Acquisition Learning Seminar

"Deal or No Deal - Contract Administration"

Thursday, October 25, 2007, 10:00 a.m.- 11:30 a.m.



Joni Dowling

Director, HCA Desk Officer Acquisition Support

Roles and Responsibility of the COTR and Program Manager

Federal Acquisition InstituteAcquisition Learning Seminar

Why are we here?• It’s critical to mission success that we make deals that match the overall objectives of our organization’s mission, make good business sense, and that both parties can experience goal attainment.

• It’s awarded…now what? All spectrums of the acquisition phase are important (think…garbage in, garbage out). Those responsible for administrating the contract after award will have to rectify mistakes made in the planning and award phase.

• This often means that we negotiate, resolve, and use effective interpersonal skills to maintain a positive working relationship within the team structure (yes, the contractor is part of the team).


Contracting Activities SequenceRequirements

Acquisition Plan

Acquisition Package

Solicitation

Source Selection/Negotiation

Award

Contract Administration

Delivery/Acceptance

Contract Closeout

At what stage does the COTR responsibilities

begin?


Flow of Authority

CONSTITUTION

CONGRESS

Head ofAgency

Senior ProcurementExecutive

Head of Contracting Activity

Contracting Officer

...………

……

..

http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/dfars/dfars202.htm




http://center.dau.mil/Topical_Sessions_templates/Contracting/Reference_Materials/overview/Contracting%20Activity.doc

http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/dfars/Dfars201.htm#P249_14172

Ratification(When the

Government decides to be bound

by such commitment)


Authority of an Agent

Real AuthorityApparent Authority(The FederalGovernment is not bound

by this authority)

UnauthorizedCommitments

(When others commit the Government without

having “real” authority)


Good news, your copy of the

contract has arrived!!

Things to ask yourself when you are reviewing the contract:

What type of contract is it?Are there any deliverables?

Are we requiring any reports?What are the invoice procedures?Are there any testing, safety, or

security requirements?Are there any special provisions that must be followed (usually

found in Section H)?


FILES MUST CONTAIN:

Copy of the Contract COTR Appointment Letter Copy of Invoices, inspection and acceptance

receiving reports Contract Modifications Copies of all Correspondence Memorandums for Record of Actions Issues PWS/SOW with attachments Quality Assurance Plan Negative Assessments Weather Reports Retain COTR File for 3 Years


NON PERSONAL SERVICES PERSONAL SERVICES

FAR 37

Govt. can not treat contractor employeesthe same as it treats a Govt. employee.


FAR 3

Prohibition against:

1. Accepting gratuities

2. Releasing procurementsensitive information

3. Releasing proprietaryinformation

• Preferred description for services

• Addresses quality at which work is to be performed & consequences if contractor fails to achieve the quality

• Allows the contractor to use any efficient method to achieve the end result


Adapt to the Situation

• More directive in nature

• Spells out the requirement in terms of the “how to”.

• Restricts the contractor to use the most efficient method to achieve the end result.

Performance-Based Traditional

Outcomes v. Results Activities v. Compliance


So, what do we do when there’s a failure to communicate that results in a disagreement?

Presented to:

By:

Date:

Federal AviationAdministrationRESOLVING AND

AVOIDING ACQUISITION DISPUTES

Direct and Third Party Negotiation

Federal Acquisition Institute

Anthony N. Palladino, Director, FAA ODRA

October 25, 2007

Federal AviationAdministration 14

TOPICS

• Introduction- Dispute resolution in government contracts

• Comparing The ADR and Adjudication Processes

• Types of ADR and Typical Outcomes

• Useful ADR Resources


FAA ACQUISITION MANAGEMENT SYSTEM

• Operational since April, 1996

• Uses integrated product teams and lifecycle acquisition processes

• Incorporates policy favoring alternative dispute resolution


ODRA Statutory Authority

• Under 49 U.S.C. 40110 (d), all bid protests and contract disputes that cannot be resolved through voluntary ADR “shall be adjudicated by the Administrator through dispute resolution officers or special masters of the Federal Aviation Administration Office of Dispute Resolution for Acquisition….”


ODRA MISSION

• To provide the FAA and its contractors with dispute resolution services that are readily available, as well as more timely and less expensive than traditional disputes processes.


ADR Misconceptions

• It is a “Giveaway” to the Contractor

• Government Must Compromise its Principles

• Costs Too Much, Takes Too Long

• Requires Extra Work


OFFICE OF DISPUTE RESOLUTION FOR ACQUISITION PROCESS

• ADR AS PRIMARY METHOD

• HIGH RATE OF USE AND SUCCESS

• PRE-DISPUTE PROCESS


CASE MANAGEMENT APPROACH

• ADR emphasized & explored in all cases– ODRA initiated – Early intervention efforts– Parties retain choice on ADR & neutral

• Forms of ADR employed– Neutral evaluation– Facilitative mediation– Binding arbitration

• Streamlined adjudication process


CASE STATISTICS

• Cases filed 6/96 to present: 500+– 300 protests, 131 contract disputes, 11 EAJA Apps., 4 A-76 contests and 81 pre-dispute/ non-AMS

mattersCases completed 6/96 to present: 500+ – Protests settled in ADR: 189 (65% of all protests

filed) – Contract disputes settled in ADR: 113 (91% of all

disputes filed)


CASE STATISTICS

• Avg Durations– Protests ADR:24 days

– Protests Adj: 61 days

– Contests ADR: 31 days

– Contests Adj: 138 days


SETTLEMENT EXAMPLES

• Bid protests:– Withdrawals based on enhanced

debriefings/evaluations (60% of settlements)

– Agency voluntary action (40% of settlements)• Re-compete, immediately or after base year• Permit revised offers or revise specifications• Compete in lieu of sole source• Address past performance issues• Capability demonstrations re: future opportunities• Payment of B&P costs


SETTLEMENT EXAMPLES

• Contract disputes– Negotiated dollar settlements– Setoffs of claims and counterclaims– Conversions of terminations– Revisions to delivery schedules


Role of the CO in ADR

• Part of Contract Management Responsibilities

• Must be an Active Participant

• Has Ultimate Control Over Outcome


RECOMMENDATIONS

• Attempt to resolve issues with the contractor before formal dispute develops, if possible

• If direct negotiation fails, seek third party assistance

• Earlier is better


RECOMMENDATIONS• Build ADR into Your Contract Administration

Practices

• Make the Disputes Process Accessible & User Friendly

• Access Trained Committed Neutrals

• Obtain Dispute Resolution Training


ADR Resources

• Civilian Board of Contract Appeals

• Armed Services Board of Contract Appeals

• GAO

• Agency-Based ADR Offices


ODRA WEBSITEOn the FAA Homepage at:http://www.odra.faa.gov

• Guide to ODRA ADR process

• Sample forms, orders & agreements

• Hyperlinks


OTHER MATERIALS

• A. ODRA ADR Guide (abridged)

• B. ADR Success Stories

• C. Case Management Statistics

• D. ADR Survey Results


CONCLUSION• ADR process provides much more efficient

and faster dispute resolution than litigation

• Adjudication inherently destructive of working relationships

• Emphasis is on business solutions in ADR

• Be open to creative solutions



Nydia Coleman

Chief, Office of Contracts, Library of Congress

Resolving Questions Relatingto Contract Administration

Where’s my money?Where’s my money?

• How clear are your invoicing procedures?• Are they located in a visible place on your contract?• Is it clear who the vendor should call?

What exactly do you wantWhat exactly do you wantme to deliver?me to deliver?

• How clear are your specifications?• Did you really read them?• Can you rely on your COTR/Program Manager?

Service Contract ActService Contract Act

• Is this requirement subject to SCA?• Is there a collective bargaining agreement?• What’s the anniversary date?• Do you understand wage determination requirements?

Who is my day-to-day contact?Who is my day-to-day contact?The COTR/Program ManagerThe COTR/Program Manager

• Does this person really understand the program?• Have you (the CO) issued a letter of authorization to the COTR?• Have you (the CO) conducted a post award meeting?• Are you comfortable that this person knows what questions should be referred to the CO?

What do you mean that’s notWhat do you mean that’s notwhat you wanted?what you wanted?

• Disputes• Claims



Cherie Smith

Project Officer, General Fund Enterprise Business System (GFEBS)

How to maintain a positive relationship with contract stakeholders

Understand Who Your Stakeholders Are at All Levels

Describe the Problemin Their Terms

TaskTask

FunctionFunction

ProcessProcess

ProjectProjectCategoryCategory

Funds Management

FundsControl

GFEBS FinancialManagement

CommitmentPurchase Request

http://www.sitesatlas.com/Atlas/PolAtlas/polnav.nvm

Perform Periodic Realty Checksat all Stakeholder levels

Ensure Senior Stakeholders are Out In Front – not behind you!


Panel’s Final Thoughts on Best Practices to follow:• Get trained/Get certified/Stay current• Establish a partnership with the contracting staff• Establish a communication process• Know who has the authority• Know the difference between a non-personal service and a personal service• Conduct yourself in accordance with your agency’s rules, regulations, and

policies• Adapt your leadership style based on the requirement (PWS vice SOW)• Rely on resources like the Defense Acquisition University (DAU) Community of

Practice (COP)



Thank you for attending!

Questions & Answers Session

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The Federal Acquisition Institute

Documents

Transcript of The Federal Acquisition Institute