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Government procurement in the United States is the process by which the federal government acquires goods, services (notably construction), and interests in real property. Contracts for government procurement usually involve appropriated funds spent on supplies, services, and interests in real property by and for the use of the Federal Government through purchase or lease, whether the supplies, services, or interests are already in existence or must be created, developed, demonstrated, and evaluated. See 48 C.F.R. § 2.101 ("Acquisition" defined, as to goods and services only). Federal Government contracting has the same legal elements as contracting between private parties: a lawful purpose, competent contracting parties, an offer, an acceptance that complies with the terms of the offer, mutuality of obligation, and consideration. However, Federal contracts are much more heavily regulated, subject to volumes of statutes dealing with Federal contracts and the Federal contracting process, mostly in Titles 10, 31, 40, and 41 of the United States Code.
Private parties entering into a contract with one another (i.e. commercial contracts) are much freer to establish a broad range of contract terms by mutual consent than a private party entering into a contract with the Federal Government. Each private party represents its own interests and can obligate itself in any lawful manner. Federal Government contracts allow for the creation of contract terms by mutual consent of the parties, but many areas addressed by mutual consent in commercial contracts are controlled by law in Federal contracts and legally require use of prescribed provisions and clauses. In commercial contracting, where one or both parties may be represented by agents whose authority is controlled by the law of agency, the agent is usually allowed to form a contract only with reference to accepted notions of commercial reasonableness and perhaps a few unique statutes that apply. In Federal Government contracting, specific regulatory authority is required for the Government's agent to enter into the contract, and that agent's bargaining authority is strictly controlled by statutes and regulations reflecting National policy choices and prudential limitations on the right of Federal employees to obligate Federal funds. By contrast, in commercial contracting, the law allows each side to rely on the other's authority to make a binding contract on mutually agreeable terms. Of course, there are many nuances to commercial contracting, but, generally speaking, the law favors the creation of commercial contracts by a variety of agents in order to facilitate business.
The authority of a Contracting Officer (the Government's agent) to contract on behalf of the Government is set forth in public documents (a warrant) that a person dealing with the Contracting Officer can review. The Contracting Officer has no authority act outside of his or her warrant or to deviate from the laws and regulations controlling Federal Government contracts. The private contracting party is held to know the limitations of the Contracting Officer's authority, even if the Contracting Officer does not. This makes contracting with the United States a very structured and restricted process. As a result, unlike in the commercial arena, where the parties have great freedom, a contract with the U.S. Government must comply with the laws and regulations that permit it, and must be made by a Contracting Officer with actual authority to execute the contract.
Federal Procurement Reports provide contract data that may be used for geographical, market, and socio-economic analysis, as well as for measuring and assessing the impact of acquisition policy and management improvements.
In Fiscal Year 2010, the top five departments by dollars obligated were:
The Top 100 Contractors Report for Fiscal Year 2009 lists contracts totalling $294.6 billion, the top five comprising aerospace and defense contractors:
In the same period, small business contracts totalled $96.8 billion.
The federal government's authority to enter into contracts derives from the U.S. Constitution, which defines its powers. The Federal Government acts through legislation, treaties, implementing regulations, and the exercise of those authorities. The Federal Government's power to contract is not set forth expressly and specifically in the U.S. Constitution. However, the U.S. Constitution appears to assume the continued vitality "Engagements" entered into under the Articles of Confederation. U.S. Const., Art. VI. Moreover, the power to contract was and is regarded at law as necessarily incidental to the Federal Government's execution of its other powers. An early Supreme Court case, United States v. Tingey, 30 U.S. 5 Pet. 115 (1831), recognized that the United States government has a right to enter into a contract. It is an incident to the general right of sovereignty, and the United States, may, within the sphere of the constitutional powers confided to it and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law and appropriate to the just exercise of those powers. Scores of statutes now also expressly authorize departments and agencies to enter into contracts. The U.S. Congress passes legislation that defines the process and additional legislation that provides the funds. Executive branch agencies enter into the contracts and expend the funds to achieve their Congressionally defined missions. When disputes arise, administrative processes within the agencies may resolve them, or the contractor can appeal to the courts.
The procurement process for executive branch agencies (as distinguished from legislative or judicial bodies) is governed primarily by the Armed Services Procurement Act and the Federal Property and Administrative Services Act. To address the many rules imposed by Congress and the courts, a body of administrative law has been developed through the Federal Acquisition Regulation. This 53-part regulation defines the procurement process including special preference programs, and includes the specific language of many clauses in government contracts. Most agencies also have supplemental regulatory coverage contained in what are known as FAR Supplements. These supplements appear within the Code of Federal Regulations (CFR) volumes of the respective agencies. For example, the Department of Defense (DOD) FAR Supplement can be found at 10 CFR.
Government contracts are governed by federal common law, a body of law which is separate and distinct from the bodies of law applying to most businesses -- the Uniform Commercial Code (UCC) and the general law of contracts. The UCC applies to contracts for the purchase and sale of goods, and to contracts granting a security interest in property other than land. The UCC is a body of law passed by the U.S. state legislatures and is generally uniform among the states. The general law of contracts, which applies when the UCC does not, is mostly common law, and is also similar across the states, whose courts look to each other's decisions when there is no in-state precedent.
Contracts directly between the government and its contractors ("prime contracts") are governed by the federal common law. Contracts between the prime contractor and its subcontractors are governed by the contract law of the respective states. Differences between those legal frameworks can put pressure on a prime contractor.
The authority to purchase is not one of the explicitly enumerated powers given to the federal government by Section 8 of Article One of the United States Constitution, but courts found that power implicit in the Constitutional power to make laws that are necessary and proper for executing its specifically granted powers, such as the powers to establish post offices, post roads, banks, an army, a navy, or militias.
Behind any federal government acquisition is legislation that permits it and provided money for it. These are normally covered in authorization and appropriation legislation. Generally, this legislation does not affect the acquisition process itself, although the appropriation process has been used to amend procurement laws, notably with the Federal Acquisition Reform Act (FARA) and the Federal Acquisitions Streamlining Act (FASA). Other relevant laws include the Federal Property and Administrative Services Act of 1949, the Armed Services Procurement Act (ASPA) and the Anti-Deficiency Act.
U.S. federal fiscal law is about Congressional oversight of the Executive Branch, not principally toward getting the mission accomplished nor getting a good deal for the government. Fiscal law frequently prevents government agencies from signing agreements that commercial entities would sign. Therefore, fiscal law can constrain a federal agency from the quickest, easiest, or cheapest way to accomplish its mission. This Constitutionally mandated oversight of the use of public funds is associated with the principle of checks and balances. A good working relationship and robust communication between the Executive and Legislative branches is the key to avoiding problems in this area[why?].
The teeth for fiscal law comes from the Anti-Deficiency Act (ADA). The Anti Deficiency Act provides that no one can obligate the Government to make payments for which money has not already been authorized. The ADA also prohibits the government from receiving gratuitous services without explicit statutory authority. In particular, an ADA violation occurs when a federal agency uses appropriated funds for a different purpose than is specified in the appropriations act which provided the funds to the Agency. The ADA is directly connected to several other fiscal laws, namely the Purpose Act and the Bona Fide Needs Rule.
Money appropriated for one purpose cannot be used for a different purpose, according to the Purpose Act (31 U.S.C. § 1301). The annual DoD appropriations acts include approximately 100 different appropriations (known as "colors of money"), and by this rule operations and maintenance (O&M) funds may not be used to buy weapons. Even an expenditure within the apparent scope of one appropriation may not be permissible if there is a more specific appropriation or the agency has made a previous funds election contrary to the proposed use of funds. For example, O&M fund can be used for purchasing repair parts, but if the parts are required to effect a major service life extension that is no longer repair but replacement – procurement funds must be used if the total cost is more than $250,000 (otherwise known as the Other Procurement threshold, for example, Other Procurement Army (OPA) threshold) or another procurement appropriation is available such as the armored vehicle or weapons appropriation.
An Anti-Deficiency Act violation can also occur when a contract uses funds in a period that falls outside of the time period the funds are authorized for use under what is known as the Bona Fide Needs rule (31 USC 1502), which provides: "The balance of a fixed-term appropriation is available only for payment of expenses properly incurred during the period of availability or to complete contracts properly made within that period."
The Bona Fide Need Rule is a fundamental principle of appropriations law addressing the availability as to time of an agency's appropriation. 73 Comp. Gen. 77, 79 (1994); 64 Comp. Gen. 410, 414-15 (1985). The rule establishes that an appropriation is available for obligation only to fulfill a genuine or bona fide need of the period of availability for which it was made. 73 Comp. Gen. 77, 79 (1994). It applies to all federal government activities carried out with appropriated funds, including contract, grant, and cooperative agreement transactions. 73 Comp. Gen. 77, 78-79 (1994). An agency's compliance with the bona fide need rule is measured at the time the agency incurs an obligation, and depends on the purpose of the transaction and the nature of the obligation being entered into. 61 Comp. Gen. 184, 186 (1981) (bona fide need determination depends upon the facts and circumstances of the particular case). In the grant context, the obligation occurs at the time of award. 31 Comp. Gen. 608 (1952). See also 31 U.S.C. Sec. 1501(a)(5)(B). Simply put this rule states that the Executive Branch may only use current funds for current needs – they can't buy items which benefit future year appropriation periods (i.e., 1 October through 30 September) without a specific exemption. The net result of this rule is funds expire after the end date for which Congress has specified their availability. For example, a single year fund expires on 1 October of the year following their appropriation (i.e., FY07 appropriations. (for example, 1 October 2006 through 30 September 2007) expire on 1 October 2007).
For example, operations and maintenance funds generally cannot be used to purchase supplies after 30 September of the year they are appropriated within with several exceptions – 1) the severable services exemption under 10 USC 2410 and Office of Management and Budget (OMB) Circular A-34, Instructions on Budget Execution, 2) Authorized stockage level exceptions and 3) long lead time exception. (see https://www.safaq.hq.af.mil/contracting/affars/fiscal-law/bona-fide-need.doc ) The Government Accounting Office Principles of Federal Appropriations Law (otherwise known as the GAO Redbook at http://www.gao.gov/legal.htm ) has a detailed discussion of these fiscal law rules which directly impact on the ability of a federal agency to contract with the private sector.
The procurement process is subject to legislation and regulation separate from the authorization and appropriation process. These regulations are included in the Code of Federal Regulations ("CFR"), the omnibus listing of Government regulations, as Title 48. Chapter 1 of Title 48 is commonly called the Federal Acquisition Regulation ("FAR"). The remaining chapters of Title 48 are supplements to the FAR for specific agencies.
The process for promulgating regulations including the Federal Acquisition Regulation (FAR) includes publication of proposed rules in the Federal Register and receipt of comments from the public before issuing the regulation. Courts treat the FAR as having the "force and effect of law", and Contracting Officers do not have the authority to deviate from it. Supplements to the FAR have been issued following the same process, and have the same force and effect.
The FAR and its supplements permit a substantial variation from the purchases of paperclips to battleships. The Contracting Officer and the contractor must seek to achieve their sometimes conflicting goals while following the requirements of the regulations. As with any complex document (in book form, Title 48 of the CFR requires several shelves), the FAR and its supplements can be interpreted differently by different people.
FAR Subpart 1.4, Deviations from the FAR, provides the steps needed to document deviations from the mandatory FAR or agency FAR supplement. Deviation documentation is needed if there is a precise FAR clause or provision for the issue.
Commercial Items contracts can be tailored to a great extent, therefore deviating in many particulars from the mandatory clause language. See:
12.401—General. This subpart provides --
(a) Guidance regarding tailoring of the paragraphs in the clause at 52.212-4, Contract Terms and Conditions—Commercial Items, when the paragraphs do not reflect the customary practice for a particular market; and
(b) Guidance on the administration of contracts for commercial items in those areas where the terms and conditions in 52.212-4 differ substantially from those contained elsewhere in the FAR.
See also FAR 12.211, Technical Data; FAR 12.212, Computer Software; FAR 12.213, Other Commercial Practices for additional authority to deviate or "tailor" FAR clauses and provisions in the context of commercial items/services.
A ratification is the proper authorization by a contracting officer of an earlier procurement by a government employee who was not authorized to do it. A ratification package has a legal memo that says an unauthorized commitment was made, that the commitment could properly have been done by contracting officers, and that funds were and are available for it. Other regulations and agency rules apply too, such as those from the Army discussed below.
Ratifications are governed by FAR 1.602-3 (Ratification of Unauthorized Commitment) which defines a ratification as the act of approving an unauthorized commitment by an official who has the authority to do so. Unauthorized commitment means an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government. A ratifying official may ratify only when: (1) The government has received the goods or services; (2) The ratifying official has authority to obligate the United States, and had that authority at the time of the unauthorized commitment; (3) The resulting contract would otherwise be proper, i.e., adequate funds are available, the contract is not prohibited by law, the ratification is in accordance with agency procedures, etc.; (4) The contracting officer determines that the price paid was fair and reasonable and recommends payment, and legal counsel concurs.
There are dollar limits to the authority to ratify unauthorized commitments. A Chief of Contracting Office can approve up to $10,000. A Principal Assistant Responsible for Contracting can approve up to $100,000. A Head of Contracting Authority can approve higher amounts.
Ratifications in the U.S. Army call for a signed statement describing the unauthorized commitment, the value of the procurement, and other documentation. Then a contracting officer is to study the case and recommend action. If the procurement is not ratified, the matter may be handled under FAR Part 50 and DFARS Part 250 (Public Law 85-804) as a GAO claim or some other way.
FAR Part 45 provides rules on the Contractor’s obligations and the Government’s remedies in these cases. Specific clauses should be in the contract to deal with Government Furnished Equipment (GFE) situations and bring your own device (BYOD) situations.
The authority under FAR Part 12, Commercial Items (and services), must be used thoughtfully and carefully. It is very tempting for a contracting officer to use FAR Part 12 and hence FAR Part 13 in situations where such use is clearly not appropriate in view of the basic reasons commercial item acquisition authority was created by Congress.
FAR 2.101 provides that
“a commercial item means – (6) services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions. This does not include services that are sold based on hourly rates without an established catalog or market price for a specific service performed or specific outcomes to be achieved. For purposes of these services – (i)catalog price means a price included in a catalog, price list, schedule or other form that is regularly maintained by the manufacturer or vendor, is either published or otherwise available for inspection by customers and states prices at which sales are currently, or were last, made to a significant number of buyers constituting the general public; and (ii) Market prices means current prices that are established in the course of ordinary trade between buyers and sellers free to bargain and that can be substantiated through competition or from sources independent of the offerors."
Note the emphasis in the FAR 2.101 definition for commercial items on established market prices. The reason why simplified acquisition is permitted for items above the $100,000 simplified acquisition procedure threshold for commercial items is there is an efficient market pricing mechanism which pressures market participants to provide goods and services at a fair and reasonable price which represents very efficient / non-wasteful pricing mechanisms. Generally, the more efficient and well developed markets have a large number of participating vendors and information is freely available to consumers in that market on the relative merits of each vendor's products and pricing which permits easy comparison of each vendor's products to each other. FAR Part 12 commercial items acquisition authority was intended to take advantage of the WalMart's (R) and Microsoft's (R) of the world where there is no need to go through the extensive, formalistic and resource/time consuming process of a fully negotiated procurement, which requires vendors provide cost and pricing information, to verify a fair and reasonable price. In other words, FAR Part 12 was intended to increase the number of competitors available to the US Government by jettisoning all of the unique requirements, including cost accounting systems, which are forced upon federal contractors by acquisition processes such as FAR Parts 14, 15, 36 etc.; instead, the Federal Government could act more like a normal buyer in a fully functioning commercial market where the Government was but one of a large number of consumers seeking the same or highly similar products or services. However, FAR Part 12 was never intended to apply where the US Government was the only or one of a very few buyers for an item or service not in demand by the commercial market place.
What happens when there are very few market participants and the goods or services are not widely available to the public? Lets take surveillance systems in a military overseas contingency environment as an example. Battlefield full motion video is not something that is found in the commercial sector – Wal-Marts don't sell this; moreover, frequently there are special restrictions which impact on commercial firms ability to engage in work of this nature. For example, special FAA Administrator permission is required before a US certificated aircraft or pilot can fly in Iraq under Special Federal Aviation Regulation (SFAR) 77; if there are very few, or only one, vendor who can participate in this requirement, there are no vendors out there for meanginful competition which is the bedrock assumption of FAR Parts 12 and 13. In view of the above, the airborne recon contract is NOT a commercial service – therefore use of FAR Part 12 commercial items contracting processes is wholly inappropriate and not permissible under the applicable laws governing federal acquisition.
Taking another example, what happens when significant research and development is needed to adapt a commercial items for government use? Should FAR Parts 12 and 13 be used here? Absolutely not. There are no market pricing mechanisms for the non-standard variant – the government is the only buyer of this particular variant of the commercially available item.
What about situations where government demand overwhelms the commercial markets supply? In this case, the government is actually competing against itself because it has swallowed the market whole and usually has multiple requiring activities competing against each other for the same goods and services. This is exemplified in cases where numerous contracting offices demand the same goods and services unknowingly are driving prices up against each other. Frequently in these case, contracting commands accept take-it or leave-it prices from relatively few vendors (compared to demand) who know that these contracting offices are not coordinating amongst each other or establishing commodity control councils to ration demand against the civilian sources of supply. As the US Federal Reserve will attest to, inflation is one of the most damaging elements in an economic system to investment, capital markets and economic activity. In this case, the effect of driving massive cost inflation directly impacts civilians and non-Government consumers who are also competing for the same goods and services against the US Government acquisition commands; ultimately the deep pockets of the Government win out against the lesser buying power of the non-Governmental market participants. In such cases, as the US Government did during World War II, commodity control councils must be established to identify all available sources of supply and ration supply to the various consumers, including US Government consumers, sometimes with price controls (although this is very dangerous because it frequently leads to black markets run by criminals). One solution in this case is to identify markets unaffected by the Government demand and seek to acquire goods and services through that other market. When the situation of overwhelming government demand occurs in a faltering or damaged economy, government demand that is in excess of what the local vendors can supply to both Government and non-Government consumers should be met by vendors who operate out of the market in question, including through the GSA Schedule system if the damaged market is outside of the United States. Resources and expertise are in the Federal Government that are designed to assist in cases where Federal demand overwhelms civilian supply, one example being the Industrial College of the Armed Forces (ICAF). The ICAF's charter is to maintain the ability to nationalize an economy to achieve strategic objectives or a wartime mobilization, thus is a good resource expertise in this particular area. Use of FAR Parts 12 and 13 without rationing of demand through a single commodity control council or finding other solutions is likely to create more problems than it solves. Non-commercial contracting methodology and clauses should be used for any acquisition where Government demand overwhelms civilian supply. It is highly unlikely there will be any cost controls or a fair and reasonable price obtained for non-commercial services or goods obtained using FAR Parts 12 and FAR 13 under these circumstances.
Special rules apply to service contracts. They must be performance-based to the extent practicable, with measurable outcomes. FAR 37.102 and FAR Part 37.6 describes performance-based methods. FAR 37.601 has specific requirements for performance work statements (PWS) for service contracts requiring performance-based standards. Agency supplements also require performance-based acquisitions. (See e.g., DFARS 237.170 Approval of contracts and task orders for services; DFARS 237.170-2 Approval requirements.)
Performance Based Service Acquisition (PBSA) is a process and way of defining requirements that yields well written work statements that are outcome oriented and measurable thus enforceable. Deming/Six Sigma style quality assessments and process analysis can help define performance work statements. A Performance Work Statement (PWS) has:
In trying to figure out how much detail a work statement needs, ask "Can the contractor PRICE this work?" How hard is it for them to estimate cost, how many people, how many times we want it, where we want it, how quickly we want it, to what detail, etc. Contractors add in contingency costs to cover the unknown factor of what the government ACTUALLY wants when the work statement is vague. We pay for NY State but we only needed one block of NY City. Make the work statement concrete – numbers!
Army Federal Acquisition Regulation (FAR) Supplement (AFARS) has an outline for performance-based service contracts.
Example (bad to outstanding definition):
What happens when the OEM does not have PM schedules for desert environments? May need to double up the frequency. May need to specify to use at least the OEM standards, or a more stringent standard if required to meet the MTBF rates on average.
The point of the above progression in adding detail is to give enough information to a contractor to price the work and to transfer performance, cost and schedule risk to the contractor so you can hold them liable if the generators blow up. Another important aspect is the need to be able to terminate for default – if prior year funds are used, the contract funds expire when the contract is terminated for convenience – therefore must be able to terminate for default to hold onto prior year funds.
Repair Services Contracts:
Additional Resources for PBSA:
The Office of Federal Procurement Policy (OFPP) has a Draft Best Practices Guide on Contractor Performance
"Nonpersonal services contract" means 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.
"Personal services contract" means a contract that, by its express terms or as administered, makes the contractor personnel appear, in effect, Government employees (see FAR 37.104).
Advisory and assistance services (A&AS) are permissible (See FAR Subpart 37.2)
Personal services are NOT permissible (See FAR 37.104 and Classification Act) without specific authority to obtain such services (meaning, statutory authority)
Permissible to acquire expert and consultant services (5 USC 3109 or 10 USC 129b – expert services) or 10 USC 1091 – health services), as well as health services, intelligence, counter intelligence or special operations command operations requirements under DFARS 237.104, Personal Services Contracts and 10 USC 129b – Contracting must do a determination and finding (D&F) (per FAR Subpart 1.7 and DFARS Subpart 237.104) for this
DFARS 237.170-2 forbids non-performance-based contracts unless exception done under DFARS 237.170-2
If an agency is hiring experts, read over 5 USC 3109, Employment of Experts and Consultants, Temporary or Intermittent to see if it applies to FAR 37.104(f). Office of Personnel Management (OPM) has established requirements that apply in acquiring personal services for experts or consultants in this manner (for example, benefits, taxes, conflicts of interest), “therefore, the contracting officer shall effect necessary coordination with the cognizant civilian personnel office.” Note that personal service contracts are potentially subject to salary caps
See also 10 USC 2331 Procurement of services: contracts for professional and technical services and AFARS 5137.104—Personal Services Contracts.
See also agency regulations on specific prohibitions on use of service contractors for inherently governmental activities under OMB Circular A-76, for example, Army Regulation (AR) 735-5, para 2-11 sets out those property accountability tasks which can and cannot be performed by contractors. (Basically, contractors may not exercise any discretionary authority.)
Examples of prohibited personal services:
If you see these words or tasks, you are dealing with a personal services contract: Director, manager, coordinator, direct, approve, liaison, supervision, control, manage, determine, decide, provide oversight, “supports all appropriate tasks that support the mission of the Government activity X”
Be very wary of any service contract which requires the contractor be collocated with the requiring activity, under direct supervision of US government vs through the contracting officer and COR. If the work statement calls for services that looks and smells like an employee vs a contractor for a specific service or good, it is a personal services contract and subject to termination by an auditor mid execution.
Special acquisitions rules and laws govern acquisition of health or medical related services. For example, DoD Instruction (DoDI) 6025.5, Personal Services Contracts (PSCS) for Health Care Providers (HCPS) has extensive requirements that must be addressed in any DoD health care contract. DoD 6025.18-R, DoD Health Information Privacy Regulation also has substantial mandates concerning medical records as well as HIPAA compliance. See http://biotech.law.lsu.edu/blaw/dodd/corres/html/602518r.htm
Military service regulations also deal with this issue extensively: for example, See AR 40-400 Medical Support Provisions – Authority
From the Government perspective, the most critical aspect of IP, data, technical data and patent rights revolve around freedom to operate and freedom of contract, namely freedom to have maximum competition. From the perspective of a contractor, the most critical aspect of this area is protection of competitive advantage from disclosure to its competitors. In other words, the contractor / commercial vendor wants to retain its ability to have a product to sell – inherent in this desire is a need to prevent the Government from disclosing important technical data i.e. engineering designs, schematics, specifications, to its competitors when the Government conducts a follow-on acquisition and attempts to seek competition to meet legal and policy mandates in the Competition in Contracting Act (CICA) and Armed Services Procurement Act.
IP, data rights and technical data rights is a highly specialized practice area in federal acquisitions. Careful examination of FAR Part 27 and applicable agency FAR supplements (for example, DFARS 227) must be performed and consultation with a wide variety of federal statutes accomplished before attempting to deal with IP/data/technical data.
A number of variables drive allocation and use of IP/data/technical data including whether or not the subject of the contract is for research and development (R&D), small business/non-profit or non-small business/for-profit, source of funds used to create the IP in question (exclusively private, exclusively government or mixed funds), acquisition of commercial or non-commercial items/services and whether software or non-software is being acquired. Additional clauses must be added to the acquisition for patent/data/technical data and specific CLINs must be added for data/technical data deliverables per the FAR/DFAR. Various agency regulations separately deal with technical data acquisition as well and must be consulted.
There is a difference between FAR and agency supplements. For example, the FAR focuses on "data" while the DFAR provisions focus on the narrower subset of "technical data". For technical data, DFARS 227.7102-3(b) states "Use the clause at 252.227-7013, Rights in Technical Data--Noncommercial Items, in lieu of the clause at 252.227-7015 if the Government will pay any portion of the development costs. ...." Thus, the Government wouldn't be using that clause if it was not paying some portion of development costs – the question is whether or not this particular item's development costs were in fact paid for by the government. It is prudent to make this determination up front in the CLIN structure of a contract for technical data deliverables.
There are different categories of technical data which are addressed in different sections of the Defense Federal Acquisition Regulation (FAR) Supplement (DFARS). These main categories are technical data (defined not to include specific categories as called out in this list), software, and SBIR technical data. Technical data and software each are subdivided into two additional sub categories: commercial and non-commercial. Separate treatment and clauses are provided for each sub-category.
Generally, there are specific issues which must be addressed in any technical data rights or software acquisition, which include:
- Required contract clauses and provisions (driven by the below categories) (commercial versus non-commercial; software vs non-software; SIBR versus non-SBIR; technical and scientific information versus non-technical and non-scientific information; and special cases discussed in DFARS 227)
- Disclosure of technical data use restrictions as a part of the offer / proposal (for example, DFARS 252.227.7017 clause)
- Markings provisions (includes basic markings clause plus challenge clause)
- Required contract line item numbers (CLIN) structure (broken out for each category/type which are segregable – must be specifically expanded upon in the work statement / contract specifications; each CLIN must be separately priced; this is NOT THE CDRLS!!!! – CDRLS are separate!)
It is absolutely critical that both contracting and the requiring activity both understand the categories and subcategories of technical data as well as data. A basic understanding of the patent rights clauses are also necessary. Both technical data (and/or data) AND the patent rights clauses must be included as they are completely separate from each other.
Accordingly, it is important to understand your requirement and whether or not the acquisition or the deliverables fit into these categories because it drives acquisition planning and required clauses and provisions that must be inserted into the solicitation. It is normal for MULTIPLE contract clauses and provisions to be inserted into the contract solicitation for the acquisition of a SINGLE CATEGORY of technical data (for example, DFARS 7013, Non-Commercial Technical Data, and 7017 clauses). However, it is important to note that if multiple categories of technical data (or even FAR data) is to be acquired, multiple categories of technical data clauses must be inserted and each contract line item number (CLIN) must be specifically drafted to cover each separate CATEGORY of technical data (e.g., commercial AND separately non-commercial software)
Technical data for DoD contracts is defined at the DFARS 252.227.7013 clause, paragraph a, subparagraph (14): "“Technical data” means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information." There are separate clauses for software (commercial and non-commercial).
The two standards technical data rights clauses in the FAR are the DFARS 252.227.7013 (non-commercial technical data) and the 252.227.7015 (commercial technical data) – neither of which covers software or software documentation.
Non-commercial software and its documentation are covered by the DFARS 252.227.7014 clause.
Commercial software acquisitions are dealt with only briefly at DFARS 227.7202 which essentially says that the Government shall get the rights customarily obtained by customers in the relevant software market, the Government shall obtain the minimum rights necessary for the Government's purposes, and that the Government cannot force the commercial vendor to give up rights. The Government cannot issue a unilateral modification forcing delivery of rights in computer software; mutual consent is mandated by law and DFARS provisions for commercial software acquisitions. The contract clause that is normally in a commercial software contract acquisition is the FAR 52.212-4, Commercial Items, clause. This clause mirrors the above intent which states that the Government will have rights provided to the normal consumer in that particular market, which in reality are defined by a separate software license. Licenses for software routinely have provisions which are illegal in Government contracts. In particular, see FAR 12.304 for the provisions of the 52.212-4 clause which may be tailored and which ones that may not as well as some provisions that may NEVER be in a Government contract except under very specific circumstances (for example, indemnification agreements, provisions which require the Government to give up control of litigation (usually for patent infringement lawsuits against the Government/licensee, invoicing, and remedies). Separately, examine the 52.212-4 clause as well as the software license and determine if they have provisions which either overlap or contradict each other. If so, then the two will have to be reconciled – essentially, the license will have to be rewritten to address any conflict with a provision which tells which one will control – either the license or the 52.212-4 clause.
The broader category of know-how, etc. is covered by the "data" provisions of the FAR. Note that DFARS part 227 scope provision requires that DOD use the DFARS 227 provisions rather than the FAR 27 provisions. However, it is important to remember that the FAR data provisions include both "data" and "technical data". Therefore, in cases where the Government is acquiring rights to know-how, copyrighted information, etc. which is not "scientific or technical data" for example, socio-economic information for information operations or psychological operations contracts, DO NOT USE THE DFARS CLAUSES OR PROVISIONS – USE FAR 27 REGARDLESS OF WHAT DFARS 227 SAYS. The scope section is inartfully drafted because a literal reading would compel use of clauses which are specifically limited to scientific and technical information – you have to use the much broader FAR clauses to go after "data" which is not scientific or technical information.
Practice Note: In accordance with DFARS 227.7103-1, Policy, it is advisable to draft solicitation to:
DFARS 227.7103-1, Policy, para (c) says that "Offerors shall not be required ... to sell or otherwise relinquish to the Government any rights in technical data related to items, components or processes developed at private expense solely because the Government's rights to use, modify, release, reproduce, perform, display, or disclose technical data pertaining to those items may be restricted." HOWEVER, the government may include a source selection criteria which rates offers more favorably or higher which provide desired technical data rights.
A detailed discussion of intellectual property in government contracts can be found in a variety of sources including Intellectual Property in Government Contracts by Ralph C. Nash, Jr. and Leonard Rawicz published by CCH / Wolters Kluwer as well as Licensing Software and Technology to the U.S. Government: the Complete Guide to Rights to Intellectual Property in Prime Contracts and Subcontracts. However, note that neither of these books provide a nuts and bolts explanation on how to deal with commercial computer software licenses as discussed above. These books provide a high level discussion of the law and regulations, history and policy involved, which is useful.
Categories of Technical Data Rights:
DFARS 227.7103-4 License rights [Non-commercial items] provides the standard license rights that a licensor grants to the Government are (1) unlimited rights, (2) government purpose rights, or (3) limited rights. Those rights are defined in the clause at 252.227-7013, Rights in Technical Data—Noncommercial Items.
Technical information developed exclusively with government funds may be used by the Government without restriction including going to another contractor to produce the item in question.
Even if the Government only has limited rights tech data, under the DFARS 252.227-7013 clause, the Government always has unlimited rights to the following:
(iv) Form, fit, and function data;
(v) Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data).
Thus, the Government could use the form, fit and function data to go with another contractor no matter what.
With regard to non form, fit or function data, worst-case scenario is the Government has limited rights – meaning, developed exclusively at private expense:
"(13) “Limited rights” means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or authorize the technical data to be used by another party, except that the Government may reproduce, release or disclose such data or authorize the use or reproduction of the data by persons outside the Government if reproduction, release, disclosure, or use is—
(i) Necessary for emergency repair and overhaul; or
(ii) A release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government that is in the interest of the Government and is required for evaluational or informational purposes;
(iii) Subject to a prohibition on the further reproduction, release, disclosure, or use of the technical data; and
(iv) The contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use."
A second technical data rights scenario occurs when items/technical data is acquired using mixed funding – the Government gets government purpose rights which allow the Government to go with another vendor provided a non disclosure agreement is signed with that other vendor and any tech data/drawings produced under that other contract are marked in accordance with the DFARS 252.227.7013 clause:
DFARS 7313 Clause:
"(11) “Government purpose” means any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations, or sales or transfers by the United States Government to foreign governments or international organizations. Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose technical data for commercial purposes or authorize others to do so.
(12) “Government purpose rights” means the rights to—
(i) Use, modify, reproduce, release, perform, display, or disclose technical data within the Government without restriction; and
(ii) Release or disclose technical data outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that data for United States government purposes.
(iii) The Government shall not release or disclose technical data in which it has government purpose rights unless—
(A) Prior to release or disclosure, the intended recipient is subject to the non-disclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS); or
(B) The recipient is a Government contractor receiving access to the data for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends."
If the Government needs to get rights to limited rights manufacturing data, a requiring activity can have contracting go to the vendor and obtain specially negotiated rights. If they refuse, the Government can take form, fit and function data and go to another contractor to procure the item that route. With regard to way ahead, there is an indication of how a government activity could proceed in DFARS 227.7103-2 Acquisition of technical data where it talks about use of performance specs, form, fit and function data to obtain from another source:
"(a) Contracting officers shall work closely with data managers and requirements personnel to assure that data requirements included in solicitations are consistent with the policy expressed in DFARS 227.7103-1.
(b)(1) Data managers or other requirements personnel are responsible for identifying the Government's minimum needs for technical data. Data needs must be established giving consideration to the contractor's economic interests in data pertaining to items, components, or processes that have been developed at private expense; the Government's costs to acquire, maintain, store, retrieve, and protect the data; reprocurement needs; repair, maintenance and overhaul philosophies; spare and repair part considerations; and whether procurement of the items, components, or processes can be accomplished on a form, fit, or function basis. When it is anticipated that the Government will obtain unlimited or government purpose rights in technical data that will be required for competitive spare or repair parts procurements, such data should be identified as deliverable data items. Reprocurement needs may not be a sufficient reason to acquire detailed manufacturing or process data when items or components can be acquired using performance specifications, form, fit and function data, or when there are a sufficient number of alternate sources which can reasonably be expected to provide such items on a performance specification or form, fit, or function basis."
Contractors in the Government Workplace – OMB Circular A-76 Public – Private Competitions, Inherently Governmental Work (not permitted to be performed by a contractor) and Federal Trade Secret Act (FTSA) Impacts on Use of Contractors:
In other areas, problems frequently arise when Federal activities hire support contractors to assist them with executing their mission. These contracts frequently come into at least potential conflict with rules governing permissible use of contractors, such as rules against use of contractors for inherently governmental functions (See OMB Circular A-76) and rules against personal services (see above). One of the most serious problems can occur when a contractor is put into a position where they can see private party trade secrets, proprietary information or other contractor's proprietary information. The Federal Trade Secret Act (18 USC 1905) imposes criminal, civil and administrative sanctions on federal employees who with knowledge allow proprietary, confidential or trade secret information to be used for an unauthorized purpose, including permitting other federal contractors to view the proprietary information in question.
Given the overwhelming reliance on support contractors, it is now necessary to address this question of authorized use under the Federal Trade Secret Act. A simple solution is to include in the CLIN structure a statement, such as for example, "the Government may provide proprietary information received under this contract to support contractors provided no organizational conflict of interest occurs under FAR Subpart 9.5, the support contractor is not directly competing on the acquisition in question which originated the proprietary information in question and a non-disclosure agreement with each contractor recipient is accomplished requiring the contractor ensure such proprietary information is not disclosed outside of the Government activity handling the proprietary information." In this way, the contract that is the entry point for such proprietary information being handled by US Government support contractors includes an explicit authorization which avoids violation of the Federal Trade Secret Act provisions relating to authorized versus unauthorized use.
The DFARS includes a non-disclosure agreement at DFARS 227.7103-7, para c, which can be used in this case.
Markings are critically important technical/proprietary data to manage in a government contract. See:
Contracts which include technical data should include a markings section to ensure a contractor properly marks proprietary information and the Government protects it accordingly.
Patent rights are determined and dealt with separately from technical data and data rights. By default the Government owns ("receives title to") any invention first created, prototyped, or put into practice in the performance of a government contract. (The patent law term is "reduced to practice".) Thus if an inventor designed something, convinced the Government to buy it, then created it for the first time in the performance of the contract, the Government takes title of it. The patent rights clause can specify that the contractor gets title or a license to the invention if the contractor follows some procedures within a specified time span and commercializes the invention or at least provides a commercialization plan.
FAR 11.104, Use of Brand Name or Equal Purchase Descriptions discusses acceptable uses of brand names in solicitations and how to do this. FAR 11.105 Items Peculiar to One Manufacturer states “agency requirements shall not be written so as to require a particular brand name or product or a feature of a product, peculiar to one manufacturer, thereby precluding consideration of a product manufactured by another company, unless:
Contracting activities are at unequal stages of transitioning to automated contract generation tools which have a menu driven system which generates the contract with appropriate clauses. However, frequently contracting officers do not have sufficient knowledge that some optional or required clause is applicable in a particular case – especially for intellectual property or other specialized acquisitions. With the transition to the automated systems, many contracting officers do not possess the knowledge to prepare a manual contract without the automated tool. Also, the automated systems frequently do not allow inclusion of various non standard work statement, instructions or clauses due to limitations on input options.
Generally, federal acquisitions begin with identification of a requirement by a specific federal activity. A basic idea of what is needed and the problem statement is prepared and the requiring activity meets with an acquisition command having a Contracting Officer with an appropriate warrant issued by a specific acquisition activity.
Not all Contracting Officers are created equal. Contracting officers have different contracting thresholds and varying degrees of experience and capabilities. Each one has a specific warrant that states the conditions under which they are permitted to engage in federal contracting. Depending on the contracting activity, some contracting officers may have no experience whatever with the product, service or requirements in question or knowledge of any of the potential vendor base, representing a weakness on the part of the Government procurement process.
Frequently, contractor proposals in response to a Request for Proposals (RFP) include an exact copy of the RFP's statement of work. An offeror's response usually indicates their approach to performing the statement of work, their approach to managing the program or project, and examples of past performance on projects similar in size, scope, and complexity.
Evaluator scoring penalizes proposals that contain "fluff" or generic information that does not directly pertain to the specifics of the solicitation -- the government's need, source selection factors and work statement or performance specification. Charts and other infographics can help a proposal. Examples would be: a six-line chart of the most compelling credentials of contractor's key personnel, or including a picture of a uniformed security guard on the pages describing contractor's uniforms. Professional proposal writers often have graphic design experience.
A proposal can be too long, causing the Government's source selection authority to skim over it. The Government source selection team may not wish to spend much time on the acquisition source selection. Also, it is possible for vendors to put too much information into proposals which do not go to the heart of the acquisition, particularly information not related to the source selection criteria as well as the work statement.
For simple acquisitions, government source selection authorities have responded favorably to proposals which emphasize experience with the specific requirement that the government is seeking to source and information on how a product or service will meet the needs of the government as stated in the source selection factors and the work statement.
Contractors must also be aware of whether or not price is more important than non-price factors. Where price is more important than non-price factors, then the lowest bidder who is technically acceptable in view of the source selection factors and work statement requirements will be selected. Where the solicitation indicates that the requirement is a best value acquisition, then a contractor must draft their proposal to emphasize how their proposed technical solution will meet each and every requirement and source selection factor.
For more complex acquisitions, source selection authorities will be interested in how the contractor will produce service or non-service deliverables. Thus, staffing plans, methodology to produce, past experience, ISO certifications, and other information which shows that risks to the government acquisition have been identified and mitigated should be rated higher than other proposals which do not show such information. However, it is important that the proposal first and foremost address the solicitation's work statement or technical specifications and source selection factors.
Contractors must also be aware of the contract clauses in the contract to include requirements for specific standards which do not directly relate to the deliverables in question to include small business or minority set-aside requirements, Davis-Bacon (essentially local union labor rates must be used), specific accounting standards, specific certifications, etc.
The requiring activity and Contracting Officer, ideally, will commence acquisition planning as a first step to a federal acquisition. Acquisition planning is described in FAR Part 7, Acquisition Planning, and any agency supplement to the FAR, for example, Defense FAR Supplement (DFARS) 207, Acquisition Planning. Components to an agency, such as the US Army, as well as the individual contracting command in question frequently also have an acquisition instruction which includes additional instructions on acquisition planning. For example, the US Army must follow AFARS Part 7, Acquisition Planning.
Acquisition planning is frequently dependent on the circumstances in which it is conducted. For example, during World War II, quantity was the key. As in the Civil War, the U.S. achieved victory due in large part to the American industrial base. A war of attrition requires massive quantities of material, but not necessarily of great quality. During the Cold War, quality was key. The United States may not have had as many pieces of equipment as their opposition, but that equipment could be more effective, efficient, or lethal, and offset the opposition's numerical advantage. Today, the military needs equipment that works where it is needed, is dependable, has a high degree of maintainability, has long-term reliability, is agile, versatile, and avoids equipment choices that result in political debate and partisan politics.
As part of the acquisition planning process, the Government must address its buying power leverage. Many government acquisition commands write acquisitions solely based on haphazard acquisition strategies that are primarily directed toward avoiding bid protests. Thus, it is necessary to emphasize competition and understand the acquisition from the view point of the contractor; Government acquisition commands should ask what is to be achieved and whether or not the program is really in the best interest of the Government.
Many federal acquisitions are rushed due to poor time management. In these cases, the tendency is to issue a sole-source contract to known vendors even though FAR Part 6 specifically forbids sole-source contracting when it is due to lack of advanced planning. There is also a high cost premium that is added to the cost of an acquisition when a buyer wants a supplier/vendor to rush to execute a contract or push their contract to the head of all other work the contractor/vendor is executing. It is often said that "if you want it bad, you get it bad." Accordingly, bad acquisition planning generally produces poor and unjustifiable acquisition outcomes. Thus, it is critical to understand the time resources that are required to properly plan and execute a federal acquisition. Generally, a Government acquisition for moderate to complex requirements requires at least 120 days.
A variety of factors can affect the contracting process and the contract clauses that are used in a federal acquisition, including:
An acquisition plan may have numerous elements as listed in FAR 7.105; depending upon the estimated cost of the acquisition, these elements include:
During the planning of an acquisition, several key aspects of the effort are decided, including:
Effective market research assists the Government in:
Contracting is all about risk allocation and minimizing risk to include cost, schedule and performance. The more vague the contract work statement, the more risk that the Government assumes.
Risk. A measure of the inability to achieve program objectives within defined cost and schedule constraints. Risk is associated with all aspects of the program, for example, threat, technology, design processes, Work breakdown structure (WBS) elements, etc. It has two components, the probability of failing to achieve a particular outcome, and the consequences of failing to achieve that outcome.
Does this contract adequately describe all essential work / expectations, is there a schedule and is it enforceable? What are our remedies, if any?
Requiring activities and frequently contracting officers want to get an acquisition on contract as quickly as possible; sometimes too quickly. Thus, contracting officers and acquisition attorneys will frequently have to carefully review the overall acquisition to identify risks to cost, schedule and performance and recommend mitigation measures to decrease these risk areas.
What is my expected payoff? The larger the expected payoff, the larger the associated risk, and vice versa. An Investor, who is a shareholder in a contracting company, will seek to carefully balance the expected payoff with the associated risk, and he is incentivized to seek a large payoff, as long as the risk is acceptable. This perspective is unique in the sense that risk represents both opportunity and danger to the Investor, while it only represents danger to the Program Manager and the Lawyer.
In other words, there is a misalignment in the perception of risk between the Program Manager, the Lawyer, and the Investor. It is ultimately the Investor who owns the contracting company, and this misalignment will have an effect on the Investor's behavior and the stock's performance.
Cost, schedule and performance risk can be increased by over-bundling of a requirement into a single acquisition vehicle. Over-bundling dries up the possible vendor base that might otherwise compete for a requirement. Thus, it is critical that an evaluation of the possible vendors who might compete for the overall work statement / deliverables be accomplished. For example, having a work statement for asphalt roads, space shuttles, hot dog carts, movie projectors and skyscrapers is unlikely to get a good vendor; only a prime integrator will bid on that type of bloated requirement, thereby stacking a tremendous amount of overhead into the price of the acquisition. In the best-case scenario, the prime integrator will merely go out and contract with the vendors the Government should have gone with in the first place. The worst case is the prime integrator will mismanage outsourcing to their subcontractors and poor results will ensue. Overhead costs of over 100% of the price of the subcontractors is not uncommon in this situation, especially in Iraq. This analysis will frequently require splitting up a requirement into different pieces. The bundling of a requirement also has the very bad effect of making the SSCs and CLIN structure difficult to use in source selection, price evaluation and contract administration.
Overbundled requirements frequently suffer from very vague requirements and work statements, particularly in service contracts. In service contracts, the CLIN structure is priced on a per person per hour basis rather than on the service work deliverables themselves. Government or contractor ability to prepare cost or price estimates for vague work statements is severely limited; Accordingly, the Government will negotiate a labor rate, number of people and individual qualifications for the requirement given that is the only feasible way to get an idea of cost. However, use of per person/per hour pricing for services is a poor contracting practice given the Government retains virtually all performance, cost and schedule risk given the contractor has fully performed under the CLIN statement when they provide the qualified body, rather than providing the needed service. One could argue that a CLIN statement which overbundles work in even a well written work statement and prices the work on a per person/per hour basis with limits on the numbers of person and types of qualifications the contractor can use is in contradiction to the work statement given the means the Government has asked the contractor to price the contract bears no relationship to the actual work itself and the Government is directing the contractor on how to execute the requirement – thus interfering with contractor performance and a sign of an employee-employer relationship rather than an independent contracting relationship. Also, the CLIN structure which prices on a per person basis or per hour basis generally pays for such persons on an annual basis rather than merely for the service on an a la cart or as-needed basis, therefore driving up costs in many cases. Pricing on a per person or per hour basis is a sign that a contract likely also qualifies as a personal services contract under FAR Part 37 – technically violating at least the spirit, if not the letter, of the Classification Act and FAR Part 37 except in specific circumstances and with specific determinations and findings.
Use of prime integrators in overbundled contracts sometimes has led to poor results in a number of major systems acquisitions. For example, what would happen if say the US Navy went too far in allowing contractors to make choices that make economic sense in the specific acquisition but add cost to the overall Navy? Example is a prime integrator who gets a good deal on a specific radar system that is not used in any other ship system – makes this specific buy cheaper but overall this costs the Navy a great deal of money given a lack of interoperability that drives a need to stand up training schools, supply system, work force increase, etc.
Over-bundling makes it easy for contracting, but many times, especially for complex acquisitions, does not deliver the results expected by the customer or war fighter for complex acquisitions, especially acquisitions that the acquisition command in question has little experience with or has substantial turn over of personnel during the life of the acquisition.
Small business acquisitions have mandatory restrictions on over-bundling. However, non-small business acquisitions are not subject to the same rules.
Example of how over-bundling causes big problems (permutations and evaluation of total price in source selection): Lets say a requiring activity wants to get polling services. Acquisition planning reveals there are five polls in ten different regions. However, it turns out that the Government will only be ordering one of the five polls in any real numbers and that particular poll is much more expensive in actual cost than the other four. If a weighting scheme is not applied to this bundled requirement, a vendor can make the four lightly ordered polls very cheap in their offer and the high volume poll very expensive, based on their knowledge of the ordering patterns of the government in past acquisitions. Thus, on its face, the overall price of a bid when each poll is added together to arrive at a total price (used in source selection) would look attractive but in practice, the Government will burn through its budget very quickly given the vast majority of the actually ordered polls are extremely expensive (even though the actual cost of the most frequently ordered poll is far less than what was in the offer). To avoid the headache of a weighting scheme, all five polls should be broken apart and contracted for separately so they can be judged on their merits. This is an example of what is frequently done on major indefinite duration, indefinite quantity (IDIQ) contracts and explains why some acquisitions are appallingly expensive and require additional funding to achieve the requiring activity's objectives.
When evaluating Contract Line Item Numbers (CLINs), ask yourself: “Can I explain this to the contracting officer's representative (COR) so they know when it is OK to sign the US Government receiving Report (for example, DD Form 250) accepting contractor’s performance as conforming?”. The receiving report, for example, DD Form 250, when signed and accompanied by a funding document (in the Army's case, a Purchase Request and Commitment (PR&C) form), contract and vendor invoice, is what gets the contractor paid by the applicable finance office.
The statement of work (SOW) is a formal document submitted along with the request for proposal (RFP) to a vendor that defines the work to be performed, the location of the work, the deliverable schedule, applicable performance standards, any special requirements (e.g., security clearances, travel, and special knowledge), and the period of performance.
The Procurement Integrity Act (PIA) applies to the personnel that engage in federal source selections to include prohibitions on gifts to source selection personnel, restrictions on dissemination of procurement sensitive information and post government employment restrictions.
Source selection refers to the process for evaluating contractor proposals or quotes submitted in response to a request for proposals (RFP) or request for quotes (RFQ) based on the contract solicitation. Source selection is driven by what instructions to offerors clause is included in the contract solicitation (e.g., FAR 52.212-2 with the tailored language spelling out what the source selection criteria are, weighting, etc.).
After the requiring activity has written their SOW/PWS, figured out source selection approach, then selected factors and subfactors, then figured out weighting of non cost/price factors, then understood consequences of the above, they write a source selection plan (SSP). A SSP gives instructions to a source selection committee on how to evaluate each proposal. Courts will defer to the source selection committee’s business judgment, so facts must be included to base a decision on; the source selection committee must not be arbitrary or lack facts in the record for their findings.
Ultimately, risk evaluation is where a source selection team wants to be. That is what is used to determine weakness, significant weakness and deficiencies, which are briefed to unsuccessful offerors. Making the connection between risk evaluation/source selection criteria/factors and offeror proposals is what source selection is all about
The process used for source selection can be selected from FAR Parts 13, Simplified Acquisition, 14, Sealed Bidding or 15, Contracting by Negotiation.
Contractors competing for a government requirement have an opportunity to request clarification or amendment of a work statement or solicitation. The request for clarification must be done relatively early in the acquisition process, preferably as close to the publication of a solicitation, RFQ, RFP or other publication. Frequently contracting officers will agree to such clarifications if a contractor's request is well reasoned.
Key principles for source selection:
Offers excluded from competitive range must follow notification procedures at 15.503(a) and debriefing procedures at FAR 15.305(c)(4). Do NOT use competitive ranges to exclude offers/proposals unless solicitation stated discussions were going to be used. FAR 15.306(c). If a competitive range is used, you MUST send pre-award notifications to offerors thus excluded. An agency entering into discussions must provide “meaningful discussions” (See GAO decisions on this issue).
If FAR Part 15 is used, there MUST be a proposal evaluation under FAR 15.305 to include a “fair and reasonable” price determination under FAR 15.305(a)(1), a past performance evaluation under FAR 15.305(a)(2) and a technical evaluation under FAR 15.305(a)(3).
For each factor rating, identify each offeror’s key strengths, uncertainties and deficiencies of the proposal and then explain how the strengths, uncertainties and deficiencies resulted in that rating. Focus specifically on the factors and subfactors specifically stated in the solicitation/instructions to offerors. Do not use unstated source selection criteria to select the winning offer.
Discuss those discriminators that make one offeror better than another based on the selection criteria. Be as detailed and focused upon discriminators as the source selection results allow. If something was not a discriminator then say so and also state why it was not. If the strength had no bearing on the offerors rating, state so.
Adequately address the impact of past performance on the decision; remember, no past performance is rated NEUTRAL!!
A drafter of the source selection decision document must show the source selection authorities thought process and reasons behind the comparative analysis. Use a declaration of thinking/intent on the part of the source selection authority (SSA). For example: I selected; I thought; I determined; I reviewed; etc.
Source selections cannot compare the offers against each other. Only against the award criteria.
Spend some time on the summary to make it correct as it is very important. It is meant to very quickly put in words the best of the key discriminators used by the SSA to reach their decision.
Don’t focus the discussion on only one offeror. The Source Selection Decision Document (SSDD) compares assessments of the successful offeror against the others. If there are a large number of offerors, the detailed discussion may be limited to the most highly rated offerors. Some light discussion of lower rated offerors is needed when a competitive range is not established.
Don’t use ratings with contradicting supporting language, such as a “not detailed” rated “excellent.” Examine ratings closely as they relate to your technical discussions. Ensure they are consistent (i.e., avoid having a weakness discussed in one proposal evaluation and not another proposal having the same weakness).
Don’t identify or list weaknesses without discussing them and their importance to the thought process.
Don’t treat a neutral performance confidence assessment favorably or unfavorably. (Don’t disqualify an offeror for having a neutral rating.) No past performance must be rated as neutral under FAR Part 13 and FAR Subpart 15.3.
Ensure that, when documenting an award decision in the SSDD, SSA’s are focusing on the underlying advantages and disadvantages of the proposals rather than merely the ratings themselves. HoveCo, B-298697: http://www.gao.gov/decisions/bidpro/298697.pdf
Agency regulations frequently provide guidance on source selections: See for example, AFARS 5115.308 Source selection decision – "A source selection decision document must be prepared for all source selections and reflect the SSA's integrated assessment and decision. The document must be the single summary document supporting selection of the best value proposal consistent with the stated evaluation criteria. It must clearly explain the decision and documents the reasoning used by the SSA to reach a decision. The document should be releasable to the General Accounting Office and others authorized to receive proprietary and source selection information. When releasing a copy to offerors or to anyone not authorized to receive proprietary and source selection information, redacted material should be limited to that which is proprietary and that which must continue to be protected as source selection information."
Consistency: what is bad for one proposal is bad for all; find an adverse comment, then look at of the proposals of the other bidders and see if the same problem exists in there and was not written up in the evaluation for those proposals. What is good for one proposal is good for all proposals (See above)
Take a hard look at definitions in instructions given to source selection committee – look at the words in them; start with the worst definition i.e. unacceptable, look at the words in it, then see if those words show up in evaluations that are rated higher than that definition in the rating worksheets.
If you have something bad in the proposal you want to win, then acknowledge it in your source decision document, and STATE THAT IT DID NOT AFFECT YOUR DECISION OF X REGARDING RATING OF THAT PROPOSAL!!! – if the same thing is bad in another proposal, then say the same thing in that one as well.
The word “non-responsive” IS ONLY USED IN SEALED BIDDING! It should NEVER be used in FAR Parts 13 or 15 evaluation processes. Packages missing things are just rated lower for example, poor, good, unacceptable or IAW FAR of weakness, significant weakness, etc.
Compare SOW and delivery schedules on solicitation (for example, RFP/RFQ) to what is in proposals word for word to see if everything was addressed. State if something is missing to justify lower ratings; talk about everything that applies for each award criteria to “pile on” good comments for proposals you like; then show that more good was said about the ones you liked, and less good was said about the ones you don’t.
Do the best you can with bad source selection or award criteria. Just make sure it is consistently applied
Source Selection Criteria (SSC) can be simple or complex depending on the subject of the acquisition. If FAR Part 15 is used, then a concept called best value can be used; best value simply is an idea that the lowest bidder is not necessarily the winner of a competition – rather, an evaluation of the overall offer based on specified SSCs is accomplished and a source selection decision is accomplished (see below) based on those specified SSCs using a fact-based business judgement of the acquiring activity.
SSCs can vary widely in complexity depending on the acquisition process used, for example, FAR Part 13, Simplified Acquisition, or FAR Part 15, Negotiated Procurement. For example, under FAR Part 15, there is a range of source selection models including:
If FAR Part 13, simplified acquisition is used, then a contracting officer can select from a range of processes including Government Purchase Card (GPC) for purchases under the micro-purchase threshold (see definition section of FAR for current value (for example, in U.S., it is currently $2,500), simplified acquisition threshold (see FAR definition section, currently up to $150,000 within the U.S. with certain exceptions), or up to $6.5M for commercial items/services. Under FAR Part 13, contracting officers are not required to use FAR Part 15 processes or follow the publication requirements of FAR Part 5, however they MUST create their own processes to follow.
Vendor past performance is generally included as a source selection criteria. It is important to include a requirement for "recent and relevant" past performance.
Inadequate SSCs renders the best work statement and CLIN worthless.
A metric is a meaningful measurement taken over a period of time that communicates vital information about a process or activity, leading to fact-based decisions.
Focus on where things go bad – not resource effective to measure everything. Instead, select the critical few metrics for mission essential processes, process that have historically experienced chronic problems or process choke points and monitor them.
40 USC 181(c) provides: “In acquiring personal property, any executive agency, under regulations to be prescribed by the Administrator, subject to regulations prescribed by the Administrator for Federal Procurement Policy pursuant to the Office of Federal Procurement Policy Act may exchange or sell similar items and may apply the exchange allowance or proceeds of sale in such cases in whole or in part payment for the property acquired . . . . . .”
The Federal Property and Administrative Services Act of 1949 gives agencies general authority to sell personal property and use the proceeds to replace similar property during the same fiscal year or the next one, like a used car trade-in.
The Miscellaneous Receipts Act (31 USC 3302) mandates that funds received by the US Government must be deposited in the miscellaneous receipts account at the US Treasury unless a specific exemption was authorized by Congress. The Miscellaneous Receipts Act prevents the Executive Branch from financing itself except as specifically authorized by Congress. 40 USC 181(c) thus is necessary to ensure a command that essentially trades or sells items, frequently information technology (IT) equipment, can retain the receipts from the trade in or sale and apply them to acquisition of replacement items.
Unless specifically prohibited by another provision of law, an agency's authority to contract is vested in the agency head, for example, the Secretary of the Air Force or the Administrator, National Aeronautics and Space Administration. Agency heads delegate their authority to Contracting Officers, who either hold their authority by virtue of their position or must be appointed in accordance with procedures set forth in the Federal Acquisition Regulation. Only Contracting Officers may sign Government contracts on behalf of the government. 48 CFR § 1.601. A Contracting Officer has only the authority delegated pursuant to law and agency procedures. This authority is set forth in the Contracting Officer's certificate of appointment (formerly called a "warrant"). Unlike in commercial contracting, there is no doctrine of apparent authority applicable to the Government. Any action taken by a Contracting Officer that exceeds the Contracting Officer's actual delegated authority is not binding on the Government, even if both the Contracting Officer and the contractor desire the action and the action benefits the Government. The contractor is presumed to know the scope of the Contracting Officer's authority and cannot rely on any action of Contracting Officers when it exceeds their authority. Contracting Officers are assisted in their duties by Contracting Officer Representatives (CORs) and Contracting Officer Technical Representatives (COTRs), who usually do not have the authority of a Contracting Officer.
What happens after a government contract is signed? That subject is referred to as contract administration. Contract administration tasks can include:
See the DCMA Handbook for more information on contract administration.
Requests for Equitable Adjustments (REAs) are modifications of the contract that were not done formally or properly. REAs are frequently based on the changes clause. They typically occur when new work is added or a change in current work is ordered, perhaps by the contracting officer, without the required documentation. Changed circumstances and equity are possible justifications for a contractor to ask for a REA. Contractors can ask for delay damages arising from contract changes in REAs. These can be large.
The burden of showing evidence of increased costs is on the contractor. Special rules exist for entitlement to whether or not contractor is entitled to profit in addition to the actual costs they incurred, especially in the cases of leased equipment that was held over due to delays on the part of the government or the government’s failure to properly integrate other contractors who then interfered with our contractor’s work. Cases out there that say the government can reduce profit if risk was reduced due to the change.
Can use the settlement procedures in FAR Part 49, per FAR 49.002(c) but be advised that this section is really written for terminations – you have to adapt the settlement procedures, probably for terminations for convenience, to the REA.
The Government should make sure there is a release of claims (ROC) clause in the REA’s contract modification – FAR / DFARS do not have a sample ROC clause. In the context of FAR Part 12 commercial items, the changes clause requires BILATERAL AGREEMENT.
A substantial number of federal cases deal with REAs:
Two types of scope determinations in contracts. One is scope of the original contract – meaning, do we have to pay anything for this modification. The second one is whether or not the modification or change is within the scope of the original competition. The first issue comes up when a contractor demands more money (i.e., demand for more money in a CDA claim or REA); the second issue comes up when the Government wishes to modify the contract and the contractor agrees, but another contractor objects to the failure to recompete the contract.
Modifications are governed by the changes clause in the contract. However, the question of competitive scope must be determined first to determine if there will be a Competition in Contracting Act (CICA) violation first. As a collateral issue, the question of whether or not the modification is a good deal must be evaluated because any modification is inherently a sole source award to the incumbent contractor. Thus, there is no price competition for the modification. If the acquisition was done under FAR Part 12, Commercial Items, the Government has no ability to demand cost and pricing information from the Contractor to evaluate whether or not the contractor is ripping off the Government with inflated or padded charges.
With regard to competitive scope determinations, the GAO in American Air Filter Co., 57 Comp. Gen 567 (B-188408), 78-1, para 443, at 573, stated:
"The impact of any modification is in our view to be determined by examining whether the alteration is within the scope of the competition which was initially conducted. Ordinarily, a modification falls within the scope of the procurement provided that it is of a nature which potential offerors would have reasonably anticipated under the changes clause.
To determine what potential offerors would have reasonably expected, consideration should be given to the procurement format used, the history of the present and related past procurements, and the nature of the supplies or services sought. A variety of factors may be pertinent, including: whether the requirement was appropriate initially for an advertised or negotiated procurement; whether a standard off the shelf or similar item is sought; or whether, for example, the contract is one for research and development, suggesting that broad changes might be expected because the Government's requirement are at best only indefinite."
GAO issued a decision on 31 Jan 06 in DOR Biodefense Inc. and Emergent BioSolutions, B-296358.3 and B-296358.4 regarding whether a modification is within the scope of the original competition under the Competition In Contracting Act (CICA). Modifications outside the scope of the original competition must be competed or justified as sole source actions. Scope analysis is not mechanical, but requires an integrated assessment of multiple factors, including contract type, specification or statement of work, cost and performance period. Whether the modification requires competition also depends upon whether the original solicitation adequately advised offerors of the potential for that type of change, and thus whether the modification would have changed the field of competition. In Biodefense, the Army issued a single award ten year indefinite quantity contract for development and certification of vaccines for biological defense. The challenged modification was exercise of an optional CLIN for development of a type of vaccine not expressly listed in the solicitation's option that extended the performance period for the option by 8 years at a significant increase in cost. The GAO determined that this modification was, nevertheless, within the overall scope of the original competition based on the broad developmental purpose of the contract and the solicitation's express notice to offerors that additional vaccine types could be added after award and that changes in regulation may affect performance period and costs. The discussion of actions taken by the Army in the original solicitation to put competitors on notice of the potential for post-award modifications provides good practice insight. See DOR Biodefense, Inc.; Emergent BioSolutions: http://www.gao.gov/decisions/bidpro/2963583.pdf
See DCMA's Contract Administration Handbook for more information: http://guidebook.dcma.mil/15/instructions.htm
Release of Claims In consideration of the premises contained in contract modification number _______________ of contract number ______________________________, executed on _____________, and sum of $______________to be paid by the United States Government under the above noted contract, the undersigned contractor does release and discharge the Government, its officers, agents, and employees of, from all liabilities, obligations, and claims whatsoever in law and equity arising out of or by virtue of said contract, except as follows:
[fill this in or state – no exceptions]
IN WITNESS WHEREOF, this release has been executed this ___ day of _________.
__________________________ Contractor Signature
Contract claims are handled under the disputes clause in commercial items contracts or another clause in different types of contracts. The clause simply refers to another clause, the contract dispute clause. That clause invokes the Contract Disputes Act (CDA) and specific procedures that must be followed.
The Government seeks to avoid treating requests for additional money or changes to the contract as a claim, for several reasons. For starters, the Government has to pay interest from the date of receipt to the date of payment. Second, if the amount is over a specified amount, then the claim must be certified (see the FAR and CDA). Certification is essentially a company swearing under pain of 18 USC false claims act penalties that they are not falsifying the claim.
Instead of dealing with it as a claim, the Government should deal with it as a REA; the contractor will have to decide what is more advantageous to it – a REA or CDA claim.
Contractors are understandably quite upset when an awarded contract is cancelled before contract performance can begin. There is some authority for a contractor to recover bid preparation costs in very limited circumstances. Even so, a contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ; in this regard, so long as there is a reasonable basis for doing so, an agency may cancel an RFQ no matter when the information precipitating the cancellation first arises, even if it is not until quotations have been submitted and evaluated. Quality Tech., Inc., B-292883.2, Jan. 21, 2004, 2004 CPD para. 29 at 2-3; DataTrak Consulting, Inc., B-292502 et al., September 26, 2003, 2003 CPD para. 169 at 5. It is well established that an agency’s lack of funding for a procurement provides a reasonable basis for cancellation, as agencies cannot award contracts which exceed available funds. First Enter., B-221502.3, Mar. 24, 1986, 86-1 CPD para. 290 at 3. Procurement authorities are presumed to act in good faith and in order for GAO to conclude otherwise, the record must show that procuring officials intended to injure the protester. Cycad Corp., B‑255870, April 12, 1994, 94-1 CPD para. 253 at 5. A protester’s mere inference of bad faith is insufficient.
The Government may terminate a contract for cause (commercial items), for default (T4D) or for convenience (T4C). Terminations for commercial items (FAR Part 12) contracts are governed by FAR 52.212-4(l) and (m), not the T4C or T4D clauses of FAR 52.249-x. FAR Part 49 prescribes T4D and T4C clauses in FAR Part 52 for non-commercial items (FAR Part 12) related contracts. In particular, T4D is covered by FAR Subpart 49.4, Terminations for Default. T4C is covered by several sections of FAR Part 49.
Termination for default reviews can be done a variety of ways, however, one method is to start with what is the ACTUAL deliverable on the contract, not the one that the customer thought they had. Carefully track what the contractor’s actual performance is against the specific language in the contract. If there has been verbal changes by the government without going through the contracting officer (which should never happen), is there something that indicates the contractor consented to those changes? In writing? For example, the DFARS 252.212-4 clause section that deals with modifications states that mutual consent is required for all modifications. In this review, use the language from the contract and then see if you have adequate evidence from the government documenting the actual performance. Ask if the Government COR has signed any receiving reports e.g., DD Form 250s accepting performance (so they can get paid). Is there anything in the record that shows the Government placed the contractor on notice of their default or non conforming deliveries?
FAR Part 49 should be read that to get information on terminations including notice to cure and show cause notices. The more the Government tries to give the contractor chances to remedy their default, the more the Government bolsters its case that T4D is appropriate.
The various courts that review T4Ds have a high standard of review for T4Ds, so the Government should consider making sure the T4D is well supported and the Government has had little or no role in the contractors non-conforming performance as well as ensuring there is a clearly defined deliverable, several chances to cure and nothing in the record that indicates the government failed to do something that was condition precedent to performance or the Government interfered with contract performance or failed to provide required cooperation/support. (For example, failure to provide security escorts or access to a work site thus causing delays on the part of Contractor performance).
The key point for T4Ds is that it is the only way that a Government agency can use prior year single year appropriated funds, such as O&M or many types of procurement funds, for reprocurement of the item in question. Accordingly, it is very important the Agency get the acquisition right up front because bad work statements and poor contract administration destroy the Government's ability to T4D, thus keep their prior year funds to get a replacement contractor.
Defense Contract Management Agency (DCMA) has a Terminations Handbook which is very useful in dealing with terminations for convenience issues.
One approach to analysing Government procurements of large systems, such as weapons systems, is to use real options analysis. Such procurements can be done in single annual lots ("single-year procurements," or SYPs), or, with Congressional approval, multi-year procurement (MYP) contracts. Multi-year contracts generally lower the risk for the contractor, and thus the unit price paid by the government. One way to look at this situation is that a multi-year contract contains a real option for the contractor to escape the uncertainty associated with a sequence of single-year contract negotiations (analogous to a put option). Real options analysis can give an estimate of the value to the contractor of transferring revenue risk to the government as a function of the contract's size and the volatility of the contract's value, even though the option is not actively traded. The negotiated price is also influenced by the attitudes towards risk of the negotiating parties.
Contract Management by National Contract Management Association
National Contract Management Associatiion at www.ncmahq.org