How Many Federal Contracting Officers Are There

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					        Understanding
Government Contracting
              Understanding
      Government Contracting




                      Gary Harlin
John H. Martinez-D.   Program Director
President
Understanding Government
             Contracting

    Henry Vinson,
     CCAS, CBDS

 • 18 Years Experience Managing Large Retail
   Shopping Centers for Military Forces
 • 14 Years Government Contracting Experience
   (Including Chief, Construction & Equipment Division )
 • 10 Years Small Business Owner: Government
   Contracting Consultant (Included total
   preparation of Construction Technical Proposals)
• Objectives
                                   Agenda
• Historical Perspectives
• Overall Contracting Issues
• Rules, Regulations & The Law
• The Procurement Process
• IFB vs. RFP
• Uniform Contract Format
• Registrations & Certifications
• Electronic Commerce &
              Marketing
• Contract Terminations
• Claims and Ethics
                               Objectives
– Subjects Necessary for
  you to Start or Continue
  Government Contracting
  with Confidence
– Subjects that if you don’t
  know, your shouldn’t be
  doing Government
  Contracting
– How to stay out of
  Trouble
– Have Fun!
Historical Perspective
            Historical Perspective



The constitution
provides the
authority for the
Government to
contract
                  Historical Perspective
                                                      .




• 1792 - Department of Treasury was delegated authority
  for all government contracting
• 1809 - Advertised bidding was authorized by law
• 1861 - During the civil war, The Sundry
  Appropriations Act was passed
• 1941 - War Powers Act
                    Historical Perspective

1947 -   DEFENSE PROCUREMENT ACT –
         Approximately 100 pages

1948 -   ARMED SERVICES PROCUREMENT ACT
                - CREATED THE ARMED SERVICES
                       PROCUREMENT REGULATION

1970 -   DEFENSE PROCUREMENT ACT –
         Approximately 3000 pages
                - CREATED COST ACCOUNTING
                       STANDARD BOARD
                Historical Perspective

1976 -   DEFENSE ACQUISITION REGULATION
                 - OFFICE OF FEDERAL PROCUREMENT POLICY
                         ACT
1984 -   FEDERAL ACQUISITION REGULATION –
      Approximately 20,000 pages
  Note: We’ll cover all 20,000 pages today!

          - CREATED A SINGLE ACQUISITION
                 REGULATION SYSTEM
                  OF RULES AND REGULATIONS) FOR
                  GOVENNMENT WIDE USE
         - DAR (DEFENSE ACQUISITION REGULATIONS)
         - FPR (FEDERAL PROCUREMENT
                  REGULATIONS)
         - NASAPR (NATIONAL AERONAUTICS AND
                  SPACE ADMINISTRATION PROCUREMENT
                  REGULATIONS)
                  Historical Perspective

    WE HAVE SEEN INCREASED GOVERNMENT LEGISLATION AND
COMPLIANCE ACTIVITY OVER THE PAST DECADE

           COMPETITION IN CONTRACTING ACT ( 1984 ).
           ANTI-KICKBACK LEGISLATION ACT ( 1986 ).
           FALSE CLAIMS AMENDMENTS ACT ( 1986 ).
           AMENDMENTS TO TRUTH IN NEGOTIATIONS ACT ( 1986 ).
           DEFENSE ACQUISITION IMPROVEMENT ACT ( 1986 ).
           DoD IG ( DEPARTMENT OF DEFENSE - INSPECTOR
           GENERAL) FRAUD INDICATORS
           AUDITS : DCAA, DCAS, DoD IG, GAO ( DEFENSE
           CONTRACT AUDIT AGENCY, DEFENSE CONTRACTS
           ADMINISTRATIVE SERVICES, DEPARTMENT OF
           DEFENSE INSPECTOR GENERAL, GENERAL
           ACCOUNTING OFFICE)
           FAR Part 15 Rewrite (1997)

         PROGRAM FRAUD CIVIL REMEDIES ACT (1986)
            USS Carl Vinson,
USS Sacramento, USS Ingraham
 Why Get Into
 Government
 Contracting?
       The
  Government
      is the
Largest Buyer of
     Goods
      And
    Services
  in the World
Understanding
Government Contracting
There are Many Governments
     Therefore many Buyers
        Understanding
Government Contracting

There is a Process
to Government
Acquisition
and…..

It can be learned
Understanding Government
             Contracting

THE GOVERNMENT AS A CUSTOMER
- THE GOVERNMENT DEFINES THE BUSINESS
 AND ESTABLISHES THE RULES
       The Golden Rule Applies Here
  –   IF YOU WANT TO DO BUSINESS WITH THE
      GOVERNMENT - YOU DO IT ON THEIR TERMS
  –   FEW OF THE RULES ARE “NEGOTIABLE”
  –    GOVERNMENT REPRESENTATIVES HAVE LITTLE
      DISCRETION IN ESTABLISHING THE RULES
  –   WAIT ! But I can save the government money if
      they will only do it my way.
Understanding Government
             Contracting


          RTC
a. It’s in there (You gotta do it)
b. It’s not in there
   (You ain’t gotta do it)

a. It’s open for
   interpretation (You gotta do it)
        Understanding
Government Contracting
             Government-Commercial
                    The Differences

• Unilateral Right to Make Changes
• Equitable Adjustments – cover later
• Audit and Surveillance Rights
• Compliance With Social and Economic Programs
• May be Limitation on Profit or Amount and Type
  of Costs
• Absolute Right to Terminate – cover later
       Rules, Regulations &
                   The Law

   The FAR
(Federal Acquisition Regulation)
The Government Contracting
   Bible
http://www.arnet.gov/far/
   http://business.cch.com/
      Rules, Regulations &
                  The Law


   The FAR
   (Published Daily as part
    of the Federal Register)
http://www.arnet.gov/far/
http://business.cch.com/
                               $79.00
             The Government Contracts
                       Reference Book

This quick-reference guide
 provides ready definitions
 for more than 1,500 terms,
 phrases and acronyms
 used in government
 procurement.

                              $60.00
                                       FAR Overview

• AGENCY ACQUISITION REGULATIONS
  –   Federal agencies may issue their own regulations that
      “implement or supplement” the FAR
  –   DOD FAR supplement (DFARS) applies to DOD and foreign
      military sales and NATO projects
  –   DFARS is published as chapter 2 in title 48 of the code of
      federal regulations
  –   GSA acquisition regulation (GSAR) supplements FAR and
      contains other provisions
  –   GSAR is published in the code of federal regulations
  –   NASA, DOE, DOT, and EPA have implementing regulations
      as well
                                    FAR Overview

• REQUIREMENTS

  –   Government requirements are established by the
      FAR
  –   The rules are fixed and there is little flexibility - on
      your part or the government’s
                              FAR Overview


• EXEMPT
 –   Some government organizations claim to be exempt
     from the FAR. Examples are:
Break
Solicitation Phase
 (In the beginning)
               Understanding
       Government Contracting
                         The Governmental Procurement Process


                                     •State
                  •FAR               Regs               •Municipality Policy




                                                                   Continued Funding   Final
                                                                   and Payment         Payment
                                Funding


Solicitation
Prepared & Published                 Pre-Bid                                           Contract
                                                        Contract
                                     Conf               Award                          Closeout



                                                                      Contract
                          Proposal            Negotiation             Performance
                          Phase
             Definitions



Warranties
    &
Latent
 Defects
             Definitions


Liquidated
Damages
Statement of Work
                           Definitions
• Defective Spec. or
  Implied Warranty of
  Specifications
  – Constructive Change
    claim to obtain
    Equitable Adjustment
    is possible
                       Definitions
• Ambiguity – Two
  or more
  interpretations of
  a solicitation or
  contract
  requirement
           Ambiguity



Honey I’ve won the
 Lottery…..Pack
    Your Bags!
          Ambiguity

After an argument
he says,
“I’m Sorry,
     I love you!
Responsive vs. Responsible
 Bid/Proposal
due Time & Date
        Payment Process


Gettin’ Paid
• In the
  Beginning
• During
• Close-out
                           Definitions
•   Should
•   Shall
•   May
•   Must
•   Will

Government contracting’s
  perversion of words
             Definitions

•   Should
•   May
•   Must
•   Will
• Shall
                                           Definitions
•  Requirements Person
      vs
• Contracting Person
  (Cos have no money, their
   purpose is to insure
   compliance of rules,
   regulations, and laws….
  (on both sides)
Note: Constructive Changes ! A No No
Only COs with Warrants have authority to
     Obligate Government Funds
                                           Definitions
•   Contracting Officers (COs or KOs) have Warrants
•   Many Types: The Procuring CO (PCO), the Administrative
    CO (ACO), The Purchasing and Administrative CO
    (PACO), Corporate Administrative CO (CACO),
    Contracting Officer’s Representative (COR) and the TCO.
    (TCO is a specialist in terminations and settlements)
•   Be careful, there are Purchasing Agents & Buyers
    who may or may not be Cos
Note: Contracting Officers are Mini-Judges
Break
        Understanding
Government Contracting




• IFB vs RFP
        Understanding
Government Contracting

• IFB – Bid
  (not negotiable &
  public opening)

• RFP – Offer
Well then…..What’s
  a RFP?
                       IFB


• Invitation for Bid
  – IFB

• FAR Part 14 –
  Sealed Bidding
                    IFB


• Invitation must
  describe the
  Requirements
  – Clearly
  – Accurately
  – Completely
                                                      IFB
•   Unnecessarily restricted specifications or requirements that
    might unduly limit the number of bidders are prohibited
•   Must be posted in public places
•   No discussion – cover later
•   Award only to responsible, responsive bidders and is most
    advantageous to the government – cover later
•   Must use Uniform Contract Format – cover later
•   Late bids and offers will not be opened or considered – cover
    later
•   Fax bids – only if authorized by the solicitation
•   Electronic bids – only if authorized by the solicitation
                   RFP

• Request for
  Proposal – RFP

• FAR Part 15 –
  Contracting by
  Negotiation
• Types (15.002)     RFP
  – Sole Source
    (Unsolicited
      proposals)
  – Competitive
    (The preferred
    method)
              More Definitions
                          RFP
• Fair not Equal Treatment:
• As of January 1998 they don’t have to
  treat you equal any more
• Contractors are treated fairly and
  impartially but need not be treated the
  same
                   More Definitions
                               RFP
•   Competitive Range
•   No longer have to include all proposals when they
    have a reasonable chance for award. In fact, the rule
    is….when in doubt, throw it out
•   CO uses only the most highly rated proposals.
    Further, they throw out what exceeds the number of
    which an efficient competition can be
    conducted….only use the number of offerors that
    permits efficient competition
                 More Definitions
                             RFP
• Exchanges - (Conversations)
  – Pre-proposal – COs now have broad discretion to
    talk with industry before issuing the solicitation.
    Cos may also have “one on one” meetings with
    potential offerors
 More Government Contracting Perversion of Words

                                        RFP

• After receipt of proposals
• There are three types of Exchanges
  – 1. Clarifications – only when CO
    contemplates awarding without discussion.
    This type is used to resolve minor or
    clerical errors or clarify past performance
    “information” which it has not had a prior
    opportunity to respond.
                More Definitions
                            RFP
– 2. Communications – If CO conducts
  discussions….then Exchanges must occur before
  competitive range is established. Thus it’s called
  Communications.
   • Requires CO to discuss with the offerors any adverse
     past performance before being excluded from
     competitive range. CO may address:
   • A. ambiguities
   • B. perceived weakness or deficiencies
   • C. information relevant to performance
             More Definitions
                         RFP
– 3. Discussion – (Negotiations) Occurs after
  the competitive range has been established.
  CO must discuss:
– A. significant weakness
– B. deficiencies
– C. Other items that may be altered or
  explained to enhance the proposal’s
  possibility of award
             More Definitions
                         RFP
– 3. Discussion – contd.
– No more “Best and Final.” Offerors no
  longer have the same number of times to
  revise their proposal. After discussions are
  concluded a common date/time is
  established for all proposals.
              More Definitions
                          RFP
– 3. Discussion – contd.
– Auctioning is still law in so far as revealing
  an offeror’s price. However, CO may state
  the offeror’s price is to high or to low.
  Further, CO may disclose to all offerors the
  government estimate.
                                    RFP
•   Source Selection Process
    and Techniques
    – Best Value – (15.101)
      Risk of unsuccessful
      contract performance is
      minimal, cost or price may
      play a dominant role
    – Trade Off – (15.101-
      1)Best interest of the Gov.
      to award to other than
      lowest price or highest
      technically rated offeror
                                                     RFP
• Trade Off condt.
  – Must be authorized by the solicitation
  – Solicitation must state all evaluation factors
     (other than price) when combined are
     significantly more important, equal to, or
     significantly less important than price –
     Cover later
  Note: CO must document the file with rationale
•   Lowest Price -
    Technically Acceptable
                               RFP
    (15.101-2)
•   a. Appropriate when best
    value is expected to
    result from selection of
    the technically
    acceptable proposal with
    the lowest price.
•   b. Solicitation shall
    specify that award will
    be made on the basis of
    the lowest evaluated
    price of proposals
    meeting or exceeding the
    acceptability standards
    for non-cost factors.
•   Lowest Price -
    Technically Acceptable      RFP
    (15.101-2) Condt.
•   If a small business past
    performance is not
    acceptable, it’s referred
    to the Small Business
    Administration (SBA)
    for a Certificate of
    Competency (COC)
    determination.
•   Tradeoffs are not
    permitted
•   Non-price factors are not
    rated
•   “Exchanges” may occur
                                          RFP

• Oral Presentation (15.102)
  –  Qualifications of presenters
  –  Restrictions on Time (or not fair)
  –  “Discussions” not allowed
  –  Must comply with rules
     pertaining to “Communications”
  Note: Questions & Answers are
     considered “Discussions”
Break
Uniform Contract Format




 Details in Proposal Writing Course
                    Registration &
                    Certifications
• 8 (a)
• HubZone
• CCR (update monthly)
  www.sba.gov
• Texas Hub
  (512) 463-5872
• NCTRCA
  www.nctrca.org
   North American Industry Classification Code
(NAICS) Codes, Product Codes, & Service Codes


NAICS:
236220 Barracks Const.
Product & Service:
77 – Musical Instruments
11 – Nuclear Ordnance
Y - Construction

http://www.census.gov/eos/www/naics/
  Electronic Commerce

• Cross Timbers
• Web Sites to find Bid
  Opportunities
 ---Both as a Prime and as a Sub ---
  Cross Timbers Procurement Center

• Gary Harlin
• Roger Flores


817-272-5978
         Web Sites

• Feds: www.fbo.gov
• Local: www.hcadfw.org
• State & Local:
  www.state.tx.us/portal/tol/en
  /gov/2/9
  Contract Termination




Contrary to Popular Belief, this is not the Way the
Department Of Defense Terminates it’s Contracts
                    TYPES OF
                TERMINATIONS
There are five recognized reasons for
  termination of a contract, they are:
• Performance
• Mutual Consent
• Operation of Law
• Termination for Convenience (T4C)
• Termination for Default/Cause (T4D)
CONTRACT TERMINATION
           DEFINITION

• THE CANCELING OF
  ALL OR A PART OF A
  PRIME CONTRACT OR
  SUBCONTRACT PRIOR
  TO ITS COMPLETION
  THROUGH
  PERFORMANCE
          MORE DEFINITIONS
• TERMINATION COSTS
  - Such costs as disposal
  of inventory, severance
  pay, rehabilitation,
  professional services and
  other settlement
  expenses. (Anticipatory
  profits are not an
  allowable item)
                                          T4C

• TERMINATION FOR CONVENIENCE
  (T4C) - The Government’s unilateral
  contractual right to terminate a contract, in
  whole or in part, whenever it is in the best
  interest of the Government to do so. (note:
  A contractor has a right to be compensated
  fairly in accordance with the T4C clause of
  the contract.
T4C Equitable Adjustment
                                               T4D

• TERMINATION FOR DEFAULT (T4D) - The
  government’s contractual right to terminate a
  contract, in whole or in part, for failure of the
  contractor to perform any provision of the
  contract, failure to deliver, or failure to make
  progress so as to endanger the performance of the
  contract. A contractor has the right to appeal this
  decision under the disputes Clause. (Note: Also
  known as Termination for Cause)
                                     T4D

•   Phone Call – Call Henry
•   Letter of Warning – Call Henry
•   Cure Letter – Call Henry
•   Show Cause Letter
•   Default Letter
                                    T4D

•   Phone Call – Call Henry
•   Letter of Warning – Call Henry
•   Cure Letter – Call Henry
•   Show Cause Letter – Call your Attorney
•   Default Letter – Call your Attorney
                        T4D


If possible convert to T4C
• Contract Disputes Act of 1978   Claims
   – Must be in writing
   – Must ask CO for Final
     Decision
   – Over $100,000 must be
     certified (Ethics?)
   – May appeal CO final
     decision within 90 days to
     BCA or to US Court of
     Federal Claims within 12
     months
                                       Claims

• Follow instructions outlined in
  the Solicitation/Contract. If that
  don’t work….
• Ask CO for instructions on
  how to file a claim. If that don’t
  work….
• Call Henry
                 Government
           Contracting Basics

Email Henry: hvinson@uta.edu

  –   Counseling
  –   Construction Contracting Questions
  –   Proposal Review
  –   Problems
    THANK YOU!




I hope you had this much fun, I did!

				
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