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TRAINING for Region I Field Contracting Officers

Ed Wirtanen - 2011

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Basic Principles of ContractingWe have the money and they (contractors)

want itDo not think of it as your money, GSA/PBS

money, or the customers money – the contracting laws, regulations, and polices apply and it is really the taxpayer’s money

Government procurement in the United States is based on many of the same principles as commercial contracting, but is subject to special laws and regulation

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Basic Principles ContinuedCommercial Item Contracts are very different

from Government Contracts (even Government CI contracts)

Persons entering into commercial contracts are pretty much free to do anything that they can agree on. Each represents their own interests and can obligate themselves in any way they believe will benefit them. If one or both persons are represented by agents, usually employees, commercial contracting law allows the agent to form contracts based on generally accepted notions of commercial reasonableness. In essence, the law allows each side to rely on the other's authority to make a binding contract.

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Basic Principles (Continued)The powers given to the Government are set forth in the

Constitution. The government exercises its powers through legislation, and regulations issued as prescribed in legislation.

Thus, the authority of a Contracting Officer (the Government's agent) to contract on behalf of the Government is set forth in public documents that a person dealing with the Contracting Officer can review. 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 be made by a Contracting Officer with actual authority to make the contract.

The Contracting Officer has no authority to deviate from the laws and regulations, and the 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.

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Procurement Management Review ResultsEvery acquisition must follow the rules for acquisition

contained in the applicable laws, regulations , and polices – the PMR team noted that this has not been in the case in this Region and in particular for field contracting officers

PMR team recommend that warrants be pulled - however there is an understanding that training is needed first to give an opportunity for change

The laws regulations apply to all procurements even in cases where the customer or others argue that their needs take precedent - this is not the FEDERAL ACQUISITION SUGGESTIONS and no exemption for the New England Region of GSA, PBS

Biggest Problem - lack of documentation including cases of no files

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REGIONAL RESPONSE TO PMR REPORTThe Field Contracting Officers want to do

the right thing but have not been provided enough support or training by the Region

During PMR review , I discussed with PMR team the Regions own reviews

Response from field contracting officers to my reviews has been to admit wrong and to request help - PMR team appreciates this positive attitude

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Contract Types Purchase/Delivery Order Construction Service (Architect and Engineering – not for field

contracting officers – specifics laws

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Biggest Problem – work outside scopeContracting Officers award contracts for

specific work - think contract not contractorJust because contractor has the capability to

perform the work - does not mean that they were awarded the contract to do the work

Change orders are only to be used for drawings and specifications within the general scope of the contract - not for additional work -see the excellent presentation made by Jim Adamo last year

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Within Scope (continued)Good practice – check with 1102 CO

responsible for master contract in Region or GSA schedule CO – if any doubt make sure that the CO responsible for overall contracts verifies that work is work is within scope of contract

Never ever even think of issuing any A&E related work – specific laws applicable

IG, GAO, and PMR team all know that issuing work outside scope is a typical tool used to get “around FAR and GSAR” and get work done quickly – they will be looking

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OptionsVery specific and relatively complex regulations

apply when exercised notice etc– FAR Part 17 - reviews have found pattern of total non-compliance

Must be priced and evaluated at time of award – concept of unpriced option does not exist – IG report for both FAS and PBS

Your warrant must cover total value including options (and change orders)

Consider using line items instead and contact 1102 for guidance before including options

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CompetitionFAR 8.4 (GSA Schedules) outlines procedures

for providing for competition in the placement of orders under FSS contracts

An ordering activity must justify its action and document the circumstances when restricting consideration for an order exceeding the micro-purchase threshold but not exceeding simplified acquisition threshold

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Competition Circumstances that may justify restricting competition include:

Only one source is capable of providing supplies or services that are unique or highly specialized – When an order contains brand name specifications, the ordering activity shall post the information along with the Request for Quotation (RFQ) to e-Buy (http://www.ebuy.gsa.gov) : For proposed orders exceeding $25,000, but not exceeding the simplified acquisition threshold , the documentation restricting consideration.

A logical follow-on to an original order that provided competition (fair opportunity) - basically an relatively small order to finish up work – not new work – numerous IG reports of violations – use carefully

Urgent need and fair opportunity would result in unacceptable delays Supplies, services or construction needed at once because of fire, flood,

explosion, or other disaster Essential equipment or repair needed at once to perform operational mission Construction needed at once to preserve a structure or its contents from

damage Not because funds are running out or GSA or customer delays

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Competition FAR 13.106-1  Soliciting competition.  

For purchases not exceeding the simplified acquisition threshold, contracting officers may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source reasonably available (e.g., urgency, exclusive licensing agreements, brand name or industrial mobilization). See FAR 5.102(a)(6) for the requirement to post a brand name justification or documentation

Regional Multiple Award Contracts FAR Part 16 applies – should compete – if

limiting competition read contact clause and contact 1102 CO responsible for overall contract if you have questions

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Delivery, Task, and Purchase Orders Acquisition Plan Market research

Informal document – consistent with master contract for delivery/task orders

GSA 49 Separation of duties (Requisitioner,

Fund Certifying Official, Approving Official) Ensures funding is available and that accounting

string is correct Include a copy of computer (RWA ,RETA ) printout showing real time funding availability

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Delivery, Task, and Purchase Orders Include wage determinations when necessary Include a copy of each proposal received Record proposals on the GSA 2010, signed by

the CO Statement of Fair and Reasonable - FAR

13.106-3 Award and Documentation CCR, ORCA, EPLS - www.ccr.gov,

orca.bpn.gov, epls.gov

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Delivery, Task, and Purchase Orders (File Documentation – Continued)

GSA Form 300 –Order for Supplies & ServicesFPDS-NG Report- Federal Procurement Data

System –Next GenerationGenerated through ComprizonRequired for all transactions over micro-

purchase threshold GSA Acquisition Letter V-07-03 –CO

responsible for data accuracy HCA (Regional Commissioner) accountable - Reviews – field entering data wrong

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Delivery, Task, and Purchase Orders File Documentation ModificationsBilateral and Unilateral PS, PO, PC or PA Fill in Block 13 on the SF30 with specific

authority that allows for modification – read contract or task order to find authority – no authority no modification -BIG PROBLEM in this Region must get better

Contractor’s Statement of Release” IGE & Statement of Fair and Reasonable FPDS-NG

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Delivery, Task, and Purchase Orders File Documentation Statement and Acknowledgement & Payment

Bonds - SF 1413 only required on construction orders - Must be received within 14 days of any subcontract award - Payment bonds required on construction orders over $30,000

Labor Interviews and Payrolls- Only required on construction orders

Record of Arrival and Departure - GSA 139 Inspection Report -GSA 220

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Delivery, Task, and Purchase Orders – File Documentation Release of Claims - GSA 1142 - GSAM

532.905-71 Final Payment— Construction and Building Service Contracts

Invoices, Receiving Reports / Proof of Payment - Receiving report completed in Pegasys - FMIS print out with VAT to prove payment

Correspondence -COR letter - Notice to Proceed - SBU Documents

Contract Completion Statement - Generated through Comprizon

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Construction File DocumentationAcquisition Plan Market research GSA 49 Separation of duties (Requisitioner,

Fund Certifying Official, Approving Official) Ensures funding is available and that accounting

string is correct Include a copy of computer (RWA ,RETA ) printout showing real time funding availability

Independent Government Estimate - helps determine price reasonableness

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Construction File DocumentationSource List / Justification for Sole Source,

Large Business Field Office Bidders Mailing List

FAR 13.102 Source List Should always set aside for small

business – if not document contact SBDU

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Construction – Documentation Announcement in FedBizOpps www.fedbizopps.com FAR 5.101Methods of Disseminating

Information Must be placed in FedBizOpps if over

$25,000If over $10,000 the solicitation must be

placed in a public place – lobby of building etc.

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Construction Documentation Solicitation and Amendments SF 1442 Solicitation, Offer and Award,

ConstructionScope of Work Drawings Clauses (include 8(a) if applicable) –

templateWage Determinations – Davis-Bacon Act SF 30 Amendment of Solicitation Numbering

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Construction File DocumentationPre-Proposal Conference - Optional- If

procurement is complicated or large -Site walk

Sensitive but Unclassified Documents One Copy of Each Offer Received - Keep all

offers received in the file Small Purchase Tabulation Source List (GSA

Form 2010) - Tabulate all offers received

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Construction File Documentation – Negotiations Optional, only used if you have the need to

negotiate If you negotiate with one, must negotiate

with all offerors in the “competitive range” Must include a separate pre-negotiation

strategy memo and post negotiations memoTell the story Explain selection

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Construction Documentation - Statement of Fair and Reasonable -FAR 13.106-3 Award and Documentation1) Whenever possible, base price reasonableness on

competitive quotations or offers. (2) If only one response is received, include a statement of price reasonableness in the contract file. The contracting officer may base the statement on— (i) Market research; (ii) Comparison of the proposed price with prices found reasonable on previous purchases; (iii) Current price lists, catalogs, or advertisements. However, inclusion of a price in a price list, catalog, or advertisement does not, in and of itself, establish fairness and reasonableness of the price; (iv) A comparison with similar items in a related industry; (v) The contracting officer’s personal knowledge of the item being purchased; (vi) Comparison to an independent Government estimate; or (vii) Any other reasonable basis

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Construction File DocumentationCCR, ORCA, EPLS - www.ccr.gov, orca.bpn.gov,

epls.gov Signed Contract - SF 1442 - SOW – ClausesFederal Procurement Data System-Next

Generation - Required for all transactions over $2,500 - Generated by Comprizon but many fill ins –CO responsible – in Regional Commissioners Performance Plan

Copy of Award Letter and / or Notice to Proceed - Notice of Award and Notice to Proceed can be combined if no bonds are involved (under $30,000)

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Construction File Documentation DOL Posters - Must be displayed on job site

in a conspicuous locationPayment Bonds - Contracting Officer must

verify acceptability of bonds by writing “acceptability of bond verified” and sign immediately there under on the bond. - http://fms.treas.gov

Letter to Unsuccessful Offerors - Under SAP, notification is not required unless requested by offeror - Optional - Good business practice

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Construction File DocumentationPost Award Conference / Preconstruction

Conference - Optional - Clearly defines roles and responsibilities - Timelines - Good project management technique

Statement and Acknowledgement Modifications - GSA 2437, Findings of Fact

for Contract Modification – contract clause such as changes must be cited - not to be used just to add work – new contract required if this is the case

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Construction File DocumentationGSA 2419 - Certification of Progress Payments -

Larger Projects - Helps small businesses to compete (increases competition) - Form of Contract Financing

Inspection Reports -GSA 220 Sign-in Sheets - GSA 139 Payrolls must be received weekly within 7 days of

pay date - WH-347 - Important part of contract administration - When Work is Performed Personally - GSAM 522.406-6 Payrolls and Statements. Statements from Prime Contractors or Subcontractors that Personally Perform Work -

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Construction File DocumentationLabor Standards Interview -SF 1445 Labor

Standards Interview - Compare with payrolls to ensure that contract employees are being paid proper wages-

Release of Claims - GSAM 532.905-71 Final Payment—Construction and Building Service Contracts - GSA 1142

Correspondence- Document phone conversations and include copies of any emails, faxes and any other relevant information

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Construction File DocumentationCOR Letters COs letter to the COR – Copy of

COR letter to the contractorCopies of Invoices & Receiving Report -

Pegasys Receiving Report Contract Close Out - Generated in Comprizon

- Financial Reconciliation

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Services Documentation – Same as Construction ExceptService Contract Wage Rates - www.wdol.gov Solicitations best with written recordDOL Posters - FAR 22.1018 Notification to

contractors and employees (Department of Labor Form WH-1313)

Service Contracts do NOT Require: Payrolls ,Labor Interviews , GSA Form 618-D , GSA 2437 for Modifications

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New ChecklistsPURCHASE ORDER/CONTRACT

CONSTRUCTION FILE CHECKLIST ($2,000 to $150,000)

COMMERCIAL ITEMS PURCHASE ORDER/CONTRACT SERVICES FILE CHECKLIST ($2,000 to $150,000.00)

More checklists to come? Questions