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The Acquisition Mission, System and Environment

The Acquisition Mission, System and Environment. Breakout Session # WC 10-023 Beverly Arviso, CPA, Fellow, CPCM, CFCM Arviso, Inc. Monday, July 19, 2010 11:00 am – 12:15 pm. 1. Objectives. FAR Part 1: Federal Acquisition Regulations Systems FAR Part 2: Definitions of Words and Terms

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The Acquisition Mission, System and Environment

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  1. The Acquisition Mission, System and Environment Breakout Session # WC 10-023 Beverly Arviso, CPA, Fellow, CPCM, CFCM Arviso, Inc. Monday, July 19, 2010 11:00 am – 12:15 pm 1

  2. Objectives FAR Part 1: Federal Acquisition Regulations Systems FAR Part 2: Definitions of Words and Terms FAR Part 3: Improper Business Practices and Personal Conflicts of Interest FAR Part 4: Administrative Matters FAR Part 29: Taxes FAR Part 30: Cost Accounting Standards Administration FAR Part 31: Contract Cost Principles and Procedures FAR Part 32: Contract Financing FAR Part 34: Major System Acquisition FAR Part 35: Research and Development Contracting FAR Part 36: Construction and Architect-Engineer Contracts FAR Part 37: Service Contracting FAR Part 39: Acquisition of Information Technology FAR Part 41: Acquisition of Utility Services FAR Part 50: Extraordinary Contractual Actions and the Safety Act

  3. FAR Part 1: Federal Acquisition System • Purpose (FAR 1.1) • Codification and publication of uniform policies and procedures for acquisition by all executive agencies • Consists of: • Federal Acquisition Regulation (FAR) • Agency acquisition regulations that implement or supplement the FAR

  4. FAR Part 1: Federal Acquisition System • Statement of Guiding Principles (FAR 1.102) • Vision • Delivery on a timely basis the best value product or service to the customer, while maintaining the public’s trust and fulfilling public policy objectives • Participants in the process should work together as a team and should be empowered to make decisions within their area of responsibility

  5. FAR Part 1: Federal Acquisition System • Statement of Guiding Principles (FAR 1.102) • The Federal Acquisition System will • Satisfy the customer in terms of cost, quality, and timeliness of the delivered product or service by, e.g., • Maximizing the use of commercial products or services • Using contractors who have a track record of successful past performance or who demonstrate a current superior ability to perform, and • Promoting competition • Minimize administrative operating costs • Conduct business with integrity, fairness, and openness, and • Fulfill public policy objectives

  6. FAR Part 1: Federal Acquisition System • Statement of Guiding Principles (FAR 1.102) • The Acquisition Team • Technical, supply and procurement communities, • Customers they serve, and • The contractors who provide the products and services

  7. FAR Part 1: Federal Acquisition System • Agency Acquisition Regulations (FAR 1.3) • Limited to those necessary to implement FAR policy and procedures • Additional policies, procedures, solicitation provisions or contract clauses that supplement the FAR to satisfy the specific needs of the agency • Deviations (FAR 1.4) • Unless precluded by law, executive order, or regulation, deviations may be granted to meet the specific needs of each agency

  8. FAR Part 1: Federal Acquisition System • Deviations (FAR 1.4) • Individual Deviations • Affect only 1 contract action • May be authorized by the head of the agency • The contracting officer must document the justification and the agency approval in the contract file • Class Deviations • Affect more than 1 contract action • If required on a permanent basis a FAR revision should be proposed • Civilian agencies, other than NASA, must furnish a copy of each approved class deviation to the FAR Secretariat

  9. FAR Part 1: Federal Acquisition System • Class Deviations (FAR 1.404) • Civilian Agencies (except NASA) • May be authorized by agency heads or their designees • Delegation of this authority shall not be made below the HCA • Authorization of class deviations by agency officials is subject to the following limitations: • An agency official shall consult with the chairperson of the Civilian Agency Acquisition Council (CAA Council), unless that agency official determines that urgency precludes such consultation • Recommended revisions to the FAR shall be transmitted to the FAR Secretariat by agency heads, or their designees for authorizing class deviations

  10. FAR Part 1: Federal Acquisition System • Class Deviations (FAR 1.404) • DOD • Class deviations shall be controlled, processed, and approved IAW the Defense FAR Supplement • NASA • Class deviations shall be controlled and approved by the Assistant Administrator for Procurement. • Deviations shall be processed IAW agency regulations

  11. FAR Part 1: Federal Acquisition System • Career Development, Contracting Authority and Responsibility (FAR 1.6) • Authority and responsibility to contract for authorized supplies and services are vested in the agency head • The agency head may establish contracting activities and delegate broad authority to manage the agency’s contracting functions to the heads of such contracting activities

  12. FAR Part 1: Federal Acquisition System • Career Development, Contracting Authority and Responsibility (FAR 1.6) • Contracts may be entered into and signed on behalf of the Government only by contracting officers • In some agencies, a relatively small number of high level officials are designated contracting officers solely by virtue of their positions • Contracting officers below the level of a head of a contracting activity shall be selected and appointed

  13. FAR Part 1: Federal Acquisition System • Career Development, Contracting Authority and Responsibility (FAR 1.6) • Contracting Officers have the authority to • Enter into, administer, or terminate contracts • Make related determinations and findings • May only bind the Government to the extent of the authority delegated to them

  14. FAR Part 1: Federal Acquisition System • Career Development, Contracting Authority and Responsibility (FAR 1.6) • Unauthorized commitments • Agreements that are not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government • Ratification • Act of approving an unauthorized commitment • May only be ratified when the conditions of FAR 1.602-3(c)(1-7) are met • Certificate of Appointment, SF 1402 • Must state any limitations on scope of authority to be exercised, other than limitations contained in applicable law or regulation • Micro-purchase authority need not be appointed on the SF 1402, but they must be appointed in writing

  15. FAR Part 1: Federal Acquisition System • Determinations and Findings (D&F) (FAR 1.7) • Definition (FAR 1.701) • A special form of written approval by an authorized official that is required by statute or regulation as a prerequisite to taking certain contract actions • The “determination” is a conclusion or decision supported by the “findings” • The “findings” are statements of fact or rationale essential to support the determination and must cover each requirement of the statute or regulations

  16. FAR Part 1: Federal Acquisition System • Determinations and Findings (D&F) (FAR 1.7) • General (FAR 1.702) and Class D&Fs (FAR 1.703) • A D&F shall ordinarily be for an individual contract action; however, unless otherwise prohibited, a class D&F may be executed for classes of contract actions • A class may consist of contract actions for the same or related supplies or services or other contract actions that require essential identical justification

  17. FAR Part 1: Federal Acquisition System • Determinations and Findings (D&F) (FAR 1.7) • Content (FAR 1.704) • Identification of the agency, contracting activity, and specific identification of the document as a D&F, • Nature and/or description of the action being approved, • Citation of the appropriate statute and/or regulation upon which the D&F is based, • Findings that detail the particular circumstances, facts or reasoning essential to support the determination, • Determination, based on the findings, that the proposed action is justified under the applicable statute or regulation, • An expiration date of the D&F, and • If required, the signature of the official authorized to sign the D&F, and the date signed

  18. FAR Part 1: Federal Acquisition System • Determinations and Findings (D&F) (FAR 1.7) • Expiration (FAR 1.706) • Expiration dates are required for class D&Fs but are optional

  19. FAR Part 1: Federal Acquisition System • FAR Conventions (FAR 1.108) • Words and terms • Definitions in Part 2 apply to the entire regulation unless specifically identified in another part, subpart, section, provision, or clause. • Words and terms defined in a specific part, subpart, section, provision, or clause have that meaning when used in that part, subpart, section, provision, or clause • Undefined words retain their common dictionary meaning

  20. FAR Part 1: Federal Acquisition System • FAR Conventions (FAR 1.108) • Delegation of authority • Each authority is delegable unless specifically stated otherwise • Dollar thresholds • Unless otherwise specified, a specific dollar threshold for the purpose of applicability is the final anticipated dollar value of the action, including the dollar value of all options • If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes a final price to be based on future events, the final anticipated dollar value must be the highest priced alternative to the Government, including the dollar value of all options

  21. FAR Part 1: Federal Acquisition System • FAR Conventions (FAR 1.108) • Application of FAR Changes to solicitations and contracts • FAR changes apply to solicitations issued on or after the effective date of the change, • Contracting Officers may, at their discretion, include the FAR changes in solicitations issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date, and • Contracting Officers may, at their discretion, include the changes in any existing contract with appropriate consideration

  22. FAR Part 1: Federal Acquisition System • FAR Conventions (FAR 1.108) • Citations • When the FAR cites a statute, Executive Order, Offices of Management and Budget circular, Office of Federal Procurement Policy letter, or relevant portion of the Code of Federal Regulations, the citation includes all applicable amendments, unless otherwise stated • Imperative Sentences • When an imperative sentence (containing verbs such as shall, must, or will) directs action, the Contracting Officer is responsible for the action, unless another party is expressly cited

  23. FAR Part 1: Federal Acquisition System • FAR Conventions (FAR 1.108) • Statutory acquisition dollar thresholds – adjustment for inflation (FAR 1.109) • The FAR Council must adjust all statutory acquisition-related dollar thresholds in the FAR for inflation • Adjustments are calculated every 5 years, starting in October 2005, using the Consumer Price Index • Acquisition related dollar thresholds established by the Davis-Bacon Act, the Service Contract Act of 1965, or the United States Trade Representative pursuant to the authority of the Trade Agreements Act of 1979 are not subject to the USC statute regarding escalation

  24. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Common words have special, specific meaning in the FAR • Acquisition • Acquiring by contract with appropriated funds supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether they are already in existence or must be created, developed, demonstrated, and evaluated • Acquisition begins at the point when agency needs are established and includes all activities to be include technical and management functions directly related to the process of fulfilling agency needs by contract

  25. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Advisory and Assistance Services • Services provided under contract by non-governmental sources to support improve organizational policy development, decision-making, management and administration, or R&D activities • All advisory and assistance services are classified in one of the following subdivisions • Management and professional support services, • Studies, analyses, and evaluations • Engineering and technical services

  26. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Best Value • Expected outcome of an acquisition that, in the Government’s estimation, provides the greatest overall benefit in response to the requirement • Bundled contract • A contract where the requirements have been consolidated by bundling

  27. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Bundling • Consolidating two or more requirements for supplies or services, previously provided or performed under separate smaller contracts, into a solicitation for a single contract that is likely to be unsuitable for award to a small business concern due to – • The diversity, size, or specialized nature of the elements of the performance specified, • The aggregate dollar value of the anticipated award, • The geographical dispersion of contract performance site, or • Any combination of the factors above • Separate small contract means a contract that has been performed by one or more small business concerns or that was suitable for award to one or more small business concerns

  28. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Bundling • Does not apply to a contract that will be awarded and performed entirely outside the US • Claim • A written demand or written assertion by one of the contracting parties seeking, as a matter of right, • the payment of money in a sum certain, • the adjustment or interpretation of contract terms, or • other relief arising under or relating to the contract • A written demand or written assertion by the contractor seeking the payment of money exceeding $100,000 is not a claim under the Contract Disputes Act of 1978 until certified as required by the Act

  29. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Claim • A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim • The submission may be converted to a claim, by written notice to the contracting officer as provided in 33.206(a), if it is disputed either as to liability or amount or not acted upon in a reasonable time

  30. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Commercial Item • Any item, other than real property, that is of a type customarily used for nongovernmental purposes and that has been sold, leased, or licensed to the general public or has been offered for sale, lease or license to the general public • Any item that evolved from an item described above through advances in technology or performance and that is not yet available in the commercial marketplace, but will be available in the commercial marketplace in time to satisfy the delivery requirements

  31. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Commercial Item • Any item that would satisfy a criterion expressed above, but for • Modifications of a type customarily available in the commercial marketplace, or • Minor modifications of a type not customarily available in the commercial marketplace made to meet Federal Government requirements. “Minor” modifications do not significantly alter the non-governmental function or essential physical characteristics of an item or component, or change the purpose of a process • Any combination of items meeting the requirements above that are of a type customarily combined and sold in combination to the general public

  32. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Commercial Item • Installation services, maintenance services, repair services, training services if such services are procured for support of an item referred to above • 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 under the 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 outcome to be achieved

  33. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Commercial Item • Any item, combination of items or services referred to herein, notwithstanding the fact that the item, combination of items, or service is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor, or • A non-developmental item, if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple state and local governments

  34. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Contract • A mutually binding legal relationship obligating the seller to furnish supplies or services (including construction) and the buyer to pay for them • Includes all types of commitments that obligate the Government to an expenditure of appropriated funds that, except as otherwise authorized, are in writing • Contracts do not include making grants or cooperative agreements • Contracting Officer (CO) • A person with the authority to enter into, administer, and/or terminate contracts and make related D&Fs • Includes certain authorized representatives of the CO acting within the limits of their authority as delegated by the CO, i.e., ACO and TCO

  35. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Electronic Commerce • Electronic techniques for accomplishing business transactions including electronic mail or messaging, world wide web technology, electronic bulletin boards, purchase cards, electronic funds transfer, and electronic data interchange • Indirect Cost Rate • A percentage or dollar factor that expresses the ration of indirect expense incurred in a given period to direct labor cost, manufacturing cost, or another appropriate base for the same period • Final indirect cost rate means the indirect cost rate established and agreed upon by the Government and the contractor and is not subject to change

  36. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Market Research • Collecting and analyzing information about capabilities within the market to satisfy agency needs • Micro-purchase • An acquisition of supplies or services using simplified acquisition procedures, the aggregate amount of which does not exceed the micro-purchase threshold

  37. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Micro-purchase threshold means $3,000, except • $2,000 for acquisitions of construction subject to the Davis-Bacon Act, • $2,500 for acquisitions of services subject to the Service Contract Act, and • For acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation or to facilitate defense against or recover from nuclear, biological, chemical, or radiological attached, except for construction subject to the Davis-Bacon Act • $15,000 in the case of any contract to be awarded and performed, or purchase to be made, inside the US, and • $25,000 in the case of any contract to be awarded and performed, or purchase to be made, outside the US

  38. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Nondevelopmental item • Any previously developed item of supply used exclusively for governmental purposes by a federal agency, a state or local government, or a foreign government with which the US has a mutual defense cooperation agreement, • Any item described above that requires only minor modification or modifications of a type customarily available in the commercial marketplace in order to meet the requirements of the procuring department or agency, or • Any item of supply being produced that does not meet the requirements above solely because the item is not yet in use

  39. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Offer • A response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract. • Responses to invitations for bids (sealed bidding) are offers called bids or sealed bids, • Responses to requests for proposals (negotiations) are offers called proposals, • Responses to requests for quotations (simplified acquisition) are quotations, not offers

  40. FAR Part 2: Definitions of Words and Terms • Definitions(FAR 2.1) • Performance-based acquisition • An acquisition structured around the results to be achieved as opposed to the manner by which the work is to be performed • Simplified acquisition threshold - $100,00 • For acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation or to facilitate defense against recovery from nuclear, biological, chemical or radiological attached, the term means --- • $250,000 for any contract to be awarded and performed, or purchase to be made, inside the US, and • $1million for any contract to be awarded and performed, or purchase to be made, outside the US

  41. FAR Part 3: Improper Business Practices and Personal Conflicts of Interest • Safeguards (FAR 3.1) • General Rule • Avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships • Generally • Government employees may not solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, or anything of monetary value from anyone who has or is seeking to obtain Government business with the employee’s agency, conducts activities that are regulated by the employee’s agency, or has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties

  42. FAR Part 3: Improper Business Practices and Personal Conflicts of Interest • Safeguards (FAR 3.1) • OFPP as amended, covers bribes, post-employment restrictions, obtaining and disclosing proprietary information, and other prohibited behaviors • Contingent Fees (FAR 3.4) • Any commission, percentage, brokerage, or other fee that is contingent upon the success that a person or concern has in securing a government contract • It does not apply to commercial items or solicitations/contracts under the Simplified Acquisition Threshold (FAR Part 13)

  43. FAR Part 3: Improper Business Practices and Personal Conflicts of Interest • Contingent Fees (FAR 3.4) • Contractors’ arrangements to pay contingent fees for soliciting or obtaining Government contracts have long been considered contrary to public policy because such arrangements may lead to an attempted or actual exercise of improper influence • Exceptions – bona fide employees or bona fide agencies (FAR 3.402)

  44. FAR Part 3: Improper Business Practices and Personal Conflicts of Interest • Other Improper Business Practices (FAR 3.5) • Buying-in, as used in this section, means submitting an offer below anticipated costs, expecting to • Increase the contract amount after award (e.g., through unnecessary or excessively priced change orders), or • Receive follow-on contracts at artificially high prices to recover losses incurred on the buy-in contract

  45. FAR Part 3: Improper Business Practices and Personal Conflicts of Interest • Other Improper Business Practices (FAR 3.5) • Kickback • Any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to any prime contractor, prime contractor employee, subcontractor, or subcontractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contract or in connection with a subcontract relating to a prime contract

  46. FAR Part 3: Improper Business Practices and Personal Conflicts of Interest • Other Improper Business Practices (FAR 3.5) • Anti-Kickback Act of 1986 • Passed to deter subcontractors from making payments, and contractors for accepting payments, for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contract or a subcontract relating to a prime contract • Anti-kickback requirements and restrictions on subcontractor sales to the Government do not apply to commercial items or solicitations/contracts under the Simplified Acquisition Threshold (Part 13)

  47. FAR Part 4: Administrative Matters • Contract Execution (FAR 4.1) • Signatures • The Contracting Officer’s name and official title shall be typed, stamped, or printed on the contract • The Contracting Officer normally signs after the contractor • A contract with an individual shall be signed by that individual • A contract with a corporation shall be signed in the corporate name followed by the word “by” and the signature and title of the person authorized to sign • The Contracting Officer shall ensure the person signing for the corporation has the authority to bind the corporation

  48. FAR Part 4: Administrative Matters • Electronic Commerce (FAR 4.5) • Shall be used whenever practicable or cost-effective • The agency head shall ensure that the agency systems are capable of ensuring authentication and confidentiality commensurate with the risk and magnitude of the hard from loss, misuse, or unauthorized access to or modification of the information • Agencies may accept electronic signatures and records in connection with Government contracts

  49. FAR Part 4: Administrative Matters • Federal Procurement Data System(FAR 4.6.02) • A comprehensive web-based tool for assembling, organizing, and presenting contract placement data for the Federal Government • www.fpds.gov • Federal agencies report data to the Federal Procurement Data Center (FPDC), which collects, processes, and disseminates official statistical data on Federal Contracting

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