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Contracting Ground Rules. National Contract Management Association – Norfolk Chapter. STATUTORY & LEGAL CONSIDERATIONS. Standards of Conduct Contracting Authority Competition Requirements Inherently Governmental Functions Organizational Conflicts of Interest Non-Personal Services

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contracting ground rules

Contracting Ground Rules

National Contract Management Association – Norfolk Chapter

statutory legal considerations
STATUTORY & LEGAL CONSIDERATIONS
  • Standards of Conduct
  • Contracting Authority
  • Competition Requirements
  • Inherently Governmental Functions
  • Organizational Conflicts of Interest
  • Non-Personal Services
  • Contractual Provisions
standards of conduct
STANDARDS OF CONDUCT
  • Government business shall be conducted in a manner above reproach and…with complete impartiality and with preferential treatment for none.
  • Transactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct.
contracting officer authority
CONTRACTING OFFICER AUTHORITY
  • Contracting Officers have authority to enter into, administer, or terminate contracts…
  • No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures…have been met.
unauthorized commitments
UNAUTHORIZED COMMITMENTS
  • …an agreement that isn’t binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government.
  • Ratification of UAC’s
  • Repercussions
  • Changes to Existing Contracts
competition requirements
COMPETITION REQUIREMENTS
  • …with certain limited exceptions, contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts.
inherently governmental functions
INHERENTLY GOVERNMENTAL FUNCTIONS
  • Contracts shall not be used for the performance of inherently governmental functions
  • The direction and control of federal employees is an example of an inherently governmental function that should not be performed by contractors.
igf s in federal procurement
IGF’S IN FEDERAL PROCUREMENT
  • (i) Determining what supplies or services are to be acquired by the Government
  • (ii) Participating as a voting member on any source selection boards
  • (iii) Approving any contractual documents, to include documents defining requirements, incentive plans, and evaluation criteria.
igf s in procurement cont
IGF’S IN PROCUREMENT (CONT)
  • (iv) Awarding contracts
  • (v) Administering contracts (including ordering changes in contract performance… and accepting or rejecting contractor products or services)
  • (vi) Participating as a voting member on performance evaluation boards
examples of functions generally not considered igf s
EXAMPLES OF FUNCTIONS GENERALLY NOT CONSIDERED IGF’S
  • Services that involve or relate to the evaluation of another contractor’s performance
  • Services in support of acquisition planning
  • Contractors providing assistance in contract management
  • Contractor’s providing technical evaluation of contract proposals
examples of non igf s cont
EXAMPLES OF NON-IGF’S (cont)
  • Contractors providing assistance in the development of statements of work
  • Contractors working in any situation that permits or might permit them to gain access to confidential business information…
  • Contractors participating as technicaladvisors to a source selection board or participating as voting or non-voting members of a source evaluation board.
organizational conflicts of interest
ORGANIZATIONAL CONFLICTS OF INTEREST
  • Conflicting roles that might bias a contractor’s judgment
  • Unfair competitive advantage involving proprietary information or source selection information
  • Government responsibility to avoid, mitigate, or neutralize OCI’s
oci examples
OCI EXAMPLES
  • Preparing specifications or work statements
    • Planned for use in competitive acquisition
    • Preparing contractor cannot compete as a prime or subcontractor for a reasonable period of time
oci examples cont
OCI EXAMPLES (cont.)
  • Providing proposal evaluation services
    • Contractor cannot evaluate its own offer
    • Contractor may gain access to other contractors’ proprietary data in the course of evaluation
    • Contractor must agree to protect and not disclose that information
personal services contracts
PERSONAL SERVICES CONTRACTS

A personal services contract is characterized by the employer-employee relationship it creates between the Government and the contractor’s personnel

Agencies shall not award personal services contracts unless specifically authorized by statute.

employer employee relationship
EMPLOYER-EMPLOYEE RELATIONSHIP
  • Occurs as a result of the contract’s terms, or
  • In the manner of its administration during performance, contractor personnel are subject to the relatively continuous supervision and control of a Government officer or employee.
descriptive elements for assessing personal services
DESCRIPTIVE ELEMENTS FOR ASSESSING PERSONAL SERVICES
  • (1) Performance on-site
  • (2) Principal tools and equipment furnished by the Government
  • (3) Services are applied directly to the internal effort of…an organizational subpart in furtherance of assigned function or mission
descriptive elements cont
DESCRIPTIVE ELEMENTS (cont)
  • (4) Comparable services, meeting similar needs, are performed…using civil service personnel
  • (5) Need for the type of service…can reasonably be expected to last beyond 1 year
  • (6) Direct or indirect Government direction or supervision of contractor employees
contract and task order provisions
CONTRACT AND TASK ORDER PROVISIONS
  • Set forth contractor’s support role (SoW)
  • With appropriate SoW and contract administration, ensure work performed stays within contract scope and prevent contractor performance of inherently governmental functions and personal services
  • Incorporate appropriate Organizational Conflict of Interest provisions when necessary
summary top ten
SUMMARY TOP TEN
  • All contractors deserve a level playing field to compete for the Government’s business.
  • Be careful how, where, and with whom you speak about potential contract requirements.
  • Don’t make any deals you’re not prepared to pay for with your own money or your job.
  • Contractors should not be put in a position, or be permitted, to make Govt decisions.
  • Government employees should not ever supervise contractors, and vice versa.
summary top ten1
SUMMARY TOP TEN
  • The SoW defines contractor performance.
  • A good SoW safeguards contractors from performing personal services or inherently Governmental functions.
  • Contractors should only perform, and be expected to perform, efforts covered by their contract or task order SoW.
  • Both Government and Contractor employees need to recognize potential restrictions on future opportunities and the need to safeguard procurement sensitive and company confidential information.
  • Know when to ask for help from Contracting Professionals, Contracting Officers, and Counsel.