Skyway Insight© Webinar Training From Contracting Officers

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Kevin M. Jans President, Founder 16 years as a Contracting Officer US Air Force US Special Operations Command (USSOCOM) Awarded and managed over $1 Billion in contracts President of Skyway Save you time, Save you money, and make you money Team of fellow contracting officers who love this stuff Skyway customers have won over $1.4 Billion in contracts Creator and Co-host of the Contracting Officer Podcast <RECORD>

Skyway Insight© Webinar Training From Contracting Officers Topic: Top Ten FAR Clauses Host: Kevin Jans

Agenda All clauses are important “Government” Clauses “Commercial” Clauses Final Thoughts This is live, so ask question and interact throughout (use chat box)

All clauses are important 01/28/2016

Foundation Framing Plumbing Electricity Clauses are electric… Foundation Framing Plumbing Electricity

How did they get here… Someone’s mistake (like a warning label) Government oversight Fear (Hanlon’s razor does NOT apply) ‘cause Congress and President said so

Know and understand your clauses Contract clauses create the foundation of the agreement (Ts & Cs) You need to know and understand each and every clause (ouch!) You need to know how to comply with each and every clause Clauses are written by lawyers and are not easy to interpret (sorry) If you have questions, contact your CO - don’t assume you know! - don’t assume they know! NOTE: Most clauses are punitive (“do this or else”)

Top Ten FAR Clauses 01/28/2016

Provisions vs Clauses

Note: I ‘edited’ some clauses

Clauses and provisions are prescribed “As prescribed in 15.408(l), insert the following clause…”

Clause structure All clauses are in part 52 (they are all start with “52.2”) Then the FAR Part (as in 52.215 means the clause applies to Part 15 Then the actual number 52.215-20 DFARS, SOFARS etc. inserts numbers on the beginning FAR has no prefix. Example is 52.215-20 DFARS’ prefix is 2. Example is 252.215-20 SOFARS prefix is 56. Example is 5652.215-20 NASA prefix is 18. VA prefix is 8 ….

“Government” Clauses 01/28/2016

52.215-20 -- Requirements for Certified Cost or Pricing Data and Data Other Than CCPD “Per FAR 15.408(l), the CO shall insert this provision in solicitations if certified cost or pricing data or data other than certified cost or pricing data will be required.” Offeror may be exempted from certified cost or pricing data IF they submits a written request for exception by submitting the detailed reasoning why not, such as law or regulation or if it’s a commercial item.

52.215-20 -- Requirements for Certified Cost or Pricing Data and Data Other Than CCPD Otherwise, offeror shall submit certified cost or pricing data, and data other than certified cost or pricing data, and supporting attachments in accordance with the instructions contained in Table 15-2 of FAR 15.408, which is incorporated by reference with the same force and effect as though it were inserted here in full text. As soon as practicable after agreement on price, but before contract award (except for UCAs), offeror shall sign the CCPD form in FAR 15.406-2. Alternates apply if 1) using an alternate format, 2) sending copies to the ACO and auditor, 3) submitting via electronic media; and 4) if an exception may apply, but data other than CCPD will be required.

52.217-8, Option to Extend Services Per FAR 17.208, insert in all contracts for services that have options The Government may require you to continued performing within the contract at the rates specified in the contract. These rates can’t changed unless the Secretary of Labor revises the prevailing labor rates (don’t count on it). We can exercise this option provision more than once, but the total extensions can’t be more than 6 months. The CO may exercise the option by written notice to the Contractor within [XXX]. CO can invoke at any time after the end of a performance period (after base period, first option, second option, etc.)

52.217-9, Option to Extend the Contract Term Per FAR 17.208, in contracts with options Government may extend this contract by written notice to the Contractor within [XXX]; provided that the Government tells you at least [XX] days [60 if left blank] before expiration. FYI: This early notice doesn’t mean we have to follow through and exercise the option. The total duration of this contract, including the exercise of any options under this clause, shall not exceed [XXX] (months)(years).

52.222-41, Service Contract Labor Standards Per FAR 22.1006, insert the following clause SCLS applies: Service contractors and subs must pay their employees at least the prevailing locality wage rates (and benefits) contained in the last contractor's CBA for contracts over $2,500 (yes, $2,500). The DoL issues wage determinations are incorporated into the contract. For contracts under $2,500, contractors must pay the federal minimum wage. For prime contracts over $100,000, contractors and subs must also pay laborers and mechanics, including guards, at least 1.5x pay when they work over 40 hours per week.

52.232-1 -- Payments Per FAR 32.111, insert in solicitations and contracts when a fixed-price supply contract, a fixed-price service contract, or a contract for nonregulated communication services is contemplated: The Government shall pay the prices in this contract when a proper invoices is submitted for supplies or services delivered (and accepted), minus any deductions detailed in this contract. The government can make partial payments for partial deliveries if a) the contractor asks b) it makes sense, and c) the amount due is at least $1,000 or half the contract price.

52.232-3 -- Payments Under Personal Services Contracts The Government shall pay the Contractor for the services performed as agreed in the contract upon the Contractor’s submitting proper and timely invoices or time statements to the person(s) designated. The Government shall also pay the Contractor -- A per diem rate (instead of subsistence) for each day the Contractor is traveling on Travel Orders in accordance with Federal Travel Regulations (41 CFR 101-7) Any other transportation expenses if provided for in the Schedule.

“Commercial” Clauses 01/28/2016

52.212-1 -- Instructions to Offerors Per FAR 12.301(b), insert in all commercial RFPs and contract 52.212-1 contains all the instruction to the offerors for a commercial contract. Functions like Section L in non-commercial contracts. Includes details on NAICS, proposal submission, due date and acceptance period, product samples, late submissions, contract award without discussions, multiple awards intended, SAM requirement, and debriefing details, and so on.

52.212-2 -- Evaluation for Commercial Items Per 12.301(c), this clause is used when evaluation factors are anticipated. 52.212-2 contains all the evaluation factors and criteria that will be used in awarding the commercial contract. Functions like Section M in non-commercial contracts. Notice that written notice of the contract in response to a proposal is a binding contract without further action by either party. NOTE: “Before the offer’s specified expiration time, the Government may accept an offer (or part of an offer), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award.”

52.212-4 -- Contract Terms and Conditions -- Commercial Items Per FAR 12.301, insert in all commercial contracts. This clause has all the terms and conditions applicable to the specific contract including: Inspection/Acceptance Termination for Government’s Convenience Assignment Termination for Cause Changes Title Disputes Warranty Definitions Limitation of Liability Excusable Delays Other Compliances Invoice Compliance with Laws Unique to Gov’t Contracts Patent Indemnity Order of Precedence Payment Unauthorized Obligations Risk of Loss Incorporation by Reference Taxes

52.212-5 Contract Terms And Conditions Required To Implement Statutes Or Executive Orders--Commercial Items Per FAR 12.301, insert in all commercial contracts (DEVIATION 2013-O0019) (JUN 2016) Contains the standard terms and conditions for commercial items Allows the CO to add additional applicable clauses (selected from a list) as needed as long as they do not go against normal commercial contract law (Options, Service Contract Labor Standards, etc.)

Final notes Know your clauses Understand your clauses Never assume you know what a clause means; read and reference it. if it’s ambiguous ask the CO Create a clause matrix (What overlaps? When is due when? And so on)

Need more help? Kevin Jans - kevin@skywayacquisition.com Shelley Hall - shelley.hall@skywayacquisition.com See you at the next webinar: Contract Clauses that Can Get You Into Trouble 11/5/2015