TIDEWATER GOVERNMENT INDUSTRY COUNCIL Contracting Ground Rules, or The 7 Habits of Highly Effective Contracting Customers in Both Government and Industry Tidewater Government Industry Council Training Program Joint Warfighting Conference 2013

TIDEWATER GOVERNMENT INDUSTRY COUNCIL Statutory and Legal Considerations Standards of Conduct/Procurement Integrity Contracting Authority Competition Requirements Inherently Governmental Functions Organizational Conflicts of Interest Non-Personal Services Performance Based Work Statements

TIDEWATER GOVERNMENT INDUSTRY COUNCIL STANDARDS OF CONDUCT(FAR 3.101) 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.

TIDEWATER GOVERNMENT INDUSTRY COUNCIL Procurement Integrity Act (FAR 3.104) Law that embodies the concepts of: –Authority/Contracting Officer Authority –Fairness/Fair Opportunity to Compete –Competition/Full and Open Addresses both: –Procurement-sensitive and source selection information Government information –Proprietary or business-sensitive data Contractor information

TIDEWATER GOVERNMENT INDUSTRY COUNCIL Procurement Integrity Act Prohibits seeking, releasing, or receiving such information And imposes civil and criminal penalties for violations –Up to $50,000 and 5 years for Government employees –Up to $500,000 and 5 years for contractor personnel –Suspension/debarment of company

TIDEWATER GOVERNMENT INDUSTRY COUNCIL When does a procurement begin? To some contractors, when the Contracting Officer issues a synopsis for a forthcoming Request for Proposals (RFP) But in actuality, when the Government identifies a need or requirement –When does that occur? –How early can that occur? –Certainly by the time the Government puts pen to paper to begin market research and building the requirements package

TIDEWATER GOVERNMENT INDUSTRY COUNCIL What’s included? At minimum, Government information regarding: –Scope of work, statement of work, estimated requirements, budget information, independent Government cost estimates, acquisition plan or strategy, source selection criteria, source selection plan, identity of technical evaluation panel members For contractors: –Technical proposal content –Cost proposals including detailed cost information

TIDEWATER GOVERNMENT INDUSTRY COUNCIL Overarching Contracts and Task Orders Procurement Integrity tenets apply to the requirements and source selection processes for both: –Establishment of the overarching IDIQ contract(s) –Individual task orders under Single- Award (SA) and Multiple Award Contracts (MAC)

TIDEWATER GOVERNMENT INDUSTRY COUNCIL Procurement Integrity----A Profound Thought “Hold onto your integrity, ladies and gentlemen. It’s the one thing you really need to have. If you don’t have it, that’s why you need it.” Lawrence Peter Berra

TIDEWATER GOVERNMENT INDUSTRY COUNCIL CONTRACTING OFFICER AUTHORITY(FAR ) 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.

TIDEWATER GOVERNMENT INDUSTRY COUNCIL UNAUTHORIZED COMMITMENTS (FAR ) …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

TIDEWATER GOVERNMENT INDUSTRY COUNCIL COMPETITION REQUIREMENTS (FAR 6.101) …with certain limited exceptions, contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts.

TIDEWATER GOVERNMENT INDUSTRY COUNCIL Examples of Inherently Governmental Functions (FAR 7.503) Direct conduct of criminal investigations Command of military forces Determination of foreign policy and conduct of foreign relations Determination of agency policy Determination of budget policy, guidance, and strategy Drafting of Congressional testimony

TIDEWATER GOVERNMENT INDUSTRY COUNCIL INHERENTLY GOVERNMENTAL FUNCTIONS (FAR 7.503) 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.

TIDEWATER GOVERNMENT INDUSTRY COUNCIL 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.

TIDEWATER GOVERNMENT INDUSTRY COUNCIL 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

TIDEWATER GOVERNMENT INDUSTRY COUNCIL 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 support to technical evaluation of contract proposals

TIDEWATER GOVERNMENT INDUSTRY COUNCIL 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 technical advisors to a source selection board

TIDEWATER GOVERNMENT INDUSTRY COUNCIL ORGANIZATIONAL CONFLICTS OF INTEREST (FAR 9.500) Conflicting roles that might bias a contractor’s judgment Unfair competitive advantage involving proprietary information or source selection information Government and contractor responsibility to avoid, mitigate, or neutralize OCI’s

TIDEWATER GOVERNMENT INDUSTRY COUNCIL 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

TIDEWATER GOVERNMENT INDUSTRY COUNCIL 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

TIDEWATER GOVERNMENT INDUSTRY COUNCIL PERSONAL SERVICES CONTRACTS (FAR ) 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.

TIDEWATER GOVERNMENT INDUSTRY COUNCIL 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.

TIDEWATER GOVERNMENT INDUSTRY COUNCIL 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

TIDEWATER GOVERNMENT INDUSTRY COUNCIL 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

TIDEWATER GOVERNMENT INDUSTRY COUNCIL CONTRACT AND TASK ORDER PROVISIONS Set forth contractor’s support role (PBWS) With appropriate PBWS 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

TIDEWATER GOVERNMENT INDUSTRY COUNCIL The Tidewater Government Industry Council Meets the 2 nd Thursday of each month –SAIC, 2929 Sabre Street, Suite 300, Virginia Beach Standing committees report –Small Business Affairs –Legislative Affairs –Acquisition Workforce –Contracting Approaches and Techniques –Social Networking/Networking TGIC Exchange Briefing Program –30 July 2013; DASN AP, USD AT&L DPAP, PSC