Jack Friery1 Legal Aspects of Government Contracts-- SDSU Class One

Jack Friery2 Outline  Congress  Federal agencies  Contract authority  GAO  Acquisition methods

Jack Friery3 Congress  Appropriates Appropriation/Authorization Laws Anti-deficiency Act  Passes Acquisition Laws FPASA ASPA CICA

Jack Friery4 Federal Agencies  Promulgate procurement regulations (FAR & agency supplements)  Execute programs  Hear contract claims via Boards of Contract Appeal

Jack Friery5 Contract Authority  Government agents must have actual authority  Commercial organizations may be bound by persons with apparent authority  Ratification

Jack Friery6 GAO  Audits  Investigates  Hears bid protests

Jack Friery7 Acquisition Methods  CICA demands “full & open competition” (with exceptions)  Sealed bidding  Negotiated acquisition  Simplified acquisition  Commercial item acquisition

Jack Friery8 Contractor Qualification  Responsibility  Defined  Who decides? Large businesses Small businesses

Jack Friery9 Legal Aspects of Government Contracts-- SDSU Class Two

Jack Friery10 Outline  Contract types FP Cost  Other contract types  Sealed bidding  Competitive negotiation

Jack Friery11 Type of Specification Drives Contract Type  Design spec  Performance spec  Milspec/federal spec  Industry spec (e.g. ISO 9000)  “Brand name or equal”

Jack Friery12 Contract Types—Fixed-Price  Fixed-price FFP FP/EPA FPI

Jack Friery13 Contract Types—Cost  Cost-type Cost & cost-sharing CPIF CPAF CFPP  CPPC?

Jack Friery14 Another Look at Types  IDIQ T&M LH BOA  Requirements contract  MAS (GSA)  GWACs

Jack Friery15 Sealed Bidding  Conditions for use  Bidding & responsiveness  Award  Contract type  Firm bid rule  Late bids

Jack Friery16 Competitive Negotiation  Conditions for Use  Process  RFP/RFQ  Proposal  Discussions  Evaluation & award (“best value,” past performance, debriefing, etc.)

Jack Friery17 Legal Aspects of Government Contracts-- SDSU Class Three

Jack Friery18 Outline  Protests  Socioeconomic issues  Subcontracting

Jack Friery19 Protests  Defined  Forums  Timeframes  Grounds

Jack Friery20 “Protest” Defined FAR : “A written objection by an interested party…” to a solicitation or a proposed award.

Jack Friery21 Protest Forums  Contracting Officer  GAO  Court of Federal Claims

Jack Friery22 Protest Timeframes  Preaward  Postaward

Jack Friery23 Protest Grounds  Failure to follow announced rules  No reasonable basis  Bias?

Jack Friery24 Socioeconomic Topics  Small Business  SDBs & 8(a) firms  HUBzones  Affirmative action  Labor standards  Buy American  Drug-free workplace/workforce

Jack Friery25 Subcontracts  Privity  CPSR & consent to subcontracts  Subcontract clauses & flowdowns

Jack Friery26 Legal Aspects of Government Contracts-- SDSU Class Four

Jack Friery27 Outline  Costs  Payments/Financing  Intellectual Property

Jack Friery28 Costs  Why & when significant?  Cost principles  Allowability & Allocability & Reasonableness  Particular costs  Cost accounting standards  Truth in Negotiations Act

Jack Friery29 Payment & Financing  Prompt Payment Act  Contract financing Partial payments Progress payments Advance payments

Jack Friery30 Intellectual Property  What is it?  Who owns it?  Two sets of clauses: DOD Non-DOD

Jack Friery31 Legal Aspects of Government Contracts-- SDSU Class Five

Jack Friery32 Outline  Fraud & Ethics  Specifications  Government Property

Jack Friery33 Fraud  Civil false claims Qui tam  Criminal false claims  False statements  Major Fraud Act

Jack Friery34 Ethics  Kickbacks  Bribes & gratuities  Procurement Integrity Act  Byrd Amendment  Suspension & debarment

Jack Friery35 Specifications  “Warranty” of specs  Impossibility/impracticability  Substantial performance

Jack Friery36 Government Property  GPF  Risk of loss

Jack Friery37 Legal Aspects of Government Contracts-- SDSU Class Seven

Jack Friery38 Outline  Changes  Delays  Equitable adjustments

Jack Friery39 Changes  Types of changes allowed  In scope?  Cardinal changes  Duty to proceed  Commercial contract rule

Jack Friery40 “Constructive” Changes  Contract ambiguities  Government failure to cooperate  Bad specs  Nondisclosure  Acceleration

Jack Friery41 Delays  Government Stop-work orders  “Constructive” delays  Force majeure—excusable delays

Jack Friery42 Equitable Adjustments  Defined  “Adjustments” compared  Proving claims  Total cost claims

Jack Friery43 Legal Aspects of Government Contracts-- SDSU Class Eight

Jack Friery44 Outline  Inspection  T for D  T for C

Jack Friery45 Inspection  Clauses: commercial vs. government  Certificate of conformance  Place & costs  Rejection/correction  Acceptance & finality  Warranties

Jack Friery46 T for D  Clauses  Basis & cure notices  Force majeure  Government waiver  Government remedies

Jack Friery47 T for C  Why the right?  Commercial contracts?  Flowdown  Christian doctrine  Procedures

Jack Friery48 Legal Aspects of Government Contracts-- SDSU Class Nine

Jack Friery49 Outline  Simplified contracting  Commercial contracting  Claims & Disputes

Jack Friery50 Simplified Contracting  Dollar thresholds  Soliciting bids Oral solicitations <$25k Simplified evaluation schemes Local businesses At least three sources

Jack Friery51 Commercial Contracting  Definitions: “of a type”  Streamlined solicitation & simplified evaluation  Only FFP, FPEPA, or (some) incentive contracts  Unique T’s & C’s: FAR —or negotiate others

Jack Friery52 Claims & Disputes  Contract Disputes Act of ’78  Disputes Clause  Defined: does not include routine requests for payment  Time for submission  Prime/sub  Certificate & Interest accrual

Jack Friery53 Legal Aspects of Government Contracts-- SDSU Class Ten

Jack Friery54 Outline  Claims & Disputes  Appeals to BCAs  PL

Jack Friery55 Claims & Disputes  Contract Disputes Act of ’78  Disputes Clause  Defined: does not include routine requests for payment  Time for submission  Prime/sub  Certificate & Interest accrual

Jack Friery56 Claims & Disputes (con’t)  Contracting Officer decision Timing Content  BCA appeal  COFC appeal  Contractor duty to proceed

Jack Friery57 Boards of Contract Appeal  COD  Notice of Appeal  Jurisdiction  Complaint & Answer  Discovery—the Rule 4 file  Hearing  ADR?

Jack Friery58 ADR Resources  Electronic Guide to Federal Government ADR—  Air Force ADR Toolkit— olkit/adr/menu.html  American Arbitration Association Website—

Jack Friery59 Extraordinary Relief  PL

Jack Friery60 Conclusion  Wrap-up  Questions