1. CRA Training – Contracts
September 19, 2018

2. Caveat:
This training is focused on the material related to contracts likely on the CRA exam. This is NOT comprehensive Contracts Training.

3. What We’ll Cover: Federal Acquisition Rules and Statutes
Grant v. Cooperative Agreement v. Contract
Types of Federal Contracts
General Process for Federal Contracts
Pathway to the “FAR”
General Construct of the “FAR”
Primary Issues Important to Universities
Sample “FAR” Clauses

4. FEDERAL ACQUISITION RULES AND STATUTES

5. FEDERAL ACQUISITION RULES AND STATUTES

6. Grant
An award of financial assistance, the principal purpose of which is to transfer a thing of value from a federal agency to a recipient to carry out a public purpose of support or stimulation. More flexibility with deliverables, period of performance & reporting. Uniform Guidance applies. Broad research objectives/aims. Little to no involvement from the government on the programmatic side.

7. Cooperative Agreement
An award of financial assistance that is used to enter into the same kind of relationship as a grant; and is distinguished from a grant in that it provides for substantial involvement between the federal agency and the recipient in carrying out the activity contemplated by the award. Uniform Guidance applies.

8. Contract
Legal instrument used to acquire supplies, systems, IT, construction or services for the federal government’s direct benefit or use. Federal Contracts: Paid with appropriated funds & subject to the Federal Acquisition Regulation (FAR). Less flexibility with deliverables, period of performance & reporting.

9. Types of Federal Contracts:
Cost Reimbursable
Fixed Price
Indefinite Delivery Indefinite Quantity (IDIQ)
Time & Materials

10. Contract Risk

11. Cost Reimbursable
Payment for “allowable and allocable costs” actually incurred in the performance of the project
Estimated budget and funding ceiling (“not to exceed”)
OMB Uniform Guidance cost principles apply
FAR Part 31
Contract type risk is on the Buyer.

12. Fixed Price
Funding for a specific dollar amount, regardless of costs actually incurred
Usually includes milestones/tasks
Contract type risk is on the Seller.

13. Indefinite Delivery Indefinite Quantity (IDIQ)
General Terms and Conditions agreed upon, then Task Orders are issued for set quantities of goods or services
Can think of it similar to a “Master Agreement”

14. Time & Materials
Pay for supplies or services based on actual hours worked or material costs
Not typically used with Universities, as time is tracked on a % of Effort rather than per hour basis

15. General Process for Federal Contracts
Pre-Proposal
Govt. identifies a need, conducts market research
PI may talk with technical reps, potential subcontractors, etc.
Solicitation/RFP/RFQ
Govt. invites public to submit proposals (or sole source based exemptions provided by law)
Includes terms and conditions applicable to award
Questions/Clarifications
Proposal
University – LEGALLY BINDING
States exceptions to terms & conditions
Provides technical objectives and cost for the project
Submits in proper format by the solicitation.
Govt. reviews bids/offers/proposals – selection criteria in solicitation & FAR

16. General Process for Federal Contracts (cont’d)
Negotiation/Discussions
Govt. & Prime Recipient agree on applicable terms & conditions
FAR & Other regs balanced with state & University policies/laws
Award Issued
Contract Administration
Reporting – financial/technical
Modifications
Termination & Close Out

17. Contracting Officer v. Contracting Officer’s Technical Representative
Contracting Officer (CO):
Person who issues the award and/or modifications
Can bind the Govt. contractually
Authorized by a “warrant”
Contracting Officer’s Technical Representative (COTR) may be referred to also as COR:
Works with CO to monitor technical aspects of award
Reviews/approves deliverables & invoices
CANNOT bind the Govt. contractually

18. Pathway to the “FAR”
United States Code (USC): Represents the laws of the US
Code of Federal Regulations (CFR): Represents the policies and procedures of the US
CFR is the implementation of the USC
Title 48 of the CRF is the Federal Acquisition Regulation (FAR) System

19. General Construct of the “FAR” (cont’d)
Each “PART” addresses a specific contracting topic
Procurement, Audit, Conflicts of Interest, etc.
Each PART is repeated across all Chapters
Part 45 in Ch. 1 addresses Property Management ( ) & Part 45 in Ch. 9 addresses Property Management specific to DOE ( )

20. General Construct of the “FAR”
FAR is composed of 53 Parts Parts 1 through 6: General procedures, definitions, administrative mandates Parts 7 through 11: Acquisition planning Rest: Various topics such as pricing, competition and sole source rules, contract administration, services, quality assurance, labor laws, protests, clauses etc. All Parts are important, but most significant are: FAR 15 – Contracting by Negotiation FAR 19 – Small Business Programs FAR 27 – Patents, Data and Copyrights FAR 33 – Protests, Disputes, and Appeals FAR 52 – Contract Clauses Most Significant Misconception: Many acquisition professionals think FAR is for contracting only! FAR includes mandates for PM, Logistics, Engineers, Pricers, CORs, Security Officials, Organizational Management, PIs, Laborers, etc.

21. FAR Clause Numbering

22. Purpose of the FAR Reduce costs (administrative & price of services)
Increase quality
Create efficiencies
Incuding establishing uniform acquisition procedures for all federal agencies
Promote competition
Improve government integrity, fairness & transparency re government contracts

23. Primary Issues Important to Universities
Understanding terms of a Prime Award when University is a subawardee/subcontractor or is issuing a subaward/subcontract
Right to Publish
Intellectual Property
Title Property & Equipment
Cost Principles & Allowable Costs
Export Control
IT Security

24. Sample FAR Clauses DFARS 252.204-7000 Disclosure of Information
Prevents the release of any information related to the project without advance approval of the govt.
Prescribing Clause (a) requires its inclusion when contractor will have access to or generate unclassified information that may be sensitive (not just “classified”) and inappropriate for public release
Tension: University mission & fundamental research exception (also impacts Export Controls)

25. Sample FAR Clauses FAR 52.227-3 Patent Indemnity
Requires that the Govt. be indemnified for patent infringement in certain cases
Tension: VA law prevents the University from agreeing to indemnify any entity in a research contract

26. Sample FAR Clauses FAR 52.232-22: Limitation of Funds
Requires Contractor to notify the Govt.
When expenditure reach threshold (usually 75%) AND
If expenditures are more or less than obligated total
Establishes that Contractor has 60 day period to request supplemental funding or an NCE
Tension: Requires careful monitoring of expenses and proactive communication with CO

27. Sample FAR Clauses Fly America Act (Section 47)
Transportation of government contracts must occur on a US flag air carrier
Certain exceptions may apply
Tension: Requires careful monitoring of travel – essentially restriction on use of funds v. individual booking travel at least expensive rate