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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
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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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
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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.
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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
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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 SingleAward (SA) and Multiple Award
Contracts (MAC)
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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Tidewater Government Industry Council
CONTRACTING OFFICER AUTHORITY(FAR 1.602-1)
• 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.
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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Tidewater Government Industry Council
UNAUTHORIZED COMMITMENTS (FAR 1.602-3)
• …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
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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.
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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.
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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.
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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Tidewater Government Industry Council
PERSONAL SERVICES CONTRACTS (FAR 37.104)
A personal services contract is
characterized by the employeremployee relationship it creates
between the Government and the
contractor’s personnel
Agencies shall not award personal
services contracts unless specifically
authorized by statute.
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TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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.
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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TIDEWATER GOVERNMENT INDUSTRY COUNCIL
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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
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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
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Tidewater Government Industry Council
The Tidewater Government Industry Council
• Meets 0800-0900 the 2nd Thursday of each month
– SAIC, 2929 Sabre Street, Suite 300, Virginia Beach
• Standing committees report
–
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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
• www.tasc-tgic.org
TASC
TIDEWATER ASSOCIATI0N OF SERVICE CONTRACTORS