Master Warrant Study Guide Slide Deck PDF

COMPETITION IN CONTRACTING ACT V12 Commercial Items  Definition Any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than govern...

COMPETITION IN CONTRACTING ACT V12 Commercial Items  Definition Any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and-- (i) Has been sold, leased, or licensed to the general public; or, (ii) Has been offered for sale, lease, or license to the general public; Any item that evolved from an item described in paragraph (1) of this definition through advances in technology or performance and that is not yet available in the commercial marketplace, but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Government solicitation; Note: --“of a type” means that the item does not have to be identical to an item in the commercial marketplace -- “evolved” means a product update, model change, product improvement -- (i) and (ii) above refer to “of a type” and not “any item” The term “of a type” has recently generated much discussion regarding commercial item assertions  Modifications to Commercial Items Modifications of a type customarily available in the commercial marketplace Minor modifications of a type not customarily available in the commercial marketplace made to meet Federal Government requirements. Minor modifications means modifications that do not significantly alter the nongovernmental function or essential physical characteristics of an item or component, or change the purpose of a process. Factors to be considered in determining whether a modification is minor include the value and size of the modification and the comparative value and size of the final product. Dollar values and percentages may be used as guideposts, but are not conclusive evidence that a modification is minor  Government Policy on Acquiring Commercial Items Preference over developmental items Promotes competition Promotes affordability/efficiency Assists small businesses  Market Research 1st step when considering HOW to fulfill Govt’s requirements Provides insight into commercial marketplace Used to determine availability of a commercial item Aids in acquisition strategy formulation & requirements definition Used to obtain sales history May be used to determine price reasonableness NOTE: Supplies and services provided by non-traditional contractors may be treated as commercial items – No determination of commerciality is required – Decision to apply commercial procedures does not mean the item is commercial  Determining Price Reasonableness Rule 1– PCO is required to negotiate a fair and reasonable price No Certified Cost or Pricing Data– Commercial items are an exception—prices are a result of supply and demand in the commercial marketplace (BUT SEE NOTE BELOW) Market research! – Vendor catalogs/Internet searches/Prior buys WHEN MARKET RESEARCH IS INSUFFICIENT TO DETERMINE A FAIR AND REASONABLE PRICE: – Consider info submitted by offeror of recent purchase prices paid by Gov’t or commercial customers for same/similar items – Obtain Data Other than Certified Cost or Pricing Data from the contractor—document need in the file – Perform price analysis  Determining Price Reasonableness Catalog price is not determinant of price to pay – Factors that affect the price of a commercial item Competition Quantity buys Schedule requirements Vendor discounts Warranties Note: Certified cost or pricing data is obtained for “minor modifications” (ONLY THE MINOR MOD PORTION) when the total price of all such modifications under a particular contract action exceeds the greater of the threshold for obtaining certified cost and pricing data OR 5 percent of the total price of the contract at the time of contract award. Note: If a major weapon system is acquired as a commercial item, the PCO may NOT require any information for an item that was developed exclusively at private expense without SCO/SCCO approval  Contractual Aspects Type contract – FFP or FFP w/Economic Price Revision – Time and Material and Labor Hour Services in support of a commercial item Services are considered commercial services FAR Part 12 used in conjunction with Parts 13 (Simplified Acquisition Procedures), 14 (Sealed Bidding) , or 15 (Contracting By Negotiation) Simplified Acquisition Procedures may be used if value is SAT ($150K) to $7M (FAR 13.5) – Use to the maximum intent possible Streamlined solicitation procedures may be used (e.g. combined synopsis/solicitation) Streamlined evaluation procedures may be used (e.g technical capability, price, past performance)– use of sub-factors not required Clauses used primarily to implement law or executive orders  Standard Commercial Practices Inspection and acceptance upon delivery Tech data and computer software– only what is normally provided to the general public Financing – Advance payment– before any work is performed (not-to-exceed 15% of total price) – Interim Payment- after some work has been done – Delivery payment- accepted supplies/partial deliveries Terminations (FAR Part 49 not used) – Convenience – Cause Warranties – Implied “Merchantability”- fair/medium quality, fit for normal use “Fitness for a particular purpose”- fit for Governmental purposes – Expressed (e.g. extended warranty) USE MARKET RESEARCH TO DETERMINE STANDARD COMMERCIAL PRACTICES  Commercial Item Determination For acquisitions >$1M the PCO is required to make a written determination that the acquisition meets the commercial item definition in FAR Part 2. Exception: items for use in defense against or recovery from nuc/bio/chem/ radiological attack Obtain written approval at 1 level above PCO when determination relies on: – “Has been offered for sale, lease or license..” – Modifications to a commercial item Prior commercial item determination – PCO may rely on a prior determination of commerciality – If reliance is not placed on a prior determination HCA approval is required for acquisitions >$1M  Additional Guidance DPAP Memo 2 Sept 16 – Use of DCMA Commercial Item Centers of Excellence – Presumption of prior commercial item determination – Determination required to convert from commercial to non-commercial  Resources Defense Procurement and Acquisition Policy (DPAP) – Defense Pricing – http://www.acq.osd.mil/dpap/ccap/cc/jcchb/HTML/Topical/com_contracts.html DoD Commercial Item Handbook DoD Contract Pricing Reference Guide DoD Solicitation Preparation Guide training Training – Commercial Item Pricing (DAU CLC 131) DPAP Memo (2 Sept 16)  Scenario In response to a sole source solicitation for 150 portable SHF terminals, Bridges and Daughters, Inc. (BDI) has submitted a proposal in which it has asserted that its Model TX-4 Omni-Sat is a commercial item. BDI’s proposal contains unit pricing information of $85K/unit (for a total price of $12.750M) however, no additional information was provided either to support its commercial item assertion or its proposed price. In conducting market research you have been unable to validate BDI’s commercial item assertion and to independently determine price reasonableness from information within the Government or from sources other than BDI. QUESTIONS 1. Discuss how you would determine whether the TX-4 Omni-Sat is a commercial item -- IF you determine that the TX-4 is a commercial item discuss any documentation required of the PCO to support his/her determination 2. IF you determine that the TX-4 Omni-Sat Discuss is a commercial item discuss the methodology and the supporting information you would use to determine the proposed price of $85K/unit to be fair and reasonable. FOLLOW-UP QUESTIONS The TX-4 will be installed in a fleet of Air Force cargo aircraft. In order to meet the Government’s shock and vibration requirements the TX-4 will have to be modified by BDI by means of a retrofit of its harness assembly at a total price of $800K. 1. Assuming that the TX-4 is a commercial item discuss what factors you would consider in determining whether or not the TX-4 retains its commerciality when modified? 2. Discuss the type of cost information and the proposal analysis techniques you would use to determine a fair and reasonable price for the modification of the TX-4 (HINT $800K/$12.750M=approx 6.3%) Changes Clause/Scope Policy V12 Undefinitized Contract Actions DO NOT NEGOTIATE OVER THE NTE  Definition—Use--Approval “Undefinitized contract action” means any contract action for which the price (or contract terms) are not agreed upon before performance is begun under the action “Definitization” means reaching agreement upon a all elements of the contract action (notably price) Least preferred method of fulfilling contractual requirements – Little incentive on contractor to control costs prior to definitization – Little incentive on the contractor to definitize UCA Use permitted when in best interests of the Government, adequate time is not available to award a definitized contract, AND failure to award a UCA will result in adverse impact to the Government Approval Authority: SCCO (regardless of dollar value) WITHIN AFMC Lack of planning or pressure to obligate funds are invalid reasons to issue a UCA DO NOT NEGOTIATE OVER THE NTE  UCA Processing Determine whether the facts support the issuance of a UCA (e.g. what is the emergency?, is there written justification supporting the emergency (e.g. an Urgent Operational Need (UON) statement)? what adverse impact will result if a UCA is not issued? Assess “scope of the contract” – Accomplish in-scope determination or obtain J&A (See Note below) (-2 J&A may be approved after-the-fact if awarding a “letter contract” or an “out-of-scope” requirement BUT NOTE MAX 12 MONTH PoP CONSTRAINT) Formulate requirements package and provide to contractor – Include Spec/SOW/Tech requirements, required PoP, T’s & C’s, GFE list, and DEFINITIZATION SCHEDULE Request NTE and “spend plan” from Contractor Receive and evaluate NTE and “spend plan” – NTE should be supported by rationale for proposed costs NOT A FULL PROPOSAL (i.e. no certified cost or pricing data) Reach agreement with contractor on requirements, NTE, and definitization schedule Obtain UCA funding Obtain authorization to issue UCA from UCA approval authority (SCCO) – Follow the UCA template in the AFFARS Issue UCA to include contractor’s signature on document NOTE: An undefinitized action made to an existing contract is referred to as a “UCA” An undefinitized action resulting in a new contract is referred to as a “letter contract” DO NOT NEGOTIATE OVER THE NTE  UCA Approval Process TEMPLATE may be found in AFFARS PART 5317.74 Section A-General Information Contract Number: Contracting Officer: Program Manager: Contractor: Not-To-Exceed Amount: THIS GETS CITED IN THE UCA Section B– DESCRIPTION OF ACQUISITION PART 3 – SUPPORTING RATIONALE Chronology of Significant Events: Explain why issuance of a UCA is recommended Describe efforts to avoid use of a UCA both now and in the future: Reasonableness/Realisim of NTE PART 4 - FUNDING Not-To-Exceed (NTE) THIS GETS CITED IN THE UCA OBLIGATED AMT THIS GETS CITED IN THE UCA  UCA Approval Process PART 5 – MOST RECENT ACQUISITION CLIN Contract Number Contractor Unit Price Date PART 6 – DEFINITIZATION SCHEDULE THIS GETS CITED IN THE UCA (INSERT DATES) UCA ISSUANCE RECEIPT OF PROPOSAL RECEIPT OF AUDIT ISSUANCE OF DEFINITIZING DOCUMENT NEGOTIATIONS COMPLETE TOTAL DAYS FOR DEFINITIZATION Estimated percentage of work that will be completed before definitization: % If more than 50% or if definitization is greater than standard (180 days), state reason PART 7 – COORDINATIONS AND APPROVAL (PK IS APPROVAL AUTHORITY FOR ALL UCA’s) (PCO, DIV CHIEF, OSF, JAG, PEO, PZC, PK)  Contents of a UCA CLIN Structure with CLINS reflecting a not-to-exceed price Period of Performance Firm technical requirements Terms and Conditions (to max extent possible) Definitization Schedule (NTE 180 days) Funding – Obligate no more than 50% of NTE at the time the UCA is issued – Upon receipt of a qualifying proposal you may increase the obligated amount to 75% NOTE: DON”T OBLIGATE IN EXCESS OF THE CONTRACTOR’S SPEND PLAN UCA clauses – “Limitation of Government Liability” – “Contract Definitization” NOTE: IF THE UCA NEEDS TO BE MODIFIED BEFORE DEFINITIZATION APPROVAL BY THE UCA APPROVING AUTHORITY IS REQUIRED DO NOT NEGOTIATE OVER THE NTE  UCA Definitization Hold proposal kick-off & proposal walkthrough meetings with contractor if UCA is >$1M Definitize within 180 days – Late definitization (or any time the UCA definitization schedule falls more than 14 days behind schedule) requires reporting to SAF/AQC Certified Cost and Pricing Data required if “proposal exceeds $750K and no exception applies” Negotiated price may not exceed NTE value – PCO required to determine fair and reasonable price Assess contractor’s “actuals” (incurred costs) for WGL “cost risk” Business and Contract clearance approvals occur prior to UCA definitization DO NOT NEGOTIATE OVER THE NTE  UCA Clauses Limitation of Government Liability (Apr 1984) 52.216-24 (a) In performing this contract, the Contractor is not authorized to make expenditures or incur obligations exceeding (AMOUNT OF OBLIGATION) dollars. (b) The maximum amount for which the Government shall be liable if this contract is terminated is (NTE AMOUNT) dollars. Contract Definitization (Oct 2010) 52.216-25 (a) A ______________ [insert specific type of contract] definitive contract is contemplated. The Contractor agrees to begin promptly negotiating with the Contracting Officer the terms of a definitive contract that will include (1) all clauses required by the Federal Acquisition Regulation (FAR) on the date of execution of the letter contract, (2) all clauses required by law on the date of execution of the definitive contract, and (3) any other mutually agreeable clauses, terms, and conditions. The Contractor agrees to submit a _________ [insert specific type of proposal; (e.g., fixed-price or cost-and-fee)] proposal, including data other than certified cost or pricing data, and certified cost or pricing data, in accordance with FAR 15.408, Table 15-2, supporting its proposal. (b) The schedule for definitizing this contract is [insert target date for definitization of the contract and dates for submission of proposal, beginning of negotiations, and, if appropriate, submission of make-or-buy and subcontracting plans and certified cost or pricing data]: _________________________________________ (c) If agreement on a definitive contract to supersede this letter contract is not reached by the target date in paragraph (b) of this section, or within any extension of it granted by the Contracting Officer, the Contracting Officer may, with the approval of the head of the contracting activity (i.e. SOCO), determine a reasonable price or fee in accordance with Subpart 15.4 and Part 31 of the FAR, subject to Contractor appeal as provided in the Disputes clause. In any event, the Contractor shall proceed with completion of the contract, subject only to the Limitation of Government Liability clause.  UCA vs UCO An Undefinitized Contract Action (UCA) is used when the contract action will result in a new contract award (i.e. Letter Contract) or an “out of scope” (not subject to the “Changes“ clause) contract modification supported by a J&A An Unpriced Change Order (UCO) is used when the contract action will be issued pursuant to the “Changes” clause UCA’s are addressed in DFARS/AFFARS/AFMC MP & IG Part 17 UCO’s are addressed in DFARS/AFFARS Part 243 (applies >$5M) Approval Authority: UCA’s: SCCO UCO’s: PCO Both UCA’s and UCO’s require an NTE, a definitization schedule; and are subject to 50% and 75% funding limitations  Scenario Your Program Office has just received an Urgent Operational Need (UON) letter from U.S. Pacific Command to provide a satellite imaging system to US forces in Korea within 245 days. Your current development contract has an available test asset that, if retrofitted and re-tested, could fulfill the requirements of the UON. The contractor will need 180 days to perform the retrofit and re-test effort and another 20 days to ship and install the system in Korea. You estimate that it would take a minimum of 135 days to award the contract effort using conventional contracting processes. (Hint: The system is needed in 245 days vs 135 days to award the action if you wait for a proposal, tech eval, negotiations, etc + 180 days to retrofit + 20 days to ship/install = 335 days) Question: - Discuss the contracting process (including any required approvals) you would use to award this effort using the most expeditious means possible. - When definitizing the UCA why is it important to analyze the “actual costs” incurred by the contractor? Technical Data and Computer Software  Definitions Technical data--means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term DOES NOT include computer software or data incidental to contract administration, such as financial and/or management information Computer software means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. It DOES NOT include computer databases or computer software documentation.  Policy On Acquiring Tech Data and Computer Software Commercial tech data – Acquire only the technical data customarily provided to the public with a commercial item or process, except technical data that Are form fit and function data; Are required for repair and maintenance of commercial items or processes, or for the proper installation, operating, or handling of a commercial item,... which such data are not customarily provided to commercial users or the data commercially provided is insufficient for military purposes; Describe the modifications made at Government expense to a commercial item or process in order to meet the requirements of a Government solicitation Non-Commercial Technical Data – Acquire only the technical data, and the rights in that data, necessary to satisfy agency needs Commercial Software – Preference is to acquire commercial item & computer software when they meet Gov’ts minimum needs – The vendor is not required to furnish technical information related to commercial computer software or commercial computer software documentation that is not customarily provided to the public Non-Commercial Computer Software – The Government obtains rights in computer software or computer software documentation under an irrevocable license – The scope of a computer software license is generally determined by the source of funds used to develop the software.  Rights in Technical Data Unlimited Rights – What Gov’t gets: The right to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so – When Gov’t is entitled to the rights: If the data pertains to an item or process developed exclusively with Government funding Limited Rights – What Gov’t gets: the right to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government... except that the Government may reproduce, release, or disclose to another if necessary for emergency repair and overhaul – When Gov’t is entitled to the rights : if the data pertains to items, components, or processes developed exclusively at private expense Government acquires the right to use the data (i.e. a license)– not ownership of the data  Rights in Technical Data (Cont’d) Government Purpose Rights – What Gov’t gets: the right to use, modify, reproduce, release, perform, display, or disclose technical data within the Government without restriction or release or disclose technical data outside the Government and authorize others to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that data for Government purposes – When Gov’t is entitled to the rights: if the data pertain to items, components, or processes developed with mixed funding, e.g., both Government and private funding – While the data is subject to Gov’t Purpose Rights: The Government may not use, or authorize others to use, technical data marked with GPR legends for commercial purposes. The Government shall not release or disclose without executing non-disclosure agreements with recipients – After the passage of a negotiated period of time (the default set in the DFARS is five years but this is negotiable), the Government’s rights become unlimited  Marking of Data & PCO’s Right to Challenge The contractor must mark each piece of data on which it asserts restrictions with a marking or legend indicating the level of rights it believes the Government should have in the data Unmarked Data (Presumption that data has been delivered with Unlimited Rights) – Contractor may request that data be marked (request must be made within 6 mos of delivery)– Gov’t may not release data while request is pending Note: If the request is made after the data has already been released, nothing can be done to correct the omission if the recipient had no restrictions on usage of the data Improperly Marked Data – The Government must notify the contractor of any non-conformity in marking of data. If the contractor fails to correct this non-conformity within 60 days, the Government may remove or ignore the marking PCO Challenge – If the Contracting Officer disagrees with an assertion by the contractor as to restrictions on the use of data he/she sends a written notice to the contractor providing the basis for challenging the restriction and notifies the contractor that it has 60 days to respond – The challenge may occur as late as three years after contract completion – The contractor’s response to the challenge is considered a claim under the Contract Disputes Act and must be certified regardless of the amount at issue – Upon receipt of the contractor’s response the PCO issues a CONTRACTING OFFICER’S FINAL DECISION – The Gov’t will abide by the restrictions pending appeal or suit by the Contractor A CONTRACTOR’S ASSERTION OF THE RESTRICTION ON THE GOVERNMENT’S USE OF TECH DATA DOES NOT DETERMINE THE GOVERNMENT’S RIGHTS  Rights in Computer Software Unlimited Rights – What Government gets : the right to use, modify, reproduce, perform, display, release, or disclose” the computer software or computer software documentation to anyone and for any purpose – When Gov’t is entitled to the rights: computer software developed exclusively with Government funding Restricted Rights – What Government gets : the right to the government may only use the computer program with one computer at one time, unless otherwise permitted; nor transfer a progrram without permission and only if the transferor destroys its copy – When Gov’t is entitled to the rights: if the computer software was developed exclusively at private expense Government Purpose Rights – What Government gets : the right to “use, modify, reproduce, release, perform, display, or disclose” computer software or computer software documentation within the Government or may release or disclose computer software or computer software documentation to someone outside the Government so long as the recipient uses the software or documentation for Government purposes – When Gov’t is entitled to the rights: computer software developed with both Government and private funding – After the passage of a negotiated period of time (the default set in the DFARS is five years but this is negotiable), the Government’s rights become unlimited  Scenario You are in receipt of technical data that have “restrictive markings” on them in which the contractor is asserting “limited rights”. You believe the data is mis-marked because you believe the data pertains to an item that was developed exclusively with Government funding. Questions 1. Can the Government take exception to the markings on the tech data? 2. What action(s) can you take to ensure that the data can be used with the rights to which the Government is entitled? Source Selection  References DoD Source Selection Procedures --incorporated into DFARS Part 15) - Used when competitive FAR 15.3 procedures are used (Regardless of $$ value per AFFARS) (vs >$10M per DoD SSP’s) - Describes source selection org, eval process, documentation , etc. AFFARS Mandatory Procedures - Establishes Source Selection Authority based on ACAT/ $$ level - Describes roles/responsibilities - Addresses required training  Use of DoD Source Selection Procedures Required when conducting negotiated, competitive acquisitions using FAR Part 15 (NOT FAR PART 16– Multiple Award IDIQ Fair Opportunity competitions) Goal: quality/timely products and services AT THE BEST VALUE Best Value Continuum (a progression of change from least to greatest “tradeoff” i.e. how much flexibility the selecting official has in making the award) – Low-Priced Technically Acceptable (GREATER EMPHASIS ON COST/LESS EMPHASIS ON NON-COST FACTORS) Min requirements are evaluated on an “acceptable”/”unacceptable” basis (offerors not credited with exceeding requirements Award is made to offeror whose technical proposal is acceptable and whose cost/price is the lowest proposed (THRE IS NO VALUE PLACED ON EXCEEDING REQUIREMENTS) Appropriate for commercial, non-complex items Tradeoffs between cost and non-cost factors is not permitted Note: Offerors must be told the standards that must be met in order to achieve a rating of “Acceptable” Note: Some programs elect to use a process where ALL proposals are evaluated for tech acceptability (vs rank ordering by cost (lowest-to-highest) and stopping the evaluation when a proposal has been determined to be technically acceptable) – Trade-Off (GREATER EMPHASIS ON NON-COST/LESS EMPHASIS ON COST FACTORS) Allows for the selection of other than the lowest priced proposal Trade-offs may include – Full Tradeoff: consists of a tradeoff between cost and non-cost factors OR – Tradeoff between cost and past performance (from among technically acceptable proposals) DoD Procedures do not apply to Basic Research, FAR Part 8.4 (Federal Supply Schedules),FAR 12 Streamlined Acquisitions (Commercial Items) , FAR Part 13 Simplified Acquisition Procedures, and IDIQ Fair Opportunity Competitions  Source Selection Participants Source Selection Authority (SSA) – Selects offeror for award – Responsible for conduct of the source selection – Appoints chairperson of SSEB and SSAC – Makes a determination to award without discussions Source Selection Advisory Council (SSAC) (mandatory >$100M) – Provides a written comparative analysis and award recommendation to the SSA – Provides oversight to the SSEB Source Selection Evaluation Board (SSEB) – Conducts a comprehensive review and evaluation of proposals against the solicitation requirements and the approved evaluation criteria Note: Does not compare proposals against each other Contracting Officer – Primary business advisor – Releases RFP – Establishes competitive range, conducts discussions (with approval of SSA)  Key Source Selection Documents Source Selection Plan (SSP) – Describes org structure of source selection – Lists evaluation factors/sub-factors – Provides source selection schedule – Approved by the SSA SSEB INITIAL REPORT & SSEB FINAL REPORT (Previously called Proposal Analysis Report (PAR) – Prepared after COMPETITIVE RANGE (INITIAL) and submission of final proposal revisions (FINAL) – Detail analysis of proposals against stated evaluation criteria – The analysis in the reports must be “contemporaneous” – Written by the SSEB Note: The PAR addresses the analysis conducted under the Cost/Price criteria (reasonableness, realism, balance). A “Price Competition Memorandum” is no longer required Comparative Analysis Report (CAR) (N/A if no SSAC) – Consists of comparative analysis of proposals and award recommendation – Written by the SSAC Source Selection Decision Document (SSDD) – Independent, integrated, comparative assessment and decision – Summary of acquisition strategy – Explains decision and explains reasoning for decision – Addresses tradeoffs made – Signed by the SSA  Evaluation Factors Key factors/”discriminators” that will have an impact on the source selection – LIMIT FACTORS TO “CRITICAL USER REQUIREMENTS” Basis for evaluating proposals (i.e. proposals are not evaluated against each other) May be qualitative, quantitative, or both Listed in RFP in relative order of importance Importance of non-cost/price factors to cost/price factors listed in RFP (significantly more important, approximately equal, or significantly less important)  Evaluation Factors (Cont’d) Mandatory factors include: – Cost/Price – Quality of product or service (e.g. compliance with solicitation requirements, technical excellence, management capability, etc) – Factors (other than Cost/Price) may be further divided into sub-factors Notes: 1. A “technical” factor/sub-factor is a non-cost factor/sub-factor other than past performance (e.g. technical approach, management approach). 2. When a technical factor/subfactor is used a risk rating shall be assessed (as either part of the overall tech factor/subfactor rating or as a separate rating 3. Technical ratings are assessed using colors/adjectives (e.g. Outstanding, Marginal, etc 4. Risk ratings are assessed using adjectives (low, moderate, high) Other factors: – Past Performance (recency and relevancy) Result: Performance Confidence Assessment NOTE: A NEUTRAL Rating is assigned when recent/relevant performance is lacking – Small Business :Evaluation of SB Participation (MAY BE EVALUATED AS A SEPARATE FACTOR OR AS A TECHNICAL SUBFACTOR  Sections “L” and “M” Section L: Instructions for Proposal Preparation – Must be consistent with Section M evaluation factors – Set forth proposal format & content– page limitations – Cost information restricted to Cost Proposal – Includes Past Performance questionnaires Section M: Evaluation Factors for Award – Provides “basis for award” – Provides factors and sub-factors (including relative order of importance) – Proposals are ONLY evaluated against criteria listed in Section M TRACEABILITY BETWEEN SECTIONS L & M IS KEY  Competitive Range—Discussions– Final Proposal Revision Competitive range – Formal PCO determination (based on SSA approval) – Based on evaluation of proposals against eval criteria – Comprised of most highly rated proposals – Number of offerors in competitive range may be based on “efficiency” – Competitive Range Determination Document (CRDD)– REQUIRED BY NEW DFARS SS PROCEDURES Discussions – Conducted with all offerors in the competitive range – Include significant weaknesses and deficiencies – Adverse past performance not previously disclosed – Discussions must be “meaningful” – “Should” be used >$100M Final Proposal Revision (FPR) – Upon conclusion of discussions – Applies to each offeror (still) in the competitive range – Enables offerors to submit a final update to their proposals – REQUEST FOR FPR’S REQUIRES WRITTEN SSA CONCURRENCE  Award Without Discussions Award is based on initial proposal No discussion of weaknesses or deficiencies, no proposal updates – Minor clarifications permitted Offerors must be informed of intent to award without discussions – Discussions may be conducted if determined to be in best interests of the Gov’t NOTE: DISCOURAGED ON LARGE $$/COMPLEX PROGRAMS  Debriefings Offered to both unsuccessful and successful offerors Provides feedback for future proposal submission May prevent protest Information on technical ratings and evaluated prices only provided for successful offeror and offeror being debriefed “Extended” debriefings – Purpose is to discourage unsuccessful offerors from submitting speculative protests – Provide parties under a “protective order” with access to a greater detail of source selection information (e.g. CAR/PAR, non-redacted decision document) – Must be agreed-upon by Gov’t, successful offeror, and unsuccessful offeror – Requires parties to sign an Extended Debriefing Agreement  Developments in DoD Source Selection Procedures Additional Tradeoff Process: -Value Adjusted Total Evaluated Price (VATEP) -- Monetizes requirements above threshold -- Combines objective criteria (Acceptable/Unacceptable), subjective criteria, and “valued requirements” (downward TEP adjustment) for tradeoff to arrive at award decision THE GOV’T ESTABLISHES A VALUE ON EXCEEDING “THRESHOLD REQUIREMENTS, INFORMS OFFERORS OF THAT VALUE, AND ADJUSTS PROPOSALS DOWNWARD ACCORDINGLY--- ABOVE THRESHOLD REQUIREMENTS ARE THEN ICORPORATED INTO THE RESULTING CONTRACT Ratings modified -- Adds “Unacceptable” risk -- Past performance: “Unknown” confidence changed to “Neutral” confidence -- Small Business rating: Adds color rating if SB is a separate factor/subfactor (if not Acceptable/Unacceptable) Competitive Range Decision Document required  Developments in DoD Source Selection Procedures Highest Technically Rated Offeror at a Fair and Reasonable Price - Typically used when awarding Multiple Award IDIQ contracts - Neither LPTA nor Trade-off - Offerors self-score using objective criteria, Gov’t ranks proposals according to technical point score and then verifies that the self-scoring is correct, award made to the highest scored offerors whose price proposals were determined to be fair and reasonable -Used by GSA (Alliant) is survived a GAO protest NOTE: AZS utilizing approach for the EPASS HB Task Order under the GSA OASIS vehicle  Protection of Source Selection Information Adequate protection of source selection data required to avoid a “Procurement Integrity” violation Personnel participating in a source selection are required to sign a non-disclosure agreement and a conflict of interest statement  Scenario You are participating in a Low Priced-Technically Acceptable (LPTA) source selection. The contract type is CPFF. You have received 5 proposals. Offeror A proposes some technical features in its proposal which exceed the performance requirements of the specification. The offeror’s proposed price is the 3rd highest and exceeds the lowest priced proposal by approx 15%). The Source Selection Authority (SSA) considers the techncial features to be extremely beneficial to the Government and would like to award to Offeror A. What advice do you give the SSA?  Scenario You are participating in a full trade-off source selection. The contract type is CPFF. You have received 5 proposals. Offeror A proposes several technical features which exceed the performance requirements of the specification. All sub-factors in its proposal are rated GOOD with assigned risk ratings of LOW. The other offerors proposed price prices are up to 15% lower than Offeror A however their subfactor ratings range between MARGINAL and ACCEPTABLE with assigned risk ratings of MODERATE. Is it possible for the SSA to justify awarding the contract to Offeror A? REAs/CLAIMS/DISPUTES  Equitable Adjustment “Equitable Adjustment” is not defined in the FAR– one way to think of it is “fairness” or “without prejudice” Means by which a contractor is compensated for additional (fair and reasonable) or, in the case of a deductive change, fewer costs of performance caused by an in-scope contract change Results from added or deleted work or changed conditions Means to implement change in contract price, delivery schedule, or other terms of the contract Result: Contractor should be left in no better or no worse condition after the change as it was before the change (Question: What is the difference between the cost of performing the contract with the changed work and the cost of performing the contract without the changed work?) Clause examples: – GFP (not provided, provided late, defective) – Stop Work Order (additional time required to complete the contract) – Gov’t Delay of Work (performance of contract is delayed or interrupted) – Differing Site Conditions (conditions differ from that indicated in the contract) – Changes Clause (bi-lateral changes should contain a “Release of Claims” clause to preclude the contractor from asserting any future right to equitable adjustment)  Request For Equitable Adjustment One method by which a contractor can recover the cost of a change plus a reasonable profit/fee for a change (actual or constructive) to the contract For payment to occur, an REA must be certified if greater than the simplified acquisition threshold ($150K) Various costing methods– generally: – Cost of added work – Est cost of deleted work not performed – Indirect costs – Profit/fee Note : Costs incurred in preparing the REA, including legal and accounting fees are generally allowable (excludes interest) Resulting settlement modification should include a release of claims provision (Bars future REA’s/claims on settlements)  REA Clause REQUESTS FOR EQUITABLE ADJUSTMENT (MAR 1998)-252.243-7002 (a) The amount of any request for equitable adjustment to contract terms shall accurately reflect the contract adjustment for which the Contractor believes the Government is liable. The request shall include only costs for performing the change, and shall not include any costs that already have been reimbursed or that have been separately claimed. All indirect costs included in the request shall be properly allocable to the change in accordance with applicable acquisition regulations. (b) In accordance with 10 U.S.C. 2410(a), any request for equitable adjustment to contract terms that exceeds the simplified acquisition threshold shall bear, at the time of submission, the following certificate executed by an individual authorized to certify the request on behalf of the Contractor: I certify that the request is made in good faith, and that the supporting data are accurate and complete to the best of my knowledge and belief. (Official’s Name) (Title) (c) The certification in paragraph (b) of this clause requires full disclosure of all relevant facts, including⎯ (1) Cost or pricing data if required in accordance with subsection 15.403-4 of the Federal Acquisition Regulation (FAR); and (2) Information other than cost or pricing data, in accordance with subsection 15.403-3 of the FAR, including actual cost data and data to support any estimated costs, even if cost or pricing data are not required. (d) The certification requirement in paragraph (b) of this clause does not apply to⎯ (1) Requests for routine contract payments; for example, requests for payment for accepted supplies and services, routine vouchers under a cost-reimbursement type contract, or progress payment invoices; or (2) Final adjustments under an incentive provision of the contract.  Contract Disputes Act (CDA) of 1978 Public Law 95-936 Establishes procedures for handling claims CDA highlights – Claims must be submitted to the Contracting Officer in writing – Claims be submitted within 6 years of occurrence – Claims greater than $100K must be certified – PCO decision time-frames: $100K: 60 days decision or notification when decision will be made – Appeal rights if claim is denied/partially denied – Alternate Disputes Resolution (ADR) – Interest on claims  Claim Definition Claim” means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract.  Claim Certification “I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the contractor.” $100K dollar threshold is calculated using the “absolute value” Defective certification – Doesn’t meet certification requirements – May not bar court/board review but must be corrected before final judgement A claim certification and a certification for an REA are not identical  Analysis of a Claim You have received a claim what action do you take? Upon receipt of a claim the PCO should – Determine if it’s properly certified – Inform Program attorney – Initiate analysis, together with technical team, to determine merit of claim and, if there is merit, amount of entitlement – Engage with DCMA & DCAA as needed (can assist in verifying “actuals”) – Develop settlement strategy (e.g. partial, complete, no entitlement) – Consider use of Alternative Disputes Resolution (ADR) PCO HAS AUTHORITY TO DECIDE AND SETTLE ALL CLAIMS ARISING FROM THE CONTRACT  Alternate Disputes Resolution (ADR) Your relations with the contractor are strained in relation to the claim and you believe assisted factfinding/negotiations would be of mutual benefit to the parties. Alternative dispute resolution (ADR) means any type of procedure or combination of procedures voluntarily used to resolve issues in controversy. These procedures may include, but are not limited to, conciliation, facilitation, mediation, fact-finding, mini-trials, arbitration and use of ombudsmen. THINK OF A 3rd PARTY NEUTRAL CO is authorized to use ADR to settle claim Agreement on type of ADR must be mutual between Government and Contractor ACAT I and II require that the PCO establish an agreement (e.g. MOU) with the contractor on the intent to use of ADR ADR techniques include – Mediation – Fact-finding – Arbitration (non-binding) Use of ombudsman (Ms. Jill Willingham, AFLCMC/AQP Note: The ASBCA judge is considered the “neutral” to arrive at a binding decision ADR IS NOT A SUBSTITUTE FOR THE PCO’S FINAL DECISION ON A CLAIM NOR DOES IT ALTER THE TIME LIMITATIONS FOR FILING AN APPEAL OF A PCO’S FINAL DECISION  PCO Final Decision You are unable to resolve a claim submitted by a contractor--what action do you take? PCO final decision required when a claim cannot be settled by mutual agreement PCO decision time-frames: $100K: 60 days decision or notification when decision will be made Elements of a final decision A description of the claim or dispute; A statement of the factual areas of agreement and disagreement; A statement of the contracting officer’s decision, with supporting rationale; Decision statement: “This is the final decision of the Contracting Officer. You may appeal this decision to the agency board of contract appeals. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken. The notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number. With regard to appeals to the agency board of contract appeals, you may, solely at your election, proceed under the board’s— (1) Small claim procedure for claims of $50,000 or less or, in the case of a small business concern (as defined in the Small Business Act and regulations under that Act), $150,000 or less; or (2) Accelerated procedure for claims of $100,000 or less. Instead of appealing to the agency board of contract appeals, you may bring an action directly in the United States Court of Federal Claims (except as provided in the Contract Disputes Act of 1978, 41 U.S.C. 603, regarding Maritime Contracts) within 12 months of the date you receive this decision”  Processing a Final Decision Before issuing the final decision – Coord the decision with program attorney AND obtain review by AFLOA/JAQ (this office represents the AF if the contractor appeals a final decision to the ASBCA) – Provide SAF/GCD with the final decision on a claim involving PEO programs, any proposed final decision on a claim greater than $500,000 Provided to the Contractor via certified mail, return receipt  Disputes Clause Disputes (July 2002) 52.233-1 (EXCERPTS) (a) This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). (b) Except as provided in the Act, all disputes arising under or relating to this contract shall be resolved under this clause. (c) “Claim,” as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract. However, a written demand or written assertion by the Contractor seeking the payment of money exceeding $100,000 is not a claim under the Act until certified. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under the Act. The submission may be converted to a claim under the Act, by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time. (d)(1) A claim by the Contractor shall be made in writing and, unless otherwise stated in this contract, submitted within 6 years after accrual of the claim to the Contracting Officer for a written decision. A claim by the Government against the Contractor shall be subject to a written decision by the Contracting Officer. (2)(i) The contractor shall provide the certification specified in paragraph (d)(2)(iii) of this clause when submitting any claim exceeding $100,000. (ii) The certification requirement does not apply to issues in controversy that have not been submitted as all or part of a claim. (iii) The certification shall state as follows: “I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the Contractor.”  Disputes Clause (Continued) (3) The certification may be executed by any person duly authorized to bind the Contractor with respect to the claim. (e) For Contractor claims of $100,000 or less, the Contracting Officer must, if requested in writing by the Contractor, render a decision within 60 days of the request. For Contractor-certified claims over $100,000, The Contracting Officer must, within 60 days, decide the claim or notify the Contractor of the date by which the decision will be made. (f) The Contracting Officer’s decision shall be final unless the Contractor appeals or files a suit as provided in the Act. (g) If the claim by the Contractor is submitted to the Contracting Officer or a claim by the Government is presented to the Contractor, the parties, by mutual consent, may agree to use alternative dispute resolution (ADR). If the Contractor refuses an offer for ADR, the Contractor shall inform the Contracting Officer, in writing, of the Contractor’s specific reasons for rejecting the offer. (h) The Government shall pay interest on the amount found due and unpaid from (1) the date that the Contracting Officer receives the claim (certified, if required); or (2) the date that payment otherwise would be due, if that date is later, until the date of payment. With regard to claims having defective certifications, as defined in FAR 33.201, interest shall be paid from the date that the Contracting Officer initially receives the claim. Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury as provided in the Act, which is applicable to the period during which the Contracting Officer receives the claim and then at the rate applicable for each 6-month period as fixed by the Treasury Secretary during the pendency of the claim. (i)The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.  Scenario You are managing a contract for the delivery of a radar system that will be installed, tested, and delivered at an Air Force satellite tracking station. When the radar was ready for installation, the contractor was denied access to the satellite tracking station for a period of six (6) weeks while a series of hazard assessments (unrelated to the radar) were conducted. Following successful development testing of the radar the contractor submits a written claim for $5M for the additional costs it incurred during the 6 weeks of It was delayed performing the contract. -- What conditions must be met for the claim to be valid? -- Upon receipt of the claim what actions do you, as the PCO, take? -- Discuss the types of claim resolution techniques available to you. -- What action do you take if you are unable to settle the claim by mutual agreement? -- What “appeal rights” does the contractor have if the outcome is not to its satisfaction? PROTESTS  Terms Protest: Written objection by an interested party to a solicitation, cancellation of a solicitation, award, or termination/cancellation of an award Note: A protest against a solicitation must be filed before the closing date for receipt of proposals Interested Party: actual or prospective offeror whose economic interest is affected – For a solicitation it would be a potential offeror – For a contract award protest it would be an offeror who did not get the award (depending on the offeror’s standing in the competition (next in line???) and the nature of the issues raised in the protest) Protest venues: Agency (PCO), GAO, Court of Claims  Timeliness Standards Solicitation Protest: must be filed before the closing date for receipt of proposals Other Protests: no later than 10 days after the basis of protest is known or should have been known, whichever is earlier Reminder: Task & Delivery Order fair opportunity competitions >$10M (Non-DoD contracts)/$25M (DoD contracts) can be protested to the GAO  Receipt of an Agency Protest Pre-Award: withhold award pending resolution of the protest (unless for urgent and compelling reasons) – Inform all offerors of protest, request extension of proposals Note: Approval to award requires approval by the COCO-- must be based on an urgent and compelling reason Post Award: suspend performance if protest was received within 10 days of award or within 5 days after a debriefing date offered to the protestor WHICHEVER IS LATER (unless for urgent and compelling reasons) Note: Approval to award requires approval by the COCO- must be based on an urgent and compelling reason Resolve within 35 days (best effort) PCO Responsibilities: – Preparation of protest files – Coord with legal office – Denial authority= no lower than level at which protest was filed  Receipt of a GAO Protest Pre-Award: withhold award pending resolution of the protest (unless for urgent and compelling reasons) – Note: Approval to award requires HCA (SAF/AQC) approval (non-delegable) REFERRED TO AS AN “OVERRIDE OF THE STAY OF PERFORMANCE”- must be based on an urgent and compelling reason – Inform all offerors of protest, request extension of proposals Post Award: suspend performance if protest was received within 10 days of award or within 5 days after a debriefing date offered to the protestor WHICHEVER IS LATER (unless for urgent and compelling reasons) – Note: Approval to award requires HCA (SAF/AQC) approval (non-delegable) REFERRED TO AS “AN OVERRIDE OF THE STAY OF PERFORMANCE” - must be based on an urgent and compelling reason Decision Timeline: 100 days PCO Responsibilities: – Preparation of protest files, assist with agency report – Coord with local legal office, SAF/AQC, and AFLOA/JAQ Protest outcomes – Sustainment- GAO likely recommends corrective action, payment of protest costs – Denial- Protest is closed – Corrective Action: may be taken anytime during the process– used when there is a flaw in the procurement or when GAO will likely sustain the protest  Scenarios 1. Following award of a contract that resulted from a “best value” source selection, an unsuccessful offeror has protested to the agency alleging that the evaluation criteria, as written in the solicitation, were biased in favor the incumbent (and successful) contractor) because of the way the agency defined “relevancy” in rating past performance. -- Was the protest timely? 2. Two days after receiving a debriefing , an unsuccessful offeror submitted a post-award protest to the GAO because it disagreed with the assignment of technical rating of “Marginal ” (“Proposal does not clearly meet requirements and has not demonstrated an adequate approach and understanding of the requirements”) and a risk rating of “High” (“Is likely to cause significant disruption of schedule, increased cost or degradation of performance. Is unlikely to overcome any difficulties, even with special contractor emphasis and close Government monitoring”). -- Upon notification from the GAO of the protest what action do you, as the PCO, take? -- Under what conditions may performance of the awarded contract continue? PROCUREMENT INTEGRITY An offeror who submits proposal material in the conduct of an acquisition (competitive or sole source) does so in the belief and understanding that its material will not be disclosed to unauthorized personnel Impact of unauthorized disclosures -- the integrity of a source selection may be jeopardized -- other competitors may use the proposal material -- source selection schedules may be impacted -- resource-intensive analyses required -- debarment/suspension may occur -- disciplinary action may be taken Statute: Procurement Integrity Act --Proposal Information and Source Selection Information (SSI) must be protected from unauthorized disclosure --Source Selection Information (SSI) must be properly marked PCO Responsibility: Protect proposal info & SSI from unauthorized disclosure How? -- Appropriately mark information -- Appropriately safeguard information -- Follow the “RULE OF 2” (See Charts 4 & 5) when transmitting information  PROCUREMENT INTEGRITY VIOLATIONS A “PIA VIOLATION” occurs when there is an unauthorized disclosure of protected information When a violation occurs: Contractor (who receives the unauthorized information) responsibility: Inform PCO immediately, comply with PCO direction PCO responsibility: -- Obtain signed affidavits & non-disclosure statements from parties receiving the unauthorized data -- Who saw the data?, What did they do with the data? Was the data purged from the party’s computer system/network (NO ARCHIVED COPIES!) -- Inform all affected parties (i.e. the contractor whose protected information was disclosed) --Determine (in writing) if release has an impact on the procurement --- IF NO IMPACT: Forward determination to CAA for review/concurrence (pre-coord with JAG & PZC) ---- If CAA concurs– OK to proceed with procurement ---- If CAA non-concurs: Forward to HCA (SAF/AQC) (Documentation provided to SAF/GCR) --- IF IMPACT: Forward to HCA (through CAA, JAG, PZC, PK) (Documentation provided to SAF/GCR) ---- HCA: Review information, cancel procurement, disqualify offeror, void contract PIA VIOLATIONS USUALLY OCCUR WHEN A CONTRACTOR/OFFEROR RECEIVES BIDDING INFORMATION/PROPOSAL MATERIAL OF ANOTHER OFFEROR AFMC Mandatory procedures 5315.3 (Source Selection) Para. 1.4.2.2.3 Prior to transmission of Source Selection Information to offerors via any means, the information must be reviewed by a second person to ensure no inadvertent inclusion of inappropriate data. Additionally, Source Selection Information transmitted to offerors electronically (e.g., via e-mail or disc) or posted to a website must be distributed in a “locked” format, such as scanned.pdf files,.jpeg files, or other protected format. An exception to the format requirement is when offerors are required to fill-in or complete portions of a document, such as Section K Representations and Certifications, or a pricing matrix. Recommend use of the checklist at AFFARS library,, Reference AFFARS MP5315.3, paragraph 1.4.2.2.3 to verify the above review. AFFARS Mandatory Procedures 5315.3 (Source Selection) Para. 1.4.2.2.3 Manage all source selection documents, control and record transactions, and protect all documents (see Chapter 4). Source selection material must not be removed, circulated, or disseminated outside of the source selection work area without PCO review and approval. Ensure all means of electronic communications receive additional scrutiny to preclude inadvertent release of documents that contain sensitive or embedded source selection files (i.e., use of secondary reviews before files are released). Using e-mail to transmit source selection information should be done judiciously and it must be encrypted and digitally signed. Include in the subject line the phrase “Source Selection Information – See FAR 2.101 and 3.104”. Use the Source Selection Information Cover Sheet to identify source selection information.  AFMC FAR SUP Part 15 INFORMATIONAL GUIDANCE CORRESPONDENCE CHECKLIST Verification of Correspondence Going to Offeror Include Checklist in Source Selection File Initials and Date Reviewed by First Person Name:_____________ Initials and Date Reviewed by Second Person Name:______________ Specify below the Document that is being reviewed prior to sending/transmitting/handing to Offeror (e.g., Correspondence, Model Contract, Briefing Charts, Debriefing Charts, etc.). Review each piece of Correspondence separately to ensure accuracy/verification. TITLE OF DOCUMENT BEING VERIFIED: Offeror's Name, POC, Address Correct on Correspondence Offeror's Name Correct on Contract, if Applicable Offeror's Telephone Number Correct, if Applicable Offeror's Cage Code, DUNs, etc. Correct, if Applicable Offeror's Name on Evaluation Notices (ENs) Correct and EN Information Correct, if Applicable No other Offeror's Name, POC or Information Included Offeror's Name, POC and FAX Number Correct on Cover Sheet, if Applicable Offeror's Name, POC, Address Correct on Envelope, if Applicable Marked as "Source Selection Information - See FAR 2.101 and 3.104", if Applicable Additionally, for Correspondence/Documents being Posted to a website accessible by Offerors, or e-mailed to Offerors, or Copied to a Disc for Offerors, verify the following items: Offeror's Name and POC Correct on E-Mail, if Applicable Offeror's Name and Information Correct on Disk with SS Markings, If Applicable Document redacted IAW FOIA, if applicable Used "Inspect Document" feature in Microsoft Office files to detect and delete, if applicable: "Notes" section of powerpoint file, unless appropriately redacted "Track changes" and "Comment" information "Hidden text" and embedded information Document printed and then scanned as pdf file, or in.jpeg format, or other protected format No reference to or information on other Offerors Scenario: Procurement Integrity Act You are a PCO on a source selection and the evaluation team has just completed its initial evaluation and evaluation notices (EN’s) have been issued. Offeror D informs you via email that among the EN’s it received was Cost EN-C-001 that requested additional info on a subcontractor, Formula 1. Offeror D tells you they did not propose using Formula 1 and all other EN’s were numbered EN-D-… Upon receipt of the email from Offeror D what action do you take? Follow-on question: What action(s) could have been taken initially to prevent the unauthorized disclosure of the source selection information? Organizational Conflict of Interest  OCI Definition Organizational conflict of interest” means that because of other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person's objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.  General Rules Principles of OCI relate to one of the following: – Unequal Access to (non-public) information (UNFAIR COMPETITIVE ADVANTAGE) Proprietary, source selection information Access alone (doesn’t have to be the use of) is sufficient to create an OCI Being an “incumbent” does not automatically create an OCI OCI may arise at a subcontractor or team member Example: A contractor whose employees are embedded in the program office – Impaired Objectivity The performance of work on one contract would benefit a contractor on another contract Example: A contractor who performs a technical evaluation on a proposal from its own company – Biased Ground Rules (UNABLE TO RENDER IMPARTIAL ASSISTANCE) Company performing contract that will set ground rules for another contract Potential that the contractor could “skew” the requirements in its favor Example: A contractor who prepares a statement of work, spec for a competitive procurement  PCO Responsibilities “Avoid, mitigate, neutralize” Follow the AFLCMC OCI Process Guide https://cs4.eis.afmc.af.mil/sites/1534/APD/New%20Library%204%20Guides/Forms/AllItems.aspx Identify real/potential OCI’s early in the procurement process – OCI is a required topic at initial industry briefing (When the is a real or apparent OCI) Obtain OCI mitigation plan from companies as necessary – Initially request a “white paper” to evaluate & understand the issue NOTE: If PCO becomes aware of an OCI (without first being informed by the contractor)---pursue with contractor (don’t rely on contractor to disclose) Document OCI findings in a PCO determination (obtain JA assistance/coord) Comply with OCI review process (Hanscom’s OCI Review Panel= PK, PZC, & JA) Include appropriate OCI provisions (See DFARS & AFFARS in RFP & contract and incorporate OCI Mitigation Plan in contract Ensure contractor compliance with OCI provisions & mitigation plan throughout life of contract OCI’s ARE A MATTER OF CONTRACTOR RESPONSIBILITY—DURING A SOURCE SELCTION OCI MATTERS ARE NOT CONSIDERED “DISCUSSIONS”  OCI Remedies Mitigation – OCI’s should be mitigated before the fact (e.g. it may be too late to mitigate unequal access to information once it’s occurred) – Establishment of “firewalls” – Elements of a company are separated organizationally and physically (IMPAIRED OBJECTIVITY) – Contractor “no bids” a task order that would create an OCI EXAMPLE: Contractor X intends to compete (AS A PRIME) for a PASS multiple award IDIQ contract whose delivery orders for a given Directorate (e.g. HN) will be competed on a division-level basis (e.g. HNS) However, if awarded a task order for HNS, an OCI would be created because Contractor X provides test support to the FAB-T prime contractor– MITIGATION: Contractor X agrees (as documented in its OCI MITIGATION PLAN) that, if awarded an A&AS IDIQ contract, it won’t submit a proposal for the HNS task order – Contractor removes a teaming member (i.e. subcontractor) on an effort that would create an OCI EXAMPLE: Contractor Z is a subcontractor to PASS Prime contractor X. An OCI would be created if Contractor Z were permitted to participate in a task order for the support of the AOC program. MITIGATION: Prime PASS contractor X agrees (as documented in its OCI MITIGATION PLAN) to exclude Contractor Z from its team when it submits a task order proposal to support the AOC program – Disclose sensitive info to all (UNEQUAL ACCESS) (not preferred) – NOTE: Contractor should not be permitted to relinquish prime contractor responsibilities on conflicted work (e.g. re-assign work to one of its subs/teaming members) Contractor prohibited from performing the conflicted work if OCI cannot be “mitigated” Waiver – Justification: Benefits to the Gov’t outweigh OCI – HCA : SAF/AQC (BGen Blake) NOT DELEGABLE – “Impaired Objectivity” most-likely type of OCI to be waived  OCI Mitigation Plans Submitted (EARLY) to and analyzed by the PCO with assistance of tech team and program attorney (Should be preceded by a “white paper”) In a competitive procurement, comment resolution may be conducted outside formal source selection procedures Mitigation Plan elements – Description of OCI – Approach to mitigating OCI – Org charts – Organizational, physical, financial “firewalls” Note: The use of firewalls is ineffective in mitigating unequal access and biased ground rules OCI’s – Company oversight – Employee training (initial, recurring) – Non-disclosure agreements – Movement of personnel – Mitigation plan updates PCO SHOULD MONITOR PLAN COMPLIANCE THROUGHOUT LIFE OF CONTRACT  OCI Review Process SEE AFLCMC OCI PROCESS GUIDE https://cs4.eis.afmc.af.mil/sites/1534/APD/New%20Library%204%20Guides/Forms/AllItem s.aspx  Scenario Smart Service Company’s (SSC) Protech Division is currently providing Advisory and Assistance Services (A&AS) support to the Radar Imaging Program (RIP). The RIP program office is preparing to release a competitive solicitation for a test support contract of the radar imaging system. The Protech Division will support the RIP program by assisting in the evaluation of proposals. SSC’s Ground Systems Division responds to sources sought synopsis for the test support contract and expresses interest in competing for the contract. Questions Does it appear an actual or apparent OCI exists? If so, what type - Unequal Access? Does the Protech Division have access to non-public information? - Impaired Objectivity? Could the Protech Division’s objectivity be impaired if it assisted in the evaluation of Ground System Division’s proposal? -Biased-Groundrules? Is the Protech Division establishing groundrules for the upcoming source selection? As contracting officer for this procurement what actions do you take to preserve the integrity of the source selection?  Indefinite Delivery/Indefinite Quantity Contracts IDIQ CONTRACTS ARE NOT A “TYPE” OF CONTRACT—THEY ARE A TYPE OF CONTRACT VEHICLE  Topics Indefinite Delivery Contracts IDIQ Usage IDIQ Elements Ordering Multiple Award IDIQ Contracts Fair Opportunity Contract Clauses Scenarios  Indefinite Delivery Contracts Definite Quantity – Known: Quantity – TBD: Delivery Requirements – Known: Government will fulfill its requirements during a specified period of time from the contractor – TBD: Quantity Indefinite Quantity (“D” Contracts) – Known: Period of Performance – TBD: Quantity (except for min order)  IDIQ Usage Used when precise amount of supplies or services cannot be pre-determined Recurring needs anticipated Flexibility in ordering desired Flexibility in delivery desired  IDIQ Elements Minimum quantity/$$ value NOTE: Min Qty/$$ value obligated at contract award (AFFARS MP 5316.504 ) Maximum Quantity/$S value (i.e. Ceiling) Fixed Ordering Period Elements of Scope for an IDIQ Contract Fixed Performance Period (usually extends beyond the ordering period) Ordering Procedures NOTE: Single award IDIQ >$112M requires Head of Agency approval (Senior Procurement Executive= SAF/AQ) -- Work must be integrally related– may only be performed by a single contractor OR -- Task/delivery orders are FFP– only against pre-established prices OR -- Only 1 qualified/capable source (would also require a J&A)  Ordering Min quantity order required to be made at contract award (AFFARS MP 5316.504) Delivery Order=Supplies Task Order= Services Orders must be within the scope of the contract, within the ordering period, and within the max value of the contract – NOTE: Scope policy applies Synopsis requirements are generally N/A (e.g. Exception– posting fair opportunity exception D&F or brand name justification) Funds obligated with issuance of an order (Not against the basic contract)  Multiple Award IDIQ Contracts Multiple-award contract means a contract that is— (1) A Multiple Award Schedule contract issued by GSA (e.g., GSA Schedule Contract) or agencies granted Multiple Award Schedule contract authority by GSA (e.g., Department of Veterans Affairs: VA FSS) as described in FAR part 38; (2) A multiple-award task-order or delivery-order contract issued in accordance with FAR subpart 16.5, including Government-wide acquisition contracts (GWAC) (e.g. NASA SEWP); or (3) Any other indefinite-delivery, indefinite-quantity contract entered into with two or more sources pursuant to the same solicitation. IDIQ contracts awarded to multiple companies who have the basic qualifications to perform the scope of work Promotes continued competition throughout contract execution Federal Acquisition Streamlining Act established a “general” preference for multiple award IDIQ contracts--  Multiple Award IDIQ Contracts MACs mandatory for A&AS contracts >$13.5M >3 yrs PoP Non- A&AS contracts (FAR language) “…the contracting officer must, to the maximum extent practicable, give preference to making multiple awards of indefinite-quantity contracts…” Examples: NETCENTS, GSA Schedules, A&AS (PASS,ETASS) The initial award of the contracts is subject to CICA Issuance of orders not subject to CICA (as long as they are within the scope of the contract)  Fair Opportunity Background Federal Acquisition Streamlining Act – Established a preference for multiple award TO & DO contracts – Requires that all multiple award contractors must be provided a fair opportunity to be considered for each task or delivery order over $3,500 issued under a contract unless an exception applies. The National Defense Authorization Act (NDAA) for FY2008 – Specified what constitutes a “fair opportunity to be considered” for orders in excess of $5.5M under multiple-award contracts – Granted GAO jurisdiction to hear protests of orders valued in excess of $25 million.  Fair Opportunity Orders PCO responsible for developing ordering/selection procedures—included in RFP & contract – MAC contractors must be provided description of supplies/services & basis of selection – Cost/price must be considered – May include past performance Orders exceeding $5.5M (additional requirements) – Reasonable response time – Significant factors/subfactors – If best value—basis for award, relative importance of criteria – Debriefing opportunity Orders exceeding $25M – Protestable to GAO FAR 15.3 (SOURCE SELECTION) DOES NOT APPLY TO FAIR OPPORTUNITY ORDERING PROCESS– THE PCO HAS “BROAD DISCRETION” IN DEVELOPING ORDING PROCEDURES – SEE FAIR OPPORTUNITY GUIDING PRINCIPLES ** RECOMMEND CONSULTING WITH AZA PRIOR TO DEVELOPING FAIR OPPORTUNITY SELECTION PROCEDURES  Fair Opportunity Exceptions The agency need for the supplies or services is so urgent that providing a fair opportunity would result in unacceptable delays. (Sounds like a -2 J&A—it isn’t) Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized. (Sounds like a -1 J&A—it isn’t) The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order. Note: Exercise caution when using the “logical follow-on exception “ more than one time under the same contract. It is necessary to place an order to satisfy a minimum guarantee. Authorized or required by a statute (Sounds like a -5 J&A—it isn’t) Small business set-aside (at PCO’s discretion) Don’t confuse Fair Opportunity Exceptions with Exceptions to Full & Open  Fair Opportunity Exception Determination and Approval (See accompanying template) Similar to a J&A– referred to as a D&A – Description of Action – Description of Supplies & Services – Authority for Use – Fair and Reasonable Cost – Market Research – PCO & PM Certification Authority is FAR Part 16.5 NOT FAR Part 6 (CICA) Information in D&A must support use of exception (e.g. Need to quantify “economy and efficiency”) No D&A is required for small business set-aside FOE Determination and Approval Template can be found at AFMC MP 5316  Approval of Fair Opportunity Exceptions $700K - $13.5 M- $93M Senior Procurement Executive (SAF/AQ) APPROVAL LELVELS OF FAIR OPPORTUNITY EXECEPTIONS ARE THE SAME AS APPROVAL LELVELS FOR J&A’s  Contract Clauses Indefinite Quantity (Oct 1995) 52.216-22 (a) This is an indefinite-quantity contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract. (b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the “maximum.” The Government shall order at least the quantity of supplies or services designated in the Schedule as the “minimum.” (c) Except for any limitations on quantities in the Order Limitations clause or in the Schedule, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations. (d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor’s and Government’s rights and obligations with respect to that order to the same extent as if the order were completed during the contract’s effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after _______________ [insert date]. (PERFORMANCE PERIOD)  Contract Clauses Ordering (Oct 1995) 52.216-18 (a) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders may be issued from __________ through ____________ [insert dates]. (ORDERING PERIOD) (b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control. (c) If mailed, a delivery order or task order is considered “issued” when the Government deposits the order in the mail. Orders may be issued orally, by facsimile, or by electronic commerce methods only if authorized in the Schedule.  Contract Clauses Order Limitations (Oct 1995) 52.216-19 (a) Minimum order. When the Government requires supplies or services covered by this contract in an amount of less than _____________ [insert dollar figure or quantity], the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract. (b) Maximum order. The Contractor is not obligated to honor -- (1) Any order for a single item in excess of _____________ [insert dollar figure or quantity]; (2) Any order for a combination of items in excess of ______________ [insert dollar figure or quantity]; or (3) A series of orders from the same ordering office within _____________ days that together call for quantities exceeding the limitation in subparagraph (b)(1) or (2) of this section. (c) If this is a requirements contract (i.e., includes the Requirements clause at subsection 52.216-21 of the Federal Acquisition Regulation (FAR)), the Government is not required to order a part of any one requirement from the Contractor if that requirement exceeds the maximum-order limitations in paragraph (b) of this section. (d) Notwithstanding paragraphs (b) and (c) of this section, the Contractor shall honor any order exceeding the maximum order limitations in paragraph (b), unless that order (or orders) is returned to the ordering office within _____ days after issuance, with written notice stating the Contractor’s intent not to ship the item (or items) called for and the reasons. Upon receiving this notice, the Government may acquire the supplies or services from another source.  Sample Scenario #1 You are managing 5 multiple-award IDIQ contracts. An urgent $10M requirement has been identified that you believe may be fulfilled within the scope of the contracts. You understand the requirement to provide a “fair opportunity” to each awardee however; an unacceptable delay would occur if a fair opportunity is provided in this case. You quickly request capability statements from the 5 multiple-award contractors. Based on a review of capability statements from the 5 contractors you conclude that only 1 of the contractors can fulfill the urgent requirement. Questions 1.Discuss whether an exception to the “fair opportunity” requirement would be permitted and, if so, the documentation that the PCO would prepare and the approval level for the exception. FOLLOW-UP QUESTION 2. Following award of the delivery order for the urgent requirement your program office would like to award a (non-urgent) delivery order to the contractor performing the urgent work by citing the “logical follow-on” exception to the fair opportunity requirement. What guidance do you give the program office?  Sample Scenario #2 You are managing 5 multiple-award IDIQ contracts. Each contractor has already received its “min order”. One of the contractors (Contractor A) was previously awarded an $8M TO based on a Fair Opportunity exception basis because the supplies ordered were highly specialized and only Contractor A was capable of providing the supplies. An upcoming $30M effort is being contemplated. Your program office would like you to process a fair opportunity exception based on a “logical follow-on” because the contractor was provided a significant amount of GFP to perform the initial work and the GFP would be logistically difficult to transfer to another contractor. QUESTIONS 1. Discuss the contracting officer’s responsibility with regard to providing “fair opportunity” for multiple - award IDIQ contracts 2. What advice do you give the program office with regard to this upcoming effort? 3. Given its $30M value (Hint it exceeds $5.5M), if you conduct a fair opportunity competition what additional requirements must be met when issuing the request for proposals and upon award of the TO? 4. If you conduct a fair opportunity competition may an unsuccessful offeror protest your selection? FUNDING  Limitations of the Use of Appropriations Proper use of appropriated funds must comply with the following criteria: Purpose – applies only to the objects for which the appropriations were made Time - an agency must incur a legal obligation to pay money within an appropriation’s period of availability. – Appropriations are available only for the bona fide need of an appropriation’s period of availability Amount – The Anti-Deficiency Act, prohibits obligating, expending, or authorizing an obligation or expenditure of funds in excess of the amount available in an appropriation or incurring an obligation in advance of an appropriation  Bona Fide Need Rule The bona fide need is the point in time recognized as the moment when a government agency becomes authorized to obligate funds to acquire a particular good or service based on a currently existing requirement Current year money for current year needs Requires both the timing of the obligation and the bona fide need to be within the fund’s period of availability The bona fide need rule requires that appropriated funds be used only for needs or services that arise in the year(s) of the appropriation’s obligation availability period. (DAU “Color of Money” Training Slide) You can’t use this year’s appropriation to buy next year’s requirements Exceptions: --Lead-time (considering normal production time) --Maintaining a “stock level”- OK to replenish stock used in the current FY even though the stock will not be used until following FY  Anti-Deficiency Act (ADA) Government agencies are prohibited from obligating the Government IN EXCESS OF OR IN ADVANCE OF APPROPRIATIONS Government agencies may not accept voluntary services The FAR Requires the Contracting Officer to ensure that adequate funds are available or condition the contract upon availability of funds Examples: – Using the wrong type/FY appropriation – Obligating funds after the period of availability has passed An individual may be held personally liable for an ADA violation  Overview of Appropriations Operations and Maintenance (O&M) (3400) --used to pay for the current operations of the force, and for the maintenance of all equipment that the Armed Services need to operate the force Research, Development, Test and Evaluation (RDT&E) (3600) --used for “expenses necessary for basic and applied scientific research, development, test and evaluation Procurement (Various) (3010/3020/3080)-- used for aircraft, missile, and Other Procurement. – Other Procurement appropriation is a “catch-all” appropriation for investment items that are not purchased with the more specific Procurement appropriations (e.g. communications, spares, support equipment)  Appropriation Period of Availability “Period of Availability” means the period of time for which appropriations are available for obligation (funds are ACTIVE when they are avail for obligation) Obligation act that creates a legal liability on the part of the government for the payment of goods and services ordered or received – Note: If funds are not obligated during their period of availability, then the funds are EXPIRED (unavailable for new obligations). Once expired funds become CANCELLED (no longer available for payment) CODE CATEGORY APPROPRIATION PERIOD 3400 O&M O&M General 1 Year 3600 RDT&E RDT&E 2 Years 3010 Procurement Aircraft 3 Years 3020 Procurement Missiles 3 Years 3080 Procurement Other 3 Years 3500 Mil Construction Construction 5 Years  Current, Expired, Cancelled Appropriations Current: available for new obligations under the terms of the applicable appropriations act Expired: appropriation whose period of availability has ended and is no longer available for new obligations. It retains its fiscal identity and is available to adjust and liquidate previously incurred obligations for five years Cancelled (closed): appropriation that is no longer available for any purpose  Life Cycle of Funds Cancelled Status Continues Cancelled Status Continues Cancelled Status Continues *  Use of Expired Funds Equitable adjustments Bid protests Termination for default – replacement contract Obligation Adjustment Reporting System (OARS)– process used to fund upward obligations using expired funds Consult with JA & FM prior to obligating expired funds (to ensure that OARS request is valid and FY/appropriation type is proper NOTE: CLIN FUNDING RE-ALLOCATIONS ARE CONSIDERED DE-OBLIGATIONS AND RE-OBLIGATIONS– BE CAUTIOUS WHEN RE-ALLOCATING EXPIRED FUNDS  Full Funding vs Incremental Funding Full Funding (Procurement/O&M* funds)- DoD policy (not statutory) is to fully fund procurements of military useable end items in the fiscal year in which the item is procured – Provides disciplined approach for program execution within cost and available funding – Exceptions: long-lead funding (Advance procurement), multi-year procurement Incremental Funding – Provides control over expenditure of funds – RDT&E (3600) – Funds budgeted by fiscal year – Clauses place limitations on Government’s liability – Funds may be “forward financed” 90 days into next fiscal year to prevent a gap in funding Incremental Funding of Fixed Price Contracts (DFARS Part 232) (3 Exceptions) – 1. SEVERABLE SERVICE *---NTE 1 year---funds current (not expired) as of the date of obligation – 2. RDT&E using multiple Year funds – 3. Congressional authorization  Funding Clauses Limitation of Cost: fully funded cost reimbursement contracts Limitation of Funds: incrementally funded cost reimbursement contracts Limitation of Government Obligation- incrementally funded fixed price contracts Similarities – Limits Government liability to funded amount – Contractor performs as long as contract is funded – Contractor required to notify Government if additional funds are needed – Government discretion to fund NOTE: AFMC Mandatory Procedures requires Business & Contract Clearance for overrun modifications issued under the Limitation of Cost clause.  Limitation of Cost (Fully Funded CR Contracts) Limitation of Cost (Apr 1984) (EXCERPTS) (a) The parties estimate that performance of this contract, exclusive of any fee, will not cost the Government more than (1) the estimated cost specified in the Schedule or, The Contractor agrees to use its best efforts to perform the work specified in the Schedule and all obligations under this contract within the estimated cost… (b) The Contractor shall notify the Contracting Officer in writing whenever it has reason to believe that -- (1) The costs the Contractor expects to incur under this contract in the next 60 days, when added to all costs previously incurred, will exceed 75 percent of the estimated cost specified in the Schedule; or (2) The total cost for the performance of this contract, exclusive of any fee, will be either greater or substantially less than had been previously estimated. (c) As part of the notification, the Contractor shall provide the Contracting Officer a revised estimate of the total cost of performing this contract. (d) Except as required by other provisions of this contract, specifically citing and stated to be an exception to this clause -- (1) The Government is not obligated to reimburse the Contractor for costs incurred in excess of (i) the estimated cost specified in the Schedule or, (2) The Contractor is not obligated to continue performance under this contract (including actions under the Termination clause of this contract) or otherwise incur costs in excess of the estimated cost specified in the Schedule, until the Contracting Officer (i) notifies the Contractor in writing that the estimated cost has been increased and (ii) provides a revised estimated total cost of performing this contract. If this is a cost-sharing contract, the increase shall be allocated in accordance with the formula specified in the Schedule. (e) No notice, communication, or representation in any form other than that specified in subparagraph (d)(2) above, or from any person other than the Contracting Officer, shall affect this contract’s estimated cost to the Government. In the absence of the specified notice, the Government is not obligated to reimburse the Contractor for any costs in excess of the estimated cost or, if this is a cost-sharing contract, for any costs in excess of the estimated cost to the Government specified in the Schedule, whether those excess costs were incurred during the course of the contract or as a result of termination. (f) If the estimated cost specified in the Schedule is increased, any costs the Contractor incurs before the increase that are in excess of the previously estimated cost shall be allowable to the same extent as if incurred afterward, unless the Contracting Officer issues a termination or other notice directing that the increase is solely to cover termination or other specified expenses.  Limitation of Funds (Incrementally Funded CR) Limitation of Funds (Apr 1984) (EXCERPTS) (a) The parties estimate that performance of this contract will not cost the Government more than (1) the estimated cost specified in the Schedule … The Contractor agrees to use its best efforts to perform the work specified in the Schedule and all obligations under this contract within the estimated cost (b) The Schedule specifies the amount presently available for payment by the Government and allotted to this contract. The parties contemplate that the Government will allot additional funds incrementally to the contract up to the full estimated cost to the Government specified in the Schedule, exclusive of any fee. The Contractor agrees to perform, or have performed, work on the contract up to the point at which the total amount paid and payable by the Government under the contract approximates but does not exceed the total amount actually allotted by the Government to the contract. (c) The Contractor shall notify the Contracting Officer in writing whenever it has reason to believe that the costs it expects to incur under this contract in the next 60 days, when added to all costs previously incurred, will exceed 75 percent of (1) the total amount so far allotted to the contract by the Government … The notice shall state the estimated amount of additional funds required to continue performance for the period specified in the Schedule. (d) Sixty days before the end of the period specified in the Schedule, the Contractor shall notify the Contracting Officer in writing of the estimated amount of additional funds, if any, required to continue timely performance under the contract or for any further period specified in the Schedule or otherwise agreed upon, and when the funds will be required. (e) If, after notification, additional funds are not allotted by the end of the period specified in the Schedule or another agreed-upon date, upon the Contractor’s written request the Contracting Officer will terminate this contract on that date in accordance with the provisions of the Termination clause of this contract. If the Contractor estimates that the funds available will allow it to continue to discharge its obligations beyond that date, it may specify a later date in its request, and the Contracting Offi