Fun with the FAR Part 49

1. Prime contractors are required to use guidance in FAR Part 49 to settle subcontracts terminated as a result of modification/termination of a prime contract. FAR 49.002(b). 2. A contracting officer must obtain the prior approval of his/her “contracting office” prior to issuing a show cause or cure notice to a contractor. FAR 49.402-3(b). 3. In the event of a “partial” termination, the contractor may request an equitable adjustment in the price or prices of the continued portion of a fixed price contract. FAR 49.208. 4. The Government is strictly prohibited from paying for anticipatory profits and consequential damages as part of a termination settlement agreement. FAR 49.202(a). 5. The “Excusable Delays” clause set forth at FAR 52.249-14 is not required to be included in … Continue reading

Fun with the FAR Parts 45, 46, & 47

1. As a general rule, contractors are ordinarily required to furnish all property necessary to perform Government contracts. A contractor’s inability or unwillingness to supply its own resources is not sufficient reason for the furnishing or acquisition of Government property. FAR 45.102. 2. As a general rule, under firm fixed price type contracts, the contractor retains title to all property acquired by the contractor for use under the contract, except for property identified as a deliverable. FAR 45.402(a). 3. Under cost-type and time-and-materials contracts, the Government acquires title to all property to which the contractor is entitled for reimbursement. FAR 45.402 and FAR 52.245-1. 4. Contracts for commercial items shall rely on a contractor’s existing quality assurance system as a substitute for compliance with Government … Continue reading

Fun with the FAR Part 44

1. The subcontractor consent and advance notification requirements in Subpart 44.2 are not applicable to prime contracts for commercial items acquired pursuant to Part 12. FAR 44.000. 2. When required, subcontract consent should be requested from the contracting officer prior to execution of the subcontract. Such consent must always be in writing. FAR 44.201-1. 3. A contracting officer’s consent to subcontract or approval of the contractor’s purchasing system does not constitute a determination of the acceptability of the subcontract terms or price, or of the allowability of costs, unless the consent or approval specifies otherwise. FAR 44.204(a). 4. As a matter of law, non-commercial prime contractors are only required to flow-down to its commercial item subcontractors those special clauses identified at FAR 52.244-6(c)(1). 5. While … Continue reading

Fun with the DFARS Part 225

A “Qualifying Country” is a country from a list of twelve or fifteen countries with whose ministry of defense the DoD has a bilateral agreement for defense contracting only. This list is DoD-specific and does not apply to other agencies. End products from qualifying countries are not subject to the Buy American Act (“BAA”) because of the bilateral agreements. DFARS 225.0. The Berry Amendment at first related only to preference for U.S.-made textile or fabric products, such as uniforms or tents. Over time, it has grown away from only textiles to incorporate special interests such as bulletproof vests, fire-retardant fabrics, and hand tools. The Berry Amendment is at DFARS 225.7002. The Berry Amendment has several exceptions; for example, it generally does not apply to contracts … Continue reading

Fun with the FAR Part 42

1. For contractors other than educational institutions and nonprofit organizations, the “cognizant” Federal agency normally will be the agency with the largest dollar amount of contracts, including options. FAR 42.003(a). 2. Once a Federal agency assumes cognizance for a contractor, it should remain cognizant for at least 5 years. FAR 42.003(b). 3. Contractors are require to submit final indirect cost rate proposals with the six-month period following the expiration of its fiscal years. FAR 42.705-1(b)(ii). 4. Novation Agreements may be executed by the U.S. Government only AFTER contractors have executed a stock purchase or asset sale agreement. FAR 42.1204. 5. The cognizant Federal agency of the contractor transferring its contracts via a Novation Agreement is generally the responsible party tasked with negotiating and executing that … Continue reading

Fun with the DFARS Parts 219, 222, & 223

The first part of Subpart 219.2 can function as a guide for small businesses working on DoD contracts for what they should expect the contracting agency to do, since it contains the standards to which the contracting agency will be held. DFARS 219.201. Because of the Fair Pay and Safe Workplaces Executive Order, later this year or next year, contracting officers will have to ensure that prospective contractors have not violated certain federal labor laws or corresponding state labor laws within the past three years, or the contractors may risk serious problems including suspension/debarment, default, and certification issues. If there is a labor dispute of some type, contractors should notify their contracting officer immediately so they have the opportunity to explain the situation and prevent … Continue reading

Fun with the DFARS Parts 216, 217, & 218

If a contractor and contracting officer wish to use a cost-plus-award-fee contract, they must refer to DFARS Part 216.405-2 and PGI 216.405-2. In the wake of allegations of contractors being paid unearned award fees, contractors must be particularly careful to follow this guidance, or risk reduction or denial of their award in accordance with DFARS Part 252.216-7004. Multiyear contracts are best used when there are many long-lead items that would necessarily be included in execution of the contract. However, contracting officers must still ensure that there is an economic benefit in using a multiyear contract instead of an annual procurement approach, and often must provide at least 30 days’ notice to the congressional defense committees before entering into the multiyear contract. DFARS Part 217.170. The … Continue reading

Fun with the DFARS Part 215

Per DFARS Subpart 215.371-2, contracting officers must promote competition, especially in the context of receipt of only one offer. However, even if more than one offer is received, the prices offered are not automatically fair or reasonable. Thus, contracting officers must still perform a price analysis. PGI 215.402 sets out procedures for buying supplies and services at fair and reasonable prices. Contracting officers have a responsibility to ensure fair and reasonable prices in all situations, and offerors have a corresponding responsibility to provide any relevant data the contracting officer might need to determine a fair and reasonable price, per FAR 15.402(a)(2). Per DFARS Subpart 215.470, the Government cannot ask for data it already has. If certain data were already submitted to the Government under another … Continue reading

Fun with the FAR Parts 36, 37, 41, & 48

1. Contracting officers are required to procure architect-engineer services under FAR Part 15 negotiation procedures. FAR 36.103. 2. Contracts for the construction of a project shall not be awarded to the firm that designed the project, or to that firm’s subsidiaries or affiliates, without the approval of the agency head or their authorized representative. FAR 36.209. 3. Solicitations for construction contracts are required to contain the Government’s estimated price range for the project. FAR 36.205. 4. Performance based services contracts shall include (i) a performance work statement (PWS) or statement of objectives (SOO), (ii) measurable performance standards and the method of assessing a contractors performance against the performance standards, and (iii) performance incentive payments when appropriate. FAR 37.601. 5. The GSA has the authority to … Continue reading

Fun with the FAR Parts 34 & 35

1. The stages of a FAR Part 34 -Major System Acquisition are: Concept Formulation Demonstration & Validation Full-Scale Development Production FAR 34.005-3, -4, -5, and -6. 2. EVMS reports must be submitted by contractors on a monthly basis. FAR 34.201(c). 3. During the negotiation of R&D contracts, the contracting officer should obtain “complete information” concerning the prime contractor’s plans to subcontract any experimental, research, or development services required under the statement of work. FAR 35.009. 4. FFRDCs are established and operate under what is known as a “Sponsoring Agreement.” FAR 35.017. The essential elements of a Sponsoring Agreement can be found at FAR 35.017(c). 5. The National Science Foundation maintains a master list of all FFRDCs. FAR 35.017-6.