The Answer Book
Charles D. Solloway (Author)
Publication date: 02/01/2013
The Answer Book
Charles D. Solloway, Jr., CPCM
Charles D. Solloway, Jr., CPCM, has more than 40 years of acquisition experience in the government and private sector. As a civilian employee of the U.S. Army, he held positions as buyer, contract specialist, contract negotiator, procurement analyst, contracting officer, director of contracting, and principal assistant responsible for contracting. Solloway twice received the U.S. Army’s highest civilian award, the Decoration for Exceptional Civilian Service, for innovations in contracting.
He has authored or co-authored a number of textbooks, including the comprehensive Source Selection Step by Step, and has published many magazine articles on acquisition topics. He has taught thousands of acquisition professionals for private organizations such as Management Concepts Inc., for the Federal Government, and for institutions such as the Florida Institute of Technology.
A Certified Professional Contracts Manager (CPCM) and a Fellow of the National Contract Management Association (NCMA), Solloway serves on the NCMA Special Topic Committee on Contract Management Education.
This chapter is devoted to questions and answers that involve the basics of contract management, and it defines the key players involved in the contract management process. This information is essential for those new to the field and can serve as a reminder for the rest of us.
1 What is known as the vision for the federal acquisition system?
Part 1 of the Federal Acquisition Regulation (FAR) describes this vision for the acquisition system:
•Participants in the process should work together as a team and be empowered to make decisions within their areas of responsibility. They should keep in mind that the system exists to serve the customer.
•The acquisition team includes representatives of the technical, supply, and procurement communities; the customers they serve; and the contractors that provide supplies and services.
It is important to keep the team approach in mind when involved in contract management or any other aspect of federal government acquisition.
Once a contract is awarded, it is monitored by both government and contractor personnel to determine compliance with the terms and conditions of the contract and to identify any remedial or other actions that should be taken. These contract management actions might include increases or decreases in cost or price, changes in terms and conditions, the execution of contract provisions that allow the ordering of additional supplies or services, and even termination of the contract. They might also include any steps needed to close out the contract once the contract requirements have been satisfied.
For the most part, contract administration and contract management are used as synonyms. Among some professionals, however, contract administration is viewed as simply monitoring performance and reacting when noncompliance occurs. Those professionals might view contract management as a proactive process whereby potential problems are identified early and management actions are taken to avoid or minimize contract noncompliance.
3 Who is involved in contract management?
From the government side, the contracting officer is definitely a key player, because only a duly constituted and appropriately assigned contracting officer has the authority to obligate the government in contractual matters.
Other government personnel involved in contract management can include the project or program managers who have overall responsibility for the contract requirement being procured, contract specialists, legal counsel, contracting officer’s representatives (CORs), contracting officer technical representatives (COTRs), quality assurance representatives (QARs), property administrators, small business advisors, and any of a host of other government functional specialists. All of these persons may advise and make recommendations to the contracting officer in matters involving contract performance.
From the contractor side, those involved in contract management include anyone who might be given real or implied authority for this purpose by the business owner(s) or corporation executives.
No. The courts have consistently held that the government has a duty to cooperate in the fulfillment of the contract. This does not mean that the government cannot insist upon scrupulous compliance with the contract. But it does mean that the government must comply with any promises that it makes in the contract, such as the timely furnishing of government property, the sharing of needed information, and the timely inspection or review of contractor submissions.
The government is required to perform contract management functions without unduly impeding the contractor. For example, the courts have held the government monetarily liable for inspections that were too stringent and for unwarranted nitpicking during the course of the contract. What is “too stringent” or “nitpicking” is often in the eye of the beholder, but certainly nothing is gained by either party when it occurs—and it can ultimately cost time and money for everyone involved.
5 Is there only one contracting officer for a contract?
There may be one or more than one. The contracting officer who awarded the contract, sometimes known as the principal contracting officer or procuring contracting officer (PCO), may delegate some or all of his or her contract management responsibilities to an administrative contracting officer (ACO). For example, a PCO could delegate all other contract monitoring functions to an ACO while retaining the sole right to issue contract changes. If a contract is terminated, the authority to reach a termination settlement may be delegated to a termination contracting officer (TCO), a contracting professional who specializes in that arena.
In the majority of cases, however, there is only one contracting officer—the PCO who performs both procuring and administrative functions.
The agency involved appoints a successor contracting officer.
7 Are contract administration offices established for providing contract management services to procuring contracting officers?
Yes. The Federal Directory of Contract Administrative Services Components identifies elements that are assigned contract administrative responsibilities for specific geographic areas and contractor plants. This directory is maintained by the Defense Contract Management Agency (DCMA) and can be accessed through www.dcma.mil. The components listed are most often called contract administration offices, and they may be used by any agency pursuant to an inter-agency agreement.
8 May an administrative contracting officer who has been delegated responsibility by a procuring contracting officer further assign administrative functions to a contract administration office?
Yes. FAR Part 42 permits this.
9 How does the contracting officer function as a team member in contract management?
The federal courts and federal regulations have always placed great emphasis on the independence of the contracting officer. Although contracting officers have a responsibility to seek out expert opinion, the decisions that they make must be their own. It is in seeking out expert opinion, making prudent business decisions, and working toward customer goals that the contracting officer functions within the team environment envisioned in the FAR.
While working within the team, the contracting officer is nonetheless held accountable for the following:
•Following laws and regulations
•Treating contractors fairly.
10 Where can one go for additional guidance on contract management?
Government contracting is a complex and often changing business arena. To better understand and remain abreast of contract management requirements, government acquisition professionals and their private-sector counterparts normally rely on the following:
•Agency supplements to the FAR
•Agency manuals and guides on contract management
•The advice and counsel of agency or company personnel known to be expert in contract management matters
•Training courses offered by the government and private providers, such as the Defense Acquisition University, the VA University, Management Concepts Incorporated, and others
•Decisions of the boards of contract appeals or the federal courts regarding contractor claims (These decisions serve as precedent for the contracting officer and other acquisition team members when making future decisions involving comparable circumstances. A number of commercial publications that summarize and discuss many of these decisions are available.)
•Private publications such as this book and newsletters like the Federal Acquisition Report (published by Management Concepts Press).
11 Are there contractor equivalents of the contracting officer and the government project officer?
There is frequently a contractor employee who is given these types of responsibilities. This person may be called a contract manager, a project manager, a business manager, or by some other title. Generally, the responsibilities of such a person include the following:
•Keeping records pertaining to the contract, including correspondence with the government and records of meetings with the customer
•Troubleshooting when contract issues arise
•Overseeing contractor compliance with the terms and conditions of the contract and associated factors such as Department of Labor and Environmental Protection Agency requirements
•Requesting contract changes, as appropriate, and negotiating any equitable adjustments made necessary by government-approved or government-initiated changes
•Any other assigned contract responsibilities.
Just as the contracting officer must consider both the interests of the government and the fair treatment of the contractor, the contractor’s contract manager must consider both the interests of the government and the interests of his or her employer.
12 What is the role of the project office or program office in contract management?
Contracts are normally entered into in support of a specific project or program or functional area. (For example, a contract might be for a new weapons system, a study of infectious diseases, or support of an agency’s information technology operations.) The project or program office acts as the sponsoring activity for the particular contract effort and is largely responsible for the much of the content of the government solicitation and resulting contract. Associated tasks would include developing statements of work, assisting in market research and the subsequent formulation of an acquisition strategy, establishing contract performance standards, and myriad other essential acquisition-related tasks. In most cases, the project or program office nominates the COR or COTR.
During the contract management phase, the project or program manager must work closely with the contracting officer and advise the contracting officer of the impact on the project or program involved when contract issues arise. The program manager also normally controls the purse strings and is the source of funds needed for contract management matters, including funding overruns on cost reimbursement contracts or paying the cost of any changes made to the contract.
The agency contracting officer (along with the user when the end user is an entity other than the program or project office) considers the program or project office “the customer.” Often it is a challenging task for the contracting officer to “please the customer” while still complying with laws, regulations, and policies.
13 What is the difference between a contracting officer’s representative and a contracting officer’s technical representative?
Usually they are synonyms. The FAR permits a contracting officer to appoint technical representatives for specific contracts. For many years, the FAR provided no particular title for these appointed persons. In recent years, in long-overdue recognition of the importance of the COR in contract management, the FAR has provided for appointment of a “COR.”
14 What is the FAR guidance with respect to the contracting officer’s representative?
•Permits the contracting officer to retain duties normally given to a COR
•If COR duties are not retained, requires the contracting officer to appoint, in writing, a COR on all contracts and orders that are not firm-fixed price
•Permits the contracting officer to appoint a COR on fixed-price contracts, as appropriate
•Requires that the COR be a government employee
•Provides that the COR must obtain and maintain required COR certification
•Requires that the COR assist in the administration of the contract
•Requires that the COR not be delegated responsibilities that have been delegated to a contract administration officer
•Requires that the COR maintain a file for each assigned contract that includes, as a minimum
–A copy of the contracting officer’s letter of designation and other documents describing the COR’s duties and responsibilities
–A copy of the contract administration functions delegated to a contract administration office that may not be delegated to the COR
–Documentation of COR actions taken in accordance with the delegation of authority.
15 Should the contracting officer’s representative file contain more than the FAR-required minimum?
Absolutely. The Office of Federal Procurement Policy, in a best practices guide, suggests that the COR maintain a file that includes all correspondence, inspections, memos, trip reports, records of conversations with contractor personnel, and invoices. The file should also include a copy of the contract, any modifications to the contract, and the COR appointment letter.
Some CORs maintain a daily diary of events—a good idea for both the individual and the contracting parties, since it might prove to be valuable later when the contracting parties are trying to accurately reconstruct events.
16 What is the normal agency process for appointing the contracting officer’s representative?
Standard practice is to appoint a single technical expert who is given the primary responsibility for day-to-day monitoring of the contract. CORs are appointed by a letter from the contracting officer that clearly delineates their contract responsibilities and the limitations on their authority. Many agencies furnish a copy of this letter to the contractor involved. Exhibit 1-1 is a sample of such a letter. It is also normal practice to furnish a copy of the letter to the functional supervisor of the COR, and some agencies require that the supervisor sign off on the letter to indicate concurrence in the assignment of this additional responsibility.
Usually the COR or COTR is chosen because of his or her technical expertise and is nominated by the project or program office. Although the titles COR or COTR have through practice become the norm for identifying this key individual, some agencies have used other titles such as government technical representative. Although relatively rare, some agencies have had both CORs and COTRs, one of whom might be subordinate to the other. Again in relatively rare cases, some contracting offices have CORs who are not technical experts but instead are employees of the government contracting office.
Because the FAR now specifically uses the title contracting officer’s representative (COR), a relatively recent occurrence, it is likely that other titles will disappear over time. In addition to appointing a COR, it is normal practice for the contracting officer to appoint an alternate who is authorized to act only in the absence of the COR.
17 What are the contract management duties of the contracting officer’s representative?
Usually a contract, or a task order of sufficient duration and complexity, has a COR to act as “the eyes and ears” of the contracting officer.
The specific duties of the COR are set forth in the appointment letter from the contracting officer and can include a wide variety of oversight and record-keeping duties. In some cases, the COR may be authorized to give “technical direction” to the contractor, although he or she is not allowed to change the contract.
It is important for the COR to realize that he or she is usually the face of the government to contractor employees, and contractor employees might erroneously assume that the COR has the full authority of the government. Accordingly, CORs must be sensitive to this perception and judicious in what they say or do in order to avoid inadvertently exceeding their authority.
18 What exactly is the relationship between the contracting officer’s representative and the contracting officer?
As stated previously, the COR acts as a representative of the contracting officer and is subordinate to the contracting officer with respect to contract-related activity. In most cases, however, especially where the COR is from a program or project office, the COR has a functional supervisor, other than the contracting officer, to whom the COR reports.
Exhibit 1-2, originally published in Contract Management magazine as a letter to the editor (May 1997: page 54), briefly outlines some of the challenges traditionally faced by the COR, including serving two masters.
19 What is the role of the contract specialist in contract management?
Contracting officers are often assisted in contract management matters by acquisition professionals known as contract specialists. As is the case with the contracting officer, they are expert in contracting processes, procedures, and policies. However, they do not have the authority to enter into a contract or change a contract.
Contract specialists typically do most of the routine tasks in the contracting office, such as preparing solicitations and contracts, preparing letters for the contracting officer’s signature, routinely communicating with the COR and other technical representatives, and communicating with the contractor on most routine matters.
Depending on the method of operation of the particular contracting office involved, the contract specialist might have an extraordinary range of contract management responsibility. For example, it might be a contract specialist who negotiates the cost and schedule impact of contract changes and who reaches a “tentative agreement” with the contractor. (The agreement is tentative pending concurrence of the contracting officer because only a contracting officer may obligate the government.) Since the contract specialist coordinates closely with the contracting officer while working on such matters, such tentative agreements are rarely changed.
20 What is the role of legal counsel in contract management?
Legal counsel for the government furnishes advice to the contracting officer as to possible contract remedial actions, the legal sufficiency of proposed contract management actions, and matters such as the following:
•Intellectual property rights
•The wording of correspondence and contract modifications
•Other matters brought to the attention of counsel by the contracting officer.
Legal counsel in the private sector furnishes equivalent services to contractor contract managers. The extent of involvement of legal counsel in the contracting process varies from agency to agency and from contractor to contractor.
Government and contractor attorneys, as members of the acquisition team, are most effective when they are mission-oriented and work closely with other members of the team in achieving acquisition goals in a manner that is effective and efficient while remaining compliant with laws and regulations.
21 What is the role of the government inspector in contract management?
This person, who is sometimes the COR and at other times is a separate person, performs the inspection and acceptance services set forth in the contract and in the quality assurance surveillance plan. As explained later in this text, this is an especially sensitive and critical part of contract management.
Often this individual is known as a QAR or by some similar title.
22 What is the role of the government property administrator in contract management?
This person, whose duties are also sometimes assumed by the COR, is responsible for overseeing the protection of and proper use of government-furnished property, including (in some cases) contractor-acquired property.
23 Are contract management issues the same regardless of the nature of the contract?
Contract management issues are the same only to the extent that contract management is always concerned with quality and delivery requirements. For example, the terms and conditions of commercial item contracts might be quite different from those in contracts for supplies built to government specifications. Cost-reimbursement contract clauses differ considerably from those in fixed-price contracts. Construction contract terms and conditions are quite different from contracts for research and development services and so on. These differences will become more apparent within the various chapters of this book. They must be accounted for in planning for and conducting contract management.
24 Is there a single format for contracts?
No. There are several formats. The two most used are the format for commercial item contracts (see FAR Part 12) and a “uniform” format used for most other contracts. The latter format is known as the Uniform Contract Format, and it is shown in Exhibit 1-3.
25 What is the most frequently asked question when contracting officer’s representatives and others participate in contract management training?
The most frequently asked contract management question is “Can I be held personally liable if I make a mistake?”
There is good news here if you are a government employee. In 1988, the government passed the Federal Employees Reform and Tort Compensation Act. This act gave immunity for any wrongful or negligent action that an employee commits while acting within the scope of his or her office or employment. The act does not apply to patently illegal activities or activities beyond the scope of one’s employment. And, of course, the government may still take whatever personnel action agency officials deem appropriate.
With respect to error or negligence on the part of contractor employees, the government normally holds the contractor liable. Whether the contractor holds the employee liable depends on the policy of the contractor and any applicable federal, state, or local laws.
26 If you had only one tip to give contract managers, what would it be?
Read the contract! Read all of it so that nothing is taken out of context. Make sure you understand it.
27 What about human factors in contract management?
Many people are involved in contract management, and ideally their efforts will be harmoniously blended. However, you might encounter people who are difficult to work with. It has been said that humans resemble the components of a snowstorm: They may often be flaky, and no two are exactly alike.
You have to do the best you can in interpersonal relationships and remain focused on the mission. In an intolerable situation, you might wish to consult with the cognizant contracting officer, your functional supervisor, or some other appropriate agency or contractor official.
Sample Contract Officer Representative (COR) Letter
Note: This is a sample of a COR appointment letter for a services contract as shown in the Department of Interior’s COR Manual. It was selected as an example here because of the wide range of issues it covers. COR letters are normally tailored to the contract involved and might be less inclusive than the one shown here.
|To:||[enter individual’s name and mailing address]|
|From:||[enter CO’s name], Contracting Officer|
|Subject:||Appointment as Contracting Officer’s Representative to [insert Bureau] Contract No. [Enter#]|
You are hereby appointed to serve as Contracting Officer’s Representative for Contract No. [enter contract no.] awarded to [enter vendor name and address] . Your appointment will be in effect until final completion of the project, or until terminated or superseded by the Contracting Officer. By copy of this appointment, the contractor is being advised of your authority.
If potential for a conflict of interest with your appointment as a COR develops, you shall advise your supervisor and the Contracting Officer of the conflict so that appropriate actions may be taken. CORs shall avoid the appearance of a conflict of interests to maintain public confidence in the U.S. Government’s conduct of business with the private sector.
Attached are the “Instructions to Contracting Officer’s Representative,” which provide you with details as to the scope of your authorities and responsibilities. It is important that you thoroughly review and familiarize yourself with the attached instructions and the terms and conditions of the subject contract, and applicable Federal Acquisition Regulation. Proactive contract monitoring, especially attention to required delivery and/or performance dates, is critical to protect the government’s interests.
If you should have any questions regarding the attached instructions or any aspect of the subject contract, please contact me immediately at [enter CO phone & fax numbers, email address, mailing address, etc.].
Please acknowledge receipt of this memorandum and the attached instructions by returning a signed copy of this appointment memorandum to me at the mailing address listed above.
|Supervisor of appointed COR|
SAMPLE ATTACHMENT - INSTRUCTIONS TO COR
Please tailor to each contract and appointment .
Contract No:___________ Vendor:___________
When performing your duties under this appointment, you must be aware of the need to protect the Government’s interests, and maintain an impartial, arm’s-length relationship with the contractor. Avoid any action that places you in a real or apparent conflict-of-interest position that may compromise the Department of the Interior’s position or impair public confidence in integrity or independence.
You are the official Government representative for technical and administrative matters under this contract. To prepare for these duties, we recommend you take the following actions:
a.Read and make sure you understand the terms of the contract. Discuss any unclear areas with the Contracting Officer. In particular, make sure you understand the administrative procedures required for initiating actions under the contract, such as issuance of delivery orders or exercise of contract options, including your responsibilities for initiating additional requisitions.
–your copy of the contract, memorandum of appointment, and these instructions;
–copies of any relevant correspondence;
–record of any telephone conversations or other communications with the contractor; and
–other records of the contractor’s performance, such as reports of in-process inspections, visits to the contractor’s facility, and service reports. These items will vary depending on the nature of the contract.
c.Review the contract’s schedule for deliveries, completion dates, option/renewal dates, and any other report or data submission dates, and establish a log or tracking system to make sure you are prepared and available for upcoming actions.
d.If the contract is expected to result in scientific publications, there is potential for conflict of interest if the COR who evaluates contractor funding and payment requests is also listed as a coauthor on any resultant publications. If applicable, discuss any potential conflicts with the Personnel Officer to ensure no standard of conduct violation will occur.
2.General and Administrative Information
a.Know the scope and limitations of your authority and use reasonable care in exercising your authority.
b.Safeguard the contractor’s confidential business and technical information. Confidential information may include proposal pricing, technical documentation, or personnel data. Do not release any information without first consulting the Contracting Officer to determine if such release of information is permissible.
c.Notify the Contracting Officer immediately of any matter related to this contract that may need his or her action.
d.Furnish the Contracting Officer copies of all pertinent trip reports, conference reports, and copies of all correspondence.
f.After the contract is completed, you may be required to write an evaluation of the contractor’s technical performance. The Contracting Officer will provide any specific forms if required.
g.Notify the Contracting Officer whenever you become aware of events or changes, whether permanent or temporary, that will impair your ability to perform any of your duties as COR.
h.When necessary, due to distance or geographic dispersion of sites, you may designate other employee(s) to perform inspections or monitor stated aspects of performance. These individuals may act as your “eyes and ears” at the worksite, but may not be delegated your authority to make decisions or to represent the Government in communications with the contractor. You should instruct any such employees to immediately refer to you any potentially controversial matters they encounter with the contractor.
i.In accordance with Departmental and bureau procedures, coordinate and validate contractor’s staff are compliant with applicable IT security requirements, including Homeland Security Presidential Directive (HSPD) 12.
3.Technical Liaison, Monitoring and Inspection
a.Interpret Government drawings and specifications for the Contracting Officer and, upon specific written authorization from the Contracting Officer, provide that information to the contractor.
b.Coordinate site entry for contractor personnel and ensure that any Government-furnished property is available when required.
c.Review contractor requests for travel, overtime, equipment, or subcontracting not approved by the Contracting Officer before award. Analyze the contractor’s technical and management reports.
d.Provide the Contracting Officer with technical recommendations on Government or contractor-proposed changes, including assessments of their specific impact on the contract and its cost or price. Upon request of the Contracting Officer, assist in negotiating post-contract claims and termination adjustments.
e.Observe the contractor at work to determine if performance complies with the contract. This includes observation of the work system, methods, and execution.
f.Immediately notify the contractor and Contracting Officer of any potentially hazardous working conditions. The contractor is always required to comply with federal Occupational Safety and Health Administration (OSHA) guidelines, as well as any state or local requirements for workplace safety, even on a federal facility.
g.Record and report to the Contracting Officer incidents of nonconforming work, delays, or problems, including inadequacies, discrepancies, or questionable practices for corrective action. In addition, you are required to submit a monthly report concerning performance of services rendered under this contract. Advise the Contracting Officer of the following situations:
–possible changes in contractor management or key personnel, including clauses, if it affects security access to IT systems and/or government facilities;
–potential labor disputes or workforce problems;
–disagreements with contractor as to specification/Statement of Work requirements or other potential disputes with the contractor, technical or otherwise;
–lack of progress that may jeopardize the performance/delivery schedule; and
–hazardous working conditions, including contractor’s planned corrective action.
h.If a potential dispute or delinquency arises, your communications with the contractor must be limited to fact-finding and obtaining recommendations from the contractor on efforts he/she proposes to achieve compliance with the specifications. Avoid any discussions with the contractor concerning disputed matters to prevent later charges that you agreed to or directed any changes in the contract terms.
i.Do not agree to any revised delivery or completion date or start date for services. Also, be careful not to make any statements to the contractor that could arguably infer as an authorized extension, such as indicating that you do not really need the item by the specified date. If you “informally” waive or extend the original date and the contractor’s performance becomes even more delinquent, it may be impossible for the Department of the Interior to enforce contract terms or use the contract’s remedies.
j.You are not empowered to award, agree to, or sign any contract (including delivery orders) or contract modification, or in any way to obligate the payment of money by the Government. You may not take any action, which may affect contract or delivery order schedules, funds, or scope. The Contracting Officer shall make all contractual agreements, commitments or modifications that involve price, quantity, quality, delivery schedules or other terms and conditions of the contract. You may be personally liable for unauthorized acts.
k.If the Government is billed based on hours worked, monitor the contractor’s hours expended (including overtime, if applicable), and determine whether the qualifications of workers performing under the contract are commensurate with the qualification requirements stated in the contract.
4.Inspection and Acceptance
a.Inspect all deliverable items, services, or materials to determine satisfactory compliance with the contract. Accept or recommend to the Contracting Officer rejection of contract deliverables.
b.For off-the-shelf commercial items, inspection is usually limited to verification of:
–type and kind (Is this the item we ordered—correct size, color, model or part number, if specified in the contract?);
–the quantity delivered;
–any visible damage (including damage to packing materials for items subject to internal damage from rough handling); and
–operability (Is it in working order?).
d.You are usually entitled to seven (7) calendar days to inspect deliverable item(s). If your item requires a detailed inspection of acceptance testing, the contract probably provides a longer period. The contract will indicate if a longer acceptance period is planned. Make sure you act promptly to perform your inspections or acceptance testing within the allotted time. If you have doubts about the item’s compliance with the specification, do not accept it just because the acceptance period is running out. Be advised, however, that delays in inspection may result in payment of interest penalties to the contractor once the items are finally accepted.
e.Acceptance Test Procedures: If you provided or requested special acceptance testing procedures during the solicitation phase of the procurement, they will be as specified in the contract. Be sure you precisely follow the version of those procedures found in the contract award document, not a previous or subsequently revised version. If you find the acceptance test procedures need revision, ask the Contracting Officer to modify the contract to incorporate the changes.
f.Performance [Test] Period: Highly complex items (such as IT) typically are required to perform successfully in the Government’s working environment for a specified period (usually 30 days) before the Government accepts the item. Language there will include acceptable downtime percentages or mean time between failure standards, or other factors to be used to determine when the equipment or software has satisfied the performance [test] period requirements.
g.If the delivered items (equipment, photography, report, etc.) do not meet the contract’s inspection or acceptance requirements, immediately inform the Contracting Officer of this fact.
5.Invoices and Payment
Review contractor invoices for payment, and recommend approval or disapproval as directed by the Contracting Officer. If this contract is subject to the Prompt Payment Act, the Government must pay interest penalties if invoices are not paid on time. Interest penalties will be paid out of your program funds.
Note: Contract payment procedures are not the same as you may have previously used for small purchase actions. Please follow carefully the instructions given by your contracting officer regarding handling of invoices.
Immediately upon acceptance of item(s)/services, certify the invoice. Record on the invoice (1) the date goods were received (or services completed), and (2) the date accepted.
All these dates are necessary in order for our finance office to compute the correct payment due date. Payment is due 30 days from the “constructive” acceptance date (seven days after receipt of goods, unless the contractor provides longer acceptance date) or the actual acceptance date, whichever occurs first. If the invoice is not received until after acceptance, payment is due 30 days after receipt of the invoice. If the invoice receipt date is not recorded, the invoice issue date is used to compute the payment due date.
If progress payments are allowable under this contract, you are responsible for reviewing the invoice to determine if the work is progressing under the contract in accordance with the schedule. If you have any suspicion that the contract work is falling behind schedule or that the billings are running ahead of the work you must notify the Contracting Officer immediately. After you review and recommend approval of a progress voucher, the Contracting Officer must also review it and certify it for payment.
c.Interim Cost Vouchers
If this is a cost contract, the contractor is entitled to be reimbursed periodically for all reasonable costs incurred in performing the contract. You should review such vouchers to make sure charges are commensurate with observed performance. It is your responsibility to question or accept direct charges such as labor, materials, travel, etc. Alert the Contracting Officer if the billing includes material or equipment charges of undelivered items due at the work site. The Contracting Officer is responsible for verifying correctness of indirect rates, fringe benefits, and fees, if any. After you approve the voucher, return it to the Contracting Officer who will also approve and forward the voucher to the appropriate finance office.
6.Government-Furnished Material, Equipment, Facilities (GFM)
a.You are not authorized to provide any Government-owned (or leased) equipment or supplies or use of Government space to the contractor, other than those specifically listed in the contract.
b.If a need arises to provide Government-furnished material (GFM) or facilities (other than any items already listed in the contract), promptly advise the Contracting Officer so that the contract can be modified to reflect this change in GFM and so any appropriate adjustments to the contract can be negotiated with the contractor.
c.If the contract provides (or is modified to provide) for the Government to furnish facilities, supplies or equipment for performance of work under the contract, it is your responsibility to ensure that such items are provided at the times and places stated in the contract, in satisfactory condition. You should keep a record of the date for received items and obtain a receipt of acknowledgement from the vendor. This document serves to protect both the Government (in event of a dispute with the contractor) and our custodial and accountable property officers (in the event the property is lost or damaged in the contractor’s possession).
d.Do not furnish items of controlled property to a contractor without the knowledge and consent of both the accountable and custodial property officers and ensure that the item is listed in the contract. Bureau/Office property management procedures hold employees who improperly transfer controlled property liable for any loss or damage to such property. The DOI Property Management Handbook contains procedures regarding designation of property officers and requirements for maintenance of property records.
e.During performance of the contract, it is your responsibility to monitor the contractor’s use and care of any Government-furnished equipment or materials. If you believe the contractor is using the item for unauthorized purposes or is not providing adequate maintenance or security for the property, you have authority to bring your concerns to the contractor’s attention. If the contractor does not agree to remedy the problem, or indicates that your requested action will delay or increase the cost of performance, refer the matter to the Contracting Officer.
f.If an item of controlled property is reported lost, stolen, or damaged by the contractor, or becomes worn out through normal wear and tear, you must make sure the action is reported to the Contracting Officer. You are also required to submit appropriate property report forms in accordance with established bureau property management procedures.
g.You are responsible for receipt, inspection, and acceptance of any residual GFM (including all items of controlled property) when the contractor’s work is completed. After its return, inspect the GFM and report any deficiencies to the Contracting Officer. Update controlled property records to reflect any additions, deletions, or changes to controlled property items and/or designated property officers.
h.Keep copies of all contract-related correspondence, including reports, invoices, internal memoranda, etc., for six (6) years after the final invoice is paid.
The Heroes in the Trenches
In these days of downsizing and contracting out, the government is relying more and more on the skills and judgments of men and women known as CORs, Contracting Officer Representatives. Actually not all of these individuals are called CORs. Some are called contracting officer technical representatives, or contract project officers, or by some other name. What they have in common is that they were appointed by contracting officers (COs) to oversee activities on one or more contracts. Regardless of the title—and COR seems to hold a slight lead in the title department—they surely have one of the most demanding jobs in government.
These essential individuals are appointed to be the technical representatives of the CO in the day-to-day monitoring of government contracts. They normally are chosen because they have special technical expertise that is not available in the contracting office. For example, the COR on an environmental remediation contract is likely to be an environmental engineer, while the COR on a computer support contract is likely to be a program analyst or other information systems specialist.
To function properly, CORs are expected to stay abreast of their technical skills while receiving adequate training in what many feel to be the most complex business arena in the world—US government contracting. Many CORs are expected to serve two masters. One the CO who appointed the COR and the other the functional supervisor of the COR. On the one hand they are the program advocates, and on the other hand they are the honest brokers looking out for the interests of both the government and the contractor. Sometimes the goals or perspectives of their masters clash, putting the CORs in awkward career situations that could test the persuasive skills of the most seasoned diplomat.
The courts and the appeals boards have traditionally looked on the COR as the “eyes and ears” of the CO and are likely to take the position that anything known to the COR is known or should be known to the CO. Accordingly, a prudent COR stays in close touch with the CO, provided of course that the CO can pull himself or herself away from the brush fire of the moment.
As are others in government acquisition, the COR is subject to the scrutiny of a host of “checkers” including the contracting officer, auditors, inspectors general, and others. CORs are held accountable to make sure they do not give away a right of the government, that only quality goods and services are accepted, that illegal personal services do not occur, that inherently governmental functions are not assumed by the contractor, and that no contractual chicanery is taking place. There are also expected to keep an arms-length relationship with the contractor even while they are walking arm-in-arm in the spirit of partnering.
Some COs delegate authority for the COR to give “technical direction” to the contractor. And then they hold the COR accountable for any “constructive changes” arising from erroneous direction.
In many agencies CORs are considered to be very important persons, while in others they are rarely given credit when things go right and attain management visibility only when things go wrong. Their working environment has been described by some as a minefield and by others as a goldfish bowl.
Nonetheless being a COR is being where the action is. A competent COR can make the difference between a contract success and a contract disaster. And that can translate to mission success or failure.
CORs must get the job done while complying with laws and regulations and withstanding the scrutiny of the auditors and investigators. They must remain abreast of technology and the constantly changing acquisition regulations. Too often they must rely on self satisfaction alone as job motivation. It takes a special kind of person to be a competent COR. It’s amazing that we have found so many.
Charles D. Solloway Jr., CPCM
Charles Solloway Associates
NCMA Fellow, Special Topic Committee on Contract Management Education Upper Chesapeake Chapter
Reprinted with permission from Contract Management, May 1997.
The Uniform Contract Format (FAR Part 15)
Part I – The schedule
BSupplies or services and price/costs
CDescription/specifications/statement of work
DPackaging and marking
EInspection and acceptance
FDeliveries or performance
GContract administration data
HSpecial contract requirements
Part II – Contract clauses
Part III – List of documents, exhibits, other attachments
JList of attachments
Part IV – Representations and instructions
KRepresentations, certifications, and other statements of offerors or respondents
LInstructions, conditions, and notices to offerors or respondents
MEvaluation factors for award
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