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NCMA CERTIFICATION STUDY GROUP FEBRUARY 18, 2010

NCMA CERTIFICATION STUDY GROUP FEBRUARY 18, 2010. FAR PARTS 10-14 https://www.acquisition.gov/far/. Instructor: W. Ryan, Manager Procurement and Grants Office (PGO) Office of Policy Oversight and Evaluation. FAR Part 10. MARKETING. FAR 10: Market Research. 10.001  Policy.

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NCMA CERTIFICATION STUDY GROUP FEBRUARY 18, 2010

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  1. NCMA CERTIFICATION STUDY GROUPFEBRUARY 18, 2010 FAR PARTS 10-14 https://www.acquisition.gov/far/ Instructor: W. Ryan, Manager Procurement and Grants Office (PGO) Office of Policy Oversight and Evaluation

  2. FAR Part 10 MARKETING

  3. FAR 10: Market Research 10.001  Policy. (a) Agencies must— • Ensure that legitimate needs are identified and trade-offs evaluated to acquire items that meet those needs; • Conduct market research appropriate to the circumstances— • Before developing new requirements • Before soliciting offers for acquisitions whose value exceeds the simplified acquisition threshold • Before soliciting offers for acquisitions valued less than the simplified acquisition threshold • Before soliciting offers for acquisitions that could be bundled • To the maximum extent possible, use market reseach to identify the capabilities of small businesses and new entrants into Federal Contracting

  4. MARKET RESEARCH10.001  Policy, cont. Use the results of market research to – Determine if sources capable of meeting agency needs exist Determine if commercial items or nondevelopmental items are availabile to meet agency requirements or can be modified to do so Determine the extent to which commercial items or nondevelopmental items could be incorporated at the component level; Determine the practices of firms engaged in producing, distributing, and supporting commercial items, such as type of contract, terms for warranties, buyer financing, maintenance and packaging, and marking;

  5. MARKET RESEARCH10.001  Policy, cont. • Use the results of market research to • (v) Ensure maximum practicable use of recovered materials (see Subpart 23.4) and promote energy conservation and efficiency; and • (vi) Determine whether bundling is necessary and justified (see 7.107) (15 U.S.C. 644(e)(2)(A)). • (vii) Assess the availability of electronic and information technology that meets all or part of the applicable accessibility standards issued by the Architectural and Transportation Barriers Compliance Board at 36 CFR Part 1194 (see Subpart 39.2).

  6. MARKET RESEARCH10.001  Policy, cont. (b) Agencies should not request any more information from potential sources than the minimum necessary • If an agency contemplates awarding a bundled contract • Consult with the local Small Business Administration (SBA) Procurement Center Representative (PCR) • Notify any affected incumbent business concerns of how they may contact the appropriate

  7. MARKET RESEARCH10.002  PROCEDURES • Acquisitions begin with a description of the Government’s needs stated in terms sufficient to allow conduct of market research. (b) Market research is then conducted to determine if commercial items or nondevelopmental items are available to meet the Government’s needs or could be modified to meet the Government’s needs. (c) If market research indicates commercial or nondevelopmental items might not be available to satisfy agency needs, agencies shall reevaluate the need in accordance with 10.001(a)(3)(ii) and determine whether the need can be restated to permit commercial or nondevelopmental items to satisfy the agency’s needs

  8. MARKET RESEARCH10.002  PROCEDURES, cont. (d)(1) If market research establishes that the Government’s need may be met by a type of item or service customarily available in the commercial marketplace that would meet the definition of a commercial item at Subpart 2.1, the contracting officer shall solicit and award any resultant contract using the policies and procedures in Part 12. (2) If market research establishes that the Government’s need cannot be met by a type of item or service customarily available in the marketplace, Part 12 shall not be used. When publication of the notice at 5.201 is required, the contracting officer shall include a notice to prospective offerors that the Government does not intend to use Part 12 for the acquisition. (e) Agencies should document the results of market research in a manner appropriate to the size and complexity of the acquisition.

  9. FAR Part 11 DESCRIBING AGENCY NEEDS

  10. 11.002  Policy. • In fulfilling requirements of 10 U.S.C. 2305(a)(1), 10 U.S.C. 2377, 41 U.S.C. 253a(a), and 41 U.S.C. 264b, agencies shall— • Specify needs using market research in a manner designed to— • Promote full and open competition (see Part 6), or maximum practicable competition when using simplified acquisition procedures, with due regard to the nature of the supplies or services to be acquired; and (ii) Only include restrictive provisions or conditions to the extent necessary to satisfy the needs of the agency or as authorized by law.

  11. 11.002  Policy, cont. (2) To the maximum extent practicable, ensure that acquisition officials— • State requirements with respect to an acquisition of supplies or services in terms of— • Functions to be performed; (B) Performance required; or (C) Essential physical characteristics;

  12. 11.002  Policy, cont. (ii) Define requirements in terms that enable and encourage offerors to supply commercial items, or, to the extent that commercial items suitable to meet the agency’s needs are not available, nondevelopmental items, in response to the agency solicitations; (iii) Provide offerors of commercial items and nondevelopmental items an opportunity to compete in any acquisition to fill such requirements; (iv) Require prime contractors and subcontractors at all tiers under the agency contracts to incorporate commercial items or nondevelopmental items as components of items supplied to the agency; and (v) Modify requirements in appropriate cases to ensure that the requirements can be met by commercial items or, to the extent that commercial items suitable to meet the agency’s needs are not available, nondevelopmental items.

  13. 11.002  Policy, cont. (b) The Metric Conversion Act of 1975, as amended by the Omnibus Trade and Competitiveness Act of 1988 (15 U.S.C. 205a, et seq.), designates the metric system of measurement as the preferred system of weights and measures for United States trade and commerce (c) To the extent practicable and consistent with Subpart 9.5, potential offerors should be given an opportunity to comment on agency requirements or to recommend application and tailoring of requirements documents and alternative approaches. Requiring agencies should apply specifications, standards, and related documents initially for guidance only, making final decisions on the application and tailoring of these documents as a product of the design and development process. Requiring agencies should not dictate detailed design solutions prematurely (see 7.101 and 7.105(a)(8)).

  14. 11.002  Policy, cont. (d)(1) When agencies acquire products and services, various statutes and executive orders (identified in Part 23) require consideration of— (i) Energy-efficient products and services (Subpart 23.2); (ii) Products and services that utilize renewable energy technologies (Subpart 23.2); (iii) Products containing energy-efficient standby power devices (Subpart 23.2); (iv) Products containing recovered materials (Subpart 23.4); (v) Biobased products (Subpart 23.4); and (vi) Environmentally preferable products and services (Subpart 23.7).

  15. 11.002  Policy, cont. (d)(2) Executive agencies shall consider maximum practicable use of products and services listed in paragraph (d)(1) of this section when— • Developing, reviewing, or revising Federal and military specifications, product descriptions (including commercial item descriptions) and standards; (ii) Describing Government requirements for products and services; and (iii) Developing source-selection factors.

  16. 11.002  Policy, cont. (e) Some or all of the performance levels or performance specifications in a solicitation may be identified as targets rather than as fixed or minimum requirements. (f) In accordance with Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), requiring activities must prepare requirements documents for electronic and information technology that comply with the applicable accessibility standards issued by the Architectural and Transportation Barriers Compliance Board at 36 CFR Part 1194 (see Subpart 39.2).

  17. 11.002  Policy, cont. (g) Unless the agency Chief Information Officer waives the requirement, when acquiring information technology using Internet Protocol, the requirements documents must include reference to the appropriate technical capabilities defined in the USGv6 Profile (NIST Special Publication 500-267) and the corresponding declarations of conformance defined in the USGv6 Test Program. The applicability of IPv6 to agency networks, infrastructure, and applications specific to individual acquisitions will be in accordance with the agency's Enterprise Architecture (see OMB Memorandum M-05-22 dated August 2, 2005). (h) Agencies shall not include in a solicitation a requirement that prohibits an offeror from permitting its employees to telecommute unless the contracting officer executes a written determination in accordance with FAR 7.108(a).

  18. Solicitation Package Contains • Statement of Work (SOW)] • Contract Type & Method • Terms and Conditions • Evaluation Procedures • Instructions for Proposal Preparation & Submission NCMA

  19. NCMA Chapter 4Pre-award Contract CompetenciesRequirements Preparation • Statement of Work – Types Design – • extremely detailed and contains • Required materials • Production processes • Specifications (size, shape, color, tolerances etc) • May limit competition by imposing strict specifications • May result in higher costs • Buyer (Government) assumes almost all the performance risk

  20. NCMA Chapter 4Pre-award Contract CompetenciesRequirements Preparation • Statement of Work – Types • Performance • Specifications relate to minimum acceptable standards, or • Ranges of acceptable performance • Generally considered more flexible and allow contractor to use their strengths and creativity

  21. Statement of Work – Types • Functional • Least restrictive type • Requirements are described in terms of the end product or expected result

  22. Statement of Work • Requirements • Are rarely one type • Tell the offeror what, when, how many, quality standards, timelines, everything that is required to meet the government’s needs With few exceptions, one must know what they need to write a statement of work even if it research and/or development

  23. NCMA Chapter 4Pre-award Contract CompetenciesRequirements Preparation • Parts of the SOW • Objectives • Scope • Description of Work Required • Performance Standards and Reporting requirements • Staffing Requirements • Resources to be Provided • Reference Documents

  24. OtherRequirements Preparation Considerations • Independent Technical Review Requirements • Marketplace Comments • Presolicitation Notices and Conferences

  25. Subpart 37.6—Performance-Based Acquisition 37.601  General. (a) Solicitations may use either a performance work statement or a statement of objectives (see 37.602). (b) Performance-based contracts for services shall include— (1) A performance work statement (PWS); (2) Measurable performance standards (i.e., in terms of quality, timeliness, quantity, etc.) and the method of assessing contractor performance against performance standards; and (3) Performance incentives where appropriate. When used, the performance incentives shall correspond to the performance standards set forth in the contract (see 16.402-2). (c) See 12.102(g) for the use of Part 12 procedures for performance-based acquisitions.

  26. 37.602  Performance work statement. (a) A Performance work statement (PWS) may be prepared by the Government or result from a Statement of objectives (SOO) prepared by the Government where the offeror proposes the PWS. (b) Agencies shall, to the maximum extent practicable— (1) Describe the work in terms of the required results rather than either “how” the work is to be accomplished or the number of hours to be provided (see 11.002(a)(2) and 11.101); (2) Enable assessment of work performance against measurable performance standards; (3) Rely on the use of measurable performance standards and financial incentives in a competitive environment to encourage competitors to develop and institute innovative and cost-effective methods of performing the work.

  27. 37.603  Performance standards. • Performance standards establish the performance level required by the Government to meet the contract requirements. The standards shall be measurable and structured to permit an assessment of the contractor’s performance. (b) When offerors propose performance standards in response to a SOO, agencies shall evaluate the proposed standards to determine if they meet agency needs.

  28. Performance Based (Outcome Based) Objectives Based on the concept that: • The outcome is the important issue • “What did we want?” • “What did we receive?” • The steps along the way (targets) measure progress toward the outcome, can be quantified, and can be linked to the budget Follow the Money!

  29. Performance Based (Outcome Based) Objectives Targets • What has to happen first and when? • Program Evaluation Review Technique “PERT” was one of the first methods • Targets are tracked using MS Project or other software – but they don’t have to be • A simple listing of dates and times will work

  30. Quality Assurance • QA, TQM, Risk Management • All are involved with ONE major issue Identifying what needs to happen and controlling the process to avoid delays and minimize financial risks

  31. Performance Indicators • Are associated with the targets and the budget • Identify exactly what is desired and when • Can be measured (the dreaded metric)

  32. Writing Performance Objectives • Use measurable words (metrics words) that lend themselves to being counted or reported • Compare incidence of TB between 2005 and 2010 (would be a report) • Decrease the incidence of TB by 25% between January 2005 and January 2010 would be statistical data and the “Target” is that 25% controlled by the date

  33. Example • Apply rapid analysis techniques to 100% of samples collected by January 2011. • Targets • Write specifications for equipment by February 2010 • Cost and evaluate sources by March 2010 • Issue purchase order by April 2010

  34. Example, cont. • Targets • Receive and install equipment by June 2010 • Test and calibrate the equipment by July 2010 • Train technicians by September 2010 • Test 25% of clinic patients by October 2010 • Test 75% of clinic patients by November 2010 • 100% of all clinic patients tested by December 2010 • Analyses results compiled and confirmed January 2011

  35. Example, cont.

  36. Example, cont.

  37. Subpart 11.1—Selecting and Developing Requirements Documents 11.101  Order of precedence for requirements documents. (a) Agencies may select from existing requirements documents, modify or combine existing requirements documents, or create new requirements documents to meet agency needs, consistent with the following order of precedence: (1) Documents mandated for use by law. (2) Performance-oriented documents (e.g., a PWS or SOO). (See 2.101.) (3) Detailed design-oriented documents. (4) Standards, specifications and related publications issued by the Government outside the Defense or Federal series for the non-repetitive acquisition of items.

  38. Subpart 11.1—Selecting and Developing Requirements Documents 11.101  Order of precedence for requirements documents. (b) In accordance with OMB Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” and Section 12(d) of the National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113 (15 U.S.C. 272 note), agencies must use voluntary consensus standards, when they exist, in lieu of Government-unique standards, except where inconsistent with law or otherwise impractical. The private sector manages and administers voluntary consensus standards. Such standards are not mandated by law (e.g., industry standards such as ISO 9000, and IEEE 1680).

  39. 11.102  Standardization program. Agencies shall select existing requirements documents or develop new requirements documents that meet the needs of the agency in accordance with the guidance contained in the Federal Standardization Manual, FSPM-0001; for DoD components, DoD 4120.24-M, Defense Standardization Program Policies and Procedures; and for IT standards and guidance, the Federal Information Processing Standards Publications (FIPS PUBS). The Federal Standardization Manual may be obtained from the General Services Administration (see address in 11.201(d)(1)). DoD 4120.24-M may be obtained from DoD (see 11.201(d)(2) or 11.201(d)(3)). FIPS PUBS may be obtained from the Government Printing Office (GPO), or the Department of Commerce's National Technical Information Service (NTIS) (see address in 11.201(d)(4)).

  40. 11.104  Use of brand name or equal purchase descriptions. • While the use of performance specifications is preferred to encourage offerors to propose innovative solutions, the use of brand name or equal purchase descriptions may be advantageous under certain circumstances. (b) Brand name or equal purchase descriptions must include, in addition to the brand name, a general description of those salient physical, functional, or performance characteristics of the brand name item that an “equal” item must meet to be acceptable for award. Use brand name or equal descriptions when the salient characteristics are firm requirements.

  41. 11.105  Items peculiar to one manufacturer. Agency requirements shall not be written so as to require a particular brand name, product, or a feature of a product, peculiar to one manufacturer, thereby precluding consideration of a product manufactured by another company, unless— (a)(1) The particular brand name, product, or feature is essential to the Government’s requirements, and market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency’s needs; (2)(i) The authority to contract without providing for full and open competition is supported by the required justifications and approvals (see 6.302-1); or (ii) The basis for not providing for maximum practicable competition is documented in the file (see 13.106-1(b)) or justified (see 13.501) when the acquisition is awarded using simplified acquisition procedures.

  42. 11.105  Items peculiar to one manufacturer, cont. (a)(3) The documentation or justification is posted for acquisitions over $25,000. (See 5.102(a)(6).) (b) For multiple award schedule orders, see 8.405-6.

  43. 11.106  Purchase descriptions for service contracts. In drafting purchase descriptions for service contracts, agency requiring activities shall ensure that inherently governmental functions (see Subpart 7.5) are not assigned to a contractor. These purchase descriptions shall— (a) Reserve final determination for Government officials; (b) Require proper identification of contractor personnel who attend meetings, answer Government telephones, or work in situations where their actions could be construed as acts of Government officials unless, in the judgment of the agency, no harm can come from failing to identify themselves; and (c) Require suitable marking of all documents or reports produced by contractors.

  44. Subpart 11.3—Acceptable Material 11.302  Policy. • Agencies must not require virgin material or supplies composed of or manufactured using virgin material unless compelled by law or regulation or unless virgin material is vital for safety or meeting performance requirements of the contract. (b)(1) When acquiring other than commercial items, agencies must require offerors to identify used, reconditioned, or remanufactured supplies; or unused former Government surplus property proposed for use under the contract. These supplies or property may not be used in contract performance unless authorized by the contracting officer. (2) When acquiring commercial items, the contracting officer must consider the customary practices in the industry for the item being acquired. . .

  45. 11.302  Policy, cont. (c)(1) When the contracting officer needs additional information to determine whether supplies meet minimum recovered material or biobased standards stated in the solicitation, the contracting officer may require offerors to submit additional information on the recycled or biobased content or related standards. The request for the information must be included in the solicitation. When acquiring commercial items, limit the information to the maximum extent practicable to that available under normal commercial practices. (2) For biobased products, the contracting officer may require vendors to provide information on life cycle costs and environmental and health benefits in accordance with 7 CFR 2902.8.

  46. Subpart 11.4—Delivery or Performance Schedules 11.401  General. (a) The time of delivery or performance is an essential contract element and shall be clearly stated in solicitations. Contracting officers shall ensure that delivery or performance schedules are realistic and meet the requirements of the acquisition. Schedules that are unnecessarily short or difficult to attain— (1) Tend to restrict competition, (2) Are inconsistent with small business policies, and (3) May result in higher contract prices. (b) Solicitations shall, except when clearly unnecessary, inform bidders or offerors of the basis on which their bids or proposals will be evaluated with respect to time of delivery or performance. (c) If timely delivery or performance is unusually important to the Government, liquidated damages clauses may be used (see Subpart 11.5).

  47. NCMA Chapter 8 Unique Commercial Contracting Competencies (p. 64 – 68)

  48. NCMA – Chapter 8Unique Commercial Contracting Competencies • Commercial Contract Law Basics • The states, not the federal government, are the primary source of law on commercial transactions in the U.S. • The law of agency recognizes that most corporations operate exclusively through their “agents.” Their authority is defined by the corporation (the principal) • Universal – broad authority to act on behalf of the principal • General - authorized for limited series of transactions and may be empowered to enter into contracts that bind the principal • Special – authorized only for specific and limited assignment and cannot enter into a contract that binds the principal

  49. NCMA – Chapter 8Unique Commercial Contracting Competencies Authority – Agent must act within the authority granted by the principal. The authority may be actual, expressed, implied, or apparent. • Actual – principal confers on agent the power to affect legal relationships with third parties • Expressed – Agent has plainly granted authority and “direction” from the principal to do specific actions • Implied – Authority given by the principal to the agent that implied from what is customary in the industry (not written or verbally expressed) • Apparent – appearance of being a principal’s agent – The corporations are liable for the employee’s acts and promises if it appears to the third party that the employee has been granted the authority to act.

  50. NCMA 8.1.3Uniform Commercial Code (UCC) • Article 2 of UCC sole source of law governing sales of goods supplemented by states only if not addressed in UCC. • Applies to Goods not Services • Purposes of UCC • Simplify, clarify, and modernize the law governing commercial transactions; • Permit continued expansion of commercial practices through custom, usage and agreement of the parties; and, • Make uniform the law among the various jurisdictions UCC adopted by all the States except Louisiana

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