SEWP Program Manager Meeting June 4, 2013

1. SEWP Program Manager MeetingJune 4, 2013

2. Terms and Conditions • Text A.1.2 Procedures for Orders permits the Government Contracting Officer to negotiate additional terms and conditions for a specific order. • However, adding agency specific terms may encourage contractors to propose their own terms and expect a negotiation of these terms to take place. • NASA does not recommend accepting contractor’s terms even if they are standard commercial terms. • An issuing CO should consult with their Agency’s legal counsel before agreeing to additional commercial terms.

3. Problematic Terms and Conditions • Unilateral Assignments by Contractor • Unilateral Changes to Price by Contractor • Unilateral Changes to Terms by Subcontractor • Automatic Service Renewal • Restrictions on the right to terminate not in accordance with the Federal Acquisition Regulations (FAR)

4. Problematic Terms and Conditions (con’t) • Change in Governing Law • Limitation of Legal Action not in accordance with the Basic Contract or the FAR • Limitation of Liability • Charges for late payment not in accordance with the Prompt Payment Act • Additional Taxes and Fees not in accordance with the Basic Contract • Tailoring of clauses contained in the SEWP IV basic contracts

5. FAR Part 19.301-2 5 Year Rerepresentation • FAR Part 19.301-2 requires small businesses who were awarded long-term contracts (5 years in duration or longer, including options) to rerepresent its size status for the North American Industry Classification System (NAICS) by updating their Representations and Certifications in ORCA before the end of the 5th year of the contract’s period of performance. • This regulation ensures that federal agencies receive credit for making contract awards to small businesses provided that the contractors that receive such contracts remain “small”. This regulation makes federal contract reporting more accurate. More importantly, it increases the opportunities for small businesses.

6. 5 Year Rerepresentation (con’t) • Each year, by law, SBA establishes goals for each federal agency to award a percentage of its contracts to small businesses. Contracts generally span a number of years, including “base” and “option” periods. Before this new regulation, if an option was executed on a contract that was originally awarded to a small firm, and the firm subsequently grew to be other than small, the agency would still receive credit for contracting with a small business.

7. 5 Year Rerepresentation (con’t) • After a contractor rerepresents it is other than small in accordance with 52.219-28, the agency may no longer include the value of options exercised, modifications issued, orders issued, or purchases made under blanket purchase agreements on that contract in its small business prime contracting goal achievements. • This will encourage agencies to work harder to make opportunities available to small businesses, in order to achieve their small business contracting goals. • The regulation does not affect the terms and conditions of contracts.

8. 5 Year Rerepresentation (con’t) • For SEWP IV contracts awarded with NAICS Code 541519, the size standard is 150 employees regardless of a particular contract group. Groups B, C and D fall under this size standard . • For SEWP IV contracts awarded with NAICS Code 334111, the size standard is 1000 employees regardless of a particular contract group. Group A falls under this size standard.

9. NAICS Codes / Business Size • NAICS code and the subsequent business size is defined at the contract level; not the delivery order • If a NAICS code needs to be cited on a delivery order, the applicable contract level NAICS code(s) are: • 541519 for Groups B, C and D fall under this size standard • 334111 for Group A • Current business sizes are listed on SEWP Website under Contract Holders • At the delivery order level, issuing CO’s should not: • Cite a different NAICS code • Use the CCR to look up business sizes

10. Small Business Jobs Act of 2010 • The Act is not applicable on SEWP IV but will be applicable on SEWP V • In accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644(r)), contracting officers may, at their discretion, set aside orders for any of the small business concerns identified in 19.000(a)(3). When setting aside orders for small business concerns, the specific small business program eligibility requirements identified in part 19 apply. • The justification for an exception to fair opportunity shall be in writing as specified in the FAR.

11. Section 516 - New Law Section 516 of the Consolidated and Further Continuing Appropriations Act, 2013 restricts the use of FY13 appropriated funds Sec. 516 (a) None of the funds appropriated or otherwise made available under this Act may be used by the Department of Commerce and Justice, the National Aeronautics and Space Administration, or the Nation Science Foundations to acquire and information technology system unless the head of the entity, has made an assessment of any associated risk with such system being produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China. (b) None of the funds appropriated or otherwise made available under this Act may be used to acquire an information technology system described in an assessment required by subsection (a) and produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China unless the head of the assessing entities described in subsection (a) determines, and reports that determination to the Committees on Appropriations of the House of Representatives and the Senate, that the acquisition of such system is in the national interest of the United States.

12. NASA IT Purchasing • NASA has frozen all IT purchasing until a new review and approval procedure in place • Some items will be white listed • Mission critical requests are reviewed first • New contract clause likely to be required

13. SEWP’s Role • Consulting / Assisting Goddard CIO and Procurement staff • All Goddard credit cards are to use SEWP first • New one-page credit card page created • All Goddard orders must be sent to a review board • SEWP is assisting in the process • Orders may be delayed for long periods awaiting HQ review • Consulting with other Centers as needed / requested

14. SEWP’s Plans • The review process requires information on the Vendor (Contract Holder) and Manufacturers • SEWP Contract Holder page already has data needed for Contract Holders • Staff is currently going through the 4300 manufacturers and identifying their HQ address and country • The goal is to simplify the paperwork required by the end user • In the next month or two, SEWP Contract Holders will be asked to modify their contracts in support of this requirement • The contract clause is still being written by NASA HQ • We will provide a copy as soon as we have an official version

15. Other Affected Agencies • SEWP has not been contacted for assistance from the other agencies • Anything developed for NASA should be applicable to other agencies • If any Government customer (NASA or otherwise) contacts you for more information, please forward them to help@sewp.nasa.gov

16. Delivery Orders with Options/Beyond 2014 • SEWP does not have a structure available that is identical to the GSA BPA arrangement. However, SEWP has the ability to be used for Delivery Orders with Options and along with the Fair Opportunity procedures in FAR Part 16.505(b), some of the functionality related to Purchase Agreements can be applied to the SEWP process. This functionality is as follows: • If an Agency has a requirement to purchase a set of known in-scope items and products but is uncertain of the timing of those purchases, a Request for Quote (RFQ) can be submitted using Fair Opportunity guidelines to one or more SEWP Contract Groups;

17. Delivery Orders with Options/Beyond 2014 (con’t) • The Agency may award one or more Delivery Orders based on the quotes received. This initial set-up Delivery Order would set the price of the items as quoted. The maximum time for the existence of this order and any instructions for exercising options / placing option calls against the original quote and initial Delivery Order should be noted in this initial order. • Agency officials may then follow the procedures as stated in the set-up Delivery Order to place orders against the initial quote. This is per the FAR Part 16 exception to Fair Opportunity for logical follow-ons to a Delivery Order, which was itself awarded based on Fair Opportunity.

18. Delivery Orders with Options/Beyond 2014 (con’t) • Any substantive change to the initial quote and subsequent initial Delivery Order, such as increasing the scope of products quoted, would require a renewed Quoting and ordering cycle including issuing a new RFQ following Fair Opportunity procedures. • The actual usage and set-up of the initial Delivery Order is the Contracting Officer’s responsibility. Typically, the initial order is set up with an initial $1 Delivery Order listing the materials and prices included in the awarded quote. Subsequent Delivery Orders are issued options either as modifications or “calls” against the original order. • Delivery orders with options cannot exceed a period of performance of 5 years from date of award.