Contracting Ground Rules

1. Contracting Ground Rules National Contract Management Association – Norfolk Chapter

2. STATUTORY & LEGAL CONSIDERATIONS • Standards of Conduct • Contracting Authority • Competition Requirements • Inherently Governmental Functions • Organizational Conflicts of Interest • Non-Personal Services • Contractual Provisions

3. STANDARDS OF CONDUCT • Government business shall be conducted in a manner above reproach and…with complete impartiality and with preferential treatment for none. • Transactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct.

4. CONTRACTING OFFICER AUTHORITY • Contracting Officers have authority to enter into, administer, or terminate contracts… • No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures…have been met.

5. UNAUTHORIZED COMMITMENTS • …an agreement that isn’t binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government. • Ratification of UAC’s • Repercussions • Changes to Existing Contracts

6. COMPETITION REQUIREMENTS • …with certain limited exceptions, contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts.

7. INHERENTLY GOVERNMENTAL FUNCTIONS • Contracts shall not be used for the performance of inherently governmental functions • The direction and control of federal employees is an example of an inherently governmental function that should not be performed by contractors.

8. IGF’S IN FEDERAL PROCUREMENT • (i) Determining what supplies or services are to be acquired by the Government • (ii) Participating as a voting member on any source selection boards • (iii) Approving any contractual documents, to include documents defining requirements, incentive plans, and evaluation criteria.

9. IGF’S IN PROCUREMENT (CONT) • (iv) Awarding contracts • (v) Administering contracts (including ordering changes in contract performance… and accepting or rejecting contractor products or services) • (vi) Participating as a voting member on performance evaluation boards

10. EXAMPLES OF FUNCTIONS GENERALLY NOT CONSIDERED IGF’S • Services that involve or relate to the evaluation of another contractor’s performance • Services in support of acquisition planning • Contractors providing assistance in contract management • Contractor’s providing technical evaluation of contract proposals

11. EXAMPLES OF NON-IGF’S (cont) • Contractors providing assistance in the development of statements of work • Contractors working in any situation that permits or might permit them to gain access to confidential business information… • Contractors participating as technicaladvisors to a source selection board or participating as voting or non-voting members of a source evaluation board.

12. ORGANIZATIONAL CONFLICTS OF INTEREST • Conflicting roles that might bias a contractor’s judgment • Unfair competitive advantage involving proprietary information or source selection information • Government responsibility to avoid, mitigate, or neutralize OCI’s

13. OCI EXAMPLES • Preparing specifications or work statements • Planned for use in competitive acquisition • Preparing contractor cannot compete as a prime or subcontractor for a reasonable period of time

14. OCI EXAMPLES (cont.) • Providing proposal evaluation services • Contractor cannot evaluate its own offer • Contractor may gain access to other contractors’ proprietary data in the course of evaluation • Contractor must agree to protect and not disclose that information

15. PERSONAL SERVICES CONTRACTS A personal services contract is characterized by the employer-employee relationship it creates between the Government and the contractor’s personnel Agencies shall not award personal services contracts unless specifically authorized by statute.

16. EMPLOYER-EMPLOYEE RELATIONSHIP • Occurs as a result of the contract’s terms, or • In the manner of its administration during performance, contractor personnel are subject to the relatively continuous supervision and control of a Government officer or employee.

17. DESCRIPTIVE ELEMENTS FOR ASSESSING PERSONAL SERVICES • (1) Performance on-site • (2) Principal tools and equipment furnished by the Government • (3) Services are applied directly to the internal effort of…an organizational subpart in furtherance of assigned function or mission

18. DESCRIPTIVE ELEMENTS (cont) • (4) Comparable services, meeting similar needs, are performed…using civil service personnel • (5) Need for the type of service…can reasonably be expected to last beyond 1 year • (6) Direct or indirect Government direction or supervision of contractor employees

19. CONTRACT AND TASK ORDER PROVISIONS • Set forth contractor’s support role (SoW) • With appropriate SoW and contract administration, ensure work performed stays within contract scope and prevent contractor performance of inherently governmental functions and personal services • Incorporate appropriate Organizational Conflict of Interest provisions when necessary

20. SUMMARY TOP TEN • All contractors deserve a level playing field to compete for the Government’s business. • Be careful how, where, and with whom you speak about potential contract requirements. • Don’t make any deals you’re not prepared to pay for with your own money or your job. • Contractors should not be put in a position, or be permitted, to make Govt decisions. • Government employees should not ever supervise contractors, and vice versa.

21. SUMMARY TOP TEN • The SoW defines contractor performance. • A good SoW safeguards contractors from performing personal services or inherently Governmental functions. • Contractors should only perform, and be expected to perform, efforts covered by their contract or task order SoW. • Both Government and Contractor employees need to recognize potential restrictions on future opportunities and the need to safeguard procurement sensitive and company confidential information. • Know when to ask for help from Contracting Professionals, Contracting Officers, and Counsel.