National Contract Management Association – Norfolk Chapter Contracting Ground Rules

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

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.

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.

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

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

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.

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.

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

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

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 technical advisors to a source selection board or participating as voting or non-voting members of a source evaluation board.

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

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

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

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.

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.

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

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

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

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.

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.