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The Federal Acquisition Institute. Acquisition Learning Seminar "Deal or No Deal - Contract Administration" Thursday, October 25, 2007, 10:00 a.m.- 11:30 a.m. Preparing Today’s Workforce for Tomorrow’s Challenges. The Federal Acquisition Institute. Joni Dowling - PowerPoint PPT Presentation
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The Federal Acquisition InstituteThe Federal Acquisition Institute
Preparing Today’s Workforcefor Tomorrow’s Challenges
Acquisition Learning Seminar
"Deal or No Deal - Contract Administration"
Thursday, October 25, 2007, 10:00 a.m.- 11:30 a.m.
The Federal Acquisition InstituteThe Federal Acquisition Institute
Preparing Today’s Workforcefor Tomorrow’s Challenges
Joni Dowling
Director, HCA Desk Officer Acquisition Support
Roles and Responsibility of the COTR and Program Manager
Federal Acquisition InstituteAcquisition Learning Seminar
Why are we here?• It’s critical to mission success that we make deals that match the overall objectives of our organization’s mission, make good business sense, and that both parties can experience goal attainment.
• It’s awarded…now what? All spectrums of the acquisition phase are important (think…garbage in, garbage out). Those responsible for administrating the contract after award will have to rectify mistakes made in the planning and award phase.
• This often means that we negotiate, resolve, and use effective interpersonal skills to maintain a positive working relationship within the team structure (yes, the contractor is part of the team).
Federal Acquisition InstituteAcquisition Learning Seminar
Contracting Activities SequenceRequirements
Acquisition Plan
Acquisition Package
Solicitation
Source Selection/Negotiation
Award
Contract Administration
Delivery/Acceptance
Contract Closeout
At what stage does the COTR responsibilities
begin?
Federal Acquisition InstituteAcquisition Learning Seminar
Flow of Authority
CONSTITUTION
CONGRESS
Head ofAgency
Senior ProcurementExecutive
Head of Contracting Activity
Contracting Officer
...………
……
..
Ratification(When the
Government decides to be bound
by such commitment)
Federal Acquisition InstituteAcquisition Learning Seminar
Authority of an Agent
Real AuthorityApparent Authority(The FederalGovernment is not bound
by this authority)
UnauthorizedCommitments
(When others commit the Government without
having “real” authority)
Federal Acquisition InstituteAcquisition Learning Seminar
Good news, your copy of the
contract has arrived!!
Things to ask yourself when you are reviewing the contract:
What type of contract is it?Are there any deliverables?
Are we requiring any reports?What are the invoice procedures?Are there any testing, safety, or
security requirements?Are there any special provisions that must be followed (usually
found in Section H)?
Federal Acquisition InstituteAcquisition Learning Seminar
FILES MUST CONTAIN:
Copy of the Contract COTR Appointment Letter Copy of Invoices, inspection and acceptance
receiving reports Contract Modifications Copies of all Correspondence Memorandums for Record of Actions Issues PWS/SOW with attachments Quality Assurance Plan Negative Assessments Weather Reports Retain COTR File for 3 Years
Federal Acquisition InstituteAcquisition Learning Seminar
NON PERSONAL SERVICES PERSONAL SERVICES
FAR 37
Govt. can not treat contractor employeesthe same as it treats a Govt. employee.
Federal Acquisition InstituteAcquisition Learning Seminar
FAR 3
Prohibition against:
1. Accepting gratuities
2. Releasing procurementsensitive information
3. Releasing proprietaryinformation
• Preferred description for services
• Addresses quality at which work is to be performed & consequences if contractor fails to achieve the quality
• Allows the contractor to use any efficient method to achieve the end result
Federal Acquisition InstituteAcquisition Learning Seminar
Adapt to the Situation
• More directive in nature
• Spells out the requirement in terms of the “how to”.
• Restricts the contractor to use the most efficient method to achieve the end result.
Performance-Based Traditional
Outcomes v. Results Activities v. Compliance
Federal Acquisition InstituteAcquisition Learning Seminar
So, what do we do when there’s a failure to communicate that results in a disagreement?
Presented to:
By:
Date:
Federal AviationAdministrationRESOLVING AND
AVOIDING ACQUISITION DISPUTES
Direct and Third Party Negotiation
Federal Acquisition Institute
Anthony N. Palladino, Director, FAA ODRA
October 25, 2007
Federal AviationAdministration 14
TOPICS
• Introduction- Dispute resolution in government contracts
• Comparing The ADR and Adjudication Processes
• Types of ADR and Typical Outcomes
• Useful ADR Resources
Federal AviationAdministration 15
FAA ACQUISITION MANAGEMENT SYSTEM
• Operational since April, 1996
• Uses integrated product teams and lifecycle acquisition processes
• Incorporates policy favoring alternative dispute resolution
Federal AviationAdministration 16
ODRA Statutory Authority
• Under 49 U.S.C. 40110 (d), all bid protests and contract disputes that cannot be resolved through voluntary ADR “shall be adjudicated by the Administrator through dispute resolution officers or special masters of the Federal Aviation Administration Office of Dispute Resolution for Acquisition….”
Federal AviationAdministration 17
ODRA MISSION
• To provide the FAA and its contractors with dispute resolution services that are readily available, as well as more timely and less expensive than traditional disputes processes.
Federal AviationAdministration 18
ADR Misconceptions
• It is a “Giveaway” to the Contractor
• Government Must Compromise its Principles
• Costs Too Much, Takes Too Long
• Requires Extra Work
Federal AviationAdministration 19
OFFICE OF DISPUTE RESOLUTION FOR ACQUISITION PROCESS
• ADR AS PRIMARY METHOD
• HIGH RATE OF USE AND SUCCESS
• PRE-DISPUTE PROCESS
Federal AviationAdministration 20
CASE MANAGEMENT APPROACH
• ADR emphasized & explored in all cases– ODRA initiated – Early intervention efforts– Parties retain choice on ADR & neutral
• Forms of ADR employed– Neutral evaluation– Facilitative mediation– Binding arbitration
• Streamlined adjudication process
Federal AviationAdministration 21
CASE STATISTICS
• Cases filed 6/96 to present: 500+– 300 protests, 131 contract disputes, 11 EAJA Apps., 4 A-76 contests and 81 pre-dispute/ non-AMS
mattersCases completed 6/96 to present: 500+ – Protests settled in ADR: 189 (65% of all protests
filed) – Contract disputes settled in ADR: 113 (91% of all
disputes filed)
Federal AviationAdministration 22
CASE STATISTICS
• Avg Durations– Protests ADR:24 days
– Protests Adj: 61 days
– Contests ADR: 31 days
– Contests Adj: 138 days
Federal AviationAdministration 23
SETTLEMENT EXAMPLES
• Bid protests:– Withdrawals based on enhanced
debriefings/evaluations (60% of settlements)
– Agency voluntary action (40% of settlements)• Re-compete, immediately or after base year• Permit revised offers or revise specifications• Compete in lieu of sole source• Address past performance issues• Capability demonstrations re: future opportunities• Payment of B&P costs
Federal AviationAdministration 24
SETTLEMENT EXAMPLES
• Contract disputes– Negotiated dollar settlements– Setoffs of claims and counterclaims– Conversions of terminations– Revisions to delivery schedules
Federal AviationAdministration 25
Role of the CO in ADR
• Part of Contract Management Responsibilities
• Must be an Active Participant
• Has Ultimate Control Over Outcome
Federal AviationAdministration 26
RECOMMENDATIONS
• Attempt to resolve issues with the contractor before formal dispute develops, if possible
• If direct negotiation fails, seek third party assistance
• Earlier is better
Federal AviationAdministration 27
RECOMMENDATIONS• Build ADR into Your Contract Administration
Practices
• Make the Disputes Process Accessible & User Friendly
• Access Trained Committed Neutrals
• Obtain Dispute Resolution Training
Federal AviationAdministration 28
ADR Resources
• Civilian Board of Contract Appeals
• Armed Services Board of Contract Appeals
• GAO
• Agency-Based ADR Offices
Federal AviationAdministration 29
ODRA WEBSITEOn the FAA Homepage at:http://www.odra.faa.gov
• Guide to ODRA ADR process
• Sample forms, orders & agreements
• Hyperlinks
Federal AviationAdministration 30
OTHER MATERIALS
• A. ODRA ADR Guide (abridged)
• B. ADR Success Stories
• C. Case Management Statistics
• D. ADR Survey Results
Federal AviationAdministration 31
CONCLUSION• ADR process provides much more efficient
and faster dispute resolution than litigation
• Adjudication inherently destructive of working relationships
• Emphasis is on business solutions in ADR
• Be open to creative solutions
The Federal Acquisition InstituteThe Federal Acquisition Institute
Preparing Today’s Workforcefor Tomorrow’s Challenges
Nydia Coleman
Chief, Office of Contracts, Library of Congress
Resolving Questions Relatingto Contract Administration
Where’s my money?Where’s my money?
• How clear are your invoicing procedures?• Are they located in a visible place on your contract?• Is it clear who the vendor should call?
What exactly do you wantWhat exactly do you wantme to deliver?me to deliver?
• How clear are your specifications?• Did you really read them?• Can you rely on your COTR/Program Manager?
Service Contract ActService Contract Act
• Is this requirement subject to SCA?• Is there a collective bargaining agreement?• What’s the anniversary date?• Do you understand wage determination requirements?
Who is my day-to-day contact?Who is my day-to-day contact?The COTR/Program ManagerThe COTR/Program Manager
• Does this person really understand the program?• Have you (the CO) issued a letter of authorization to the COTR?• Have you (the CO) conducted a post award meeting?• Are you comfortable that this person knows what questions should be referred to the CO?
What do you mean that’s notWhat do you mean that’s notwhat you wanted?what you wanted?
• Disputes• Claims
The Federal Acquisition InstituteThe Federal Acquisition Institute
Preparing Today’s Workforcefor Tomorrow’s Challenges
Cherie Smith
Project Officer, General Fund Enterprise Business System (GFEBS)
How to maintain a positive relationship with contract stakeholders
Understand Who Your Stakeholders Are at All Levels
Describe the Problemin Their Terms
TaskTask
FunctionFunction
ProcessProcess
ProjectProjectCategoryCategory
Funds Management
FundsControl
GFEBS FinancialManagement
CommitmentPurchase Request
Perform Periodic Realty Checksat all Stakeholder levels
Ensure Senior Stakeholders are Out In Front – not behind you!
Federal Acquisition InstituteAcquisition Learning Seminar
Panel’s Final Thoughts on Best Practices to follow:• Get trained/Get certified/Stay current• Establish a partnership with the contracting staff• Establish a communication process• Know who has the authority• Know the difference between a non-personal service and a personal service• Conduct yourself in accordance with your agency’s rules, regulations, and
policies• Adapt your leadership style based on the requirement (PWS vice SOW)• Rely on resources like the Defense Acquisition University (DAU) Community of
Practice (COP)
The Federal Acquisition InstituteThe Federal Acquisition Institute
Preparing Today’s Workforcefor Tomorrow’s Challenges
Thank you for attending!
Questions & Answers Session
Find us at www.FAI.gov