CRA Training Contracts September 22 2016 Caveat This

CRA Training – Contracts September 22, 2016

Caveat: This training is focused on the material related to contracts likely on the CRA exam. This is NOT comprehensive Contracts Training.

What We’ll Cover: • • Grant v. Cooperative Agreement v. Contract Types of Federal Contracts General Process for Federal Contracts Pathway to the “FAR” General Construct of the “FAR” Primary Issues Important to Universities Sample “FAR” Clauses

Grant An award of financial assistance, the principal purpose of which is to transfer a thing of value from a federal agency to a recipient to carry out a public purpose of support or stimulation. Little to no involvement from the government on the programmatic side.

Cooperative Agreement An award of financial assistance that is used to enter into the same kind of relationship as a grant; and is distinguished from a grant in that it provides for substantial involvement between the federal agency and the recipient in carrying out the activity contemplated by the award.

Contract Legal instrument used to acquire property or services for the federal government’s direct benefit or use. Federal Contracts: Paid with appropriated funds & subject to the Federal Acquisition Regulation (FAR)

Types of Federal Contracts: • • Cost Reimbursable Fixed Price Indefinite Delivery Indefinite Quantity (IDIQ) Time & Materials

Cost Reimbursable • Payment for “allowable costs” incurred in the performance of the project • Estimated budget and funding ceiling (“not to exceed”) • OMB Uniform Guidance cost principles apply

Fixed Price • Funding for a specific dollar amount, regardless of costs actually incurred • Usually includes milestones/tasks

Indefinite Delivery Indefinite Quantity (IDIQ) • General Terms and Conditions agreed upon, then Task Orders are issued for set quantities of goods or services • Can think of it similar to a “Master Agreement”

Time & Materials • Pay for supplies or services based on actual hours worked or material costs • Not typically used with Univeristies, as time is tracked on a % of Effort rather than per hour basis

General Process for Federal Contracts 1. Pre-Proposal • Govt. identifies a need • PI may talk with technical reps, potential subcontractors, etc. 2. Solicitation/RFP/RFQ • Govt. invites public to submit proposals • Includes terms and conditions applicable to award • Questions/Clarifications 3. Proposal • University – LEGALLY BINDING • States exceptions to terms & conditions • Provides technical and cost for the project • Submits in proper format • Govt. reviews bids/offers/proposals – selection criteria in solicitation & FAR

General Process for Federal Contracts (cont’d) 4. Negotiation • Govt. & Prime Recipient agree on applicable terms & conditions • FAR & Other regs balanced with state & University policies/laws 5. Award Issued 6. Contract Administration • Reporting – financial/technical • Modifications • Termination & Close Out

Contracting Officer v. Contracting Officer’s Technical Representative Contracting Officer (CO): • Person who issues the award and/or modifications • Can bind the Govt. contractually • Authorized by a “warrant” Contracting Officer’s Technical Representative (COTR) may be referred to also as COR: • Works with CO to monitor technical aspects of award • Reviews/approves deliverables & invoices • CANNOT bind the Govt. contractually

Pathway to the “FAR” • United States Code (USC): Represents the laws of the US • Code of Federal Regulations (CFR): Represents the policies and procedures of the US • CFR is the implementation of the USC • Title 48 of the CRF is the Federal Acqiuisiton Regulation (FAR) System

General Construct of the “FAR” Chapter 1 • Contains the federal contracting requirements which broadly apply to federal agencies Chapter 2 forward • Agency-specific supplements – one chapter for each executive agency (i. e. DOD is Ch. 2, DHHS is Ch. 3, DOE is Ch. 9)

General Construct of the “FAR” (cont’d) Each “PART” addresses a specific contracting topic • Procurement, Audit, Conflicts of Interest, etc. Each PART is repeated across all Chapters • Part 45 in Ch. 1 addresses Property Management (52. 245 -1) & Part 45 in Ch. 9 addresses Property Management specific to DOE (952. 245 -2)

General Construct of the “FAR” Prescriptions (Parts 1 -51) • Give instructions on which particular clauses to use and when to use them Clauses (Part 52) • Contains the specific articulation of the requirement included in the Contract • Can include requirements regarding reporting, required systems (i. e. property management systems), required notices to be displayed, drug testing, etc. Sample Govt. Forms (Part 53)

Purpose of the FAR • Reduce costs (administrative & price of services) • Increase quality • Create efficiencies • Incuding establishing uniform acquisition procedures for all federal agencies • Promote competition • Improve government integrity, fairness & transparency re government contracts

Primary Issues Important to Universities • Understanding terms of a Prime Award when University is a subawardee/subcontractor or is issuing a subaward/subcontract • Right to Publish • Intellectual Property • Title Property & Equipment • Cost Principles & Allowable Costs • Export Control • IT Security

Sample FAR Clauses DFARS 252. 204 -7000 Disclosure of Information • Prevents the release of any information related to the project without advance approval of the govt. • Prescribing Clause 204. 404 -70(a) requires its inclusion when contractor is expected to general any information (not just “classified”) that may be inappropriate for public release • Tension: University mission & fundamental research exception to Export Controls

Sample FAR Clauses FAR 52. 227 -3 Patent Indemnity • Requires that the Govt. be indemnified for patent infringement in certain cases • Tension: VA law prevents the University from agreeing to indemnify any entity in a research contract

Sample FAR Clauses FAR 52. 232 -22: Limitation of Funds • Requires Contractor to notify the Govt. • When expenditure reach threshold (usually 75%) AND • If expenditures are more or less than obligated total • Establishes that Contractor has 60 day period to request supplemental funding or an NCE • Tension: Requires careful monitoring of expenses and proactive communication with CO

Sample FAR Clauses Fly America Act (Section 47) • Transportation of government contracts must occur on a US flag air carrier • Certain exceptions may apply • Tension: Requires careful monitoring of travel – essentially restriction on use of funds v. individual booking travel at least expensive rate