The Federal Acquisition Institute Acquisition Learning Seminar Deal

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 Director, HCA Desk Officer Acquisition Support Roles and Responsibility of the COTR and Program Manager Preparing Today’s Workforce for Tomorrow’s Challenges

Federal Acquisition Institute Acquisition 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 Institute Acquisition Learning Seminar Contracting Activities Sequence Requirements Acquisition Plan At what stage does the COTR responsibilities begin? Acquisition Package Solicitation Source Selection/Negotiation Award Contract Administration Delivery/Acceptance Contract Closeout

Federal Acquisition Institute Acquisition Learning Seminar Flow of Authority CONSTITUTION CONGRESS … … . . Head of Agency. . . ……… Head of Contracting Activity Contracting Officer Senior Procurement Executive

Federal Acquisition Institute Acquisition Learning Seminar Authority of an Agent Real Authority Apparent Authority (The Federal Government is not bound by this authority) Unauthorized Commitments (When others commit the Government without having “real” authority) Ratification (When the Government decides to be bound by such commitment)

Federal Acquisition Institute Acquisition Learning Seminar 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 Institute Acquisition 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 Institute Acquisition Learning Seminar NON PERSONAL SERVICES FAR 37 Govt. can not treat contractor employees the same as it treats a Govt. employee.

Federal Acquisition Institute Acquisition Learning Seminar Prohibition against: FAR 3 1. Accepting gratuities 2. Releasing procurement sensitive information 3. 4. Releasing proprietary information

Federal Acquisition Institute Acquisition Learning Seminar Performance-Based Outcomes v. Results • Preferred description for services Traditional Activities v. Compliance • More directive in nature • 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 • Spells out the requirement in terms of the “how to”. • Restricts the contractor to use the most efficient method to achieve the end result. Adapt to the Situation

Federal Acquisition Institute Acquisition Learning Seminar So, what do we do when there’s a failure to communicate that results in a disagreement?

RESOLVING AND AVOIDING ACQUISITION DISPUTES Direct and Third Party Negotiation Presented to: Federal Acquisition Institute By: Anthony N. Palladino, Director, FAA ODRA Date: October 25, 2007 Federal Aviation Administration

TOPICS • Introduction- Dispute resolution in government contracts • Comparing The ADR and Adjudication Processes • Types of ADR and Typical Outcomes • Useful ADR Resources Federal Aviation Administration 14

FAA ACQUISITION MANAGEMENT SYSTEM • Operational since April, 1996 • Uses integrated product teams and lifecycle acquisition processes • Incorporates policy favoring alternative dispute resolution Federal Aviation Administration 15

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 Aviation Administration 16

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 Aviation Administration 17

ADR Misconceptions • It is a “Giveaway” to the Contractor • Government Must Compromise its Principles • Costs Too Much, Takes Too Long • Requires Extra Work Federal Aviation Administration 18

OFFICE OF DISPUTE RESOLUTION FOR ACQUISITION PROCESS • ADR AS PRIMARY METHOD • HIGH RATE OF USE AND SUCCESS • PRE-DISPUTE PROCESS Federal Aviation Administration 19

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 Aviation Administration 20

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 matters Cases 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 Aviation Administration 21

CASE STATISTICS • Avg Durations – Protests ADR: 24 days – Protests Adj: 61 days – Contests ADR: 31 days – Contests Adj: 138 days Federal Aviation Administration 22

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 Aviation Administration 23

SETTLEMENT EXAMPLES • Contract disputes – – Negotiated dollar settlements Setoffs of claims and counterclaims Conversions of terminations Revisions to delivery schedules Federal Aviation Administration 24

Role of the CO in ADR • Part of Contract Management Responsibilities • Must be an Active Participant • Has Ultimate Control Over Outcome Federal Aviation Administration 25

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 Aviation Administration 26

RECOMMENDATIONS • Build ADR into Your Contract Administration Practices • Make the Disputes Process Accessible & User Friendly • Access Trained Committed Neutrals • Obtain Dispute Resolution Training Federal Aviation Administration 27

ADR Resources • Civilian Board of Contract Appeals • Armed Services Board of Contract Appeals • GAO • Agency-Based ADR Offices Federal Aviation Administration 28

ODRA WEBSITE On the FAA Homepage at: http: //www. odra. faa. gov • Guide to ODRA ADR process • Sample forms, orders & agreements • Hyperlinks Federal Aviation Administration 29

OTHER MATERIALS • A. ODRA ADR Guide (abridged) • B. ADR Success Stories • C. Case Management Statistics • D. ADR Survey Results Federal Aviation Administration 30

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 Federal Aviation Administration 31

The Federal Acquisition Institute Nydia Coleman Chief, Office of Contracts, Library of Congress Resolving Questions Relating to Contract Administration Preparing Today’s Workforce for Tomorrow’s Challenges

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 want me to deliver? • How clear are your specifications? • Did you really read them? • Can you rely on your COTR/Program Manager?

Service 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? The 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 not what you wanted? • Disputes • Claims

The Federal Acquisition Institute Cherie Smith Project Officer, General Fund Enterprise Business System (GFEBS) How to maintain a positive relationship with contract stakeholders Preparing Today’s Workforce for Tomorrow’s Challenges

Understand Who Your Stakeholders Are at All Levels

Describe the Problem in Their Terms Project Category Function Process Task GFEBS Financial Management Funds Control Commitment Purchase Request

Perform Periodic Realty Checks at all Stakeholder levels

Ensure Senior Stakeholders are Out In Front – not behind you!

Federal Acquisition Institute Acquisition 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 Institute Thank you for attending! Questions & Answers Session Find us at www. FAI. gov Preparing Today’s Workforce for Tomorrow’s Challenges