5 - NOAA Acquisition Process Guide Post-Award Module

The administration of purchases under simplified acquisitions begins immediately upon award. The Contracting Officer determines the simplified acquisition method to use, monitors payments, communicates with the Vendor, ensures (to the maximum extent possible) timely delivery and satisfactory Contractor performance, oversees inspection and acceptance, and awards modifications as requirements change. At the time of contract close-out, the Contracting Officer performs all necessary activities, ensuring that the contract file is documented and retained for the appropriate period of time, as specified in FAR 4.805.

The Contracting Officer and Customer/Project Officer have significant contract administration, program management, and technical responsibilities after a contract has been awarded. This includes responding to possible post award protests, issuing task and delivery orders, processing modifications, and monitoring Contractor performance.

5.1 Notifications and Reporting Requirements

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5.1.1 Notifications Top of Page

5.1.1.1 Notice of Contract Award (Synopsis) Top of Page

All awards exceeding $25,000 must be synopsized (see FAR 5.303) unless an exception exists as outlined in FAR 5.303(a). The Contracting Officer publishes the notice of contract award via synopsis to Federal Business Opportunities (FedBizOpps) at www.fedbizopps.gov.

Ensure contractual actions funded in whole or in part by the American Recovery and Reinvestment Act of 2009 (ARRA) comply with the reporting requirements of PM 2009-09 (Amendment 1).

Following a contract award, the Contracting Officer may, on behalf of Contractors, choose to publish a notice of subcontracting opportunity in order to seek competition for subcontracts, to increase participation by qualified HUB Zone small business, small, small disadvantaged, women-owned small business, veteran-owned small business and service-disabled veteran-owned small business concerns, and to meet established subcontracting plan goals. See FAR 5.206.

5.1.1.2 Notifications to Unsuccessful Offerors Top of Page

The Contracting Officer shall provide written notification to each unsuccessful Offeror (not previously notified) within three days after the date of contract award (see Sample Notification to Unsuccessful Offeror Letter).. The notice shall include the following:

Number of Offerors solicited.
Number of offers received.
Name and address of each Offeror receiving an award.
Items, quantities, and any stated unit prices of each award. (Only the total contract price need be furnished if the number of items or other factors makes listing any stated unit prices impracticable; however, the items, quantities, and any stated unit prices of each award shall be made publicly available, upon request. It should be noted that although the FAR provides for the release of unit prices, documented case law has found that unit prices may not be disclosed (on a case-by-case basis) to competitors under FOIA, Exemption #4; therefore, it may be more appropriate to release the overall contract award value only.
In general terms, reason(s) the Offeror’s proposal was not accepted, unless the price information readily reveals the reason.

Note: In no event shall an Offeror’s cost breakdown, profit, overhead rates, trade secrets, manufacturing processes and techniques, or other confidential business information be disclosed to any other Offeror.

For Solicitations using Simplified Acquisition Procedures (SAP) under FAR 13, the Contracting Officer shall furnish the above information upon request by unsuccessful Offerors.

The Contracting Officer shall also furnish the above information upon request by unsuccessful Offerors who received a Pre-award Notice of Exclusion. For more information, see FAR 15.503.

While not required for Solicitations using SAP, the Contracting Officer shall furnish notices upon request by unsuccessful Offerors. Only the name of the awardee, the award price (including discount terms), and a brief explanation of the basis for award should be included in the notification.

For orders placed against a Federal Supply Schedule (FSS) contract, a brief explanation of the basis for award shall be provided if an unsuccessful Offeror requests information (only applicable to awards that are based on factors other than price alone). It may be in the NOAA’s best interest to provide unsuccessful FSS Vendor information about the evaluation of the Vendor’s offer (to avoid a potential protest and/or provide the Vendor relevant information that may improve its competitive capabilities for future NOAA requirements). A best practice that has been successful on prior FSS acquisitions has been to communicate relevant information regarding the Government’s evaluation of an unsuccessful FSS Vendor’s offer, in writing, when providing notice to a Vendor that it was not the successful Offeror.

5.1.1.3 Post-Award Notifications to NOAA Office of Legislative Affairs

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Commerce Acquisition Manual Chapter 1305.303 establishes policy regarding Department of Commerce Announcement of Contract Awards for all awards ≥ $3.5 Million over the life of the contract (inclusive of options and/or the estimated total quantity for a Requirements-type contract and/or the guaranteed minimum quantity for an Indefinite Delivery contract. This policy is also applicable to orders placed under Federal Supply Schedules (FSS), Government-Wide Acquisition Contracts, Multi-Agency Contracts, and Blanket Purchase Agreements established by NOAA acquisition offices against FSS contracts) and awards of any dollar value made pursuant to American Recovery and Reinvestment Act (ARRA). Acquisition Alert AA10-01 dated 4/28/2010 establishes procedures for implementing the Commerce Acquisition Manual.

COs shall submit Post-Award Notices (NOAA Acquisition Alert 10-01, Attachment 3), directly to OLA on the day of contract award to the maximum extent possible, but no later than 9:00 a.m. Eastern Time on the next business day after the day of contract award. The notice shall be prepared in the format provided at Attachment 3. The notice and a copy of the first page of the award document shall be combined into one pdf file and submitted via email to the following addresses:

“TO” addressees: Michael.Jarvis@noaa.gov; Timothy.Bagley@noaa.gov;

David.P.Miller@noaa.gov; Jennifer.Austin@noaa.gov

“CC” addressee: John.J.Abbott@noaa.gov

Subject: Post-Award Notice

5.1.2 Reporting Requirements Top of Page

5.1.2.1 Contractor Reporting of Executive Compensation and First-Tier Subcontract Awards Top of Page

FAR 4.14 requires contractors to report subcontract award data and the total compensation of the five most highly compensated executives of the contractor and the subcontractor. Public Law 109-282 (as amended by P.L. 110-252) requires all reported information to be made public; therefore, the contractor is responsible for notifying its subcontractors that the required information will be made public. The public may view first-tier subcontract award data at http://www.usaspending.gov. The Contracting Officer shall insert FAR 52.204-10 in all solicitations and contracts of $25,000 or more, including commercial item contracts and contracts for commercially available off-the-shelf items (except that solicitations or contracts that are classified or are with individuals are exempt from this requirement). Contractors awarded contracts funded with ARRA funds are also exempt from this reporting requirement. Contracting Officers are encouraged to review Acquisition Alert (AA) 11-01, which further explains the applicability of this requirement, specifically the need to modify existing IDIQ contracts or other ordering vehicles to cover future orders. Agencies shall ensure that contractors comply with the requirements of FAR clause 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards. When Contracting Officers report the contract action to the Federal Procurement Data System (FPDS), certain data will then pre-populate from FPDS to assist contractors in completing and submitting their reports. Unless otherwise directed by the Contracting Officer, by the end of the month following the month of award of a first-tier subcontract with a value of $25,000 or more, (and any modifications to these subcontracts that change previously reported data), the contractor shall report the information required by FAR 52.204-10 at http://www.fsrs.gov for each first-tier subcontract. (The contractor shall follow the instructions at the website to report the data). By the end of the month following the month of a contract award, and annually thereafter, the contractor shall report the names and total compensation of each of the five most highly compensated executives for the contractor's preceding completed fiscal year at http://www.ccr.gov if the conditions at paragraph 2 of FAR clause 52.204-10 are met. Unless otherwise directed by the Contracting Officer, by the end of the month following the month of a first-tier subcontract with a value of $25,000 or more, and annually thereafter, the contractor shall report the names and total compensation of each of the five most highly compensated executives for each first-tier subcontractor for the subcontractor's preceding completed fiscal year at http://www.fsrs.gov if the conditions at paragraph 3 of FAR clause 52.204-10 are met. A contractor is exempt from the requirement to report subcontractor awards if in the previous tax year the contractor's gross income from all sources was under $300,000. Also, if a subcontractor in the previous tax year has gross income from all sources under $300,000, the contractor does not need to report awards to that subcontractor.

Agencies shall review contractor reports at http://www.fsrs.gov on a quarterly basis to ensure the information is consistent with contract information. NOAA Acquisition Alert (AA) 11-01 assigns responsibility for this task to Contracting Officers and provides examples of the type of information the Contracting Officer is and is not responsible for verifying. For example, the agency is not required to address data for which the agency normally would not have supporting information, such as the compensation information required of contractors and fist-tier subcontractors. However, the agency shall inform the contractor of any inconsistencies and require the contractor to correct the report or provide a reasonable explanation why it believes the information is correct. If the contractor fails to comply with the reporting requirements, the Contracting Officer shall exercise appropriate contractual remedies. In addition, the Contracting Officer shall make the contractor's failure to comply with the reporting requirements a part of the contractor's performance information under FAR 42.15.

Phase-in of reporting of subcontracts of $25,000 or more shall be accomplished according to the following schedule:

· Beginning July 8, 2010 until September 30, 2010, any newly awarded subcontract must be reported if the prime contract award amount was $20,000,000 or more.

· From October 1, 2010 until February 28, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $550,000 or more.

· Beginning March 2, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $25,000 or more.

5.2 Protests

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An unsuccessful Offeror may file a post award protest with one or more of the following entities: the Agency (NOAA Contracting Officer or at a level above the Contracting Officer with the Protest Decision Authority per CAR 1352.233-71), the Government Accountability Office (GAO), or the U.S. Court of Federal Claims (COFC).

Contracting personnel shall work with the Protest Control Officer (PCO) and the DOC Office of General Council, Contract Law Division (OGC CLD) attorney to resolve protests.

The AGO’s Policy Coordinator serves as the liaison/point of contact for protests filed with the General Accounting Office (GAO) and the agency. The AGO Policy Coordinator acts as NOAA’s PCO. The PCO can also act as an independent reviewer as allowed in FAR 33.103(d)(4). The PCO’s mailing address and contact numbers are:

National Oceanic and Atmospheric Administration

Acquisition and Grants Office

1305 East West Highway, Suite 6300

Silver Spring, MD 20910

Phone Number: (301) 713-0325

FAX: (301) 713-1974

Coordinate all protests with DOC OGC CLD, the cognizant legal counsel for contractual issues. The mailing address and contact numbers are:

U. S. Department of Commerce

Office of General Counsel

Contract Law Division, Room 5893

Herbert C. Hoover Building

14th Street and Constitution Avenue, N. W.

Washington, DC 20230

Attn: Mark Langstein, Esquire

FAX 202-482-5858

In addition, Contracting Officers shall notify OAM of all protests, lawsuits or appeals filed relating to a DOC contract action within one business day from receipt of such notification. Contracting Officers shall also provide OAM a copy all protests/lawsuits and responses to those protests/lawsuits within one week after responses are submitted. (See DAO 208-05, PM 2010-04, PM 2010-10, and Acquisition Alert 05 - Revised Legal Review Thresholds): The copies and responses shall be forwarded to the following office:

U. S. Department of Commerce
Office of Acquisition Management
Attn: Senior Procurement Executive
1401 Constitution Avenue, NW
HCHB Room 6422
Wasthington, DC 20230

If the Contracting Officer receives an untimely protest, the Contracting Officer need not suspend contract performance or terminate the awarded contract unless the Contracting Officer believes that an award may be invalidated and a delay in receiving the supplies or services is not prejudicial to the Government’s interests.

5.2.1 Prevention Top of Page

Contracting Officers can minimize the risk of protests by 1) adhering to the Source Selection Plan (SSP), Section M of the RFP, and all FAR and other regulatory guidance; 2) involving Counsel early in the procurement process; and 3) conducting a well-documented source selection.

Prior to submission of agency-level protests, all parties should use their best efforts to resolve concerns raised by an interested party at the Contracting Officer level through open and frank discussions.

The NOAA encourages the use of Alternative Dispute Resolution (ADR). FAR 33.201 defines ADR as "any type of procedure or combination of procedures voluntarily used to resolve issues in controversy. These procedures may include, but are not limited to, conciliation, facilitation, mediation, fact-finding, mini-trials, arbitration, and use of ombudsmen. Where appropriate, the use of third party neutrals and another agency’s personnel are also acceptable protest resolution methods.

If the protest reveals that an award does not comply with the requirements of law or regulation, the Government may be required to pay to the protester the cost, exclusive of profit, of filing and pursuing the protest, including reasonable attorney, consultant, and expert witness fees, and in some instances bid and proposal preparation costs. Where a post award protest is sustained as the result of an awardee’s intentional or negligent misstatement, misrepresentation, or miscertification, the awardee may be required to reimburse the Government’s costs. In addition to any other remedy available, the Government may collect this debt by offsetting the amount against any payment due the awardee under any contract between the awardee and the Government. For more information, see FAR 33.102.

5.2.2 Protests to the Agency Top of Page

FAR 33.103(d)(4) allows interested parties to request an independent review of their protest. In the solicitation, state how and who will conduct the independent review. Generally, the solicitation will identify the PCO as the independent reviewer and that the review will be performed after the CO’s review.

Coordinate all protests received before award, even those that appear to be groundless, with the PCO and DOC OGC CLD. The DOC OGC CLD attorney will work with the cognizant Contract Specialist/CO and COR and offer advice as to the appropriate action. Before responding to the protester, obtain the concurrence of the PCO and DOC OGC CLD. In accordance with FAR 33.103(f)(1), the cognizant HCO unless the HCO is the CO, in which case the SBPO can make this determination, is authorized to make the determination to award a contract, in spite of the protest, after obtaining the concurrence of the PCO and DOC OGC CLD.

Coordinate all protests received after award, even those which appear to be groundless, with the PCO and DOC OGC CLD. The DOC OGC CLD attorney will work with the cognizant Contract Specialist/CO and COR and offer advice as to the appropriate action. Before responding to the protester, obtain the concurrence of the PCO and DOC OGC CLD. In accordance with FAR 33.103(f)(3), the cognizant HCO unless the HCO is the CO, in which case the SBPO can make this determination, is authorized to make the determination to award a contract, in spite of the protest, after obtaining the concurrence of the PCO and DOC OGC CLD.

Protests must be filed no later than 10 calendar days after the basis of the protest is known or should have been known, whichever is earlier. The Contracting Officer may consider any protests not filed in a timely manner if the protest reveals significant issues with the awarded contract or NOAA’s acquisition system.

For protests received within 10 days after contract award or within five days after a debriefing after a timely debriefing request, whichever is later, the Contracting Officer will immediately suspend performance, pending resolution of the protest by issuing a stop-work order.
If the Contracting Officer determines that continued performance is required for urgent and compelling reasons or is in the best interest of the Government, the Contracting Officer may continue performance in the face of the protest by obtaining approval at a level above the Contracting Officer. The justification to continue performance must be in writing. See FAR 33.103(f)(1).
Pursuing an agency protest does not extend the time for obtaining a stay at GAO.
Proposed agency protest decisions must be reviewed by DOC OGC CLD prior to issuance.
Protests should be resolved within 35 days of receipt.
Any protestor who fails to receive a favorable response from the agency may file a protest with GAO within 10 calendar days of the adverse agency decision.

For more information on post award protests to the Agency, see FAR 33.103 and CAR Part 1333.

5.2.3 Protests to GAO Top of Page

Protests to the GAO must be filed no later than 10 calendar days after the award of the contract or five days after a debriefing date offered to the protester for any debriefing required by FAR 15.505 or FAR 15.506, whichever is later.

If it is believed performance should be allowed to continue in spite of the protest, the cognizant CS prepares a finding, and forwards it for PCO concurrence, along with a written request for HCA approval. Furnish a copy concurrently to the DOC OGC CLD. If the HCA approves continued performance, DOC OGC CLD will notify GAO of the findings. (See Sample D&F to Continue Performance in the Face of a GAO Protest.)

For more information see APG Award Module Section 4.3.3

5.2.4 Protests to the U.S. Court of Federal Claims Top of Page

If the contractor has appealed to the U. S. Court of Federal Claims, the U.S. Department of Justice will represent the Agency. However, coordination of all actions through the Department of Commerce, Office of General Counsel, Contract Law Division must continue.

5.3 Conferences

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A post-award conference includes Government and Contractor personnel and is held as soon as possible (typically within 30 days) after contract award to foster clear and mutual understanding of all contract requirements and to identify and resolve potential problems. The post-award conference may be held at either the Contractor or Government facility and may be held via a conference call if the circumstances warrant.

The Administrative Contracting Officer (ACO) arranges and conducts post-award conferences to review contractual requirements and responsibilities with all interested parties. post-award conferences are not used to alter final agreements negotiated prior to award.

Formal post-award conferences are not always necessary in situations in which, e.g., an incumbent or sole-source situation exists such that the players are known or unchanged, or if the Contractor performed satisfactorily on a recent, similar contract. In accordance with FAR 42.502, the Contracting Officer (in some cases the ACO) will determine if a post-award conference is needed and the extent of formal proceedings.

The objectives of a post-award conference do not have to be met in a face-to-face environment. Regardless of the forum, post-award conferences must be documented and the record maintained in the contract file. A record of participants/attendees should also be included. Areas typically addressed include the following:

· Contract type

· Delivery order procedures

· Contracting Officer’s authority

· Unauthorized commitments

· Contracting Officer’s Representative (COR) responsibilities and limitations

· Contractor Performance Reporting

· Invoicing and certification procedures

· Transportation procedures

The following individuals may attend the Post-Award Conference:

· ACO

· Contractor personnel

· COR

· Project Officer – including the PM, Business Financial Manager (BFM), engineering staff, logistics staff, and critical Contractor support

· Counsel

Prior to the conference, the ACO should convene a meeting of the Government representatives to identify all issues and topics to be discussed as well as establish a unified Government position. During the conference, the ACO will introduce the teams, establish ground rules for future communications, and ensure all agenda items are addressed.

If a Post-Award Conference is anticipated and may result in associated travel costs incurred by the Contractor, the Contracting Officer will identify this requirement in the Solicitation so that offerors may include this cost in their offer.

The prime Contractor may invite its key subcontractors to attend the post-award conference. The prime Contractor may conduct a separate post award conference with its subcontractors to which Government representatives may or may not be invited.

5.4 Monitoring Contractor Performance

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From the commencement of Contractor performance, the Contracting and Project Officer are responsible for ensuring, to the greatest extent possible, that contract performance is on time and within budget. Awareness of both technical and financial status and progress is crucial.

Performance data gathered by the Contracting Officer, or his/her designated representative, must be formally recorded annually. This formal record benefits the Contractor by providing insight into perceived performance; the Government by allowing a medium for accountability and presenting expectations; and future contracts, with the same Contractor or similar in scope, by identifying lessons learned.

There is no prescription for standard monitoring of Contractor performance. Contracts for the same supply or service may differ in dollar value and personnel (Contractor or Government); contracts with the same Contractor may differ in complexity and scope. A vigilant Contracting Officer monitors technical performance, maintains awareness of financial status, and identifies and mitigates risk throughout the life of the contract.

5.4.1 Contracting Officer’s Oversight Top of Page

In accordance with CAM 1301.67 Contracting Officers shall provide input to COR supervisors at the end of each contracts performance (See Sample COR Performance Evaluation).

In addition, the Contracting Officer may perform reviews of the COR contract files on an “as needed” basis. Issues/events that the Contracting Officer may consider when deciding whether a review is needed are:

§ Designation of a new COTR/ACOTR on the contract.

§ Contractor receipt of an overall CPR rating of unsatisfactory or marginal, or when a Termination for Default is being contemplated.

§ A pattern of problems with COR performance in any area of responsibility, e.g.:

o Unauthorized commitment

o Untimely/poor quality modification SOWs/Independent Government Cost Estimates (IGCEs)

o Inadequate/non-existent invoice reviews

o Untimely/poor quality CPR recommendations

o Complaints regarding monitoring of Contractor performance or requesting Contractor performance outside the scope of the contract (constructive changes)

5.4.2 Contracting Officer’s Representative (COR) Responsibilities Top of Page

Rarely will a Contracting Officer have the expertise in all facets of every procurement he or she administers to ensure a successful contract. To assist in technical monitoring and administration of a contract, Contracting Officers may designate qualified personnel as their authorized representatives. These individuals, known as Contracting Officer's Representatives (CORs), must be technically qualified and properly trained before assuming responsibilities such as monitoring receipt of contract deliverables, verifying the accuracy of contract invoices, and monitoring contract expenditures. An Alternate COR (ACOR) may also be assigned to a contract if the Contracting Officer determines that it is required in order to provide proper surveillance and oversight.

A COR is said to be the “eyes and ears” of the Contracting Officer and rightfully so. A COR is frequently on-site with the Contractor, performing the monitoring, surveillance, and oversight of the contract, and is otherwise the individual designated to perform inspections, verify the accuracy of contract invoices, receive and accept goods, and monitor contract expenditures. As such, the COR’s role is integral to the success of the contract and its overall administration. A COR acts as the technical liaison between the NOAA and the Contractor regarding the Statement(s) of Work and/or Specification(s) under a contract, and is essential in communicating potential problems to the Contracting Officer for mitigation and immediate diffusion before a situation becomes problematic.

5.4.2.1 COR Duties Top of Page

A COR’s responsibilities are commensurate with the complexity, value, technical direction, and monitoring required for a given contract and are specified in the COTR Appointment Memorandum. The COR shall perform the duties and comply with the responsibilities and limitations specified in the Memorandum including the documentation of actions taken under such delegation of authority. In general, a COR shall:

· Act as technical liaison between the Contracting Officer and the Contractor with respect to monitoring the Contractor’s performance against the contract Specification, Statement of Work (SOW), and Quality Assurance Surveillance Plans (QASP) and communicating any potential problems with the Contracting Officer. The COR utilizes the QASP in conducting surveillance and oversight of Contractor performance for service contracts. The QASP generally contains the specific Contractor outcomes/objectives, performance standards, any incentives, and methods of surveillance. The COR measures the degree by which the Contractor is satisfying these objectives and measurable standards (i.e., terms of quality, timeliness, quantity, etc.). When Contractor performance fails to meet contract requirements, the COR shall immediately communicate such deficiencies to the Contracting Officer, may consider recommending to the Contracting Officer resultant reductions of fee or price in accordance with the QASP, and shall document in the COR file all communications and actions taken (See also FAR 37.6 and Sample QASP for CPFF Contract).

· Monitor the Contractor’s progress, costs and quality of performance and keep the Contracting Officer informed. A simple Contract Funding Summary Spreadsheet can prove to be a useful tool for the COTR to help the Contracting Officer track funding after contract award and throughout the life of the contract/orders, whether firm fixed, cost plus award fee, or cost plus fixed fee. On cost reimbursable contracts, if a Contractor exceeds the funded amount on contract, the Contracting Officer must immediately issue a letter notifying the Contractor of non-compliance. The Contracting Officer often relies upon information provided by the COTR to issue such letters in a timely manner. (See Limitation of Funds Non-Compliance Letter Template.)

· Promptly report any substantive deficiencies in contract performance or other instances of noncompliance with contract terms and conditions to the Contracting Officer.

· Provide reports of, and documentation to support, significant actions taken as directed.

· Review and certify the Contractor’s invoices to ensure that work cited has been performed and that labor hours, materials and travel charged are consistent and reasonable for the effort completed during the period covered by the invoice.

· If the contract specifies a labor mix/level of effort, monitor the actual labor mix/level of effort expended and periodically report significant differences between the contracted and actual incurred labor mix/level of effort expended to the Contracting Officer. This allows a more realistic labor mix/level of effort estimation, more realistic pricing for subsequent contracts, and also helps to reduce the risk of Contractor-proposed uncompensated overtime on future contracts.

· Where work under a contract is assigned by task order or delivery order, track performance, labor hours and mix ordered, and labor hours and mix expended by individual orders.

· Be alert to inconsistencies between work actually performed by the Contractor and performance claimed on invoices, as well as inefficiencies of the Contractor, and promptly notify the Contracting Officer when such circumstances occur.

· Review, inspect, and accept services or deliverables when completed, unless otherwise specified in the contract, and certify when all deliverables have been accepted.

· Maintain a COR file for each contract/order assigned which contains documentation relative to the actions taken by the COR. Electronic files are acceptable as an alternative to hard copy files. However, backing up electronic files regularly is highly recommended. The importance of maintaining complete and orderly files cannot be overemphasized, and it is critical to ensure transfer of responsibility if the COR is changed during the term of the contract. As a matter of practice, the COR shall prepare Memoranda for Record (MFRs) of meetings, trips, and telephone conversations relating to the contract. Each MFR, other similar records, and correspondence relating to the contract shall cite the applicable contract/order/modification number. See also the COR File Documentation Checklist.

· Ensure that the Government is getting what it pays for.

· As the assessing official, the COR shall prepare a quality narrative and rating on the Contractor's performance. CORs play a significant role in the Contractor Performance Report (CPR) process for collection of past performance information used in source selection evaluations. The CPR assesses a Contractor’s performance and provides a record, both positive and negative, on a given contract for a specified period of time. Each assessment is based on objective facts and is supported by program and contract management data.

5.4.2.2 COR Limitations Top of Page

The COR is held to limitations as specified in the COR Designation Memorandum. In general, the COR should ensure the following actions do not occur:

§ Promising or authorizing the Contractor to perform additional work (COR shall not issue orders or change the intent or substance of a contract or order).*

§ Issuing stop work orders.

§ Authorizing additional Government Furnished Property (GFP) outside of the existing terms of the contract/order.

§ Disclosing source selection or proprietary information.

§ Providing any budgetary information.

§ Allowing or authorizing personal services. The COR shall maintain an arms-length relationship with Contractor employees.**

§ Interfering with Contractor’s personnel practices or organized labor.

§ Directly or indirectly changing the following:

o Pricing, Cost or Fee

o Quantities

o Quality

o Scope of the Task/Delivery Order/Contract/Modification.

o Delivery Schedule.

o Labor Mix.

o Any other terms/conditions of the Order/Contract/Modification.

§ Nurturing a conflict of interest or appearance of a conflict of interest. The COR shall adhere to the statutes and regulations governing standards of conduct. If a conflict or the perception of a conflict of interest develops, the COR shall notify the designating Contracting Officer and Field Counsel immediately.

(*) What is a constructive change? Why should it be avoided?

A constructive change is an action (or inaction) on the part of the Government, which results in Contractor performance different from, or in excess of, the original contract requirements. In other words, a constructive change is a change that is outside the scope of the contract or requested informally by someone other than the Contracting Officer without the official contract modification to make it part of the contract. Occasionally, CORs inadvertently make changes to the contract by making verbal changes in Specifications, accelerating delivery dates or requiring more stringent quality assurance, for example. Such changes often result in invoices over and above the original contract amount. Only Contracting Officers, acting within their delegated contracting authority, are empowered to make such changes by means of negotiations and formal contract modifications. Nevertheless, Contractors often act on changes requested by the COR because it appears to the Contractor that the COR has authority to change contracts. The result is an unauthorized commitment that requires ratification. See APG Section 5.12 for Ratification of Unauthorized Commitments.

(**) What are personal services? Why should they be avoided? How can they be prevented?

In a personal services contract, Contractor personnel appear, in effect, to be Government employees. Personal services contracts usually involve continuous direct supervision and control of Contractor employees by Government employees. Obtaining personal services by contract, rather than by direct hire, circumvents civil service laws unless Congress has specifically authorized acquisition of the services by contract. In order to prevent a personal services contract from occurring, the contract Statement of Work must be well defined and precise. The COR must maintain surveillance, not supervision, and he/she must notify the Contracting Officer at the first indication of a problem with Contractor performance.

5.4.2.3 COR Records Top of Page

Since the COR is an authorized representative of the Contracting Officer, the COR’s records are a part of the official (post award) contract files and shall be forwarded to the Contracting Officer for retirement with the official contract file upon completion of the contract. Documents that pertain to the contract shall be clearly identified when forwarded to the Contracting Officer. Documents that may contain Contractor proprietary data or other source selection sensitive information should not be released outside the Government without prior approval from the Contracting Officer.

5.4.3 Assessing Contractor Performance Top of Page

FAR 42 mandates that past performance data be collected for each contract, task order, or delivery order that exceeds the simplified acquisition threshold, including FSS’s, GWACs, MACs and DOC IDCs, with the exception of architect/engineering services contracts ($30K or more or any defaulted contracts) and construction contracts ($550K or more or any defaulted contracts). A contractor performance evaluation shall be completed as soon as practicable after completion of the contract, but not later than 30 days after the completion date. In addition, this policy is not applicable to orders/contracts awarded pursuant to FAR 8.7.

In addition to the final evaluation, at least one interim evaluation shall be submitted by the Contracting Officer on all contracts with a period of performance exceeding one year. For all multi-year contracts, interim reports must be submitted once per year at a minimum. A Final CPR is executed at contract termination, delivery of the final major end item, or completion of the period of performance.

All contractor performance evaluation information is treated as source selection information in accordance with FAR 3.104. This information sometimes includes information that is proprietary, such as trade secrets and confidential commercial or financial data that would not be released under the Freedom of Information Act.

CPARS is Department of Defense’s (DOD’s) Contractor Past Performance Assessment Reporting System (CPARS). CPARS is DOD’s automated feeder system used by DOC to document contractor performance on systems and non-systems contracts including services, information technology, operations support, systems, ship repair and overhaul. To review and publish past performance information in PPIRS. The Past Performance Information Retrieval System (PPIRS) is the Federal Government’s repository site for all contractor performance evaluation information to be generated and retrieved by all federal agencies. The CPARS reports are transmitted to PPIRS, which provides past delivery and quality performance information contracts/orders for use in the source selection process. The contractor performance evaluation report or PPIRS-Report Card (PPIRS-RC) provides a record of the Contractor’s performance, both positive and negative, on a given contract during a specific period of time. Each assessment is based on objective facts and supported by program and contract management data, such as the following:

· Cost performance reports.

· Customer comments.

· Quality reviews.

· Technical interchange meetings.

· Financial solvency assessments.

· Construction/production management reviews.

· Contractor operations reviews.

· Functional performance evaluations.

· Earned contract incentives.

The purpose of CPARS and PPIRS is to ensure that contractor performance data are appropriately assessed and that feedback regarding performance is conveyed to companies with whom the NOAA has contracted. The PPIRS-RC is a “report card” on how well a Contractor is performing or has performed on an individual contract.

At appropriate periods throughout the life of the contract (including option exercises, warranty periods, and delivery of deferred data, if any), the CO, with the assistance of the COTR, will prepare a contractor performance evaluation on contracts above the simplified acquisition threshold. The Assessing Official is encouraged to seek input from the multi-functional acquisition team when assessing the contractor’s performance. At a minimum, Contracting Officer input should be obtained.

Note: Contracting Officers should ensure that support contractors do not prepare inputs to CPARS (even as project team members) and do not have access to CPARS. See FAR 7.503(d)(7).

Urgent Timeframe/Reporting Requirement for Other Contractor Information: FAR 42.1503(f) (1) mandates that agencies shall ensure information is reported in the FAPIIS module of PPIRS within 3 working days after a Contracting Officer:

Issues a final determination that a contractor has submitted defective cost or pricing data;
Makes a subsequent change to the final determination concerning defective cost or pricing data pursuant to FAR 15.407-1(d);
Issues a final termination for cause or default notice; or
Makes a subsequent withdrawal or a conversion of a termination for default to a termination for convenience.

FAR 42.1503(f)(2) directs agencies to establish focal points and register users to report data into the FAPIIS module of PPIRS (available at www.cpars.csd.disa.mil, then select FAPIIS). Instructions on reporting are available at www.ppirs.gov and at http://www.ppirs.gov/fapiis.html.

For further information, also see CAM 1342.15; OFPP’s “Best Practices for Collecting and Using Current and Past Performance Information”; and - the Office of the Under Secretary of Defense for Acquisition, Technology and Logistics (AT&L) (Defense Procurement and Acquisition Policy) put together “A Guide to Collection and Use of Past Performance Information (Version 3)” that, although not entirely applicable to civilian agencies, in particular Business Sectors, is an overall informative and useful tool.

The contract clause, entitled, "Contractor Performance Evaluation" shall be included in all solicitations and contracts over the SAT.

5.5 Delivery/Task Orders

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The work statement included in a Contract details the programs and projects under which supplies or services may be provided/performed, but the specifics of the supplies or services frequently require further amplification by means of issuance of delivery and task orders. FAR 2.101 defines a delivery order (DO) as an “order for supplies placed against an established contract or with Government sources.” A task order (TO) is essentially the same as a DO, but for services as opposed to supplies.

Indefinite Delivery Contracts (IDCs) allows the acquisition of supplies and/or services when the exact times and/or exact quantities of future deliveries are not known at the time of contract award. IDCs are also known as delivery order, task order, or “D-type” contracts. Examples of IDC contracts include Indefinite-Delivery/Indefinite-Quantity (IDIQ), Indefinite-Delivery/Definite-Quantity, and Requirements contracts. IDC contracts may be single or Multiple Award Contracts (MACs). DOs/TOs may be Fixed Price (FP), Cost Reimbursement (CR), Time-and-Materials (T&M), labor-hour, or some combination of these arrangements, as stated in the contract. (See APG Planning Module Section 1.6.)

In accordance with FAR 16.505, DOs/TOs issued under IDIQ contracts must contain the following:

Date of Order.
Contract and Order Number.
Contract Line Item Number (CLIN) and description, quantity, unit price (supplies) or estimated cost/fee (services).
Delivery schedule/Period of performance (must be within the contract period).
Place of delivery or performance.
Packaging and Shipping Instructions, if applicable.
Accounting and appropriation data.
Method of payment and payment office (if not included in the contract).
Orders for services should be expressed in terms of performance based requirements (see FAR 37.602).

In addition to the information required by the FAR, if the order is for services the Project Officer should provide a detailed description of the services being procured to ensure that Project Officer and Contractor expectations for the specific tasking are aligned. Descriptions should be thorough enough to allow the Comptroller to validate requirements against budgeted appropriations. The Project Officer is responsible for initiating a DO by processing a request in C-Request. As indicated by FAR 32.703-3, a TO for severable services may have a period of performance that crosses fiscal years if the period of performance does not exceed one year.

The Contracting Officer shall document in the contract file the rationale for placement and price of each order, including the basis for award and the rationale for any tradeoffs among cost or price and non-cost considerations in making the award decision.

5.5.1 Delivery/Task Orders Under Multiple Award Contracts Top of Page

All services acquired under IDIQ Multiple Award Contracts (MACs) are provided through award of task orders (TOs). FAR 16.505 (b) provides general guidance on issuing orders. The following are suggested procedures for issuing a competitive multiple award task order (see Multiple Award Task Order Competition Procedures Flowchart and for more information see OFPP’s Best Practices for Multiple Award Task and Delivery Order Contracting, Updated February 19, 1999).

Identify Requirement. The Contracting Officer must provide each awardee a fair opportunity to be considered for each order exceeding $3,000 issued under multiple delivery order contracts or multiple task order contracts. For exceptions to the fair opportunity process, see APG 5.5.1.1.

Document Fair Opportunity Exception, if applicable. Every order shall identify the basis if using an exception to MAC fair opportunity requirements. The Project/Program Officer may initiate a request for exception to fair opportunity by submitting a written request to the Contracting Officer. (see Memo Requesting Exception to Fair Opportunity.) For MAC orders exceeding $100,000 that do not provide fair opportunity, the Contracting Officer must execute a justification that is prepared and approved in accordance with FAR 8.405-6 and includes a written determination that addresses one of the exceptions as described above.

Develop Evaluation Plan. The Project/Program Officer sends draft evaluation factors and scoring criteria to the Contracting Officer for review.

Send Drafts to MAC Contractors. Time permitting, following review and comment, the Contracting Officer may forward the draft evaluation factors along with the draft specification/statement of work to the multiple award contract holders for their review.

Provide Questions and Answers. Comments and questions are sent in to the Contracting Officer, which are then consolidated into a Questions and Answers (Q&A) document provided to the MAC Contractors.

Issue Request for Quote (RFQ). The specification/statement of work and Q&A document are attached to the RFQ, and sent out to each MAC Contractor electronically (may be sent via email).

Receive and Evaluate Quote/Offer. The Contracting Officer will coordinate a technical evaluation of the offers, and the Project/Program Officer will then submit a subsequent technical award recommendation to the Contracting Officer for final evaluation of technical and other factors.

Award. Task or Delivery Order is prepared and awarded on Optional Form 347 (OF 347) Order for Supplies or Services or SF 1449 Solicitation/Contract/Order for Commercial Items..

Provide Award Notification. The Contracting Officer provides notification of award to all offerors, which includes the name of the awardee and price. Debriefs are also considered at this time (not mandatory).

Ombudsman. DOs/TOs under MACs require an ombudsman per FAR 16.504(4)(v). The Ombudsman reviews complaints from Contractors and ensures all Contractors are afforded a fair opportunity to be considered, consistent with the procedures in the contract. The Ombudsman must be a senior agency official who is independent of the Contracting Officer and may be the Agency’s Competition Advocate (see FAR 16.505). For the NOAA, the Ombudsman is:

Team Lead, Performance Assessment & Improvement Team, CAPPS

U. S. Department of Commerce

Office of Acquisition Management

1401 Constitution Avenue, N.W.

Washington, DC 20230

202-482-3780

5.5.1.1 Fair Opportunity Top of Page

Each awardee of a multiple-award IDIQ contract must be given a fair opportunity to be considered for each order exceeding $3,000 (see FAR 16.505(b)(1)). A fair opportunity occurs when the Government places orders on a competitive basis. An order exceeding $100,000 is considered to be placed on a competitive basis only if the Contracting Officer does the following:

Provides a fair notice of the intent to make the purchase, including a description of the supplies to be delivered or the services to be performed and the basis upon which the Contracting Officer will make the selection, to all Contractors offering the required supplies or services under the multiple award contract.
Affords all Contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered.

The Contracting Officer should consider the following factors when developing procedures that will provide offerors a fair opportunity to be considered for each order: past performance on earlier orders, potential impact on other orders placed with the Contractor, minimum order requirements, amount of time Contractors need to make informed business decisions on whether to respond to potential orders, and whether Contractors could be encouraged to respond to potential orders by outreach efforts to promote exchanges of information.

Price/Cost must be considered under each order as one of the factors in the selection decision. Past performance under prior orders may also be considered. The Contracting Officer must document in the contract file the rationale for placement and price of each order, including the basis for the award and the rationale for any tradeoffs among cost/price and non-cost considerations in making the award decision.

Note that the Armed Services Board of Contract Appeals (ASBCA) recently held that, where a contract states that each multiple-award IDIQ Contractor would have a fair opportunity to compete for delivery/task orders, it has jurisdiction to determine whether the Contracting Officer considered the Contractor fairly for task orders. In contrast, the issuance, or proposed issuance, of an order under a single award DO/TO contract is not protestable at GAO, unless the protest is made on grounds that the order increased the scope, period, or maximum value of the contract. However, it should be noted that current regulations state that there is a preference for issuing multiple award IDIQ contracts and that the Contracting Officer must document a decision NOT to make multiple awards; it is not sufficient to determine that multiple awards are not viable simply to avoid the possibility of protest on DO/TO awards.

Exceptions. Exceptions to the fair opportunity process include the following (see FAR 16.505(b)(2)):

The agency need for the supplies/services is so urgent that providing a fair opportunity would result in unacceptable delays.

Only one awardee is capable of providing the supplies/services required at the level of quality required because the supplies/services ordered are unique or highly specialized. Use of this exception should be rare. Its use is appropriate when no other Contractor is capable of providing a supply or service of a comparable nature; and no other type of supplies or services will satisfy agency requirements. When using this exception, explain what is unique or highly specialized about the supply or service and why only the specified Contractor can meet the requirement.

The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract (provided that all awardees were given a fair opportunity to be considered for the original order). A follow-on order is a new procurement placed with a particular Contractor to continue or augment a specific program or service. When using this exception, the justification should discuss why the specific requirement continues and why it is to the benefit of the Government for the particular Contractor to continue this work (see FAR 16.505(b)(4)).
Examples include—

· Award to any other source would likely result in substantial duplication of cost to the Government that is not expected to be recovered through competition;

· Award of the order to a different source would cause unacceptable delays in fulfilling the Government’s requirements (lack of advance planning is not valid rationale); or

· A Contractor is already at work on a site, and it would not be practical to allow another Contractor to work on the same site.

When using the logical follow-on exception, the Contracting Officer must specify how recent the previous competitive order was and the number of times this exception has been used; discuss why the specific requirement continues; and discuss why it would be of benefit to the Government for the specified Contractor to continue this work.

· It is necessary to place an order to satisfy a minimum guarantee.

5.6 Modifications

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Contract modifications are executed whenever the basic terms and conditions, scope of work, funding, or other contract components are revised in writing by the Contracting Officer. Either the Government or a Contractor may propose to modify a contract. If a Contractor initiates a modification, it must submit a signed request to the Contracting Officer explaining the modification and its anticipated effect on the contract. Only Contracting Officers acting within their delegated authority are empowered to execute a contract modification or change a contractual commitment on behalf of the Government.

Other Government personnel shall not act in such a manner as to cause the Contractor to believe that they have authority to bind the Government or direct or encourage the Contractor to perform work that should be the subject of a contract modification. Project Officers and Contracting Officer’s Representatives need to be careful to avoid “constructive changes.” A constructive change is a change that is outside the scope of the contract or requested informally without the official contract modification to make it part of the contract. Modifications must be approved prior to execution.

There are two types of contract modifications: unilateral and bilateral. Unilateral modifications are signed only by a Contracting Officer, and bilateral modifications (supplemental agreements) are signed by both a Contracting Officer and a Contractor. A bilateral modification can add new work or revise existing terms, and it may have cost implications.

Bilateral. A bilateral modification (supplemental agreement) is a contract modification that is signed first by the Contractor and then by the Contracting Officer. Bilateral modifications are used to do the following:

· Make negotiated equitable adjustments resulting from the issuance of a change order.

· Definitize Letter Contracts.

· Reflect other agreements of the parties modifying the terms of contracts (e.g., no-cost Engineering Change Proposals (ECPs), revised delivery schedules, or periods of performance into the contract in return for consideration; providing additional funding under Undefinitized Contract Actions (UCAs) pursuant to the “Limitation of Government Liability” clause or for cost overruns pursuant to the “Limitation of Cost”/”Limitations of Funds clause; or determination of the final “price” of incentive contracts.)

Unilateral. A unilateral modification is a contract modification that is signed only by the Contracting Officer. Unilateral modifications are used, for example, to do the following:

· Make administrative changes (written changes that do not affect the substantive rights of the parties; e.g., a change in the contract administration office, COR, paying office, or appropriation data).

· Issue change orders;

· Make changes authorized by clauses other than a changes clause (e.g., incremental funding pursuant to the “Limitation of Funds” clause, exercising priced Options pursuant to Option exercise clauses in the contract; or other actions pursuant to the Government Property or Stop-Work Order clause); and

· Issue termination notices.

Note: If the modification includes incremental funding, it is necessary for the Contracting Officer and COR to work closely with the Comptroller. The funding should be appropriately broken out between the specifically identified Contract Line Item Numbers (CLINs) and even further between cost and fee, depending on the type of contract.

It is important to negotiate priced modifications prior to commencement of performance rather than relying on issuing a unilateral change order under the Changes clause. The Changes clause allows a Contracting Officer to direct the Contractor to perform within-scope changes to the contract (unilateral modification), but requires a bilateral priced modification to be negotiated later (often in the form of a Request for Equitable Adjustment (REA)). The Contracting Officer is generally in a better negotiating position when the in-scope change is negotiated and the contract modified prior to the work starting. There will be situations in which there are unknowns or contingencies (urgent and compelling situation and no time to negotiate upfront) involved and thus the Contracting Officer will have to issue a unilateral mod under the Changes clause and negotiate later.

Contract modifications include the following:

· A change order invokes a contract's Changes Clause for changes in general scope and must be approved by a Contracting Officer. A Contractor submits a written proposal in response to a change order. A unilateral modification is used to issue the change order. After negotiation, Contracting Officers determine whether an equitable adjustment is required, and execute a bilateral modification.

· For commercial contracts, in lieu of using a changes clause, “Mutual Agreement” of the parties is cited as the authority to make changes to price and quantity and authorize cancellations or partial cancellations. These modifications are issued as bilateral agreements.

· A modification adding new work outside the scope of the contract requires a justification for other than full and open competition and results in a bilateral modification. See also FAR 6.3, Other Than Full and Open Competition.

· An extension modification extends the period of performance for completion of contract requirements. This extension can be a cost or no-cost extension. A Contractor submits a written request or proposal identifying the impact of the extension on a contract and its funding. Contract extensions are bilateral modifications.

· A cost overrun modification is necessary when the cost of performing a cost-reimbursement contract exceeds or is expected to exceed the total estimated cost in the contract. A Contractor needs additional funding to complete requirements; no new work is performed. A cost overrun modification is bilateral. (See Limitation of Funds Non-Compliance Letter Template – issued by the Contracting Officer when the Contractor exceeds the funded amount on contract.)

· A modification changing other terms of the contract, such as travel, subcontracts, equipment, key personnel, delivery, or schedule, can be initiated by either a Contractor or the Government. A Contractor submits documentation requested by the Contracting Officer. These modifications are bilateral.

· A modification making changes authorized by clauses other than the changes clause, such as Property Clause, Options Clause, incremental funding, or Contracting Officer’s Representative, is initiated by the Government and may be executed as a unilateral modification.

· A modification making administrative changes that do not affect the rights of the parties, such as a change in the appropriation data or the paying office is initiated by the Government and may be executed as a unilateral modification.

See the DAU Material on Contract Modifications and Adjustments.

5.6.1 Simplified Acquisition Procedure (SAP) Modifications Top of Page

Under SAP, the Contracting Officer will complete SF 30 Amendment of Solicitation / Modification of Contract when modifying an order/contract or when canceling a unilateral order. The SF 30 is a self-explanatory form with each block labeled for the information that needs to be provided. Each block should be filled out as applicable to the type of change order/modification being issued.

Block 13 identifies modification authority. When completing Block 13, an authority must be listed that allows for the type of change/modification being used.

Examples of authority for non-commercial contracts include the following:

· FAR 52.243-1.Changes – Fixed Price

· FAR 52.249-1 for termination or partial termination of fixed price contracts amount $100,000 or less.

· FAR 52.249-4 for termination or partial termination for service orders, regardless of contract value.

· FAR 43.103(a) (bilateral/supplemental agreement) or FAR 43.103(b) (unilateral).

Examples of authority for commercial contracts include the following:

· FAR 43.103(a) (bilateral/supplemental agreement) or FAR 43.103(b) (unilateral).

· Cite “Mutual Agreement” of the parties for changes (non-administrative).

· FAR 52.212-4 for other changes.

When completing Block 13, the Contracting Officer will complete one of four fields to identify the proper authority:

13A. This block is used when issuing a change order. An example of a change order would be changing place of delivery or changing a Specification.

13B. Use this block when making an administrative change to the order. An example of an administrative change would be changing Vendor address or changing accounting data.

13C. Use this block when issuing a supplemental agreement/mutual agreement.

13D. Use this block for all other changes not included above. These changes are normally bilateral. Examples of other changes are termination or partial termination, cancellations, increases in quantity to conform to unit packs.

5.6.2 Consideration Top of Page

Modifications to a contract affect the interests, rights, and obligations of two independent parties: the NOAA and the Contractor. The responsibility of the Contracting Officer is to preserve the integrity of the relationship between these two parties. The Contracting Officer reviews the action to determine whether it is consistent with the existing contract and to ensure that the equities of the existing relationship are preserved and will be continued when a modification is issued and negotiated.

Generally, there must be "consideration" whenever a contract is modified. Consideration is the benefit each party confers upon the other for the modification; it is required to seal a new bargain. Consideration is something of value that is given in exchange for something else and thus can take many forms, including monetary. Other forms can involve changes in specifications or work statements, delivery, payment, or other contract terms and conditions.

It’s important that the Contracting Officer not let a blind pursuit of a monetary consideration lead him/her away from a good business deal. Consider the cost, schedule, and performance impacts of jettisoning a current arrangement for another.

If a Contractor is entitled to a time extension pursuant to a contract clause, no new consideration is required. (An "equitable adjustment" is not consideration.) However, if the parties negotiate a time extension at the request of either, and if the requesting party is not entitled to the extension pursuant to a contract clause, then the parties are modifying the contract by making a new deal and therefore must exchange new consideration.

Public Law 85-804 allows for modification of a contract without consideration under limited circumstances as a form of extraordinary contractual relief. See FAR 50.103-1 and FAR 43.102(c), the latter of which expressly authorizes certain modifications to be made without consideration.

A Contracting Officer cannot agree to modify a contract without consideration if consideration is required. He or she cannot "give" the Contractor a time extension. Such an action would be beyond his or her authority under FAR and would not be binding on the Government. However, it is up to the Contracting Officer to determine what would be adequate consideration. Consideration need not compensate the Government for what it gives to the Contractor. It need only be enough to seal the deal in the eyes of a board or court. Ordinarily, courts and boards consider anything of value to be adequate consideration, if the parties think it's enough; chances are so will the boards and courts.

The case law in Administration of Government Contracts, 3d ed., by Cibinic and Nash states that the requirement for the Government to receive consideration has sometimes been stated as a legal rule that no Government official may give away or remit a vested right of the Government, Simpson v. United States, 172 U.S. 372 (1899). Thus, contract modifications will typically be overturned if the Government obtains no benefit whatsoever, H.Z. & Co., ASBCA 29572, 85-2 BCA ¶ 17,979; A.O. Smith Corp., ASBCA 16788, 72-2 BCA ¶ 9688. For a recent decision that discusses the requirement for consideration for a modification in a Government contract case, see Garner, Kamya & Associates, P.C. v. Jackson, 369 F.3d 1318 (Fed. Cir. 2004).

5.7 Options

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Contract prices as well as terms and conditions are negotiated and agreed upon at the time of (bilateral) award, and the Option Clause in the contract gives the Government the unilateral right to purchase additional products/services or extend the term of the contract at pre-agreed prices and/or terms. Options may be appropriate where the market is relatively stable, price inflation is fairly predictable, and the nature of the contract is not likely to change significantly between award and the time the Option is exercised, or where it may be difficult to test the market at a future date. For details as to when Options are appropriate, see APG Solicitation Module Section 2.3.5 Options. For evaluating Options prior to contract award..

Priced Options are unilaterally exercised by the Government prior to the start date of the optional period of performance. Effective contract management throughout the current period of performance should enable the Contracting Officer to make a prudent business decision concerning the exercise of the Option. The Contracting Officer should consider availability of funds, contract price and contract performance (timeliness and quality), among other factors, in arriving at this decision. The Contracting Officer should acquire input from the Project Officer, namely the Contracting Officer’s Representative (COR), to make a proper determination as to whether the Option should be exercised (See 120-Day Request Sample and Attachment 1 Project Office Response).

The Contracting Officer should notify the Contractor of the Government’s intent to exercise the Option with sufficient time for the Contractor to make decisions regarding resources, typically 60 days prior to the Option performance start date or the lead time otherwise stated in the contract. (see 60-Day Notification Sample) The Contracting Officer makes this notice in good faith; however, the Government is not bound to exercise the Option, should circumstances warrant, even after the notification has been given of its intent to do so.

Before an Option can be exercised, the Contracting Officer shall make a written determination that exercise of the Option is the most advantageous method of fulfilling its needs, price and other factors considered per FAR17.207(c)(3). (See Sample D&F: Model Determination to Exercise the Contract Option in Accordance with FAR 17.207.) With regard to the consideration of “other factors,” the Contracting Officer should take into account the need for continuity of operations and potential costs of disrupting operations. To ensure the exercise of any option to a contract or order is carefully analyzed prior to execution, Procurement Memorandum (PM) 2011-02 (Revised), directs Contracting Officers to specify sufficient lead time in FAR clauses, as appropriate, to conduct aggressive market analysis in order to determine whether exercise of the option or an alternative approach to acquiring the goods or services is more advantageous to the Government. The conduct of the analysis should allow sufficient lead time for a new solicitation and award of a new contract or order if it is determined that exercising the option is not most advantageous to the Government. This PM also directs Contracting Officers to accept a voluntary price reduction through bilateral agreement with the contractor as an alternative to exercising an option when market conditions support it. The Contracting Officer’s written determination shall be based on one of the following findings: (1) a new Solicitation fails to produce a better price or a more advantageous offer; (2) an informal market survey or price analysis indicates that the Option price is lower or the more advantageous offer; or (3) the time between contract award and Option exercise is short enough and the market stable enough that the Option price is the lowest price obtainable or the more advantageous offer.

To satisfy requirements of FAR 6 regarding full and open competition, the Option must have been evaluated as part of the initial competition and be exercisable at an amount specified in or reasonably determinable from the terms of the basic contract: specific dollar amount, an amount determined by applying provisions (such as a specific price subject to an economic price adjustment) or formula (such as in a cost contract with fixed or maximum fee amount), or a specific price that is subject to change as the result of changes to prevailing labor rates provided by the Secretary of Labor.

For service contracts exceeding the micro-purchase threshold, the McNamara-O'Hara Service Contract Act (SCA) requires that the Contracting Officer incorporate the most current SCA Wage Determinations (WD) into an existing contract via modification to exercise an Option or extend the contract. For those service contracts which include a Collective Bargaining Agreement (CBA), the Contracting Officer shall provide notice to both the incumbent Contractor and its employees’ bargaining agent 30 days in advance of exercise of any Option. See Sample CBA Notification Letter. For more information, see FAR 22.1010 as well as the Department of Labor (DOL) Website: http://dol.gov/compliance/laws/comp-sca.htm. Also visit http://www.wdol.gov/, which provides a single location and electronic means for Contracting Officers to use in obtaining appropriate SCA WDs for each official contract action, including exercising Options. It may also be of great benefit to review the Department of the Navy’s Desk Guide for Service Contract Price Adjustments for detailed discussion on the process that Contracting Officers should take when processing contract price adjustments that result from changes in wage determinations issued under the SCA or from changing the minimum wage required by the Fair Labor Standards Act.

The Contracting Officer is afforded broad discretion in making the determination to exercise an Option, and GAO has not historically questioned the Contracting Officer’s decision to exercise an Option, rather than conduct a new procurement, unless it is shown to be unreasonable or contrary to applicable regulations. Reference GAO Case File B-296317, Antmarin Inc.; Georgios P. Tzanakos; Domar S.r.l., July 26, 2005. Regarding a protest that the Department of the Navy improperly exercised the sixth Option of a requirements-type contract for husbanding services is denied where the Contracting Officer reasonably determined that exercising the Option was the most advantageous means of satisfying the agency’s needs.

See the attached Exercise of Option Checklist.

5.7.1 SBA Size Recertification Top of Page

See APG Planning Module Section 1.7.1.2.1

Recertification must occur prior to the following events:

Option exercise
Merger or acquisition
End of the first five years of a contract

5.7.2 Small business Size Re-Representation – Long-Term Contracts Top of Page

See APG Planning Module Section 1.7.1.2.1

5.8 Stop-Work Order

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Situations may occur during contract performance that causes the Government to order a suspension of work or a work stoppage. In accordance with FAR 42.13, a stop-work order may be used in any negotiated fixed-price or cost-reimbursement supply, research and development, or service contract if work stoppage may be required for reasons such as advancement in the state-of-the-art, production or engineering breakthrough, or realignment of programs. Another example of when a stop-work order would be issued would be in response to a protest filed by an unsuccessful Offeror.

Generally, a stop-work order will be issued only if it is advisable to suspend work pending a decision by the Government and a supplemental agreement providing for the suspension is not feasible. Stop-work orders shall not be used in place of a termination notice after a decision to terminate has been made. Issuance and cancellation of a stop-work order must be approved at a level above the Contracting Officer.

FAR 42.1303 discusses what to include in a stop-work order and what to do as soon as feasible after its issuance. Contracting Officers may request assistance from the Project Officer in preparing the following information for inclusion in a stop-work order:

· Description of the work to be suspended.

· Instructions concerning the Contractor’s issuance of further orders for materials or services.

· Guidance to the Contractor on action to be taken on any subcontracts.

· Suggestions to the Contractor for minimizing costs.

When required, a stop-work order should be issued immediately. Orders may take the form of either a letter or modification. Contracting Officers may issue stop-work orders for a period of 90 days or less. Order extensions beyond 90 days must be agreed to by the Contractor. (See FAR 52.242-15.)

After issuing the stop-work order, the Contracting Officer should discuss the order with the Contractor and modify the order, if necessary, in light of the discussion. The Contracting Officer must then decide whether to terminate the contract, cancel the stop-work order, or extend the period of the stop-work order. If a stop-work order is canceled or the period of the order or any extension thereof expires, the Contractor shall resume work. The Contracting Officer shall make an equitable adjustment in the delivery schedule or contract price, or both, and the contract shall be modified, in writing, accordingly.

If a stop-work order is not canceled and the work covered by the order is terminated for the convenience of the Government, the Contracting Officer shall allow reasonable costs resulting from the stop-work order in arriving at the termination settlement. If a stop-work order is not canceled and the work covered by the order is terminated for default, the Contracting Officer shall allow, by equitable adjustment or otherwise, reasonable costs resulting from the stop-work order. See “Sample Stop Work Order Modifications (SF 30) Language” for sample Stop Work Order, Stop Work Order Cancellation and Stop Work Order Extension Modifications language.

5.9 Change Orders

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A change order is a unilateral, written order signed by the Contracting Officer. Most equitable adjustments are the result of the contract Changes Clause. In accordance with the clause, the Contractor is entitled to a price adjustment if: a) the Contracting Officer changes any aspect of the general scope of the contract, and b) the change affects the cost of performing the work.

A Changes Clause serves four basic purposes:

To provide flexibility for the Government to order unilateral changes, to use technological advances, and to incorporate changes in Government requirements.
To provide a means for the Contractor to propose changes that will improve efficiency and quality. These proposals are usually referred to as ECPs or Value ECPs.
To provide the Contracting Officer authority to add or subtract work within the general scope of the contract or to accelerate or decelerate the contract schedule without going through the process of a new procurement or using new funds.
To provide a legal means by which the Contractor can process claims through the administrative dispute process.

The Changes Clause does not incorporate every change to the contract. Changes are limited to those that are within the general scope of the contract and the types of changes described by the clause. A change falls under the general scope of the contract if total work performed is essentially the same work or end product as called for in the original contract.

Note: For commercial item procurements, changes in the terms and conditions of the contract may be made only with written agreement of both parties.

Note: Change orders, as a result of the Changes Clause, are not applicable to commercial procurements. For commercial item procurements, changes in the terms and conditions of the contract may be made only with written agreement of both parties.

5.9.1 Documentation of Contract Modifications – Change Order Top of Page

The Business Case Memorandum/Summary of Negotiations is mandatory documentation for any unilateral or negotiated change to the contract. See NOAA Acquisition Handbook Part 15.4.

5.9.2 Change Orders as Modifications to Purchase Orders (PO)s Top of Page

Although seldom used to modify POs, a change order can be issued under the following conditions:

· A change order can only be made to a bilateral PO in which the applicable Changes Clause has been incorporated into the original PO or has been incorporated via bilateral modification.

· The proposed change must be within the scope of the original order and allowable under the changes clause as follows:

· For supplies, drawings, designs or Specifications where supplies to be furnished are to be specially manufactured for the Government per those drawings, designs, or Specifications; method of shipment or packing; or place of delivery;

· For services, description of services to be performed; time of performance or place of performance of the services; or

· For services where supplies are to be furnished items in the two bullets above.

5.10 Clams and Request for Equitable Adjustment

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Any change in requirements made by the Contracting Officer to a contract via the Changes clause can result in the Contractor submitting to the Government a Request for Equitable Adjustment (REA) and/or Claim for an equitable adjustment in the contract price, the delivery schedule, or both. For example, the Government could issue a unilateral change order in accordance with the applicable Changes clause, or the Contractor could initiate a Claim based on Government-caused work delays or other issues leading to increased costs (e.g., excessive inspection; items repaired/services performed under warranty that were later deemed to be the Government’s fault; or late delivery of Government Furnished Property (GFP) which delayed work).

See the DAU CON 112 Lesson for Contract Claims and DAU Material on Contract Modifications and Adjustments.

5.10.1 Claims Versus Request for Equitable Adjustment (REA) Top of Page

Although the purpose of a Claim is identical to that of an REA (i.e., to grant the Contractor an equitable adjustment for work done that was outside scope of the contract), some differences remain between the two requests:

	CLAIM	REA
Required Certification	When exceeding $100,000 per FAR 52.233-1.	When exceeding $100,000 per FAR 52.233-1.
Timely Decision	Upon receipt of a properly certified Claim in excess of $100,000, the Contracting Officer must either issue a final decision or notify the Contractor when a final decision will be issued within 60 calendar days of the request.	No deadline exists for responding to an REA but the Government should respond as promptly as possible.
Final Decision and Appeal	Final decisions issued by a Contracting Officer in response to a properly certified Claim (or a Contracting Officer’s failure to issue a final decision within the time limits identified above) may be appealed to the General Services Board of Contract Appeals (GSBCA) or COFC.	The GSBCA do not have jurisdiction over REAs that do not satisfy the definition of a “Claim.”
Interest	Interest must be paid on Claims from the date of their submission.	Interest is not paid on REAs.

To determine if the dollar threshold of $100,000 for requiring certification is met, add together the absolute value of each cost increase and each cost decrease. For example:

An REA that involves both an increase of $50,000 and a decrease of $55,000 has an absolute value of $105,000 ($50,000 + $55,000, regardless of whether the amounts are plus or minus), which exceeds the Simplified Acquisition Threshold (SAT).

Note that before either a Claim or an REA can be settled, the Contractor must provide certified cost and pricing data to the Government if the requested price adjustment will exceed $650,000.

5.10.2 Requirements for a Claim Top of Page

If the Contractor has certified an REA and desires to convert the request to a Claim under the Contract Disputes Act, the Contractor must certify the Claim in accordance with FAR 33.2 Disputes and Appeals. The Contractor also must meet the following criteria as specified under FAR Clause 52.233-1:

The Contractor must submit the demand in writing to the Contracting Officer.
The Contractor must submit the demand as a matter of right.
The demand must include a sum certain.

Unless otherwise stated in the contract, all Claims made by a Contractor must be submitted in writing to the Contracting Officer within six years after accrual of the Claim.

5.10.3 Procedure for Handling a Request for Equitable Adjustment or Claim Top of Page

Once an REA or Claim is received by the Contracting Officer, the Contracting Officer should establish a team to handle that Claim. The members of the team should include the Contracting Officer, representatives of the Project Officer and any other relevant personnel from other Government organizations (e.g., DCAA, DCMA).

After the team members are identified, the team should initiate the following procedures:

The Project Officer should draft and issue a Technical Analysis Report (TAR). The TAR should analyze the technical/programmatic aspects of the REA/Claim by evaluating every assertion in the REA/Claim with reference to relevant supporting documentation to determine the extent of the Government’s responsibility under all applicable legal theories. The TAR should be written in the following format: Introduction, Contractor Allegations, Facts, Technical Analysis, Impact, and Quantification. (see TAR Template).

After receipt of a TAR, Counsel will draft a Legal Entitlement Memorandum. The Memorandum will address all legal theories presented, entitlement, potential defenses, overall litigative risk and the type/year of appropriations that should be used to fund any settlement.

If the parties are amenable to settlement, the Contracting Officer should notify the Contractor and open settlement negotiations. If the parties are not amenable to settlement and the Contractor submitted an REA, the Contracting Officer should inform the Contractor accordingly. If the parties are unable to settle the Claim, the Contracting Officer should, with assistance from Counsel, draft a Contracting Officer’s Final Decision (COFD).

5.10.4 Release of Claims Top of Page

For any equitable adjustment resulting from a Change Order (FAR 43.2), include in the supplemental agreement modification, a Release of Claims similar to that cited at FAR 43.204(c) (2).

5.10.5 Alternative Dispute Resolution Top of Page

Although the use of Alternative Dispute Resolution (ADR) techniques may be employed at any time, certain factors may make the use of ADR inappropriate in a particular situation. ADR techniques include, for example, assisted settlement negotiations, conciliation, facilitation, mediation, fact-finding, mini-trials, and arbitration. For further details, contact Counsel.

For more information on Claims and REAs, please reference FAR 33.2, FAR 43 and FAR 52.243-1 through 52.243-7.

5.10.6 Contracting Officer’s Final Decision Top of Page

In accordance with NOAA’s Acquisition Handbook, proposed Claim settlements and final decisions of the Contracting Officer shall be reviewed for legal sufficiency and format before sending the final decision to the contractor. In accordance with Procurement Memorandum (PM) 2011-05. The Senior Bureau Procurement Official (SBPO) shall submit all final decisions, claims and settlements to the Senior Procurement Executive (SPE) for review and approval prior to execution and/or issuance for review.

Equitable Adjustments Not Specifically Covered by Contract Clauses

Breach of Contract. Breach of contract occurs when a party unjustifiably fails to perform in accordance with its contractual obligations. Breach of contract settlements are similar to equitable adjustments, except that cost principles do not apply.

Constructive Changes. The Changes Clause asserts that a "written order" must be given to the Contractor stating the change, but this requirement is not always met. Lack of a written order does not preclude recovery of costs. A constructive change occurs when: a) the Contractor performs work beyond that required by the contract without a formal change order, and b) it is perceived that the work originated from a Government informal order or is due to Government fault. A Government informal order can be defined as words or deeds excluding advice, comments, suggestions, or opinions. There are four general categories of constructive changes:

o Disagreement over contract requirements.

o Failure of the Government to cooperate during contract performance.

o Defective Specifications and misleading information.

o Acceleration of contract performance to finish sooner than what is stated in the contract schedule.

Implied-In-Fact (Quantum Meruit). The translation of Quantum Meruit is “as much as he/she deserves.” It is the doctrine under which recovery can be made when Quasi or Implied contracts exist. This form of recovery is designed to avoid unjust enrichment of one party. When the Contractor performs an effort that benefits the Government, this implies a Government obligation to pay for the benefits. Quantum Meruit also covers partial performance under an unenforceable contract. Basically, the Government should pay for any benefits received at someone else’s expense. The measure used to settle Quantum Meruit Claims is often value, not cost. In such an instance, the fair market value of the benefits received by the Government would be reasonable.

For any equitable adjustment resulting from a Change Order (FAR 43.2), include in the supplemental agreement modification, a Release of Claims similar to that cited at FAR 43.204 (c)(2).

For resolution of Claims involving acquisition fraud, Contracting Officers may not “settle, compromise, pay, or otherwise adjust” any Claim involving fraud. Submit any suspected contractor’s fraudulent claim(s) to the Office of the Inspector General for investigation.

For more information on Claims and REAs, see the DAU CON 112 Lesson for Contract Claims and DAU Material on Contract Modifications and Adjustments.

5.11 Terminations

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The Government reserves the right to terminate any contract. Common grounds for termination include reduction or reallocation of Congressional/program funding, determination that a contract is unnecessary, or unacceptable Contractor performance. The Project Officer may identify grounds for termination, but only the Contracting Officer has the authority to actually terminate a contract. The Contracting Officer should consult with Counsel prior to terminating any contract action whether in whole or in part.

There are three types of Government contract terminations:

Termination for Default
Termination for Convenience
Termination of Commercial Items (for cause or convenience)

5.11.1 Termination for Default Top of Page

The Government may terminate a Contractor for default in whole or in part when the Contractor fails to deliver or perform, fails to make progress, fails to meet other contract provisions, abandons the contract, or repudiates the contract in an anticipatory manner. A Termination for Default (T4D) is an extreme sanction and should not be taken lightly – not only does it mar a Contractor’s reputation, limiting its chances in future competition and Government support; a T4D ends performance on the contract, potentially delaying satisfaction of the Government’s requirement. In addition, the Contractor may be forced not only to repay the Government for charges already billed, but also for the difference between the contract price and the price the Government had to pay for a replacement Contractor to deliver the supplies or perform the services not delivered/performed by the defaulting Contractor.

If the Contracting Officer determines that the Contractor has failed to deliver supplies/services in accordance with the contract delivery schedule, or that the Contractor has abandoned or anticipatorily repudiated the contract, the Government is not required to give the Contractor an opportunity to explain its conduct. It is nevertheless advisable for the Contracting Officer to issue the Contractor a Show Cause Notice under such circumstances so that the Contractor has an opportunity to explain if and why its failure to deliver arose from causes beyond its control and without failure or negligence on its part, and so that response can be considered by the Contracting Officer prior to terminating the contract for default.

If the Contracting Officer determines that the Contractor has failed to make progress or has failed to perform a material contract provision, the Contracting Officer must issue a Cure Notice to the Contractor and provide the Contractor 10 calendar days (or a longer period if necessary) in which to cure the failure. If, however, the time remaining in the contract delivery schedule is insufficient to permit a realistic “cure” period of 10 calendar days or more, the Contracting Officer can issue a Show Cause Notice.

The issuance of either a Cure Notice or a Show Cause Notice are the first steps along a path that may end in a T4D and should only be issued when the Project Officer will support that ultimate action. They should not be issued as scare tactics when the Project Officer has no intention of following through if the Contractor will not or cannot comply with the requirements set forth in the letter – this is tantamount to crying “wolf” and ultimately undermines the credibility of the NOAA.

Although the Contracting Officer has the right under the “Default” clause to terminate the contract, the Contracting Officer does not have to exercise that right. The Contracting Officer must weigh all relevant factors in determining whether to T4D a contract, such as:

· The terms of the contract and applicable laws and regulations.

· The specific failure of the Contractor and the excuses for the failure.

· The availability of the supplies/services from other sources.

· The urgency of the need for the supplies/services and the period of time required to obtain them from other sources (as compared with the time they could be obtained from the delinquent Contractor).

· The degree of essentiality of the Contractor in the program and the effect of a T4D upon the Contractor’s capability as a supplier.

· The effect of a T4D on the ability of the Contractor to liquidate guaranteed loans, progress payments, or advance payments.

· Other pertinent facts and circumstances.

If, upon reviewing these factors, the Contracting Officer decides to T4D the contract, the Contracting Officer will draft a memorandum that memorializes his/her decision and then issue a termination notice to the Contractor. For more specific guidance on contract T4D, see FAR 49.4 and FAR 52.249-6 through 52.249-10.

5.11.2 Termination for Convenience Top of Page

A contract can also be terminated (in whole or in part) for convenience as long as the Contracting Officer determines that termination is in the Government’s interest and that the termination is not made in bad faith or reflects an abuse of Contracting Officer discretion. Before undertaking a Termination for Convenience (T4C), however, the agency should endeavor to enter into a no-cost cancellation with the Contractor.

Examples for which a contract would be terminated for convenience include situations in which the technology to be procured has become obsolete, new technological developments have occurred subsequent to contract award, the Government’s requirements have changed, or a reduction or reallocation of Congressional/program funding has occurred.

After a contract has been terminated for convenience, the Contractor is entitled to be reimbursed for all allocable, allowable, and reasonable costs it incurred as of the termination date, reasonable profit on work done (unless the Contractor would have sustained a loss on the entire contract had it been completed), termination settlement expenses, and certain continuing costs (post-termination). A Contractor must follow all procedures listed in the T4C clause contained in its contract or risk losing its right to be reimbursed for such costs and profit.

Once it is decided that a contract will be terminated for convenience, the Contracting Officer should issue a detailed, written notice of termination to the Contractor. Upon receipt of that notice, the Contractor must, amongst other things, stop work and promptly submit a termination settlement proposal to the Terminating Contracting Officer (TCO).

For more specific guidance on T4Cs, please reference T4C FAR 52.249-1 through 52.249-6 and FAR 49.

5.11.3 Termination of Commercial Contracts Top of Page

A Contracting Officer should exercise the Government’s right to terminate a contract for commercial items only when such a termination would be in the best interest of the Government. The Contracting Officer may terminate a commercial item contract for Cause or for Convenience.

FAR 52.212-4 permits the Government to terminate a contract for commercial items either for the convenience of the Government or for cause. However, the paragraphs contained therein contain concepts that differ from those contained in the termination clause. The requirements of FAR 49 do not apply when terminating contracts for commercial items and Contracting Officers shall instead follow the procedures in FAR 12.403. Contracting Officers may use this FAR Part as guidance to the extent that it does not conflict with FAR 12.403 and the language of the termination paragraphs in clause FAR 52.212-4.

5.11.3.1 Commercial Termination for Cause Top of Page

When a Termination for Cause is appropriate, the Contracting Officer shall send the Contractor a written notification regarding the termination. At a minimum, this notification shall indicate the following:

The contract is terminated for cause;
The reasons for the termination;
Which remedies the Government intends to seek or provide a date by which the Government will inform the Contractor of the remedy; and
The notice constitutes a final decision of the Contracting Officer and that the Contractor has the right to appeal under the Disputes clause (see FAR 33.211).

The Contracting Officer should consult with Counsel prior to terminating for cause.

FAR 52.212-4 paragraph “Excusable Delay” requires Contractors to notify the Contracting Officer as soon as possible after commencement of any excusable delay. In most situations, this requirement should eliminate the need for a show cause notice prior to terminating a contract. If a contract will be terminated for a reason other than late delivery, the Contracting Officer shall send a Cure Notice prior to terminating the contract.

The Government’s rights after a Termination for Cause shall include all the remedies available to any buyer in the marketplace. The Government’s preferred remedy will be to acquire similar items from another Contractor and to charge the defaulted Contractor with any excess reprocurement costs together with any incidental or consequential damages incurred because of the termination. In the event of a Termination for Cause, the Government shall not be liable to the Contractor for any amount for supplies/services not accepted, and the Contractor shall not be liable to the Government for any and all rights and remedies provided by law.

In the case of individual orders for supplies or services placed against Federal Supply Schedule (FSS) contracts or BPAs established against FSS contracts, if a Contractor fails to perform an order or take appropriate corrective action, the Contracting Officer may terminate the order for cause or modify the order to establish a new delivery date (after obtaining consideration, as appropriate). The Schedule Contracting Office shall be notified of all instances where an ordering activity Contracting Officer has terminated for cause an individual order to an FSS Contractor.

5.11.3.2 Commercial Termination for the Government’s Convenience Top of Page

When the Contracting Officer terminates a contract for commercial items for the Government’s convenience, the Contractor shall immediately stop all work and shall direct any and all of its suppliers and subcontractors to do the same.

The Contractor shall be paid the following:

The percentage of the contract price reflecting the percentage of the work performed prior to the notice of the termination, and
Any charges the Contractor can demonstrate directly resulted from the termination. The Contractor may demonstrate such charges using its standard record keeping system and is not required to comply with the cost accounting standards or the contract cost principles in FAR 31. The Government does not have any right to audit the Contractor’s records solely because of the termination for convenience.

Generally, the parties should mutually agree upon the requirements of the termination proposal. The parties must balance the Government’s need to obtain sufficient documentation to support payment to the Contractor against the goal of having a simple and expeditious settlement.

Under FSS contracts, a Contracting Officer may terminate individual orders for the Government’s convenience, in compliance with FAR 12.403. Before terminating orders for the Government’s convenience, the Contracting Officer shall endeavor to enter into a no-cost settlement agreement with the Contractor. Only the Schedule Contracting Officer may modify the Schedule contract to terminate any, or all, supplies or services covered by the Schedule contract for the Government’s convenience.

5.12 Ratification of Unauthorized Commitments

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FAR 1.6 provides that only a Contracting Officer has the authority to enter into contracts or otherwise bind the government to a contractual commitment. It is the policy of the Department of Commerce that all acquisitions are to be made only by government officials having authority to make such commitments. Contracting Officers may bind the Government only to the extent of the authority delegated to them.

All personnel are responsible for ensuring that their dealings with Contractors are conducted in such a manner as to avoid the impression that they intend to obligate the Government in any manner whatsoever. Specifically, regarding existing or prospective contractual matters, no person except a Contracting Officer may take any action concerning:

Price, cost, or fee
Quantity
Quality
Scope of contract
Delivery schedule
Labor category or key personnel qualifications
Promise/authorize additional work to a Contractor
Modify terms or conditions of the contract
Issue Stop-Work Orders
Authorize additional Government furnished property

An Unauthorized Commitment (UC) is an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government (FAR 1.602). The ordering and acceptance of supplies and services without benefit of a legal contract constitute improper acts and do not obligate the Government for the items ordered, but may incur a personal liability to the individual who made the commitment. However, such agreements can be ratified, or approved, after they have been illegally authorized, but only by an official who has the authority to do so and only when the following conditions are met:

Supplies or services have been provided to and accepted by the Government, or the Government otherwise has obtained or will obtain a benefit resulting from performance of the UC;

· The Ratifying Official has the authority to enter into a contractual commitment;

· The resulting contract would otherwise have been proper if made by an appropriate Contracting Officer;

· The Contracting Officer reviewing the UC determines the price to be fair and reasonable;

· The Contracting Officer recommends payment and Counsel concurs in the recommendation, and

· Funds are available and were available at the time the UC was made. The obligation is chargeable to the fiscal year in which the need arose and the work was performed as a result of the UC. Funding must be from the fiscal year in which the UC took place if such funds are available. Otherwise, currently available funds may be utilized.

· The ratification is in accordance with Department of Commerce policies and procedures.

The Department’s goal is to minimize these actions. This policy implements preventive measures and prescribes the ratification process, including the multi-level review for all ratifications of unauthorized procurement actions, ratification release and contract language for payments. In addition, it provides information regarding measures that may be taken to minimize or prevent the occurrence of unauthorized commitments. See CAM 1301.602.

For NOAA, the Authorized Ratifying Official as stated in the Department of Commerce Acquisition Letter (AL) 30 is the Head of the Contracting Activity (HCA); however, the HCA has delegated this to the Senior Bureau Procurement Official. In accordance with Procurement Memorandum (PM) 2011-05, for ratifications of unauthorized commitments in excess of $50,000. the SBPO shall submit these actions to the Senior Procurement Executive (SPE) for review and approval prior to issuance or execution.

Each NOAA Acquisition Office will maintain a log of all ratification actions which will show the originator of the ratification action, the originator’s organization, a description of what was acquired, the date, the amount, and current status. A copy of the log shall be provided to the Director, AGO, no later than the 15th of the month on a quarterly basis in January, April, July, and October. Notice of instances of repetitive ratification actions by an individual or within an organizational component, will be provided to the Associate Administrator (AA), and/or Deputy Associate Administrator (DAA) of NOAA Line Offices (LOs) or Staff Office (SO) Directors.

Cases that are not ratifiable under the FAR 1.602-3 procedures may be subject to resolution as recommended by the Government Accountability Office (GAO) under its claim procedure or as authorized by FAR 50. These cases require Counsel review. UCs that involve claims subject to resolution under the Contract Disputes Act should be processed in accordance with FAR 33.2, Disputes and Appeals. See APG 5.10 for details.

The Project Officer must ensure that proactive measures are in place within their department to prevent the occurrence of UCs. If, however, a UC occurs, individuals who made the UC will be asked to forward a signed statement identifying the circumstances, accompanied by all available orders, invoices, or other documented evidence of the transaction, to the Responsible Program Official via their chain of command. This includes, at a minimum:

· A statement regarding the nature of the unauthorized procurement action and the individuals involved, including all managers who knew of the action and allowed it to take place;

· A discussion of the program requirements and an explanation of how the unauthorized procurement action occurred, and why it was considered valid and necessary to meet program requirements;

· Explain whether or not competition was sought. Provide an explanation of the initial selection of the proposed contractor, (i.e., market research or sole source justification) include names, addresses, phone numbers, and provide quotes received from any other sources that were considered;

· A statement of any approvals or clearances received for the unauthorized procurement action, including a listing of who told the contractor to proceed and on what date the contractor was so notified;

· A description of the work performed or products furnished, date inspected and accepted, including the date work started for services;

· The estimated or agreed to purchase price and the estimated or agreed to completion date and the date when they were agreed to (include how price or cost reasonableness was evaluated and who agreed to it);

· A copy of the most current invoice;

· A description of what has been done to prevent recurrence, including any disciplinary action taken against parties involved;

· A description of any attempts made to involve properly authorized procurement personnel before any commitment was made to the contractor (include any factors which prevented such involvement); and

· Provide a statement addressing whether or not funds were available at the time of commitment and whether or not they are still available to date.

· Any other pertinent information regarding the unauthorized procurement action or the ratification request.

If the Responsible Program Official concurs that the commitment should be ratified, the Responsible Program Official will forward a signed memorandum that thoroughly addresses and includes each of the above eleven elements to the HCO through the Contracting Officer with an endorsement that verifies the accuracy and completeness of the documentation, describes measures taken to prevent a recurrence of the UC, and provides a complete purchase description and appropriate funding document (CD 435) for the ratifying contract.

The Contracting Officer will review the Responsible Program Official Memorandum and endorsement provided, ascertain whether there are any doubtful questions of fact, prepare a Memorandum (See Sample Memorandum to HCO Recommending Approval of Ratification Action) that addresses provisions contained in FAR 1.602-3(c), to the Ratifying Official/HCO with contractual documents citing availability of funds, and submit the contract and supporting documents to DOC OGC CLD for an opinion as to form and legality and for any additional pertinent comment or advice.

DOC OGC CLD will review the Memorandum and other documentation for legal sufficiency and comment on the payment recommendation. OGC shall provide documentation of legal sufficiency for the contract file.

The Ratifying Official/HCO will review the ratification file, and either ratify the UC (and execute or authorize execution of a contractual document) or deny the ratification request.

See Unauthorized Commitment Correspondence Toolbox, Ratification Checklist, UC and Ratification Process Guide for the Project Officer.

5.13 Contract File Maintenance, Closeout, and File Retention

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Documentation in the contract files (see FAR 4.803) shall be sufficient to constitute a complete history of the transaction for the purpose of: (1) providing a complete background as a basis for informed decisions at each step in the acquisition process; (2) supporting actions taken; (3) providing information for reviews and investigations; and (4) furnishing essential facts in the event of litigation or Congressional inquiries.

The contract file must contain a complete and accurate record of the chronology of the purchase action. Once the contract is physically complete, deliveries and/or services have been completed by the Contractor and accepted by the Government (see FAR 4.804-4), the Administrative Contracting Officer (ACO) must then close the contracts with assistance from the Project Officer/designated Contracting Officer’s Representative (COR).

Examples of the files that must be closed out include (see FAR 4.803):

Contracting Office contract files (e.g., purchase request, acquisition planning information, other pre-Solicitation documents, justifications and approvals). (See Contract File Document Checklist.)
Contract Administration Office contract files (e.g., copy of the contract and all modifications, security requirements, pre-award survey information).
Accounting and Paying Office financial files (e.g., bills, invoices, vouchers and supporting documents, record of payments or receipts).
Interagency Agreements - All parties involved with an interagency agreements are responsible for close-out activities for both the interagency agreement for assisted acquisition and the resulting contract. Documentation of close-out considerations for the interagency agreement shall be included in the official agreement file. CAM 1317.570 Appendix D for Close-Out Checklists.

Once all receivables have been delivered/completed and verified by the Project Officer/COR, the ACO or Contracting Officer reviews the contracts files for remaining closeout actions. The time standards for closing out contract files when the closeout is by the office administering the contract are as follows (see FAR 4.804-1):

Files for contracts using Simplified Acquisition Procedures (SAP) should be considered closed when the Contracting Officer receives evidence of receipt of property and final payment, unless unliquidated balances remain.
Files for firm-fixed-price contracts, other than those using SAP, should be closed within six months after the date on which the Contracting Officer receives evidence of physical completion.
Files for contracts requiring settlement of indirect cost rates should be closed within 36 months of the month in which the Contracting Officer receives evidence of physical completion.
Files for all other contracts should be closed within 20 months of the month in which the Contracting Officer receives evidence of physical completion.

For time standards for closing out contract files when the closeout is by an office other than the office that administered the contract, see FAR 4.804-2.

Additionally, to the maximum extent possible and where appropriate for all contracts, use the Quick Closeout procedures (FAR 42.708).

A straw-man checklist of actions to accomplish when closing a contract are consolidated in a Contract Closeout Checklist.

Upon completion of these responsibilities, the Administrative Contracting Officer shall complete the Contract Completion Statement. The [Administrative] Contracting Officer signs the final certification that the contract is closed.

For more information on Contract Completion and Contract Closeout, please see CAM Part 4 Chapter 3, “Contract Closeout Procedures”. See also Contract Closeout Flowchart, which depicts an overview of the closeout process. DCMA’s Contract Closeout Guidebook is also a useful resource.

5.13.1 Contract File Retention Period Top of Page

Scenario	Retention Period
Records pertaining to Contract Disputes Act actions	6 years and 3 months after final action or decision
Contracts (and related records or documents, including successful proposals) exceeding the simplified acquisition threshold for other than construction	6 years and 3 months after final payment
Contracts (and related records or documents, including successful proposals) at or below the simplified acquisition threshold for other than construction	3 years after final payment
*Construction contracts $2,000 or less	3 years after final payment
*Construction contracts above $2,000	6 years and 3 months after final payment
[Documents] relating to contracts at or below the Simplified Acquisition Threshold (SAT)	1 year after date of award or until final payment, whichever is later.
Files for canceled Solicitations	5 years after cancellation.
Other copies of procurement file records used by component elements of a contracting office for administrative purposes	Upon termination or completion.
Data submitted to the Federal Procurement Data System (FPDS)/[PMRS]. Electronic data file maintained by fiscal year, containing unclassified records of all procurements other than simplified acquisitions, and information required under FAR 4.601.	5 years after submittal to FPDS
Investigations, cases pending or in litigation (including protests), or similar matters	Until final clearance or settlement, or, if related to a document identified in (b)(1)-(9), for the retention period specified for the related document, whichever is later

Generally, files for simplified acquisitions (other than construction) must be retained for three (3) years after final payment. Contracts exceeding the SAT (other than construction) must be retained for six (6) years and three (3) months after final payment. Documents relating to contracts at or below the SAT must be retained for one (1) year after date of award or until final payment, whichever is later. There are other specific retention periods for actions such as protests and claims. Consult FAR 4.805 and APG 5.13.1 for contract file retention periods.

5.13.2 Maintenance Top of Page

Proper documentation of the various business decisions involved in the procurement process is crucial. Regardless of the simplified acquisition method used, a file documenting all actions taken should be maintained for each purchase action. The contract file should contain anything that helps provide a complete history of the transaction. FAR 4.803 provides a comprehensive list of items generally maintained in a contract file. The following are few of the most important documents to be included in the contract file for acquisitions at or below the SAT:

A copy of the Purchase Request with evidence of available funds (including purchase description, all approvals, and the sole source justification, if applicable).
Documentation that the acquisition was synopsized, if applicable.
Complete record of the Solicitation including Contractors contacted, responses received, evaluations, etc.
A copy of the award document (SF 1449, OF 347, etc.), documentation supporting basis for award and price reasonableness determination, and any other documentation.
A copy of all SCA/Davis-Bacon WDs retrieved and incorporated into the order.
Documentation supporting administrative actions, including copies of all modifications.
Copy of invoices and evidence of receipt, inspection, and acceptance, if applicable.

In addition to the above listed items, for acquisition of commercial items under FAR 13.5, several other items should be included in the contract file including, but not limited to, the following:

Brief description of the procedures used in awarding the procurement.
Statement that the test procedure was used.
Number of offers received.
Any Justification and Approvals (J&As) obtained for the procurement.
Written determination of commerciality.
Results of market research.
Review by the Small Business Specialist.

5.13.3 File Documentation for GSA FSS Orders Top of Page

For orders at or below the micro-purchase threshold, documentation, at a minimum, should consist of the Contractor’s name and address, contract number, the item purchased, the amount paid and Contractor delivery and payment terms. Orders over the micro-purchase threshold, as a minimum, should contain the same information for each Contractor reviewed. Additional supporting file documentation should be provided if the Contracting Officer selects a Schedule Contractor on a basis of other than price. The Contracting Officer should document the file with the basis by which he/she determined the proposed DO offers the best value to the Government, price and other factors considered.

5.13.4 Close-Out Top of Page

The Contracting Officer shall close out simplified acquisitions upon evidence of receipt, acceptance, and final payment. The Contracting Officer may use one of two methods to close out contract files:

· Consider the file closed when he/she receives evidence of receipt of property and final payment.

· Consider the file closed 180 days after the scheduled delivery date unless there is indication that final delivery and final payment have not occurred by that date.

Contract completion documentation should be limited to a statement in the file that it is closed out per one of the two methods listed above. Contracting Offers remain responsible for ensuring that Contractors are paid in a timely manner and the Customer receives the goods and/or services purchased.

A straw-man checklist of actions to accomplish when closing a contract are consolidated and provided in the following table.

Contract Close-out Checklist (rev. 2/8/2011) This form shall be completed in conjunction with FAR 4.804-5(a).
Contract #
Project #
Contractor
Applicability (yes-no-n/a)	CHECKLIST ITEMS
	1. Disposition of classified material is completed.
	2. Final patent report is cleared.
	3. Final royalty report is cleared.
	4. There are no outstanding VECPs (Value Engineering Change Proposals).
	5. Plant clearance report is received.
	6. Property clearance is received.
	7. All interim or disallowed costs are settled.
	8. Price revision is completed.
	9. Subcontracts are settled by the prime contractor.
	10. Prior year indirect cost rates are settled.
	11. Termination docket is completed.
	12. Contract audit is completed.
	13. Contractor given an opportunity to submit a closing statement.
	14. Contractor's final invoice is submitted.
	15. All forms of Government-provided identification has been collected from the contractor.
	16. Contract funds review is completed and excess funds deobligated.
	17. Close-out FPDS-NG Report is inputted into system.
	18. Contractor Performance Evaluation Report completed if applicable.
*Certification*: I certify that all required contract administration actions, as listed above, have been fully and satisfactorily completed. ________________________________________________ ____________________________ CONTRACTING OFFICER SIGNATURE NAME

*The ACO/Contracting Officer is responsible for all other contractual actions including deobligating unliquidated obligations.

5.14 Summary of Post-Award Module References

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Section	Loc	Reference Description	Type	Source
5.0	1	FAR 4.805	Regulation	FAR
5.1.1.1	1	FAR 5.303	Regulation	FAR
5.1.1.1	2	FAR 5.303(a)	Regulation	FAR
5.1.1.1	3	www.fedbizopps.gov	Website	FBO
5.1.1.1	4	American Recovery and Reinvestment Act of 2009 (ARRA)	Statute	Federal
5.1.1.1	5	PM 2009-09 (Amendment 1).	Policy	DOC
5.1.1.1	6	FAR 5.206.	Regulation	FAR
5.1.1.2	1	Sample Notification to Unsuccessful Offeror Letter	Sample	NOAA
5.1.1.2	2	FAR 13	Regulation	FAR
5.1.1.2	3	FAR 15.503	Regulation	FAR
5.1.1.3	1	Commerce Acquisition Manual Chapter 1305.303	Policy	DOC
5.1.1.3	2	American Recovery and Reinvestment Act (ARRA)	Statute	Federal
5.1.1.3	3	Acquisition Alert AA10-01 dated 4/28/2010	Policy	NOAA
5.1.1.3	4	Post-Award Notices (NOAA Acquisition Alert 10-01, Attachment 3),	Policy	NOAA
5.1.2.1	1	FAR 4.14	Regulation	FAR
5.1.2.1	2	FAR 52.204-10	Regulation	FAR
5.1.2.1	3	Acquisition Alert (AA) 11-01	Policy	NOAA
5.1.2.1	4	Federal Procurement Data System (FPDS),	Website	FPDS
5.1.2.1	5	FAR 52.204-10	Regulation	FAR
5.1.2.1	6	http://www.fsrs.gov	Website	FSRS
5.1.2.1	7	Acquisition Alert (AA) 11-01	Policy	NOAA
5.1.2.1	8	FAR 42.15	Regulation	FAR
5.2	1	CAR 1352.233-71	Regulation	DOC
5.2	2	Government Accountability Office (GAO)	Website	GAO
5.2	3	U.S. Court of Federal Claims (COFC).	Website	COFC
5.2	4	DOC Office of General Council, Contract Law Division (OGC CLD)	Website	DOC
5.2	5	FAR 33.103(d)(4).	Regulation	FAR
5.2	6	DAO 208-05	Policy	DOC
5.2	7	PM 2010-04	Policy	DOC
5.2	8	PM 2010-10	Policy	DOC
5.2	9	Acquisition Alert 05 - Revised Legal Review Thresholds	Policy	NOAA
5.2.1	1	FAR 33.201	Regulation	FAR
5.2.1	2	FAR 33.102	Regulation	FAR
5.2.2	1	FAR 33.103(d)(4)	Regulation	FAR
5.2.2	2	FAR 33.103(f)(1)	Regulation	FAR
5.2.2	3	FAR 33.103(f)(3)	Regulation	FAR
5.2.2	4	FAR 33.103(f)(1).	Regulation	FAR
5.2.2	5	FAR 33.103	Regulation	FAR
5.2.2	6	CAR Part 1333	Regulation	DOC
5.2.3	1	FAR 15.505	Regulation	FAR
5.2.3	2	FAR 15.506	Regulation	FAR
5.2.3	3	Sample D&F To Continue Performance in the Face of a GAO Protest.	Sample	NOAA
5.2.3	4	APG Award Module Section 4.3.3	Internal	APG
5.2.4	1	U. S. Court of Federal Claims	Website	COFC
5.2.4	2	Department of Commerce, Office of General Counsel, Contract Law Division	Website	DOC
5.3	1	FAR 42.502	Regulation	FAR
5.4.1	1	CAM 1301.67	Policy	DOC
5.4.1	2	Sample COR Performance Evaluation	Sample	NOAA
5.4.2.1	1	COTR Appointment Memorandum	Sample	NOAA
5.4.2.1	2	FAR 37.6	Regulation	FAR
5.4.2.1	3	Sample QASP for CPFF Contract)	Sample	NOAA
5.4.2.1	4	Contract Funding Summary Spreadsheet	Template	NOAA
5.4.2.1	5	Limitation of Funds Non-Compliance Letter Template.	Template	NOAA
5.4.2.1	6	COR File Documentation Checklist	Checklist	NOAA
5.4.2.2	1	APG Section 5.12	Internal	APG
5.4.3	1	FAR 42	Regulation	FAR
5.4.3	2	FAR 8.7	Regulation	FAR
5.4.3	3	FAR 3.104	Regulation	FAR
5.4.3	4	Contractor Past Performance Assessment Reporting System (CPARS)	Website	CPARS
5.4.3	5	Past Performance Information Retrieval System (PPIRS)	Website	PPIRS
5.4.3	6	FAR 7.503(d)(7)	Regulation	FAR
5.4.3	7	FAR 42.1503(f) (1)	Regulation	FAR
5.4.3	8	FAR 15.407-1(d)	Regulation	FAR
5.4.3	9	FAR 42.1503(f)(2)	Regulation	FAR
5.4.3	10	www.cpars.csd.disa.mil	Website	CPARS
5.4.3	11	www.ppirs.gov	Website	PPIRS
5.4.3	12	http://www.ppirs.gov/fapiis.html	Website	PPIRS
5.4.3	13	CAM 1342.15	Policy	DOC
5.4.3	14	OFPP’s “Best Practices for Collecting and Using Current and Past Performance Information”	Guidance	Federal
5.4.3	15	A Guide to Collection and Use of Past Performance Information (Version 3)	Guidance	Federal
5.4.3	16	Contractor Performance Evaluation	Guidance	Federal
5.5	1	FAR 2.101	Regulation	DOC
5.5	2	APG Planning Module Section 1.6.	Internal	APG
5.5	3	FAR 16.505	Regulation	FAR
5.5	4	FAR 37.602	Regulation	FAR
5.5	5	C-Request.	Website	DOC
5.5	6	FAR 32.703-3,	Regulation	FAR
5.5.1	1	FAR 16.505 (b)	Regulation	FAR
5.5.1	2	Multiple Award Task Order Competition Procedures Flowchart	Guidance	Federal
5.5.1	3	OFPP’s Best Practices for Multiple Award Task and Delivery Order Contracting, Updated February 19, 1999	Guidance	Federal
5.5.1	4	APG 5.5.1.1	Internal	APG
5.5.1	5	Memo Requesting Exception to Fair Opportunity	Sample	NOAA
5.5.1	6	FAR 8.405-6	Regulation	FAR
5.5.1	7	FAR 16.504(4)(v)	Regulation	FAR
5.5.1	8	FAR 16.505	Regulation	FAR
5.5.1.1	1	FAR 16.505(b)(1)	Regulation	FAR
5.5.1.1	2	FAR 16.505(b)(2)	Regulation	FAR
5.5.1.1	3	FAR 16.505(b)(4)	Regulation	FAR
5.6	1	FAR 6.3	Regulation	FAR
5.6	2	Limitation of Funds Non-Compliance Letter Template	Training	Federal
5.6	3	DAU Material on Contract Modifications and Adjustments.	Training	Federal
5.6.1	1	FAR 52.243-1	Regulation	FAR
5.6.1	2	FAR 52.249-1	Regulation	FAR
5.6.1	3	FAR 52.249-4	Regulation	FAR
5.6.1	4	FAR 43.103(a)	Regulation	FAR
5.6.1	5	FAR 43.103(b)	Regulation	FAR
5.6.1	6	FAR 43.103(a)	Regulation	FAR
5.6.1	7	FAR 43.103(b)	Regulation	FAR
5.6.1	8	FAR 52.212-4	Regulation	FAR
5.6.2	1	FAR 50.103-1	Regulation	FAR
5.6.2	2	FAR 43.102(c)	Regulation	FAR
5.6.2	3	Garner, Kamya & Associates, P.C. v. Jackson, 369 F.3d1318(Fed.Cir. 2004)	Regulation	FAR
5.7	1	APG Solicitation Module Section 2.3.5	Internal	APG
5.7	2	120-Day Request Sample and Attachment 1 Project Office Response	Sample	NOAA, AGO
5.7	3	60-Day Notification Sample	Sample	NOAA
5.7	4	FAR17.207(c)(3)	Regulation	FAR
5.7	5	Sample D&F: Model Determination to Exercise the Contract Option in Accordance with FAR 17.207	Sample	NOAA
5.7	6	Procurement Memorandum (PM) 2011-02 (Revised)	Policy	DOC
5.7	7	FAR 6	Regulation	FAR
5.7	8	Sample CBA Notification Letter.	Sample	NOAA
5.7	9	FAR 22.1010	Regulation	FAR
5.7	10	Department of Labor (DOL) Website: http://dol.gov/compliance/laws/comp-sca.htm.	Website	DOL
5.7	11	http://www.wdol.gov/,	Website	DOL
5.7	12	Department of the Navy’s Desk Guide for Service Contract Price Adjustments	Guidance	DON
5.7	13	GAO Case File B-296317, Antmarin Inc.; Georgios P. Tzanakos; Domar S.r.l., July 26, 2005	Guidance	GAO
5.7	14	Exercise of Option Checklist	Checklist	NOAA
5.7.1	1	APG Planning Module Section 1.7.1.2.1	Internal	APG
5.7.2	1	APG Planning Module Section 1.7.1.2.1	Internal	APG
5.8	1	FAR 42.13	Regulation	FAR
5.8	2	FAR 42.1303	Regulation	FAR
5.8	3	FAR 52.242-15	Regulation	FAR
5.8	4	Sample Stop Work Order Modifications (SF 30) Language	Sample	NOAA
5.9.1	1	Business Case Memorandum	Sample	NOAA
5.9.1	2	NOAA Acquisition Handbook Part 15.4.	Policy	DOC
5.10	1	DAU CON 112 Lesson for Contract Claims	Training	Federal
5.10	2	DAU Material on Contract Modifications and Adjustments.	Training	Federal
5.10.1	1	FAR 52.233-1.	Regulation	FAR
5.10.1	2	FAR 52.233-1.	Regulation	FAR
5.10.2	1	FAR 33.2 Disputes and Appeals	Regulation	FAR
5.10.2	2	FAR Clause 52.233-1	Regulation	FAR
5.10.3	1	TAR Template	Template	NOAA
5.10.4	1	FAR 43.2	Regulation	FAR
5.10.4	2	FAR 43.204(c) (2).	Regulation	FAR
5.10.5	1	FAR 33.2	Regulation	FAR
5.10.5	2	FAR 43	Regulation	FAR
5.10.5	3	FAR 52.243-1 through 52.243-7.	Regulation	FAR
5.10.6	1	Procurement Memorandum (PM) 2011-05	Policy	DOC
5.10.6	2	FAR 43.2	Regulation	FAR
5.10.6	3	FAR 43.204 (c)(2).	Regulation	FAR
5.10.6	4	DAU CON 112 Lesson for Contract Claims	Training	Federal
5.10.6	5	DAU Material on Contract Modifications and Adjustments.	Training	Federal
5.11.1	1	FAR 49.4	Regulation	FAR
5.11.1	2	FAR 52.249-6 through 52.249-10.	Regulation	FAR
5.11.2	1	FAR 52.249-1 through 52.249-6	Regulation	FAR
5.11.2	2	FAR 49	Regulation	FAR
5.11.3	1	FAR 52.212-4	Regulation	FAR
5.11.3	2	FAR 49	Regulation	FAR
5.11.3	3	FAR 12.403	Regulation	FAR
5.11.3	4	FAR 12.403	Regulation	FAR
5.11.3	5	FAR 52.212-4	Regulation	FAR
5.11.3.1	1	FAR 33.211	Regulation	FAR
5.11.3.1	2	FAR 52.212-4	Regulation	FAR
5.11.3.2	1	FAR 31	Regulation	FAR
5.11.3.2	2	FAR 12.403	Regulation	FAR
5.12	1	FAR 1.6	Regulation	FAR
5.12	2	FAR 1.602	Regulation	FAR
5.12	3	CAM 1301.602	Policy	DOC
5.12	4	Acquisition Letter (AL) 30	Policy	NOAA
5.12	5	Procurement Memorandum (PM) 2011-05	Policy	DOC
5.12	6	FAR 1.602-3	Regulation	FAR
5.12	7	FAR 50	Regulation	FAR
5.12	8	FAR 33.2	Regulation	FAR
5.12	9	APG 5.10	Internal	APG
5.12	10	Sample Memorandum to HCO Recommending Approval of Ratification Action	Sample	NOAA
5.12	11	FAR 1.602-3(c)	Regulation	FAR
5.12	12	Unauthorized Commitment Correspondence Toolbox,	Sample	NOAA
5.12	13	Ratification Checklist,	Checklist	NOAA
5.12	14	UC and Ratification Process Guide for the Project Officer.	Guidance	NOAA
5.13	1	FAR 4.803	Regulation	FAR
5.13	2	FAR 4.804-4	Regulation	FAR
5.13	3	FAR 4.803	Regulation	FAR
5.13	4	CAM 1317.570 Appendix D for Close-Out Checklists	Policy	DOC
5.13	5	FAR 4.804-1	Regulation	FAR
5.13	6	FAR 4.804-2	Regulation	FAR
5.13	7	FAR 42.708	Regulation	FAR
5.13	8	Contract Completion Statement.	Sample	NOAA
5.13	9	CAM Part 4 Chapter 3, “Contract Closeout Procedures”.	Policy	DOC
5.13	10	Contract Closeout Flowchart	Guidance	NOAA
5.13	11	DCMA’s Contract Closeout Guidebook	Guidance	Federal
5.13.1	1	FAR 4.601	Regulation	FAR
5.13.1	2	FAR 4.805	Regulation	FAR
5.13.1	3	APG 5.13.1	Regulation	FAR
5.13.2	1	FAR 4.803	Regulation	FAR
5.13.2	2	SF 1449	Form	GSA
5.13.2	3	OF 347	Form	GSA
5.13.2	4	FAR 13.5	Regulation	FAR

-End Module-