CON 100 mod 6 to 10

Vern Edwards

branch decisions

Constitutional Authority for Procurement

Statutory Authority for Procurement

Code of Federal Regulations (CFR)

The Federal Acquisition Regulations System is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies.

The defense acquisition regulatory council

The Civilian Agency Acquisition Council

DAR CouncilChaired by a representative from the Secretary of Defense with members from Army, Navy, Air Force, Defense Logistics Agency (DLA), the Defense Contract Management Agency, and National Aeronautics and Space Administration (NASA).

The Civilian Agency Acquisition Council (CAAC)CAAC

The regulations contained in the FAR and DFARS change frequently. All proposed changes to these regulations are consolidated at

These changes come about as a result of various factors, including: Policy changes to governmental procurement due to administration changes. Passage of various laws designed to impact procurement by the Congress. Changes in management of the DoD. Correction of prior procurement mistakes.

The FAR is split into eight subchapters. These subchapters assist in categorizing the FAR into logical content areas. With the recent emphasis on online FAR and DFARS use, it is more difficult to remember that the FAR is divided into these logical content areas. The chart shows the eight subchapters (lettered from A-H), along with their titles and the FAR parts that are included in these subchapters

General
Competition and Acquisition Planning
Contracting Methods and Contract Types
Socioeconomic Programs
General Contracting Requirements
Special Categories of Contracting
Contract Management
Clauses and Forms

Part (25)
Subpart (5)
Section (04)
Subsection (-1)

Impletementation is the addition to the number 2 infront of the FAR number. F.E. Far 19 .... DFAR (2)19

Supplementation is noted by the numbers 7, 70, and S-70 towards the end of the FAR number F.E. 219.(70)

FALSE Chapter 1, parts 1-99

Defense Federal Acquisition Regulation Supplement

DFArs answers what is the policy and what are the rules, DFARS PGI answers how can i execute the policy and why does this policy exist?

Procedures, Guidance, and Information

Will always start with 52.2

department of agency supplemental provisions or clauses use four digit sequential numbers in the 9000 series

DFARs has no clause matrix, many systems commends have local clause books

FAR and DFAR are not auto binding to contractors unless in the contract with said contractor

provides that certain clauses , are required to be included in, but are omitted form government contacts are read into the contract as if they were included.

Uniform Contract Format

process of reading and applying statutory law

Process of reading and applying regulations

An annually revised codification of the general and permanent rules published in the Federal Register by executive departments and agencies of the Federal Government. It is divided into 50 titles that represent broad areas subject to Federal regulation. Each title is divided into chapters, subchapters, parts, subparts, sections and paragraphs. 45 CFR Part 46 is the part covering the protection of human subjects.

General policy is always stated first, then followed by the specfic policy

In general, if the text references a law like the U.S.C., then it is implementing a statute.

If the FAR does not reference a law, then it is policy. It is often difficult to find the source of all regulations and polices.

The issuance or use of a policy, procedure, solicitation provision, contract clause, method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with the FAR

Affecting only 1 contract action
Affecting more than 1 contract action

deviation may be in any of the following forms:
Issuance or use of a policy.
Acquisition procedure.
A solicitation provision or contract clause.
An acquisition method or practice.

DA waiver is the issuance or use of a policy, procedure, solicitation provision, contract clause, method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with a law or statute.

joint ethics regulation

To establish a single, comprehensive, and clear set of executive-branch standards that shall be objective, reasonable, and enforceable."

DoD Directive 5500.7 Standards of Conduct

DoD 5500.7-R, Chapter 12, Code of Ethics for Government Service

each agency shall display, in appropriate areas of any federal government building in which at least 20 civilians are regularly employed by the agency, copies of the following Code of Ethics for Federal Government Service set forth by the JER.

The first principle requires you to be loyal to moral principles and to put country before loyalty to a person or an organization. Although you have customers, supervisors, and managers to serve, your ultimate loyalty must be to integrity, ethical behavior, duty, and country.

second principle reminds you that you must exhibit allegiance to our country and abide by the Constitution, laws, and regulations.

the third principle of JER reminds you to be conscientious at work , pricing, costs of human resources, buying supplies

4th principle

5th and 6th princple

a conflict between self-interest and professional obligation

You can not engage in the ownership of stocks, bonds, or partnerships that would jeopardize or serve as a conflict of interest to your governmental duties.

you cannot use any info you learn while performing your job to make a private profit in another situation

9th and 10th principle

Honesty
Integrity
Loyalty
Accountability
Fairness
Caring
Respect
Promise Keeping
Responsible Citizenship
Pursuit of Excellence

Define the problem: State the issue and be willing to modify as needed.

Identify the goal(s): Short and long term best possible results.

List applicable law or regulation: Must take into account relevant laws and regulations before you can make an ethical decision.

List the ethical values at stake: Makes you think about things (problems, goals, stakeholders) you may not have considered.

Name all the stakeholders: Who's likely to be affected?

Gather additional information: Don't hurry; take the time to get all the needed information.

State all feasible solutions: Another time to think of the stakeholders and what might happen.

Eliminate unethical options: Not all solutions are ethical; don't sacrifice the long term problems of an unethical decision for the short term. In other words, don't make a quick decision at the cost of ignoring the long term consequence.

Rank remaining solutions: According to how close they bring you to your goal and to solve the problem.

Commit to and implement the best ethical solution: Make the right decision or someone else might make an unethical one.

Government Accountability Office

The GAO audits and investigates agency programs and management, focusing on mismanagement. GAO looks at how we're spending public money in the government, giving attention to government programs and activities using the money. GAO also works to see how we're implementing directives, policies, regulations, and their recommendations.

Accountability
integrity
reliability

Reports
Testimony
Letters
Legal opinions
Financial data
Resolution of protests

reports are called "blue books." Blue books are open to the public and can be found on the internet at http://www.gao.gov. Reports usually contain: Results in brief, Background, Description of issue, Conclusions, and Recommendations. GAO posts full-text files on its web site daily, often within 24 hours of when a report or testimony is publicly released.

Testimony requires directly and personally reporting to Congress on a significant and or high visibility issue when called.

Letters are generated for limited interest issues and when no recommendations are included.

The GAO is available to assist in drafting legislation and reviewing legislative proposals before Congress. In addition, the GAO reviews and reports to Congress on proposed rescissions and deferrals of government funds.

The GAO ensures Congress has current, accurate, and complete financial management data. The agency prescribes accounting principles and standards for the executive branch, advises federal agencies on fiscal policies and procedures, and issues standards for auditing and evaluating government programs.

During competitive acquisitions, dissatisfied offerors or bidders can send protests to the CO, Agency, or GAO when they believe they have not been given fair treatment. GAO hears and reviews the issues and issues a decision.

Department of Defense Inspector General - was established by Congress to serve as the principal adviser to the Secretary of Defense for matters relating to the prevention of fraud, waste, and abuse in the programs and operations of the DoD.

Investigate, Promote, Report

auditing,
investigations,
policy and oversight,
intelligence,
administration and management,
communications and congressional liaison,
special plans and operations.

GAO and DoD IG advise Congress on laws and current policies to ensure they are written and implemented effectively. The GAO and DoD IG will step in to review initiatives directed by Congress and agencies or complaints received about unsatisfactory execution of rules or directives.

Economyu, Efficiency, and effectiveness

the amounts that government agencies are authorized to spend for current and future programs

Obligations are legally binding commitments, such as contract awards, made by federal agencies during a given period that will require outlays.

Outlays are monies disbursed by the U.S. Treasury to the contractors.

Appropriation (Purpose)

Fiscal Year (Time)

Procurement,
Research, Development, Test, and Evaluation,
Operations and Maintenance,
Military Personnel,
Military Construction.

Aircraft
Missiles
Weapons and Tracked Combat Vehicles
Procurement of Ammunition
Other Procurement
Chemical Agents Munitions Destructions
Weapons
Shipbuilding and Conversion
Procurement, Marine Corps
Procurement Defense-wide
National Guard and Reserve Equipment
Shipbuilding and Conversion (5 years)

includes buying everyday-type items such as small tools and supplies, or base services such as trash hauling and maintenance of major weapons systems.Civilian Salaries
Supplies
Spares
Fuel
Software

Annual funds are available for 1 year only and can only be used during a specific fiscal year; accept for end products that cannot be subdivided.

Multi-year funds are available for a definite period in excess of 1 year, and are provided to acquire major systems, aircraft, ships, weapons, and long-range projects.

No-year, continuing appropriations are used until funds are exhausted or purpose accomplished. These types of appropriations are used to acquire major items similar to multi-year appropriations.

Unexpired Funds are still available for existing obligations for the settlement of Final Indirect Rate adjustments or Request for Equitable Adjustments (REA) and claims.

Basic Research
Exploratory Development
Advanced Development
Demonstration & Manufacturing Development
RDTE Management Support
OP Systems Development

Facilities
Housing

Active Forces
Reserve Forces

prohibits:
Spending money before Congress provides it.
Spending money for purposes other than those approved by Congress.
Spending more money than Congress provided.

Use the wrong "color" of money (e.g., using Procurement funds to buy Military Construction). This is what is known as a "purpose" violation.

Use the wrong fiscal year funds, e.g., using FY15 funds to buy O&M needed in FY16.
Seek advice from your activity's fiscal attorney.

Financial analysts
Cost estimators
Accountants
Payment specialists
Budget analysts
Auditors

Funds holders: Manage the money you will use to buy goods and services.
Payment specialists, Defense Finance and Accounting Service (DFAS): Responsible for ensuring your contractor gets paid on time.
Accounting Financial Management Systems (AFMS). The AFMS is a separate agency-specific financial accounting system that is linked to DFAS.

The Office of the DoD Inspector General (DoD IG) conducts regular audits of buying activities to determine whether or not contracting officers are complying with all the laws and regulations regarding contracting and financial management. They may also audit contractors and the financial management systems and processes.

Sovereign immunity is a legal doctrine that precludes party, government or contractor, from asserting a cause of action, like a claim, against a sovereign party, like the US Government, unless the sovereign consents to the suit

The federal government has waived its sovereign immunity to permit certain types of actions against the government through a wide variety of statutes, such as the Federal Tort Claims Act, the Tucker Act, and the Contract Disputes Act of 1978 (disputes concerning claims arising under or relating to contracts).

The party bringing the action (plaintiff) has the burden of establishing its right to recover by a preponderance of the evidence (more convincing to the trier of fact than the opposing evidence). The purpose of a civil action is to compensate the plaintiff for the defendant having violated a duty owed to the plaintiff. Breach of contract is an example of a civil action. Most of the trials represented on the TV court shows are civil action trials


A Civil lawsuit is brought upon by one party against a second party to recover compensation or enforce some private right.

The prosecution has the burden of proving its case against the accused using evidence which is beyond a reasonable doubt; the primary purpose of the prosecution is to punish the accused, not to compensate the victim.

Criminal - involves a prosecution, initiated by a governmental body against an individual, for having committed a certain act against the public made illegal by a law..

Executive, Legislative, Judicial

The implied authority to contract provided for in the Constitution is vested in the Executive Branch.As the Commander-In-Chief of the Military, the President of the United States also performs as the head of the Executive Branch of government.The President is responsible for managing contracting operations by issuing a variety of directives, such as Office of Management and Budget (OMB) Circulars, Office of Federal Procurement Policy Letters (OFPP), and the President's Executive Orders.One of the most important regulations is governing contracting contained in the Federal Acquisition Regulation (FAR).

is headed by the President of the United States and includes all federal branches. It is responsible for approving and implementing laws passed by the Legislative Branch

branch of government does the Office of Federal Procurement Policy belong to?

The Legislative Branch includes the United States Senate, the United States House of Representatives and the Government Accountability Office (GAO).The Legislative Branch includes the U.S. Senate, the U.S. House of Representatives, and the Government Accountability Office (GAO). The House and Senate are responsible for passing legislation, commonly referred to as Acts of Congress, affecting how the federal contracting professional conducts business.The Legislative Branch also appropriates funds through the budget process. The constitutional powers granted to Congress provide express and implied power to affect the contracting process by passing appropriation acts, authorization acts, enabling and procedural acts.

what branch of government does the Small Business Committee belong to?

The Judicial Branch is responsible for:
Interpreting laws passed by the Legislative Branch and policies and regulations originated by the Executive Branch.
Rendering decisions pertaining to the terms and conditions of a specific contract.
Ensuring the constitutionality of the laws.
Establishing precedents through court decisions.

The Judicial Branch of government consists of the United States Court of Federal Claims, United States Court of Appeals for the Federal Circuit, and United States Supreme Court. The Judicial Branch tries all legal cases involving the government.

the courts have the power to declare certain contracts void if they are contrary to the public policy. Public policy is the common sense and conscience of the community extended and applied throughout the state to matters of public morals, health, safety, and welfare. This is derived from the principle of law which is based on the theory that one cannot lawfully do anything that has a tendency to be injurious to the public or against the public good.

Public policy is the common sense and conscience of the community extended and applied throughout the state to matters of public morals, health, safety, and welfare.

Statutes
Executive orders
Regulations
Judicial decisions
State law
Administrative decisions by federal agencies

All branches of the federal government can establish public policy for their own implementation, provided that it is compliant with federal policy and laws.

Acts of Congress are codified under general topics in the United States Code (U.S.C.)

Such acts are then referred to only by their public law number and the Congressional number which enacted them;

Acts that are not codified are generally appropriation acts, legislation passed too recently to have been published in the Code, or temporary laws.

Executive orders deal with initiatives and concerns of interest to the Executive Branch of government.Often, these orders are relatively short and implement authority granted by Congress. They are referred to by numbers and dates; e.g., Executive Order No. 9859, May 21, 1947.

Office of the President issues executive orders to all federal government organizations for implementation

primary legal tool by which the Executive Branch of government executes the laws and programs enacted by Congress is through the issuance of regulations providing specific guidance on how the law or program is to be implemented.

FAR and DFAR are examples of the regulations

Regulations can have the force and effect of law or contain procedural or policy guidance for a particular agency.

Judicial decisions have the force and effect of law. Federal court decisions are published in bound form in one of several reporting series.

Some decisions made by the Executive, Legislative and Judicial Branches of government are given the force and effect of law.

These decisions are published periodically for public information and are the largest body of government contract law

Some agencies who are responsible for such governmental decisions include:
Comptroller General
Armed Services Board of Contract Appeals (ASBCA)

Federal procurement is subject to federal law and is not governed by state law. Where there is no applicable federal statute, regulation or case precedent, federal judges may look to state law as a source of non-binding precedent.

A smart business arrangement for the government contracting professional implements public policy while obtaining the best value for the government.

Actual AuthorityGovernment personnel must have actual authority in order to bind the federal government.

Express and Implied

Written authority specifically stating the extent of the authority being granted, like a contracting officer's warrants. Authority may also be delegated to others who are involved in daily activities for certain contractual-related decisions. The contracting officer is also referred as KO. KO can delegate express authority through a letter of appointment to a contracting officer representative (COR). This allows the COR to authorize invoice for payment.

A contracting agent can perform additional duties even if such duties are not specifically stated in the written authority. Contracting agent has implied authority to do what must be done to accomplish the purpose of the expressed authority. KO has the power to negotiate; even though not written on warrant. COR has authority to return an improper invoice for correction; or call a meeting.

A term used in the law of agency (when an agent is authorized to act on behalf of another to create a legal relationship with a third party) to describe a situation in which a principal leads a third party to believe that an agent has authority to bind the principal, even where the agent lacks the actual authority to bind the principal.

In such circumstances, the law will hold the principal liable for the acts of the agent, out of fairness to the third party. There must be some act or some knowing omission on the part of the principal - if the agent alone acts to give the third party this false impression, then the principal is not bound. However, the principal will be bound if the agent so acts in the presence of the principal, and the principal stands silently and says nothing to dissuade the third party from believing that the agent has the authority to bind the principal.In the US Government, apparent authority is not recognized; it is not actual power. A person only appears to have the authority to enter into legally binding contractual actions because of his or her position. The appropriate contracting officer is the only one who can direct the contractor to change. This is normally done through a modification. The government can never be bound by apparent authority.

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. When a contracting officer's authority has been violated it creates an unauthorized commitment. (FAR Subpart 1.6)

For example, the base commanding officer tells the facilities grounds crew COR to trim some trees hanging over the base fence for an upcoming inspection. The contractor happens to be present and agrees to do the work. The COR neglects to inform the contracting officer and clarify the conversation with the parties. The contractor completes the work and bills the government, as it was not a normal task or part of the contract. This action outside the contractor's authority created an unauthorized commitment.

Congress passes the legislation or makes the laws that are implemented by the federal workforce through the FAR.

The government is only bound by the acts of its agents committed within the scope of their agent's authority. Usually, government agents have express authority, such as the authority set forth in a contracting officer's warrant, to be exercised in accordance with applicable statutes and regulations

The public has trust and confidence in the government's agents to uphold its fiduciary responsibilities. This includes business decisions made by contracting officers throughout the acquisition process.

The idea of using public money for the public good is a deep-rooted concept in government contracting.

Government contracting professionals are placed in a unique position because they are granted the power to spend public funds.

In the private sector, contracting professionals must ultimately answer to their shareholders. However, public sector contracting professionals must answer to the public or taxpayer on the use of public funds.

A contract spells out the duties and responsibilities of each party involved in the agreement. If one party fails to perform, the law will step in and provide a remedy.

There are essential elements that must be present in order for a contract to be binding:
Mutual assent
Consideration
Competency
Lawful purpose
Certainty of terms
Form provide by law

A contract is formed by acceptance of an offer. An offer is a proposal by a person (the "offeror") to enter into a contract. The person receiving the offer is called the "offeree". When the offeree intends to accept the offer and communicates this acceptance to the offeror, a contract is formed.

Contracts are based on bargain and exchange. Each party receives something of value and gives something of value. "Consideration" is the name given to that "value" given by each party.

n order to be legally bound to a contract, a party must have the capacity to understand and appreciate the terms of the contract. Remember that the process of contract formation is objectively viewed. Therefore, objectively, would a reasonable person expect a mentally incompetent person or a small child to be capable of appreciating and truly understanding a contractual promise and obligation?

The right to contract is fundamental but not absolute. It must yield if it conflicts with the public welfare, and reasonable restrictions may be imposed under the authority of the civil law enforcement under the police power when required for the public interest. For example, minimum wage laws restrict a person's freedom to contract for a lower wage. The courts have the power to declare certain types of contracts void on the grounds that they are contrary to the public policy and violate a state or federal statute.

It is a legal rule that all the requirements and stipulations for the performance of a contract must be known to the contracting parties before the contract is signed. The terms of the contract must be sufficiently clear so as to permit the courts to conclude that a contractual agreement was intended-that there was a meeting of the minds.

The final legal requirement in contract formation is that the parties express the contract in a form permitted, or in some cases, required by law. In general, a contract can be made in three ways: written, oral, and implied through the conduct of the parties.

Request for Quotation

it does not result in a binding document. The government makes the offer to a contractor based on response to the RFQs when a purchase order is written

FAR 33.101 defines a protest as "a written objection by an interested party" to any of the following:
A solicitation or other request by an agency for contract offers concerning procurement of property or services.
The cancellation of the solicitation or other request.
An award or proposed award of the contract.
A termination or cancellation of an award of the contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.

For the purpose of filing a protest, an interested party is defined as an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.

The government agency processing the contract, the government accountability office, and judicial challenge in federal court under the administrative procedures act.