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Data Rights

Data Rights (FAR Subpart 27.4) consist of the legal rights a contractor and/or the government have to use technical, Intellectual Property (IP) and software data. This data can include proposal, source selection, software, management, concepts and technical packages. There are four (4) major data right types:

  1. Unlimited
  2. Limited
  3. Copyrighted
  4. Government Purpose Rights
  5. Specifically Negotiated License Rights

1. Unlimited Rights Data
The rights of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so. The Government acquires unlimited rights in the following data except for copyrighted works:

  • Data first produced in the performance of a contract (except to the extent the data constitute minor modifications to data that are limited rights data or restricted computer software).
  • Form, fit, and function data delivered under contract.
  • Data (except as may be included with restricted computer software) that constitute manuals or instructional and training material for installation, operation, or routine maintenance and repair of items, components, or processes delivered or furnished for use under a contract.
  • All other data delivered under the contract other than limited rights data or restricted computer software

2. Limited Rights Data
This right enables a contractor to protect qualifying limited rights data and restricted computer software by withholding the data from the Government and instead delivering form, fit, and function data. If a contractor has funded the development of an item completely at private expense, then he may limit the government’s use of technical data using limited license rights, or restrict the government’s use using restricted license rights.

  • Limited rights: means the government may use the data within the government but not release the technical data outside of the government (not even to support contractors), except if necessary for emergency repair or overhaul, and may not use the data for manufacturing additional quantities of the item.
  • Restricted rights: means the government may only run the software on one computer at a time, may make only the minimum copies needed for backup, but may make modifications to the software. The software may not be released outside of the government except for emergency repair or overhaul

3. Copyrighted Data
Copyright data is information that is owned by a contractor or the government. A contractor must obtain permission prior to asserting rights in any copyrighted work containing data first produced in the performance of a contract. However, contractors are normally authorized, without prior approval of the contracting officer, to assert copyright in technical or scientific articles based on or containing such data that is published in academic, technical or professional journals, symposia proceedings and similar works.

4. Government Purpose Rights
Frequently, both government and private funds are used in development efforts. In these cases, the contractor may be entitled to offer technical data or computer software with Government Purpose Rights (GPR). GPR is essentially a middle path unique to defense contracts that offers a way for contractors to exploit intellectual property commercially for a limited period of time while the government also gets immediate benefits.

5. Specifically Negotiated License Rights (SNLR)
This category pertains whenever the standard license arrangements are modified to the mutual agreement of the contractor and the government. In this case, the exact terms are spelled out in a specific license agreement unique to each application. [1]

AcqLinks and References:

Updated: 6/1/2018

Contracts & Legal

Cost-Reimbursement Contracts

Cost-Reimbursement types of contracts (FAR Subpart 16.3) provide for payment of allowable incurred costs, to the extent prescribed in the contract. These contracts establish an estimate of total cost for the purpose of obligating funds and establishing a ceiling that the contractor may not exceed (except at its own risk) without the approval of the contracting officer.

Website: FAR Subpart 16.3 Cost-Reimbursement Contracts

Website: DFARS 216.3 “Cost-Reimbursement Contract

Cost-plus-incentive-fee Contracts (CPIF)
A cost-plus-incentive-fee contract is a cost-reimbursement contract that provides for an initially negotiated fee to be adjusted later by a formula based on the relationship of total allowable costs to total target costs. Cost-plus-incentive-fee contracts are covered in Subpart 16.4, Incentive Contracts. See 16.405-1 for a more complete description and discussion of application of these contracts. See FAR Subpart 16.301-3 for limitations. [1]

Cost-plus-award-fee Contracts (CPAF)
A cost-plus-award-fee contract is a cost-reimbursement contract that provides for a fee consisting of (a) a base amount (which may be zero) fixed at inception of the contract and (b) an award amount, based upon a judgmental evaluation by the Government, sufficient to provide motivation for excellence in contract performance. Cost-plus-award-fee contracts are covered in Subpart 16.4, Incentive Contracts. See 16.401(e) for a more complete description and discussion of the application of these contracts. See FAR Subpart 16.301-3 and 16.401(e)(5) for limitations. [1]

Cost-plus-fixed-fee Contracts (CPFF)
A cost-plus-fixed-fee contract is a cost-reimbursement contract that provides for payment to the contractor of a negotiated fee that is fixed at the inception of the contract. The fixed fee does not vary with actual cost, but may be adjusted as a result of changes in the work to be performed under the contract. This contract type permits contracting for efforts that might otherwise present too great a risk to contractors, but it provides the contractor only a minimum incentive to control costs. [1]

– See Firm-Fixed Price Contract
– See Indefinite Delivery Contract
– See Incentive Contract
– See Time and Materials Contract

AcqLinks and References:

Updated: 3/29/2019

Contracts & Legal

Contractor Performance Report (CPR)

Note: The Integrated Program Management Report (IPMR) has replaced the Contractor Performance Report (CPR) for new contracts as of  July 1, 2012.

The Contractor Performance Report (CPR) provides contract cost and schedule performance data that is used to identify problems early on an acquisition contract and forecast future contract performance in Earned Value Management (EVM). It’s meant to convey information about the performance of a program or contract. The CPR is also the primary means of documenting the ongoing communication between the contractor and the program manager to report cost and schedule trends.

The contracting officer and contractor should negotiate reporting provisions in the contract, including frequency and selection of formats, level of detail, submission dates, variance thresholds and analysis, and the contract Work Breakdown Structure (WBS) to be used. The Program Manager (PM) should tailor the CPR to the minimum data necessary for effective management control. There are five CPR format types and are detailed in the DoD Earned Value Management Implementation Guide (EVMIG).

Below is a quick summary of the five (5) CPR format types.

Title Frequency Description
Format 1 – WBS Monthly or Weekly Reports performance data (BCWS, BCWP, ACWP) by reporting WBS elements for the current reporting period as well as cumulative to date data.
Format 2 – Organizational Categories Monthly or Weekly Reports same data as format 1 but identified by contractor labor categories.
Format 3 – Baseline Monthly or Quarterly Data can be plotted to determine if there has been a shift in the baseline curve since the previous report.
Format 4 – Staffing Monthly or Quarterly Staffing data plotted over time and correlated to major milestones and activities on the contract schedule shows accuracy of labor levels.
Format 5 – Problem Areas Monthly Correlated data from formats 1 and 2 to understand the reasons for variances. Helps with the integrated assessment.

 

The Program Manager (PM) obtains a CPR on all cost or incentive contracts, subcontracts, intra-government work agreements, and other agreements valued at or greater than $20 million. The CPR is not typically required for cost or incentive contracts valued at less than $20 million, contracts less than 12 months in duration, or Firm-Fixed Price contracts for production efforts. [1]

Contractor Performance Assessment Reporting System (CPARS)
CPARS is a web-enabled application that collects and manages a library of automated contractor assessment data and performance reports (CPAR). The purpose of CPARS is to ensure that contractor performance data is appropriately assessed and that feedback regarding performance is conveyed to companies with whom the government has contracted.

AcqTips:

  • The primary challenge for the joint team is to tailor the report so that it meets these primary needs, rather than allowing it to degenerate into a “customer” report that can only be used to analyze historical costs.  Careful attention is therefore required during the proposal and contract definitization stages to tailor the CPR DID (DI-MGMT-81466A).
  • CPR Format 3 (Baseline) and Format 4 (Staffing) should take on more importance during development contracts to provide insight into the contract baseline and to help analyze performance and its relation to future problems

AcqLinks and References:

Updated: 6/1/2018 

Contracts & Legal

Contractor Performance Assessment Reporting System

Contractor Performance Assessment Reporting System (CPARS) is a web-enabled application that collects and manages the library of automated contractor assessment data.  A Contractor Performance Assessment Report (CPAR) assesses a contractor’s performance and provides a record, 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.  This data includes:

  • Cost Performance Reports
  • Customer comments
  • Quality reviews
  • Technical interchange meetings
  •  Financial solvency assessment
  • Construction/production management reviews
  • Contractor operations reviews
  • Functional performance evaluations
  • Earned contract incentives

The purpose of CPARS is to ensure that contractor performance data is appropriately assessed and that feedback regarding performance is conveyed to companies with whom the government has contracted. The CPAR can be considered a “report card” on how well a contractor is performing or has performed on an individual contract.  Once a contract is awarded, the Contracting Officer’s Representative (COR) obtains a CPARS user ID from the Program Contracting Officer (PCO).

Website: DoD Contractor Performance Assessment Reporting System (CPARS) (Gov Only)

Every 12 months throughout the life of a contract the Assessing Official (Program Directorate/Department Head/Program Manager/Technical Code) will prepare a CPARS evaluation on contracts meeting the business sector thresholds in accordance with the applicable completion instructions as listed in the DoD CPARS Guide.  The Assessing Official is encouraged to seek input from the multi-functional acquisition team when assessing the contractor’s performance.  At a minimum, PCO input should be obtained.  Support contractors should not prepare inputs to CPARS (not even as project team members) and should not have access to CPARS.  (FAR 7.5)

After the report has been processed and reviewed, the Assessing Official will notify the contractor and provide guidance for the review process.  The contractor may review and comment on the assessment within 30 calendar days of the evaluation.  If the contractor would like a meeting to discuss the CPAR, a written request must be forwarded to the Assessing Official within seven calendar days from notification of the evaluation.

The CPARS application is accessible from DoD Contractor Performance Assessment Reporting System (CPARS). (Gov Only) The CPARS website offers links to CPARS, ACASS, CCASS, and FAPIIS and also provides various items of interest including reference material, training information, frequently asked questions, best practices, as well as other information. To enter the CPARS Production System, click on the CPARS Logon button located on the left hand side of the page.

AcqLinks and References:

Updated: 10/15/2019

Contracts & Legal

Contracting Officer Representative (COR)

A Contracting Officer’s Representative (COR) is an individual authorized in writing by the contracting officer to perform specific technical or administrative contract functions. The COR must receive a written designation of their authority to act on behalf of the contracting officer. (DFARS Subsection 201.602-2)

The COR is not authorized to make any commitments or changes that will affect price, quality, quantity, delivery, or any other term or condition of the contract.

Handbook: DoD Contracting Officer Representative (COR) Handbook – 22 March 12

Contracting Officers may designate qualified personnel as their authorized representatives to assist in the technical monitoring or administration of a contract. A COR: [1]

  1. Must be a Government employee, unless otherwise authorized in agency regulations.
  2. Must be qualified by training and experience commensurate with the responsibilities to be delegated in accordance with department/agency guidelines.
  3. May not be delegated responsibility to perform functions at a contractor’s location that have been delegated under FAR 42.202(a) to a contract administration office.
  4. May not be delegated authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract.
  5. Must be designated in writing, and a copy furnished the contractor and the contract administration office:
    • Specifying the extent of the COR’s authority to act on behalf of the contracting officer;
    • Identifying the limitations on the COR’s authority;
    • Specifying the period covered by the designation;
    • Stating the authority is not redelegable; and
    • Stating that the COR may be personally liable for unauthorized acts.
  6. Must maintain a file for each contract assigned. This file must include, as a minimum:
    •  A copy of the contracting officer’s letter of designation and other documentation describing the COR’s duties and responsibilities; and
    • Documentation of actions taken in accordance with the delegation of authority.

Contract Office Representative Tracking Tool (CORT)

CORT Tool is a web management capability for the appointment of CORs. This Tool allows a perspective COR, COR Supervisor and Contracting Officer to electronically process nomination of CORs for one or multiple contracts. It provides built in workflows for the nomination process to include email alerts/status reminders for monthly status report due-ins and delinquencies. The CORT Tool provides contracting personnel and requiring activities the means to track and manage COR assignment across multiple contracts across DoD.

AcqLinks and References:

Updated: 7/29/2019

Contracts & Legal

Contracting Audit Services

DoD Components, Officials and Program Offices can contract with private auditing services when non-Federal auditors are not available. They should follow requirements described in DFARS Subpart 237.2 – Advisory and Assistance Services (Reference (w)).

Manual: DoD Manual 7600.01-M “DoD Audit Manual” 13 Feb 09 – Enclosure 14

Non-Federal auditors who perform work for the DoD are subject to Generally Accepted Government Auditing Standards (GAGAS) and must be licensed or work for a firm that is licensed in the State or other jurisdiction where they operate their professional practices. Below is a list of the seven (7) main steps for contracting private auditing services.

  1. Planning for Procurement of Auditing Services
  2. Communicating Requirements
  3. Review Solicitations
  4. Selecting a Contractor and Technical Evaluation
  5. Provide Technical Assistance
  6. Monitor Performance
  7. Debarment, Suspensions, and Referrals

1. Planning for Procurement of Auditing Services
Planning identifies what audit services are needed, when and how they should be provided, and what provisions should be in the audit services contract. Planning also helps ensure proper information is collected to effectively structure a solicitation package.

2. Communicating Requirements
The solicitation package should be clearly written and set forth all terms, conditions, and evaluation criteria as well as the scope of the work required. The solicitation package should also be well-distributed and -publicized to ensure full and open competition.

3. Review Solicitations
The DoD Component or cognizant DoD audit organization will provide the solicitation package to the Office of the Assistant Inspector General for Audit Policy and Oversight, IG (OAIG APO) for review prior to its release to prospective bidders.

4. Selecting a Contractor and Technical Evaluation
The evaluation process should ensure contractor proposals are responsive to the agency’s needs, consistently and objectively evaluated, and that contracts are awarded fairly. Competent and experienced personnel should be assigned to the technical evaluation panel. When evaluating a solicitation, items to consider include the soundness of the technical approach of the contractor’s proposal, the qualifications of the organization performing the audit service, the qualifications of the team proposed to perform the audit service, the quality control process of the organization performing the audit service, and references provided by the organization performing the audit service.

5. Provide Technical Assistance
The cognizant DoD audit organization should furnish technical advice to the contractor as requested.

6. Monitor Performance
The DoD audit organization should develop appropriate guidelines for their staff to monitor contract performance and provide input to the contracting officer for contractor interim and final performance reporting, deliverables, and payment. Any adverse conditions found during contract performance should be reported to the contracting officer and the users of the services. In addition, the cognizant DoD audit organization should perform an acceptance review of completed audit work before final contract payment is made.

7. Debarment, Suspensions, and Referrals
Substandard work by a non-Federal auditor may warrant referral for sanctions by the appropriate State licensing authorities or suspension and debarment by the contracting authority. The Assistant Inspector General for Audit Policy and Oversight is the only official authorized to make referrals for sanctions by appropriate licensing authorities.

AcqLinks and References:

Updated: 6/1/2018

Contracts & Legal

Contract Closeout

A Contract Closeout occurs when a contract has met all the terms of a contract and all administrative actions have been completed, all disputes settled, and final payment has been made. This includes those administrative actions that are contractually required; i.e. property, security, patents and royalties. The procedures for contract closeout are located in Federal Acquisition Regulation (FAR) 4.804-5.

Below is the checklist for administrative actions that are required to close out a contract that has met all its terms and conditions.

  • Issue interim contract completion statement
  • Ensure disposition of classified material is completed
  • Receive final patent/royalty report clearance
  • Ensure there are no outstanding value engineering change proposals
  • Ensure property clearance is recorded in MOCAS
  • Receive and file plant clearance report
  • Settle all interim or disallowed costs
  • Complete price revision
  • Ensure Prime contractor has settled Subcontracts
  • Settle prior year indirect cost rates
  • Ensure submission of final subcontracting plan report
  • Complete termination docket
  • Completed contract audit
  • Ensure receipt of contractor’s closing statement (release)
  • Review/submit contractor’s final invoice/voucher
  • Ensure final voucher has been paid
  • Complete contract funds review and deobligate excess funds

The standard timeframes for closing out are located in the FAR 4.804.

Contract Closeout

AcqLinks and References:

Updated: 6/1/2018

Contracts & Legal

Contract Essential Elements

One of the most important issues to understand about contract law is how a contract is formed. Many agreements may be legally unenforceable or “void” because they lack one of the essential elements for a valid contract. The five essential elements are:

  1. Offer: An offer is a specific promise and a specific demand. For example: “I will pay $13,000 for the car.”
  2. Acceptance: The acceptance may be in the form of a promise or an act. The acceptance must “mirror” the offer. If it changes the terms of the offer, it is a counteroffer. For example: “I agree to sell you the car for $13,000.”
  3. Consideration: The consideration is the receipt of a legal benefit or the suffering of a legal detriment. It may be a promise, an act or monetary. In the example of the sale of the car, the $13,000 would be the consideration.
  4. Capacity: A party to a contract must have the ability to enter into a legal contract. Courts have held 3 classes of persons lack capacity to be bound by contractual promises – minors, intoxicated persons and mentally incompetent persons.
  5. Lawful purpose: A valid contract must have a legal purpose. For example, a “contract” to murder someone would be not be enforceable in court.

AcqLinks and References:

Updated: 7/17/2017

Contracts & Legal

Clinger-Cohen Act

The Clinger-Cohen Act of 1996 is designed to improve the way the federal government acquires, uses and disposes Information Technology (IT). It encompasses the (1) Information Technology Management Reform Act (ITMRA) (Division E) and the (2) Federal Acquisition Reform Act (FARA) (Division D) which were signed into law as part of the National Defense Authorization Act for Fiscal Year 1996. The Act establishes an approach for executive agencies to improve the acquisition and management of their information resources by:

  • Focusing information resource planning to support their strategic missions;
  • Implementing a capital planning and investment control process that links to budget formulation and execution; and
  • Rethinking and restructuring the way they do their work before investing in information systems.

Document: Clinger Cohen Act of 1996, Title 40

For DoD acquisition programs, the Clinger-Cohen Act mandates that all programs that acquire information technology (IT), including national security systems (NSS), that the Milestone Decision Authority (MDA) shall not initiate a program, increment, entry into any phase, or award a contract until the Program Manager (PM) has satisfied the requirements of this Act.

(1) Information Technology Management Reform Act, Condensed [1]

The Office Management and Budget (OMB) Director is responsible for improving the acquisition, use, and disposal of information technology (IT) to improve Federal programs. OMB is to develop process for analyzing, tracking, and evaluating the risks and results of all major IT investments by Federal agencies. OMB shall evaluate the Information Resources Management (IRM) practices of executive agencies with respect to the performance and results of IT investments; and implement reviews of executive agency activities through the budget process.

Agency heads are to design and implement processes for maximizing the value and managing the risks of their IT acquisitions. This provides for the selection of investments using minimum criteria on whether to undertake an investment and gives a means for senior management to obtain timely information on cost, capability of the system to meet requirements, timeliness and quality.

ITMRA establishes in law, Chief Information Officers (CIO) for Federal agencies. CIOs are responsible for providing advice and assistance to agency heads on IT acquisition and IRM. The CIO is responsible for developing, maintaining and facilitating the implementation of a sound and integrated IT architecture.

The agency heads shall identify in the agency’s IRM plan major IT acquisition programs that have significantly deviated from their respective cost, performance or schedule goals. Agency heads shall ensure IT performance measurements are prescribed for acquisition and use and that they measure how well IT supports agency programs.

(2) Federal Acquisition Reformm Act, Condensed [1] 

Section 4101, Efficient Competition: The Federal Acquisition Regulations (FAR) shall ensure that the requirement to obtain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Government’s requirements.

Section 4102, Efficient Competitive Range Determinations: “The conferees intend that the determination of the competitive range be made after the initial evaluation of proposals, on the basis of the rating of those proposals. The rating shall be made on the basis of price, quality and other factors specified in the solicitation for the evaluation of proposals.”

Section 4201, Commercial Item Exception to Requirement for Certified Cost or Pricing Data: Submission of certified cost or pricing data shall not be required for the acquisition of a commercial item [this is a new exception]. The contracting officer is still authorized to require the submission of information other than certified cost or pricing data to determine price reasonableness.

Section 4202, Application of Simplified Procedures to Certain Commercial Items: Authorizes the establishment in the FAR of simplified procedures for acquisitions within a certain dollar range (not to exceed $5,000,000) when the contracting officer reasonably expects that offers will include only commercial items.

STATUTORY: for all programs that acquire information technology (IT); [3]

REGULATORY: for other programs. [3]

The Program Manager (PM) will report CCA compliance to the Milestone Decision Authority (MDA) and the Component Chief Information Officer (CIO) or designee. For IT programs employing an incremental development model , the PM will report CCA compliance at each Limited Deployment Decision Point. [3]

AcqTips:

  • The term “information technology” with respect to an executive agency means any equipment or interconnected system or subsystem of equipment, that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the executive agency. [2]

AcqLinks and References:

Updated: 6/1/2018

Contracts & Legal

Blanket Purchase Order (BPO)

A Blanket Purchase Order (BPO) is a long term agreement that includes a description of the items needed, unite price, and contractual provisions.  Although a single blanket purchase order number is only set up one time, it can allow multiple releases against it at different times throughout a set time period. A “release” occurs each time a blanket purchase order quantity is fulfilled and invoiced against.

A BPO is conducted in a Blanket Order System (BOS). A BOS is a system where a store comes into an agreement with a supplier to supply small quantity items repetitively.  This type of system solves the problem for the thousands of items a store can’t carry in inventory due to space, time and cash flow. The BOS increases efficiency by eliminating repetitive data entry and multiple one-time purchase orders.

A blanket order system offers seven important benefits: [1]

  1. It requires many fewer purchase orders and reduces clerical work in purchasing, accounting, and receiving
  2. It releases procurement professionals from routine work, giving them more time to concentrate on value-added activities
  3. It permits volume pricing by consolidating and grouping requirements
  4. It can improve the flow of feedback information because of the grouping of materials and suppliers
  5. Because some suppliers stock materials for prompt delivery, this system may reduce the buyer’s lead times and inventory levels
  6. It allows the supplier to plan and buy more effectively, reducing the buyer’s price
  7. It develops longer-term and improved buyer-supplier relationships

eHow Scenario: [2]
Let’s say that your company wishes to set up an agreement with a landscaping service for monthly lawn care. Your company cannot pay for the entire year of service upfront; instead, it wishes to create a blanket purchase order so that it can pay the lawn company each month. In the purchasing system, a buyer will create a blanket purchase order for 12 months on a single line of the purchase order; it will include the monthly dollar amount as well. The buyer will also create blanket order rules that will set an expiration date (12 months from now) as well as how many months are allowed to be released at one time. Each month, as the lawn care service provider performs the work and invoices for it, the buyer will generate a release of one month in order to pay the invoice. Once 12 releases have been done against this blanket purchase order, the purchase order is complete.

AcqLinks and References:

Updated: 6/1/2018