Solicitation and Contract Review
The Federal Acquistion Regulation (FAR), FAR 15 requires that federal agency procurement officials issue solicitation and contracts utilizing a uniform contract format. The format is described in FAR Part 15.204-1. It is useful to review what it’s parts and sections are contained in a UCF issued solicitation since it provides a “map” of information and where we can find what information a contractor requires in order to submit a successful offer that is responsive to the needs of the federal government. An effective solicitation or contract review would not be complete without a thorough read of all the parts and pieces that are issued under a solicitation or revised contract for either a new base year or a follow on year contract award, respectively. Uniform Contract Format 15.204-1 Uniform contract format. (a) Contracting officers shall prepare solicitations and resulting contracts using the uniform contract format outlined in Table 15-1 of this subsection. (b) Solicitations using the uniform contract format shall include Parts I, II, III, and IV (see 15.204-2 through 15.204-5). Upon award, contracting officers shall not physically include Part IV in the resulting contract, but shall retain it in the contract file. Section K shall be incorporated by reference in the contract. TABLE 15-1—UNIFORM CONTRACT FORMAT SECTION
TITLE Part I—The Schedule
A
Solicitation/contract form
B
Supplies or services and prices/costs
C
Description/specifications/statement of work
D
Packaging and marking
E
Inspection and acceptance
F
Deliveries or performance
G
Contract administration data
H
Special contract requirements
I
Contract clauses
Part II—Contract Clauses
Part III—List of Documents, Exhibits, and Other Attachments J
List of attachments Part IV—Representations and Instructions
K
Representations, certifications, and other statements of offerors or respondents
L
Instructions, conditions, and notices to offerors or respondents
M
Evaluation factors for award
NISH National Training Conference Author: F.M. Tellez, May 2011
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Solicitation and Contract Review
15.204-2 Part I—The Schedule. The contracting officer shall prepare the contract Schedule as follows: (a) Section A, Solicitation/contract form. (1) Optional Form (OF) 308, Solicitation and Offer—Negotiated Acquisition, or Standard Form (SF) 33, Solicitation, Offer and Award, may be used to prepare RFPs. (2) When other than OF 308 or SF 33 is used, include the following information on the first page of the solicitation: (i) Name, address, and location of issuing activity, including room and building where proposals or information must be submitted. (ii) Solicitation number. (iii) Date of issuance. (iv) Closing date and time. (v) Number of pages. (vi) Requisition or other purchase authority. (vii) Brief description of item or service. (viii) Requirement for the offeror to provide its name and complete address, including street, city, county, state, and ZIP code, and electronic address (including facsimile address), if appropriate. (ix) Offer expiration date. (b) Section B, Supplies or services and prices/costs. Include a brief description of the supplies or services; e.g., item number, national stock number/part number if applicable, nouns, nomenclature, and quantities. (This includes incidental deliverables such as manuals and reports.) (c) Section C, Description/specifications/statement of work. Include any description or specifications needed in addition to Section B (see Part 11, Describing Agency Needs). (d) Section D, Packaging and marking. Provide packaging, packing, preservation, and marking requirements, if any. (e) Section E, Inspection and acceptance. Include inspection, acceptance, quality assurance, and reliability requirements (see Part 46, Quality Assurance). (f) Section F, Deliveries or performance. Specify the requirements for time, place, and method of delivery or performance (see Subpart 11.4, Delivery or Performance Schedules, and 47.301-1). (g) Section G, Contract administration data. Include any required accounting and appropriation data and any required contract administration information or instructions other than those on the solicitation form. Include a statement that the offeror should include the payment address in the proposal, if it is different from that shown for the offeror. (h) Section H, Special contract requirements. Include a clear statement of any special contract requirements that are not included in Section I, Contract clauses, or in other sections of the uniform contract format. 15.204-3 Part II—Contract Clauses. Section I, Contract clauses. The contracting officer shall include in this section the clauses required by law or by this regulation and any additional clauses expected to be included in any resulting contract, if these clauses are not required in any other section of the uniform contract format. An index may be inserted if this section’s format is particularly complex. 15.204-4 Part III—List of Documents, Exhibits, and Other Attachments. Section J, List of attachments. The contracting officer shall list the title, date, and number of pages for each attached document, exhibit, and other attachment. Cross-references to material in other sections may be inserted, as appropriate.
NISH National Training Conference Author: F.M. Tellez, May 2011
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Solicitation and Contract Review 15.204-5 Part IV—Representations and Instructions. The contracting officer shall prepare the representations and instructions as follows: (a) Section K, Representations, certifications, and other statements of offerors. Include in this section those solicitation provisions that require representations, certifications, or the submission of other information by offerors. (b) Section L, Instructions, conditions, and notices to offerors or respondents. Insert in this section solicitation provisions and other information and instructions not required elsewhere to guide offerors or respondents in preparing proposals or responses to requests for information. Prospective offerors or respondents may be instructed to submit proposals or information in a specific format or severable parts to facilitate evaluation. The instructions may specify further organization of proposal or response parts, such as— (1) Administrative; (2) Management; (3) Technical; (4) Past performance; and (5) Cost or pricing data (see Table 15-2 of 15.408) or information other than cost or pricing data. (c) Section M, Evaluation factors for award. Identify all significant factors and any significant subfactors that will be considered in awarding the contract and their relative importance (see 15.304(d)). The contracting officer shall insert one of the phrases in 15.304(e).
Standard Form 33 The conventional format utilized by Federal Agencies for issuing solicitation is the Standard From 33. Initially it is issued as a solicition and the multifunction format can then be utilized to issue an award. A review of the information contained in the solicitation provides important information. A copy a Standard Form 33 is attached for your information and use.
NISH National Training Conference Author: F.M. Tellez, May 2011
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Solicitation and Contract Review Standard Form 33
NISH National Training Conference Author: F.M. Tellez, May 2011
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Solicitation and Contract Review While all the numbered blocks of the Standard Form 33 contain useful information, and I continue to support reading the solcitation document in its’ entirety, some blocks pertain mostly to internal agency requirements. Those numbered blocks more pertinent and useful to NPA and contractors are as follows:
Block 3 - Solicitation Number: This is the number that will be utilized during all preaward discussions and it’s important to identify specifically which solicitation a contractor is responding to.
Block 4 - Type of Solicitation: This block designates the type of procurement strategy being implemented by the federal agency. It does make a difference since in most JWOD issue solicitation there is no competition. Generally, a solicitation issued for use under JWOD would be a Negotiated (RFP) type of solicitation. That requires that in the process for establishing a fair and reasonable price, there will be discussions and negotiation regarding the proposal submitted by the contractor in response to the offer (the solicitation).
Block 5 - Date Issued: Important information to keep a chronological order to events which may require reference back to the issue date.
Block 7 - Issued By: Identifies the agency issuing the solicitation and includes the agency code designating specifically which procuring entity is responsible.
Block 8 – Address Offer To: In order to be responsive, the contractor must submit it’s proposal to the appropriate address designated for receipt of proposals. This address may differ from the Block 7 address and so care must be taken to be accurate in addressing proposal submittals.
Block 9 – Solicitation Instructions: Contains important data as to when the proposal is due and how many copies must be submitted in order to maintain responsiveness. When participating in commercial competitive solicitations, the due date for submittal of proposals is not negotiable and establishes the cut off beyond which any proposal received will not be considered. A critical date for a contrator to be aware of when “bidding” on the solicitation.
Block 10 – POC for Information: A point of contact is herein designated to receive any and all questions arising from the solicitation. Communicating with any other government personnel will not be considered as an official contact. Especially when requesting clarification of the solicition terms, conditions or specifications particulars, a contractor must take care in addressing those clarifications to an official designated and authorized to act in the interest of the government.
Block 11 – Table of Contents: Essentially lists the Parts and Sections of the Uniform Contract Format contained in the instant solicitation. It is important to determine if all the items (Sections) checked are included with the solicitation received. Many times, stapling does not penetrate all the attachments and so if any section or parts of a section are missing they should be requested prior to comencing any review of the solicitation.
NISH National Training Conference Author: F.M. Tellez, May 2011
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Solicitation and Contract Review
Block 12 – This is a stipulation of the term period over which the proposal submittal is valid. It is the contractor’s discretion to include other than 60 days as the minimum term.
Block 13 – If there is merit in offering a prompt payment discount, this is where the terms of the discount are relayed. Generally, JWOD contractors do not offer discounts.
Block 14 – Many times, solicitations are amended (changed) and block 14 serves as an acknolwedgement that the contractor submitting the proposal (bidding) has received all amendments and therefore are aware of those changes. The government provides a listing of amendments and this serves as a check off for contractors to make certain they have received all relevant documents.
Block 15 – Simply conveys the name, address and pertinant data for the contractor.
Block 16 – Conveys the name and title of the person authorized to bind the contractor to the proposal being submitted.
Block 17 – The signature of the person named in block 16.
After negotiation and upon award, the government will forward the award document with prices agreed to for signature by the contractor first, then the government will sign thereafter, finally binding both parties to the agreement. Blocks 19 through 28 simply document the details of the agreement, the authorit utilized for the award Once you have determined that you are in control of all the parts and pieces related to the solicition, you must determine what matters to consider while reviewing the solcitation. Attached to this paper are two lists of items to consider. 1. The first is a short list (Checklist A) of generic topics to determine if they are contained in your contract. 2. The second list (Checklist B) is a more exhaustive list of pertinent details that may be contained in your solicitation or contract.
NISH National Training Conference Author: F.M. Tellez, May 2011
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Solicitation and Contract Review CHECKLIST A - General Topical Areas
Work Requirement Technical performance issues Interpretation of Specification – are there multiple interpretations possible? Testing Requirements Reports Approval processes Data Requirements and manual Facility and equipment availability and adequacy Authority and responsibility of government representatives Limitations on technical direction from government representatives Key personnel provisions (are they reasonable standards?) Communication requirements, contractor managers/government representatives (if matrix not required, consider developing one) Classification and security requirements Purchasing requirements – long lead items? Subcontracting requirements Invoicing and payment provisions Insurance and liability requirements and limits Procedures in place for contract modification and change orders Overtime policy and approvals required (who can authorize) Patents and technical data provisions Socioeconomic requirements Labor statutes (Davis Bacon, Walsh Healey, Service Contract Act, etc) Property management (Government furnished, inventories required, when, how often by whom) Transportation and shipping Mark for instruction for packages and correspondence Government Quality Assurance provisions, inspection procedures ad personnel authorized Contractor Quality Control requirements Storage areas for equipment Onsite office facility provision
NISH National Training Conference Author: F.M. Tellez, May 2011
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Solicitation and Contract Review CHECKLIST B - Specific Topic Areas I. Technical and Quality Assurance Issues
Quality assurance/inspection system compliance Procedure for design drawing approval Policy toward waivers and deviations Procedure for pre-production samples Qualification and environmental testing requirements Approach to specification interpretation Value engineering incentives/program questions Inspection and acceptance Data requirements and manuals Adequacy and availability of facilities Key program-unique or specific issues of concern
II. Contract Management Issues
Specific authority and responsibility of managers Key personnel Routing of correspondence Questions concerning terms and conditions Omissions Conflicts Explanations Space and accommodations for resident inspectors Planning reports Special reports Classification and security requirements Plant protection and security Foreign supplier procedures Duty-free entry certificates Insurance policy questions Liability questions Industrial relations notifications Assistance regarding priorities and allocations Occupational safety/health/hazardous materials Modification of contracts Termination procedures
NISH National Training Conference Author: F.M. Tellez, May 2011
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Solicitation and Contract Review C. Production and progress management
Technical direction authority Work progress reports Production plans Milestone identification and report Production surveillance procedure
D. Financial, cost, and payment issues
Financial reports Invoicing billing procedure Funding schedule Payment and financing Overtime policy and approval Withholding rights and procedures Change order accounting Interdivisional transfers Allowability of cost
E. Intellectual property requirements and rights
Royalty reports Patent reports Technical data deliveries Technical data rights
F. Procurement and subcontracting matters
Subcontract consent Procurement systems approval Subcontractor management Subcontractor cost and pricing data Subcontractor source inspection
G. Social and economic policy objectives
Small and disadvantaged business subcontracting SADBU reports Operation of labor statutes, as applicable
NISH National Training Conference Author: F.M. Tellez, May 2011
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Solicitation and Contract Review
Davis-Bacon Work hours Walsh-Healey Service contract Anti-kickback
H. Property management matters
Government property—types, schedule Property—maintenance, preservation Property~accountability, identification Property reviews and audits Property disposal
I. Transportation and shipping Delivery of end items Transportation authorizations Place of delivery
Regardless of how “comfortable” a contractor has become with a contract and its performance requirements, an effective review of any new document should be accomplished in order to ascertain whether or not the contract instrument has changed or remained the same. Nothing excuses a contractor from reading the solicitation or contract in its entirety and not having done so is a poor defense against mistakes made in pricing or performance based on poor contract knowledge.
NISH National Training Conference Author: F.M. Tellez, May 2011
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