Mid Term Exam free essay sample

You work with a Government agency managing several large defense contracts. On one of these contracts with a contractor named ATI, an issue has arisen concerning the allowability of certain ATI incurred and invoiced costs. ATIs contract is a cost plus award fee contract. The specific costs in question involve some $50,000 in costs running the ATI fitness center at the ATI main business campus. Additionally, ATI paid $500,000 to a political action committee (PAC) which supports legislative initiatives for defense contractors. Finally, ATI incurred and invoiced the Government $1. 5 million for its legal fees associated with a proceeding brought against it by the local U. S. Attorneys Office for an alleged violation of the False Claims Act under 31 U. S. C. 3730. This False Claims act matter was ultimately resolved and settled through a consent decree between the parties. Before he visits the local DCAA auditor for guidance on what actions to take, your boss want you to prepare an essay advising him on whether any of these three sums are allowable under the FAR. We will write a custom essay sample on Mid Term Exam or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page I would advise my boss of the regulations set forth in the FAR that he may use to his discretion. 1st Sum- Far part 31. 205-13 Employee morale, health, welfare, food service, and dormitory costs and credits states that â€Å"(a) Aggregate costs incurred on activities designed to improve working conditions, employer-employee relations, employee morale, and employee performance (less income generated by these activities) are allowable, subject to the limitations contained in this subsection. Some examples of allowable activities are— (1) House publications; (2) Health clinics; (3) Wellness/fitness centers; (4) Employee counseling services; and (5) Food and dormitory services for the contractor’s employees at or near the contractor’s facilities. The fact that they are running a fitness center is completely authorized under the FAR. 2nd Sum- FAR 31. 205-47 Costs related to legal and other proceedings states that â€Å"(b) In accordance with 41 U. S. C. 4310 and 10 U. S. C. 2324(k), costs incurred in connection with any proceeding brought by a Federal, State, local, or foreign government, or by a contractor or subcontractor employee submitting a whistleblower complaint of reprisal in accordance with 41 U. S. C. 4712 or 10 U. S. C. 2409, for violation of, or a failure to comply with, law or regulation by the contractor (including its agents or employees), or costs incurred in connection with any proceeding brought by a third party in the name of the United States under the False Claims Act, 31 U. S. C. 3730, are unallowable if the result is— (1) In a criminal proceeding, a conviction; (2) In a civil or administrative proceeding, either a finding of contractor liability where the proceeding involves an allegation of fraud or similar misconduct; or imposition of a monetary penalty, or an order issued by the agency head to the contractor or subcontractor to take corrective action under 41 U. S. C. 4712 or 10 U. S. C. 2409, where the proceeding does not involve an allegation of fraud or similar misconduct; In a typical consent decree, the defendant has already ceased or agrees to cease the conduct alleged by the plaintiff to be illegal and consents to a court injunction barring the conduct in the future. These costs are not authorized under the FAR 3rd Sum- FAR 31. 205-22 Lobbying and political activity costs states â€Å"(a) Costs associated with the following activities are unallowable: (2) Establishing, administering, contributing to, or paying the expenses of a political party, campaign, political action committee, or other organization established for the purpose of influencing the outcomes of elections; These costs are not authorized under the FAR. †¢Essay Question #2: Vandy Inc. s CEO was particularly proud of his firms work supporting Special Agent Tom Know-it-All and the FBI in a recent sting operation. In fact, Vandy Inc. had provided numerous supplies and services to the FBI to assist it with its operations. Unfortunately, it now appears that Special Agent Know-it-All was not authorized to retain the services of Vandy Inc. despite Agent Know-it-Alls previous assurances to the contrary. Vandy is now out $5000. 00 and desires to be reimbursed for its costs plus a reasonable profit for supporting important and dangerous undercover work. Will Vandy Inc. get paid by the FBI? Remember to fully articulate your rationale to support your conclusion. Unfortunately not, Vandy’s Inc. , will not be reimbursed, nor will they collect any profits for their assistance. The Antideficiency Act prohibits federal employees from: †¢making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U. S. C.  § 1341(a)(1)(A). †¢involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law. 31 U. S. C.  § 1341(a)(1)(B). †¢accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U. S. C.  § 1342. †¢making obligations or expenditures in excess of an apportionment or reapportionment, or in excess of the amount permitted by agency regulations. 31 U. S. C.  § 1517(a). Agent Know-It-All was not authorized to obligate government funds for this case and therefore by federal law Vandy’s cannot collect any payment. †¢Essay Question #3: Innovative Concepts believed that it had a great idea to assist the United States Navy with its military operations in the Pacific. Accordingly, it proceeded to set up a meeting with Navy Commander Strithers to further explore its concept. Both the Navy and Innovative Concepts met several times over the following several months resulting in the submission of a proposal from Innovative to the Navy. On the other hand, Drawn-out LLC believes the Navy should be competing this critical Navy requirement and is now contemplating the submission of a GAO Protest to stop the Navy from proceeding and awarding a contract to Innovative Concepts. If you were advising the Navy, what steps would you counsel its Contracting Officer to take and why? Would you allow the contract to be awarded to Innovative Concepts? If I were advising the Navy I would certainly detour their decision in this award being directly to Innovative Concepts. Under FAR Federal statutes and regulations require that both negotiated contracts and sealed bid contracts be competitively awarded to the maximum extent practical, with the objective of obtaining the contracts most advantageous to the U. S. Government. FAR 6. 302 offers for circumstances that would otherwise not require full and open competition but not enough facts are given about the question to make an accurate determination if any exceptions are applicable. Of the FAR 6. 302 Circumstances permitting other than full and open competition, I find only one that may be applicable if the nature of the given situation is classified. 6. 302-6 National security states â€Å"Full and open competition need not be provided for when the disclosure of the agency’s needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals. † The Competition in Contracting Act of 1984 (CICA) requires that an agency obtain full and open competition in its procurements through the use of competitive procedures. Exceptions to this general requirement are provided in the statute where there is only one responsible source able to meet the agency’s requirements, or the requirement is of unusual and compelling urgency. I will make the assumption that the military operations in the Pacific that have been discussed between the Navy Commander and the representatives of Innovative are not in compliance to meet the requirements of the National Security. With this being said, I would NOT allow the contract to be directly awarded to innovations unless the proper approval of the justification as outlined in FAR 6. 304 can be provided to me. †¢Essay Question #4: The Department of the Navy issued a request for proposal (RFP) to obtain a cost type contract for services to help operate one of its satellite control centers. The RFP also stated that the contract was to be awarded to the offeror giving the Government greatest confidence that it would best meet the requirements in an affordable manner. The RFP evaluation criteria included factors such as mission capability and program management along with proposal risk, cost/price, and past performance. After the receipt of four proposals, the Navy Contracting Officer sent various evaluation notices (ENs) to all of the contractors requesting additional information from them regarding proposed subcontractor past performance information. This additional past performance data, among other things, allowed the Navy to complete a Most Probable Cost analysis for one of the offerors and therefore make an award without discussions to that contractor based on its lower overall cost and value consistent with the evaluation criteria. Not surprisingly, the other three disappointed contractors have now protested this award claiming that the Navy violated applicable law and regulations by actually conducting discussions with the winner and not with them. Your boss has now asked you to provide an essay advising him as to whether the protesters are correct. There are a few items I would address is preparing an essay for my boss on this scenario. I would address the fact that the FAR does state a contracting officer has to abide by the criteria set forth and published in their evaluation criteria. They have a lot of authority in determining capability and the selection process, but they have to stay in accordance with their solicitation data. FAR 15. 308 â€Å"The source selection authority’s (SSA) decision shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation. † Since the Navy used a â€Å"most Probable Cost Analysis† and concluded that one of the contractors met their criteria for â€Å"greatest confidence that it would best meet the requirements in an affordable manner† I feel this regulation was followed. If there had been more evidence given that the Navy chose to do a trade off or weighted cost as the primary factor contrary to the criteria solicitation, then that would have gone against the regulation. Another area of emphasis would be from the sentence â€Å"the Navy violated applicable law and regulations by actually conducting discussions with the winner and not with them. † As it does not specify, I will assume they mean post award discussions. For post award notices the FAR says the contracting officer shall within 3 days of the contract award, provide written notification to each offerer whose proposal was in the competitive range but was not selected for award and had not been previously notified (pre-award notification). If the COR in fact had not sent out his notifications as illustrated from the passage of question 4, then yes, he is in violation. For those who wish to request one, FAR 15. 306 (d) allows â€Å"Offerors excluded or otherwise eliminated from the competitive range may request a debriefing (see 15. 505 and 15. 506). If it is assumed that award was made with no pre-award discussion this can go one of two ways. FAR 15. 306 (a) Exchanges with offerors after receipt of proposals. (3) Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions. If the solicitation contains such a notice and the Government determines it is necessary to conduct discussions, the rationale for doing so shall be documented in the contract file (see the provision at 52. 215-1) (10 U. S. C. 2305(b)(4)(A)(ii) and 41 U. S. C. 253b(d)(1)(B)). FAR 15. 306 (d) (3) After Establishment of Competitive Range At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15. 307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting officer judgment. (4) In discussing other aspects of the proposal, the Government may, in situations where the solicitation stated that evaluation credit would be given for technical solutions exceeding any mandatory minimums, negotiate with offerors for increased performance beyond any mandatory minimums, and the Government may suggest to offerors that have exceeded any mandatory minimums (in ways that are not integral to the design), that their proposals would be more competitive if the excesses were removed and the offered price decreased. (5) If, after discussions have begun, an offeror originally in the competitive range is no longer considered to be among the most highly rated offerors being considered for award, that offeror may be eliminated from the competitive range whether or not all material aspects of the proposal have been discussed, or whether or not the offeror has been afforded an opportunity to submit a proposal revision (see 15. 307(a) and 15. 503(a)(1)). Having revised the FAR 15. 306 (d) it is evident that so long as the Navy no longer considered the other contractors to be within the competitive range, that offerer may be eliminated. The COR is not required to allow them to discuss all material aspects of the proposal. However, a powerful section here is that 15. 306 (d) (2) â€Å"The primary objective of discussions is to maximize the Government’s ability to obtain best value, based on the requirement and the evaluation factors set forth in the solicitation. † If the COR failed to hold pre-award discussions with the other vendors, then how will it justify in a protest that he determined the awarded contractor to offer the government greatest confidence that it would meet the requirements in an affordable manner? The last items I would address in my essay to the boss would be the circumstances necessary for the protesters to win. To prevail in a bid protest, a protester must show a significant, prejudicial error in the procurement process. See Statistica, Inc. v. Christopher, 102 F. 3d 1577, 1581 (Fed. Cir. 1996); Data Gen. Corp. v. Johnson, 78 F. 3d 1556, 1562 (Fed. Cir. 1996). To establish prejudice, a protester is not required to show that but for the alleged error, the protester would have been awarded the contract. Data General, 78 F. 3d at 1562 (citation omitted). Rather, the protester must show that there was a substantial chance it would have received the contract award but for that error. Statistica, 102 F. 3d at 1582; see CACI, Inc. -Fed. v. United States, 719 F. 2d 1567, 1574-75 (Fed. Cir. 1983) (to establish competitive prejudice, protester must demonstrate that but for the alleged error, there was a substantial chance that [it] would receive an awardthat it was within the zone of active consideration Evaluating the relative merits of competing proposals is a matter within the discretion of the contracting agency since the agency is responsible for defining its needs and the best method of accommodating them, and it must bear the burden resulting from a defective evaluation. Advanced Technology and Research Corp. , B-257451. 2, Dec. 9, 1994, 94-2 CPD  ¶ 230; Marine Animal Prods. Intl, Inc. , B-247150. 2, July 13, 1992, 92-2 CPD  ¶ 16. †¢Essay Question #5: Describe and distinguish the following two key government contracting principles: contractor responsibility and responsiveness in the context of contract formation. Be sure to provide all applicable FAR references to support your essay. Contractor Responsibility as outlined in the FAR Part 9. 104-1, is a contracting principle that ensures contractors who wish to engage in dealings with United States Government are determined responsible by the COR. The COR is making purchases with tax payers money and therefor they have to make sure they selecting contractors in the best interest of the nation. To be determined responsible, a prospective contractor must— (a) Have adequate financial resources to perform the contract, or the ability to obtain them (see 9. 104-3(a)); (b) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments; (c) Have a satisfactory performance record (see 9. 104-3(b) and Subpart 42. 15). A prospective contractor shall not be determined responsible or nonresponsible solely on the basis of a lack of relevant performance history, except as provided in 9. 104-2; (d) Have a satisfactory record of integrity and business ethics (for example, see Subpart 42. 15). (e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors). (See 9. 104-3(a). ) (f) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them (see 9. 104-3(a)); and (g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations (see also inverted domestic corporation prohibition at 9. 108). Responsiveness is a contracting principle aimed at establishing a level playing field for all would be government contractors. When price is the only factor being considered all the other elements of the procurement must be identical in order to give each competitor the very same chance of doing business with the government. Maintaining the requirement also helps in eliminating potential fraudulent activities. In order for a bid to be deemed responsive it must comply with all material respects with the invitation to bid. FAR 14. 301 states, â€Å"(a) To be considered for award, a bid must comply in all material respects with the invitation for bids. Such compliance enables bidders to stand on an equal footing and maintain the integrity of the sealed bidding system. (b) Telegraphic bids shall not be considered unless permitted by the invitation. The term â€Å"telegraphic bids† means bids submitted by telegram or by mailgram. (c) Facsimile bids shall not be considered unless permitted by the solicitation (see 14. 202-7). (d) Bids should be filled out, executed, and submitted in accordance with the instructions in the invitation. If a bidder uses its own bid form or a letter to submit a bid, the bid may be considered only if— (1) The bidder accepts all the terms and conditions of the invitation; and (2) Award on the bid would result in a binding contract with terms and conditions that do not vary from the terms and conditions of the invitation. (e) Bids submitted by electronic commerce shall be considered only if the electronic commerce method was specifically stipulated or permitted by the solicitation.