Mission Performance Assessment

1

• Mission Performance Assessment

2
Lesson Objectives

• Given a contracting scenario and performance
  metrics, justify actions for monitoring a
  contractors performance.
• Given a contracting scenario, prepare a plan for
  conducting a post-award orientation conference pg
  5-6
• Given a scenario, select a surveillance method
  for assessing a contractors performance that
  includes all business factors
• Given a scenario on a contractors performance,
  justify an acceptable Government remedy.
• Discuss the characteristics of three types of
  Government contract termination convenience,
  cause and default
• Discuss characteristics and impacts of payments
  to contractors.

3
Post Award OrientationOverview

• Purpose
• Types of Orientation
• When to Use
• Planning Conducting a Post Award Conference
• Outcomes

4
Post Award Orientation
Rules and Agenda
Contract Award
Government-only
Document
Performance
Post Award Orientation
5
Post Award Orientation

• Is it necessary?
• Considerations
• Type of orientation
• Document the outcomes
• DD 1484

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Exercise 5.1
Graded Group Assessment Post Award
Orientations Graded Assessment Workbook Page 37
thru 41 10 points 1-Hour
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Exercise 5.1
EACH TABLE WILL ADDRESS THE SCENARIO
CORRESPONDING TO THEIR TABLE NUMBER OR AS
DETERMINED BY THE INSTRUCTOR DETERMINE WHETHER A
POST AWARD ORIENTATION CONFERENCE IS WARRANTED
AND WHY. IF YOU WILL HOLD A POST AWARD
CONFERENCE, DEVELOP AN AGENDA TO ADDRESS THE
MAJOR ISSUES TO BE COVERED USING A DD FORM 1484.
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Brief-Out Process

• We will brief out Post-Award results in table
  sequence
• Briefly discuss your scenario
• Type of Conference (Telephone, VTC, In person,
  Letter and etc)
• Identify agenda items and what issues you would
  want to discuss and why
• Limit brief to 5 minutes

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5.2 Assessment Factors
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Discussion Questions

• Why Assess?
• What are some performance factors to assess?
• Why is on-time delivery important?
• What are some indicators of Quality performance?
• Who are the players in performance assessment?

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Why Assess? To Determine

• How well we are doing? (Contractor Government)
• If we are meeting our goals
• If our customers are satisfied
• If our processes are working
• If and where improvements are necessary

12
Assessment Factors Overview

• Cost Control
• Timeliness (Schedule/Delivery)
• Quality
• Business Relations
• Management of Key Personnel
• Customer satisfaction Compliance (e.g. OSHA,
  EPA, DOL, Sm. Business subcontracting goals)

13
Schedule/Delivery P. 5-9

• Did contractor meet contractual delivery
  requirements?
• Is there a reward for early delivery?
• Is there a penalty for late delivery?
• Is the contractor on schedule to meet contractual
  requirements?

14
Product/Service Quality P. 5-10

• Does product/service meet requirements?
• Conforms/Adheres to
• Specifications
• Standards-FAR 37.603
• PWS/SOW/SOO-FAR 37.602
• Quality Assurance Plan-FAR 37.604

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Business Relations P. 5-11

• Tends to be a subjective analysis
• Encompasses matters such as the contractors
• Responsiveness
• Professionalism
• Cooperativeness

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Management of Key Personnel P. 5-11

• Were technical experts highly qualified and
  effective in performing the required services?
• Were an appropriate number of personnel assigned
  to the project?
• Did delivered products reflect skill and
  standardization required by the customer?

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Customer Satisfaction P. 5-12

• Our guiding principle is to satisfy our customer
  in terms of cost, quality and timeliness of the
  delivered product or service.

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Compliance P. 5-12

• Examples of areas
• OSHA
• EPA
• Labor laws

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Assessment Roles

• Contracting Officer
• Contracting Officer Representative

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Assessing EAS Alloys Performance

• How much Government oversight is needed?
• Is there a formal plan?
• What assessment factors will you use why?
• Who would perform the assessment?
• How will you know if EAS performance is or is
  not satisfactory?

21
Assessing Services Contracts

• Why bother?
• In FY 2002, 54 percent of DoD spending for goods
  services was spent on service contracts
• From FY 1992 to FY 2002, DoD contracts for goods
  and services increased from 121.4 billion to
  170.8 billion, an increase of 41 percent
• However, the cost of procurement of services
  alone increased from 61.7 billion to 92.9
  billion, an increase of 51 percent
• (DoD IG Report 2004-015, October 30,2003) 
• FY 2005 DoD services totaled 269 billion

22
Using PBA

• The current goals for the use of
  performance-based acquisitions are
• FY 2004 35 percent of dollars awarded
• FYs 2005 to 2007 50 percent of dollars awarded
• Whats the implication?
• We must know how to set up these types of
  contracts and make sure were in a position to
  evaluate the contractors performance

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Performance Based Acquisitions (PBA)

• Definition
• Policy

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Quality Assurance Surveillance Plan

• Quality Assurance Surveillance Plan
• Required
• Living document
• Methods of assessment
• FAR 37.602, 11.002, 37.604, 46.4

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Performance Work Statement

• There is no standard template or outline for a
  PWS.
• The FAR only requires that agencies--
• Describe requirements in terms of results rather
  than process.
• Use measurable performance standards and quality
  assurance surveillance plans.
• Provide for reductions of fees or price.
• Include performance incentives where appropriate.

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Exercise 5.2 Quality Assurance Surveillance Plan

• Support Services for PEO Combat Support Combat
  Support Services
• Complete the Chart for the QASP on 5-33 by
  determining the appropriate surveillance method
• Scan Pages 5-16 thru 5-32 to accomplish.
• 60 minutes

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5.3 Select the Appropriate Remedy
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Remedies Covered in Contract

• Invoke contract clause (s) (ex. Stop Work, Cure
  Notice, Show Cause, Liquidated Damages,
  Termination)
• Withhold/reduce award/incentive fees
• Reject work or allow re-work
• Decline to extend term (award term contracting)

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TerminationsHomework Review
Termination For Convenience (T4C)
Termination For Default (T4D) Termination For
Cause
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Inside the FAR

• What Part of the FAR addresses terminations?
• FAR Part 49
• Pursuant to FAR 49.104 what are the duties of the
  prime contractor in regard to the subcontracts
  upon receipt of a termination notice?
• FAR 49104(b) Terminate all subcontracts related
  to the terminated portion of the prime contract.
• Pursuant to FAR 49.607, how much time has to be
  remaining in the contract delivery schedule to
  issue a Cure Notice?
• FAR 49.607(a) If the time remaining in the
  contract delivery schedule is not sufficient to
  permit a realistic cure period of 10 days or
  more, the Cure Notice should not be issued.

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Termination For Convenience (T4C)Student Guide

• Unilateral government right
• Notice of termination must be in writing
• No justification is required
• May be partial or complete
• Contractor is compensated for
• In-process and completed work
• Profit for completed and partially completed work
• Negotiate a settlement agreement

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Termination Responsibilities

• The contracting officer shall terminate
  contracts, whether for default or convenience,
  only when it is in the Governments interest.
• When the price of the undelivered balance of the
  contract is less than 5,000, the contract should
  not normally be terminated for convenience but
  should be permitted to run to completion.

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Termination For Default (T4D) or CauseStudent
Guide

• Government may terminate for default if
  Contractor fails to
• Make timely delivery
• Perform any Other contract provision (material
  breach)
• Make progress thereby endangers performance
  (anticipatory repudiation)
• Government pays contract price for completed
  supplies
• Government may obtain reprocurement costs per FAR
  49.402-6(c)
• Steps
• Cure Notice
• Show Cause

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T4D Cure NoticeStudent Guide

• Cure Notice
• Delinquency notice that must be issued by the
  Government prior to a T4D
• Provides for a 10 day cure period
• Failure to issue a cure notice can make the
  termination invalid

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T4D Show Cause NoticeStudent Guide

• Show Cause Notice
• Preliminary written notice given to the
  contractor when a T4D appears to be appropriate
• Indicates the contractual liabilities of default
• Asks for contractors response to show cause why
  the contract should not be T4D
• Considerations
• Urgency of need
• Availability of other sources
• Contractor excuses for failure
• Effect on Contractor and industrial base

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Remedies Not Covered

• Informal resolution between parties
• Modify the contract
• File claim
• Seek Alternative Disputes Resolution
• Decline to exercise option
• Legal recourse
• Document in past performance database

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Additional Considerations

• Strict compliance
• Warranties (FAR 46.7)
• Commercial non-commercial
• Express Implied (FAR 46.706)
• Liquidated damages

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Unauthorized Commitment (UC)

• An agreement that is not binding solely because
  the government representative who made it lacked
  the authority to enter into that agreement on
  behalf of the government
• FAR 1.602-3(a)

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Ratification

• The act of approving an unauthorized commitment
  by an official who has the authority to do so
  (e.g., CO)
• FAR 1.602-3(a)

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Prevent Ratifications

• Brief to all personnel (e-mail, Commanders Call,
  etc.)
• CO is responsible for contracts with all firms
  wanting to sell goods and services to
  installation
• Designed to protect interests of the Government
• Make sure vendors know you do not have
  contractual or purchasing authority (if not a CO)
• Do not give advance contracting information to
  any contractor
• If action is not ratified, the individual
  responsible for the UC may be held personally
  accountable for restitution to the vendor

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Exercise 5.3

• Read the Scenarios Page 5-82 thru 5-84.
• Working in groups, address the problems and
  develop an appropriate remedy to the situation.
• Each Table will complete the scenario
  corresponding to their table number
• 30 minutes

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5.4 Invoices and Payments
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Acceptance

• Performance issues resolved
• Performance satisfactory/delivery complete
• SF 1449
• DD 250

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Invoices Payment (Handout)

• Payment Basics
• Prompt Payment Act
• Contract Financing Payments
• Commercial Delivery Payments
• Commercial Advance Payments
• Commercial Interim Payments
• Noncommercial Payment Methods

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Order of Preference Contract Financing

• FAR 32.106
• Private financing
• Customary contract financing other than loan
  guarantees and certain advance payments (32.113)
• Loan guarantees
• Unusual contract financing (32.114) HCA
  approval
• Advanced payments (see exceptions in 32.404(b))

46
Regulatory Requirements

• SAP Threshold Unless agency regulations state
  otherwise, contract financing shall not be
  provided for purchases under authority of FAR
  Part 13.
• Prompt Payment Act FAR 32.9
• Requires timely payment
• Standards
• Commercial Contract Financing
• Commercial Delivery Payments FAR 32.001
• Commercial Advanced Payments made before any
  performance
• Commercial Interim Payments any payment not a
  commercial advance or delivery payment (not
  subject to interest)

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Noncommercial Payment Methods

• Advance Payments FAR 32.102(a) advances of
  money by the Government to a prime contractor
  before, in anticipation of, and for the purpose
  of complete performance under one or more
  contracts. Can be made to primes for advancement
  to subcontractors
• Progress Payments FAR 32.102(b)
• Performance Based Payments FAR 32.10
  preferred

48
Prompt Payment Act

• Invoice
• Interim Payments
• Government pays interest for late payments
• CO and COR should make voucher/invoice review and
  approval a priority

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Payment Policy
DOD FMR, VOL 5, CHAP 33, PARA 3302

• Law
• Certifying Officers pecuniarily liable
  (monetary penalty) for erroneous payments
• DOD Accountable Officials also pecuniarily liable

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Accounting Officials
GENERAL RESPONSIBILITIES DOD FMR, VOL 5, CHAP 33,
PARA 330301

• Ensure controls to minimize erroneous payments
• Comply with regs/policies/procedures
• Support COs via timely/accurate data to ensure
  proper payments
• Request advice from CO regarding AO
  responsibilities
• Timely response to inquiries regarding erroneous
  payments

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Personal Liability
DOD FMR VOL 5, CHAP 33, PARA 3307

• ACCOUNTABLE OFFICIALS SHALL BE PECUNIARILY
  LIABLE FOR ERRONEOUS PAYMENTS THAT RESULT FROM
  INFORMATION, DATA, OR SERVICE THEY NEGLIGENTLY
  PROVIDE TO A CERTIFYING OFFICER FOR THE FULL
  AMOUNT OF THE ERRONEOUS PAYMENT UP TO ONE MONTHS
  COMPENSATION.

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Policy DOD FMR

• PROVIDES FOR
• Random pre- post payment reviews by designated
  review officials
• (Vol 5, Chap 33, Para 3308)

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Policy FAR Part 32.9

• Payment due based on receipt of a proper invoice
  satisfactory performance
• Generally due within 30 days of invoice date or
  government acceptance otherwise interest is due
  contractor
• Government has 7 days from receipt to notify the
  contractor if invoice is improper
• Prompt Payment clause is in all contracts

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Policy -- GSA

• HOWEVER
• GSA currently requires your invoices to be
  processed within 5 days (including certification
  by CO)

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Proper Invoice?

• Contractor name/address
• Date
• Contract/Task Order number
• Description/Qty/Unit/Extension
• Shipment no. date of shipment
• Name/address to remit payment
• Name/title/phone of person to contact if
  defective invoice
• Any other info required by contract

• FAR 32.905(e)

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Typical Invoice Problems

• Inflated/unrealistic labor hours
• Unsupported ODCs (poor description, cant tie to
  specific task)
• Unsupported travel costs
• Unauthorized overtime charges
• Incorrect/unrealistic labor category
• Management hours disproportionate to worker
  bee hours
• Duplicate invoice, or wrong invoice
• Math errors
• Other pitfalls e.g., competing workload
  demands, contractor UNDERcharges for something

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Additional Typical Problems

• Wrong contract/task order number
• Wrong price (proposed vs negotiated)
• Wrong CLIN, P/N, S/N
• No POC for defective invoices
• No date
• Incorrect/missing shipment info
• No remittance address
• Negotiated prompt pay discounts not offered

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• Wide Area Workflow Receipt Acceptance

(Shared Data Warehouse)
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Collecting Past Performance Information

• Relevant performance information
• Fair
• Narrative accompany rating

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Using Past Performance Information

• Award decision
• Source Selection

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Exercise 5.4

• Performance-Based Payments
• Read pages 5-92 thru 5-97
• Address the questions on page 5-97 and be
  prepared to brief the class
• 45 Minutes

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Role of the COR in Contract Performance Assessment
63

• Read
• The
• Contract!

64
COR/COTR/QAE

• Duties/Responsibilities
• Criteria
• Cancellation of Appointments

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COR Authority

• COR has specific delegated authority
• Source of COR authority is the contracting
  officer per contract
• Appointment Memorandum
• (scope and limitations of authority delegated)

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COR Appointment

• Separate delegation made for each contract
• COR must resign in writing
• COR cannot delegate responsibilities to his or
  her replacement
• New COR must be appointed by the contracting
  officer in writing

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DFARS 201.602-2
LIMITATIONS
TASKS
LETTER OF DESIGNATION
AUTHORITY
ADMINISTRATION
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COR Acceptance
Acknowledge acceptance of the duties by signing
and returning the letter to contracting.
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Special Agent
CORs can only act in a special transaction or
for a particular purpose or class of work.
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COR is the eyes and ears of the Contracting
Officer.
Expert in the area of the contracted effort.
Non contracting person assigned duties under the
contract. Has the main role in technical and
monitoring aspects of the SOW/PWS of the
contract. COR may be the certifying officer for
payment of contractors invoices
71

• COR must
• Be a Govt. employee
• Be a technical expert
• Be qualified by training
• Be designated in writing
• Maintain a COR file

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COR Has a Surveillance Plan Keeps Good Records

• FILES MUST CONTAIN
• Copy of the Contract
• COR Appointment Memorandum
• Copy of Invoices, DD 250s, SF 1034
• Contract Modifications
• Copies of all Correspondence
• Memorandums for Record of Actions Issues
• PWS/SOW with attachments
• Quality Assurance Plan
• Negative Assessments
• Weather Reports
• Retain COR File for 3 Years

73
Once the COR files are closed out, take the
files to the contracting officer for holding in
the official contract file
COR FILES