Government Contracts in a Nutshell / Edition 5

Government Contracts in a Nutshell / Edition 5

by W. Noel Keyes, Steven W. Feldman
     
 

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ISBN-10: 0314268510

ISBN-13: 9780314268518

Pub. Date: 02/23/2011

Publisher: West Academic

Summarizes the Federal Acquisition Regulation System (FARS), improper business practices and personal conflicts of interest, publicizing contract actions, outsourcing/privatization, and competition requirements. Addresses acquisition plans, contractor qualifications, contract delivery, and performance. Explains socio-economic policies, commercial items, options,

Overview

Summarizes the Federal Acquisition Regulation System (FARS), improper business practices and personal conflicts of interest, publicizing contract actions, outsourcing/privatization, and competition requirements. Addresses acquisition plans, contractor qualifications, contract delivery, and performance. Explains socio-economic policies, commercial items, options, sealed bidding, and negotiation. Reviews general contracting requirements, intellectual property, cost accounting standards, cost principles, financing, protests, disputes, and appeals. Explores research and development contracting, construction and architect-engineer contracts, inspection and warranty, value engineering, delays, suspension of work, modifications, subcontracting, and government contract termination.

Product Details

ISBN-13:
9780314268518
Publisher:
West Academic
Publication date:
02/23/2011
Series:
Nutshell
Edition description:
5
Pages:
768
Sales rank:
660,265
Product dimensions:
4.90(w) x 7.30(h) x 1.10(d)

Table of Contents

Preface v
Introduction xi
Table of Cases
xlvii
PART I. GENERAL
Federal Acquisition Regulation System
1(30)
Regulations Issued Under the Basic Statutes
1(11)
In General
1(1)
The Federal Acquisition Regulation
2(3)
The Force of Procurement Regulations---The Christian Doctrine
5(1)
The Federal Acquisition Regulation as a "Code"
6(4)
Deviations
10(2)
Contracting Authority and Responsibilities
12(19)
Authority of Government Agents and the Inadequacy of Apparent Authority
13(7)
Ratification
20(2)
The Absence of Power to Contract---Illegal Contracts
22(1)
Cost Plus Percentage of Cost (CPPC) Prohibitions
23(3)
The Doctrine of "Palpable" Illegality v. "Improper" Action
26(5)
Improper Business Practices and Personal Conflicts of Interest
31(16)
Ethics in Contracting
31(6)
Independent Pricing
35(1)
Procurement Integrity
36(1)
Contractor Gratuities to Government Personnel
37(1)
Reports of Identical Bids and Suspected Antitrust Violations
38(1)
Contingent Fees
39(2)
Buying-In
39(1)
Subcontractor Kickbacks
40(1)
Conflicts of Interest of Government Employees or Companies They Control
41(3)
Conflicts With Former Government Employees
44(2)
Voiding and Rescinding Contracts
46(1)
Publicizing Contract Actions
47(3)
Competition Requirements
50(8)
Full and Open Competition After Exclusion of Sources
50(5)
Only One Responsible Source
51(3)
Unusual and Compelling Urgency
54(1)
Industrial Mobilization; or Experimental Developmental, or Research Work
55(1)
Sealed Bidding and Competitive Proposals
55(1)
Competition Advocates
56(2)
PART II. ACQUISITION PLANNING
Acquisition Plans---Make or Buy
58(7)
Acquisition Plans
58(1)
Make or Buy Considerations---OMB Circular A--76
59(6)
Determining Availability of Private Commercial Sources
59(4)
Appeals
63(2)
Contractor Qualifications
65(28)
Responsible Prospective Contractors
65(11)
Subcontractor Responsibility
67(1)
The Time at Which a Responsibility Determination Is Required
67(3)
Financial Responsibility
70(2)
Experience Requirements
72(2)
Integrity
74(1)
Effect of State Licensing and Permit Requirements on Responsibility
75(1)
Debarment, Suspension, and Ineligibility
76(4)
Determination of Nonresponsibility Distinguished
76(1)
Debarment and Suspension as Discretionary Acts
77(2)
Consolidated List of Debarred, Suspended, and Ineligible Contractors
79(1)
Procedures for Debarment and Suspension
80(10)
The Decision
83(2)
Suspension
85(1)
De Facto Debarment
86(2)
Low Bidders Not Receiving Awards
88(2)
Organizational Conflicts of Interest
90(2)
Contractor Team Arrangements and Defense Production Pools and Research and Development Pools
92(1)
Contract Delivery and Performance
93(5)
Liquidated Damages---Generally
94(2)
Liquidated Damages---Recovery Where the Government Is Partially at Fault or Where No Actual Damages Were Suffered
96(1)
Priorities, Allocations, and Allotments
96(2)
PART III. CONTRACTING METHODS AND CONTRACT TYPES
Contracting With Sealed Bidding
98(39)
The Purpose and Operation of Sealed Bids
98(10)
Price Related Factors
100(1)
Restrictive Specifications
101(1)
Unbalanced Bids
102(1)
The Uniform Contract Format
103(1)
Bidding Time---Late Bids or Late Withdrawal of Bids
104(3)
How a Bid Becomes Irrevocable Without Consideration
107(1)
Opening of Bids and Award of Contract
108(8)
Rejection of Bids
109(1)
Modification or Withdrawal of Bids
110(1)
Rejection of Individual Bids---The Requirement of Responsiveness
111(2)
Lack of Authority to Waive Requirements, Vested Rights
113(1)
Informalities Which May Be Waived by the Government---Minor Informalities
114(2)
Award
116(18)
Approvals After Award
117(1)
Time of Acceptance---The Mailbox Rule
118(3)
Less Than Three Bids Received and the Problem Where a Single Bid Is Received
121(1)
Withdrawal on the Ground of Mistake Discovered After Opening but Before Award
122(1)
Where a Bid May Be Withdrawn
122(1)
Mistakes in Bids
123(1)
Necessity of Disclosure of Suspicion When Requesting a Verification of Bid
123(2)
Clerical vs. Judgmental Mistakes
125(1)
Comparison With Government Estimates
126(1)
Other Mistakes Disclosed Before Award
127(2)
Problems Arising From Multiple Bites at the Apple
129(2)
Mistake After Award
131(1)
Apparent or Obvious Mistakes
131(1)
Discounts and Price Adjustments
132(1)
Prompt Payment Discounts
132(1)
Economic Price Adjustment or Escalation
133(1)
Attempted Withdrawal After Acceptance
133(1)
Two-Step Sealed Bidding
134(3)
Contracting by Negotiation
137(33)
Examination of Records by the Comptroller General and by the Procuring Agency
139(3)
Solicitation of Proposals and Quotations
142(2)
Uniform Contract Format
142(1)
Late Proposals and Modifications
143(1)
Disclosure and Use of Information Before Award---Restriction on Disclosure
143(1)
Unsolicited Proposals
144(5)
The Uniqueness Problem in Unsolicited Proposals
146(3)
Source Selection
149(8)
Disclosure of Mistakes Before Award
150(1)
Proposal Evaluation and Competitive Range
150(2)
Point Scores
152(2)
Written and Oral Discussion
154(2)
Best and Final Offers
156(1)
Formal Source Selection
157(1)
Make-or-Buy Programs of Prime Contractors
157(1)
Price Negotiation
158(8)
Cost or Pricing Data---Generally
158(4)
Exemptions From or Waiver of Submission of Certified Cost or Pricing Data
162(1)
Defective Cost or Pricing Data
162(2)
Factual and Judgmental Data Distinguished
164(1)
The Certificate of Cost or Pricing Data
165(1)
Other Requirements
166(4)
Types of Contracts
170(25)
Selecting Contract Types
170(2)
Fixed-Price Contracts
172(4)
Cost-Reimbursement Contracts
176(10)
The Fixed Fee
178(1)
Approval of Costs
179(1)
Applicability of Cost Principles
180(1)
Problems Inherent in Cost-Type Contracts
180(1)
The Responsibility of a Cost-Type Contractor
180(3)
Conversions From Fixed Price to Cost-Type Contracts and Vice Versa
183(1)
The Cost-Type Contractor as an Agent of the Government
184(2)
Incentive Contracts
186(2)
Indefinite--Delivery Contracts
188(3)
Time--and--Materials, Labor--Hour Contracts and Letter Contracts
191(2)
Letter Contracts
192(1)
Basic and Basic Ordering Agreements
193(2)
PART IV. GENERAL CONTRACTING REQUIREMENTS
Cost Accounting Standards (CAS)
195(5)
The Standards and the Cost Accounting Standards Board (CASB)
195(5)
Contract Cost Principles
200(22)
The Development of Contract Cost Principles
200(3)
Current Contract Cost Principles
200(1)
Advance Agreements
201(1)
Allowability and Allocability
201(1)
Direct and Indirect Costs---Total Costs
202(1)
Allowability of Selected Costs in Contracts With Commercial Organizations
203(18)
Advertising Costs and Bad Debts
203(1)
Compensation for Personal Services
203(3)
Backpay and Pension Costs
206(1)
Contingencies Contributions and Donations
207(1)
Cost of Money
207(1)
Depreciation
208(1)
Employee Morale, Health, Welfare, Entertainment, Food Service, Dormitory Costs and Credits, and Idle Facilities
208(1)
Independent Research and Development (IR&D) and Bid and Proposal Costs (B&P)
209(1)
Reasons for Controversy Over IR&D and B&P Costs
210(2)
Bid and Proposal Expenses (B&P)
212(1)
Lobbying Costs
213(1)
Organization Costs
213(1)
Precontract Costs
214(1)
Professional and Consultant Service Costs
214(2)
Selling Costs
216(1)
Material Costs
216(1)
Taxes
217(1)
Termination Costs
218(1)
Defense of Fraud Proceedings
219(1)
Goodwill
220(1)
Travel Costs
220(1)
Contracts With Educational Institutions and Nonprofit Organizations
221(1)
Contract Financing
222(34)
Introduction
222(4)
Loan Guarantees for Defense Production
223(1)
Advance Payments
224(2)
Progress Payments Based on Costs
226(4)
Customary Progress Payments
227(1)
Title to Property Covered by Progress Payments
227(1)
Consideration for Progress Payments
228(1)
Supervision of Progress Payments
229(1)
Progress Payments as a Promise Rather Than a Condition
229(1)
Contract Debts
230(4)
Negotiation of Contract Debts and Deferment
231(2)
Interest and Setoff
233(1)
Contract Funding
234(20)
The Appropriation Process
234(2)
Duration of Appropriations
236(1)
Fiscal Years
237(1)
Exceeding Appropriations or Statutory Limitations
238(1)
Authorization Acts
239(1)
Bona Fide Need of the Current Fiscal Year
239(2)
Obligations and Allotments
241(2)
"Statute of Frauds" and Documentary Evidence
243(1)
Executive Action Precluding Obligation---Impoundment
244(2)
Contracts Subject to Availability of Appropriated Funds
246(1)
Limitation of Cost or Funds
247(6)
Termination Costs in Excess of Limitation of Costs (LOC)
253(1)
Assignment of Claims
254(2)
Protests, Disputes, and Appeals
256(111)
Protests
256(28)
Protests to General Accounting Office (GAO)
257(3)
Unpublished Opinions
260(1)
Limitations on GAO Protest Jurisdiction
260(2)
The Procurement Protest System and the Deficit Reduction Act
262(2)
Interested Parties to a Protest to the GAO
264(1)
Protests Before Award
265(1)
Protests After Award
266(1)
GAO Procedures in Protests
267(2)
The General Services Administration Board of Contract Appeals (GSBCA)
269(3)
Congressional Referrals of Claims
272(1)
Preaward Jurisdiction of Claims Court and U.S. District Courts
272(5)
Federal Courts Improvement Act
277(2)
Jurisdiction of United States District Courts
279(2)
Damages for Refusal to Properly Consider a Bid and Bid Preparation Costs
281(3)
Disputes and Appeals
284(83)
Law Controlling the Validity and Interpretation of Government Contracts
285(6)
Contract Claims
291(2)
Certification Requirements
293(4)
Certification of Subcontractor Claims
297(2)
Settlement Authority
299(3)
Settlement Negotiations
302(1)
Duty of Government Attorney to Press Government's Views
303(2)
The Settlement Contract and Its Enforcement
305(2)
Contracting Officer's Conference and Decision
307(4)
Misrepresentation or Fraudulent Claims
311(6)
Interest on Claims
317(1)
Appeals to Boards of Contract Appeal
318(1)
In General
318(4)
Time to Appeal From Contracting Officer's Decision, Tolling, and Waiver
322(3)
The Disputes Clause and Contests Before Boards of Contract Appeals
325(1)
Boards of Contract Appeal and Arbitration Distinguished
326(1)
Adjudication of "All Disputes" Following Final Decisions of Contracting Officer
326(3)
Accelerated Procedures for Claims Under $50,000
329(1)
Small Claims (Under $10,000)
330(1)
Uniform Procedures and Counterclaims
331(1)
Discovery
332(1)
Administrative Law Judges and Boards of Contract Appeals
333(2)
Finality of Board Decisions and Their Struggle With the Former Court of Claims
335(4)
The Standard of Collateral Estoppel
339(1)
Limitations of Review
340(5)
Direct Appeals by Subcontractors
345(2)
Appeals to the Claims Court
347(5)
The "Necessity" to Remand
352(1)
Right of Direct Appeal to Claims Court
353(1)
Discovery in the Claims Court
354(1)
Court of Appeals for the Federal Circuit (CAFC)
354(3)
Attorney's Fees
357(1)
Fee Statutes and Attorney-Client Agreements
357(4)
Fee Amounts
361(6)
PART V. SPECIAL CATEGORIES OF CONTRACTING
Research and Development Contracting
367(8)
Research and Development and the Government
367(3)
The Competitive Requirement
370(2)
Government Laboratories vs. Private Laboratories, Skunk Works and Lead Users
372(2)
Scientific and Technical Reports---Delivery of Technical Data
374(1)
Construction and Architect-Engineer Contracts
375(37)
Types of Construction Contracts
375(3)
Statutory Cost Limitations
376(1)
Evaluation Reports and the Determination of Responsibility
377(1)
Special Aspects of Use of Sealed Bidding Procedures in Construction Contracts
378(3)
Presolicitation Notices
378(1)
Requests for Sealed Bids, Award Notices
379(2)
Price Negotiation of Construction Contracts
381(1)
Construction Contract Clauses
381(21)
Scope of Work and Specifications
382(1)
Extension of Implied Warranty of Construction
383(3)
Suspension of Work
386(2)
Delays in Construction Projects
388(1)
"Deep Pocket" Theory
388(2)
Unabsorbed Overhead---Eichleay Formula
390(2)
The Total Cost Basis and Jury Verdict Method
392(1)
Differing Site Conditions
393(2)
The Changes Clause
395(5)
Constructive Changes Doctrine and Its Partial Elimination by Being Incorporated Into Current Contract Clauses
400(2)
Architect-Engineer Services
402(10)
Performance Evaluation
406(1)
Negotiations for A-E Services
407(2)
Liability for Government Costs Resulting From Design Errors or Deficiencies
409(1)
Design Within Funding Limitations and Redesign Responsibility for Design Errors or Deficiencies
410(2)
PART VI. CONTRACT MANAGEMENT
Contract Administration
412(16)
Post Award Orientation
413(1)
Corporate Administrative Contracting Officer, Audit
414(2)
Indirect Cost Rates
416(6)
In General
416(4)
Department of Defense Requirement for Certifying Overhead Costs
420(1)
Educational Institutions
421(1)
Cost-Sharing Rates and Limitations on Indirect Cost Rates
421(1)
Disallowance of Costs
422(1)
Negotiating Advance Agreements for Independent Research and Development/Bid and Proposal Costs
423(2)
Novation and Change-of-Name Agreements
425(3)
Contract Modifications
428(22)
Authority to Modify Contracts
428(4)
"Changed" Contracts
429(2)
Modification Resulting From Economic Duress---Aggressiveness Distinguished
431(1)
Change Orders---Modifications Which Are Ordered Pursuant to a Clause in the Original Agreement of the Parties
432(18)
Negotiation of Equitable Adjustments
434(1)
Court Imposed Reliance on Practices of One Agency by Another Agency
435(2)
The Concept of Equitable Adjustment
437(2)
Cardinal Changes
439(4)
"Constructive Changes" Doctrine and Its Elimination in Certain Current Clauses
443(5)
Application of Changes Clause to a Requirements Contract
448(2)
Subcontracting
450(24)
Subcontractors, Who Are They?
450(1)
Consent to Subcontracts
451(8)
Subcontracting and Collective Bargaining Agreements
453(5)
Extension of Delivery Dates on Subcontracts Under Cost-Type Prime Contracts
458(1)
Subcontract Clauses
459(1)
Contractor's Purchasing System Reviews (CPSR)
460(1)
Subcontractors and Privity of Contract
460(9)
Prosecution by Prime Contractor of a Claim by Subcontractor (Indirect Appeals)
462(6)
Subcontract Clause on Sponsorship by the Prime Contractor
468(1)
The Law Governing Subcontracts
469(3)
Subcontractor's Oral Bids and Modification of Subcontracts
472(2)
Termination of Government Contracts
474(38)
Introduction
474(1)
Authority to Terminate Contracts and Types of Terminations
474(1)
Termination for Default
475(27)
In General
475(2)
Notice to Show Cause
477(1)
Duty to Terminate for Default
478(1)
The Duty of a Contractor Following Default
479(1)
Reprocurement Following a Default Termination
480(1)
Excess Costs After Reprocurement of "Similar" Supplies, and Assessment of Other Damages
481(3)
Damages Beyond Excess Costs From the Reprocurement Itself
484(1)
Necessity (or Lack Thereof) to Appeal the Termination for Default if Appeal Is taken From the Determination of Excess Costs---The Fulford Doctrine
485(3)
The Former Court of Claims Rule on Substantial Performance in Government Supply Contracts
488(2)
Forbearance of "Waiver" by the Government
490(3)
Default for Failure to Make Progress, or to Prosecute the Work With Diligence
493(2)
Default of Subcontractors
495(2)
Excusable Causes
497(3)
Conversion of Erroneous Default Into a Termination for Convenience---Funds Remain Obligated
500(2)
The Power to Settle Contracts and to Terminate Them for the Convenience of the Government
502(10)
The Bases for a Termination for Convenience
502(7)
Allowability of Costs Claimed Following Termination
509(3)
PART VII. CLAUSES AND FORMS
Solicitation Provisions and Contract Clauses
512(13)
Standard Contract Clauses
512(3)
The Use and Abuse of the Doctrine of Contra Proferentem in Negotiated Procurements
515(10)
Index 525

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