ADMINISTERING OBLIGATIONS OF THE U.S. GOVERNMENT UNDER THE CONTRACT
(CT:COR-40; 09-09-2015)
(Office of Origin: A/OPE)
14 FAH-2 H-561 Administering contracts-GENERAL
(CT:COR-40; 09-09-2015)
The contracting officer depends on the contracting officer’s representative (COR) to see that U.S. Government obligations to the contractor are fulfilled. A person appointed as COR must identify in the contract actions the U.S. Government must take to discharge its obligations.
14 FAH-2 H-562 PROCESSING INVOICES
(CT:COR-40; 09-09-2015)
a. U.S. Government contracts contain a prompt payment clause, which requires payment be made within 30 days of acceptance of supplies or services; or the 30th day after receipt by the billing office designated in the contract of a proper voucher from the contractor, whichever is later. The U.S. Government pays interest if the 30-day deadline is not met (reference 14 FAH-2 H-522.10, Reviewing Invoices, and Federal Acquisition Regulation (FAR) 48 CFR 32.907 Interest penalties.)
b. Many contracts instruct the contractor to send all vouchers and invoices to the contracting officer’s representative (COR) with an information copy to the contracting officer. In those cases, the COR is responsible for reviewing the vouchers and invoices to determine the validity of the costs claimed and relating total expenditures to the physical progress of the contract.
c. Because of 31 U.S.C. 3901 through 31 U.S.C. 3907 "Prompt Payment" provisions, the COR must review vouchers and invoices promptly and either approve them or, if the invoice is to be disputed, return the voucher or invoice to the contractor within 7 days. If an interest penalty is owed to the contractor, the penalty is absorbed within the funds of the requirements office for which the penalty has occurred. The unavailability of funds to make a timely payment does not relieve the obligation to pay interest penalties.
14 FAH-2 H-563 FURNISHING GOVERNMENT INFORMATION OR PROPERTY
(CT:COR-40; 09-09-2015)
a. The U.S. Government may become subject to a claim by the contractor for a contract adjustment if:
(1) The U.S. Government property listed and promised in the contract is not furnished to the contractor by the date agreed to in the contract, or, if no such time was specified, by a sufficiently early date to permit the contractor to finish the contract work by the agreed completion date;
(2) The U.S. Government property is not furnished in a condition suitable for the intended use of the property (e.g., poor copies where data is only partly legible, equipment that needs repairs); or
(3) Proper use of the property depends on knowledge or possession of related information concerning techniques or conditions of its use (e.g., user manuals), and the U.S. Government fails to provide such related information as the contractor requests.
b. The contractor's right to claim contractual equitable adjustment in these circumstances is granted by standard contract FAR 48 CFR 52.245-1 "Government Property" clause language that is required to be included in any contracts that involve the furnishing of U.S. Government property for the contractor's use. The contract adjustments that the contractor is entitled to claim by written request to the contracting officer include adjustments to extend the time for completion of the contract as well as adjustment to increase the estimated cost of and fixed fee for the work.
c. Steps that the contracting officer’s representative (COR) takes: The COR must examine the contract to see what, if any, data, equipment, or other U.S. Government property will be furnished:
(1) Find out what date, if any, is specified in the contract for delivering the property to the contractor; and, if no date is specified, find out when the contractor will need it in order not to impair his or her ability to meet the contract completion date;
(2) Find out where the U.S. Government property is and see that arrangements are made to get it to the contractor on time;
(3) Find out whether the U.S. Government property is in proper condition for use as intended on the contract. The sooner this is known, the sooner repair, correction, or other action can be initiated on an informed basis rather than discovering the problem later when it is too late to avoid delaying contract completion; and
(4) Find out whether there are any special instructions or limitations regarding use of the property. If such instructions exist, see that they are furnished to the contractor along with the property.
d. The Government Property clause (FAR 48 CFR 52.245-1) imposes a number of obligations on the contractor with respect to the management, control, disposition and reporting on U.S. Government-owned property that has been placed in the contractor's possession for performing a contract. The COR should become familiar with all of the provisions of the clause to assure that the contractor is meeting these custodial obligations, including the duty, upon completion of the contract, to return or otherwise dispose of the property in accordance with the contracting officer’s instructions. See 14 FAH-2 H-147 for the contracting officer appointed property administrator responsibilities during the contractor use of the property and 14 FAH-2 H-148 for plant clearance officer responsibilities during the disposition of U.S. Government property.
14 FAH-2 H-564 OBLIGATION NOT TO INTERFERE WITH THE CONTRACTOR'S PERFORMANCE
(CT:COR-40; 09-09-2015)
a. The U.S. Government has an obligation not to interfere with or unreasonably delay the contractor in the performance of the contract. The contracting officer’s representative (COR) should act to respect the contractor's rights to proceed without unreasonable hindrance. Violation of this duty constitutes a breach of contract. The contractor is entitled to recover from the U.S. Government the amount of any damage actually suffered by reason of the breach.
b. The U.S. Government violates this basic duty by such actions as denying the contractor access to U.S. Government premises on which some or all of the contract work must be performed. Also, the U.S. Government should not direct the contractor to stop work pending resolution of questions as to the best way to proceed, when the contractor has not agreed that the U.S. Government may suspend performance. The U.S. Government also violates its basic duty by unreasonably delaying approvals or consents that the contract requires the contractor to obtain before proceeding with actions necessary to perform the contract. Examples of such approvals or consents include approvals of work to date, or of plans for the next phase or work that are required as a condition precedent to proceeding with the contract work; and required U.S. Government consent to subcontracts.
c. To some extent, standard FAR 48 CFR 46.3 contract clauses recognize this basic principle. For example, the FAR 48 CFR 52.246-2 "Inspection" clause expressly states that all U.S. Government inspections and tests must be so conducted as not to "unduly" delay the work. The "Excusable Delays" clause FAR 52.249-14 for cost-reimbursement type contracts provides for revision of the delivery schedule if the contracting officer finds that any failure in performance was due to causes beyond the control and without the fault or negligence of the contractor. One of those excusable causes is identified as "acts of the U.S. Government in either its sovereign or contractual capacity.”
14 FAH-2 H-565 IDENTIFICATION and BUILDING Access FOR ON-SITE CONTRACTORS
(CT:COR-40; 09-09-2015)
a. Every contractor employee working on-site must have an identification/building pass. The contractor must submit an application to the Bureau of Diplomatic Security (DS), Office of Procedural Security, Domestic Facilities Division (for access to Department of State buildings in the United States), or to the post security officer (for access to Department of State buildings abroad), as prescribed by Department of State Acquisition Regulation (DOSAR) clause 48 CFR 652.204-70; and Form DS-1838, Request for Personal Identification Card.
b. The Bureau of Diplomatic Security (DS) or the post security officer will conduct a preliminary background check. If the background check is favorable, a letter is sent to the contractor notifying them that the individual may proceed to the building pass office (or appropriate office at posts abroad) to continue the badging process. The contracting officer’s representative (COR) must provide the contractor with a letter of sponsorship.
c. The COR must maintain a list of building passes issued, by contract employee name, Social Security number or employee identification number, and building pass expiration date. The COR must ensure that the contractor returns to the COR all building passes upon expiration of the contract, when employment of the contract employee is terminated, or when the contract employee no longer has a need for access to the Department facility. The list must also indicate the date on which the pass was returned and the date forwarded to DS or the regional security officer. This listing must be maintained in the COR file. The COR must not approve the final voucher/invoice for payment until all building passes are returned by the contractor.
14 FAH-2 H-566 ADMINISTERING SUBCONTRACTS
(CT:COR-40; 09-09-2015)
a. The prime contractor is responsible for managing the performance of subcontractors. Certain situations may require the COR to become involved with subcontractor performance. Refer to FAR 48 CFR 44.000, which contains subcontracting policies and procedures for administering U.S. Government contracts. CORs may become involved in:
(1) Approval of key personnel who are subcontractor employees;
(2) Authorization of travel for subcontractor employees when the contract requires COR approval of travel;
(3) Authorization of post life support when subcontract personnel are authorized support; and
(4) The approval or consent to subcontracts when required by FAR 48 CFR 44.201-1, such as approval of cost reimbursement subcontracts under cost reimbursement prime contracts.
b. In the case of a prime contract, the U.S. Government is the buyer and the contractor is the seller. However, when the contractor awards subcontracts, the contractor becomes the buyer and the subcontractor becomes the seller. The prime contractor and the U.S. Government have a direct legal relationship. No such direct legal relationship or “privity” exists between the U.S. Government and the subcontractor.
c. The prime contractor, not the U.S. Government, is responsible for administering subcontracts (except with regard to 8(a) contracts). Even in acquisitions where the contract specified that the U.S. Government has a right to review and approve subcontracts, no direct legal relationship between the U.S. Government and the subcontractor is established.
14 FAH-2 H-567 THROUGH H-569 UNASSIGNED