UNCLASSIFIED (U)

14 FAH-2 H-120

The Acquisition Environment

(CT:COR-53;   09-25-2019)
(Office of Origin: A/OPE)

14 FAH-2 H-121  Key Principles and Practices

(CT:COR-45;   01-04-2016)

a. When the U.S. Government acts as a customer or buyer, it must operate within constraints and guidelines that do not apply to other buyers.  Government entities are responsible for spending public funds in the public interest.  Federal law 31 U.S.C. 1341(a) requires that no contract or purchase on behalf of the U.S. Government will be made unless authorized by law and paid for with funds appropriated for that purpose.

b. While contracting personnel bear direct responsibility for compliance with controls on U.S. Government acquisition, contracting officer’s representative’s activities often are critical as well.  The ability to obtain competition often depends on the requirements office's development of a work statement that is not unduly restrictive.  Justifying award decisions depends largely on whether requirements office personnel have played their part in developing sound criteria to judge the competitors.  This system of separating the duties of the contracting activity and the requirements office provides for a system of checks and balances for better overall control of the contracting process.

14 FAH-2 H-122  The Regulations

14 FAH-2 H-122.1  Federal Acquisition Regulation (FAR)

(CT:COR-45;   01-04-2016)

The Federal Acquisition Regulation (FAR), Code of Federal Regulations, 48 CFR Chapter 1, is the primary regulation governing how U.S. Government agencies acquire supplies or services with appropriated funds.  It provides uniformity in the Federal acquisition process.  It provides uniform policies and procedures for acquisition by all executive agencies.

14 FAH-2 H-122.2  Department of State Acquisition Regulation (DOSAR)

(CT:COR-45;   01-04-2016)

U.S. Government agencies are authorized to establish their own regulations to implement and supplement the FAR.  The Department of State established uniform policies and procedures in the Department of State Acquisition Regulation (DOSAR) 48 CFR 601.101, which is maintained by the Office of the Procurement Executive (A/OPE).  The Department acquisition regulations must not unnecessarily repeat or paraphrase material in the FAR.  The DOSAR may not conflict or be inconsistent with FAR content except as required by law or provided by 48 CFR 1.402, deviations from the FAR.

14 FAH-2 H-122.3  Department of State Procurement Information Bulletins (PIB)

(CT:COR-45;   01-04-2016)

a. The Office of the Procurement Executive (A/OPE) issues Procurement Information Bulletins to promulgate immediate procurement guidance.  PIBs are maintained on the A/OPE intranet site.

b. An example is PIB 2014-12, Mandatory Use of Federal Acquisition Institute Training Application System (FAITAS), dated May 14, 2014.

14 FAH-2 H-123  The Nature of a Contract

(CT:COR-45;   01-04-2016)

a. A contract is an agreement between two or more parties consisting of a promise, or mutual promises, for the breach of which the law might provide a remedy, or the performance of which the law recognizes as a duty.

b. Unlike most social promises, a contract establishes a binding legal relationship that obligates the parties to keep their promises.  In nearly all U.S. Government contracts, one party is the "seller," obligated by the contract to provide goods and services.  The other party is the U.S. Government which, as the "buyer," is generally obligated to pay for those goods or services.

c.  All contracts usually contain the following elements:

(1)  An offer:  A proposal by an offeror that a contract be entered into;

(2)  An acceptance:  Unambiguous assent to the offer by the other party, and communication of that assent to the offeror;

(3)  Consideration:  Things of value in the eyes of the law exchanged by the parties to complete the agreement; and

(4)  Mutuality of obligation or meeting of the minds:  Parties understand and agree to the basic substance and terms of contract.

d. In addition, a contract must have a lawful purpose, clarity of terms and conditions, and must be entered into by mentally and legally competent parties that have authority to bind the organization.

e. For a U.S. Government contract (other than purchase order or other simplified acquisition method contracts), the bids or proposals from the firms are the offers.  Each is made by an offeror seeking to enter into a contract with the U.S. Government.  When the U.S. Government, after bid opening or proposal review and negotiation, selects one firm with whom to contract, it performs the act of acceptance when the contracting officer signs the contract.

f.  The mutual consideration in U.S. Government contracts usually consists of:

(1)  The delivery of goods or services by the contractor; and

(2)  Payment by the U.S. Government.

g. Performance work statement (14 FAH-2 H-340) or specifications must clearly communicate the U.S. Government's requirements, and must always be in writing.

14 FAH-2 H-124  Definitions and Acronyms

14 FAH-2 H-124.1  Definitions

(CT:COR-53;   09-25-2019)

Acceptance:  The act of an authorized representative of the U.S. Government assuming ownership of existing identified supplies tendered or approving specific services rendered as partial or complete performance of the contract requirements.  This includes acknowledging that the supplies or services are in conformity with the applicable contract quality and quantity requirements (see FAR 48 CFR 46.101).

Acquisition career manager (ACM):  This is the individual appointed by the Chief Acquisition Officer (CAO) to lead the agency’s acquisition career management program.  The acquisition career manager (ACM) is responsible for ensuring that the agency’s acquisition workforce meets the requirements of the Office of Management and Budget (OMB), Office of Federal Procurement Policy (OFPP), Policy Letter 05-01, Developing and Managing the Acquisition Workforce, dated April 15, 2005.  Among other duties described in the OFPP Policy Letter 05-01, the ACM:

(1)  Manages the identification and development of the acquisition workforce, including identifying staffing needs, training requirements, and other workforce development strategies;

(2)  Ensures that agency policies and procedures for workforce management are consistent with those established by OFPP, as appropriate; and

(3)  Maintains and manages the consistent agency-wide data on those serving in the agency’s acquisition workforce.

Acquisition plan:  The result of the coordinated and integrated efforts of all personnel responsible for an acquisition working together to develop a comprehensive plan for fulfilling the agency need in a timely manner and at a reasonable cost.  Acquisition plans are addressed in detail at FAR 48 CFR 7.1.  DOSAR 48 CFR 607.103(d) requires domestic requirements offices to develop formal, written acquisition plans for all acquisitions whose value, including base and all option amounts, exceeds $5 million.

Administrative controls:  Safeguards that ensure that contracting activities will be carried out in conformity with applicable regulations and Department policy.

Amendment:  Modification made to a solicitation.  Reference the Form SF-30, Amendment of Solicitation/Modification of Contract, and 48 CFR 53.243.

Buying green:  Obtaining cost-efficient products and services that have a reduced impact on the environment through waste minimization, natural resources conservation, pollution reduction and prevention.  When Department domestic acquisitions involve the purchase of an item identified by the Environmental Protection Agency (EPA), as designated recycled content material or U.S. Department of Agriculture (USDA) designated biobased products, the product must meet the EPA or USDA guideline standards unless there is a price, performance, or availability exception justification for not doing so maintained in the contracting officer contract file.  See 48 CFR 23.2, "Energy and Water Efficiency and Renewable Energy" for Energy Star program products, and Federal Energy Management Program (FEMP) for requirements of low standby power devices.  See 48 CFR 23.4, "Use of Recovered Materials and Biobased Products."

Cardinal changes:  Modifications to an existing contract that are beyond the general scope of that contract and are so extensive that a new contract should be awarded.  A cardinal change is so profound that it not redressable under the contract and thus renders the government in breach.  It frees the contractor of its obligations under the contract, including its obligations under the disputes clause.  Reference Allied Materials & Equipment Co. v. United States, 569 F.2d 562, 563-64 (Ct. Cl. 1978).

Change order:  Unilateral action taken by the contracting officer to modify the drawings, designs, specifications, method of shipping or packing, place of inspection, delivery, or acceptance of an existing contract.

Changed conditions:  Construction site/repair conditions which differ significantly from conditions indicated in the contract, or conditions ordinarily encountered in the performance of the type of work in the contract.

Clarifications:  Limited exchanges between the U.S. Government and offerors that may occur when award without discussions is contemplated (reference FAR 48 CFR 15.306(a)).

Communications:  Exchanges between the U.S. Government and offerors, after receipt of proposals, leading to establishment of the competitive range (see FAR 48 CFR 15.306(b)).

Competitive range:  Those proposals which, after evaluation by the technical evaluation panel, are the most highly rated and will be included in negotiations (48 CFR 15.306(c)).

Constructive change order:  Informal requests for additional work or services caused by some act or omission on the part of the U.S. Government that causes a contractor extra work, delays, or expense.

Contract:  A legal instrument providing for the purchase, lease, or barter of property or services for the direct benefit of the U.S. Government.

Contract administration:  The monitoring of the contractor's performance to assure compliance with performance requirements and contract provisions.

Contract modification:  Any written alterations in the specifications, delivery point, date of delivery, contract period, price, quantity, or other provision of an existing contract.

Contracting officer:  An official authorized to enter into or administer procurement contracts and make related determinations and findings.

Contracting officer's representative (COR):  The individual in the requirements office who is responsible for the technical monitoring and evaluation of the contractor's performance.

Contractor-acquired property:  Property acquired, fabricated, or otherwise provided by the contractor for performing a contract and to which the Government has title (48 CFR 45.101).  Examples are property acquired under a cost-reimbursement contract or property acquired under a contract with a special term and condition directing the contractor to acquire the property for the government.  A time-and-materials repair contract may direct a contractor to obtain an inventory of repair parts that transition to the government at contract completion.  Property acquired under a cost-reimbursement contract as a direct charge is the property of the U.S. Government upon payment or issuance from contractor stores.

Cost estimate:  A written calculation of all items included in the scope of the work, tabulated under appropriate cost headings (direct costs, labor, overhead, and profit).

Cost-reimbursement contract:  A contract in which the buyer and seller agree on an estimate of contract costs.  The buyer agrees to reimburse the seller for reasonable, allowable, and allocable costs necessary to complete the work.

Cure notice:  A document the contracting officer sends to a contractor to notify the contractor that the contract may be terminated by reason of default if the condition endangering performance of the contract is not corrected in 10 days.

Deficiency:  A material failure of a proposal to meet a Government requirement or a combination of significant weaknesses in a proposal that increases the risk of unsuccessful contract performance to an unacceptable level (reference FAR 48 CFR 15.001).

Determinations and findings:  Written approval by an authorized official that is required by statute or regulation as a prerequisite to taking certain contracting actions.

Discussions:  Discussions are negotiations conducted in a competitive acquisition.  Discussions take place after establishment of the competitive range (see FAR 48 CFR 15.306(d)).

Evaluation notice (EN):  The contracting officer’s written notification to the offeror for purposes of clarifications, communications or in support of discussions.

Excusable time delay:  Failure to perform that is beyond the control and without fault or negligence of the contractor.

Federal Acquisition Certification for Program and Project Managers (FAC P/PM):  The certification requirements issued by the Office of Federal Procurement Policy (OFPP) in the Office of Management and Budget (OMB) for program and project managers.

Federal Acquisition Certification in Contracting Program (FAC-C):  The certification requirements issued by the Office of Federal Procurement Policy (OFPP) in the Office of Management and Budget (OMB) for contracting personnel, as implemented by 14 FAH-3 H-312.

Federal Acquisition Certification Program for Contracting Officer’s Representatives (FAC-COR):  The certification requirements issued by the Office of Federal Procurement Policy (OFPP) in the Office of Management and Budget (OMB) for contracting officer’s representatives as implemented by 14 FAH-2 H-141 and 14 FAH-2 H-143.

Federal Acquisition Regulation (FAR):  The Code of Federal Regulations (CFR) contains the Federal Acquisition Regulation (FAR).  48 CFR 2.101 is the source for many definitions of terms.

Federal Business Opportunities (FedBizOpps):  The single point where U.S. Government business opportunities greater than $25,000, including synopses of proposed contract actions, solicitations, and associated information, can be accessed at the fedbizopps web site.

Firm fixed-price contract:  A contract that provides for a price that is not subject to any adjustment by reason of cost experience of the contractor in the performance of the contract.

Government property:  All property owned or leased by the U.S. Government.  Government property includes both Government-furnished property and contractor-acquired property.  Government property includes material, equipment, special tooling, special test equipment, and real property.  Government property does not include intellectual property and software (48 CFR 45.101).

Government-furnished property:  Property in the possession of, or directly acquired by, the U.S. Government and subsequently furnished to the contractor for performance of a contract.  Government-furnished property includes, but is not limited to, spares and property furnished for repair, maintenance, overhaul, or modification.  Government-furnished property also includes contractor-acquired property if the contractor-acquired property is a deliverable under a cost contract when accepted by the U.S. Government for continued use under the contract (48 CFR 45.101).

Government technical monitor (GTM):  An individual designated by the contracting officer to assist the COR in monitoring a contractor’s performance.

Head of contracting activity (HCA):  The official who has overall responsibility for managing the contracting activity.  See DOSAR 48 CFR 601.601-70 for more information and a list of Department of State HCAs.

Indefinite-quantity contract:  A contract used for procurements in which the exact number of deliverable items is not known at the time of contracting.  The contract provides for a minimum and maximum amount of goods/services that may be ordered under the contract.

Inspection:  The examination and testing of supplies and services to determine whether they conform to contract requirements.

Labor-hour contract:  A contract that provides for the procurement of services on the basis of direct labor-hours at specified, fixed hourly rates (which include direct and indirect labor, overhead, and profit).

Letter contract:  A written authorization for the contractor to begin work issued prior to the negotiation of a formal contract.

Level-of-effort contract:  A contract that specifies the number and type of person-hours that the contractor will apply in pursuing the project.

Lowest price technically acceptable (LPTA):  A process used in competitive negotiated contracting where the best value is expected to result from selection of the technically acceptable proposal with the lowest evaluated price (reference FAR 48 CFR 15.101-2).

Modification:  See contract modification definition in this section.

Negotiation:  The procedure for awarding contracts without sealed bidding.  This method of procurement is used when sealed bidding is not feasible or practicable.  Under negotiation, the lowest offeror does not necessarily receive the award; since technical and other factors may be considered as well as cost.

Performance-based service contracting (PBSC):  PBSC is a method of contracting where the U.S. Government defines the results it is seeking, rather than the process by which those results are attained.  An essential element is the standards against which contract performance will be measured.  PBSC is the preferred method of contracting for services.

Performance confidence assessment:  An evaluation of the likelihood (or U.S. Government’s confidence) that the offeror will successfully perform the solicitation’s requirements; the evaluation is based upon past performance information.

Performance work statement (PWS):  A description of what the contractor must accomplish in terms of results so that the U.S. Government can effectively monitor and evaluate the progress and final result of the contract (48 CFR 37.602).  It is used when conducting performance-based service contracting.  It replaces the Statement of Work previously used in service contracts.

Personal services contract (PSC):  Employment contract that creates an employer/employee relationship (48 CFR 37.104).  A U.S. Government employee is technically the PSC’s supervisor and will complete timecard and other personnel management actions.

Plant clearance officer:  An authorized representative of the contracting officer appointed in accordance with agency procedures, responsible for screening, redistribution, and disposing of contractor inventory from a contractor’s plant or work site (48 CFR 2.101).  The term “contractor’s plant” includes, but is not limited to, U.S. Government-owned contractor–operated plants, Federal installations, and Federal and non-Federal industrial operations, as may be required under the scope of the contract.  Department contracting officers must designate a property administrator in writing for contracts that have Government-furnished property or contractor-acquired property and delegate authority for specific property management tasks (see 14 FAH-2 H-148).

Price negotiation memorandum (PNM):  The official record document supporting the source selection and contract award decision, including the principal elements of the negotiated agreement (reference FAR 48 CFR 15.406-3).

Procurement Executive (A/OPE):  The Procurement Executive is responsible for management direction of the acquisition system of the Department, including implementation of the unique acquisition policies, regulations, and standards of the Department.

Property administrator:  An authorized representative of the contracting officer appointed in accordance with agency procedures, responsible for administering the contract requirements and obligations relating to Government property in the possession of a contractor (48 CFR 45.101).  Department contracting officers must designate a property administrator in writing for contracts that have Government-furnished property or contractor-acquired property delegating authority for specific tasks (see 14 FAH-2 H-147).

Recency:  As it pertains to past performance information, is a measure of the time that has elapsed since the past performance reference occurred.  Recency is generally expressed as a time period during which past performance references are considered relevant.

Relevancy:  As it pertains to past performance information, is a measure of the extent of similarity between the service/support effort, complexity, dollar value, contract type, and subcontract/teaming or other comparable attributes of past performance examples and the source solicitation requirements; and a measure of the likelihood that the past performance is an indicator of future performance.

Requirements documents:  All aspects of the request for proposal (RFP) that convey the needs of the U.S. Government to offerors, including the SOO, SOW, PWS, technical requirement documents, and system requirement documents.

Requiring office:  The entity (for example, a program management office or other organizational entity) responsible for translating user requirements into the requirements documents within the RFP that communicate those requirements to offerors.

Risk:  As it pertains to source selection, is the potential for unsuccessful contract performance.  The consideration of risk assesses the degree to which an offeror’s proposed approach to achieving the technical factor or subfactor may involve risk of disruption of schedule, increased cost or degradation of performance, the need for increased U.S. Government oversight, and the likelihood of unsuccessful contract performance.  For firm-fixed-price contracts, the reference to increased cost may be removed from the risk definition.

Responsible bidder/offeror:  One who has the technical and financial capacity to secure the necessary resources to deliver the goods or services (48 CFR 9.104-1).

Responsive bid:  A bid that conforms exactly to the requirements in the Invitation for Bids (IFB).

Sealed bidding:  Acquisition by competitive sealed bids (48 CFR 6.401).  This method of procurement requires that specifications be written describing the requirements of the U.S. Government clearly, accurately, and completely, so that the evaluation of bids can be based on the lowest bid submitted by a responsive and responsible bidder.

Show-cause letter:  A document the contracting officer sends to a defaulting contractor to notify the contractor that the contract may be terminated by reason of default unless the contractor can prove in 10 days that the condition was not his or her fault (48 CFR 49.607).

Significant weakness:  The proposal has a flaw that appreciably increases the risk of unsuccessful contract performance (48 CFR 15.001).

Solicitation:  The process by which the U.S. Government requests, orally or in writing, offers from prospective contractors for specific items or services (14 FAH-2 H-414).  Solicitation documents are Requests for Quotations (RFQs); Invitations for Bids (IFBs); and Requests for Proposals (RFPs).

Solicitation mailing list:  The list of prospective contractors.

Source selection advisory council (SSAC):  A group of senior U.S. Government personnel who provide counsel during the source selection process and must prepare the comparative analysis of the technical evaluation team (TET) evaluation results with those of the price evaluation team (PET), when utilized, and prepare a recommendation for the SSA (14 FAH-2 H-363.4).

Source selection authority (SSA):  The official designated to make the source selection decision (14 FAH-2 H-363.1).

Source selection team (SST):  A team that is tailored to the unique acquisition, tasked with carrying out a source selection (14 FAH-2 H-363.1).  Composition of the team generally consists of the SSA, contracting officer (if different from the SSA), SSAC, TET, advisors, cost or price experts, legal counsel, small business specialists, and other subject matter experts.

Source selection decision document (SSDD):  The document that reflects the SSA's independent, integrated, comparative assessment and decision (reference FAR 48 CFR 15.308 and 14 FAH-2 H-366.10).

Source selection plan (SSP):  A plan that describes how the source selection will be organized, how proposals will be evaluated and analyzed, and how source(s) will be selected (14 FAH-2 H-365).

Specifications:  The clear and accurate description of the technical requirements of a service or supply contract.

Strength:  An aspect of an offeror's proposal that has merit or exceeds specified performance or capability requirements in a way that will be advantageous to the U.S. Government during contract performance.

Technical evaluation panel (TEP):  One or more technical staff members designated by the contracting officer to evaluate technical proposals, discuss the work with all offerors in the competitive range (if requested by the contracting officer), and prepare a selection recommendation (14 FAH-2 H-421.3).

Termination for cause:  A termination under a commercial item contract in the event of any default by the contractor.

Termination for convenience:  A contract clause designed to give the U.S. Government a unilateral right to terminate the contract when it is in the U.S. Government’s interest to do so.

Termination for default:  A contract clause that allows the U.S. Government to terminate a contract when the contractor fails to perform or fails to make progress so as to endanger performance (48 CFR 49.4).

Time-and-materials contract:  A contract that provides for payment of supplies and services on the basis of incurred direct labor hours (at fixed rates) and materials (typically at cost) (48 CFR 16.601).

Time delay:  An interruption during which services, supplies, or work are not delivered in accordance with the performance time schedule stated in the contract.

Training officer:  As defined in 13 FAM 101.2-2(D), Bureau Training Officers.  Each bureau and post has at least one training officer.  A list of training officers is available on the Foreign Service Institute (FSI) web site.

Weakness:  A flaw in the proposal that increases the risk of unsuccessful contract performance (48 CFR 15.001).

14 FAH-2 H-124.2  Acronyms

(CT:COR-51;   04-19-2019)

A/OPE/AQM Office of Acquisitions Management

A/OPE            Office of the Procurement Executive

BPA              Blanket Purchase Agreement

CAO              Chief Acquisition Officer

CBCA            Civilian Board of Contract Appeals

CFR              Code of Federal Regulations

CG                Comptroller General

CGFS            Bureau of the Comptroller and Global Financial Services

CICA             Competition in Contracting Act

CO                Contracting Officer

COR              Contracting Officer's Representative

CR                Cost-Reimbursement Contract

D&F              Determination and Findings

DOSAR          Department of State Acquisition Regulation

FAC-C           Federal Acquisition Certification in Contracting Program

FAC-COR       Federal Acquisition Certification for Contracting Officer

                    Representatives and Government Technical Monitors

FAC-P/PM     Federal Acquisition Certification for Program and Project

                    Managers

FAH              Foreign Affairs Handbook

FAM              Foreign Affairs Manual

FAR              Federal Acquisition Regulation

FEDBIZOPPS   Federal Business Opportunities

FFP               Firm-Fixed-Price Contract

FMO              Financial Management Officer

FOIA             Freedom of Information Act

FSI                Foreign Service Institute

GAO              Government Accountability Office

GFP              U.S. Government-Furnished Property

GTM              Government Technical Monitor

HCA              Head of the Contracting Activity

IFB               Invitation for Bids

JOFOC          Justification for Other Than Full and Open Competition

L/BA             Office of the Assistant Legal Adviser for Building and

                    Acquisitions

OBO             Bureau of Overseas Buildings Operations

OFPP            Office of Federal Procurement Policy

OIG              Office of the Inspector General

OMB             Office of Management and Budget

PA                Property Administrator

PBSC            Performance-Based Service Contracting

PET              Price Evaluation Team

PLCO            Plant Clearance Officer

PSC              Personal Services Contract

PWS             Performance Work Statement

RFP              Request for Proposals

RFQ              Request for Quotations

SBA                      Small Business Administration

SF                 Standard Form

SOW             Statement of Work


 

SSAC            Source Selection Advisory Council

SSA              Source Selection Authority

SSP              Source Selection Plan

SST               Source Selection Team

TEP              Technical Evaluation Panel

TET               Technical Evaluation Team

T for C          Termination for Convenience

T for D          Termination for Default

UCF              Uniform Contract Format

U.S.C            United States Code

14 FAH-2 H-125  THROUGH H-129 UNASSIGNED

UNCLASSIFIED (U)