Federal Contract Negotiation

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Federal Contract Negotiation

• Russell Brewer
• Director, Office of Sponsored Programs
• Baylor University
• http//www.baylor.edu/osp
• Russell_Brewer_at_baylor.edu

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Overview

• Solicitation
• Exceptions
• SBA Plans
• Reps and Certs
• Award Types
• The FAR
• Terms and Conditions
• Classified Research

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Solicitation

• RFP Request for Proposals
• RFQ Request for Quotation
• RFB Request for Bid
• Read, Read and then Read Again

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Solicitation

• Understand key differences between a government
  procurement action (contract) and a financial
  assistance (grant)
• Costs and statement of work must be clearly
  defined
• Need to clearly understand the sponsors needs
• Must know the type of sponsor and the realm that
  you are entering into

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Solicitation-Exceptions

• A detailed and well thought out set of exceptions
  can make life much easier
• Clearly define the objection and give alternate
  language whenever possible
• If time does not permit, state in the cover
  letter that due to time constraints, exceptions
  will be sent under separate cover
• Good to give some idea of what they might expect
  in the exceptions
• Even providing a summary list of the issues is
  good so that the contracting officer will know
  what the issues are going to be

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Solicitation-Exceptions

• Issues to address
• Tracking of time (hourly, time cards?)
• Intellectual property and data rights
• Publications restrictions
• Use of foreign nationals
• Re-performance of work (inspection and acceptance
  clauses)
• Commercial terms
• Classified Research

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Solicitation-Subcontracting Plan

• Subcontracting Plan
• Required on contracts over 500,000
• Percentage to disadvantaged businesses
• Tough to comply when all costs are university
  labor and supplies
• Requires reports
• Failure to comply could result in breach

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Solicitation-Reps and Certs

• Required on contracts
• Multiple pages
• Read very carefully
• Will be incorporated into the contract

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Award Type

• Contract
• Subject to negotiations
• Solicitation/Offer/Award
• Most critical to get right at proposal stage
  since there will be little chance for changes
  once award is made

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Award Type

• Basic Ordering Agreement
• Terms are negotiated for life of agreement and
  all subsequent work issued under
• Task Orders issued under master agreement
• Proposal done for each task

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The FAR

• Must understand the FAR and how its structured
• Competing FARs (DFAR, DOE Supplement to FAR, DOD
  Supplement)
• Often conflict
• Commercial FAR terms 52.212-4
• Develop a good FAR grid and keep it updated
• Some are self deleted and not work arguing over
• Others must be addressed

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Terms and Conditions

• Sponsor and university both have interests to
  protect
• Often the two are different
• Concern that acceptance of terms may set a
  precedent for future contracts
• Hurry up and wait

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Terms and Conditions

• Read the award very carefully!
• Resist the temptation to scan it since you have
  worked with the sponsor and contracting officer
  before
• Understand your institutions risk level and what
  will be a show stopper
• Respond with a detailed set of exceptions just
  like at the proposal stage

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Terms and Conditions

• Considerations
• Fixed price or cost reimbursable
• Termination provisions
• Ownership of equipment
• Cost principles
• Inspection and acceptance
• Intellectual property
• Publication

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Terms and Conditions

• Considerations-Continued
• Foreign nationals
• Drug Testing
• Security requirements
• Subcontracts
• Indemnification
• KEEP LINES OF COMMUNICITON OPEN WITH PI

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Classified Research

• Must decide if your institution will conduct
  classified research
• Sponsors generally not interested in discussing
  terms favorable to universities
• Publication and employee restrictions
• Loss of fundamental research exemption
• Could prevent faculty member from being able to
  conduct future research in same area
• Is one award worth the long term risks (501 c3
  status)
• Impact on students

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Questions