Contracts, Agreements. What s the difference to the property manager? Mike Showers Asset Management Assistance, L.L.C.

Transcription

1 Contracts, Agreements. What s the difference to the property manager? Mike Showers Asset Management Assistance, L.L.C.

2 Agenda Legal Background Regulatory Background Property Requirements

3 Disclaimer I am not a representative of NASA or any Government agency. The following presentation does not reflect the views or official policy of NASA or any agency.

4 Types of Government Agreements Contract Cooperative Agreement CRADA NASA Space Act Agreement Grant

5 Legal Authorities and Requirements

6 Contracts - US Code Title 41 Federal Wide GSA Support development of common Federal policies and procedures Support Federal Procurement Data System (FPDS) Support the Federal Acquisition Institute Federal Acquisition Regulation Council Chief Agency Acquisition Council Cost Accounting Standards Board

7 Contracts US Code Title 41 Agency Responsibilities Cooperate with GSA Assign a Chief Acquisition Officer Meet mission needs through acquisition Monitor agency programs Manage agency acquisition career programs Increase competition and performance based contracting Make decisions in accordance with law, and authority Manage agency level policy Assign a Senior Procurement Official Many Requirements Related to Specific Contracting Actions in Title 41

8 Stevenson/Wydler 15USC3710(i) (i) Research equipment The Director of a laboratory, or the head of any Federal agency or department, may loan, lease, or give research equipment that is excess to the needs of the laboratory, agency, or department to an educational institution or nonprofit organization for the conduct of technical and scientific education and research activities. Title of ownership shall transfer with a gift under this section.

9 Examples of Agency Authorities DoD Variety of Authorities Different offices have their own authorities under 10USC Section 2241 Authorizes the expenditure of funds for Acquisition of services, special clothing, supplies, and equipment for active forces Example of specific authority to acquire items or services for Demining assistance Cryptologic support Geospatial purposes Joint warfighting experimentation Counter Drug Activities Pub.L

10 Examples of Agency Authorities Homeland Security 6USC112(b) Functions The Secretary (2) shall have the authority to make contracts, grants, and cooperative agreements and to enter into agreements with other executive agencies, as may be necessary and proper to carry out the Secretary s responsibilities

11 Examples of Agency Authorities Homeland Security Contracts (a) Authorization of Secretary Subject to the provisions of chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41, the Secretary is authorized to make, enter into, and perform such contracts, grants, leases, cooperative agreements, or other similar transactions with Federal or other public agencies (including State and local governments) and private organizations and persons, and to make such payments, by way of advance or reimbursement, as the Secretary may determine necessary or appropriate to carry out functions of the Secretary or the Department.

12 Examples of Agency Authorities NASA Space Act (c) Property.--In the performance of its functions, the Administration is authorized (1) to acquire (by purchase, lease, condemnation, or otherwise), construct, improve, repair, operate, and maintain laboratories, research and testing sites and facilities, aeronautical and space vehicles, quarters and related accommodations for employees and dependents of employees of the Administration, and such other real and personal property (including patents), or any interest therein, as the Administration deems necessary within and outside the continental United States;

13 Examples of Agency Authorities NASA Space Act (e) Contracts, Leases, and Agreements.--In the performance of its functions, the Administration is authorized, without regard to subsections (a) and (b) of section 3324 of title 31, to enter into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary in the conduct of its work

14 CRADA Cooperative Research and Development Agreement 15USC3710a. Each Federal agency may permit the director of any of its Government-operated Federal laboratories, and, to the extent provided in an agency-approved joint work statement or, if permitted by the agency, in an agency-approved annual strategic plan, the director of any of its Government-owned, contractor-operated laboratories (1) to enter into cooperative research and development agreements on behalf of such agency (subject to subsection (c) of this section) with other Federal agencies; units of State or local government; industrial organizations (including corporations, partnerships, and limited partnerships, and industrial development organizations); public and private foundations; nonprofit organizations (including universities); or other persons (including licensees of inventions owned by the Federal agency); and.

15 CRADA Property Considerations 15USC3710a. (b) Enumerated authority. (3) Under an agreement entered into pursuant to subsection (a)(1) of this section, a laboratory may (A) accept, retain, and use funds, personnel, services, and property from a collaborating party and provide personnel, services, and property to a collaborating party;

16 Regulation

17 Grants

18 OMB Uniform Guidance Supplies includes all tangible personal property that is valued less than (lessor of)- $5,000; or, The entities capitalization threshold Result Computers the physical objects are treated as supplies when they fall below the threshold Data and software are managed separately

19 OMB Uniform Guidance Insured the same as the entity s own property Federally owned property Federally owned property requires annual inventory list (no real change) Disposal is relatively unchanged Exempt property Terms and conditions of the grant award title to the property without further requirements or with limited requirements. Agencies must cite statutory authority to provide the property as exempt

20 OMB Uniform Guidance Equipment is conditionally titled to the awarded entity Must continue to be used for the program for which it was provided Must be used to support other Federal programs on a non-interference basis during the life of the program Preference to the awarding agency s programs Use on non-federal programs is allowed with appropriate user fees Cannot be less than normal private company charges for use Exchange or sale and use of proceeds is allowed

21 OMB Uniform Guidance Full records are required Biennial physical inventories are required LDD investigation and reporting, and appropriate maintenance are required Property valued under $5,000 can be retained without reporting at disposition Property over $5,000 must be reported

22 OMB Uniform Guidance Proceeds from disposition (Current Market Value X Government s part (percent) of the original cost) - the lesser of $500 or 10% Applied in reverse (minus the $500 or 10%) if the Government takes equipment titled to the entity or a third party If the Federal entity fails to take disposition action, they may direct the awarded entity to take disposition action

23 OMB Uniform Guidance Interesting other areas Financial reporting Could be required as frequently as quarterly Closeout reporting and actions Reports are as required by prior property sections Management and disposition are as required by prior property sections

24 OMB Uniform Guidance Supplies Title vests in the awarded entity on acquisition Residual inventory exceeding $5,000 in total aggregate value Must be used on other Federal awards if needed May be retained or sold if not needed for Federal awards Proceeds split as in equipment Same language on fees for non-federal use apply

25 Contracts

26 Contracts - FAR Property principally discussed in FAR Part 45 and the associated clauses FAR provides all of the basic property management requirements and outcomes FAR special clause applicable to fixed price contracts performed on a Government installation FAR discusses charges the contractor must pay should they wish to use property for commercial purposes and what must be done to obtain approval for use on other Government work Property requirements exist in other FAR Parts Property requirements under financed contracts in Part 32 and the associated clauses

27 Contracts Agency FAR Supplements NASA FAR Supplement (NFS) DoD FAR Supplement (DFARS)

28 NASA FAR Supplement Part 1845 and Associated Clauses NFS 1845 Redesigned in response to 2007 FAR change to reflect the division between instructions to the Government and instructions to the contractor 1845 contains Government instructions clauses contain instructions to the contractor

29 NASA FAR Supplement Part 1845 Policy for the CO regarding provision of Government property Specifies the use of NFS GP Clauses and Solicitation Provisions Talks about liability for Government property Speaks to the transfer of property from the Government to the contractor and back Solicitation and evaluation processes

30 NASA FAR Supplement Part 1845 Use and rental requirements for property for non- Government and other Government work Property Administration requirements and responsibilities Disposal Reporting Requirements Contract Property Closure

31 NASA FAR Supplement Associated Clauses Equipment Approval and Screening Rules for onsite contractors Liability for GP Furnished for Repair or Other Services Financial Reporting (1018) Identification and Marking of Government Property Property Management Changes

32 NASA FAR Supplement Associated Clauses/Provisions List of GP Furnished Pursuant to FAR List of GP Furnished Pursuant to FAR Physical Inventory of Capital Personal Property Records and Disposition Reports for GP with Potential Historic or Significant Real Value Government Property Management Information List of Available Government Property

33 NPD/NPR Requirements Onsite Contractors NPD/NPR 4100 Supply Policy and Procedural Requirements NPD/NPR 4200 Equipment Policy and Procedural Requirements NPD/NPR 4300 Disposal Policy and Procedural Requirements NPD/NPR 4500 Contract Property Policy and Procedural Requirements

34 Cooperative Research and Development Agreements CRADAs

35 NASA CRADA Policy NPD Authority to Enter into Cooperative Research and Development Agreements Cooperative Research and Development Agreement (CRADA) Program Information Package NAII CRADA manager must route for all approvals including center Supply and Equipment Management Officer for loans of equipment Loans in accordance with NPR NASA Equipment Management Procedural Requirements

36 NASA CRADA Process SEMO oversight HQ oversight if property value > or = $100K Loan Agreement Must Be temporary Benefit the Government Retain ownership rights Prohibits modification Be limited to one year, may be recertified, but existence must be verified in writing NASA records system must carry a suspense on expiration date

37 Space Act Agreements

38 NASA Space Act Agreements Authorization NASA Policy Directive NPD Authority to Enter Into Space Act Agreements Policy NASA Space Act Agreements Guide NAII C

39 NASA Space Act Agreements Types of Space Act Agreements Non-Reimburseable Both parties assume responsibility for their own costs, benefits both parties Reimburseable Partner pays for work NASA does for the partner s benefit Unique NASA resources may be made available Funded Agreement NASA provides funding to the partner International Agreement an entity outside the US under a foreign sovereign Umbrella agreements may be made that have multiple activities performed under individual annexes

40 NASA Space Act Agreements Processes Space Act Agreement Manager Prepares the SAA and routes it through appropriate approvals Space Act Agreement Manager (System that generates the document and records it) Some SAAs require HQ review International Large resource commitments Unusual circumstances

41 NASA Space Act Agreements Property Requirements for non-governmental Entities Done under loan agreements List of provided property Prohibition against using property as a substitute for property required by contract

42 NASA Space Act Agreements Property Requirements for non-governmental Entities Clause Requirements Partner must Install, operate and maintain the property at their expense Furnish all utilities and materials, e.g. fuel, needed to operate the equipment Bear all costs, e.g. installation, transportation, licensing, etc. Transport the property

43 NASA Space Act Agreements Property Requirements for non-governmental Entities Clause Requirements (Continued) Partner must Identify the property as NASA property Acknowledge that the property is provided as privilege where use is associated specifically with the agreement Maintain records and inventory the property annually Notify NASA of the inventory results Report any loss or damage to the property within 10 days Alternate may make partner responsible for loss or damage

44 NASA Space Act Agreements Property Requirements for Interagency Agreements Works in Both Directions List of Property Provided Other conditions same except no inventory requirement Report loss, damage, or destruction within 10 days Adds 60 day notice or expiration return requirement

45 NASA Space Act Agreements Property Requirements for International Agreements May be bi-lateral Special clause for ownership Ownership is retained unless agreed to in writing Prohibition against using property in lieu of acquiring property needed for performance of a contract Agreement to return property to the owning party Exceptions for destructive testing, launch Others are relatively the same

46 NASA Loan Agreement, NF terms and conditions in addition to loan term General Property loaned AS-IS Additions to equipment list require new agreement All communications in writing Language of this agreement supersedes all others Any changes require bilateral written agreement

47 NASA Loan Agreement, NF 893 NASA s Rights NASA Retains title NASA must have immediate access on request NASA determines reimbursement, repair, or replacement in case of LD&D, May exceed original value NASA may recall equipment with 5 days notice

48 NASA Loan Agreement, NF 893 Required Borrower Actions Inspect and report (inventory) on receipt, annually, and at termination or expiration Must notify NASA prior to any relocation Must meet all legal requirements associated with use LDD reporting required within 3 business days

49 NASA Loan Agreement, NF 893 Borrower Responsibilities Borrower assumes all costs for transport, assembly, storage, receiving, return, etc. Responsible for care, protection, and use Borrower fully LIABLE except normal wear and tear

50 NASA Loan Agreement, NF 893 Prohibitions Borrower may not loan, transfer, or redeliver to a third party No modification of equipment permitted without NASA approval

51 Questions??? Contact: Mike Showers Asset Management Assistance, L.L.C