14 FAH-2 H-560
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
officers 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 officers 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
officers 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 officers
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 officers 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 officers 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