Contracts vs. Assistance: A Comprehensive Comparison of its Differences as Used in the International Arena

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2 Contracts vs. : A Comprehensive Comparison of its Differences as Used in the International Arena Breakout Session #: E13 Presented by: Rodney Matsushima, Fellow Date: July 23, 2013 Time: 2:30 3:45 Mohib Ahmed

3 Agenda vs. Introduction US Grant vs. Contract Spending Principal Purpose Comparison as s Overview Comparison by phases in the Lifecycle Relevant GAO Cases Conclusion Take Aways 2 2

4 Grantor Organizations There are 26 federal agencies that award both Instruments and Instruments More dollars are obligated on Instruments than on Instruments. The Top Three Grantor Agencies are: Department of Health and Human Services Department of Education Department of Transportation 3 3

5 US Grant vs. Contract Spending FY 13 4

6 U.S. Agency for International Development U.S. foreign assistance has always had the twofold purpose of furthering America's foreign policy interests in expanding democracy and free markets while improving the lives of the citizens of the developing world. Spending less than one-half of 1 percent of the federal budget, USAID works around the world to achieve these goals. In 1961, the Foreign Act was signed into law and USAID was created by executive order. 5 5

7 U.S. Agency for International Development Since 1961, USAID has been the principal U.S. agency to extend assistance to countries recovering from disaster, trying to escape poverty, and engaging in democratic reforms. Providing in five regions of the world Sub-Saharan Africa Asia Latin America and the Caribbean Europe and Eurasia Middle East 6 6

8 Defined by their Principal Purposa To ACQUIRE (by purchase, lease, or barter) property or services for the direct benefit or use of the U.S. Government. The TRANSFER of money, property, services or anything of value to the recipient in order to accomplish a Public purpose of support or stimulation authorized by federal statute. 7 7

9 Examples Purchase Orders Personal Services Contracts (PSCs) Contracts Indefinite Quantity Contracts (IQCs) Can be single or multiple awards Task orders Delivery orders Grants Cooperative Agreements Leader with Associate Awards Associate Awards Global Development Alliance (GDA) 8

10 Offer and Acceptance Eligible & Competent Parties Legal & Appropriate Requirement Exchange of Value Agreement on the Terms Fair and Reasonable Fair and Reasonable Phase 9 9

11 Nature Awardee Nomenclature Contractor Recipient Authority Constitution Specific Statutes Regulatory System Policies and Procedures Purpose FAR System (FAR/AIDARS) OFPP Purchase for Government s Direct Benefit or Use Code of Federal Regulations OMB, Agency Support or stimulate a Public Purpose Phase 10 10

12 Relationship Buyer-Seller Sponsor/Partner Government Involvement Varies with Type of Contract Limited Benefit Agency Public Profit Allowed Not Allowed Conflict of Interest/Ethics USAID s Role Purchaser/Client Donor/Funding Agency Phase 11 11

13 Specifications More Precise. SOW/PWS Desire Precise but many variables Public Notice FBO Grants.gov Announcement Competition Strict Rules for Posting Mandated by Statute (CICA) Required in Grants.gov Encouraged by Policy Award Instruments FAR Part 16 ADS 303 Types Suppliers/Vendors CCR CCR and Registered PVOs Cost Sharing Infrequent Often Phase 12 12

14 Offer Bid or Proposal Application Offeror Bidder or Offeror Applicant Form Response Date and Time Representations and Certifications OF308, SF26, SF33, SF1449 Firm Submission Date and Time, ORCA SF424 Firm Submission Date and Time Results More Specific Strive for results Phase 13

15 Use of Multi-Tiers Evaluation Criteria and Process Best Value Source Selection, but more objective Unsolicited Proposals Sole Source Justification FAR Exceptions, but more subjective Agency Exceptions Past Performance CPARS/PPIRS No Policy Requirement Branding and Marketing USAID Applicable USAID Applicable Phase 14

16 Cost Analysis Cost Realism Documentation Memorandum Memorandum Authority to Sign Contracting Officer Warrant Terms and Conditions FAR Clauses Officer Warrant Standard Provisions High Risk Awards Period of Performance Limit Close Post Award Monitoring 5 Years Unless by Statute Insert Special Provisions 5 Plus up to 5 additional 15 Phase 15

17 Forward Funding Severability of Work and Funds Advance Payment, Infrequent Mostly Severable Anti-Deficiency Act Applies Applies Protest Clear Process. Can be filled with USAID, GAO, the Court of Federal Claims, or the Federal District Courts 18 Months if over $2M Mostly Non-severable Officer s Final Decision 16 Phase 16

18 Responsibility Determination Award Announcement FBO Congressional Notification Grants.gov Audit Debarred List Excluded Parties List System (EPLS) Excluded Parties List System (EPLS) Debriefing Policy 17 Phase 17

19 Phase Form Technical Representative Post-award Orientation Conf Basis of Payment Timing of Payment OF347, SF26, SF1449 COR. Delegation Letter Usually Fixed Price or Rate, or Cost Reimbursement, Normally After Expense Incurred Letter Format AOR. Delegation Letter Costs Reimbursement, can be Advance or after expense incurred 18 Phase 18

20 Phase Government Property Real and Intellectual Sub-award Subcontractor Sub-recipient / Procurement Contract. Disputes and Appeals CO Final Decision may be Appealed to ASBCA or Court of Federal Claims Performance Remedies AO Decision may be Appealed within USAID Only 19 Phase 19

21 Phase Termination Rights Capture Lessons Learned For Default or for Convenience Optional by Agency Less Formal For Cause, Mutually, or Changed Circumstances More Formal Process Closeout Phase 20 20

22 vs. Summary and Instruments: Serve Different Purposes; Have Different Procedures; Carry Different Conditions; 21