Contracting Questions and Answers

Are there any contracting procedures available to expedite the contracting process for Emergency Watershed Protection measures?

Standard Federal acquisition procedures already exist which enable NRCS acquisition professionals to properly respond to procurement requests for Emergency Watershed Protection Program (EWP) measures. These procedures are called the Simplified Acquisition Procedures (SAP), and are covered in Part 13 of the Federal Acquisition Regulation (FAR). The Agriculture Acquisition Regulation (AGAR) Part 413 supplements the FAR. SAP applies to purchases that do not exceed $100,000.

A warranted contracting officer (CO) follows these procedures for purchases with an estimated value of between $25,000 and $100,000:

• Develop a written Request for Quotation.
• Electronically upload the RFQ or synopsis notice to FedBizOpps.
• Solicit written quotations from a sufficient number of vendors to promote competition to the maximum extent practicable.
• Receive and analyze written quotations.
• Issue a purchase order to the contractor offering the best price.
• Notify the successful contractor in writing to proceed with the work.

These procedures can be completed in less than 30 days. The CO should plan the procurement after consulting with the other EWP Team members. The actual time period will vary depending on the urgency of the situation, complexity of the work, and other factors.

The CO follows the same procedures as above for purchases with an estimated value of less than $25,000, with the exception of uploading the RFQ to FBO.

Do contracting procedures for EWP differ from other contracting procedures?

Non-Federal contracting methods for installation of recovery measures are available to NRCS, and should be considered and discussed with project sponsors. These options include force account, performance of work, and locally led contracting. Complete descriptions of these methods are in the National Contracts, Grants, and Cooperative Agreements Manual.

Have contracting procedures changed? It appears that we lost an option to expedite EWP projects by replacing the term exigency with urgent and compelling. Didn’t exigency allow NRCS to award contracts with less than full and open competition in light of the need to conduct the EWP work immediately?

It is important to understand the terminology from both the EWP Program side and the acquisition side. The proposed EWP rule eliminates the term “exigency” and “non-exigency,” and defines a new term called “urgent and compelling.” Also, the rule changed the time frame within which urgent and compelling work must be completed to five days.

Acquisition regulations are not tied to these EWP Program terms. Periodically amendments are made to the acquisition regulations, and many of these are minor. However, one major change was the Federal Acquisition Streamlining Act of 1994 (FASA), Public Law 103-355. This act raised the threshold for a single procurement under Simplified Acquisition Procedures from $25,000 to $100,000.

Many of our EWP projects are completed under contracts valued at $100,000 or less. Some of our projects that have an estimated value of less than $100,000, are classified as “urgent and compelling situations.” Contracting officers can arrange for installation of such EWP work immediately using procurements that are developed and awarded under the current acquisition regulations. This is done without hindrance of the more complex regulations applicable to procurements estimated to exceed $100,000. The following is provided as an example.

A flood event is threatening the elementary school. The site is determined to be eligible under the program. Team members evaluate the situation and determine that the placement of rock riprap will prevent the school from being undermined and destroyed.

The EWP Team estimates the work will cost $80,000, and prepares a simple drawing. The county agrees to serve as the project sponsor, and an agreement is executed on site. Several local contractors are contacted and invited to come and view the site. The contractors are provided with a drawing and a basic request for quotation form.

They are asked to provide a written quotation within thirty minutes for performing the work. A contracting officer evaluates the quotations immediately. He verbally advises the contractor offering the lowest price to commence the work, and that a written purchase order will follow. The work is completed in two days.

Under the above cited example we are able to properly alleviate the threat at this urgent and compelling site. Alleviation of the immediate threat enables NRCS to design a more permanent solution if necessary, and contract for the permanent solution in a manner that the acquisition regulations can support.

Is the “less than full and open competition” contracting guidance previously issued still in effect?

What contracting methods are available to address urgent and compelling sites less than $100,000? What features does this offer? How fast can a contract be awarded?

A CO follows the same procedures for urgent and compelling situations with the following minor changes:

• Solicit verbal quotations from a sufficient number of vendors to promote competition to the maximum extent practicable.
• Verbally advise the contractor offering the best price that a written purchase order will follow.
• Verbally notifies the contractor to proceed with the work.

A purchase order can be issued within hours using these procedures.

Note: The steps above do not include a step for synopsizing the procurement in FBO. The requirement to publicize is not waived. A CO would have to weigh the individual risk and make a conscious decision to skip that step under urgent and compelling procedures. A CO has no duty to knowingly violate the FAR requirements. NRCS may want to consider seeking a waiver of the FBO synopsis requirement after the EWP language and rule is finalized to protect contracting officers in these situations.

What is the minimum number of days to award a Federal contract for work that is not urgent and compelling? (Give days for each phase.)

The following is an example of a project with the work having an estimated value of more than $100,000, using the following assumptions:

• CO has prepared the complete solicitation (invitation for bids-IFB).
• No amendments to the IFB are necessary during the 30 day period.
• There are no mistakes in bids by bidders.
• There are no protest of the solicitation or the award by interested parties.

The above example assumes ideal circumstances. Unfortunately, that is rarely the case for procurements conducted under any program. A minimum time frame of 50-60 days is probably more realistic.

What are the advantages of local contracting with project agreements?

NRCS staff can spend more time on the many other tasks that are required of them.

Funds can be obligated when a project agreement is executed rather than when a contract is signed by the CO.

What are the advantages to having a single State Agency sponsor EWP work?

It is important to examine the scope of the event that caused the emergency before deciding if it is advantageous to sign an agreement with a single state agency. For example, with a major or presidentially declared disaster covering a region or multiple county area, it may be more efficient to sign one agreement. With a small event we may want to sign agreements with individual sponsors.

We must operate under our legal authorities, but we must also think through our options very carefully to ensure we have maximum flexibility and efficiency.

What are some general “tips” to compress the contracting period that can be taken in advance of a natural disaster event?

• Develop and maintain a good working relationship with all program, technical, and other administrative members of the EWP Team.
• Develop and maintain both electronic and hard copies of typical and non-typical agreement, solicitation, and contract documents. This will ensure they are ready for use immediately when a disaster is declared.
• Maintain the AGCAS software with current updates.
• Utilize the “master package” method when appropriate. With this method, a master, standard, or generic solicitation package is prepared and issued once to prospective contractors.

It contains all of the standard clauses, provisions, and other information that is applicable to all project sites and contracts. A separate or supplemental package containing the drawings, specifications, and any other information that is unique for a specific site, is issued to prospective contractors when we are ready to solicit a contract for that site.

It can be used when numerous contracts are planned for the same area or watershed. The master package is incorporated by reference in subsequent solicitations.

• Develop a good relationship with the U.S. Small Business Administration Office Representative serving your area to identify and maintain a list of good qualified Section “8(a)” contractors.

Not only can NRCS negotiate contracts with 8(a) certified firms very quickly and without regard to the competition requirements of our acquisition regulations, we can earn credit toward the agency’s annual procurement preference program goals.

Can we advertise a contract before the sponsor receives all necessary permits? If so, should we use any specific language in the contract to address the fact that the work may change or may not be able to start as soon as the contract is awarded?

• National Contracts, Grants, and Cooperative Agreements Manual, Sections 514.35 and 511.3
• National EWP Manual, Section 502.11 (b)
• National EWP Handbook, Section 605.00(h)

A solicitation cannot be advertised before all landrights are acquired and a project agreement is executed. To do so is a violation of the above policy.

If there is a valid requirement for a delayed notice to proceed, all potential quoters and/or bidders should be notified of this through the inclusion of FAR Clause 52.211-10, Alternate I. In the case of locally led contracts, the sponsor should include similar language.

In addition, it is improper to advertise a solicitation and encourage potential vendors to spend their time reviewing our work requirements and/or visiting a work site, if we do not have a valid fund availability certification for the estimated amount of the project, or we do not know if we will definitely solicit quotations or bids.

Where can I find written contract information that applies to EWP?

All warranted contracting officer can access the appropriate Federal, Agriculture, and NRCS Acquisition Regulations. In addition, contracting officers can electronically access web sites and resources that are necessary to properly solicit, award, and administer EWP contracts.

Contact your CO who will be glad to share this information and answer any questions. Additional assistance is available from the contract specialist in your regional office and procurement analyst in NRCS National Headquarters.

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