Previously, the deadline was 180 days from the issuance of the action. The deadline for definitization is now no later than 180 days after the contractor submits a qualifying proposal.
On August 9, 2019, these changes went into effect. Last year, MoFo published an article about upcoming regulatory changes to UCAs. See, e.g., Fisher Sand & Gravel Co., B-417496, July 26, 2019, 2019 CPD ¶ 280 (challenging the award of an undefinitized fixed-price design-build contract). In litigation, UCAs are treated as any other contract award and can be challenged at the GAO on the same grounds.
UCAs are meant to be rare, and the DFARS permits the use of UCAs “ only when (1) the negotiation of a definitive contract action is not possible in sufficient time to meet the Government’s requirements and (2) the Government’s interest demands that the contractor be given a binding commitment so that contract performance can begin immediately.” DFARS 217.7403 (emphasis added). Although a UCA is required to include a schedule for definitization, that schedule may in practice be merely aspirational the GAO and the Department of Defense (DoD) have been critical of some agencies for allowing UCAs to exceed established definitization timeframes. And because UCAs are created due to urgent needs, the pace of the contract can shorten the timeline for negotiation. This can pose significant risks to the contractor because the government retains substantial leverage and can unilaterally definitize if negotiations fail. Aspirationally, the parties will mutually agree to all contract terms within the time set by the definitization schedule if, however, the parties fail to agree, the may unilaterally definitize the contract’s terms-including whatever price the Government deems reasonable-subject to the schedule and internal Government approvals set forth in regulation. These elements can includes terms, conditions, or even price however, the UCA must include a schedule that sets forth when any open terms of the UCA are to be definitized. UCAs, sometimes called “letter contracts” (see FAR 16.603-1), are used to create contracts with the government when one or more elements of a contract cannot be agreed upon, and there is an urgent need to begin production. Air Force expressed renewed interest in accelerating contract awards and in the use of Undefinitized Contractual Actions (UCAs) when appropriate.
The rapid spread of COVID-19, however, has required the government to use available tools to accelerate cash flow to contractors and the procurement of supplies and services. This emphasis on process, however, can slow the wheels of the acquisition machine. The federal contracting process is famous for its exacting approach to competitive procurement, which safeguards taxpayer funds and principles of fairness.
0 kommentar(er)
