2024: The FAR - Federal Acquisition Regulations, Part 50

Jennifer Schaus and Associates hosts a complimentary webinar series on The FAR in 2024. Join the webinars on Wednesdays and Fridays at noon, eastern.
Recordings are on YouTube and the company website.
https://www.youtube.com/@jenniferschaus/videos

1. 2024 Webinar Series The FAR: Federal Acquisition Regulations Understand the rules of the federal contracting game - and play to win ! J Schaus & Associates, WASHINGTON DC – [email protected]

2. 2024 Webinar Series THE FAR ABOUT THE SERIES : We’ll cover each PART of THE FAR Typically held Wednesdays and Fridays, 12pm Complimentary Recorded Video Posted on YouTube https://www.youtube.com/@jenniferschaus/videos PPT Posted on Slideshare.net Sponsor/Advertising Options Available J Schaus & Associates, WASHINGTON DC – [email protected]

3. 2024 Webinar Series THE FAR J Schaus & Associates, WASHINGTON DC – [email protected]

4. 2024 Webinar Series THE FAR J Schaus & Associates, WASHINGTON DC – [email protected]

5. 2024 Webinar Series THE FAR ABOUT US: Services for FED GOV CONTRACTORS: Washington DC based; Professional services for established gov cons; Market Analysis to GSA Schedules; Contract Administration, etc. J Schaus & Associates, WASHINGTON DC – [email protected]

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8. US SENATE – & - HOUSE OF REPRESENTATIVES Scheduled Hearings

9. Gov Con – “Summer Shorts” 2024 10 Complimentary & Recorded Webinars Monday, 8/12 – Friday, 8/23 12pm ET REGISTER + RECORDINGS: https://www.jenniferschaus.com/webinars

10. Gov Con – “Summer Shorts” 2024 Rapid Fire Webinars with Industry Leaders in Gov Con Monday - Friday@ 12PM ET Week 1 of 2: AUG 12- AUG 16 Teresa Moon Chelsea Meggitt Heather Teed Karen Long Dolores Kuchina -Musina

11. Gov Con – “Summer Shorts” 2024 Monday - Friday @ 12PM ET Week 2 of 2: AUG 19- AUG 23 Aubrey Gainfort Stephanie Geiger Shauna Weatherly Shirley Collier Judy Bradt Rapid Fire Webinars with Industry Leaders in Gov Con

12. Our Complimentary Webinars With APEX Accelerators

13. VA APEX ACCELERATOR - 2024 TRAINING EVENTS TUESDAY, AUGUST 6 th 1pm-3pm Marketing 101 For Federal Contractors: Attract The Primes, Attract The Government REGISTER: https://virginiaptac.ecenterdirect.com/events/4452 TUESDAY, NOVEMBER 12 th 9.30am-11.30am GSA Schedules: Requirements, Proposal Prep and – What’s Next REGISTER: https://virginiaptac.ecenterdirect.com/events/4456

14. MD APEX ACCELERATOR - 2024 TRAINING EVENTS THURSDAY, JUL 25 th 2024 10am-11am Kickstart Your Federal Marketing REGISTER: https://mdptac.ecenterdirect.com/events/15242 THURSDAY, DEC 5 th 2024 10am-11am GSA Schedules - What You Need To Know REGISTER: https://mdptac.ecenterdirect.com/events/15244

15. THURSDAY, NOVEMBER 14 th 12-1:30pm “ GSA - Part 1 of 2 - Making A Bid Or No Bid Decision ” REGISTER: https://urldefense.proofpoint.com THURSDAY, NOVEMBER 21 st 12-1:30pm “ GSA - Part 2 of 2 –Understanding Proposal Requirements ” REGISTER: https://urldefense.proofpoint.com TUESDAY, DECEMBER 3 rd 12-1:30pm “ Federal Marketing 101: Identify + Attract Prime Partners, Win Subcontracts ” REGISTER: https://urldefense.proofpoint.com LIVE WEB BASED TRAINING

16. 2024 Webinar Series - THE FAR THANK YOU TO OUR WEBINAR SPONSORS J Schaus & Associates, WASHINGTON DC – [email protected]

17. The FAR – Federal Acquisition Regulations - WEBINAR SERIES 2024 JSchaus & Associates – Washington DC – [email protected]

18. Your “one stop” shop for Government Contracting assistance: go.gmu.edu/ govcon Leverage our training calendar at VirginiaAPEX.org & useful links Register for free counseling: https://virginiaapex.org/services/counseling/ Reach us at [email protected] or 703-277-7750 This APEX Accelerator is funded in part through a cooperative agreement with the Department of Defense. Next Steps?

19. 2024 Webinar Series THE FAR THE FAR – PART 50 J Schaus & Associates, WASHINGTON DC – [email protected]

20. 2024 Webinar Series THE FAR FAR PART # 50: Extraordinary Contractual Actions And The Safety Act SPEAKER: Alejandro Sarria FIRM: Miller & Chevalier Chartered EMAIL: [email protected] J Schaus & Associates, WASHINGTON DC – [email protected]

21. FAR Subpart 50.1 - Extraordinary Contractual Actions Policies and procedures for entering into, amending, or modifying contracts in order to facilitate the national defense under the extraordinary emergency authority granted by Public Law 85-804 FAR Subpart 50.2 - SAFETY Act Implements SAFETY Act liability to promote development and use of anti-terrorism technologies 2024 Webinar Series THE FAR

22. FAR 50.1 - Extraordinary Contract Actions Public Law 85-804 : empowers the President to authorize agencies to enter into, amend, and modify contracts , without regard to other provisions of the law related to making, performing, amending, or modifying contracts, when the President considers that such action would facilitate the national defense Agencies with authority include DoD, Army, Navy, AF, DHS, NASA, and GSA Policy (50.101-2) : Authority may not (1) be used in a manner that encourages carelessness or laxity on the part of persons engaged in the defense effort, or (2) be relied upon when other adequate legal authority exists within the agency 2024 Webinar Series THE FAR

23. FAR 50.1 - Extraordinary Contract Actions Contract Adjustment Boards (50.102-2) : may be established with the authority to approve, authorize, and direct appropriate action under FAR 50.1 and to make appropriate determinations and findings Limitations on Pub. L. 85-804 Authority (50.102-3) - Must facilitate national defense - Other legal authority deemed to be lacking or inadequate - Does not obligate Government to an amount over $35 million without Congressional approval - Full and Open competition for contract award still required - No amendment or modification unless Contractor submits a request before all obligations under the contract have been discharged - Additional limitations apply to use of authority by persons below the level of deputy assistant agency head 2024 Webinar Series THE FAR

24. FAR 50.1 - Extraordinary Contract Actions Types of Contract Adjustment (50.103-2) Amendments without consideration : requires (1) contractor performance to be essential to the national defense, (2) a loss under the contract, and (3) the loss impair the contractor’s “productive ability” Example scenarios: -Fixed price contract, not typically subject to adjustment, hampered by supply chain issues/inflation - Government action unfairly interferes with performance, resulting in actual loss Correcting mistakes Formalizing informal commitments : to permit payment to persons who have taken action without a formal contract

25. FAR 50.1 - Extraordinary Contract Actions Request for Contract Adjustment (50.103-3) : Contractor will submit a request, typically a letter, to the contracting officer with the following information: Adjustment requested Essential facts Contractor’s conclusions as to why it believes adjustment is warranted Whether all contract obligations have been discharged and the status of any final payments If seeking an adjustment above the simplified acquisition threshold , the contractor will certify the request is made in good faith and all supporting information is accurate and complete Contracting officer may request additional information , including evidence supporting the contractor’s essentiality to the national defense

26. FAR 50.1 - Extraordinary Contract Actions Disposition (50.103-6) : When approving or denying a contractor’s adjustment request, the approving authority will sign a Memorandum of Decision containing: (1) contractor info, (2) description of supplies/services, (3) decision reached and associated cost, (4) justification for decision, and (5) a statement that the authorized action will facilitate the national defense Contract Requirements (50.103-7) : Any contract entered into, amended, or modified pursuant to subpart 50.1 shall contain a: - Citation to Pub. L. 85-804 and Executive Order 10789 - Statement of the circumstances justifying the action - Recital of the finding that the action will facilitate the national defense

27. FAR 50.1 - Extraordinary Contract Actions Indemnification: Pub. L. 85-804 also empowers the President to authorize federal agencies to indemnify contractors for unusually hazardous or nuclear risks that may arise during the performance of a government contract - What is an “unusually hazardous risk?” Indemnification under Pub. L. 85-804 generally available (1) if the contractor’s work will involve unusually hazardous or nuclear risks for which insurance is too expensive or unavailable, and (2) when granted such indemnity would facilitate the national defense Indemnification covers a broad range of claims including third-party lawsuits: (a) for death, personal injury or property damage, and (b) alleging contractor negligence, wrongful acts, omissions and even willful misconduct or lack of good faith

28. FAR 50.1 - Extraordinary Contract Actions Special procedures for unusually hazardous or nuclear risks (50.104-3) Contractor submits request for the indemnification clause, including statement of the unusually hazardous risks and how the contractor would be exposed to them - Request should be submitted shortly after contract award, preferably before performance begins Contracting officer, with assistance from legal counsel and cognizant program office personnel, reviews request and makes determination - If denied, CO must promptly notify contractor with reasoning - If approved, CO executes Memorandum of Decision, incorporating FAR 52.250-1 into the contract. Contractor may, with Government approval, indemnify subcontractors.

29. FAR 50.1 - Extraordinary Contract Actions Special procedures for unusually hazardous or nuclear risks (50.104-3) Tribunals generally lack jurisdiction to review agency decisions denying Pub. L. 85-804 indemnity, except when provided by contract. Pub. L. 85-804 indemnification provisions will be enforced once incorporated into a contract. Keys to securing indemnification : persuade the Government that (1) the contractor is delivering a product/service that is critical to national defense, (2) based on past experience, there is a material chance the contractor could be exposed to significant third-party liability, and (3) insurance and other forms of protection are either not available, too expensive, or too limited in coverage

30. FAR 50.2 – SAFETY Act Support anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act) Enacted to (1) encourage development and use of anti-terrorism technology, and (2) provide risk management and litigation management for QATT sellers Created liability limitations for claims arising out of, relating to, or resulting from an act of terrorism where QATT had been deployed Qualified Anti-Terrorism Technology (QATT) : any technology designed, developed, modified, procured, or sold for the purpose of preventing or deterring acts of terrorism or limiting the harm such acts might otherwise cause - Ex: screening services, venue security, detection systems, threat and vulnerability assessment systems

31. FAR 50.2 – SAFETY Act Scope (50.200) : Implements the SAFETY Act liability protections to promote development and use of anti-terrorism technologies Parties covered are referred to as “ sellers ” – include any person, firm, or other entity that provides a QATT to customers - Protection extends to users – claims may not be brought against the buyers, buyers’ contractors, or downstream users of the QATT

32. FAR 50.2 – SAFETY Act Two Levels of Liability Protection Designation : seller’s liability for products/services deemed “Designated Technology” is limited to the amount of liability insurance that DHS determines seller must maintain - Developmental Test & Evaluation Designation : for technology that is in prototype stage and shows potential, but more evidence of effectiveness needed - Full Designation : for technology with proven effectiveness Certification : (1) provides “Designation” protections , (2) allows seller to assert Government Contractor Defense for claims arising from acts of terrorism, and (3) “Certified Technology” placed on SAFETY Act’s approved product list for homeland security

33. FAR 50.2 – SAFETY Act Developmental & Test Designation Full Designation Certification Effectiveness Evaluation Needs more proof, but potential exists Proven effectiveness with confidence of repeatability Consistently proven effectiveness with high confidence of enduring effectiveness Liability Protection Liability cap, only for identified test events and for limited duration (less than 3 years) Liability cap, for any and all deployments made within 5 years Government Contract Defense for any and all deployments made within 5 years

34. FAR 50.2 – SAFETY Act SAFETY Act Criteria for Designation Prior Government use or demonstrated substantial utility and effectiveness Availability of the technology for immediate deployment Existence of extraordinarily large or un-quantifiable potential third-party liability risk exposure to the Seller Substantial likelihood that the technology will not be deployed unless SAFETY Act protection granted Evaluation of scientific studies that can be feasibly conducted to assess the capability of the technology to substantially reduce risks of harm SAFETY Act Criteria for Certification Designation Criteria and QATT must be shown to (1) perform as intended, (2) conform to seller’s specifications, and (3) be safe for use as intended

35. FAR 50.2 – SAFETY Act Policy (50.204) : - Agencies should encourage offerors to seek protections for their offered technologies , even in advance of the issuance of a solicitation - The DHS determination to extend SAFETY Act protections for a technology is not a determination that the technology meets, or fails to meet solicitation requirements Procedure Considerations (50.205-1) : - Requiring activities should review requirements to identify potential technologies that may be appropriate for SAFETY Act protections - Acquisition officials should consider SAFETY Act issues early in acquisition cycle

36. FAR 50.2 – SAFETY Act Pre-qualified designation notice (50.205-2) : If the requiring activity determines technology to be acquired may qualify for SAFETY Act protection, they are responsible for requesting a pre-qualification designation notice from DHS. - DHS will determine whether the technology affirmatively or presumptively satisfies criteria for SAFETY Act protection and will authorize offerors to submit streamlined applications for protection Authorization of offers contingent upon SAFETY Act protection (50.205-3) Authorization of awards made presuming SAFETY Act protection (50.205-4)

37. 2024 Webinar Series THE FAR THANK YOU FOR ATTENDING! FAR PART # 50: Extraordinary Contractual Actions And The Safety Act SPEAKER: Alejandro Sarria FIRM: Miller & Chevalier Chartered EMAIL: [email protected] J Schaus & Associates, WASHINGTON DC – [email protected]

38. 2024 Webinar Series THE FAR Please subscribe to our YouTube Channel for Gov Con Content Uploads including THESE WEBINARS! https://www.youtube.com/@jenniferschaus/videos J Schaus & Associates, WASHINGTON DC – [email protected]

39. 2024 Webinar Series The FAR: Federal Acquisition Regulations THANK YOU FOR JOINING US! J Schaus & Associates, WASHINGTON DC – [email protected]