Attachment J.6-COR-Appointment-Memo-with-Appendix-A.docx

ATTACHMENT J.6- CONTRACTING OFFICER REPRESENTATIVE MEMORANDUM

DEPARTMENT OF HEALTH & HUMAN SERVICES

Centers for Medicare & Medicaid Services 7500 Security Boulevard, Mail Stop B3-30-03 Baltimore, Maryland 21244-1850

MEMORANDUM

DATE: <Insert Date of Appointment>

FROM: <Insert Contracting Officer’s Name> Contracting Officer

SUBJECT: Contract HHSM-500-XXXX-XXXXXX with <Insert Contractors Name>, Appointment as Contracting Officer’s Representative (COR)

In accordance with Federal Acquisition Regulation (FAR) 1.602-2(d), the Contracting Officer (CO) shall “…Designate and authorize, in writing and in accordance with agency procedures, a contracting officer’s representative (COR) on all contracts and orders other than those that are firm-fixed price, and for firm-fixed-price contracts and orders as appropriate, unless the contracting officer retains and executes the COR duties.” This memorandum appoints you as the COR for the subject contract, in order to assist with technical monitoring and contract administration. Specifically, you are authorized to act on behalf of the Contracting Officer with respect to technical and administrative matters, within the scope of the contract referenced above, subject to the limitations set forth in Appendix A, Contracting Officer’s Representative (COR) Appointment Memorandum Duties and Responsibilities. This appointment replaces any previous appointments associated with subject contract.

Limitations: In accordance with the HHS Acquisition Workforce program policy, an appointed COR may not serve simultaneously as the Project or Program Manager on the subject contract. This appointment is also not further delegable by you to any other individual. However, you may receive input and guidance from other acquisition workforce team members and technical experts, in carrying out your duties and responsibilities.

Your appointment as the COR is an expression of confidence that you will accept the challenges and meet the demands, in such a manner as to reflect credit upon the United States of America and the Centers for Medicare & Medicaid Services. Your duties and responsibilities as a COR will provide you with an opportunity to use your experience and training in a most important position and imposes the strictest standards of conduct upon your activities.

FAC-COR Certification: As a COR, you are responsible for maintaining an active Federal Acquisition Certification COR (FAC-COR) certification, in accordance with the requirements of the Federal Acquisition Institute (http://www.fai.gov/drupal/) and the implementing HHS FAC-COR Handbook, throughout the duration of your appointment. Therefore, please provide the Contracting Officer with certification updates as they are received.

Duration of Appointment: The period of this appointment shall be from the date of this memorandum through the submission of all required close-out documentation to the Contracting Officer after the contract expiration date. If the appointment is superseded for any reason before completion of the contract, or if your FAC-COR certification is not maintained, you shall turn over all contract-related information in your possession at the time of revocation, to the successor COR or make other dispositions as directed by the Contracting Officer.

Standards of Conduct and Conflict of Interest: You are reminded that Government employment, as a public trust, requires that HHS personnel place loyalty to country, ethical principles and law, above private gain and other interests. In doing so, you must comply with the HHS Standards of Ethical Conduct and other CMS Ethics Rules and Regulations located at http://intranet.cms.gov/Component/OOM/Ethics/Regs.html. You are required to read and familiarize yourself with Appendix A, Contracting Officer’s Representative (COR) Appointment Memorandum Duties and Responsibilities, to ensure that in carrying out your responsibilities in your official capacity, you avoid any action which might result in, or reasonably be expected to create, the appearance of conduct prejudicial to the Government. You should not allow yourself to be placed in a position where conflicts of interest might arise or might justifiably be suspected.

Procurement integrity is also entrusted to you in your role as a COR and continues throughout the life of the contract. Therefore, you should not discuss procurement plans or any other information with the contractor that might provide preferential treatment to one company over another when a future solicitation is planned or issued for a competitive procurement.

Unauthorized Commitments: In carrying out your duties as the COR, you are reminded that in accordance with FAR 1.602-2 Responsibilities, the COR “…Has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract, or in any way direct the Contractor, or its Subcontractors, to operate in conflict with the contract terms and conditions.” Doing so constitutes an “Unauthorized Commitment.” FAR 1.602-3, Ratification of unauthorized commitments, defines an Unauthorized Commitment as “…an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government….”

Examples of unauthorized commitments are:

1. Orders placed with a Contractor without a valid contractual instrument in place.

2. Directing any Contractor to do additional work, in excess of the contract value, or work beyond the Period of Performance.

3. Authorize new work to a contract without notifying the Contracting Officer (CO) or Contract Specialist (CS) and having a modification in place for the new work.

4. Directing the Contractor, in any way that could change the terms and conditions of the contractual instrument or be deemed outside the Scope of the Statement of Work.

Unauthorized Commitments are a serious matter and may result in personal liability on the part of the employee who committed the Unauthorized Commitment. Ratification, as used in the FAR1.602-3, “…means the act of approving an unauthorized commitment by an official who has the authority to do so.” It is the Policy of CMS to prevent the occurrence of unauthorized commitments and to ratify only in limited circumstances (See Appendix B, CMS Policy, Ratification of Unauthorized Commitments).

The Federal contracting process has been designed to efficiently ensure the delivery of goods and services. However, factors may come into play that could suggest the presence of, or enhanced potential for, fraud and/or abuse at various stages in the contracting process. You are encouraged to become familiar with fraud and abuse indicators, in order to detect improprieties and to take appropriate actions to ensure the integrity of the contracting process. Please review the following helpful fraud and abuse prevention guides:

· DHHS policy website for the policy on Preventing and Detecting Fraud in HHS Contracting; and,

· Office of the Inspector General, Office of Investigations, has prepared a Fraud Indicators Handbook.

Your attention is now directed to Appendix A, Contracting Officer’s Representative (COR) Appointment Memorandum Duties and Responsibilities. Once you have read Appendix A, both you and your supervisor are required to sign and return this appointment memorandum to the Contract Specialist no later than five (5) business days after its receipt. Please keep a copy for your official records. You are also encouraged to review this memorandum’s contents often, as a refresher of your role and responsibility as a COR.

Any questions should be directed to the respective Contract Specialist.

Enclosures: <Insert Contracting Officer’s Name> Contracting Officer cc:

<Insert Contractor’s Name & Ctr. Program Manager’s Name - Be sure to send a copy of this memo to the Contractor’s Program Manager with Appendix A only – DO NOT send CMS internal policy docs – Ratification and Invoice/Voucher Policies. > <Insert CMS Project Manager’s Name, if applicable> <Insert CMS Program Manager’s Name, if applicable> Laura McManamy, OOM, Ethics Administration Office

Appendices:

Appendix A – Contracting Officer’s Representative (COR) Appointment Memorandum Duties and Responsibilities Appendix B – CMS Policy – Ratification of Unauthorized Commitments Appendix C – CMS Policy – Contract Invoice/Voucher Payments

CONTRACTING OFFICER’S REPRESENTATIVE (COR) APPOINTMENT ACCEPTANCE

COR:

I, <Insert COR’s Name>, hereby:

· Acknowledge that I received this appointment memorandum;

· Fully understand the scope of my designated responsibilities;

· Have no known conflicts of interest that would prevent unbiased direction to the contractor;

· Agree to the terms and conditions of this appointment; and,

· Agree to work within the limitations of my authority.

COR’s SUPERVISOR ACKNOWLEDGEMENT:

I hereby acknowledge that I fully understand the scope of the COR’s designated responsibilities.

APPENDIX A - CONTRACTING OFFICER’S REPRESENTATIVE (COR) APPOINTMENT MEMORANDUM DUTIES AND RESPONSIBILITIES

SUBJECT: Contract HHSM-500-XXXX-XXXXXX with <Insert Contractors Name>, Appointment as Contracting Officer’s Representative (COR) Special Note on Upcoming Changes to the Following Duties: OAGM is in the process of developing a CMS COR Manual. Once the manual is implemented, this Appendix A will be automatically superseded by the COR Manual (without modification to this appointment memorandum) as if it were provided in full text herein.

You, <Insert COR’s Name>, having been duly appointed as the Contracting Officer’s Representative for subject contract, the following duties and responsibilities are hereby delegated to you:

1. Contract Terms and Conditions: The COR must read and understand the subject contract in order to perform his/her duties efficiently and effectively. Any question about contract terms and conditions should be referred to the Contract Specialist or Contracting Officer immediately so that the following duties and responsibilities are clearly understood.

You are reminded that the COR is not empowered to, nor does he/she have the authority to, perform any of the following duties since, in accordance with FAR, they are reserved only for a CO:

a) Make changes to the contract terms and conditions,

b) Direct the contractor to perform work or make deliveries not specifically required under the contract,

c) Waive or relax the Government’s rights, with regard to the Contractor’s compliance with the specifications, price, delivery or any other terms or conditions of the task order; and,

d) Make any commitments or approve any actions that would create any financial obligation on the part of the Government.

2. Government Liaison: The COR shall serve as the primary liaison between the Contractor and the Contracting Officer[footnoteRef:1]. Care must be exercised to ensure that your statements or actions while participating in meetings, conferences, site visits or any other communications with Contractor representatives, cannot be construed by the Contractor as authority to alter the terms of the contract or perform any work not covered by the written contract. [1: For the purposes of this appointment memorandum, the term Contracting Officer shall also include the Contract Specialist, unless otherwise specifically indicated.]

3. Communication/Work with other Integrated Project Team (IPT) Members: The COR shall:

a) Provide the Contracting Officer and Project/Program Manager, as appropriate, with copies of all of your written correspondence from/to the Contractor, including electronic communications;

b) Coordinate with the respective Project and/or Program Manager, as applicable;

c) As requested by the Contracting Officer, provide him/her with technical assistance on contract-related matters (e.g., scope changes, option exercise, disputes, settlements, litigation, patent and copyright issues, final payment during closeout, etc.); and,

d) Work with the Contracting Officer, as necessary, on other administrative matters.

4. Technical Guidance/Monitoring: The COR shall be responsible for issuing technical guidance to the Contractor, which is within the scope of the contract, as written, in order to ensure proper development of requirements and assist Contracting Officers in managing their contracts. Although not all inclusive, the COR shall be responsible for providing technical guidance and oversight as follows:

a) Program Oversight: Provide general program oversight and direction, if no Project or Program Manager is assigned to the contract;

b) Quality Assurance - Perform, at a minimum, the following Quality Assurance responsibilities:

i. Accepting Deliverables: In accordance with FAR 46, Quality Assurance, and subject contract Section E, Inspection and Acceptance, you are hereby delegated responsibility for inspection, testing and acceptance of products and/or services delivered by the Contractor to the Government. This responsibility includes, at a minimum, review and acceptance of draft and final reports or other deliverables. Unless otherwise identified in the contract at Section E, you must accept or reject a deliverable within 30 days of its receipt. If rework is required, please notify the Contracting Officer immediately;

ii. Quality Assurance Surveillance Plans (QASP) – The COR is responsible for developing a QASP when a Performance Work Statement (PWS) or Performance Based Service Contract (PBSC) is awarded. A QASP defines measurable performance standards (i.e., in terms of quality, timeliness, quantity, etc.) and is a Government developed and applied document, used to provide a means for evaluating whether the contractor is meeting the performance standards/quality levels identified in the SOW/PWS and the contractor’s Quality Control Plan (QCP). It is a tool used to ensure that the government pays only for the level of services received. CMS is in the process of developing a standard QASP to be used. Until such time as CMS develops a QASP template, examples of QASPs can be found by searching the Internet for “Quality Assurance Surveillance Plans.”

c) Key Personnel: Monitor the Contractor’s use of key personnel and notify the Contracting Officer of any changes in key personnel proposed by the Contractor;

d) Communications with Contractors:

i. Telephone: Inform the Contracting Officer of substantive telephone or oral communications with the Contractor. The COR should document all substantive conversations and provide notes and/or summaries of them, as requested; and,

ii. Written Communications: It is possible that the technical direction that a COR provides could be misconstrued and could lead to Contractor performance that is not fully consistent with the terms of a contract. Therefore, technical guidance within the scope of the contract, as written, shall be “in writing” whenever possible and routed through the Contracting Officer prior to release to the Contractor. Where doubt exists as to whether proposed technical guidance is within or outside the scope of the contract, the Contracting Officer shall be contacted.

All technical guidance letters, including emails, shall conclude with the following statement:

“The above technical guidance is not to be construed as a change, or intent to change, the scope of the work under the contract. It is to be acted upon only if it falls within the general scope of the contract and sufficient funds are available. Your attention is directed to the contract, Section I, FAR 52.232.20, Limitation of Cost, and FAR 52.243-7, Notification of Changes.”

Technical guidance, which is not within the scope of the contract, as written, shall be forwarded to the Contracting Officer via a Request for Modification to the contract. The Request for Modification shall include, at a minimum, the following:

· Cover Memorandum (similar to the Request for Contract document) that highlights the requested changes;

· Statement of Work changes;

· Independent Government Cost Estimate, which identifies the cost of deleted work, the changed or new work, and the net difference; and,

· 393 for the required funding.

e) Subcontractors: Although not all inclusive, the COR shall perform the following subcontractor related duties:

i. Consent to Subcontract: Review the qualifications of proposed Subcontractors and the appropriateness of subcontracting contract work, and make recommendations to the Contracting Officer regarding consent to the placement of Subcontracts; and,

ii. Subcontractor Evaluations: As part of the annual performance evaluations, you will be asked to provide input on any subcontractors work. Therefore, please monitor the appropriateness of subcontractors work, to the extent possible.

f) Market Research: Review/Monitor industry standards to assess whether new or emerging technologies might be more appropriate for CMS requirements. If so, coordinate with the Contracting Officer for potential contract modification for changes to requirements;

g) Deliverable Distribution: Ensure proper distribution of final products and other information resulting from the contract; and,

5. Working Contract File: The COR shall maintain a complete working contract file for the assigned contract that will be turned over to the Contracting Officer for contract closeout at completion of the period of performance. Documentation shall be kept in electronic format, to the greatest extent practicable. The COR file shall include, at a minimum, the following:

· A copy of the Contracting Officer’s COR Appointment memorandum and other documents describing the COR’s duties and responsibilities;

· Copy of contract, delivery/task orders, and all respective modifications to them;

· List of Technical Monitors providing assistance to the COR;

· Written Correspondence: All written correspondence, including emails, between your office and the Contractor, is official correspondence. As a reminder, all technical direction shall be documented in writing whenever possible;

· Correspondence File: The COR shall be responsible for keeping a correspondence file of items submitted to, and received from, the Contractor. The correspondence file shall include, at a minimum, copies of technical guidance letters, emails and site visit records (See #7 below for additional information), etc. The correspondence file shall be retained by the COR for incorporation into the official contract file upon contract completion;

· Deliverables File: The COR shall be responsible for keeping the official contract draft, interim and final technical reports or other deliverables file, as well as documentation of acceptability/unacceptability of deliverables. In addition, the COR shall be responsible for keeping a deliverables log, which lists the date that the deliverable was received, as well as the date it was accepted by the Government. The deliverables list will also be very beneficial in preparing annual performance evaluations. The deliverables file will become a part of the official contract file upon completion of the contract;

· Contractor performance and evaluation reports (See #6 below for additional detail);

· Documentation of on-site visits at the Contractor’s facility (See #7 below for more detail);

· Copies of all invoices/vouchers and a payment record or invoice log indicating the balance of funds remaining (See #8 below for additional detail);

· Government Property records (See #9 below for more detail);

· Earned Value Management (EVM) information, if applicable (See #10 below for more detail);

· Any other pertinent materials or information relating to actions taken in accordance with the COR appointment letter;

· Contract closeout documents, as applicable, to include, but not limited to:

· Contract completion letter;

· Final invoice;

· Final Contractor performance or evaluation report; and,

· Award fee determination information, as applicable.

6. Contractor Performance: Contractor Performance oversight includes all of the following:

a) CPARS Evaluations: FAR 42.15 Contractor Performance Information, requires that the Contractor’s performance be evaluated and documented on an annual basis. The Contracting Officer shall provide annual performance evaluations to the Contractor as soon as practicable after completion of the evaluation period. The Contractor performance evaluations are a team effort. The COR, Contracting Officer and, where appropriate, end users of the product or service, all provide input for each annual evaluation.

The COR shall work with the Contracting Officer in order to complete and submit Interim and Final performance evaluations into the Contractor Performance Assessment Reporting System (CPARS). Both Interim and Final evaluations will be initiated by the Contract Specialist within 60 days following the end of each contract year and end of the contract period of performance respectively. You (COR) have 30 days, from the date the Contract Specialist sends the evaluation to you, for completion.

Caution: In no event shall performance information be released to other than Government personnel and/or the Contractor whose performance is being evaluated. Performance evaluations may be used to support future award decisions and, therefore, unauthorized disclosure of such information could cause harm both to the commercial interest of the Government and to the competitive position of the Contractor being evaluated.

Departments/Agencies shall share past performance information, in addition to CPARS evaluations, with other Departments/Agencies when requested to support future award decisions. The information may be provided through interview and/or by sending the evaluation and comment documents to the requesting source selection official. The COR shall cooperate with other Government Departments/Agencies when performance information is sought in support of future award decisions. At a minimum, the COR shall require that the request from another Department/Agency be submitted, in writing, before a response is provided.

b) Adverse Performance: Making timely reports to the Contracting Officer of any adverse performance indicators early, or when they are first discovered. There are several performance remedies available to the Contracting Officer, but not necessarily the COR. Therefore, early notification may allow for the appropriate corrective action to ensue before performance becomes beyond repair. And,

c) Other Acquisition Team Personnel: You may be in a position where you must rely on many other acquisition team members and technical experts (IPT) in order to perform your job successfully. Please work with the CO to ensure that the IPT members know and understand their role, responsibility and limitations. Be alert and report to the Contracting Officer and concurrently the program office, action or inaction by CMS personnel that may affect the:

i. Contractor’s ability to perform; and/or

ii. Inappropriate action with regard to the contract (e.g., any action that creates a conflict of interest on the part of the Contractor or causes the Contractor to perform inherently governmental functions).

7. Site Visits: When visiting the Contractor’s facility, a record of the visit, including the date, persons contacted and a summary of the visit, shall be prepared for the CO. Where practical, the site visit record shall be signed by all parties prior to the conclusion of the visit. All site visit memorandums shall conclude with the following:

“The results of this meeting are not to be construed as a change, or intent to change, the scope of the work under the contract. If you believe that the information provided constitutes a contract change, please notify the Contracting Officer in writing in accordance with FAR 52.243-7, Notification of Changes. ”

8. Invoices/Vouchers: The COR is required to thoroughly review and approve/reject Contractor’s invoices (fixed-price contracts) or vouchers (cost-reimbursement type contracts) invoices, including review of backup documentation submitted therein, in accordance with CMS Policy – Contract Invoice/Voucher Payments (Appendix C).

9. Government Property: In accordance with FAR 45, Government Property, and HHS Logistics Management Manual (LMM), Appendix Q - HHS Contracting Guide.pdf, located at https://web.archive.org/web/20111015044731/http:/www.hhs.gov/hhsmanuals/, the COR shall provide the Contractor with, monitor the use of, and report on Government-furnished property. Government Property administration assistance may be obtained by contacting the Office of Operations Management, as follows:

a) Tyrone Harris, contract Property Administrator; or,

b) Michael William, CMS Property Management Officer, Logistics Team Lead.

10. Earned Value Management (EVM): As required by the Office of Management and Budget (OMB) Circular A-11, Preparation, Submission, and Execution of the Budget, HHS investments will use EVM to monitor their cost, schedule, and performance. The HHS Office of the Chief Information Officer (OCIO) will ensure that all investments use an appropriate level of EVM as a management tool. If this contract is for Information Technology (IT) products or services and the contract requires EVM oversight, the COR shall follow, at a minimum, the procedures identified by the OCIO IT Earned Value Management Processes and Procedures located at http://www.hhs.gov/ocio/policy/2005-0004p.html for oversight. The HHS EVM Process and Procedures (EVMPP) explain how HHS IT Investment Managers and CORs are to receive, organize, analyze, and report cost, schedule, and performance of their investments in accordance with the HHS EVM Policy and HHS CPIC Policy.

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