a publication of - Xgility...Table of Contents Introduc/on ! !!!!!04 1. NonODisclosure!Agreements!(NDA)! !!!!05 2. Teaming!Agreements!(TA) ! !!!!!07 ! !! !!! 3. SubcontractAgreements

a p u b l i c a t i o n o f

http://www.xgility.com

http://www.gcpc.com

A Federal Contractor’s Guide Top 10 Federal Contract Management Concerns You Can Address

with Office 365 & SharePoint

As the director of produc/vity solu/ons, Kurt responsibili/es include developing partnerships to build solu/ons. These solu/ons help Xgility’s customers improve efficiency and automate manual processes. The solu/ons he architects for customers are based on technologies in the Microso@ ecosystem including Office 365, Azure, SharePoint LMS, DocuSign and Nintex. In addi/on, Kurt spends his /me building a company culture that supports the growth of the company by encouraging core values that serve the interests of our customers and employees.

Co-‐WriQen by Rocky Galloway CONNECT WITH ME www.gcpc.com

Co-‐WriQen by Kurt Greening FOLLOW ME ON TWITTER

@KURTGREENING

Rocky Galloway is Senior Counsel at General Counsel P.C., and leads the Government Contracts Prac/ce Group. Rocky counsels clients on legal issues that arise throughout the government procurement lifecycle, from proposal development to contract nego/a/on and execu/on. Areas of exper/se include government procurement with a specialty in small business programs (8a, SDB, SDVOSB, WO), regulatory compliance and risk analysis/mi/ga/on. Prior to joining General Counsel P.C., Rocky held leadership roles in legal, sales and opera/ons for HP Enterprise Services in support of its government services business.

http://www.gcpc.com

https://twitter.com/kurtgreening

Table of Contents

Introduc/on 04

1.  Non-‐Disclosure Agreements (NDA) 05

2.  Teaming Agreements (TA) 07

3.  Subcontract Agreements 09

4.  Consul/ng Agreements 10

5.  DCAA Audits 11

6.  DSS Audits 13

7.  Compliance with Government Paid Travel 14

8.  Organiza/onal Conflict of Interest (OCI) 15

9.  Work at Risk 17

10.  Project Labor Qualifica/ons (PLQ) 18

Conclusion 19

About Xgility 20

A Federal Contractor’s Guide | Top 10 Federal Contract Management Concerns You Can Address with Office 365 & SharePoint | 4

Introduction

Contracts and Subcontracts management is a integral enterprise business func/on that must operate each and every day without excep/on or incident. Seamless collabora/on, risk mi/ga/on, repor/ng in order to meet compliance and regulatory requirements are crucial, par/cularly when working with the government. Complete and concise management of contractual requests, review, approval, and repository of legal ar/facts and the corresponding internal policies/processes are mandatory for an enterprise.

Many organiza/ons are equipped with O365/SharePoint and know of it’s robust and capable document management database, but few know where to begin when it comes to leveraging their SharePoint plalorm as a comprehensive Contracts Management Lifecycle Solu/on (CMLS). From streamlining the contract management businesses process to leveraging real-‐/me and reportable insight into processes and performance, SharePoint comes with the ability to help federal contractors with the sophis/cated management needs.

This eBook will address the top 10 management concerns of Federal Contractors during the pre-‐award, post-‐award, and commercial services lifecycle. For each of the 10 key concerns, you’ll get an overview of what you need to be aware of and sugges/ons that can ensure your organiza/on operates efficiently and within best prac/ces. You’ll also receive ideas on how to use SharePoint technology to ensure compliance by using automated and repeatable processes.


Non-Disclosure Agreement (NDA)

Non-‐disclosure agreements help companies protect their proprietary

informa/on and trade secrets, which are some/mes the companies’

biggest assets. NDA’s are used at the beginning of a business

rela/onship as a precursor to formal business discussions where there

may be an exchange of proprietary/confiden/al informa/on.

When dra@ing and execu/ng non-‐disclosure agreements, companies

disclosing informa/on are interested in making the defini/on of

confiden/al informa/on very broad. On the other hand, the receiving

party’s interest is to make the defini/on very narrow in order to

reduce their likelihood of breach. A well dra@ed agreement will

balance the needs of both par/es and include permiQed disclosure

provisions.

Typically, the disclosing party should include provisions that require

the recipient to provide confiden/al informa/on on a need to know

basis to their employees with similar non-‐disclosure obliga/ons.

NDA’s commonly have terms of three to five years, depending on the

strategic value of the informa/on to the discloser and how quickly the

informa/on may become obsolete.

For ease of tracking, monitoring and compliance, non-‐disclosure

agreements would ideally be stored in a central repository (e.g.,

Sharepoint) accessible by appropriate employees of the company

responsible for those func/ons. This would facilitate consistency in

the terms of non-‐disclosure agreements executed by the company.

1

A well

dra@ed NDA

will balance

the needs of

both par/es

and include

permiQed

disclosure

provisions.


1. Non-‐Disclosure Agreements (NDA)

The NDA library would also provide a mechanism for tracking informa/on shared between the par/es and its disposi/on, which could be important in defending allega/ons of misappropria/on. As a best prac/ce requesters on non-‐disclosure agreements would fill out a form that would contain key metadata about the agreement. The metadata can be used to automa/cally generate the agreement.

2 | Non-‐Disclosure Agreement


Best Practice Have requesters of non-disclosure agreements fill out a form that would contain key metadata about the agreement. That metadata can be used to automatically generate the agreement.

Teaming Agreements (TA)

In a teaming agreement, a poten/al prime contractor (large or small business) agrees with one or more companies to have them act as its subcontractors under a specified Government contract or acquisi/on program. The teaming agreement provides the government customer with an integrated plan to deliver products or services by combining the complementary services/products of mul/ple companies. The services/products that each party will provide should be as specific as possible.

The teaming agreement should also assign du/es and responsibili/es for preparing the proposal (and associated costs). Most importantly, if the proposal submiQed by the team is successful, the teaming agreement imposes upon the par/es an obliga/on to nego/ate in good faith toward the execu/on of a subcontract if the proposal is successful.

Par/es nego/a/ng Teaming Agreements should protect their proprietary informa/on by entering into a nondisclosure agreement (“NDA”) and then include that NDA as an aQachment to the Teaming Agreement. As with NDA’s, teaming agreements should also be tracked in a central repository (SharePoint) with access granted to certain members of the organiza/on (e.g., contract professionals, execu/ve management, program management, and business development/capture

2

Is a teaming agreement binding?

Yes. Teaming Agreements are binding contracts and can be enforced in a court of law.



management). It will be important for these business professionals to understand the scope, restric/ons and term of their current teaming agreements as they pursue other business opportuni/es with the same customer and/or teaming partner. For example, although the term of a teaming agreement may have expired, there is o@en a different term associated with the nondisclosure of proprietary informa/on. In addi/on, the scope of work assigned under the teaming agreement and whether the rela/onship is exclusive or non-‐exclusive will be important informa/on to have in the decision-‐making process for future pursuits.

A well designed CMLS will allow contractors to enter data in once place and re-‐use throughout the CMLS. For example a TA or Subcontrac/ng agreement may use data previously entered to generate a NDA.

2 | Teaming Agreement


Subcontract Agreements

Subcontracts are binding contracts between the prime contractor and the subcontractor for a par/cular scope of work typically based on terms nego/ated in the teaming agreement (e.g., payment, work share). Subcontracts also contain certain “flow-‐down” provisions that seek to impose the same du/es on the subcontractor that the government imposed on the prime contractor. A subcontract can be fixed price, /me and materials, cost reimbursable, indefinite delivery/indefinite quan/ty (“ID/IQ”) and provide for a specific project or work based on issuance of task orders.

Subcontract management is essen/al to making sure that contractual obliga/ons are met by the prime (e.g., payment within /me specified) and the subcontractor (e.g., performance of the work). It is also important for resource alloca/on and compliance (e.g., mee/ng small business subcontract goals). Placing subcontracts in a central repository (e.g. SharePoint) with relevant metadata allows contractors easy access to documents and allows for repor/ng and aler/ng. For example, companies may want to set an automated alert for key personnel if an agreement is set to expire on a specific date. Many /me contracts department may a report containing all contracts associated with a specific customer, program or teaming partner.

3


Placing

subcontracts

in a central

repository

with relevant

metadata

allows

contractors

easy access

to docs and

repor/ng.

Consulting Agreements

A consul/ng agreement specifies the terms of the rela/onship between a consultant and his or her client, which may be a business or an individual, and provides legal safeguards for the par/es involved. These types of agreements can play a key role in business pursuits because they allow companies to procure specialized talent for projects of short dura/on without the expense and overhead associated with the hiring of employees.

When dra@ing and execu/ng a consul/ng agreement, dra@ers must pay aQen/on to the scope of engagement, which typically includes the type of work, period of performance, exclusivity, ownership and payment provisions. Many consul/ng agreements include non-‐disclosure and confiden/ality provisions that regulate the flow of proprietary informa/on.

4


U/lizing a centralized data management system to administer and track consul/ng agreements is vital for companies that work with mul/ple consultants. Not only will it help to standardize contractual terms, it will also provide data on the type of consul/ng work, quality of past services, and other informa/on regarding the companies’ engagement with each of its consultants.

DCAA Audits

“DCAA's major areas of emphasis include: (1) business systems, (2) management policies and procedures, (3) accuracy and reasonableness of contractors’ forward pricing and incurred cost representa/ons, (4) adequacy and reliability of records and accoun/ng systems, and (5) contractor compliance with contractual provisions having accoun/ng or financial significance such as the Cost Principles (FAR Part 31), the Cost Accoun/ng Standards (CAS) Clause (FAR 52.230-‐2), and the clauses pertaining to the Truth in Nego/a/ons Act (TINA) (FAR 52.215-‐10, -‐11, -‐12, and -‐13).

DCAA’s audits are generally limited to pricing ac/ons and contracts that fall under FAR Part 15, Contrac/ng by Nego/a/on. The extent of DCAA's involvement is determined by the type of contract that will be awarded. Generally, most DCAA efforts on firm-‐fixed price type contracts take place during the proposal stage rather than in the incurred cost stage. The reverse is true for cost reimbursable contracts. The allowable costs properly included in the final pricing of flexibly priced contracts are generally determined a@er they are incurred and audited. For addi/onal details on the types of Government contracts reference FAR Part 16.” Reference DCAA.

By automa/ng, process contractors have a record that demonstrates processes are followed. Using an Audit

5


http://www.dcaa.mil/audit_process_overview.html

Center in SharePoint brings all the audit ar/facts into a central loca/on where auditors can review copies of material specific to their audit and not interfering with on-‐going work. The other advantage to the audit center is that you give auditors access to what they need but not addi/onal informa/on that might cause addi/onal scru/ny. The features in SharePoint allow auditors to access data on or off site.


Best Practice Using Audit Center in SharePoint brings all the audit artifacts into a central location where auditors can review material specific to their audit.

5 | DCAA Audits

DSS Audits (Classified Contracts/Facility Clearances)

If you work with Department of Defense (DoD) classified contracts you will be audited by Defense Security Service (DSS), at some point in /me. DSS serve as an interface between the Government and cleared industry (or contractors) to ensure that the Na/onal Industrial Security Program Opera/ng Manual (NISPOM) is followed. Failing one of these audits while working on classified contracts isn’t an op/on and while the term “audit” typically makes a company’s cringe, a knowledgeable and prepared Facility Security Officer (FSO) should not have anything to fear if they are running a /ght security program at their organiza/on….and SharePoint can help.

Office 365/SharePoint can be used to break down the silos of informa/on that the FSO needs in order to successfully pass a DSS audit by providing /ght integra/on with Contracts (CAGE Code, Subcontractors, etc.), Facili/es, Training, Briefings, Debriefings, and of course document management of cri/cal security related documents, Classified Informa/on Nondisclosure Agreement (SF 312) tracking. Seamless integra/on of the appropriate informa/on with ensured appropriate accesses across these departments to support a DSS audit creates an environment for a successful audit without undue stress.

6


Compliance with Government Paid Travel

Government Contractors should have a Travel Policy that incorporates laws that must be followed in order to travel on behalf of a Federal Government contract. Two of the most important documents that must be followed in a Travel Policy are the Federal Acquisi/on Regula/on (FAR) and Federal Travel Regula/on (FTR). These documents contain the basic framework contractors need to follow.

By crea/ng an applica/on to pre-‐approve government travel, contractors can ensure that a travel request meet the terms of the contract and are compliant with federal guidelines. The experts at Xgility have created travel request forms in SharePoint that ensure compliance and significantly decrease the /me contractors are reimbursed for travel.

7


The two

necessary

documents

most o@en

used in the

crea/on of a

Travel Policy

are the

Federal

Acquisi/on

Regula/on

and Federal

Travel

Regula/on.

Organizational Conflict of Interest (OCI)

According to FAR.2.101, OCI is when a company/person, because of other ac/vi/es or rela/onships is unable or poten/ally unable to provide impar/al assistance or advice to the Government or might provide an unfair compe//ve advantage. So it’s important to iden/fy and either stop pursuing the opportunity or develop a mi/ga/on plan in order to con/nue to pursue the opportunity.

Key was to deal with OCI: •  Avoid – Prevent the occurrence of an actual or poten/al OCI through ac/ons such as excluding sources or elimina/ng a segment of work from a task to eliminate the poten/al for an OCI. •  Neutralize – Negate poten/al or actual OCI related to contractor objec/vity during contract performance, or an unfair compe//ve advantage. Specific ac/ons would include encouraging/facilita/ng support contractor recusal,

8


Key to being able to miOgate risk against OCI…

Have a system that /es all of the data and metadata associated with the company’s contracts together.

excluding/severely limi/ng support contractor par/cipa/on in source selec/on ac/vi/es, and otherwise barring access to compe//ve sensi/ve data. •  MiOgate – Reduce or alleviate the impact of unavoidable OCIs to an acceptable level of risk so that the Government’s interests to fair compe//on and/or contract performance are not prejudiced. •  OCI MiOgaOon Plans – A contractor


Designs an OCI Mi/ga/on Plan which proposes ac/ons to iden/fy and reduce actual or apparent OCIs to an acceptable level as approved by the JAG and Contrac/ng Officer. The analysis of possible conflict, their significance, and risk to the company and Government must be thoroughly or well documented.*

SharePoint provides the perfect plalorm for coordina/ng across mul/ple business units to iden/fy OCI issues, collaborate on the mi/ga/on plan and then store the plan for future reference….and /e it all into the contract when it’s awarded. The key to being able to mi/gate risk against OCI is to have a system that /es all of the data and metadata associated with the company’s contracts together. These electronic systems allow contracts professionals a view into all poten/al OCI issues allow them to quickly take appropriate ac/on.

*Taken from Defense Procurement and Acquisi/on Policy

8 | Organiza/onal Conflict of Interest


http://www.acq.osd.mil/dpap/ccap/cc/jcchb/html/Topical/coi.html

Work at Risk

In the past it has been common for contractors to perform work as risk. In most cases contractors do this while wai/ng for new task orders on a government contract. Systems designed in SharePoint by the experts at Xgility can help protect against risk created by this scenario in two ways. First, by closely tracking the funding le@ on task orders program managers will be able to work with contrac/ng officers to provide early no/fica/on and in order to limit work at risk. Second, if task order data is stored in SharePoint execu/ves and program managers can receive reports of the sum total of all risk as work done by the contractor and help use that to beQer understand their poten/al exposure.

9


Best Practice Store task order data in SharePoint so funding left can be closely tracked to limit work at risk and generate reports with the sum total of all risk as work done by the contactor to analyze current exposure.

Project Labor Qualifications (PLQ)

If your company is working a contract that requires that employee’s must meet specific labor qualifica/ons (i.e.educa/on, cer/fica/ons, years of specific experience, etc.) it’s cri/cal that you’re able to ensure each employee is reviewed and approved across mul/ple departments (Human Resources, Contracts, Project Manager, etc.) to reduce the risk of assigning an unqualified employee to a contract. Cross-‐departmental review and assessment of labor qualifica/on reduces that likelihood that the contractor will have to repay the government as a result of a DCAA audit.

SharePoint provides all the necessary tools out of the box to process, track and report on Project Labor Qualifica/ons by Contract, Program, Project Code, etc. across all the departments involved in processing Project Labor Qualifica/ons. Audits are simple to prepare for as you simply have to send the Labor Qualifica/on form to the Audit Center for the DCAA or internal auditors to review along with the other contractual, financial and project ar/facts. In addi/on, all Project Labor Qualifica/on forms are associated with the appropriate contract making them easy to locate.

10

What should our department track in order to stay compliant with Project Labor QualificaOons?

Educa/on Cer/fica/ons Years of Experience Trainings


Conclusion

Like most organiza/ons, your company already has SharePoint or can quickly set up SharePoint in the Microso@ cloud plalorm known as Office 365 -‐ it therefore should be on your short list as a Contract Management Lifecycle Solu/on. By conduc/ng envisioning sessions with the Xgility team, we can collec/vely assess the opportuni/es for you to beQer leverage SharePoint or Office 365 to allow for complete and concise management of contractual requests, review, approval, and repository of legal ar/facts and their corresponding internal policies/processes. To or schedule an envisioning session or to review some of our predefined templates contact Xgility at [email protected].


Based in Dulles, VA, Xgility serves a variety of government clients, government contractors and associa/ons. Xgility’s solu/ons are focused on design, development, deployment and training for SharePoint Collabora/on & Workflow Solu/ons. As a result of our years of work with government contractors, we have developed exper/se, methodologies and templates that we use to help contractors manage the full contracts life cycle, from capture to close out. In addi/on, we offer:

•  Database and BI Capabili/es •  Managed services including Office 365 and Azure •  Solu/ons for a mobile workforce

XGILITY, LLC | 44258 Mercure Circle, Suite 102B, Dulles, VA 20166 | [email protected] | 888-‐944-‐5489


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Documents

a publication of - Xgility...Table of Contents Introduc/on ! !!!!!04 1. NonODisclosure!Agreements!(NDA)! !!!!05 2. Teaming!Agreements!(TA) ! !!!!!07 ! !! !!! 3. SubcontractAgreements