Original discussion Question: Per the FARs, define what a contract is, and explain the elements of a contract. Additionally, what is the difference between “Common Law” and “Administrative Law”? Finally, why do we have a contract negotiation process? Post should be at least 250 words, MLA format. Use the attachments provided for research.
STUDENT 1 Reply:
The FAR defines a Contract as “a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them” (FAR 2.1). For the Government there are two types of contracting methods sealed bidding and negotiated. In sealed bidding the Government clearly states the requirments and bidders submit unequivocal bids. Only two types of contracts can to issued on sealed bids, fixed price and fixed price plus fee. Negotiated contract is awarded using other than sealed bidding procedures because one of the four conditions of sealed bidding has not been met. Time does not permit solicitation, submission, and evaluation, award will not be made on the basis of price and other price-related factors; it is necessary to conduct discussions with the responding offerors about their bids, There is a reasonable expectation of not receiving more than one sealed bid.
The elements of a contract according to the FAR
Table 14-1–Uniform Contract Format explains and list what should be included in a completed contract.
Part I — The Schedule
A. Solicitation/contract form- this is all advertisements and solicitation documents to include responses.
B. Supplies or services and prices- what supplies or services are being contracted and what are/ is the price
C. Description/specifications- Scope of work clear requirements
D. Packaging and marking- what the are the specification of what the product will look like
E. Inspection and acceptance- what are the inspections and acceptance guidelines
F. Deliveries or performance- what will be delivered and when
G. Contract administration data- how will the contract be managed and carried out who will oversee
H. Special contract requirements- anything special or unusual that needs to be noted
Part II — Contract Clauses
I Contract clauses
Part III — List of Documents, Exhibits, and Other Attachments
J List of documents, exhibits, and other attachments
Part IV — Representations and Instructions
K Representations, certifications, and other
statements of bidders
L Instructions, conditions, and notices to bidders
M Evaluation factors for award
(FAR Table 14-1)
The difference of common law and administrative laws
common law, arethe laws that arecreated by court decisions and followed by the public.
administrative laws are those passed by executive agencies.
Brown, B. (2010). Introduction to Defense Acquisition Management. Retrieved from http://www.dtic.mil/dtic/tr/fulltext/u2/a606328.pdf.
STUDENT 2 Reply:
Straight from the FARPart 2, Definitions of Words and Terms it states that, “ “Contract” means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications.” (FAR 2)
In order for contracting officers to prepare contracts for a successful bid they will use the elements listed and outlined below.
When looking at the offer section, which is listed in FAR 2.101, means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contact. A valid offer would have the intent, communication, complete terms and lastly a clear and unambiguous.
Acceptance of contract has requirements as well and they are follows; timely dispatched, clear and unequivocal and has a mirror image. The last element is consideration and this is something that both parties in the contract value from.
Common law and administrative law govern different parts of our society. The biggest difference is that common law is they are laws that have been obtained by old court issues. Meanwhile, administrative law are issued by the government and create and enforce new laws.
In my opinion, I think we have the contract negotiation process, so that everyone has the opportunity to solicit a bid, have the ability to compare, revise and get the best value of their contract.
STUDENT 3 Reply:
A contract must contain; 1) an offer, 2) acceptance, 3) consideration, and 4) competent parties in order to form a legally binding contract. If one of those elements are broken it might cause one of the parties to default on their original contractual agreement. Meaning, the parties no longer have a contract.
An example of an offer could be one party selling a Harley Davison for $7,000 or in other words, “I’m offering” to sell the Harley for $7,000. In other words, the person who is proposing the terms is the one making the offer and is considered the “offeror”. The offer isn’t just locked into commercially available items either. An offer can even exist in construction and service type contracts.For example, I will pay $100 for a person to mow the grass or $100 for a person to build a dog house.
The acceptance happens when the other party agrees to those terms and begins to act. The consideration (benefit) is what the other party agrees to and thinks is fair and reasonable for their efforts. Nothing stops the person from negotiating the terms into a more favorable condition before they actually accept the terms.
The fourth element is really important because it states that both parties have to be aware of what they are actually doing. The FAR states, “prudent” (wise) business man, but term is loosely used in my opinion. For example, in the UCC they call it the mercantile rule which means that a person has to some experience in the field to fall under this category. The prudent art, IMO, just makes it seems like they have to coherent enough to sign the contract while standing on two legs. Maybe it’s meant to be that way since it’s on the government side of the house.
Administrative is authority granted to the DOD to enforce the rules set forth in the FAR. For example, if a contractor doesn’t pay his people the correct wages. Contracting officials can make him do so under the administrative law set forth by the FAR. Common law, I think, is what happens when a contract is being disputed. Meaning the contracting office and the contractor can’t agree. The dispute would then make its way to the legal team and eventually up to the claims department if necessary.
A contract negotiation process helps both parties reach a fair and reasonable agreement that benefits both sides. If we negotiate there wouldn’t be a way to protect the tax-payers’ money. Meaning, we would just be forced into paying w/e the merchants/vendors thought was a reasonable price.