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FHWA Order 4410.1

Order
Subject
Appointment and Training Policy for an FHWA Cotnracting Officer's Technical Representative
Classification Code Date Office of Primary Interest
4410.2 December 22, 1999  

  1. PURPOSE. This Order establishes appointment policy and minimum training standards for employees assigned duties as a Contracting Officer's Technical Representative (COTR).

  2. BACKGROUND. The Federal Highway Administration (FHWA) depends upon its program management community to support mission-critical acquisition functions. FHWA relies on its COTRs to ensure that these acquisitions yield the highest quality products and services for the agency. To ensure that COTRs have the necessary training to fulfill their responsibilities, and in accordance with the Transportation Acquisition Manual (TAM) 1201 and 1242, and Departmental policy on DOT Core COTR Training Standards, issued under TAM Note 00-01, as a supplement to Chapters 1201 and 1242, FHWA has established the following COTR appointment policy and minimum training standards.

  3. APPLICABILITY. This policy applies to employees appointed as COTRs on all FHWA contract awards subsequent to December 31, 1999. See paragraph 5c for applicability to current and/or recently trained COTR's.

  4. APPOINTMENT PROCEDURES. Contracting officers shall appoint COTRs in accordance with TAM 1242.7004. Appointment of COTRs will be made in writing by the contracting officer responsible for administering the contract and documented through the issuance of a COTR Letter of Appointment. The Letter of Appointment will delineate the responsibilities and limitations of the COTR's authority. The COTR is required to sign, date, and return the Letter of Appointment Acknowledgment and Certification before assuming COTR responsibilities. By signing the Letter of Appointment, the prospective COTR will certify that they understand and accept their assignment as a COTR, that they have fulfilled all training requirements, and are otherwise eligible for appointment.

  5. TRAINING REQUIREMENTS

    1. General Training. COTRs appointed after January 1, 2000, who are not otherwise determined to have met the general training requirement (see paragraphs 5c and 5d.), shall take 24 hours of COTR training comparable to the requirements listed in the DOT COTR Training Standards. Unless otherwise exempt, the general training requirement must be fulfilled on or before December 31, 2000, as an initial implementation phase. After this initial period, all COTRs, not otherwise determined to have met the general training requirement, must fulfill the required training within three months of appointment. The Director, Office of Acquisition Management, will identify training that is considered appropriate for fulfilling the general training requirement and will notify prospective COTRs of training sources in the Letters of Appointment and/or other appropriate communications.

    2. Refresher Training. All COTRs, regardless of date of appointment, must obtain four (4) hours of refresher training annually. The Director, Office of Acquisition Management, will identify training that is considered appropriate for fulfilling this requirement and will identify training sources in the Letters of Appointment and /or other appropriate communications.

    3. Employees Appointed/Trained as COTRs Subsequent to January 1, 1998. Employees appointed as COTRs whose appointment was subsequent to January 1, 1998, and prior to January 1, 2000, are determined to have met the general training requirement outlined in paragraph 5a. Additionally, employees who have completed comparable training, as determined by the Director, Office of Acquisition Management, subsequent to January 1, 1998, and prior to January 1, 2000, are also determined to have fulfilled the general training requirement. All employees, regardless of previous appointment or training status, are required to fulfill the refresher training requirement in accordance with paragraph 5b .

    4. Waiver. Employees with exceptional experience and demonstrated knowledge of the basic training material may be exempted from the basic training requirement by the Director, Office of Acquisition Management. Requests for exemptions from the basic training requirement shall be made in writing by the supervisor of the individual seeking the exemption, and endorsed by the Program Manager or SBU Director. The request for exemption shall cite the specific circumstances justifying the exemption, such as demonstrated knowledge and years of experience, comparable training, or other compelling circumstances. The request for exemption shall be made directly to the Director, Office of Acquisition Management. Exemptions will be issued in writing and cite the specific circumstances justifying the exemption.

  6. MONITORING SYSTEM. COTRs shall self-certify that they have fulfilled the basic and refresher training requirements as a condition of their appointment. If a COTR does not meet the required basic or refresher training requirements, the COTR will certify that the required training will be completed within 90 days of appointment. The certification shall be documented and signed by the COTR on the Letter of Appointment issued by the contracting officer and maintained in the official contract file. COTRs are responsible for maintaining documentation recording the fulfilment of both basic and refresher training, including timely updates to FHWA's Training Management System (TMS). Periodic reviews of TMS will be conducted by the Director, Office of Acquisition Management to ensure the integrity of the self-certification program.

George S. Moore signature

George S. Moore, Jr.
Director of Administration


DOT Core COTR Training Standards

  1. General COTR Training:

    • Orientation - Develop a general understanding of the Federal procurement system including:

      • process,

      • organization,

      • management,

      • statutory and regulatory foundation,

      • contracting authority,

      • role of electronic commerce,

      • roles and responsibilities of all parties, and

      • standards of conduct.

    • Work Package - Understand components of the work packages, which include developing:

      • purchase requests,

      • program plans,

      • surveillance plans,

      • contract-type recommendations,

      • detailed and accurate cost estimates,

      • comprehensive market research skills (including documentation),

      • schedules and milestones, and

      • developing concise and accurate statements of work to include:

        • performance-based contracting methods,

        • compliance with all Executive Orders and statutes regarding environmental contracting requirements,

        • task order contract requirements,

        • instructions, conditions, and notices to offerors, and

        • evaluation factors for award.

    • Contracting for Services - Develop understanding of:

      • contracting for inherently governmental functions,

      • personal services,

      • requirements of the Service Contract Act, and

      • DOT policy on the acquisition of services.

    • Managing grants, cooperative agreements, and interagency agreements.

    • Financial Management - Understand the basic tenets of contract financial management and appropriations law including:

      • Anti-Deficiency Act,

      • partial payments,

      • withholdings,

      • award fees structures, and

      • "Limitation of Funds" and "Limitation of Cost" clauses.

    • Government Property -

      • identify the correct policies and procedures given the type of property at issue (e.g., material, special tooling and test equipment, facilities, or agency-peculiar property),

      • understand the property accounting system for contractor-acquired property and Government-provided property.

    • Postaward Orientation - Assist in the postaward presentation to the contractor regarding rights, duties, and milestones of both parties that affect performance.

    • Contractor's Performance - Monitor actions for:

      • constructive changes,

      • excusable delays,

      • performance problems,

      • other potential breaches, and

      • other problems that may impact the performance/delivery requirements and other compliance issues.

    • Inspection and Acceptance -

      • Inspect all deliverables and determine and document acceptance.

      • Understand the "Inspection" clause.

    • Past Performance - Document past performance information fairly and validly characterize the contractor's actual performance.

    • Modifications -

      • understand justifications for other than full and open competition,

      • provide technical evaluation sufficient to support a determination if a change is not outside the scope of the contract, and

      • understand the "Changes" clause and the types of contract modifications that will best satisfy the requirement.

    • Options - Recommend exercising an option within the time frame established in the contract and only when the option represents the most advantageous offer that in all likelihood would be available from the market.

    • Delays -

      • Correctly distinguish delays that are beyond the contractor's control and are without the fault or negligence of the contractor.

      • Assist contracting officer in negotiating reasonable consideration.

    • Stop Work - Assist the contracting officer in issuing a stop work order, when necessary.

    • Claims -

      • Correctly determine the validity of the claim and prepare a proper and complete report.

      • Protect the Government's interests while treating the contractor fairly and equitably within the terms of the contract. Understand the "Disputes" clause.

    • Remedies - Recommend the remedy that will best minimize the impact of the contractor's performance problems on the requirements, delivery schedule, and cost.

    • Termination - Understand termination situations and procedures.

    • Payment -

      • authorize appropriate payment,

      • understand agency policies and the Prompt Payment Act, and

      • understand the tools available to assist COTRs in this effort.

    • Closeout -

      • Correctly dispose of records.

      • Complete closeout within the time frames of the Federal Acquisition Regulations (FAR) 4.804-1.

    • Ethics -

      • understand procurement integrity requirements,

      • understand how to manage new procurements while working with the incumbent contractor, and

      • understand conflicts of interest.

  2. Refresher Training:

    The COTR refresher training requirements shall consist of instruction on new procurement regulations, changes to agency regulations, or new procurement practices. This requirement can be fulfilled through classroom study, conferences, seminars, or any other type of instruction designated by the Director, Office of Acquisition Management. COTRs are required to attend a minimum of four (4) hours (or equivalent) of refresher training annually.


COTR LETTER OF APPOINTMENT (Sample)

Subj: Appointment as a Contracting Officer's Technical Representative
From: (Insert name of contracting officer)
To: (Insert name of prospective COTR)

In accordance with Transportation Acquisition Regulation (TAR) 1252.242-73, you are hereby appointed as the Contracting Officer's Technical Representative (COTR) under Contract No. (Insert number) with the (Insert the name(s) of the contractor(s)) for (Describe the supplies, services, or construction being purchased). As the COTR, your primary duty is to monitor the contractor's performance to ensure that all of the technical requirements under the contract are met by the delivery date or within the period of performance, and at the price or within the estimated cost stipulated in the contract. An outline of your duties and limitations, as applicable to the contract you will be monitoring, are attached as a general guide. Your particular attention is required to the provisions under Federal Acquisition Regulation (FAR) Part 3 and TAR 1203, relating to standards of conduct and conflict of interest, and the non-disclosure of procurement related information.

In the performance of the duties delegated to you in this letter, you are cautioned that you could be held personally liable for actions taken or directions given by you to the contractor that are beyond the authorities given to you in this letter. The duties or authorities in this letter are not delegable; therefore, you must advise the Contracting Officer, (Insert name of Contracting Officer) or the Contract Administrator/Specialist (Insert name of Contract Administrator/Specialist) immediately when you are unable to perform these duties.

In accordance with FHWA Order 4410.2, dated December 22, 1999, employees are required to fulfill certain training requirements before serving as a COTR on any FHWA contract. These training requirements include 24 hours of general COTR training, and four (4) hours of annual refresher training. In accordance with the FHWA Order, the Director, Office of Acquisition Management has identified the following training opportunities as fulfilling these training requirements:

General Training: XXXXXX

Refresher Training (FY 00): XXXXX

Other training that you believe fulfills the training requirements, or exemption from the training requirements, must be approved by the Director, Office of Acquisition Management.

Please acknowledge receipt and acceptance of this appointment by signing and returning the attached COTR Acknowledgment and Certification sheet to the contracting officer or contract administrator/specialist. Your appointment as the COTR under the above numbered contract is terminated upon receipt of a written notice of termination from the appointing contracting officer, the contracting officer's successor, or a higher level of authority. Please direct any questions you may have on this delegation to the contracting officer or contract administrator/specialist.

(Typed name and signature of the Contracting Officer)

2 Attachments


COTR Acknowledgment and Certification

I understand and accept my assignment as the Contracting Officer's Technical Representative (COTR) under Contract No. (Insert contract number) as outlined in your letter to me dated (insert date of contracting officer's letter). I also certify that I meet the training requirements for appointment as an FHWA COTR, including the prescribed general and annual refresher training, and am otherwise eligible for appointment as COTR on this contract, in accordance with TAM 1242.70.

_______________________________________
Name of COTR
_______________________________________
Date
_______________________________________
COTR Title and Routing Code
 

Or

I understand and accept my assignment as the Contracting Officer's Technical Representative (COTR) under Contract No. (Insert contract number) as outlined in your letter to me dated (insert date of contracting officer's letter). I certify that I am aware of the training requirement for appointment as an FHWA COTR, including the prescribed general and annual refresher training, and will complete the required training within 90 days of the date of this certification, in accordance with TAM 1242.70, and will provide evidence of such to the contracting officer upon completion.

_______________________________________
Name of COTR
_______________________________________
Date
_______________________________________
COTR Title and Routing Code
 


Summary of COTR Duties and Limitations

MONITORING PERFORMANCE.

Ensure that the contractor complies with all of the requirements of the statement of work, specifications, or performance work statement, and when requested by the contractor, provide technical direction to the contractor's technical manager. This technical assistance must be within the scope of the contract (e.g., interpreting specifications, statement of work, performance work statement, etc.). When a difference of opinion between you and the contractor occurs, notify the contracting officer or the contract administrator/specialist immediately for resolution.

Ensure that the personnel being used by the contractor are of the same caliber that was originally proposed by the contractor to the Government. The experienced personnel contracted for and/or approved by the Government should not be diluted by the use of personnel with less experience. However, you may not permit changes, substitutions, or additions to personnel. Any decrease in or lack of performance shall be brought to the attention of the contracting officer or contract administrator/specialist.

You will also be required to complete the attached "Evaluation of Contractor's Performance Sheet" within 30 days after the contractor has met all terms and conditions of the contract.

Note: This form shall not be used for construction and architect-engineer contracts (see (FAR) 48 CFR 36.604).

MONITORING COSTS.

Review and evaluate the contractor's progress in relation to the expenditures. When the costs expended by the contractor are not commensurate with the contractor's progress, bring this to the attention of the contracting officer or contract administrator/specialist for immediate action.

Review the contractor's invoices/vouchers for reasonableness and applicability to the contract and recommend to the contracting officer either approval, conditional approval, or disapproval for payment. The review must be completed within five days after receipt of the invoice or voucher. If you cannot meet the required review time, advise the contracting officer or contract administrator/specialist so that action can be taken to ensure Government compliance with the Prompt Payment Act, thereby avoiding the payment of interest penalties to the contractor.

CHANGES TO THE CONTRACT.

You cannot authorize the contractor to stop work, and you are not authorized to delete, change, waive, or negotiate any of the technical requirements or other terms and conditions of the contract. Should a change (monetary or otherwise) to the contract become necessary, it must be made by a contract modification issued by the contracting officer. When in doubt, contact the contracting officer or contract administrator/specialist.

Any contract change requested by the contractor must be put in writing by the contractor to the contracting officer for action; however, you should immediately advise the contracting officer or contract administrator/specialist of the proposed change since it may affect the contract price, cost, or delivery/performance schedule. When the proposed change is received by the contracting officer, you will be required to provide the contracting officer with a written analysis and rationale for the change and to evaluate any costs associated with the change.

You must also recognize and report to the contracting officer any Government-required changes to the contract (e.g., items or work no longer required, changes in the specifications, etc.).

VISITS AND MEETINGS WITH THE CONTRACTOR.

Make arrangements with the contractor for periodic visits to the contractor's plant or place of business to: (1) evaluate the contractor's performance; (2) evaluate changes in the technical performance affecting personnel, the schedule, deliverables, and price or costs; (3) inspect and monitor the use of Government property, if applicable; and (4) ensure that contractor employees being charged to the contract are actually performing the work under the contract. A trip report fully documenting all activities during the visit must be written and a copy provided to the contracting officer within three working days after the visit.

Document the file to record each meeting and telephone conversation with the contractor. A daily log book is recommended that should reflect the date, time, name, and title of individual(s) involved, the subject matter, and the details of the meeting or conversation.

INSPECTION OF CONTRACT ITEMS.

When notified by the contractor or the contracting officer, perform, in accordance with the terms of the contract, inspection, acceptance or rejection of the supplies, services, or construction. Immediately notify the contracting officer of all rejections and the reason for the action.

Review progress reports from the contractor and advise the contracting officer of any contractor problems or action required to be taken by the Government.

STANDARDS OF CONDUCT AND CONFLICT OF INTEREST.

The attached (FAR) 48 CFR Part 3 and (TAR) 48 CFR Part 1203/TAM Chapter 1203, Improper Business Practices and Personal Conflict of Interest, provides guidance to avoid improper business practices and personal conflicts of interest and to deal with their apparent or actual occurrences. Please read these documents very carefully and contact the contracting officer should you require further information or clarification on this subject matter.

CONTRACT FILE CONTENT AND MAINTENANCE.

Establish and maintain an organized contract administration file to record all contractor and Government actions pertaining to the contract. The COTR's file is of particular importance, for the documentation of your interaction with the contractor may be used in the event of litigation. In addition, an organized file facilitates an easy transition from one COTR to another if reassignment becomes necessary. The file(s) should be organized as follows:

(1) File 1 - The contract instrument (i.e., contract modifications, task orders, delivery orders, and the contractor's proposals applicable to these documents).

(2) File 2 - The COTR's delegation letter, and all correspondence between the contractor and the contracting officer, filed in chronological order.

(3) File 3 - A copy of the contractor's invoices/vouchers and any correspondence pertaining to the payments.

(4) File 4 - The COTR's trip reports and written memoranda to the file on telephone conversations or other meetings with the contractor.

(5) File 5 - A copy of the contractor's progress reports and other contract deliverables, and all correspondence pertaining to these documents.

The size of the contract may not warrant a separate folder for each file. If less than five folders are used, the sections must be tabbed to segregate each file.

EVALUATING PERFORMANCE.

Within 30 days after the contractor has met all terms and conditions of the contract, you must evaluate the contractor's performance (see the Electronic Acquisition Reference Library) using the attached evaluation form, which must be returned to the contract administrator.

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