of GOVERNMENT CONTRACT FINANCING?

Transcription

1 CONTRACT GOVERNMENT PROPERTY Is It JUST A DIFFERENT FORM of GOVERNMENT CONTRACT FINANCING?

2 PERSPECTIVE! I m the one that s half-empty! I m the one that s half-full! It s all a matter of It s all a matter of perspective!

3 PERSPECTIVE! SAME MOON SAME MOON It s all a matter of perspective!

4 A THOUGHT!!!

5 MORE THOUGHT!!!

6 What Started the Thinking? a question of liability for Loss, Theft, Damage, Destruction of GP from DoD Class Deviation 2010-O0003, Responsibility and Liability for GP, Feb 12, 2010 DFARS Case 2010-D018 - Proposed New Rule for Responsibility and Liability for Government Property

7 What Started the Thinking? Both the Class Deviation and the Proposed DFARS Rule wish to EXTEND the limited risk of loss to ALL fixed-price contracts meaning that virtually it ALL contract t GP would be provided idd with limited risk of loss to the steward SO?

8 What Started the Thinking? GFP (Government has pure title) provided to a contractor under ANY type of fixed-price contract would be conveyed with LIMITED RISK- OF-LOSS in the event of LTDD Yet, Progress Payment inventory, under the same fixed-price contract (where the Government has what s characterized as impure title(?) or lien(?)) carries FULL-RISK- OF-LOSS up to the amount of unliquidated progress payments!

9 SO I concluded that Repayment of contract financing IS AN ABSOLUTE Return of GFP not so much!

10 So it got me to thinking What if GP were REALLY nothing more than a differing form of Contract Financing? THIS instead of $$s? Why do we relieve stewards of liability for stuff we own and provide them,,yet hold them liable for stuff they generate using contract financing that is of less clear title?

11 So What Exactly is Contract Financing? Contract Financing is used to pay suppliers, laborers, or other intermediaries for goods or services (HFF Captial definition) Contract financing payments are authorized Government disbursements of monies to a contractor t prior to acceptance of supplies or services by the Government. (FAR definition)

12 So What Exactly is Contract Financing? 1. tr.v. fi nanced, fi nanc ing, fi nanc es 1. To provide or raise the funds or capital for: financed a new car. 2. To supply funds to: financing a daughter through law school. (The Free Dictionary) 2. noun 1. the act of obtaining or furnishing money or capital for a purchase or enterprise. (Dictionary.com) 3. Providing the necessary capital. (InvestorWords.com)

13 What Exactly is Capital? Investopedia definition of Capital What Does Capital Mean? (1)Financial assets or the financial value of assets, such as cash. (2)The factories, machinery, and equipment owned by a business and used for operations and production. Investopedia explains Capital Capital is an extremely vague term, and its specific definition depends on the context in which it is used. In general, it refers to financial resources available for use: working capital.

14 What Exactly is Capital? Wikipedia has an insightful take Financial capital vs. real capital - Financial capital or just capital in finance and accounting, refers to the funds provided by lenders (and investors) to businesses to purchase real capital equipment for producing goods/services. Real Capital or Economic Capital comprises physical goods that assist in the production of other goods and services, e.g. shovels for gravediggers, sewing machines for tailors, or machinery and tooling for factories.

15 What Constitutes Government Contract Financing? Content from Theresa A. Stevens, NASA heresa A. Stevens, NASA Professional Intern Program (PIP) Level II Presentation, Non-Commercial Item Purchase Financing, FAR Subpart 32.1, was used in several of the following slides

16 What Constitutes Government Contract Financing? Contract Financing is a Payment It is an authorized Government disbursement of monies to a contractor prior to acceptance of supplies or services by the Government Contract Financing Payments Do Not Include: Invoice Payments Payments For Partial Deliveries Lease And Rental Payments

17 Contract Financing When? It is in the best interest of the Government. Why? It may be the demand of the market and without it the Government may not be able to meet the requirement.

18 Conditions for Contract Financing Only to the extent actually needed for prompt p and efficient performance Administer to aid the acquisition, not impede it Avoid any undue risk of monetary loss to the Government Include the form of contract financing deemed to be in the Government s best interest t in the solicitation it ti Monitor the contractor s use of the contract financing provided and the contractor s financial status

19 Risks In establishing contract financing terms, the contracting officer must be aware of certain risks When the Government decides to finance a procurement, it assumes both repayment and non-performance risks

20 Mitigate Risks Repayment Risks can be mitigated by using security provisions in the solicitation and clauses in the contract Nonperformance risks can be minimized by selecting the appropriate contractor and assuring that the financing method fits the procurement Repayment and nonperformance risks can be considerably lowered by requiring security

21 Types of Security The offeror s financial i condition is a type of security Paramount lien on specified assets (PPI or PBP Inventory) Irrevocable letters of credit from a Federally insured financial institution A bond from an acceptable surety Other assets described in FAR parts , , and

22 Types of Financing for Non-commercial Items Order of Preference Private Funding without a Govt Guarantee Customary Contract Financing Performance-based Payments Progress Payments Loan Guarantees Unusual Contract Financing Advance Payments

23 Performance-Based Payments Performance-based payments are customary contract t financing i payments made on the basis of: Performance measured by an objective, and/or quantifiable method Accomplishment of defined event(s) Other quantifiable measures of results

24 Progress Payments Based on Cost Progress payments based on costs are made on the basis of costs incurred by the contractor as work progresses under the contract.

25 Progress Payments Based on a Percentage or Stage of Completion Authorized only for construction, shipbuilding and ship conversion, alteration or repair Basically the contractor does 25% of the work and is paid for that 25%, up to a cumulative amount of no more than 80% of the contract price for large businesses, 85% for small businesses and 90% for a small disadvantage business

26 Unusual Contract Financing Any contract financing arrangement that deviates from customary contract financing is unusual contract financing Unusual contract financing shall be authorized only after approval by the head of the agency

27 Determine Whether to provide for financing in the solicitation Requirement Starts the process YES What does the market bare? Is it necessary? What are the risks? Can they be mitigated? Is it in the best interest to the government? NO If YES determine whether to restrict its availability to small business concerns Select a Method of Financing Justify the Selected Method If NO select and incorporate nonfinancing provisions in the solicitation Incorporate provision to solicit financing terms from offerors in the solicitation , Invitation to propose financing terms

28

29 Maybe maybe not APPLES VERSUS ORANGES? Let s look at FAR 45, Government Property and some of the similarities to as well as dissimilarities from FAR 32 Contract Financing

30 Some Commonalities? WHEN TO PROVIDE WHY TO PROVIDE CONDITIONS FOR PROVIDING RISKS CONSIDERATIONS IN PROVIDING RISK MITIGATION SECURITY

31 Commonalities FINANCING versus GP? Remember this slide from earlier in the presentation? When? It is in the best interest of the Government. Why? It may be the demand of the market and without it the Government may not be able to meet the requirement. Isn t GP provided for the same reasons? Look at FAR 45 as well as the DoD PGI

32 WHEN/WHY do we PROVIDE GP? Cost Reimbursement Contracts Fixed Price Contracts With Cost Reimbursement Line Items Non-competitive Fixed-price Contracts Competitive Contracts Contracts with Non-profits Authorized Government Supply Channels Created Special Tooling Created Special Test Equipment Repairables Transferred Stuff Found on Post (FOP) Hand-Carried-By-Engineer (HCBE)

33 WHEN/WHY/CONDITIONS/RISK - PROVIDE GP? (a) Contractors are ordinarily required to furnish all property necessary to perform Government contracts (b) Contracting officers shall provide property p to contractors only when it is clearly demonstrated (1) To be in the Government s best interest; (2) That the overall benefit to the acquisition significantly outweighs the increased cost of administration, including ultimate property disposal; (3) That providing the property does not substantially increase the Government s assumption of risk; and (4) That Government requirements cannot otherwise be met.

34 WHEN/WHY/CONDITIONS/RISK - PROVIDE GP? Economy Will Government Property permit a lowest cost/price alternative? Standardization di ti Is there a critical need for precise replication that t would be better assured with the provision of GFP? Security Is the Government the ONLY source for a sensitive item necessary to successful execution of a contract? Expedite Production Will Government Property be crucial to the processes culminating in successful timely or accelerated delivery of a supply item or service? Scarcity of asset Is the Government able to obtain scarce items where a contractor cannot? Maintain the industrial base Does the Government need to insure future capability to obtain a particular supply or service? Support small business Does the development and sustainment of small business warrant the provision of GFP? Contract type If Government Property is provided will we be able to write a more Government favorable contract type such as a Fixed Price versus a Cost Reimbursement contract?

35 WHEN/WHY/CONDITIONS/RISK - PROVIDE GP? Demonstrate that the overall benefit to the acquisition significantly outweighs the increased cost of administration, including property disposal. Demonstrate that providing the property does not substantially increase the Government s risk. Document why the furnishing of Government property is critical and significant to meeting acquisition plan objectives. g g q p j

36 RISK MITIGATION - PROVIDE GP? Property Management Plan submittal? Pre-award Survey? Acceptable Property Management System? Property Management System Audit?

37 Security - PROVIDE GP? Asset Ownership (as in TITLE)! Careful Possession has sometimes trumpted TITLE!!

38 But there are some important differences Risk-of-loss $ Financing is secured by the WIP itself as well as other asset collateral Loss (LTDD) of such WIP results in FULL RISK-of-LOSS GP is generally unsecured (FAR clause conveys limited R-of-L) Loss (LTDD) of unsecured GP GENERALLY results in RELIEF of LIABILITY!

39 But there are some important differences Financial System surveillance versus Functional System surveillance Monitor the contractor s use of the contract financing provided and the contractor s financial status Loss ratio Liquidity Establish a PMS with outcomes IAW (b) & (f) Property Management System Audits by PA LTDD case submittals & Review for relief-of-liability liability by PA Necessity to list, track, control, preserve, maintain & remove GP from a contract

40 BIG QUESTION What would happen if FAR Part 45, GP were SUBSUMED under FAR Part 32, Finance How do you think things would be different?

41

42

43