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What are the COR's communication and documentation responsibilities?

The COR must communicate constantly with the CO to apprise the CO of real or potential problems regarding contract performance, requirements for contract changes, and other important events and situations. The COR must also communicate with the contractor to answer questions and initiate technical guidance. The COR must practice a degree of sensitivity in such communication to ensure that "personal services" (i.e., creating an employer-employee relationship; see Chapter 3, Special Considerations

When Contracting for Services) are not rendered, that constructive changes do not result from technical guidance, that proper procedures are followed to implement changes, and that the government is protected by accurate documentation of all communication.

What typical occurrences require the COR to communicate with the CO?

The COR must advise the CO of the following occurrences:

Failure by either the contractor or the government to meet contractual commitments

Required contract changes

Cost growth under cost reimbursement contracts or other cost-related problems

Unsatisfactory progress

Discrepancies in invoices or vouchers.

The CO may stipulate other routine periodic reports, and the COR must be sure to make complete, effective, and timely reports to the CO.

Why is it important to be aware of limits on communications with contractors?

CORs must be careful in their communications with contractors. First of all, the distinction must be made between prime contractors and subcontractors; the essential issue here is the observance of "privity of contract," which defines the relationship between the two parties to a contract (see Figure 1-3).

Privity of Contract and Relationships among Government Agencies, the Prime Contractor, and Subcontractors

FIGURE 1-3. Privity of Contract and Relationships among Government Agencies, the Prime Contractor, and Subcontractors

Because of limits on the COR's authority, he or she must understand the differences between formal and informal communication. The protocols of both formal and informal communication must be carefully followed to prevent serious contractual and legal problems.

Under current contract regulations, communication protocols are commonly cross-referenced by levels of contract authority. The highest contract authority is the head of the contracting activity (HCA). The principal delegation made by the HCA is the appointment of COs. All other employees working on a contract support the HCA through the COs. Certain responsibilities are delegated to CORs in the letter of designation, with written limitations on the area and amount of their authority. Other government employees may have assigned contract duties that require monitoring and evaluation input to the CORs and COs.

What are the differences between formal and informal communications with a contractor?

Formal communications occur between individuals (the HCA, COs, and CORs) who are authorized to represent the contracting parties, and as such, these communications are usually binding, i.e., constitute a legal duty or obligation. Formal communications usually are in writing (which can include electronic media such as e-mail), but oral communication is also acceptable. Oral communication occurs in meetings, in briefings, by phone, or through video teleconferencing. Formal direction given orally should then be confirmed in writing.

Informal communications can occur between any government employee without contractual authority and any contractor or subcontractor employee, and these communications are thus non-binding. Informal communication can occur in written correspondence or via electronic media (e.g., e-mail), retrievable databases, or telephone facsimile; in presentations; and in meetings.

Informal communications with the prime contractor and its subcontractors are encouraged and expected from agency staff and management in performance of their oversight responsibilities. In their informal communications, agency employees must avoid giving the impression that the communications are formal. (In particular, when a CO or COR is engaging in informal communications, he or she must be careful to identify those communications as non-binding.) Misconstrued communication could result in unauthorized direction to the contractor, which can provide the basis for claims made by the prime contractor against the government based on changes or additions to the work requirements.

 
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