# AFARS PART 5116

AFARS – PART 5116

- Subpart 5116.1 – Selecting Contract Types

- 5116.102-90 Policies.

- 5116.103 Negotiating contract type.

- Subpart 5116.2 – Fixed-Price Contracts

- 5116.203 Fixed-price contracts with economic price adjustment.

- 5116.203-4 Contract clauses.

- Subpart 5116.3 – Cost-Reimbursement Contracts

- 5116.306 Cost-plus-fixed-fee contracts.

- Subpart 5116.4 – Incentive Contracts

- 5116.401-70 Data collection.

- 5116.405 Cost-reimbursement incentive contracts.

- 5116.405-1 Cost-plus-incentive-fee contracts.
- 5116.405-2 Cost-plus-award-fee contracts.

- Subpart 5116.5 – Indefinite-Delivery Contracts

- 5116.505 Ordering.

- 5116.505-90 Ombudsman.
- 5116.505-91 Multiple award task order contracts.

AFARS – PART 5116

TYPES OF CONTRACTS

Subpart 5116.1 – Selecting Contract Types

5116.102-90 Policies.

Contracting officers must document the rationale for selection of the contract type, to include consideration of the associated risks, in the contract file. The supporting documentation may be located in the contract type justification, a separate determination and findings, memorandum for record, or other appropriate document.

5116.103 Negotiating contract type.

(d)(1)(A) Heads of contracting activities must approve the contract type justification for all proposed contracts exceeding $100 million. Unless otherwise precluded, this authority is delegable to the principal assistant responsible for contracting without power to redelegate.

(B) The Office of the Under Secretary of Defense (Acquisition, Technology and Logistics) may have access to the documentation upon request.

(C) Contracting officers shall place special emphasis on acquisition category I programs as well as services designated as special interest or category I or IA through III. Contracting officers, in coordination with program managers, shall review cost and performance data on the program to fully document and justify appropriate contract type and incentive arrangements.

Subpart 5116.2 – Fixed-Price Contracts

5116.203 Fixed-price contracts with economic price adjustment.

5116.203-4 Contract clauses.

(d)(2) See 5101.304(1)(i) for clause approval procedures.

Subpart 5116.3 – Cost-Reimbursement Contracts

5116.306 Cost-plus-fixed-fee contracts.

(c)(ii) Contracting officers requesting approval to award a contract for non-construction, environmental work (see DFARS 236.271) must submit their requests to the address at 5101.290(b)(2)(i).

Subpart 5116.4 – Incentive Contracts

5116.401-70 Data collection.

(1) Contracting activities shall provide the requested data to the Office of the Deputy Assistant Secretary of the Army (Procurement), Attn: SAAL-PP, no later than 70 days after the end of the semi-annual reporting period. The Office of the Deputy Assistant Secretary of the Army (Procurement) will consolidate the data from across the Army and forward to the Director, Defense Procurement and Acquisition Policy no later than 90 days after the semi-annual reporting period.

(2) For contracts meeting the criteria in DFARS PGI 216.401-70(a) and (b), formal review and documentation of the data must take place at one level above the fee-determining official to ensure that the award and performance incentive fees are commensurate with the contractor’s performance under the contract. In addition to the independent review one level above the fee-determining official, the head of the contracting activity will review the proposed award and incentive fees for the contracting activity. This review will entail a determination that the semi-annual award and incentive fee submissions are commensurate with the contractor’s performance under the contract.

5116.405 Cost-reimbursement incentive contracts.

5116.405-1 Cost-plus-incentive-fee contracts.

(b)(3) For cost-plus-incentive-fee type contracts, contracting officers shall consider use of a 70/30 share line and a zero minimum fee as the point of departure for establishing the incentive arrangement during negotiations (see ASA(ALT) memorandum, dated 8 January 2012, subject: Justification of Contract Type and Incentive Strategies).

5116.405-2 Cost-plus-award-fee contracts.

(2)(A) In accordance with DFARS PGI 216.405-2(2), a contractor begins each evaluation period with zero percent of the available award fee due and works to earn the evaluated fee for each evaluation period. Contractors do not begin with 100% of the available award-fee and have deductions withdrawn to arrive at the evaluated fee for each evaluation period. In addition, contractors should not receive award fee above the base fee for simply meeting contract requirements. Earning an award fee is in accordance with the award fee plan, and should be directly commensurate with the level of performance under the contract. A contractor should not receive the maximum amount of award fee under a contract without a demonstrated superior level of performance, as provided for in the award-fee plan. Maximum contract fee is the sum of all fees (i.e., not just the award fee) and incentives payable under the contract, including performance and subcontracting incentives.

(B) When an Award-Fee Evaluation Board (AFEB) is used, the principal assistant responsible for contracting or authorized contracting officer will appoint an award-fee determining official (AFDO) in writing, unless the principal assistant responsible for contracting is the AFDO. The AFDO will then appoint the AFEB and its chairperson in writing. Such appointment letters will clearly outline the responsibilities and limitations of the AFEB and its chairperson. AFEB membership should consist of those contracting and acquisition management personnel, including contract administration personnel, most knowledgeable of the requirements and contractor performance in the areas evaluated. For contracts in support of major systems, the AFDO will coordinate the selection of technical AFEB members with the program executive officer or other management official responsible for technical requirements prior to their appointment. The AFEB chairperson is responsible for ensuring sufficient training of all AFEB evaluators. AFDOs and AFEBs will document the rationale for their decision(s) in sufficient detail to demonstrate the integrity of the award-fee determination process in the contract file. The AFDO may alter the AFEB’s recommended award fee.

Subpart 5116.5 – Indefinite-Delivery Contracts

5116.505 Ordering.

5116.505-90 Ombudsman.

Each head of the contracting activity, delegable only to the principal assistant responsible for contracting, shall designate a task and delivery order ombudsman for the contracting activity. The ombudsman shall be a senior official, who is independent of the contracting officer and may be the special advocate for competition. The ombudsman shall be responsible for reviewing complaints from the contractors under multiple award task or delivery order contracts and ensuring they receive a fair opportunity for consideration, consistent with the procedures in the contract.

5116.505-91 Multiple award task order contracts.

Contracting officers will document all critical task order decisions, such as exceptions to the fair opportunity process described at FAR 16.505(b)(2) or the selection of a higher priced proposal because of its greater technical merit, in sufficient detail to justify the decision.