Contract Types: An Overview of the Legal Requirements and Issues

Federal procurement contracts are commonly divided into two main types--fixed-price and cost-reimbursement--that primarily differ as to whether the government or the contractor assumes the risk of increases in performance costs (e.g., wages, materials). With a fixed-price contract, the contractor assumes this risk because it agrees to provide goods or services to the government for a certain price established at the time of contracting. If the performance costs exceed this price, the contractor generally cannot, absent a price adjustment clause, recover more money from the government. Rather, it must perform the contract at a loss, or default on the contract. In contrast, with a cost-reimbursement contract, the government assumes the risk of increases in performance costs because it agrees to repay the contractor for the allowable costs of performing certain work up to a total cost specified in the contract. Additionally, under certain types of cost-reimbursement contracts, the contractor may be entitled to profit in the form of fixed fees or incentive or award fees. Contracts can also be divided into other types, including incentive contracts, letter contracts, indefinite-delivery/indefinite-quantity (ID/IQ) contracts, and time-and-materials (T&M) contracts. Particular contracts can display features of various types (e.g., pricing on both fixed- price and cost-reimbursement bases for different line items) and can often be of multiple types (e.g., an ID/IQ T&M letter contract). Determining the type of a particular contract is a question of law, and contract language stating that a contract is of a certain type is not dispositive. The use of certain contract types is prohibited or required in certain circumstances: (1) cost-plus-a-percentage-of-cost contracts are absolutely prohibited; (2) cost-reimbursement contracts cannot be used to acquire commercial items; and (3) contracts resulting from sealed bidding must be firm-fixed-price or fixed-price with an economic price adjustment. Outside of these restrictions, however, selection of the contract type for a particular procurement is generally within the contracting officer's discretion. The contracting officer typically decides on the contract type prior to issuing a solicitation. However, particularly in negotiated procurements, selection of the contract type can be "a matter for negotiation" between the procuring activity and the contactor. Current congressional and public interest in contract types is, in part, an outgrowth of the reported increase in the use of cost-reimbursement contracts during the George W. Bush Administration and the Obama Administration's proposal to reduce by at least 10% the funds obligated in FY2010 by "high risk-contracting authorities," such as cost-reimbursement, time-and-materials, and labor-hour contracts. The Department of Defense's (DOD's) budget request for FY2011 similarly proposed a 17% reduction in the use of time-and-materials and labor-hour contracts. Additionally, the Office of Management and Budget (OMB) has called for agencies to include "specific actions and goals" to reduce their reliance on cost-reimbursement and time-and-materials contracts in their FY2012 budget submissions. This call is part of a broader proposal to cut agencies' discretionary spending by 5%, among other things. The 111th Congress has enacted or proposed several bills that address use of various types of contracts, including P.L. 111-5, P.L. 111-23, P.L. 111-84, P.L. 111-118, H.R. 1665, H.R. 2269, H.R. 3619, H.R. 4983, H.R. 5013, H.R. 5136, S. 920, S. 1194, S. 2901, S. 2971, S. 3454, S. 3455, S. 3607, S. 3611, and S. 3676.