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  1. Key personnel are an important term in most proposals. Establishing the resume, experience, and availability of personnel that will perform major functions of a contract is a key (dad joke) aspect of a winning proposal. As one offeror found out, when key personnel become unavailable, the technical acceptability of the entire offer can be in jeopardy.

    In Ashlin Management Group, B-419472.3,B-419472.4, GAO sustained the second protest of an award to Booz Allen Hamilton. The protester, Ashlin Management Group, alleged that the awardee’s proposal should have been rated as technically unacceptable due to the unavailability of key personnel.

    On September 9, 2020, the agency issued the solicitation to federal supply schedule contract holders. The solicitation sought quotations for a vendor to assist the National Office of Job Corps in identifying, developing, and implementing career pathway programming with a “focus on transitioning Job Corps from a career technical training program to a career technical education program.” The solicitation envisioned a best-value trade-off analysis considering price and non-price factors. The second factor in the evaluation was, “key personnel, staff experience and qualifications (key personnel).”

    The agency received seven timely offers, and in December 2020, the agency selected Booz Allen Hamilton as the awardee. Ashlin protested the award decision to GAO. In response, the agency decided to take corrective action. The agency stated it would reconsider the quotations, and make a new award decision. GAO dismissed the first protest as academic.

    Following reconsideration, on August 13, 2021, the agency informed Ashlin that Booz Allen Hamilton was once again the awardee. The agency determined that the awardee’s proposal represented the best value to the government. On August 20, 2021, Ashlin again protested the award. Ashlin made numerous allegations, including arguing that the awardee’s quotation became technically unacceptable during the corrective action period due to the unavailability of one of the quoted key personnel. 

    GAO dismissed or denied all of Ashlin’s grounds, except for the key personnel argument. GAO found that the awardee had actual knowledge of the unavailability of one of its quoted key personnel during the corrective action period, and failed to notify the agency. Specifically, the key person resigned from the awardee during the corrective action period.

    As part of the original proposal, the awardee stated it would utilize one of its current employees to fill the key personnel role of senior project specialist. In March 2021, that employee resigned, and subsequently left the awardee. GAO found that at that point, the agency was still re-evaluating the proposals under the corrective action.

    GAO utilized its prior decision in stating, “[o]ur Office has explained that vendors are obligated to advise agencies of material changes in proposed staffing, even after submission of proposals, or as here quotations.”  MindPoint Group, LLC, B-418875.2, (Oct. 8, 2020).

    The turning point for GAO is whether the entity knew that key personnel had become unavailable. GAO reasoned, “An offeror or vendor generally is required to advise an agency when it knows that one or more key employees have become unavailable.   The duty to notify does not arise, however, if an offeror or vendor does not have actual knowledge of the employee’s unavailability. This is a key distinction, actual knowledge is the operative language GAO utilized.

    We know that GAO sustained the protest due to the awardee’s failure to notify the agency of the departure of key personnel. Let’s say the awardee notified the agency of the departure, what then? GAO found that the agency can either evaluate the proposal as submitted, without considering the resume of the unavailable employee, or it can open discussions to permit the offeror to amend the proposal.

    The awardee stated it would substitute the key personnel, or even potentially re-hire the same person. GAO was not persuaded by these arguments. GAO, instead, found it was the awardee’s duty to notify the agency when the company had actual knowledge of the unavailability. Attempts to correct the error after the fact found no sympathy from GAO. Additionally, GAO found that, even in corrective action reevaluations, this duty remains.

    The takeaway here is for offerors to ensure that the representations in the submitted offer remain correct. Should an offeror obtain actual knowledge of a change in material aspects of its proposal, it must notify the agency. In this scenario, the offeror can remedy technical acceptability, but only when the offeror makes the agency aware of the intervening circumstances. Failure to do so may be met with the same fate as this awardee.

    Offerors should always take heed that, even in a corrective action, the requirements remain. While GAO will not penalize an awardee who did not have actual knowledge, that line is too thin to walk. Therefore, when in doubt, notify the agency and seek to remedy errors on the front-end.

    Questions about this post? Email us or give us a call at 785-200-8919.

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    The post Key Personnel Unavailability Leads to Sustained GAO Protest first appeared on SmallGovCon - Government Contracts Law Blog.

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  2. Last Friday, the United States Court of Appeals for the Fifth Circuit issued a preliminary injunction staying enforcement of the Emergency Temporary Standard (ETS) previously issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA). The OSHA ETS required all employers of 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy” and to require any workers who remain unvaccinated to “undergo weekly COVID-19 testing and wear a face covering at work.”

    Immediately upon issuance of the ETS, a collection of private employers together with the states of Mississippi, South Carolina and Utah filed suit in the Fifth Circuit seeking to enjoin the mandate’s enforcement. On November 6, 2021, the Court entered a stay pending briefing and expedited judicial review. In that brief order, the Court noted that it found “cause to believe there are grave statutory and constitutional issues with the Mandate.” In its November 12 ruling enjoining the OSHA ETS, the Court expanded on its analysis. First, the Fifth Circuit found that the ETS “grossly exceeds OSHA’s statutory authority.” However, the Court did not limit its review to statutory over-reach. Rather, in the final pages of its recent decision the Court focused on its constitutional concerns surrounding mandatory vaccination. This constitutional analysis could prove to be the undoing of the Biden Administration’s Executive Order imposing a similar vaccine mandate on government contractor personnel.

    Specifically, the Court noted that the OSHA ETS “likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power.” (To issue the injunction, the Court needed to conclude that the petitioners would “likely succeed on the merits” of their claims, hence the use of “likely” rather than a more definitive statement from the Court.) Stated another way, while a State legislature could enact legislation for the public good – i.e., a vaccine mandate – the Commerce Clause does not provide the federal government such power. In sum, the Fifth Circuit held that the OSHA ETS “would far exceed current constitutional authority.”

    The Court then continued to analyze the impact of the mandate on individuals. On this point, the Court noted that the OSHA ETS “threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).” The Court found that for “individual petitioners, the loss of constitutional freedoms ‘for even minimal periods of time … unquestionably constitutes irreparable injury” thereby supporting entry of the injunction. In sum, the Fifth Circuit held that the OSHA ETS “runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.”

    The latter conclusion spells potential trouble for the Biden Administration government contractor vaccine mandate. It has long been held that the President’s authority to issue executive orders must stem from the Constitution or a federal statute, and that these limits are judicially enforceable. For example, in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) the Supreme Court invalidated an order seizing and operating most of the nation’s steel mills. The Supreme Court stated: “… The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” See Youngstown, 343 U.S. at 585.

    Put simply, if the Commerce Clause does not provide constitutional authority for OSHA to implement its vaccine or test mandate, it almost certainly does not provide authority for the broader, government contractor mandate that does not even provide for a testing option. Similarly, the concerns regarding the impact of mandates on constitutionally protected liberty interests are equally present with respect to the contractor mandate as they are under the OSHA ETS.

    All of the above said, the contractor mandate has not (yet) been enjoined and contractors are well-counseled to continue to prepare for the January 4, 2022, deadline. It seems certain, however, that the Fifth Circuit’s opinion has provided a template for significant legal challenge to the contractor mandate.

     

    –This update has been detailed by David Warner. 

    David Warner heads Centre’s litigation, audit, and investigation practices. He is a seasoned trial lawyer and counselor with more than twenty years of experience in the resolution and litigation of complex business and employment disputes before state and federal courts and agencies. His practice is particularly focused on the government contractor, nonprofit, and hospitality industries.

    The post Injunction of OSHA Mandate appeared first on Centre Law & Consulting.

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  3.  

    There are many reasons an agency might decide to use an assisted acquisition.  Oftentimes, agencies use assisted acquisitions simply because they do not have the time, or manpower, to complete the acquisition in-house. In other cases, an agency may not have the expertise needed to complete the procurement.  In the case of information technology, a lack of in-house expertise is increasingly a driver as there is now a requirement for contracting officers who deal predominately in information technology acquisitions to be Digital IT Acquisition Professional (DITAP) certified by 2022.  Rest assured, all NITAAC contracting officers and specialists are DITAP certified.

    Regardless of the reason an agency chooses to conduct an assisted acquisition, our contracting professionals will work with you to determine the best course forward for your acquisition, from the market research and acquisition planning phase, all the way through administration and closeout.   NITAAC will pair you with an experienced Contracting Officer capable of identifying innovative information technology contracting approaches on any of our three Best in Class Government-wide Acquisition Contracts (GWACs).

    NITAAC operates on a 90-day procurement administrative lead time (PALT), beginning from the date we receive the completed submission package, but our average time from solicitation to award is just 45 days. That means an agency will have a contractor ready to begin work in a few short months versus the typical 6-9-month cycle with comparable procurements.

    Agencies should rest assured in knowing that we don’t sacrifice quality for speed—every IT solution will be of the highest quality, because of the rigorous vetting and evaluation process behind every vendor on a NITAAC GWAC.

    With Assisted Acquisitions, federal agencies benefit from the capabilities and expertise of our contracting officers, as well as the efficiencies and economies associated with leveraging resources and requirements.  It’s a win, win for all.

    If you are interested in partnering with us on a requirement, or simply want more information, contact NITAAC Customer Support at 888-773-6542 to speak with an intake specialist who will advise you on the process and required paperwork or visit https://nitaac.nih.gov/services/assisted-acquisitions.  

     

  4. At the beginning of Fiscal Year 2008 John Krieger and John Pritchard, two professors at the Defense Systems Management College, Defense Acquisition University, were kicking around the topic of Acquisition Reform. They reflected on what Jim Nagle wrote in the Epilogue to A History of Government Contracting, "If someone were asked to devise a contracting system for the federal government, it is inconceivable that one reasonable person or a committee of reasonable people could come up with our current system.  That system is the result of thousands of decisions made by thousands of individuals, both in and out of government.  It reflects the collision and collaboration of special interests, the impact of innumerable scandals and successes, and the tensions imposed by conflicting ideologies and personalities."

    They reflected that those thousands of decisions were like putting bandages on the acquisition, contracting and procurement processes.  Every time a piece of legislation is passed to “fix” the acquisition process, it’s another bandage.  Every time a change is made to the Federal Acquisition Regulation (FAR), it’s another bandage.  Every time a change is made to the Defense Federal Acquisition Regulation Supplement (DFARS), it’s another bandage.  Every time a procurement or contracting policy memorandum is issued, it’s another bandage. 

    They joked about that being a great visual aid for the classroom. (Remember classrooms, the places you went to learn before COVID-19?) And the joking became reality. They started with a golf ball, and added a bandage for each new law, executive order, regulation, guide handbook, etc. And it would grow, and grow, and grow. “Acquisition Reform and the Golf Ball” was born that day.

    The story of the golf ball was chronicled each fiscal year, and reported in the National Contract Management Association’s Contract Management (CM) after the end of each fiscal year. That is each year up until the report on the results for Fiscal Year 2020, when CM declined the latest installment in the series. Although John and John sought publication elsewhere, there didn’t appear to be a good fit, which brings the latest iteration, “Acquisition Reform and the Golf Ball—A Baker’s Dozen,” to Wifcon.com. (See attachment.)

    Acquisition_Reform_and_the_Golf_Ball_Bakers_Dozen_-FY2021-_Wifcon.com_v2.docx

  5. Quote

    The blast of flame that sent the black, insect-shaped projectile hurtling across the tarmac made me duck instinctively. It was as if the Devil himself were blasting his way straight from Hell.

    Richard Helms, Director of Central Intelligence, 1966 - 1973

    Many years ago, as a teen, I noticed a magazine on a barbershop table with an incredible black airplane on the cover. Huge engines on each side of a delta wing and a long thin fuselage with a cockpit near the front. I never forgot that airplane, it was an SR-71 Blackbird. Fifty-five years later, I wrote a brief article about the first Blackbird -- the A-12. It's the fastest and highest flying jet airplane that was ever built. Everything about the A-12 was incredible. A requirement was developed to:

    • make an airplane so fast that nothing could catch it,
    • make it fly so high that nothing could reach it, and
    • make it nearly invisible.

    Add to that the fact that no one knew how to do it, the materials didn't exist and it had to be done quickly.  Groom Lake and Area 51 were built for the U-2 and then used for the A-12, Clarence "Kelly" Johnson and his Skunk Works built the U-2 and then built the A-12.  The A-12 was a Central Intelligence Agency (CIA) spy plane just as the U-2 was originally. 

    ----------------------------------------------------

    In September 2020, I finished this 20 page article on the A-12 and placed it on the Analysis Page.  I never thought to post it to the Wifcon Blog.  I'm doing that now.  The article took a long time to write because the building of the A-12 was incredible.  Much of the material used to write this article was from 60 years ago and many potential sources confused the SR-71 story with that of the A-12 story.    Others were flat out wrong.  I used sources from people who worked on or flew the A-12.  Fortunately, the CIA finally declassified some documents on the A-12 sometime after 2000--maybe 2007 or 2013--and made it available to the public.  There wasn't much of it but it filled in some of the missing pieces.

    There are many facts and stories about the A-12 that are of interest.  One is that, in the A-12, the engines produced only about 20 percent of the power at crusing speeds.  Most of the power came from from the pointed cones sticking out of the nacelles.  Also, the A-12 ran its afterburners continuously.  Then there were the 2 Buick "nailhead" V-8s that were conected to each other to "spool-up" and start each A-12 engine.

    At the end of the article, I list the places you can still see an A-12 and added links to Google Maps.  If you look closely at the maps, you will find an image of an A-12.  I also list where the only YF-12A, a derivative of the A-12, is at.  Now, the YF-12A is another story.

    Please read:  Faster Than A Speeding Bullet, Three Times Higher Than The Tallest Mountain.

  6. Robert Marcus, the liquidating trustee of the Las Uvas Valley Dairies sued Dean L. Horton and Frances H. Horton in the U.S. Bankruptcy Court of New Mexico. Mr. Marcus sought declaration that the main assets in the bankruptcy estate at issue were held in constructive trust for the estate he represents. Dean and Frances Horton applied for motion for judgment on the pleadings requesting the proceedings be dismissed for failure to state a claim. Mr. Marcus asserted he had a valid claim for recognition of a constructive trust.

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    View the full article

  7. In the 2019 National Defense Authorization Act (NDAA), Congress placed serious limitations on the Government’s use of Lowest Price, Technically Acceptable (LPTA) procurements. As a result, we should be seeing the Government issue more RFPs in which technology and innovation outweigh price. In these instances, contractors can seek a higher price but are expected to show substantial technological advantages. Two recent protests cases out of GAO illustrate the principles of technical proposal evaluation when technical factors are more important than price, and demonstrate the potential cost/technical trade-offs under these circumstances.

    Read the full article here

  8. ASHBURN, Virginia (September 19, 2018) The National Contract Management Association (NCMA)

    President Charlie Williams Announces the New NCMA Chief Executive Officer

    On behalf of the National Contract Management Association (NCMA) Board of Directors, I am pleased to announce the appointment of Kraig Conrad, CAE, CTP, as the new NCMA Chief Executive Officer. Kraig will formally take his position on November 1, 2018. Kraig joins NCMA with 20 years of association leadership experience. He most recently served as Chief Executive Officer of the Professional Risk Managers’ International Association (PRMIA), where he guided the PRMIA Board of Directors and its global network of more than 50,000 risk professionals to craft an enhanced vision for the group that includes a long-range strategic plan; new advocacy, certification, and training efforts; promoting the PRMIA brand; and enhancing membership benefits.

    Prior to PRMIA, he held many roles at the National Investor Relations Institute, including Acting Co-Chief Executive Office and Vice President for Programs and Development. Kraig has also served as Research Lead for Strategy Practice at Corporate Executive Board, Director of Corporate Finance and Risk Management and Director of Strategic Alliances at the Association for Financial Professionals. He started his career as a Financial Analyst at Credit Suisse.

    Kraig earned a Bachelor of Arts in Economics from the University of Southern California and a Master of Business Administration from the University of Illinois at Chicago. He is a Certified Association Executive and member of the American Society of Association Executives, and a Certified Treasury Professional and member of the Association for Financial Professionals.

    “We are excited to have Kraig join our team. Kraig has demonstrated time and time again exemplary leadership skills and thoughtful approaches to the business of association management,” says NCMA President Charlie Williams. “We are confident that Kraig is the right person at the right time for NCMA as we continue the NCMA journey that was begun over 59 years ago. As our new CEO, Kraig’s association leadership skills will be critical to the Board of Directors as it charts the association’s strategic path forward and seeks to further elevate the association’s relevance to the profession it serves.”

    The selection of Kraig concludes a national search supported by Staffing Advisors, a Washington, DC-based executive search firm. Kraig shares the NCMA dedication to professional growth and the educational advancement of acquisition and contracting professionals worldwide. Please join us in congratulating Kraig as we welcome him to the organization.

    Founded in 1959, the National Contract Management Association (NCMA) is the world's leading professional resource for those in the field of contract management. The organization, which has over 18,000 members, is dedicated to the professional growth and educational advancement of procurement and acquisition personnel worldwide. NCMA strives to serve and inform the profession it represents and to offer opportunities for the open exchange of ideas in neutral forums. For more information on the association, please visit www.ncmahq.org.

    Contact: Amanda Gillespie, Marketing & Communications Director agillespie@ncmahq.org (571) 382-1127

    NCMA_CEO Kraig Conrad - FINAL.pdf

  9. The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010). There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the effect of taking away one of the benefits that had been promised to the contractor. Although the decision concerned a timber sales contract not a procurement contract, when I wrote it up in the May 2010 Nash & Cibinic Report (24 N&CR ¶ 22), I expressed the fear that the reasoning would be subsequently applied to procurement contracts.

    My fear was realized in a construction contract case, Metcalf Construction Co. v. U. S., 102 Fed. Cl. 334 (2011). In that decision, the judge described eggregious conduct on the part of the government officials that would have been held to be a breach of the implied duty of good faith and fair dealing under many earlier cases. However, the judge held that under the Precision Pine standard, the contractor had not proved that the actions were specifically targeted at the contractor. In the February 2012 Nash & Cibinic Report (26 N&CR ¶ 9), I criticized this decision but stated that I believed that even if the decision was affirmed on appeal, most contracting officers would not take this as a signal that the proper way to administer contracts was to abuse the contractor.

    Fortunately, a panel of the Federal Circuit has reversed the decision, Metcalf Construction Co. v. U. S., 2014 WL 519596, 2014 U.S. App. LEXIS 2515 (Fed. Cir. Feb. 11, 2014). The court held that the lower court had read Precision Pine too narrowly and that “specific targeting” was only one example of the type of conduct that could constitute a breach of the implied duty of good faith and fair dealing. Importantly, the court also rejected the government’s argument that this “implied duty” only could be found when it was footed in some express provision of the contract. The court concluded that the correct rule was only that the express provisions of a contract had to be examined to ensure that they had not dealt with the conduct of the government; for if they had, they would override the implied duty.

    This leaves us in a tenuous position with regard to the views of the Federal Circuit. We have one panel in Precision Pine stating a narrow rule, another panel in Metcalf Construction stating the traditional rule, and a third panel in Bell/Heery A Joint Venture v. U.S., 739 F.3d 1324 (Fed. Cir. 2014), ruling in favor of the government because the contractor had not alleged facts showing that the government had “engaged in conduct that reappropriated benefits promised under the contract” (which is part of the Precision Pine reasoning). Thus, it is difficult to state where the judges of the Federal Circuit stand. Hopefully, the court will agree to take either Metcalf Construction or Bell/Heery to the full court for an en banc review of the issue.

    I’ve never been sure why the Department of Justice has so vigorously argued that the government should not be held to the same standards of conduct as a commercial buyer. Of course, persuading the courts and boards that a narrower standard should be applied to the government is a way to win litigated cases. But, in my view, encouraging abusive or non-cooperative conduct hurts the government as much as it hurts its contractors. I have taught for many years that in the long run the government benefits from actions that show industry that it is a fair contracting partner. A line of published judicial decisions that demonstrates that the government is not such a partner is one more of the many messages that tell companies they should sell to the government only when they can find no other customer. Surely, this is not the message that government agencies in need of products and services on the commercial marketplace want to convey to companies that can provide those products and services.

    Many years ago when I came to Washington to work in the field of government contracting, I concluded that there was one major advantage to being on the government side of the negotiating table. That advantage was that I was under no pressure to extract money from the contractor by unfair bargaining or unfair contract administration. To me fairness was an integral part of the job of a government employee. I still believe it and teach it. Thus, no matter what the outcome of the good faith and fair dealing litigation, I will continue to urge government employees that fair treatment of contractors is the only way to go.

    Ralph C. Nash

  10. When I get older, losing my hair

    Many years from now . . . .

    When I'm Sixty-Four

    John Lennon, Paul McCartney

    Shortly after we celebrate our country's independence on July 4, 2013, Wifcon.com will end its 15th year on the internet. With much help from the Wifcon.com community, I've raised a growing teenager. When I started, I was 49 and my hair was so thick that I often shouted ouch or some obscenity when I combed it. Wifcon.com has existed in 3 decades and parts of 2 centuries. During that period, I've updated this site for every work day--except for the week or so when I called it quits. I remember the feeling of relief. I thought it was over. However, many of you convinced me to bring it back. Yes, just when I thought I was out, many of you pulled me back in.

    As I mentioned in an earlier post, someone once told me that Wifcon.com was my legacy. I once had great hopes for a legacy. Perhaps, a great saxophone player belting out a solo in front of thousands of fans and seeing them enjoying themselves. Instead, here I sit in my solitude looking for news, decisions, etc., to post to the home page. For many years, my dog Ambrose kept me company. Now, my dogs Blue Jay and Lily stare at me and look for attention. With my sights now set realistically, I accept that Wifcon.com is my legacy. It's the best I could do.

    Every now and then, I receive an e-mail from someone thanking me for Wifcon.com. They tell me how it helped their careers. These e-mails keep me and Wifcon.com going.

    Send me a postcard, drop me a line,

    Stating point of view

    Indicate precisely what you mean to say

    Yours sincerely, wasting away

    Give me your answer, fill in a form

    When I'm Sixty-Four

    John Lennon, Paul McCartney

    The thoughts in these e-mails won't let me quit. I still search each night for something to add to the site in hopes that it will increase your knowledge. If I find something new, I still get excited. Often, it feels like a self-imposed weight around my neck. What started as a release for my imagination has evolved into a continuing and daily addition to the contracting community. In the evenings, it is as if I'm Maillardet's automaton. I head over to my office, sit before the computer, and update. Then I send the updated pages to Virginia where it is accessed from around the world. Maybe I'm addicted to Wifcon.com; maybe I was born with the Wifcon.com gene.

    If you haven't added the numbers, I'm 64 now. Wifcon.com and I are showing our age. I can comb the top of my head with my fingers. The ouches and other obscenities caused by my once thick hair are gone. A recent upgrade to the discussion forum requires that I turn the "compatibility mode" off on my browser. In that mode, I realized that Wifcon.com is ugly. I have current software for the needed future redo of this site.

    I am Wifcon.com; Wifcon.com is me. It is my legacy and my albatross. As always, thank you for your support.

    You'll be older too,

    And if you say the word,

    I could stay with you.

    When I'm Sixty-Four

    John Lennon, Paul McCartney

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