By Barbara S. Kinosky, Esq.
There’s a revived focus on the topic and implementation of Information Technology modernization within the federal government in 2019.
IT drives innovation and innovation is the most direct route to business success. Innovation in government contracting has the same impact that steam had on the industrial revolution. In fact, it’s hard to imagine any organization that has not benefited from the digital revolution.
As we begin 2019, several government agencies have begun implementing the process of applying digital transformation in the way they deliver value to the people they serve.
Technologies like digitized service platforms, cloud services, DevOps, AI for data analysis, and more are being used to foster efficiency and help government agencies scale their processes to serve the public better and maintain a competitive advantage.
The goal is to catch up to the private sector in the way they serve people to meet the demands of an evolving American public better. However, like anything else, there are always budget and talent constraints that can hinder the process and force government agencies to prioritize certain aspects of evolution above others.
A few trends that seem to be emerging in 2019 include a transition from “cloud first” to “cloud smart.” The government is using cloud services more than ever, which means it’s important to consider issues like integrating cloud security, workforce strategies, and procurement.
Another trend is using the Internet of Things to help process data in a way that is “smart” instead of brushing off IoT as just another new technology. Governments in the public sector using IoT are creating new opportunities in cities and making life better for the people that live there.
There are also ways that the use of AI can help government agencies boost their efficiency and reduce their costs in areas like border services, health services, social services, social security, and more. AI may help governments uncover new ways of sharing, analyzing, and integrating massive amounts of data to help create better programs and services for citizens.
DevOps is continuing to bring benefits like increased productivity using automation, cost savings within departments, and other tangible benefits to help improve collaboration between different departments.
As a federal government contractor, it’s best to invest in a better understanding and solutions of modernization that’s happening in the federal IT space. Organizations should begin making substantial progress in their steps to modernize their infrastructures and technology systems if they want to meet rising demands from the public and maintain a competitive edge.
“Every once in a while, a new technology, an old problem, and a big idea turn into an innovation.”- Dean Kamen
About the Author:
Barbara Kinosky
Managing Partner
Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases.
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By Heather Mims, Esq.
In general, the Buy American Act (“BAA”) requires the United States government to give a preference to American-made products. When applied to a specific procurement, a contractor must provide an end-product that was manufactured in the United States and must also certify that more than fifty percent of the cost of all the parts were manufactured in the United States.
Executive Orders
Since its implementation in 1933, numerous exceptions and interpretations have developed. During his term, President Trump has issued multiple Executive Orders aimed at the BAA. He issued his first one, the “Buy American and Hire American” Executive Order in April 2017 shortly after being sworn in. It required, in part, the heads of agencies and the Secretary of Commerce to assess agencies’ compliance with the BAA and submit findings and recommendations to the President.
Order Up
President Trump recently issued another Executive Order on January 31, 2019, aimed at the BAA. The “Executive Order on Strengthening Buy-American Preferences for Infrastructure Projects,” continues to seek to maximize the use of American-made goods, products, and materials in Federal procurements.
This EO requires that the head of each agency report any “tools, techniques, terms, or conditions that have been used or could be used” to maximize the use of American-made goods – and they must do so within 120 days. This applies to any “contracts, subcontracts, purchase orders, or sub-awards that are chargeable against Federal financial assistance awards for infrastructure projects.” It’s important to note, that “infrastructure projects” now include cybersecurity projects, in addition to the typical roadways, bridges, railroads, and other means of transit.
This recent EO also requires the head of each agency to “encourage” recipients of federal financial assistance to use, “to the greatest extent practicable, iron and aluminum as well as steel, cement, and other manufactured products produced in the United States.”
What next?
When a company is asked to certify that it meets the BAA requirements, it should give serious consideration of the requirements of the Act (and the Trade Agreements Act and Buy America Act, if applicable). Providing a false certification may come with serious penalties – including debarment and criminal or civil False Claims Act claims. If you need assistance navigating the BAA, contact us today.
About the Author:
Heather Mims
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.
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By Hon. Jack Delman
We have all learned, some of us in school and some of us in the school of “life experience” that parties to a contract are bound by its terms. Not always, if one of the contracting parties is the federal government. We should know that the sovereign reserves certain unique contract prerogatives. One such prerogative is the right to invoke provisions omitted from the contract but required by law.
In G.L Christian & Associates v. United States, 312 F.2d 418 (Ct. Cl. 1963), the government terminated for convenience the contractor’s construction contract. The contractor challenged the termination as a breach of contract since there was no termination clause of this sort in the contract. Seemingly a reasonable argument. The Court of Claims (a predecessor of the Federal Circuit) decided otherwise. The Court held that the termination for convenience clause was required by regulation and expressed a significant public procurement policy. Therefore, even though the clause was omitted from the contract it was incorporated into the contract as a matter of law, and the government was within its contract rights to invoke it.
The Court’s holding became known as the “Christian Doctrine.” This doctrine has been accepted by the courts and boards without question since the issuance of the opinion.
The Federal Circuit recently revisited the Christian Doctrine in K-Con, Inc. v. Army, 908 F.3d 719 (Fed. Cir. 2018). The Army entered into two contracts with KC, each for a pre-engineered metal building. The Army realized that it had omitted from each contract the clause that required performance and payment bonds, FAR 52.228-15. Prior to issuing the Notice To Proceed (NTP), the Army directed KC to furnish these bonds. The contractor refused, contending that the contracts were not expressly identified as construction contracts, and the contracts did not contain any clause requiring bonds of this nature. After considerable delay, KC furnished the bonds under a government contract modification (the government reimbursed the bond fees), and KC filed a claim for NTP delay costs.
The ASBCA denied the claim. In brief, it ruled that the contracts were construction contracts requiring performance and payment bonds as a matter of law and that having these bonds in the contracts reflected a significant public procurement policy. The Board incorporated into each contract the omitted bond clause under the Christian Doctrine. K-Con, Inc., ASBCA Nos. 60686, 60687, 17-1 BCA 36,632, recon den. 17-1 BCA 36,756.
KC appealed, and the Federal Circuit affirmed. The Court agreed with the ASBCA that the performance and payment bonds were required by statute, 40 U.S.C. § 3131(b), and by implementing regulations, FAR 28.102-1. The Court also agreed that requiring these bonds reflected a significant public procurement policy. The Court affirmed the application of the Christian Doctrine and the incorporation of the omitted bond clause in each contract.
A “takeaway” for government contractors? When you review a solicitation and have reason to believe a statutory/regulatory requirement has been omitted by the government, don’t ignore the matter. Contact your Contracting Officer for clarification prior to submitting your proposal. An email early could save you dollars and/or heartache later.
About the Author:
Hon. Jack Delman
Counsel
Jack Delman served as a judge on the Armed Services Board of Contract Appeals for 29 years and has extensive experience in the adjudication and mediation of large and complex contract disputes, including equitable adjustments, terminations and cost and pricing issues.
Jack has extensive experience with claims analysis, FAR and DOD agency regulations and BCA practice and procedure.
View the full article
By Hon. Jack Delman
We have all learned, some of us in school and some of us in the school of “life experience” that parties to a contract are bound by its terms. Not always, if one of the contracting parties is the federal government. We should know that the sovereign reserves certain unique contract prerogatives. One such prerogative is the right to invoke provisions omitted from the contract but required by law.
In G.L Christian & Associates v. United States, 312 F.2d 418 (Ct. Cl. 1963), the government terminated for convenience the contractor’s construction contract. The contractor challenged the termination as a breach of contract since there was no termination clause of this sort in the contract. Seemingly a reasonable argument. The Court of Claims (a predecessor of the Federal Circuit) decided otherwise. The Court held that the termination for convenience clause was required by regulation and expressed a significant public procurement policy. Therefore, even though the clause was omitted from the contract it was incorporated into the contract as a matter of law, and the government was within its contract rights to invoke it.
The Court’s holding became known as the “Christian Doctrine.” This doctrine has been accepted by the courts and boards without question since the issuance of the opinion.
The Federal Circuit recently revisited the Christian Doctrine in K-Con, Inc. v. Army, 908 F.3d 719 (Fed. Cir. 2018). The Army entered into two contracts with KC, each for a pre-engineered metal building. The Army realized that it had omitted from each contract the clause that required performance and payment bonds, FAR 52.228-15. Prior to issuing the Notice To Proceed (NTP), the Army directed KC to furnish these bonds. The contractor refused, contending that the contracts were not expressly identified as construction contracts, and the contracts did not contain any clause requiring bonds of this nature. After considerable delay, KC furnished the bonds under a government contract modification (the government reimbursed the bond fees), and KC filed a claim for NTP delay costs.
The ASBCA denied the claim. In brief, it ruled that the contracts were construction contracts requiring performance and payment bonds as a matter of law and that having these bonds in the contracts reflected a significant public procurement policy. The Board incorporated into each contract the omitted bond clause under the Christian Doctrine. K-Con, Inc., ASBCA Nos. 60686, 60687, 17-1 BCA 36,632, recon den. 17-1 BCA 36,756.
KC appealed, and the Federal Circuit affirmed. The Court agreed with the ASBCA that the performance and payment bonds were required by statute, 40 U.S.C. § 3131(b), and by implementing regulations, FAR 28.102-1. The Court also agreed that requiring these bonds reflected a significant public procurement policy. The Court affirmed the application of the Christian Doctrine and the incorporation of the omitted bond clause in each contract.
A “takeaway” for government contractors? When you review a solicitation and have reason to believe a statutory/regulatory requirement has been omitted by the government, don’t ignore the matter. Contact your Contracting Officer for clarification prior to submitting your proposal. An email early could save you dollars and/or heartache later.
About the Author:
Hon. Jack Delman
Counsel
Jack Delman served as a judge on the Armed Services Board of Contract Appeals for 29 years and has extensive experience in the adjudication and mediation of large and complex contract disputes, including equitable adjustments, terminations and cost and pricing issues.
Jack has extensive experience with claims analysis, FAR and DOD agency regulations and BCA practice and procedure.
View the full article
By Tyler Freiberger,
One month and two days and still 800,000 federal employees are currently working without pay as a result of the “partial” government shutdown. As many employees struggle to afford basic necessities it’s only slight comfort that Congress has already passed the law authorizing back pay when the shutdown ends. While the hardship of these government employees deserves the mass media’s coverage, there are also over four million federal contractors supporting the federal government, and the million furloughed contractors have notably received far less attention for not only being put on leave but have little hope they will ever get paid for the past month.
Even those contractors specifically designated as needing government assistance are not immune to the shutdown. Blind and severally disabled Americans working through the Javits-Wagner O’Day (JWOD) Act are included in this massive number of out of work contractors. JWOD established the AbilityOne Program that gives over 45,000 people who are blind or have significant disabilities employment on federal contracts, and the program is the largest source of employment for these individuals. Rather than simply writing more checks to support a disadvantaged and marginalized population, the AbilityOne Program gives a path to meaningful employment. Not only do these individuals gain a dignified answer to the typical “so what do you do?” they also provide much-needed labor supporting government facilities and operations.
While the sudden lack of pay can be devastating to anyone, disabled employees under the AbilityOne program are also currently without the much-needed support system tied to this specialized program. Harrison Misewicz, Director of Contracting for Chimes DC, a non-profit resource provider for individuals with disabilities, reports that of the hundred Chimes DC employees currently furloughed, none are receiving benefits while the shutdown looms. In addition, many of these disabled workers are missing the day-to-day coaching and other direct support they have come to rely on while they wait at home for the chance to go back to work.
There is a push to help low-wage federal contractor employees such as those working under the AbilityOne program. While the damage and disruption these individuals are facing may never be cured, one hopes this bill will gain more attention and offer some relief to the already disadvantaged population.
About the Author:
Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.
View the full article
By Tyler Freiberger, Esq.
One month and two days and still 800,000 federal employees are currently working without pay as a result of the “partial” government shutdown. As many employees struggle to afford basic necessities it’s only slight comfort that Congress has already passed the law authorizing back pay when the shutdown ends. While the hardship of these government employees deserves the mass media’s coverage, there are also over four million federal contractors supporting the federal government, and the million furloughed contractors have notably received far less attention for not only being put on leave but have little hope they will ever get paid for the past month.
Even those contractors specifically designated as needing government assistance are not immune to the shutdown. Blind and severally disabled Americans working through the Javits-Wagner O’Day (JWOD) Act are included in this massive number of out of work contractors. JWOD established the AbilityOne Program that gives over 45,000 people who are blind or have significant disabilities employment on federal contracts, and the program is the largest source of employment for these individuals. Rather than simply writing more checks to support a disadvantaged and marginalized population, the AbilityOne Program gives a path to meaningful employment. Not only do these individuals gain a dignified answer to the typical “so what do you do?” they also provide much-needed labor supporting government facilities and operations.
While the sudden lack of pay can be devastating to anyone, disabled employees under the AbilityOne program are also currently without the much-needed support system tied to this specialized program. Harrison Misewicz, Director of Contracting for Chimes DC, a non-profit resource provider for individuals with disabilities, reports that of the hundred Chimes DC employees currently furloughed, none are receiving benefits while the shutdown looms. In addition, many of these disabled workers are missing the day-to-day coaching and other direct support they have come to rely on while they wait at home for the chance to go back to work.
There is a push to help low-wage federal contractor employees such as those working under the AbilityOne program. While the damage and disruption these individuals are facing may never be cured, one hopes this bill will gain more attention and offer some relief to the already disadvantaged population.
About the Author:
Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.
View the full article
By Tyler Freiberger, Esq.
One month and two days and still 800,000 federal employees are currently working without pay as a result of the “partial” government shutdown. As many employees struggle to afford basic necessities it’s only slight comfort that Congress has already passed the law authorizing back pay when the shutdown ends. While the hardship of these government employees deserves the mass media’s coverage, there are also over four million federal contractors supporting the federal government, and the million furloughed contractors have notably received far less attention for not only being put on leave but have little hope they will ever get paid for the past month.
Even those contractors specifically designated as needing government assistance are not immune to the shutdown. Blind and severally disabled Americans working through the Javits-Wagner O’Day (JWOD) Act are included in this massive number of out of work contractors. JWOD established the AbilityOne Program that gives over 45,000 people who are blind or have significant disabilities employment on federal contracts, and the program is the largest source of employment for these individuals. Rather than simply writing more checks to support a disadvantaged and marginalized population, the AbilityOne Program gives a path to meaningful employment. Not only do these individuals gain a dignified answer to the typical “so what do you do?” they also provide much-needed labor supporting government facilities and operations.
While the sudden lack of pay can be devastating to anyone, disabled employees under the AbilityOne program are also currently without the much-needed support system tied to this specialized program. Harrison Misewicz, Director of Contracting for Chimes DC, a non-profit resource provider for individuals with disabilities, reports that of the hundred Chimes DC employees currently furloughed, none are receiving benefits while the shutdown looms. In addition, many of these disabled workers are missing the day-to-day coaching and other direct support they have come to rely on while they wait at home for the chance to go back to work.
There is a push to help low-wage federal contractor employees such as those working under the AbilityOne program. While the damage and disruption these individuals are facing may never be cured, one hopes this bill will gain more attention and offer some relief to the already disadvantaged population.
About the Author:
Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.
View the full article
By Julia Coon,
Clause 552.238-74 Industrial Funding Fee and Sales Reporting requires all General Services Administration (GSA) Schedule contractors to report sales within 30 calendar days following the completion of the reporting period and remit the Industrial Funding Fee (IFF) within 30 calendar days following the end of each reporting quarter.
Over the next twelve months, GSA will be transitioning all GSA Schedule contracts from the legacy 72A Reporting System to the new Federal Acquisition Service (FAS) Sales Reporting Portal (SRP). The process will take place in three phases:
Phase One: Notification
Contractors will receive an email from GSA stating the date to begin reporting sales and submitting IFF in the FAS SRP. The date provided will be the first day of a reporting quarter, and no action is required until the end of the reporting period when it is time to report sales and submit the IFF.
Example: The contract is assigned a 1/1/2019 transition date, but no action is necessary until the January – March 2019 sales are required to be reported by April 30, 2019.
Phase Two: Final Reporting in the 72A Reporting System
Contractors will complete the final sales report and IFF remittance in the legacy 72A Reporting System.
Example: If the contract is assigned a 1/1/2019 transition date, the October 2018 – December 2018 sales and IFF will be the final report in the 72A System.
Phase Three: Transfer History from Legacy 72A Reporting System to the new FAS SRP
GSA will migrate the contract sales history to the FAS SRP. This will not occur until contractors have completed the last sales report in the 72A System. If there is a discrepancy between the IFF owed versus the IFF paid, contractors will be notified via email before the migration.
Where do you stand?
Contractors who are not participating in the Transactional Data Reporting (TDR) pilot will continue to report quarterly sales by Special Item Number (SIN) and remit IFF in the new system within 30 days following completion of the reporting quarter. Contractors who are participating in the TDR pilot should already be completing reporting requirements in the FAS SRP.
Currently digital certificates are required to access the FAS SRP; however, the MAS Program Management Office confirmed that GSA will be moving to a multi-factor authentication process in the coming months. All users will be required to register in the new system even if you are currently using a digital certificate to access the system. At the time of registration, you will have the option to select receiving the security code via phone or email. Contractors using a generic email address should choose to receive the security code via email at the time of registration.
Once registered in the FAS SRP, users will be able to access any GSA Schedule contract where their email address appears on the contract. To prepare for this transition, it is essential to review all authorized negotiators and points of contact currently listed on the contract to ensure anyone reporting sales and remitting the IFF is included. If updates are needed, you will need to submit a modification in the eMod system for your Contracting Officer’s approval.
If you are unsure which reporting system to use during the transition, you can look up your contract using the VSC Sales Reporting Lookup Tool. If you have any questions regarding the change or using the new FAS SRP, you can reach out to our GSA consulting team.
Want to learn more? Attend our Boot Camp for GSA Schedules training course.
About the Author:
Julia Coon
Consultant
Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA price lists.
View the full article
By Julia Coon,
Clause 552.238-74 Industrial Funding Fee and Sales Reporting requires all General Services Administration (GSA) Schedule contractors to report sales within 30 calendar days following the completion of the reporting period and remit the Industrial Funding Fee (IFF) within 30 calendar days following the end of each reporting quarter.
Over the next twelve months, GSA will be transitioning all GSA Schedule contracts from the legacy 72A Reporting System to the new Federal Acquisition Service (FAS) Sales Reporting Portal (SRP). The process will take place in three phases:
Phase One: Notification
Contractors will receive an email from GSA stating the date to begin reporting sales and submitting IFF in the FAS SRP. The date provided will be the first day of a reporting quarter, and no action is required until the end of the reporting period when it is time to report sales and submit the IFF.
Example: The contract is assigned a 1/1/2019 transition date, but no action is necessary until the January – March 2019 sales are required to be reported by April 30, 2019.
Phase Two: Final Reporting in the 72A Reporting System
Contractors will complete the final sales report and IFF remittance in the legacy 72A Reporting System.
Example: If the contract is assigned a 1/1/2019 transition date, the October 2018 – December 2018 sales and IFF will be the final report in the 72A System.
Phase Three: Transfer History from Legacy 72A Reporting System to the new FAS SRP
GSA will migrate the contract sales history to the FAS SRP. This will not occur until contractors have completed the last sales report in the 72A System. If there is a discrepancy between the IFF owed versus the IFF paid, contractors will be notified via email before the migration.
Where do you stand?
Contractors who are not participating in the Transactional Data Reporting (TDR) pilot will continue to report quarterly sales by Special Item Number (SIN) and remit IFF in the new system within 30 days following completion of the reporting quarter. Contractors who are participating in the TDR pilot should already be completing reporting requirements in the FAS SRP.
Currently digital certificates are required to access the FAS SRP; however, the MAS Program Management Office confirmed that GSA will be moving to a multi-factor authentication process in the coming months. All users will be required to register in the new system even if you are currently using a digital certificate to access the system. At the time of registration, you will have the option to select receiving the security code via phone or email. Contractors using a generic email address should choose to receive the security code via email at the time of registration.
Once registered in the FAS SRP, users will be able to access any GSA Schedule contract where their email address appears on the contract. To prepare for this transition, it is essential to review all authorized negotiators and points of contact currently listed on the contract to ensure anyone reporting sales and remitting the IFF is included. If updates are needed, you will need to submit a modification in the eMod system for your Contracting Officer’s approval.
If you are unsure which reporting system to use during the transition, you can look up your contract using the VSC Sales Reporting Lookup Tool. If you have any questions regarding the change or using the new FAS SRP, you can reach out to our GSA consulting team.
Want to learn more? Attend our Boot Camp for GSA Schedules training course.
About the Author:
Julia Coon
Consultant
Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA price lists.
View the full article
By Julia Coon,
Clause 552.238-74 Industrial Funding Fee and Sales Reporting requires all General Services Administration (GSA) Schedule contractors to report sales within 30 calendar days following the completion of the reporting period and remit the Industrial Funding Fee (IFF) within 30 calendar days following the end of each reporting quarter. Over the next twelve months, GSA will be transitioning all GSA Schedule contracts from the legacy 72A Reporting System to the new Federal Acquisition Service (FAS) Sales Reporting Portal (SRP). The process will take place in three phases:
Phase One: Notification
Contractors will receive an email from GSA stating the date to begin reporting sales and submitting IFF in the FAS SRP. The date provided will be the first day of a reporting quarter, and no action is required until the end of the reporting period when it is time to report sales and submit the IFF.
Example: The contract is assigned a 1/1/2019 transition date, but no action is necessary until the January – March 2019 sales are required to be reported by April 30, 2019.
Phase Two: Final Reporting in the 72A Reporting System
Contractors will complete the final sales report and IFF remittance in the legacy 72A Reporting System.
Example: If the contract is assigned a 1/1/2019 transition date, the October 2018 – December 2018 sales and IFF will be the final report in the 72A System.
Phase Three: Transfer History from Legacy 72A Reporting System to the new FAS SRP
GSA will migrate the contract sales history to the FAS SRP. This will not occur until contractors have completed the last sales report in the 72A System. If there is a discrepancy between the IFF owed versus the IFF paid, contractors will be notified via email before the migration.
Where do you stand?
Contractors who are not participating in the Transactional Data Reporting (TDR) pilot will continue to report quarterly sales by Special Item Number (SIN) and remit IFF in the new system within 30 days following completion of the reporting quarter. Contractors who are participating in the TDR pilot should already be completing reporting requirements in the FAS SRP.
Currently digital certificates are required to access the FAS SRP; however, the MAS Program Management Office confirmed that GSA will be moving to a multi-factor authentication process in the coming months. All users will be required to register in the new system even if you are currently using a digital certificate to access the system. At the time of registration, you will have the option to select receiving the security code via phone or email. Contractors using a generic email address should choose to receive the security code via email at the time of registration.
Once registered in the FAS SRP, users will be able to access any GSA Schedule contract where their email address appears on the contract. To prepare for this transition, it is essential to review all authorized negotiators and points of contact currently listed on the contract to ensure anyone reporting sales and remitting the IFF is included. If updates are needed, you will need to submit a modification in the eMod system for your Contracting Officer’s approval.
If you are unsure which reporting system to use during the transition, you can look up your contract using the VSC Sales Reporting Lookup Tool. If you have any questions regarding the change or using the new FAS SRP, you can reach out to our GSA consulting team.
Want to learn more? Attend our Boot Camp for GSA Schedules training course.
About the Author:
Julia Coon
Consultant
Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA price lists.
View the full article
By William Weisberg, Esq,
Organizational Conflicts of Interest (OCI) are a well-known fixture of government contracting. OCI has its own FAR subsection, FAR part 9.5, and figures prominently in several GAO bid protests every year. OCIs can be waived by the Government, and mitigated by contractors, with the Government’s approval.
OCIs are situations where a contractor either has an unfair competitive advantage from previous work done, has impaired objectivity, or has other prohibited items.
I spend a fair amount of my professional life advising clients on how to mitigate or avoid OCIs, and in protesting OCIs during competitive procurements.
Bad News
Everyone agrees that OCIs are bad. But until a recent False Claims Act settlement (FCA) between the Department of Justice (DOJ) and a contractor, we didn’t know just how bad.
In recent years, many if not all solicitations require contractors to certify that they do not have an OCI or identify any potential OCIs. This certification certainly seems like a material certification under the Supreme Court’s Escobar standard, because FAR part 9.5 generally prohibits the award of a contract to an offeror with an un-waived and unmitigated OCI.
Violations
For false OCI certifications, the Government would not award a contract, and certainly not pay invoices submitted under the contract. A clear FCA violation.
But until now, most contractors assumed that the worst thing that could happen with an OCI is that they lost a contract after a GAO bid protest.
Sending a message
A recent DOJ announcement of a $110,000 False Claims Act settlement with a Colorado-based IT company, stemming from false statements regarding the lack of an OCI, surprised many. To say the case landed with a loud bang is an understatement.
The danger to contractors is obvious. OCIs can be tough to identify, particularly because they can be created by subcontractors or even individual employees based on their prior positions. Failure to properly screen for OCIs can lead to false statements and false claims based on the “reckless disregard for accuracy” standard that Courts and DOJ use as an alternative to intentional violations.
The takeaway from this recent OCI case is straightforward but urgent. Contractors should implement a formal OCI screening process as part of their proposal preparation and should document both the methodology and the result. That process should also be integrated into their formal Government Contract Compliance Program.
About the Author:
William Weisberg, Esq
Of Counsel
William Weisberg is a government contracts attorney with 30 years of experience. Bill received his undergraduate degree from the University of Virginia (where he was an Echols Scholar) in 1983 and his law degree from the George Washington University in 1986. Bill practiced with large international law firms for over 25 years, the last 10 of which he led his firms’ Government Contract and Grant practice groups. Bill formed his own boutique government contract firm in 2013.
View the full article
By William Weisberg, Esq,
Organizational Conflicts of Interest (OCI) are a well-known fixture of government contracting. OCI has its own FAR subsection, FAR part 9.5, and figures prominently in several GAO bid protests every year. OCIs can be waived by the Government, and mitigated by contractors, with the Government’s approval.
OCIs are situations where a contractor either has an unfair competitive advantage from previous work done, has impaired objectivity, or has other prohibited items.
I spend a fair amount of my professional life advising clients on how to mitigate or avoid OCIs, and in protesting OCIs during competitive procurements.
Bad News
Everyone agrees that OCIs are bad. But until a recent False Claims Act settlement (FCA) between the Department of Justice (DOJ) and a contractor, we didn’t know just how bad.
In recent years, many if not all solicitations require contractors to certify that they do not have an OCI or identify any potential OCIs. This certification certainly seems like a material certification under the Supreme Court’s Escobar standard, because FAR part 9.5 generally prohibits the award of a contract to an offeror with an un-waived and unmitigated OCI.
Violations
For false OCI certifications, the Government would not award a contract, and certainly not pay invoices submitted under the contract. A clear FCA violation.
But until now, most contractors assumed that the worst thing that could happen with an OCI is that they lost a contract after a GAO bid protest.
Sending a message
A recent DOJ announcement of a $110,000 False Claims Act settlement with a Colorado-based IT company, stemming from false statements regarding the lack of an OCI, surprised many. To say the case landed with a loud bang is an understatement.
The danger to contractors is obvious. OCIs can be tough to identify, particularly because they can be created by subcontractors or even individual employees based on their prior positions. Failure to properly screen for OCIs can lead to false statements and false claims based on the “reckless disregard for accuracy” standard that Courts and DOJ use as an alternative to intentional violations.
The takeaway from this recent OCI case is straightforward but urgent. Contractors should implement a formal OCI screening process as part of their proposal preparation and should document both the methodology and the result. That process should also be integrated into their formal Government Contract Compliance Program.
About the Author:
William Weisberg, Esq
Of Counsel
William Weisberg is a government contracts attorney with 30 years of experience. Bill received his undergraduate degree from the University of Virginia (where he was an Echols Scholar) in 1983 and his law degree from the George Washington University in 1986. Bill practiced with large international law firms for over 25 years, the last 10 of which he led his firms’ Government Contract and Grant practice groups. Bill formed his own boutique government contract firm in 2013.
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By William Weisberg,
Organizational Conflicts of Interest (OCI) are a well-known fixture of government contracting. OCI has its own FAR subsection, FAR part 9.5, and figures prominently in several GAO bid protests every year. OCIs can be waived by the Government, and mitigated by contractors, with the Government’s approval.
OCIs are situations where a contractor either has an unfair competitive advantage from previous work done, has impaired objectivity, or has other prohibited items.
I spend a fair amount of my professional life advising clients on how to mitigate or avoid OCIs, and in protesting OCIs during competitive procurements.
Bad News
Everyone agrees that OCIs are bad. But until a recent False Claims Act settlement (FCA) between the Department of Justice (DOJ) and a contractor, we didn’t know just how bad.
In recent years, many if not all solicitations require contractors to certify that they do not have an OCI or identify any potential OCIs. This certification certainly seems like a material certification under the Supreme Court’s Escobar standard, because FAR part 9.5 generally prohibits the award of a contract to an offeror with an un-waived and unmitigated OCI.
Violations
For false OCI certifications, the Government would not award a contract, and certainly not pay invoices submitted under the contract. A clear FCA violation.
But until now, most contractors assumed that the worst thing that could happen with an OCI is that they lost a contract after a GAO bid protest.
Sending a message
A recent DOJ announcement of a $110,000 False Claims Act settlement with a Colorado-based IT company, stemming from false statements regarding the lack of an OCI, surprised many. To say the case landed with a loud bang is an understatement.
The danger to contractors is obvious. OCIs can be tough to identify, particularly because they can be created by subcontractors or even individual employees based on their prior positions. Failure to properly screen for OCIs can lead to false statements and false claims based on the “reckless disregard for accuracy” standard that Courts and DOJ use as an alternative to intentional violations.
The takeaway from this recent OCI case is straightforward but urgent. Contractors should implement a formal OCI screening process as part of their proposal preparation and should document both the methodology and the result. That process should also be integrated into their formal Government Contract Compliance Program.
About the Author:
William Weisberg, Esq
Of Counsel
William Weisberg is a government contracts attorney with 30 years of experience. Bill received his undergraduate degree from the University of Virginia (where he was an Echols Scholar) in 1983 and his law degree from the George Washington University in 1986. Bill practiced with large international law firms for over 25 years, the last 10 of which he led his firms’ Government Contract and Grant practice groups. Bill formed his own boutique government contract firm in 2013.
View the full article
By Angel N. Davis,
Happy New Year and Happy Contracting!
As we enter 2019, we have the opportunity to make and commit to several resolutions with the hope of remaining steadfast and following through with at least a few. As an industry, a company and an individual now is the time to set goals for the new year.
What can we expect in 2019?
2019 will undoubtedly continue being a year of technological disruption. Due to that, this year our government will place a high value on:
Acquisition reform
Cyber-security
Innovation
Government-Industry collaboration
As thought leaders within government and industry, we must be prepared to adapt to these changes and ensure that the workforce is equipped with the appropriate tools and resources to make effective business decisions that have the least amount of risk and the best overall value. Is your organization, adequately equipped to support these changes?
Acquisition reform
While Acquisition Reform is not a new topic, its importance is heightened as we discover more innovative ways to deliver services and products, in a more streamlined way in support of all government agencies. As the Acquisition Reform initiative continues to mature, input from industry leaders and stakeholders will help to shape future acquisition reform policies. Let’s resolve to initiate continuous dialogue in support of Acquisition Reform initiative.
Cyber-Security
With the constant challenges of Cyberwarfare, vigorous Cyber-Security solutions must be implemented in order to protect government and industry networks. Federal regulations will continuously be revised to keep up with the constant Cyber threats. Is your organization prepared to deliver services and products in accordance with these new regulations? Has the cost and business risk been analyzed to support and implement these cyber-security solutions?
Innovation and collaboration
With the evolution of Other Transaction Agreements (OTAs), Block Chain, Artificial Intelligence (AI) and many other Smart Technologies, Government- Industry collaboration is significant. We must work together to utilize these new technologies to support innovation within the Government Contracting and Acquisition communities. This new technology will undoubtedly drive the future of Government Contracting. We should anticipate solicitations being shaped to support such technological advances and be prepared to respond accordingly.
Centre Law and Consulting, LLC., takes pride in supporting our clients and providing consulting and training services that align with the latest Federal Regulations and Emerging Technologies. As you head into the New Year, please contact us to find out how we can support your organization’s New Year Resolutions.
About the Author:
Angel Davis, CFCM
Contracts Manager
Angel N. Davis has over thirteen years of experience in federal contracts management. She is a Certified Federal Contracts Manager (CFCM) and is currently President of the Tysons Chapter of the National Contract Management Association (NCMA). While completing the NCMA Contract Management Leadership Development Program (CMLDP), Angel successfully pioneered the NCMA Tysons Women In Leadership Initiative.
View the full article
By Angel N. Davis,
Happy New Year and Happy Contracting!
As we enter 2019, we have the opportunity to make and commit to several resolutions with the hope of remaining steadfast and following through with at least a few. As an industry, a company and an individual now is the time to set goals for the new year.
What can we expect in 2019?
2019 will undoubtedly continue being a year of technological disruption. Due to that, this year our government will place a high value on:
Acquisition reform
Cyber-security
Innovation
Government-Industry collaboration
As thought leaders within government and industry, we must be prepared to adapt to these changes and ensure that the workforce is equipped with the appropriate tools and resources to make effective business decisions that have the least amount of risk and the best overall value. Is your organization, adequately equipped to support these changes?
Acquisition reform
While Acquisition Reform is not a new topic, its importance is heightened as we discover more innovative ways to deliver services and products, in a more streamlined way in support of all government agencies. As the Acquisition Reform initiative continues to mature, input from industry leaders and stakeholders will help to shape future acquisition reform policies. Let’s resolve to initiate continuous dialogue in support of Acquisition Reform initiative.
Cyber-Security
With the constant challenges of Cyberwarfare, vigorous Cyber-Security solutions must be implemented in order to protect government and industry networks. Federal regulations will continuously be revised to keep up with the constant Cyber threats. Is your organization prepared to deliver services and products in accordance with these new regulations? Has the cost and business risk been analyzed to support and implement these cyber-security solutions?
Innovation and collaboration
With the evolution of Other Transaction Agreements (OTAs), Block Chain, Artificial Intelligence (AI) and many other Smart Technologies, Government- Industry collaboration is significant. We must work together to utilize these new technologies to support innovation within the Government Contracting and Acquisition communities. This new technology will undoubtedly drive the future of Government Contracting. We should anticipate solicitations being shaped to support such technological advances and be prepared to respond accordingly.
Centre Law and Consulting, LLC., takes pride in supporting our clients and providing consulting and training services that align with the latest Federal Regulations and Emerging Technologies. As you head into the New Year, please contact us to find out how we can support your organization’s New Year Resolutions.
About the Author:
Angel Davis, CFCM
Contracts Manager
Angel N. Davis has over thirteen years of experience in federal contracts management. She is a Certified Federal Contracts Manager (CFCM) and is currently President of the Tysons Chapter of the National Contract Management Association (NCMA). While completing the NCMA Contract Management Leadership Development Program (CMLDP), Angel successfully pioneered the NCMA Tysons Women In Leadership Initiative.
View the full article
By Angel Davis
Happy New Year and Happy Contracting!
As we enter 2019, we have the opportunity to make and commit to several resolutions with the hope of remaining steadfast and following through with at least a few. As an industry, a company and an individual now is the time to set goals for the new year.
What can we expect in 2019?
2019 will undoubtedly continue being a year of technological disruption. Due to that, this year our government will place a high value on:
Acquisition reform
Cyber-security
Innovation
Government-Industry collaboration
As thought leaders within government and industry, we must be prepared to adapt to these changes and ensure that the workforce is equipped with the appropriate tools and resources to make effective business decisions that have the least amount of risk and the best overall value. Is your organization, adequately equipped to support these changes?
Acquisition reform
While Acquisition Reform is not a new topic, its importance is heightened as we discover more innovative ways to deliver services and products, in a more streamlined way in support of all government agencies. As the Acquisition Reform initiative continues to mature, input from industry leaders and stakeholders will help to shape future acquisition reform policies. Let’s resolve to initiate continuous dialogue in support of Acquisition Reform initiative.
Cyber-Security
With the constant challenges of Cyberwarfare, vigorous Cyber-Security solutions must be implemented in order to protect government and industry networks. Federal regulations will continuously be revised to keep up with the constant Cyber threats. Is your organization prepared to deliver services and products in accordance with these new regulations? Has the cost and business risk been analyzed to support and implement these cyber-security solutions?
Innovation and collaboration
With the evolution of Other Transaction Agreements (OTAs), Block Chain, Artificial Intelligence (AI) and many other Smart Technologies, Government- Industry collaboration is significant. We must work together to utilize these new technologies to support innovation within the Government Contracting and Acquisition communities. This new technology will undoubtedly drive the future of Government Contracting. We should anticipate solicitations being shaped to support such technological advances and be prepared to respond accordingly.
Centre Law and Consulting, LLC., takes pride in supporting our clients and providing consulting and training services that align with the latest Federal Regulations and Emerging Technologies. As you head into the New Year, please contact us to find out how we can support your organization’s New Year Resolutions.
View the full article
By Stephanie Fine, Esq.
With the holidays upon us and the new year just around the corner, it is time to start thinking about new solicitations in the pipeline for the next calendar year and your record of past performance. Almost every government proposal requires information on past performance, and it’s inarguably one of the most critical parts.
Why does past performance matter?
Past performance shows the government that your company is capable of performing the work it says it can. It’s also used as a discriminator in the evaluation and selection process to evaluate how well your company has delivered on similar programs.
For small companies that possess no past performance in a particular area or who are looking to break into a new government contracting area, it can be challenging to win federal contracts without relevant and quality past performance.
Build it and they will come
A smart way to build your past performance so that you can eventually become a prime contractor is through subcontracting. Subcontracting is one of the most highly used methods for obtaining past performance. With government requirements growing in size and scope, there is an enormous opportunity for businesses to perform specific needs of a larger contract as a subcontractor. Some very large contracts even require a subcontracting plan to outsource to small business subcontractors. Others require large companies to subcontract with small businesses.
One way to get your foot in the door is to team up with a reputable and experienced company that has experience working with the government in a specific area. Prior to the government issuing a solicitation, you can identify possible teaming partners, and reach out to them either by cold calling or sending emails, and then demonstrating to these companies how your business’ background and solutions can benefit their future work.
The proactive approach
Another way to land a subcontracting opportunity is to identify recent awards and reach out to the business that received the contract and find out whether there is an opportunity for a subcontracting relationship. A recent awardee of a contract may be seeking the resources that your company has to help fulfill the contract requirements.
Once you have earned past performance as a subcontractor on a federal contract, you can point to those federal projects as evidence of understanding how these type project requirements work, which will help establish your credibility as a federal prime contractor.
About the Author:
Stephanie Fine, Esq.
Proposal Writer
Stephanie Fine is a Proposal Writer for Federal Contracts and Training. She is responsible for managing the proposal processing including preparing proposal responses and acquiring new business opportunities, and the development of the pipeline used for solicitation tracking and proposal development. She is experienced in business development and proposal management and also worked as a practicing attorney in commercial litigation and insurance defense.
View the full article
By Stephanie Fine, Esq.
With the holidays upon us and the new year just around the corner, it is time to start thinking about new solicitations in the pipeline for the next calendar year and your record of past performance. Almost every government proposal requires information on past performance, and it’s inarguably one of the most critical parts.
Why does past performance matter?
Past performance shows the government that your company is capable of performing the work it says it can. It’s also used as a discriminator in the evaluation and selection process to evaluate how well your company has delivered on similar programs.
For small companies that possess no past performance in a particular area or who are looking to break into a new government contracting area, it can be challenging to win federal contracts without relevant and quality past performance.
Build it and they will come
A smart way to build your past performance so that you can eventually become a prime contractor is through subcontracting. Subcontracting is one of the most highly used methods for obtaining past performance. With government requirements growing in size and scope, there is an enormous opportunity for businesses to perform specific needs of a larger contract as a subcontractor. Some very large contracts even require a subcontracting plan to outsource to small business subcontractors. Others require large companies to subcontract with small businesses.
One way to get your foot in the door is to team up with a reputable and experienced company that has experience working with the government in a specific area. Prior to the government issuing a solicitation, you can identify possible teaming partners, and reach out to them either by cold calling or sending emails, and then demonstrating to these companies how your business’ background and solutions can benefit their future work.
The proactive approach
Another way to land a subcontracting opportunity is to identify recent awards and reach out to the business that received the contract and find out whether there is an opportunity for a subcontracting relationship. A recent awardee of a contract may be seeking the resources that your company has to help fulfill the contract requirements.
Once you have earned past performance as a subcontractor on a federal contract, you can point to those federal projects as evidence of understanding how these type project requirements work, which will help establish your credibility as a federal prime contractor.
About the Author:
Stephanie Fine, Esq.
Proposal Writer
Stephanie Fine is a Proposal Writer for Federal Contracts and Training. She is responsible for managing the proposal processing including preparing proposal responses and acquiring new business opportunities, and the development of the pipeline used for solicitation tracking and proposal development. She is experienced in business development and proposal management and also worked as a practicing attorney in commercial litigation and insurance defense.
View the full article
By Stephanie Fine, Esq.
With the holidays upon us and the new year just around the corner, it is time to start thinking about new solicitations in the pipeline for the next calendar year and your record of past performance. Almost every government proposal requires information on past performance, and it’s inarguably one of the most critical parts.
Why does past performance matter?
Past performance shows the government that your company is capable of performing the work it says it can. It’s also used as a discriminator in the evaluation and selection process to evaluate how well your company has delivered on similar programs.
For small companies that possess no past performance in a particular area or who are looking to break into a new government contracting area, it can be challenging to win federal contracts without relevant and quality past performance.
Build it and they will come
A smart way to build your past performance so that you can eventually become a prime contractor is through subcontracting. Subcontracting is one of the most highly used methods for obtaining past performance. With government requirements growing in size and scope, there is an enormous opportunity for businesses to perform specific needs of a larger contract as a subcontractor. Some very large contracts even require a subcontracting plan to outsource to small business subcontractors. Others require large companies to subcontract with small businesses.
One way to get your foot in the door is to team up with a reputable and experienced company that has experience working with the government in a specific area. Prior to the government issuing a solicitation, you can identify possible teaming partners, and reach out to them either by cold calling or sending emails, and then demonstrating to these companies how your business’ background and solutions can benefit their future work.
The proactive approach
Another way to land a subcontracting opportunity is to identify recent awards and reach out to the business that received the contract and find out whether there is an opportunity for a subcontracting relationship. A recent awardee of a contract may be seeking the resources that your company has to help fulfill the contract requirements.
Once you have earned past performance as a subcontractor on a federal contract, you can point to those federal projects as evidence of understanding how these type project requirements work, which will help establish your credibility as a federal prime contractor.
About the Author:
Stephanie Fine, Esq.
Proposal Writer
Stephanie Fine is a Proposal Writer for Federal Contracts and Training. She is responsible for managing the proposal processing including preparing proposal responses and acquiring new business opportunities, and the development of the pipeline used for solicitation tracking and proposal development. She is experienced in business development and proposal management and also worked as a practicing attorney in commercial litigation and insurance defense.
View the full article
At the end of each fiscal year, the GAO submits its Bid Protest Annual Report to Congress. This report details the number of cases received by GAO (which includes protests, cost claims, and requests for reconsideration) and a summary of the overall outcomes of the cases.
In FY2018, 2,607 cases were filed at the GAO, of those 2,474 were bid protests (the remaining approximately 130 cases being cost claims and requests for reconsideration). Only 622 of those cases reached a decision on the merits, with only 92 of those cases being sustained (a mere 15% of cases).
The effectiveness rate which includes a protester obtaining some form of relief from the agency, including corrective action or the GAO sustaining the protest, was slightly down from FY2017 at 44%. While the sustain rate is slightly down from the 47% in FY2017 (which only amounted to a decrease in seven cases), the statistics are relatively similar to that of the preceding year.
However, the more important takeaway this year may be the GAO’s most prevalent grounds for sustaining protests. The GAO’s annual bid protest reports have been including this information since the implementation of the FY2013 NDAA, which required the GAO to include in its annual report to Congress a summary of the most common grounds for sustaining protests during the year.
For FY2018, the most prevalent reasons for sustaining protests according to the GAO were:
Unreasonable technical evaluation
Unreasonable cost or price evaluation
Flawed selection decision
Of note is the difference between the FY2018 most prevalent grounds and the FY2017 most prevalent grounds. While unreasonable technical evaluation remains the most prevalent reason for sustaining a protest for the third year in a row, flawed selection decision was bumped up to third most prevalent ground from fifth in FY2017. Also noteworthy is the absence of unreasonable past performance evaluation form this list. Unreasonable past performance evaluation has been the second most prevalent ground for sustaining a protest for the most past three fiscal years (FY2015, FY2016, and FY2017).
Thus, while it remains to be seen if the absence of sustained protests on the ground of unreasonable past performance evaluation will continue into FY2019, it remains a protester’s best bet to allege an unreasonable technical evaluation to get relief from the GAO, even if the chances of a sustain remain low overall.
About the Author:
Heather Mims
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.
View the full article
At the end of each fiscal year, the GAO submits its Bid Protest Annual Report to Congress. This report details the number of cases received by GAO (which includes protests, cost claims, and requests for reconsideration) and a summary of the overall outcomes of the cases.
In FY2018, 2,607 cases were filed at the GAO, of those 2,474 were bid protests (the remaining approximately 130 cases being cost claims and requests for reconsideration). Only 622 of those cases reached a decision on the merits, with only 92 of those cases being sustained (a mere 15% of cases).
The effectiveness rate which includes a protester obtaining some form of relief from the agency, including corrective action or the GAO sustaining the protest, was slightly down from FY2017 at 44%. While the sustain rate is slightly down from the 47% in FY2017 (which only amounted to a decrease in seven cases), the statistics are relatively similar to that of the preceding year.
However, the more important takeaway this year may be the GAO’s most prevalent grounds for sustaining protests. The GAO’s annual bid protest reports have been including this information since the implementation of the FY2013 NDAA, which required the GAO to include in its annual report to Congress a summary of the most common grounds for sustaining protests during the year.
For FY2018, the most prevalent reasons for sustaining protests according to the GAO were:
Unreasonable technical evaluation
Unreasonable cost or price evaluation
Flawed selection decision
Of note is the difference between the FY2018 most prevalent grounds and the FY2017 most prevalent grounds. While unreasonable technical evaluation remains the most prevalent reason for sustaining a protest for the third year in a row, flawed selection decision was bumped up to third most prevalent ground from fifth in FY2017. Also noteworthy is the absence of unreasonable past performance evaluation form this list. Unreasonable past performance evaluation has been the second most prevalent ground for sustaining a protest for the most past three fiscal years (FY2015, FY2016, and FY2017).
Thus, while it remains to be seen if the absence of sustained protests on the ground of unreasonable past performance evaluation will continue into FY2019, it remains a protester’s best bet to allege an unreasonable technical evaluation to get relief from the GAO, even if the chances of a sustain remain low overall.
About the Author:
Heather Mims
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.
View the full article
At the end of each fiscal year, the GAO submits its Bid Protest Annual Report to Congress. This report details the number of cases received by GAO (which includes protests, cost claims, and requests for reconsideration) and a summary of the overall outcomes of the cases.
In FY2018, 2,607 cases were filed at the GAO, of those 2,474 were bid protests (the remaining approximately 130 cases being cost claims and requests for reconsideration). Only 622 of those cases reached a decision on the merits, with only 92 of those cases being sustained (a mere 15% of cases).
The effectiveness rate which includes a protester obtaining some form of relief from the agency, including corrective action or the GAO sustaining the protest, was slightly down from FY2017 at 44%. While the sustain rate is slightly down from the 47% in FY2017 (which only amounted to a decrease in seven cases), the statistics are relatively similar to that of the preceding year.
However, the more important takeaway this year may be the GAO’s most prevalent grounds for sustaining protests. The GAO’s annual bid protest reports have been including this information since the implementation of the FY2013 NDAA, which required the GAO to include in its annual report to Congress a summary of the most common grounds for sustaining protests during the year.
For FY2018, the most prevalent reasons for sustaining protests according to the GAO were:
Unreasonable technical evaluation
Unreasonable cost or price evaluation
Flawed selection decision
Of note is the difference between the FY2018 most prevalent grounds and the FY2017 most prevalent grounds. While unreasonable technical evaluation remains the most prevalent reason for sustaining a protest for the third year in a row, flawed selection decision was bumped up to third most prevalent ground from fifth in FY2017. Also noteworthy is the absence of unreasonable past performance evaluation form this list. Unreasonable past performance evaluation has been the second most prevalent ground for sustaining a protest for the most past three fiscal years (FY2015, FY2016, and FY2017).
Thus, while it remains to be seen if the absence of sustained protests on the ground of unreasonable past performance evaluation will continue into FY2019, it remains a protester’s best bet to allege an unreasonable technical evaluation to get relief from the GAO, even if the chances of a sustain remain low overall.
About the Author:
Heather Mims
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.
View the full article
Last week the United States Supreme Court issued its decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service regarding an agency determination that certain lands were a “critical habitat” for the endangered dusky gopher frog and could not be developed. While some contemporaneous accounts of the oral arguments anticipated a likely split along ideological lines, the Court’s eventual decision was a unanimous one that overturned the lower courts’ affirmation of the agency’s actions.
While those of us who parse language and logic for a living may have fist-pumped at the Court’s holding that one cannot designate an area a “critical habitat” without first determining the area to be “habitat,” the larger import of the decision is found in its discussion of the scope of judicial review under the federal Administrative Procedures Act (APA).
In this regard, the Court noted that the APA creates a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action,’” which may be rebutted only if the relevant statute precludes review or if the action is “committed to agency discretion by law.” Below, the Fish and Wildlife Service contended, and the lower courts agreed, that the Endangered Species Act (ESA) commits to the agency’s Secretary’s discretion the decision not to exclude an area from the critical habitat designation. The Court noted the “tension” between the prohibition of judicial review for actions “committed to agency discretion” and the APA’s contrary command that courts set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Reviewing the relevant text of the ESA, the Court noted that the decision was not “wholly discretionary and therefore unreviewable.” Rather, the statute cabined the agency’s discretion and required that the agency consider economic and other impacts when making its decision. Thus, the Court described Weyerhaeuser’s claim as a “familiar one” in administrative law – i.e., that the agency purportedly did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion. As a result, the lower courts had erred in simply deferring to the agency’s exclusion decision and failing to substantively review the contention that the agency had “ignored some costs and conflated the benefits” in rendering its decision.
The ultimate import of Weyerhaeuser will only be known in time, which has not stopped partisans on either side from hailing the decision as either the beginning of the end of the “Administrative State” or the end of wildlife as we know it. While it is likely neither of the above, the decision does put agencies on notice that the scope of federal judicial review is quite broad, and that few “discretionary” actions will be insulated from challenge under the APA moving forward.
About the Author:
David Warner
Partner
David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.
View the full article
Last week the United States Supreme Court issued its decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service regarding an agency determination that certain lands were a “critical habitat” for the endangered dusky gopher frog and could not be developed. While some contemporaneous accounts of the oral arguments anticipated a likely split along ideological lines, the Court’s eventual decision was a unanimous one that overturned the lower courts’ affirmation of the agency’s actions.
While those of us who parse language and logic for a living may have fist-pumped at the Court’s holding that one cannot designate an area a “critical habitat” without first determining the area to be “habitat,” the larger import of the decision is found in its discussion of the scope of judicial review under the federal Administrative Procedures Act (APA).
In this regard, the Court noted that the APA creates a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action,’” which may be rebutted only if the relevant statute precludes review or if the action is “committed to agency discretion by law.” Below, the Fish and Wildlife Service contended, and the lower courts agreed, that the Endangered Species Act (ESA) commits to the agency’s Secretary’s discretion the decision not to exclude an area from the critical habitat designation. The Court noted the “tension” between the prohibition of judicial review for actions “committed to agency discretion” and the APA’s contrary command that courts set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Reviewing the relevant text of the ESA, the Court noted that the decision was not “wholly discretionary and therefore unreviewable.” Rather, the statute cabined the agency’s discretion and required that the agency consider economic and other impacts when making its decision. Thus, the Court described Weyerhaeuser’s claim as a “familiar one” in administrative law – i.e., that the agency purportedly did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion. As a result, the lower courts had erred in simply deferring to the agency’s exclusion decision and failing to substantively review the contention that the agency had “ignored some costs and conflated the benefits” in rendering its decision.
The ultimate import of Weyerhaeuser will only be known in time, which has not stopped partisans on either side from hailing the decision as either the beginning of the end of the “Administrative State” or the end of wildlife as we know it. While it is likely neither of the above, the decision does put agencies on notice that the scope of federal judicial review is quite broad, and that few “discretionary” actions will be insulated from challenge under the APA moving forward.
About the Author:
David Warner
Partner
David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.
View the full article
Last week the United States Supreme Court issued its decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service regarding an agency determination that certain lands were a “critical habitat” for the endangered dusky gopher frog and could not be developed. While some contemporaneous accounts of the oral arguments anticipated a likely split along ideological lines, the Court’s eventual decision was a unanimous one that overturned the lower courts’ affirmation of the agency’s actions.
While those of us who parse language and logic for a living may have fist-pumped at the Court’s holding that one cannot designate an area a “critical habitat” without first determining the area to be “habitat,” the larger import of the decision is found in its discussion of the scope of judicial review under the federal Administrative Procedures Act (APA).
In this regard, the Court noted that the APA creates a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action,’” which may be rebutted only if the relevant statute precludes review or if the action is “committed to agency discretion by law.” Below, the Fish and Wildlife Service contended, and the lower courts agreed, that the Endangered Species Act (ESA) commits to the agency’s Secretary’s discretion the decision not to exclude an area from the critical habitat designation. The Court noted the “tension” between the prohibition of judicial review for actions “committed to agency discretion” and the APA’s contrary command that courts set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Reviewing the relevant text of the ESA, the Court noted that the decision was not “wholly discretionary and therefore unreviewable.” Rather, the statute cabined the agency’s discretion and required that the agency consider economic and other impacts when making its decision. Thus, the Court described Weyerhaeuser’s claim as a “familiar one” in administrative law – i.e., that the agency purportedly did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion. As a result, the lower courts had erred in simply deferring to the agency’s exclusion decision and failing to substantively review the contention that the agency had “ignored some costs and conflated the benefits” in rendering its decision.
The ultimate import of Weyerhaeuser will only be known in time, which has not stopped partisans on either side from hailing the decision as either the beginning of the end of the “Administrative State” or the end of wildlife as we know it. While it is likely neither of the above, the decision does put agencies on notice that the scope of federal judicial review is quite broad, and that few “discretionary” actions will be insulated from challenge under the APA moving forward.
About the Author:
David Warner
Partner
David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.
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