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Getting “Real” – Agency’s Inadequate Price Realism Evaluation Supports Protest

By Hon. Jack Delman In Apogee Engineering, LLC, 2019 CPD 85, 2019 WL 927366 (February 21, 2019), the GAO recently sustained a protest, due to, among other things, the agency’s failure to show that it performed an adequate price realism evaluation as required by the RFP. The Department of Transportation, Office of the Secretary of Transportation (agency), issued the RFP as a competitive set aside under the SBA’s 8(a) program. The RFP contemplated the award of a labor hour contract with fixed-pr
 

“Professional Compensation” Sinks Contract Award

Last week, the Government Accountability Office (GAO) released the public version of its decision sustaining the protest of contractor A-P-T Research, Inc. with respect to a procurement with the National Aeronautics and Space Administration (NASA) for various support services. In addition to a potential impaired objectivity organizational conflict of interest, the protest was sustained because the awardee’s proposed professional compensation was at the low end of the experience and compensation
 

Reminder: Changes to Subcontracting Reporting Requirements—Effective November 30, 2017

By Wayne Simpson A Final Rule published in the Federal Register July 14, 2016, effective November 1, 2016, amended the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the U.S. Small Business Administration (SBA) , which provide for a Governmentwide policy on small business subcontracting.  One of the changed requirements effects subcontracting reports submitted after November 30, 2017. Specifically, the language at FAR 19.704(a)(10)(iii), 52.219-9(d)(10)(iii), and

Centre Law & Consulting

Centre Law & Consulting

 

NDAA Curbs Bid Protests (Somewhat) But Adds Enhanced Debriefings

By Barbara Kinosky  Yes, you read that right.  Deep in the murky depths of the $700 billion fiscal 2018 National Defense Authorization (NDAA) bill is language that puts a chill down the spine of protesters. Companies with revenue more than $250 million will have to pay the costs for filing losing protests on DoD procurements at the GAO.  Now protestors pay their own costs and attorneys’ fees with some exceptions. Section 827 of the NDAA would require DoD to launch a pilot program beginning in l

Centre Law & Consulting

Centre Law & Consulting

 

The Misplaced Rage Regarding Equifax’s Post Data Breach “Contract Award”

Much has been said on the security breach that exposed up to 145 million Americans’ most sensitive information. Not only had Equifax,  some say negligently, exposed half of America’s social security numbers, credit card information, and just about anything else needed to steal an identity, but the company thoroughly botched the cleanup by directing customers to a dubiously credentialed website and made a not-so-subtle attempt to induce its customers to waive any right to sue. The remarkable natu

Centre Law & Consulting

Centre Law & Consulting

 

Seven Steps for an Effective Compliance Program for the Buy American Statute and Trade Agreements Act

Are you selling your products or services to the U.S. Government? If so, what does your compliance program look like? There are seven different elements that you should have in place in order to be confident that your compliance program can be effective. The Buy American Statute (BAS) requires the U.S. Government to give a preference to U.S.-made goods over foreign-made goods in federal procurements. The Trade Agreements Act (TAA) prohibits the U.S. Government from buying products and services
 

A Newer Source Selection Procedure You May Not Know

In April 2016, the Department of Defense (DoD) published a memorandum expanding DoD Source Selection Procedures beyond Tradeoff and Lowest Price Technically Acceptable (LPTA) to include Value Adjusted Total Evaluated Price (VATEP) Tradeoff. This newer procedure’s intent is to help define how the government evaluates contractor capabilities that go beyond minimum requirements and reach the government’s objective. Although it’s been an option since April, we’re finding that many people still are

Centre Law & Consulting

Centre Law & Consulting

 

Pentagon Issues Internal Warning Against Use of Lenovo Equipment

Uh-oh, Lenovo… On September 26, the Pentagon’s Directorate for Intelligence, J-2, reportedly issued an internal report warning against the use of equipment made by computer manufacturer Lenovo because of concerns regarding potential cyber spying against defense networks. J-2 supports the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, Joint Staff, and Unified Commands, and it is the national focal point for crisis intelligence support to military operations, indications, and wa

Centre Law & Consulting

Centre Law & Consulting

 

Do You See a Link Between Maintaining Your GSA Schedule and the Movie Psycho?

By Maureen Jamieson As quoted by Norman Bates in Psycho – “She just goes a little mad sometimes. We all go a little mad sometimes. Haven’t you?” I’m not naming names, but I have worked with many clients who have gone quite mad when working to ensure compliance with their GSA Schedules. Having just celebrated Halloween, I am reminded of some frightening misconceptions surrounding GSA Schedules. Maintaining compliance with your schedule can be a grueling experience. Let’s not forget that blood-c

Centre Law & Consulting

Centre Law & Consulting

 

Top Five Reasons To Have an Approved Contractor Purchasing System

Let’s face it. We’d all rather be out selling and growing our businesses than having to deal with paperwork and audits, right? So when you hear that you have a Contractor Purchasing System Review (CPSR) coming up, it may cause a little anxiety and leave you wondering if it is really time well spent. Now the government will tell you that the purpose of a CPSR is to evaluate the efficiency and effectiveness of the way a contractor spends federal funds and complies with federal policy. It provides

Centre Law & Consulting

Centre Law & Consulting

 

Too Small For Contractor Purchasing System Review? You’re Still at Risk!

You are still at risk of Government oversight/review even if you fall below the threshold for the Contractor Purchasing System Review (CPSR).1 While, CPSR is a total business system review, there is a series of other Government activities that will look into your procurement business processes. Some of these other activities include; proposal analysis, interim payment reviews, incurred cost submissions, and compliance reviews with DFARS business system clauses. Proposal analysis by the Governme
 

Maintaining an Approved Purchasing System – Things That Get in the Way

In the past I have written about subcontracting compliance from the Contractor Purchasing System Review (CPSR) audit prospective. The three step process of system existence, system procedure adequacy and compliance is a very effective way to meet the FAR 44.3 CPSR goal of “efficiency and effectiveness with which the contractor spends Government funds and complies with Government policy when subcontracting”. How efficient and effective the contractor procurement system performs goes beyond these

Centre Law & Consulting

Centre Law & Consulting

 

Ownership & Control of Service-Disabled Veteran-Owned Small Businesses

By Wayne Simpson, CFCM, CSCM SBA Issues Proposed Rule –Comments due by March 30, 2018   The U.S. Small Business Administration (SBA) published its proposed rule for Ownership and Control of Service-Disabled Veteran-Owned Small Business Concerns in the Monday, January 29, 2018, edition of the Federal Register. The proposed rule, part of a joint effort by VA and SBA to reduce the regulatory burden on the Veteran Business Community, will amend SBA’s regulations to implement the provisions in Se

Centre Law & Consulting

Centre Law & Consulting

 

Protester Not Found to Be An Interested Party Where It Was The Awardee

Yes, you read the title correctly – a protester actually protested its own future award. In an interesting twist of fate, a company recently filed a pre-award bid protest only to find out that the agency had already evaluated the protester’s bid and intended to award the contract to the protester. Daekee Global Company, Ltd., a South Korean company, protested the terms of a solicitation issued by the Department of Navy for ship husbanding services arguing that the evaluation scheme failed to ev

Centre Law & Consulting

Centre Law & Consulting

 

What I Hate About Incurred Cost Proposals

If you remember the late 1990’s romantic comedy “10 Things I Hate About You” you might know that it did a lot of great things. It provided the platform for the venerable Heath Ledger’s coming out party, introduced the world to Julia Stiles, reminded us the kid from Third Rock from the Sun was, in fact, still here on Earth, and made more than $50M at the box office. Not too bad. But as the law of unintended consequences often works, it also inspired this blog article about Incurred Cost Proposa
 

President Trump Notwithstanding, Employment Law Compliance Should Remain A Top Concern in 2017

Over the last few years, the contractor community has braced itself to comply with a slew of new employment regulations issued as a result of Executive Orders by President Obama. These include Paid Sick Leave (up to 7 days), Minimum Wage ($10.20), Fair Pay and Safe Workplaces (reporting of labor law violations and paystub requirements, among others), and the Department of Labor’s regulations increasing the dollar threshold for overtime exemptions under the Fair Labor Standards Act (FLSA). Howev

Centre Law & Consulting

Centre Law & Consulting

 

Pentagon Issues Internal Warning Against Use of Lenovo Equipment

Uh-oh, Lenovo… On September 26, the Pentagon’s Directorate for Intelligence, J-2, reportedly issued an internal report warning against the use of equipment made by computer manufacturer Lenovo because of concerns regarding potential cyber spying against defense networks. J-2 supports the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, Joint Staff, and Unified Commands, and it is the national focal point for crisis intelligence support to military operations, indications, and wa

Centre Law & Consulting

Centre Law & Consulting

 

Pre-Award Audit: Is it Time to Panic?

Are you prepared for a letter from the U.S. General Services Administration Office of Inspector General (GSA OIG) stating that your company has been selected for a pre-award audit of the Commercial Sales Practice (CSP) pricing information that will become the basis for the pricing on your contract option extension? The Primary purpose of a Pre-Award Audit The purpose of the pre-award audit pursuant to Clause 52.215-21 Alternate IV (GSAM 515.408(a) (4) of the contract is to ensure that the CSP

Centre Law & Consulting

Centre Law & Consulting

 

Government Shutdown Showdown – Season 3

By Barbara Kinosky Action, cameras, déjà vu of 1995 and 2013, with the same story line except this time the President and both Houses of Congress are all Republican.  However, it is a divided Republican party which is not putting Paul Ryan in much of a party mood.  (And yes, I did steal “Shutdown Showdown” from CNN’s Chris Cillizza.  It will now be a race to the Patent & Trademark Office to get all rights for the new t-shirt line.)  This Friday night is the deadline for either the passage o

Centre Law & Consulting

Centre Law & Consulting

 

GSA Proposes New Rule Allowing Other Direct Costs into Schedules Program

GSA has finally acted on the request from customer agencies and industry partners to allow Order Level Materials (OLMs), frequently called Other Direct Costs (ODCs), into the Multiple Award Schedule (MAS) program. GSA is proposing to amend the General Services Administration Acquisition Regulation (GSAR) to establish special ordering procedures per FAR 8.403 (b). These new procedures will clarify the authority to acquire OLMs when placing an order or establishing a BPA against a Federal Supply

Centre Law & Consulting

Centre Law & Consulting

 

What Government Contractors Need to Know About the 2019 NDAA

By Heather Mims, On August 13, 2018, President Trump signed the Fiscal Year 2019 National Defense Authorization Act (2019 NDAA), which sets funding levels and outlines policy priorities for the Department of Defense (DoD). The 2019 NDAA allocated $616.9 billion for the DoD’s base budget, $69 billion for overseas contingency operations funding, $8.9 billion for mandatory defense spending, and $21.9 billion for nuclear weapons programs under the Department of Energy. The funding levels are inter
 

The Exit of SIP and Entrance of the Formatted Product Tool

If you have been working on GSA Schedules for the past few years, you may remember that in May 2012, GSA’s initiative was the end of the Schedule Input Program (SIP) and the mandatory use of the new Formatted Price List (FPL) for the Financial and Business Solutions (FABS) Schedule. There was much excitement generated by this news as we were all ready for the end of SIP. In January 2014, GSA announced that FABS would no longer utilize the FPL and all vendors were to return to SIP. As we look int
 

Trump’s 2-for-1 Reducing Regulation Order – What Does It Mean?

On January 30, 2017, President Trump issued an executive order (EO) entitled Reducing Regulation and Controlling Regulatory Costs. The aim of the EO is to reduce the number of regulations in order to “manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.” Specifically, the EO requires that whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it sh

Centre Law & Consulting

Centre Law & Consulting

 

Protecting a Forgetful Government – “Christian Doctrine” Alive and Well!

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)

Centre Law & Consulting

Centre Law & Consulting

 

Wojciech Kornacki Writes Article on Pricing Compliance Programs for Bloomberg BNA

Reproduced with permission from Federal Contracts Report, 105 FCR (June 21, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com Effective Trade Agreements Act and Pricing Compliance Programs for Federal Supply Schedules Recent scrutiny by Sen. Charles Schumer (D-N.Y.) and a $75.5 million settlement stemming from allegations of overcharging the U.S. government send a clear message: Vendors must be compliant with their Trade Agreements Act (TAA) and pr
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