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  2. And as an add on I would note that a search of GSA FSS contracts, which are commercial item acquisitions, lists advisory and assistance services as being available under said contracts. You may not have to invent the wheel to get to a commercial item determination.
  3. Yesterday
  4. Krusem - As you research the idea of A&A as a Performance Based acquisition if you have not visited these references you may find them of help in your quest. https://www.acquisition.gov/seven_steps/library/RAND_ImplementingPBSA.pdf
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  6. I’m starting to feel like the old Johnny Cash and Lynn Anderson song, I’ve Been Everywhere. After two trips out west earlier this month, I spent time this week in Wichita with the Kansas PTAC, and soon enough I will be back on the road for the SAME Omaha Post 2017 Industry Day. I am always grateful for the opportunity to meet contractors, government officials, and others in the industry–and I am always heartened by how many people I meet at these events have kind words to say about SmallGovCon. It’s Friday, and time for our weekly look at the latest in the government contracting world. In this edition of SmallGovCon Week In Review, a contractor faces potential jail time for selling Chinese-made items to the government, Defense analysts anticipate little impact from the recent “Buy American and Hire American” executive order, one commentator says that a recent LPTA National Guard contract hurts those who work to support our troops, and much more. When it comes to wishlists for the last half of 2017, financial and contracting experts say perhaps the most agencies can hope for from Congress is the status quo. [Federal News Radio] Defense analysts are anticipating little impact from President Donald Trump’s “Buy American and Hire American” executive order. [National Defense] One commentator says that a recent “low-ball” National Guard contract is hurting those who work to ‘support our troops.’ [San Francisco Chronicle] The federal government’s biggest challenge in defending its civilian, military and intelligence networks from hackers isn’t technology, it’s people. [Nextgov] The Army has announced that several cloud RFPs are already in the works under the new ACCENT contract. [Federal News Radio] A contractor (who is also a member of the Army Reserves) has been convicted of selling Chinese-made items to the government in violation of the Buy American Act, Berry Amendment, and the contracts’ “100% U.S. MADE” requirement. [United States Department of Justice] View the full article
  7. You're right -- here I am talking about words matter, and I read too quickly. I am pretty certain there are established market prices for services to assist with strategic planning efforts -- companies that are in this business do it all the time, on a firm-fixed-price basis -- you define the parameters (outcomes, expectations, and constraints) up front, and firms will give you FFP quotations. Regarding your last point, para (1) has three sentences. Vern emphasized the first sentence, and you emphasized the third sentence. I'm looking at the second sentence. That's why I wrote in my first posting, "The contractor would be expected to have some knowledge of facilitation and strategic planning, but no specific knowledge of your agency, your agency's operations, or the market sector in which your agency operates." Your original posting made me think the services you need are not closely related to the basic responsibilities and mission of the agency. However, if the services you need are closely related to the basic responsibilities and mission of the agency, then I understand where you're coming from.
  8. The commercial item definition "published" catalog prices and "established" market prices; thus, the reasoning behind the wording. My concern was whether this particular requirement, believed to be sold competitively in substantial quantities in the commercial marketplace, is done so based upon "established" market prices that can be substantiated through competition. In regards to the services, the contractor would assist the Government with strategic planning. The purpose of strategic planning is to develop organizational objectives for a wide array of mission-related areas. In reading management and professional support services described in FAR 2.101, it would appear that the excerpt below aligns with our requirement. Do you disagree? FAR 2.101 Thank you for the feedback.
  9. krusem, Why do you care about published catalog or market prices? For the definition of commercial services, the standard is established catalog or market prices. Prices may be established even if they are not published. Are the services you need closely related to the basic responsibilities and mission of the agency? Your original posting made me think not. But if yes, it makes sense to call them advisory and assistance services. Words matter. I recommend you consider a statement of objectives (SOO) approach instead of a PWS approach. You can identify the outcomes and the constraints well enough.
  10. Thank you for the information. I am currently reviewing guidance on that very topic. Initial market research indicates that this is a service commonly performed in the private sector, but further research is necessary to determine whether there is published catalog pricing or established market pricing. In addition, I am also reviewing guidance on PBSA as it relates to A&AS. My initial belief was that developing a PWS would not be an issue, but in giving it more thought, maybe I was a bit naive. This is certainly something I will have to discuss more thoroughly with my customer. Thank you very much!
  11. Your need if determined to be A&A, as supported by market research could also meet the definition of commercial item of FAR Part 2, noting that your contract type will play a role as well. If your need does then using entities off of GSA FSS or use of simplified acquisition procedures could be great options. Routes you may already be aware of, just mentioning due to the title of your post and the above quote from details of your post.
  12. Once again, I realize that if I read a bit more thoroughly I would likely find the answers to my own questions. Thank you very much Vern! You're always a great source of knowledge and your willingness to help is greatly appreciated.
  13. The VA has adopted a Class Deviation to the VAAR, severely restricting the ability of VA Contracting Officers to request waivers of the nonmanufacturer rule–and, even more troubling, suggesting that Contracting Officers need not apply the statutory SDVOSB and VOSB preferences even when the SBA has already granted a class waiver. You may be wondering “does the VA’s Class Deviation comply with Kingdomware?” Good question. Before diving into the details of the Class Deviation, let’s step back for a second to review why this is so important. Under the SBA’s regulations, when any contract is set-aside for small businesses (including SDVOSBs and VOSBs) under a manufacturing NAICS code, there are two ways that the prime contractor can satisfy the requirements of the limitations on subcontracting. As one option, the prime contractor can agree to pay no more than 50% of the amount paid by the government to it to firms that are not similarly situated. In other words, the prime can do most or all of the manufacturing itself (or work with similarly situated small businesses). Alternatively, the prime can sell the products of another business, so long as the prime qualifies as a nonmanufacturer. For VA SDVOSB set-asides, VAAR 852.219-10 (VA Notice of Total Service-Disabled Veteran-Owned Small Business Set-Aside) provides the applicable limitation on subcontracting. While this clause has not yet been updated to reflect the new wording of the SBA’s regulations, it also recognizes the nonmanufacturer exception. A nearly-identical provision is set forth in VAAR 852.219-11, which governs VOSB set-asides. The nonmanufacturer rule, in turn, states that a company qualifies when it meets four requirements. Among those, the company must “supply the end item of a small business manufacturer, processor or producer made in the United States or [obtain] a waiver of such requirement.” The SBA is the only agency empowered to grant nonmanufacturer rule waivers. An SBA nonmanufacturer rule waiver can be a “class” waiver, which applies to a class of products after the SBA determines that there are no small business manufacturers available to participate in the Federal procurement marketplace. Anyone can request that the SBA process a class waiver. Alternatively, the SBA can grant an “individual” nonmanufacturer rule waiver when it determines that no small business manufacturers are likely to be available for a particular solicitation. Only a Contracting Officer can request an individual waiver. So, to sum up, if a small business (including an SDVOSB or VOSB) wants to sell the product of a large business under a set-aside contract, the small business may do so provided that an SBA class waiver or nonmanufacturer rule waiver is in place (and provided that the small business satisfies the other criteria of the nonmanufacturer rule). Many small businesses validly sell products this way: the SBA’s current class waiver list spans 14 pages. That takes us to the VA’s recent Class Deviation. The Class Deviation does two things. First, the Class Deviation states that a Contracting Officer must receive the approval of the Head of the Contracting Activity, or HCA, to request an individual nonmanufacturer rule waiver from the SBA. As this helpful GAO report states (see pages 3 and 4) there are only eight HCAs in the entire VA. (For comparison, that’s the same number of people who have been in the Rolling Stones). So the Class Deviation strips the discretion to request nonmanufacturer rule class waivers from VA Contracting Officers (where the FAR says it belongs) and limits it to only eight individuals. Further, the HCA’s authority to approve individual nonmanufacturer waiver requests “cannot be redelegated.” Anyone want to guess what this is likely to do to the number of requested and approved individual nonmanufacturer rule waiver requests? Second, the Class Deviation says that “[w]here the SBA has issued a class waiver to the Nonmanufacturer Rule, a contracting officer must receive approval from the HCA prior to utilizing other than competitive procedures or restricted competition as defined in 38 U.S.C. 8127.” The Class Deviation says that “[t]his is necessary to ensure HCAs have situational awareness of issues prompting the requests or use and, if needed, can take actions to mitigate requests or use.” This authority, too, “cannot be redelegated.” If you think that 38 U.S.C. 8127 sounds familiar, you’re absolutely right–it’s the “rule of two” statute made famous by Kingdomware. When the Class Deviation says “other than competitive procedures,” it means “SDVOSB and VOSB sole source contracts.” When the Class Deviation says “restricted competition” it means “SDVOSB and VOSB set-asides.” In other words, the Class Deviation provides that a Contracting Officer cannot make an SDVOSB or VOSB sole source award or establish an SDVOSB or VOSB set-aside competition for a product covered by an SBA nonmanufacturer rule class waiver unless the HCA approves. The almost-certain result is that many procurements that otherwise would have been set aside for SDVOSB and VOSB nonmanufacturers will be issued as unrestricted instead, with awards going to non-veteran companies. The Class Deviation seems to make the assumption that the VA gets to pick and choose when to “use” a nonmanufacturer rule class waiver. I’m not sure that the SBA would agree. It seems to me that a class waiver either exists, or it doesn’t. It’s hard to see this Class Deviation as anything but a premeditated targeting of SDVOSB and VOSB nonmanufacturers as somehow unworthy of the preferences established by 38 U.S.C. 8127 and Kingdomware. I hope that the powers that be at the VA come to their senses and retract this poorly-conceived rule. The Class Deviation itself doesn’t address the interplay between this rule and Kingdomware, and I’ll reserve for another day my thoughts on whether this Class Deviation complies with the Supreme Court’s ruling–but unless the VA does the right thing and withdraws the Class Deviation, my crystal ball sees another battle in the future. View the full article
  14. FAR 37.204 applies only to the use of contractor personnel to analyze or evaluate proposals. See FAR 15.305(c).
  15. Matthew: Some history. In 2004 DPAP sought public comments about performance based payments. See 69 FR 54651, September 9, 2004. In 2005 it published its responses. 70 FR 32306, June 2, 2005. One comment complained about the use of an incurred cost ceiling by some offices. Here is DPAP's response: So in 2005, DPAP appears to have been opposed to an incurred cost ceiling. Then, in 2013, the DOD IG published a 51 page report entitled, Award and Administration of Performance Based Payments in DOD Contracts, Report No. DODIG-2013-063, April 8, 2013. The report was very critical of DOD administration of PBP and said that DOD was being unnecessarily generous by providing more "financing" than contractors needed in light of their incurred costs. See the report, pages 26 - 28. The following comment appeared on page 11: In 2014, DOD instituted the incurred cost ceiling, as I described in an earlier post, quoting the agency's explanations. In it's 2005 response to public comments, DOD had said: But in its 2014 rule, DOD reported these comments and responses: The rule amended DFARS 232.1003-70 to add the following: As for the addition of 10 U.S.C. 2307(b)(2), the following appears on page 214 of the Senate Armed Services Committee report accompanying P.L. 114-328: Ultimately, Section 831 of P.L. 114-328, which was inserted in the legislation as proposed by the Senate, amended 10 U.S.C. § 2307 as follows: In conclusion, based on the foregoing, I think that it is reasonable to conclude that it was the intent of Congress to eliminate or at least modify DOD's incurred cost ceiling policy. DPAP has opened DFARS Case 2017-D019, "Performance-Based Payments." A report is due on May 17. I don't know what they intend to do. I have spent all the time on this that I am going to spend. In any case, it appears that ShawnT has left the building.
  16. Thank you for the in-depth response Vern! I should have reviewed FAR 2.101 in addition to FAR 37.2, as the definition is quite expansive. There was some concern that our requirement might be prohibited IAW FAR 37.203(c)(1). I am not certain that our requirement aligns with FAR 37.203(c)(1), as it is our intent for the contractor to assist the Government in this effort and the contractor would not participate in policy, decision making, or etc. If I may, let me ask a follow-up question. Is the determination at FAR 37.204 specific to contractor personnel performing evaluations or analysis of proposals? In reading FAR 37.204 and the Source Selection Answer Book (thanks Vern!), that is my understanding, but I do not understand the need for such a determination if contractor personnel are not performing such a service (such as with my requirement). Is my understanding completely off on this?
  17. Thanks, Don. Just to be clear then, for the benefit of a beginner, everyone here seems to agree that one should ensure that cost of transportation is considered. There shouldn't be a special leveling technique used to help a seller that has to charge higher shipping costs be as competitive as a local seller. From Don's link, above: And see FAR 47.301: Bottom line is that "most advantageous to the Government" trumps* leveling the playing field for transportation costs. *No pun intended. I'm pretty certain that the businessman and current President, Mr. Trump, would agree.
  18. Last week
  19. Emphasis added. krusem: See FAR 2.101: The service you want to buy is the very essence of advisory and assistance services, subdivision (1). Read FAR Subpart 37.2 and comply as appropriate. It's not a big deal.
  20. Vern and ShawnT, I don't think this issue is that clear - conceivably, valid arguments could be made on either side based on which definitions are chosen. For instance, let's consider that the language in 10 USC 2307(b) says nothing about performance based payment amounts - it uses the term "performance based payments," which based on the following definition of payment, could mean the issuance of the PBP: That definition along with the alternative definitions of "conditioned upon" or "condition" would be consistent with an interpretation that the PBP criteria governing when a payment shall be issued cannot be tied to costs incurred, but the amount expended can still be limited by costs incurred to avoid unintended advance payments. Vern makes an interesting assumption that industry lobbied for the change which may very well be true; however, could it also be possible that there was a push within the Government to be more restrictive and/or explicit that PBP criteria cannot be tied to costs incurred based on misuse by agencies? Despite the differing interpretations, I'm inclined to believe my original position for now (despite a much more experienced/educated individual disagreeing with me) because payment amounts receives its own paragraph at 10 USC 2307( c ). That would be the natural place for any language consistent with ShawnT's interpretation of the law and the language currently there does not prohibit the DoD from being more restrictive by limiting the PBP amounts to no more than the costs incurred.
  21. joel, Here is the relevant excerpt from the Pricing Guides: Italics added for emphasis.
  22. Based only on what you wrote above, I would support not calling it advisory and assistance services. I wouldn't call it consulting or coaching services, either -- how about meeting or planning facilitation services? You want a contractor to facilitate a week-long strategic planning meeting. I bought this type of service for a prior agency as a straight-forward service. The contractor would be expected to have some knowledge of facilitation and strategic planning, but no specific knowledge of your agency, your agency's operations, or the market sector in which your agency operates. I assume you will pay a firm-fixed-price for the entire effort?
  23. Our organization has expressed an interest in contracting for a company to assist it with strategic planning. The contractor would assist a group of Government employees (i.e. leadership) with identifying strategic objectives and associated criteria to evaluate progress. This information would be compiled into a document and provided to the Government for further development of its strategic planning. Performance will occur over the course of a week long meeting by Government personnel, with a minor amount of time dedicated to gathering data prior to the meeting and compiling information after the meeting. The contractor would not assist with the development of policy or contribute to decision making. In short, the contractor would "coach" the Government during this process. We are unfamiliar with this type of requirement and uncertain as to whether one might consider this consulting, advisory and assistance services, or simply a commercial service. Because of our unfamiliarity, I want to ensure we are not overlooking a critical requirement associated with contracting for this type of requirement.
  24. An agency backdated a market research memorandum to justify its set-aside decision–and when the backdating came to light, the Court of Federal Claims was none too pleased. In a recent decision, the Court held that the backdated memorandum resulted in a “corrupted record,” which undermined a “fair and equitable procurement process,” and agreed that the agency’s self-imposed sanctions were appropriate. I’ve said it many times before, and I’ll say it again: in my experience, the vast majority of agency procurement officials, at all levels, act honestly and ethically. But that’s not true 100% of the time. Just last week, I posted on the case of Starry Associates Inc. v. United States, in which the Court held that an agency had engaged in “intransigence and deception” during its evaluation and the following bid protests. Now comes another example of agency misbehavior, again in an apparent effort to undermine a bid protest. The Court’s decision in Gallup, Inc. v. United States, No. 16-1656C (2017) involved a U.S. Special Operations Command procurement for its Global Research and Assessment Program. On May 31, 2016, the agency issued an RFI seeking information regarding “small business’ ability to support GRAP while ensuring compliance with FAR 52.219-14, Limitations on Subcontracting.” After reviewing responses from interested contractors, the agency concluded that 14 respondents were capable of supporting the GRAP requirements and “the majority of respondents addressed FAR 52.219-14.” On November 14, the agency issued the solicitation as a small business set-aside. Gallup, Inc., a large business, filed a pre-award bid protest with the Court. Gallup argued that the agency’s set-aside determination was irrational. According to Gallup, a small business could not perform the GRAP requirements while maintaining compliance with the limitations on subcontracting. On January 6, 2017, the agency filed its Administrative Record responding to the protest. The Administrative Record contained a document entitled “Market Analysis (June 24, 2016).” The Market Analysis memorandum was the only record of the agency’s evaluation of RFI responses. The Market Analysis memorandum stated that a majority of RFI respondents addressed the limitations on subcontracting and that three small businesses “provided the most extensive and detailed information regarding compliance with the clause.” The memorandum concluded: “As such, the GRAP acquisition will be processed as a small business set-aside.” After briefing on the case had been completed in March, the Government (USSOCOM was represented both by its own attorneys and those of the Department of Justice) filed a Notice of Corrective Action, stating that the agency would cancel the set-aside solicitation. The Government also informed the Court that it had learned, on March 23, that the Market Analysis memorandum “had been prepared on or about December 15, 2016 . . . after the agency had proceeded with the procurement as a small business set-aside and had received [Gallup’s] pre-filing notice” regarding its protest. The Court issued an order for an oral hearing, and required all individuals who had participated in the production of the Administrative Record to attend. At the hearing, the Contracting Officer testified that she had prepared the Market Analysis memorandum in December, after the acquisition was underway. She had used the June 24 date in an effort to make sure that the record was “in good shape” to defend the protest. The Contracting Officer was contrite, saying that she had made a “huge mistake” and was “deeply sorry” for it. Following the hearing, Judge Thomas Wheeler asked the Government to explain why the agency should not be sanctioned for its actions. The Government did “not dispute the appropriateness of sanctions in this case,” and agreed to pay Gallup’s attorneys’ fees and litigation costs. The Government also stated that the agency would issue guidance to its contracting staff “emphasizing the importance of completeness, accuracy, and integrity in preparing records and accompanying certifications,” and would conduct training focusing on “accuracy and ethics in preparing and certifying administrative records.” Gallup agreed that these self-imposed measures would be satisfactory. Given the agreement between the Government and Gallup, the Court found that formal sanctions were unnecessary. The Court ordered the Government to file a status report by May 17 regarding its implementation of the agreement. Judge Wheeler concluded with a warning: The integrity of the administrative record, upon which nearly every bid protest is resolved, is foundational to a fair and equitable procurement process. While the Government has accepted responsibility for its misconduct, the importance of preventing a corrupted record cannot be overstated. The Court encourages USSOCOM to take all reasonable steps to ensure that its contracting office appreciates the necessity of conducting a well-documented, well-reasoned procurement and producing a meticulous and accurate record for review. The Court will not tolerate agency deception in the creation of the administrative record. That’s twice in one week that I’ve covered Court decisions in which the presiding judge used the word “deception” to describe agency conduct. As Judge Wheeler noted–and as Judge Bruggink forcefully stated in Starry Associates–the fairness and integrity of the procurement process rest on the assumption that agencies will act fairly and honestly. Conduct like the backdating that occurred here undermine the fairness of the process, and just as importantly, undermine the perception that the process is fair–which is, after all, why contractors are willing to compete in the first place. That said, I don’t want to give the impression that the misconduct in Gallup rose to the level of that described in Starry Associates. Here, the Government’s attorneys appeared to have unilaterally disclosed the backdating when they discovered it–which was the right and ethical thing to do. The Contracting Officer expressed remorse for her actions, and USSOCOM agreed to reasonable corrective measures without being forced to do so by the Court. Those actions are worthy of acknowledgment, just like the improper backdating is worthy of criticism. I won’t get up on my soapbox again about why good faith bid protests are such an important part of the competitive process (although you can read my musings on that subject in the Starry post). Perhaps Starry Associates and Gallup will be good lessons for those few agency officials who could be tempted to cross the line. Hopefully, this is the last time for awhile that I’ll be writing about agency “deception.” View the full article
  25. For more than 20 years, government contractors and their employees that operate an agency’s system of records have been subject to the same criminal penalties as government employees for violations of the federal Privacy Act (PA). These penalties have taken on new importance because a recent FAR amendment makes PA training required for certain federal contracts. Moreover, the training must include information on the criminal penalties a government contractor and its employees face for violating the PA. Specifically, violations are a misdemeanor punishable by a fine of up to $5,000; there is, however, no possibility of imprisonment. Because the language Congress used to describe this criminal violation is so carefully drafted, it’s important to get into the law’s wording and details. The criminal penalty provision of the PA punishes any contractor or its employees who “knowing that disclosure of the specific material is prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it.” Unfortunately, it’s not easy to describe what these words mean because there are not a lot of reported court decisions interpreting them. According to U.S. Department of Justice, there are at least two reported decisions on this criminal law. Realistically, however, only one of them really helps to describe how anyone, including a government contractor, can violate the PA’s criminal provision. That decision, actually a defeat for the government, involved a list of patients and their addresses prepared by Richard Trabert, the administrator of an Army hospital that was closing. A doctor at the closing hospital who would be seeing patients at a nearby private clinic asked Trabert to prepare the list which Trabert prepared from data in his computer. Trabert prepared the list and gave it to the administrator of the private clinic. The information on Trabert’s list was protected by the PA. The government charged Trabert with violating the criminal provision of the PA but a judge concluded that the government had not proven that Trabert violated the PA beyond a reasonable doubt. The government had failed to prove that there was both a “knowing disclosure” and a “willful disclosure.” Knowing disclosure. The government could prove a “knowing disclosure” from circumstantial evidence such as the fact that the employee had taken PA training. In Trabert’s case, however, there was no evidence he had received PA training and Trabert testified that he did not remember getting any PA training. In addition, senior personnel at the hospital knew Trabert was compiling the list but no one had told him it was illegal. Moreover, other lists had been prepared by others for the benefit of other clinics. Another way the government could prove a “knowing disclosure” would be “a specific admonition provided as to the general application of the Privacy Act” which in Trabert’s case was a computer screen banner warning of the PA’s applicability to information in the computer every time the computer was turned on. Significantly, the government did not have to prove that Trabert had been told specifically that the PA applied to the list he gave the clinic’s administrator. But here, there was no “knowing disclosure” for several reasons including the fact that similar lists had been prepared on other occasions by other employees without any one being charged with a crime. Willful disclosure. The government had also failed to prove a “willful disclosure:” that Trabert voluntarily and purposely disclosed the information in violation of the Act. Here, Trabert was guilty at most of gross negligence. According to the judge, it was not clear to Trabert that the disclosure of the list was inappropriate. Trabert was not aware of any improper motive in providing the list to the clinic and he knew that the clinic could not produce the useful list itself. He did not know that the doctor requesting the list wanted it for expanding his practice at the new clinic. Nor did Trabert benefit financially for disclosing the list like getting a job at the new clinic; the government did not prove that he even wanted a job there. Conclusion. Trying to distinguish an unfortunate “gross negligence” disclosure from a criminal “knowing and willful disclosure” is difficult. Trabert was wrong to prepare the list and give it to the private clinic. But he did not do it with the intention of violating someone’s privacy rights protected by the PA. United States v. Trabert, 978 F.Supp. 1368 (D.Colo. 1997). A good example of conduct that goes beyond “gross negligence” comes from civil (not criminal) lawsuits against an agency (and not its employee like Trabert) that violated the employees PA rights. Department of Energy employees filled out personnel security questionnaires after being told that the information would be used only for security clearances purposes. But the information was then sent to the Department of Justice for purpose of criminal prosecution. DOE had not told the employees that questionnaire information could be used for law enforcement purposes. Covert et al. v. Harrington, Secretary, Department of Energy, 876 F.2d 751 (9th Cir. 1989). Perhaps a good summary of what it takes to violate the PA is this: the violation “must be so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful.” While Trabert’s conduct was wrong, you cannot say that his actions met this test. Terrence O’Connor is a Partner and Director of Government Contracts at Berenzweig Leonard LLP, McLean, VA. He can be reached at toconnor@BerenzweigLaw.com. The post Federal Privacy Act Criminal Penalties Apply to Government Contractors appeared first on Left Brain Professionals. leftbrainpro.com
  26. I think the concept of considering transportation cost (that transportation cost will be added to the offer price to determine the Government's overall cost) is quite a simple concept. But I understand that in some cases, implementing the concept in a real acquisition can become complicated.
  27. Trump Administration Begins Government Shutdown Preparations Negotiators are hard at work behind the scenes this week trying to reach a budget agreement that will keep government agencies open, but the Trump administration has begun preparing for a shutdown that could begin on April 29, barring any congressional action. Representatives on both sides of the aisle are hopeful about reaching an agreement that would fund all agencies through the end of the fiscal year in September, but the Trump Administration could stand firm on its funding priorities, which would make an agreement more difficult. Perhaps one of the biggest issues is “The Wall.” Trump has asked for an extra $33 billion to go toward the U.S.-Mexico border wall with increased immigration enforcement. Democrats seem to have no issue with shutting down the government if the spending bill includes this funding, and Republicans appear to not want to risk calling their bluff, indicating “they would deal with the administration’s supplemental request separately from the regular appropriations bill,” according to Government Executive. There will of course be give and take, deal-making and trading going on behind the scenes. I guess we’ll have to wait and see how things shake out on April 29. Read the full story on Government Executive. DOJ and GSA Work to Build New Government-Wide FOIA Portal Coming soon to a computer near you: a single streamlined website where you can submit Freedom of Information Act requests to any agency. Well, that’s at least what the Department of Justice (DOJ) and General Services Administration (GSA) are working to achieve as they collaborate together on a new national portal. The DOJ has actually been working towards a single portal since 2010 when it introduced FOIA.gov and began working with GSA on small improvements to the site back in 2014. This new partnership hopes to introduce a new singular portal. You are encouraged to provide input about your FOIA experiences as the agencies work through the development process. Send an email with your comments to National.FOIAPortal@usdoj.gov by April 28. Read the full story on the Nextgov website. Trump Signs EO to Bolster “Buy American” Laws President Trump signed a new Executive Order (EO) that focuses on buying American products. Under the EO, agencies must complete a full review of their procurement procedures to assess their compliance with “Buy American” laws. A report of their findings is due to the Secretary of Commerce and Office of Management and Budget (OMB) within 150 days. A final report will go to the President within 220 days along with recommendations for how to better implement Buy American laws. Read the full story on the White House website. Hard Knocks for GSA’s Transactional Data Reporting Program The General Services Administration (GSA) has been taking a lot of hits recently on their new Transactional Data Reporting (TDR) program. Harsh criticism has been coming from all directions, and government contracting consultants have strongly advised their clients not to take part in it. If you’re unfamiliar with TDR, it’s a program that allows contractors to provide data about transactions made through their Schedule contracts in exchange for not having to follow the Price Reduction Clause (PRC) and the Commercial Services Practices (CSP) provision. Contractors have been rallying for years to change the PRC. While they were happy to see GSA making changes, the concern over TDR has continued to grow since it was unveiled. You’ve got to give credit to the GSA Deputy Commissioner of the Federal Acquisition Service, Kevin Youel Page, though. Instead of staying silent and steadfast, he’s ready to hear contractors’ concerns and take action to address the issues. The TDR program management office even set up an email address where anyone can send in questions or concerns. Meanwhile, some within the industry are already debating the long-term viability of the TDR program. So far, GSA has only announced a three-year pilot and no public support has come from the Trump administration. Read the full story on Federal News Radio’s website. About the Author Barbara Kinosky Managing Partner Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015. The post Government Shutdown Deadline Looms While GSA Takes It on the Chin Over TDR Program appeared first on Centre Law & Consulting. View the full article
  28. This is the Beginners Only category, and that might be mislead some beginners. The government always takes transportation costs into account in some manner. In f.o.b. destination acquisitions, transportation cost is typically included in evaluated prices. In f.o.b. origin acquisitions it's often a "price-related" or "cost to the Government" factor that can be considered even though it's not part of the bid or proposal price. See FAR 14.201-8 ("price-related factors") for sealed bidding and 15.304(c)(1) ("cost to the Government") for competitive negotiation. The concept of "price-related factors" and "cost to the Government" and the rules about their consideration are discussed in Formation of Government Contracts, 4th ed. For sealed bidding, "price-related factors" are discussed in pp. 591-597. See pp. 593-595 for specific discussion of transportation costs. For competitive negotiation, "cost to the Government" are discussed in pp. 692-695 under the heading "Other Costs to the Government." I disagree that consideration of transportation cost is "simple." Sometimes it is, but even a casual review of GAO protest decisions about evaluation of transportation cost will show that it can be very complicated.
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