Adequate Accounting System for Flexibly Priced Contracts – Who Determines Adequacy?

[Moderator]

By Irvin Gray, JD, MBA, LLM, CPCM, CFCM, CCCM and

Jamaal Valentine, MBA, Deputy Chief of Compliance and Oversight for the National Guard Bureau, Directorate of Acquisitions.

This article examines a Government Accountability Office bid protest filed by a small business applying to the U.S. Small Business Administration 8(a) Business Development program whose proposal was excluded from consideration.

Please Read:  Adequate Accounting System for Flexibly Priced Contracts – Who Determines Adequacy?

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This article appeared in the October 2023 issue of Contract Management magazine, published by the National Contract Management Association. Used with permission.

[here_2_help]

A nice article! It's been awhile since I've read CM, but this article seems meatier than the ones I remember.

[Retreadfed]

Notice that in this case, the GAO held that it was a member of Shivoy's contract team that did not provide evidence of an approved accounting system.  There is no indication in the decision that Shivoy the offeror/protester did not have an adequate accounting system.  Therefore, the question of whether a COC should have been requested was not implicated nor were the GAO protest decisions concerning the role of traditional responsibility factors that are used as evaluation factors.  In this regard, I would like some clarification of this statement in the article "If there is no evaluation factor, agencies may evaluate the adequacy of the cost accounting system as a responsibility factor."  As I read FAR 9.104-1, having an accounting system that is adequate for the contract type contemplated is a mandatory responsibility factor.  

[Jamaal Valentine]

18 hours ago, Retreadfed said:

I would like some clarification of this statement in the article "If there is no evaluation factor, agencies may evaluate the adequacy of the cost accounting system as a responsibility factor."  As I read FAR 9.104-1, having an accounting system that is adequate for the contract type contemplated is a mandatory responsibility factor.  

Thanks for the read and interaction. I would love to clarify this statement for you; however, I’m not exactly sure what you want to be clarified. I think you are trying to reconcile the statement’s ’may’ with FAR 9.104-1’s ‘shall.’ I hope this provides the context you need.

First, the statement was written to offerors. Now, offerors should be aware that even in the absence of an evaluation factor in the solicitation, agencies may separately evaluate the offeror’s general standards of responsibility. Finally, FAR 9.102 lets us know that responsibility determinations are not always required. Thus, the general standards under FAR 9.104-1 aren’t always mandatory. This aligns with the statement that “agencies may….”

[Retreadfed]

Thank, you, Jamaal.  So the FAR could be clarified by inserting "unless exempted by FAR 9.102," in 9.104-1.