‘Good faith efforts’ — effective enforcement or a convenient excuse?

July 10, 2013 by

[Note: The following article is taken from a blog operated by Bryan Cave’s Airport Concessions Law blog.  The article was originally published on July 5, 2013.  A link to the blog appears at the end of this excerpt.]

Over the years, I have often heard complaints within the airport industry about the Good Faith Efforts (“GFE”) standard contained in the federal regulations governing Disadvantaged Business Enterprises. The complaints generally decry the use of GFE and consider the GFE requirements more form than substance, a convenient excuse for non-compliance. Although there may be some merits to the complaint, the effectiveness of the GFE standard hinges upon the manner in which recipient applies the standard to a bidder’s efforts to meet the goal.

The GFE requirements for GFE on a federally assisted contract that contain contract goals is governed by 49 CFR Part §26.53. Section 26.53 provides that when a DBE goal is established, the recipient can award the contract only to a bidder or offeror that has made a GFE to achieve the contract goal. The GFE Guidance is contained in Appendix A to Part 26 and outlines the factors or efforts that should be considered in making the determination. It is important to note that the list of factors contained in Appendix A is not intended to be exhaustive and other factors may be considered in making the GFE determination.

The GFE guidance articulates a clear standard that requires that the bidder’s efforts to meet the goal must be reasonable and necessary steps to meet the goal. The scope, intensity and appropriateness of the bidder’s efforts should be evaluated in order to determine if the efforts would reasonably lead the bidder to obtaining sufficient DBE participation. Mere pro forma efforts are not good faith efforts to meet the goal. The guidance also cautions the recipients not to reject bona fide GFE by a bidder or offeror to meet the goal. In short, the determination of a bidder or offeror’s good faith efforts is a judgment call and the recipient must make a reasoned and balanced decision in making the GFE determination.

Keep reading this article at: http://bryancaveairportconcessionslaw.com/good-faith-efforts-fact-or-fiction/ 

Here are the Georgia firms who won federal contracts in June 2013

July 1, 2013 by

Ever wonder who’s winning federal contracts in Georgia?

Wouldn’t this information be helpful if you are looking for subcontracting prospects?  Or when you’re trying to figure out who your competitors are?

Each month, the Georgia Tech Procurement Assistance Center (GTPAC) publishes a list of federal contracts awarded to Georgia businesses.  The list comes complete with point-of-contact information on the awardees, the name of the awarding agency, the dollar value of the contract, and much more.

Download the award winners for June 2013 right here: FEDERAL CONTRACT AWARDS IN GEORGIA – June 2013.

Copies of earlier months are posted in an article here: http://tinyurl.com/qgl6jow.


DLA to make major changes in contractor shipping requirements

July 1, 2013 by

The Defense Logistics Agency (DLA) plans to make big changes in its contractor shipping requirements.  The changes will take place in October 2013, so if your business sells products to DLA, now is the time to get ready. 

DLA’s new shipping requirements are called First Destination Transportation (FDT), and the new rules apply to the movement of material from suppliers to the first military depot or direct to military customer.  In these instances, shipping will change from FOB destination to FOB origin.

  • FOB is an abbreviation for free on board.  This term is used with the designation of a physical point to determine the responsibility and basis for payment of freight charges and, unless otherwise agreed, the point at which Title for supplies passes to the buyer of consignee.  (The policies on designation of contracts as FOB Origin or FOB Destination are set forth in FAR 47.3.)
  • Irrespective of whether a contract is designated as FOB Origin or FOB Destination, the government bears the cost of shipping (either as part of the item price under FOB Destination or separately under FOB Origin).   An important consideration between the two designations, however, is who bears risk for damage or loss of the item during shipment.  Typically, under FOB Destination, the seller bears the risk of loss or damage to the item during shipment.  Under FOB Origin, the buyer typically bears the risk of loss or damage to the item during shipment.

Slated to begin with solicitations and awards in late October 2013, DLA’s new FDT rules will require the removal of transportation-related cost from contractor bids.  Shipping will be designated FOB Origin, thus contractors need only be concerned with quoting the associated costs of manufacturing their products.  Products affected by the October roll-out will be those labeled as Class IX consumables and some Class IV and VII materials to CONUS destinations. Supply Chains included in the FDT initiative are: Aviation, Land and Maritime, Construction and Equipment, and Industrial Hardware.

According to DLA, the new FDT rules mean that geography will no longer play a part in competitive bidding because distance-based shipping expenses will not have to be factored into bids.   The drawdown of troops from Afghanistan signals a reduction of necessary parts and supplies to U.S. troops.  Contractors who utilize this change in transportation terms, and find additional avenues for cutting costs, will find their reward in additional business opportunities.

In these uncertain budgetary times, DLA is challenged to decrease costs at the same time as being challenged with increased support to the troops in both the U.S. and abroad.  It is DLA’s goal to take control of its supply chain by improving in-transit visibility (ITV) and dock productivity as well as safety stock requirements.  ITV offers opportunities to consolidate.  Loading fewer, fuller trucks increases DLA’s effectiveness and reduces its carbon footprint.

Once the FDT rules become effective, vendors are advised that before  submitting a bid (minus the cost of transportation), they will need to Log In and subscribe to DLA’s Vendor Shipment Module (VSM).   VSM is the vehicle by which vendors will notify DLA’s transportation team that a shipment is ready for pick up.  No matter the size or weight, VSM will assess the information provide by vendors, assign the carrier best suited for the shipment, and notify the vendor of the carrier choice. At that time, VSM will allow each vendor to access its own contract information in order to print a commercial bill of lading, military shipping labels, packing slip, address labels and small parcel carrier labels.

For VSM registration and instruction, please click on the link below.   A Help Desk is available and can be reached by email at lim.aldnull@yreviled or by phone Monday through Friday, between the hours of 6:00 am and 6:30 pm Eastern Time, at 800-456-5507.

Will you be ready for this change in October 2013?  Now is the time to register for VSM:  https://vsm.distribution.dla.mil/   Watch for solicitations that use the freight term FOB Origin, and don’t forget to sharpen your pencil!

For more information on FDT, visit: http://www.dla.mil/FDTPI/Pages/default.aspx#transportation.

Who are the top federal contractors?

June 28, 2013 by

Each year, Washington Technology magazine ranks the top 100 federal contractors based on sales of IT, systems integration, communications, engineering and other high-tech products and services.  They analyze and profile these firms by factors such as industry sector, those who are newcomers, those who are publicly traded or privately held, small business status, participation in Defense Department and civilian agency contracts, and many other factors.   To access this list click here: http://washingtontechnology.com/toplists/top-100-lists/2013.aspx.

Washington Technology also ranks the 50 fastest growing small businesses in the government contracting market, based on their compound annual growth rate from 2007 through 2011.  You can view the “Fast 50″ list at: http://washingtontechnology.com/fast50lists/fast-50-lists/2012.aspx.

The fastest growing 8(a) firms are ranked at: http://washingtontechnology.com/top25lists/top-25-lists/2012.aspx.

VA issues corrections to VOSB verification guidelines

June 25, 2013 by

The Department of Veterans Affairs (VA) has issued a correction to an advanced notice of proposed rulemaking (ANPR), 78 Fed. Reg. 36715, on June 19, 2013.

In a document originally published in the Federal Register on May 13, 2013, (78 FR 27882), the VA amended its Veteran-Owned Small Business (VOSB) Verification Guidelines Program regulations to provide greater clarity, to streamline the program and to encourage more VOSBs to apply for verification. The preamble of that document contained several errors. The new document merely corrects those errors and does not make any substantive change to the content of the ANPR.

Comments on the proposed rule originally published May 13, 2013, are still due by July 12, 2013.


Is the government starting to hate LPTA too?

June 14, 2013 by

I was surprised (and relieved) to learn that government proposal evaluators are pushing back on the use of lowest price, technically acceptable (LPTA) evaluation criteria—and for good reason. They are now learning that this evaluation criteria can limit their ability to exercise reasonable judgment in the evaluation process and may result in contracts awarded to companies that are clearly inferior and have less qualified offerings compared to others in the competition.

Here are two instances where the use of LPTA evaluation criteria backfired on the government decision-makers:

  1. Superior value versus price
  2. Past performance and performance risk

Keep reading this article at: http://washingtontechnology.com/Articles/2013/06/07/Insights-Lohfeld-LPTA-shortcomings.aspx?Page=1 

Government agencies offer advice on avoiding contracting mistakes

June 13, 2013 by

[Editor’s Note: The Raleigh, NC News Observer’s “Shop Talk” reporter Virginia Bridges attended Marketplace, a local workshop and networking opportunity to help small businesses identify government contracting opportunities, and asked representatives from various agencies about common mistakes small-business owners make when seeking government contracts.  Below is a list of tips offered.]

•  “One of the major components is small-business owners fail to actually understand what the city really needs,” said Luther Williams, Raleigh’s Business Assistance Program manager. “I think this could be solved if individuals would just look at the request that the city has out there and do a little research on the city’s request to determine if their product is compatible with the city’s needs.”

•  “They haven’t made the internal decision as to whether or not they really want to do business with the federal government,” said Bruce Osborne, a customer service director with U.S. General Services Administration. “Seventy-five percent of them have not asked themselves that question and afforded the opportunity to debate it with their organization.”

Keep reading this article at: http://www.newsobserver.com/2013/06/10/2953923/government-agencies-offer-advice.html 

Critical steps a contractor can take to foster E-Verify compliance

June 5, 2013 by

“Yes, we use E-Verify.” “Of course, our company is in compliance, we did an I-9 audit a few years ago – isn’t that the same as E-Verify?” “I know this is not an issue, because I remember being told we addressed all I-9 and E-Verify issues.” “No, the General Counsel’s office doesn’t handle immigration issues.”

You get the picture. Many companies simply do not take immigration compliance seriously. This failing usually does not come from a disinterest in compliance, but rather from a threshold failure to understand the intricacies involved in immigration issues or the potential exposure that could result from noncompliance. Only when faced with government investigations, public scrutiny, or other negative impacts on the business do the right people in the right places start to pay attention. When they learn that federal contractors can be suspended or debarred for failing to adhere to immigration and E-Verify related issues that attention is heightened.

It has been almost three years since the Federal Acquisition Regulation (FAR) E-Verify clause (FAR 52.222-54) for federal contractors went into effect in September of 2009.

Keep reading this article at: http://www.natlawreview.com/article/federal-contractors-federal-acquisition-regulation-far-e-verify-clause-revisited-cri

Which Georgia businesses won federal contracts in May?

June 3, 2013 by

Ever wondered what Georgia companies are succesful in winning federal contracts?

Now, it’s easy to find out.   The Georgia Tech Procurement Assistance Center (GTPAC) produces monthly reports on federal contracts awarded to firms located in Georgia.  The reports contain hyperlinks to complete award details as posted on FedBizOpps and other website databases.

Reviewing the details of these awards can provide insights into government spending, how contracts are structured, the dollar value of awards, who your competitors may be, and the identity of firms you may wish to partner or subcontract with in the future.

You can download a copy of the federal contract award report for the month of May 2013 here: FEDERAL CONTRACT AWARDS IN GEORGIA – MAY 2013

Copies of reports for earlier months can be accessed here: http://gtpac.org/2013/04/whos-winning-federal-contracts-in-georgia/

VA launches pre-review process of VOSB applications to reduce rejection rate

May 31, 2013 by

Veteran business owners now have a new opportunity to fix errors in their applications for verification by the Department of Veterans Affairs (VA).  Verification of ownership and control of a firm by one or more veterans is necessary before a firm can be considered for a contract set-aside exclusively for veteran-owned small businesses (VOSBs) by the VA.

To avoid rejecting VOSBs for minor paperwork errors or omissions, the VA has initiated a new pre-determination process.  According to the VA’s May 3, 2013 press release, the process is designed to reduce denials by identifying easily corrected issues on many applications. Businesses that would ordinarily be denied can now take advantage of this opportunity for approval by correcting findings prior to receiving a final determination letter. The pre-determination process allows companies the option to correct their applications and significantly increase their chance for approval to participate in the Veterans’ First Contracting Program.

For more information, please see: http://www.va.gov/osdbu/pressreleases/news20130503a.asp.