New contract clause and posting requirement for federal contractors
June 11, 2010 by cs
The U.S. Department of Labor (DOL) Office of Labor-Management Standards on May 20 issued a final rule implementing Executive Order 13496, which requires federal contracting agencies to include in most contracts a new clause requiring contractors and subcontractors to post notices informing employees about their rights under the National Labor Relations Act (“NLRA”). The rule, which takes effect on June 21, establishes the content of the notice, clarifies flow-down requirements, and sets forth penalties and procedures for noncompliance. It applies only to contracts directly with the federal government and related subcontracts, not to federally assisted contracts made with other nonfederal government entities.
Several changes were made from the proposed rule issued in August 2009, including many made in response to comments submitted by the Associated General Contractors of America (AGC). For example, DOL adopted AGC’s recommendation to abandon the requirement that government contracts include the entire text of the employee notice – which is quite lengthy – and to allow incorporation by reference. DOL also expanded the description of unlawful union conduct contained in the text of the employee notice, in response to objections raised by AGC and others that the notice contained an imbalanced list focused on employer misconduct.
Furthermore, DOL favorably responded to AGC’s concerns that the proposed rule appeared to give DOL improper authority to enforce compliance with the NLRA – which the is role of the National Labor Relations Board – and authorized overly severe sanctions for even minor violations. While it did not change the text of the final rule on these matters, DOL explained in the preamble that “contractors will not receive harsh sanctions for inadvertent or unintentional violations of the rule.” The preamble also “assures the contractor community that [DOL] cannot, nor will it, attempt to enforce the substantive provisions of the notice.”
The executive order and rule exempt prime contracts for purchases below the simplified acquisition threshold (currently $100,000). However, the proposed rule did not exempt subcontracts below the threshold, and DOL declined to change this in the final rule, despite AGC’s protests. A subcontract that is below the threshold is covered by the rule, provided that it is “necessary to the performance” of a prime contract above the threshold. The final rule does, however, add a de minimis standard exempting subcontracts with a value of $10,000 or less. The rule requires inclusion of the new clause in nonexempt contracts and subcontracts at all tiers, not just first-tier subcontracts, and provides that DOL may require a contractor to enforce subcontractor compliance. The preamble explains that, while a contractor may not “turn a blind eye toward noncompliance of its subcontractors,” it is only required to seek compliance and will not be liable if the subcontractor still fails to comply.
The rule contains various directives about the manner and location of the posting. If the contractor posts notices to employees physically, then it must also physically post the NLRA notice. The posting must be made in “conspicuous places,” including areas (1) where other notices about employment terms and conditions are posted and (2) where employees covered by the NLRA engage in activities related to performance of the government contract. A noteworthy change for many AGC members in the final rule requires contractors to provide the notice in other languages “where a significant portion of a contractor’s workforce is not proficient in English.” The rule does not explain what “significant portion” means, but the standard is adopted from rules implementing the Family and Medical Leave Act. The rule states that DOL will provide an official poster in English and various other languages on its website at www.olms.dol.gov, but, as of publication of this article, only English posters were provided, available in two formats via links at http://www.dol.gov/olms/regs/compliance/EO13496.htm.
If the contractor “customarily” posts notices to employees electronically, then it must also post the NLRA notice electronically by prominently displaying on any website customarily used for employee notices about terms and conditions of employment a link that reads “Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers” and links to the DOL Web page where the full text of the poster is found. Again, foreign languages must also be used if a significant portion of the workforce is not English literate, and DOL will provide translations.
Contractors should promptly advise appropriate staff to begin to look for the new contract clause in federal contracts and subcontracts resulting from solicitations issued on or after June 21, and to prepare for compliance. DOL’s Office of Federal Contract Compliance (OFCCP), which is tasked with conducting compliance evaluations under this rule, has stated in recent months that its enforcement efforts will target the construction industry. (Click here and here to learn more.) AGC will meet with OFCCP on May 24 to discuss this and other initiatives.
– Source AGC of America, Human Resource & Labor News, May 24, 2010
Find Davis-Bacon in federal construction contracts, not in a supermarket
June 7, 2010 by cs
There is hickory bacon. There is turkey bacon. And then there is Davis Bacon.
The first two can be found in the meat department of your local supermarket.
The last one — Davis Bacon — is found in federally-funded construction contracts. If you’re bidding on a federal contract or subcontract, you’d better educate yourself about this requirement.
The federal Davis-Bacon Act (DBA) applies minimum prevailing wage classifications for all federally-funded or assisted construction projects. The U.S. Department of Labor creates wage classifications by the type of project for a specific type of worker. (Although not the case in Georgia, also be aware of the fact that some state governments have adopted “little DBAs” requiring prevailing wages on state funded works.)
The worker classifications are crafted with broad job scopes, in order to be over-inclusive. These classifications have drawn the ire of many private construction firms, who complain about what they consider over-payment for non-specialized labor (i.e., paying a wire runner as a journeyman electrician). So, as many favor the DBA’s heavy wages – it can be crippling to an unprepared private firm’s profit margin.
To prepare, a construction professional must read and absorb the federal wage classifications that apply on their project – before bidding. Wage classifications are prepared by state and by project, and are included in all federally-funded construction work.
If you are bidding a contract in the State of Georgia, you’ll need to check out the Georgia classifications. For example, if you were building a non-residential structure, such as a government building, in Bibb County, you can see the applicable wage rates here.
If your Bibb County bid needs to include ironworkers to install your structural steel, you would need to bid them per hour at $24.04, plus $9.86 in fringe benefits (insurance, fringe, or even cash). There are no real boundaries here – if a worker is involved in structural steel work, that worker is to be paid as an ironworker. If a contractor does not plan for this broad application, you’ll be facing penalties that are spelled-out under the Wage & Hour Act or Contract Work Hours and Safety Standards Act. The penalties are stiff, providing for up to two times the amount of the unpaid or underpaid wages, plus interest.
The lesson here? Like with all things involving government contracting, do your homework before jumping in with both feet. To obtain assistance, check with a representative of the Georgia Tech Procurement Assistance Center (GTPAC) nearest you. With proper preparation, you’ll be able to bid correctly, win a contract or subcontract, and then be able to bring home the real bacon.
© 2010 Georgia Tech Procurement Assistance Center – All Rights Reserved.
Non-Schedule items on a Schedule procurement must be kept “micro”
June 3, 2010 by cs
Over the years, contracting officers have exhibited a promiscuous tendency to include non-Schedule items in GSA Schedule purchases.
The many GSA Schedule procurements seeking $10,000 in Schedule items and $50,000 in non-Schedule “incidental” items did not go unnoticed by the OIG. The primary concern being that those $50,000 items should be properly competed – something that many agencies sought to avoid through their use of the Schedules program.
The practice also did not escape the notice of the Courts or the GAO.
And in two quite notable cases – ATA Defense Industries, Inc. v. U.S., 38 Fed. Cl. 489 (1997) and Pyxis Corp., B-282469 et al., July 15, 1999, 99-2 CPD ¶ 18 – the Court and the GAO respectively ruled that included non-Schedule items in a Schedule purchase was a no-no (a time-honored legal phrase).
More technically, the Court and the GAO ruled that the non-Schedule portion of a GSA Schedule order had to meet the same competition requirements that would have applied had the purchase been made outside of the Schedule context. In other words, if the Government wanted to add non-Schedule items to its Schedule purchase, it had to hold a competition – unless the non-Schedule items were below the micro-purchase (since there are no competition requirements for such purchases).
Since the time of ATA and Pyxis, the GAO has been a vigilant guardian of this Schedule/non-Schedule rule, sustaining protests time and again wherever it finds an agency trying to procure non-Schedule products through a Schedule procurement. See, e.g., T-L-C Sys., B-285687.2, Sept. 29, 2000, 2000 CPD ¶ 166, Symplicity Corp., B-291902, Apr. 29, 2003, 2003 CPD ¶ 89, Armed Forces Merchandise Outlet, Inc., B‑294281, Oct. 12, 2004, 2004 CPD ¶ 218.
In March of this year, we learned that the GAO’s vigilance continues apace. On March 15, 2010, the GAO issued its decision in Rapiscan Systems, Inc., B-401773.2, the latest in this long line of Schedule/non-Schedule cases. The case re-enforces the GAO’s view that the GSA Schedules program was not intended to shield the purchase of non-Schedule items from the FAR’s competition requirements.
But Rapiscan went one step further than prior cases in that it provides significant insight into how the GAO views the micro-purchase threshold (currently set at $3,000) – that is, the dollar value at which the Government’s competition rules fully kick in. Rapiscan involved a GSA Schedule procurement conducted by the Department of State for the purchase of gamma ray vehicle and cargo inspection systems. The solicitation (a Request for Quotations, or “RFQ”) limited participation to GSA Schedule vendors. Following award, Rapiscan Systems, Inc. (which did not win, obviously) challenged the award decision before the GAO. Rapiscan contended that the DOS improperly issued the purchase order to a contractor that did not offer every one of its items on its GSA Schedule.
Specifically, Rapiscan argued that the awardee did not offer freight on its Schedule Contract. In response to the protest, the Agency argued that the purchase of freight in this instance was permissible because it fell under the micro-purchase threshold.
The facts at this point, however, get a bit complicated – and very relevant. In its initial quotation, the awardee showed freight as an “open market” item, with a line item price of $6,832 – a sum above the micro-purchase threshold, obviously. In its revised quotation, however, the awardee discounted the freight charge by 100% – to $0. Accordingly, the Agency contended that the purchase of freight was permissible through a GSA Schedule procurement. The awardee, however, also had stated in its revised quotation that the price for freight was “included in the unit price of” the primary Schedule item being purchased – a quite common turn of phrase among Government contractors.
This language, however, coupled with the fact that the awardee had a price for freight in its initial proposal that was above $3,000, clearly concerned the GAO. Indeed, it led the GAO to conclude that the awardee’s $0 price for freight was “illusory.” In GAO’s view, it was no more than the “shifting of the initially quoted price” between line items. Having found the “real” price of freight to exceed the micro-purchase threshold, it was not a far leap to sustain the protest. According to the GAO, the “micro-purchase exception is a narrow one and was not intended as a means for vendors to provide non-FSS items as micro-purchase items . . . .”
Interestingly, there is much in the decision to suggest that the GAO would have come down differently had the awardee not stated that it “included the price” of freight elsewhere in its proposal. Finding evidence of a greater-than-$3,000 price for the non-Schedule item, however, the GAO was boxed in by its prior case law. The GAO’s Rapiscan decision obviously supports the long-standing general rule that non-Schedule products may not be procured through GSA Schedule procedures. But it also demonstrates how the GAO will read between the lines (or line items, in this case) when assessing the price of a non-Schedule item.
The lesson here? We offer two. First, when offering a non-Schedule item in a Schedule procurement, keep it “micro.” Second, to paraphrase an ancient Buddhist proverb, “whatever words we utter, should be chosen with care.”
– Authored by: Jonathan S. Aronie - jaronie@sheppardmullin.com and Christopher Noon – cnoon@sheppardmullin.com – May 12, 2010
Strong passwords are especially important for government websites
May 31, 2010 by cs
Many government procurement web sites are secure sites that require vendors to establish passwords in order to gain access. What many people don’t understand is that there is a real need for selecting good passwords.
Identity theft could be just a minor consequence of establishing a weak password on a government site. Actual theft — theft of payments made by the government to a vendor — can result from lack of serious attention being given to password selection.
A data security firm earlier this year analyzed 32 million passwords that a hacker stole from an application developer called rockyou.com, and published a report of the findings earlier this year – including the 10 most-commonly used passwords. As you can see below, all 10 of these most-commonly used passwords are terrible:
- 123456
- 12345
- 123456789
- Password
- iloveyou
- princess
- rockyou
- 1234567
- 12345678
- abc123
Hackers and others intent on stealing or changing your on-line information can easily guess any of these 10 passwords. In fact, people who want to do you harm have sophisticated automated programs that guess at probable passwords until they discover the correct letter/number combination.
You might be curious about Entry No. 7, “rockyou.” You might think it’s uncommon enough to be a good password. Hardly. “Rockyou” is actually the name of the web site for which the users created the password. These users’ Amazon.com and Audible.com passwords are probably “amazon” and “audible,” respectively!
It is estimated that nearly half of all passwords can be easily guessed — they include the users’ names, common dictionary words, and strings of consecutive numbers, according to the report.
Weak passwords represent a problem on any web site. But weak passwords — and lack of password security — on government web sites can cause especially serious problems.
Let’s take Central Contractor Registration, for example. CCR is the federal government’s vendor database, containing information on more than 600,000 businesses. All of the data is entered by vendors themselves, including bank routing information on each business. This information is used by federal agencies to facilitate electronic payments for contract work performed.
A hacker who successfully guesses at a CCR registrant’s password can both steal and edit that vendor’s bank routing number. Armed with bank account information, the evil-doer might be able to withdraw funds from a vendor’s bank account. In addition, by changing a vendor’s bank routing information in CCR, an even more insidious act is set in motion. A hacker can just sit back and wait for the government to electronically transfer contract payments … right into the hacker’s off-shore account on the other side of the world.
In this scenario, the vendor has delivered a product or performed work for the government, the government paid, and the hacker benefitted — all caused by either selection of a weak password or by sloppy handling of a password.
As Michael Hardy, managing editor of the 1105 Government Information Group, recently observed: “You might think that after nearly two decades of data breaches, identity theft and other online risks, your average end user would understand by now the importance of creating strong passwords and protecting them. You would be wrong.”
To paraphrase, you should give serious thought to the selection of passwords — especially on government web sites — and then keep them secret.
“Everyone needs to understand what the combination of poor passwords means in today’s world of automated cyberattacks: With only minimal effort, a hacker can gain access to one new account every second — or 1,000 accounts every 17 minutes,” said Amichai Shulman, Imperva’s chief technology officer, in a written statement that accompanied the release of the report referenced earlier in this article. ”The data provides a unique glimpse into the way that users select passwords and an opportunity to evaluate the true strength of passwords as a security mechanism. Never before has there been such a high volume of real-world passwords to examine.”
© 2010 Georgia Tech Procurement Assistance Center – All Rights Reserved.
What is a Capabilities Statement and why should I have one?
May 26, 2010 by cs
Clients of the Georgia Tech Procurement Assistance Center (GTPAC) often ask about how to best present themselves to government officials, particularly contracting officers and small business specialists. GTPAC Procurement Counselors — most former contracting officers themselves — consistently advise that there are four key ingredients to making a favorable impression within the government marketplace:
- Familiarizing yourself with the particular agency you are targeting,
- Being prepared to deliver a concise “elevator speech” (a 30-second description of your expertise),
- Presenting a business card which displays your CAGE, NAICS, and NIGP codes, and
- Having a “Capabilities Statement.”
While the first three ingredients are fairly straightforward, here’s what’s important to understand about creating a Capabilities Statement for your business.
A Capabilities Statement should contain particular information and be organized in a certain way for use in the government sector.
For instance, a Capabilities Statement should always identify the company’s CAGE code. The reason for this is that a company has a CAGE code only if it’s registered in Central Contractor Registration (CCR), the federal government’s vendor database. Showing your CAGE code is important because that way contracting officials know you are oriented to the government sector (if you weren’t, you wouldn’t know you have to register in CCR) and are properly registered (federal agencies can’t do business with you unless you’re listed in CCR).
Identifying your PSC/FSC and NAICS codes is important, too, because that means you know what they are and their significance. (There are such codes for every product and service, and government agencies specify their contract opportunities using these codes.)
Similarly, if you are marketing to state and local governments, you should show your NIGP codes in your capabilities statement, because state and local governments use NIGP codes (instead of PSC/FSC or NAICS codes).
Providing point-of-contact information for the references you list is important, too, in case a government official wants to make a call or send an email to one of them. Each reference should also describe the type of work you performed or the products you delivered.
Over a period of time, you’ll want to develop several different versions of your capabilities statement, each tailored to a particular government sector audience. This is just like tailoring a personal resume when applying for a particular job. You want your past work descriptions to match-up with the contracting needs of the agency to which you’re marketing. Small Business Specialists withing government agencies use this information to decide whether to refer you to contracting offices and end-users. Contracting officials use this information to make initial determinations about whether you have the wherewithal to perform.
GTPAC also recommends, in addition to a Capabilities Statement, that you create a one-page briefing sheet on your firm. It, too, should be tailored to each audience or occasion. Briefing sheets can be very helpful as handouts when you are attending trade shows, expos, pre-bid conferences, or face-to-face meetings.
If you need a sample Capabilities Statement or more guidance on this subject, contact your GTPAC Procurement Counselor for help. Remember, too, to attend GTPAC classes to obtain detailed instruction on marketing your business to the government sector.
© 2010 Georgia Tech Procurement Assistance Center – All Rights Reserved.
Contractors need to protect themselves with written work agreements
May 24, 2010 by cs
Jennifer Schaus has worked as an independent contractor for years, running her own K Street consulting firm, which helps companies navigate the federal government’s maze of opportunities. So when it’s time to sign a new agreement with a client, she takes time to make sure the contract works for herself and the other company. “I go through a couple of revisions until both parties are happy,” she said.
Working without a contract is fraught with peril. Independent contractors are not covered by most federal labor laws and protections; there’s no overtime, no discrimination protection, and, most of the time, no severance or unemployment insurance. Contractors need to put their protections into written agreements before they start work.
“Do your homework before you begin negotiations,” said Sara Horowitz, founder and executive director of the Freelancers Union, an organization that provides information and health insurance to 135,000 independent workers nationwide. Gather information from others in your field or join a professional organization to learn what the standards are for your sector and the work you’re about to undertake.
Even if you are starting with someone you trust, it’s worthwhile to sum up your agreement in an e-mail. That creates a record of some details on how you’re paid, the pay rate and more, Horowitz said.
“The most important thing is to get a real clear idea what the project is about. . . . That’s your best safeguard to not having problems,” Horowitz said. Then consider the final work product and determine whether you can retain any rights to it — whether it’s a white paper, an original illustration or a software code.
If you’re offered work as an independent contractor from your former employer, it may expect to have all rights to whatever you create, the same as it did when you worked there with benefits and vacation time. Make sure you’re not signing away rights that could prove valuable, she advised.
Schaus suggests working on-site for some, but not all, of your billable hours. Being on-site can give you a greater understanding of the organization, its processes and its plans, which could lead to more contract work. Yet you’ll want flexibility so you can work from home or a vacation cabin in Cape Cod this summer.
Two of the keys to a good contract are milestones that trigger payment and the terms of payment. Milestones will vary by the project, but they need to be clear and obtainable. Payment terms may need to include a collection provision or a clause that allows for late fees. Forty percent of independent contractors had trouble collecting their payments last year, according to a Freelancers Union survey of 3,000 people.
Many independent contractors barely eke out a living. Eighty-one percent reported they did not have enough work last year in the Freelancers Union survey.
Some contractors will ask you to sign non-compete and nondisclosure agreements before you begin. Review those carefully and limit their scope and duration. A non-compete agreement should last only until the project is over, according to “Working for Yourself,” a NOLO book aimed at freelancers and consultants.
Schaus has other suggestions:
- Choose clients carefully. Try to have two to four clients you actively work for so if one drops you, you still have income.
- Find an objective third party, such as a lawyer or veteran contractor, to review the contract before you sign.
- Don’t let work creep up. “If they throw more responsibilities on you, you need to amend the terms and scope of your contract,” she said.
- Include a renewal clause. If you build renewal into the contract, consider adding a 2 percent increase to your fee upon renewal.
_________________________________________________________________________________
– By Vickie Elmer, Thursday, May 13, 2010; 3:20 PM – The Washington Post – Elmer is a freelance writer.
Defense Logistics Agency holds 2-day vendor event in Savannah
May 21, 2010 by cs
If you are interested in doing business with the Defense Logistics Agency (DLA), make plans now to be in Savannah on June 15 & 16.
DLA is the Department of Defense’s largest combat support agency, providing worldwide logistics support in both peacetime and wartime to America’s Military Services as well as several civilian agencies and foreign countries.
DLA is responsible for nearly every consumable item used by our military forces worldwide. These include aviation, land and maritime weapon systems spare parts, fuel, and critical troop-support items involving food, clothing and textiles, medical, and construction equipment and material. DLA also procures depot level repairables.
The June 15-16 conference is co-hosted by the Defense Logistics Agency, the U.S. Women’s Chamber of Commerce, and the National Association of Small Business Contractors and is designed to connect small business suppliers with the DLA.
The conference will be held at the Hilton Savannah DeSoto (View Map), 15 E. Liberty St., Savannah, GA 31401
Special note: This event will have a special focus on suppliers with products listed on this Federal Supply Class List.
The cost to attend this event is $119 for USWCC Supplier and Small Business Members (Not a member? Join here) or $169 for non-members
To see the full agenda and to register, visit http://www.uswcc.org/dla-ga.
Among those speaking at the event are the Georgia Tech Procurement Assistance Center’s Larry Blige, and Vikki Hawthorne of the Defense Supply Center- Columbus, Small Business Programs Office.
DLA by the Numbers
- Items managed: nearly 5 million – Eight supply chains
- Fiscal Year 2009 revenues: nearly $38 billion
- Requisitions per day: 111,000
- Contract actions per day: 8,000
- Number of weapons systems supported: nearly 1,600
Here are a few tips from GTPAC. If you decide to attend this event, you’ll want to prepare. To assist you in this process, be sure to read our articles on attending a government trade show, how to prepare an “elevator speech,” and the need for a Capabilities Statement.
The Price Was Wrong: GSA Rates Set the Ceiling for GSA Orders
May 17, 2010 by cs
GSA sought bids from contractors holding Federal Supply Schedule (FSS) Schedule 70 contracts for certain professional services. At the time it submitted its proposal, Perot was in the process of negotiating a five-year extension of its Schedule 70 contract. Perot had proposed new labor rates for the five-year extension, but those rates had not yet been approved by the GSA contracting officer. In its proposal, Perot use its proposed, but unapproved labor rates. The contracting officer excluded Perot’s proposal from consideration because the labor rates included in the proposal did not match Perot’s current Schedule 70 contract labor rates.
Approved GSA Prices Are A “Cap” On Prices
Perot raised several arguments as to why its new, but unapproved, rates were fair and reasonable. First, Perot argued that the RFQ required that a contractor’s approved rates be “derived from” its GSA Schedule rates, and its proposed rates were, in fact, “derived from” its GSA Schedule rates. Second, Perot argued that even though a few of its proposed rates had increased slightly, the majority of its rates were lower. Finally, Perot argued that its rates were fair and reasonable because its overall price was lower than the awardee’s price. GAO rejected each of these arguments. Relying on FAR 8.404(d), GAO found that even if the lower rates proposed by Perot could be considered a discount from its current rates, the categories for which higher rates were proposed were improper. Thus, the contracting officer correctly eliminated Perot’s proposal as unacceptable.
Lesson Learned
Approved GSA schedule rates are a ceiling when bidding on task orders issued under FSS contracts. Contractors should take care to make sure that prices offered are approved GSA Schedule prices or lower. Not only may proposing prices higher than those approved by GSA result in rejection of a bid, it also could result in allegations of overcharging in the event of a later audit by the GSA Inspector General. Thus, GSA contractors should make sure that federal sales personnel and any authorized dealers permitted to sell under the contractor’s GSA contract are adequately trained in this subject.
Is a GSA Schedule Contract Right for You?
May 11, 2010 by cs
Business people frequently ask Counselors with the Georgia Tech Procurement Assistance Center (GTPAC) how they can figure out whether it’s worth their while to go after a GSA Schedule. Here are a few pointers to guide your decision-making.
First of all, it’s important to understand what a GSA Schedule is … and is not.
A GSA Schedule is a contract awarded by a federal agency, the General Services Administration, to firms with established track-records of selling products or services. A Schedule contract is long-term (a base term of 5 years, with renewal options to a maximum of 20 years). Schedule contracts cover a wide array of products and services. Contract awards are based on “most favored customer pricing.” While issued by the GSA, a Schedule contract can be used by any federal agency and, in some cases, by units of state and local governments. Since everything is pre-negotiated, government agencies benefit from using Schedule contracts because acquisition lead-times are shorter, administrative costs are lower, and administrative steps are fewer.
From a business point-of-view it’s very important to remember that a Schedule contract is not an order. In other words, once you are awarded a Schedule contract, you must be prepared to actively market yourself to government buyers. For this reason, it’s not uncommon for a Schedule contract to be referred to as “a license to hunt.”
Your initial step in pursuing one of these contracts should be to examine the entire list of 39 Schedules, including nine Schedules administered by the Veterans Administration. You can search for details inside particular Schedules by conducting a key word search at http://www.gsaelibrary.gsa.gov/ElibMain/scheduleList.do. Look for the Schedule that most closely fits your line of business. Subcategories within each Schedule are called SINs — Special Item Numbers. Remember, there is not a Schedule for everything. You eventually may conclude that there is not a Schedule that’s a good fit for your business.
If and when you find a relevant Schedule, GTPAC recommends you look at spending reports on individual Schedules at http://ssq.gsa.gov. This will give you some ideas about what kind of money is being spent on individual Schedules and who the prominent, winning Schedule contractors are.
You should do further market research on your potential competitors. Use the GSA eLibrary at http://www.gsaelibrary.gsa.gov to identify existing Schedule contractors, their contract terms and conditions, their product and service offerings, and their pricing. Remember, too, that today’s competitors may be tomorrow’s business partners; GSA Schedule contractors are allowed to team-up with one another to execute government contracts.
Once you’re ready to proceed, use the link in the GSA eLibrary for the Schedule you’ve identified to go to FedBizOpps — the central repository of virtually all government bid and proposal solicitation documents — so you can download the Schedule solicitation. Look for the link in the eLibrary that reads: “Click here to view the current solicitation on FedBizOpps.” An alternate way to find a solicitation is by using the links from this page: www.gsa.gov/schedulesolicitations.
The solicitation will consist of several different documents, so be sure to download them all. Collectively, we’re talking about hundreds of pages here, so the real work now begins – you must read, and re-read, everything. Only you can make a serious and accurate assessment of the impact of GSA’s terms and conditions on your business. Particularly pay attention to the instructions in the solicitation — you will need to follow these “to the letter” to ensure that GSA accepts your proposal.
Note, too, that many Schedules solicitations allow you to submit your proposal in an electronic format rather than on paper. These Schedules are designated as “eOffers.”
Does all this sound too daunting for you at this point? Take heart! After all, there are lots of ways to do business with the government, not just through a Schedule contract. In fact, GSA itself contracts extensively with vendors outside of the Schedule process. You can take a look at a forecast of GSA’s acquisition needs at www.gsa.gov/smbusforecast. This forecast can help you plan your approach. And don’t neglect to consider possible subcontracting opportunities with GSA contractors; you can find the major ones listed at www.gsa.gov/subdirectory. Your GTPAC Procurement Counselor can help you find many other government contracting opportunities at the federal, state and local levels.
Oh, and one more thing. If you do decide to to pursue a GSA Schedule contract, be sure to register for and attend GTPAC’s class entitled “Understanding the GSA Schedule Process.” Just click on the TRAINING tab on our website to identify the dates and locations of this class.
© 2010 Georgia Tech Procurement Assistance Center – All Rights Reserved.
Federal Construction Contracts: What Goes in Your Contract?
May 7, 2010 by cs
As a construction contractor stuck in the down economy, you have probably began looking into federal and state public contracts. Its inevitable; we all know the government is still building, they build amazing projects, and they are certainly good for the money.
But as you ease your way into finding introductory resources, understanding public construction bidding, and looking at how wages are set by the Davis-Bacon Act or Project Labor Agreements – you can begin to foray into:
What happens when my bid is selected?
There are a lot of items that go into your federal contract. If you are a prime contractor negotiating with the public authority, you will generally be handed a lengthy AIA or ConsensusDOCS formatted agreement that follows the bidding specifications. If you are a subcontractor, you may be handed the new ConsensusDOCS federal subcontract template, or a vendor/subcontractor package created by the prime contractor’s counsel.
Both situations leave little room for negotiation and involve a wealth of provisions aimed at satisfying a number of federal guidelines, regulations and job-specific protocols.
So what are some vital principles that you should know before you look at your first federal contract?
(1) Contracts Must Meet Bidding Specifications -
For you prime contractors, do not expect to be able to alter the terms of your contract after bidding. Bidding is premised on the fact that each bidder accepts the same contract. Attempting to alter the terms of the contract after a bid has been accepted can lead to bid protests. Thus, contracting authorities are not going to bend or break your obligations.
(2) Contracts are Modeled After the Federal Acquisition Regulation -
The Federal Acquisition Regulation (FAR) is a 4 to 5 inch think manual mandating how the federal government procures work. The FAR can be located at Title 48 of the Code of Federal Regulations, Chapter 1 (48 CFR Ch. 1).
Know the FAR like the back of your hand. You do not need to know what each provision means, but know how it is indexed and how to locate relevant provisions.
The FAR is even more accessible these days thanks to new software like iFAR, an iPhone application that puts the FAR in your palm – out on the construction site. (iFAR includes the 2005 version of the FAR)
Do not be afraid of the FAR either. In many ways, it is written to be easily read and absorbed by even the greenest of contractors. You can always discuss your questions with your attorney.
(3) Contracts Might Include Terms That Are Not Written in the Contract -
Unfortunately, you cannot always base your understanding of your working relationship on the written contract. A doctrine known as the Christian Doctrine prevents just that.
The Christian Doctrine was established from the ruling in G.L. Christian & Associates v. United States, a 1963 case which found that found that if a contractual clause was required to be in a contract by the FAR, it would be incorporated into the contract by operation of law.
The Christian Doctrine has been further modified to apply (a) against the federal government in addition to against the contractor and (b) only for mandatory provisions in the FAR which “express a significant or deeply ingrained strand of public procurement policy.” See General Engineering Machine Works for more information on Part b above.
So, even though you have a contract, filed with a plethora of restrictions, regulations, obligations and codes of conduct – it can be expanded by the effect of law. This is even more reason to understand the FAR clearly.
Knowing these three principles will give you a good head start into obtaining a federal contract. The second step, for many contractors, is to find an attorney to help manage your risk and lead you through the construction process – dispute free.
– Reiser Legal LLC: The Builders Counsel Blog © 2010 – http://blog.reiserlegal.com/