Nondisclosure of higher profit on fixed price contract does not violate False Claims Act

September 11, 2013 by

Last week, a U.S. District Court judge in Florida held that a government contractor working under a fixed-price contract is not liable under the federal False Claims Act (“FCA”) for higher than expected profits and “failing to notify the Government that the work could be performed less expensively and charged at a lower price” than the contract price.   U.S. ex rel. Prime v. Post, Buckley, Schuh & Jernigan, Inc., and Parsons Corporation, No. 10-cv-1950 (M.D. Fl. Aug. 23, 2013).

The nature of the contract was critical to the outcome of the case. In U.S. ex rel. Prime, two contractors, Post, Buckley, Schuh & Jernigan, Inc. (“PBS&J”) and Parsons, formed a joint venture for the project (the “JV”). The JV entered into a fixed price indefinite delivery/indefinite quantity contract with the Government, under which fixed price task orders would be placed. Prices on the individual task orders were lump-sum, determined in accordance with the agreed-upon labor rates multiplied by the number of days required to complete the work, and included a profit component. The labor rates and lump-sum task order prices were a product of lengthy negotiations between the JV and Government representatives. During those negotiations, which were transcribed, the Government noted the potential for the JV to increase its profit margin by injecting greater efficiency into its performance.

Keep reading this post at http://www.mckennalong.com/publications-advisories-3378.html.

New video offers expert instruction on registering in SAM

August 28, 2013 by

As you may know, one of the prerequisites for doing business with the federal government is registering in SAM — the System for Award Management.  Among other things, SAM is the government’s vendor data base — a way for government buyers (and prime contractors) to find you and pay you once you’re under contract.  The SAM database also serves many other purposes, all important to the acquisition process.

When SAM was created about a year ago, it aggressively combined several large, stand-alone databases and merged them into one.  The “data migration” challenge was great, and glitches emerged.  As a result, many vendors have experienced problems both in getting existing vendor files to move over to SAM (i.e., migrate) as well as with creating a new vendor registration from scratch.

Since SAM’s launch, the Georgia Tech Procurement Assistance Center (GTPAC) and GTPAC’s counterparts across the country have spent countless hours assisting businesses with SAM.  Our professional development association, the Association of Procurement Technical Assistance Centers (APTAC), has drawn upon what we’ve learned nationally and has created a new video that explains the SAM registration process.

The SAM instructional video is now available for viewing at: https://netforum.avectra.com/eWeb/DynamicPage.aspx?Site=APTAC&WebCode=SAM.

If you are tackling SAM anytime soon, you’ll want to view the video for many helpful hints and tips.  For further help, contact a GTPAC counselor.  If you are located outside Georgia, contact a counselor with a procurement technical assistance center (PTAC) near you.  To find the nearest PTAC, please visit: http://www.aptac-us.org/new/Govt_Contracting/find.php.

Does your firm qualify as a SDB?

August 26, 2013 by

Small businesses, if qualified, can self-represent their status as a small disadvantaged business (SDB).  Doing so could qualify your firm to be considered for federal contracting, including subcontracting, opportunities.

You do not have to submit an application to the Small Business Administration (SBA) for SDB status.

To self-represent as an SDB, you must register your business in the federal government’s vendor database known as the System for Award Management (SAM).  Navigate to end of the SAM database to find the section that deals with small business certifications.   However, first make sure you and your firm understand the SBA eligibility criteria for SDBs.

In order to qualify as an SDB, generally:

  • The firm must be 51% or more owned and controlled by one or more disadvantaged persons.
  • The disadvantaged person or persons must be socially disadvantaged and economically disadvantaged.
  • The firm must be small, according to SBA’s size standards.

While SBA must still certify all firms that participate in the 8(a) Business Development Program, the requirements to be approved are different and more rigorous than SDB status.  If you believe your firm is ready for the 8(a) Business Development program, click here.

For more information on SDB certification, view the October 3, 2008 Federal Register notice  which explains why SDBs do not need to submit an application to the SBA.

In addition to self-representing your business as an SDB, if qualified, your firm might also meet the requirements for one or more of the following programs:

  • SBA’s 8(a) Business Development Program provides managerial, technical, and contractual assistance to small disadvantaged businesses to ready the firm and its owners for success in the private industry.
  • SBA’s HUBZone Program helps small businesses in urban and rural communities gain preferential access to federal procurement opportunities. These preferences go to small businesses that obtain HUBZone certification in part by employing staff who live in a HUBZone. The company must also maintain a “principal office” in one of these specially designated areas.
  • The Women-Owned Small Business Federal Contract Program authorizes contracting officers to set aside certain federal contracts for eligible women-owned small businesses.
  • The Service-Disabled Veteran-Owned Small Business Concern Procurement Program provides procuring agencies with the authority to set acquisitions aside for exclusive competition among service-disabled veteran-owned small business concerns.

DoD, TSA and HHS officials provide contracting advice to small businesses

August 23, 2013 by

The Pentagon’s point woman for hiring women-owned small businesses said this week that she “needed a lift” from the travails of furloughs and sequestration.

“This is a tough time for the federal government and DoD in particular if your’re concerned about small businesses,” said Linda Oliver, deputy director of the Defense Department’s Office of Small Business Programs. “Our travel dollars have been cut to nonexistent, our training dollars cut. I’m not second- guessing the decisions, but it’s kind of a down time.”

Speaking on Tuesday to hundreds of current and prospective contractors at the American Express Open’s annual summit, Oliver’s chief advice was to take advantage of the “debrief,” the optional meeting companies may request within three days of learning that they have been eliminated during a contract award process. “The debrief is not on the contracting officers’ list of fun things to do, since they fear they’re being set up for a bid protest,” she said. “But it’s really valuable and gives all involved perspective and closure,” she said.

Keep reading this article at: http://www.govexec.com/contracting/2013/08/despite-sequester-agencies-continue-hiring-women-owned-contractors/69104

 

How to reduce the growing number of bid protests

August 21, 2013 by

With bid protests increasing by almost 50 percent since 2008, many industry observers and policymakers may be tempted to place the blame for procurement slowdown — particularly in the defense industry — squarely on the contractors. Yet to do so to the exclusion of the other key player in this equation — the Defense Department — ignores that bid protests have proliferated largely as a result of the way government does business.

It may be the case that some government contractors file frivolous protests in order to hang onto a contract they once held but subsequently lost, or in an effort to extract concessions from the government, such as the opportunity to start or continue work while the protest is resolved. However, bid protests are a game of high-stakes poker for most contractors. Protests are expensive, and protestors are prohibited from billing their protest costs against their contracts.

Even if the Government Accountability Office (GAO) sustains a protest (and awards the successful protestor its protest costs), a contractor may still need to go through the bidding process all over again, and there is no guarantee that it will win the second time around. In addition, the GAO retains the power to summarily dismiss a protest it deems frivolous, ultimately rendering any effort put into filing a protest a waste of resources. In other words, bid protests do not just slow down the government; they also slow down business for contractors.

Keep reading this article at: http://www.defenseone.com/management/2013/08/how-reduce-growing-number-bid-protests/68582/ 

There is no “free” government money

August 20, 2013 by

We recently heard about a woman who said the “U.S. Federal Government Grants Department” called and claimed she needed to pay $600 in order to receive federal benefits totaling $8,000.   You guessed it … she paid the money, and never got the $8,000.

The phone call was a scam. The Federal Government Grants Department doesn’t exist.   More importantly, the government will never call, email, or text you to ask for money.

Even though the woman wrote down the phone number of the caller, it can be hard to trace it back to a real person because of tricks like caller ID spoofing.   (Click the link if you don’t know what “caller ID spoofing” is.)   She probably won’t be able to get her money back.

Be suspicious of any call, text, or email that claims to be from the government.  Scammers often use names that sound like real government agencies but aren’t.   The Federal Trade Commission (FTC), the nation’s consumer protection agency, has more tips on spotting fake callers who pretend to be the government.

You can find the official names and contact information for federal government agencies in our A-Z Index of U.S. Government Departments and Agencies.   Don’t hesitate to contact the agency that claims you owe them money.   Be sure to use the contact information listed in the A-Z Index and not the contact information the caller or email provides.

If you do get scammed, then you should file a complaint with the FTC and your state’s consumer agency.   The link to Georgia’s consumer affairs offices is located at: http://www.usa.gov/directory/stateconsumer/georgia.shtml.

Veteran-owned businesses must remove ‘large’ NAICS codes from VetBiz within 30 days

August 8, 2013 by

The Department of Veterans Affairs’ Center for Veterans Enterprise (CVE) has instructed verified service-disabled veteran-owned small businesses (SDVOSBs) to remove so-called “large NAICS codes” from their VetBiz Vendor Information Pages profiles within 30 days – or else.

According to a recent email from the VA’s CVE, SDVOSBs must remove any NAICS codes for which they do not qualify as a small business.  Failing to remove these “large NAICS codes” may result in potentially harsh penalties, including debarment.

The CVE’s August 1, 2013 email states, in part:

Companies verified in the VetBiz VIP database generally list the NAICS Codes under which they are qualified to provide goods and services. The VetBiz VIP database is restricted to service-disabled Veteran-owned and Veteran-owned small businesses. If any verified company lists one or more NAICS Code(s) on its profile in which it is other than small, the Department of Veterans Affairs, Center for Veterans Enterprise (CVE), is requiring that those NAICS Codes be removed. If such NAICS Codes are not removed, CVE may request the SBA to conduct a formal Size Determination, and CVE may also initiate debarment and/or cancellation proceedings against the company.

After quoting a portion of the SBA’s Standard Operating Procedure for Size Determinations, the VA CVE states: “[t]o fulfill the small business concern requirement found in the regulations, CVE is requesting each company, verified in the VetBiz VIP database, to remove all NAICS Codes in its profile that are other than small within thirty (30) days.”

Keep reading this article at: http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/va-cve-sdvosbs-must-remove-large-naics-codes-from-vetbiz-within-30-days

There’s growth in state and local contract spending

August 7, 2013 by

For those who specialize in work for state and local governments, it can be unsettling to read headlines announcing teacher layoffs in Chicago or bankruptcy in Detroit.

However, the big picture for local governments and school districts is looking much brighter.

Deltek’s growth forecast for state and local consumption of information technology goods and services improved this year to 3.2 percent, with the total market expected to grow from $58.5 billion in 2013 to $68.6 billion in 2018.

One of the best annual market indicators is a review of the governors’ State of the State addresses.

This year, we found governors restoring K-12 education funding and promising to rein in tuition at public universities.

Governors also called for innovative ways to reduce correctional spending and improve health care and social services. All of these goals must be supported by technology investments.

Keep reading this article at: http://www.washingtonpost.com/business/capitalbusiness/contractors-should-watch-state-and-local-spending-trends/2013/08/02/49101f54-f621-11e2-9434-60440856fadf_story.html

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

August 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 July 2013 right here: FEDERAL CONTRACT AWARDS IN GEORGIA – JULY 2013

Copies of earlier reports are listed below:

 

‘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/