Georgia Tech Procurement Assistance Center

Prepare now to secure ‘controlled unclassified information’

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Nowadays, many people are familiar with at least some types of protected information, whether in the form of personal health information or government-classified information. But, contractors working with the Department of Defense (“DoD”) must remember to protect another type of information: controlled unclassified information (“CUI”). Failure by government contractors to put processes in place that protect CUI could result in the loss of contracting opportunities or potential False Claims Act-related litigation.  For more information about the far-reaching implications of cybersecurity requirements on government contractors, please also see Matt Feinberg’s blog on the recent settlement of a cybersecurity False Claims Act (“FCA”) litigation; Isaias “Cy” Alba’s piece about cybersecurity, implied certifications, and the FCA; and Dave Shafer’s analysis of current cybersecurity standards and the DoD’s plans to remedy confusion.

Continue reading at:  Piliero Mazza

In submitting a bid or proposal – timing is everything!

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In its recent decision in Criterion Systems, Inc. v. U.S., , the U.S. Court of Federal Claims (COFC) denied protester’s pre-award protest challenging the Agency’s rejection of its late submission of a revised quote in response to a solicitation amendment and request for revised quotations.  In this case, the solicitation provided that “[f]ailure to follow procedures or provide any of the documents or information may be considered a material omission and may adversely affect a Vendor’s evaluation or result in elimination of the Vendor from the competition.”  It also provided that “LATE QUOTES WILL NOT BE ACCEPTED.”  Criterion timely submitted its initial proposal and was in the competition.  The Agency issued subsequent amendments to the solicitation and sought submission of revised quotes through a government portal, FedConnect, “no later than 5:00pm ET on November 21, 2018.”  Each amendment and the request for revised quotes stated that “LATE QUOTES WILL NOT BE ACCEPTED.”

Criterion “created” its revised quote on the designated electronic portal at 2:36:54 PM on November 21, 2018, but it did not “submit” it until 5:01:30 PM ET, 90 seconds after the deadline for quote submission.  When asked for an explanation by the Agency, Criterion indicated it may have had “latency” issues and that this was its first time submitting documents using the portal.  Criterion did not provide any evidence to justify or further explain its late submission.  The Agency rejected Criterion’s quote as untimely.

Criterion brought its protest alleging that the Agency’s actions in rejecting its quote were arbitrary and capricious.  The Court held that protester failed to establish that there was a “significant error” in the procurement process:

“Ninety seconds late may appear to be a minimal infraction, but deadlines are set for a reason, and an agency’s strict adherence to a deadline places all bidders on an equal footing and avoids the sorts of issues Criterion is seeking to raise here.  Further, Criterion’s failure to submit a timely bid was entirely within its own control.  The Agency’s refusal to deviate from the express RFQ terms is not arbitrary, capricious, or contrary to law.”

Criterion makes clear that all those who compete in procurements must comply with the express terms of the solicitation.  This is an essential truth in government procurement.  A bidder’s or offeror’s failure to comply with such terms can result in its loss of the opportunity to be considered for award.

Read more at:  Government Contracting Matters

How to land a government construction contract

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Each year, state and local governments spend more than $250 billion on the construction of roads, schools and other public infrastructure.

Construction companies sometimes see government contracting as prohibitively competitive and believe the pay is low and the bid requirements are too time and effort-consuming.  But this is not the case, and should not hold construction companies back from bidding on a sector that offers huge growth opportunities.

Contractors of any size and any type can get started at any time with government work.  Construction companies and also landscape contractors, electrical contractors, design-build contractors, general contractors and even roofing contractors are desperately needed by government procurement departments.  Here are some tips for landing a government construction contract.

Continue reading at:  Construction Dive

A reminder regarding the importance of SDVOSB control rules

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The recent decision in CVE Appeal of Valor Construction, Inc, SBA No CVE-121-A (June 3, 2019) provides a useful reminder to contractors regarding the difference between unconditional ownership and unconditional control, and the importance of assessing both when analyzing service-disabled veteran owned small business (“SDVOSB”) eligibility.  Specifically, the decision in Valor – which was issued by the Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) – demonstrates that an individual’s majority ownership of a SDVOSB, alone, does not vest that individual with unconditional control over the SDVOSB.  The Valor decision further reflects how the revised control regulations may cause eligibility problems for contractors.  Avoiding these pitfalls requires some background knowledge regarding the dual SDVOSB programs and the revision of the applicable regulations, a thorough understanding of the revised regulations themselves, and an awareness of the most common eligibility problems that contractors can face under these regulations.

Continue reading at:  Obermayer

Why a ‘satisfactory’ rating is bad thing for contractors

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Let’s talk about the word “satisfactory.”

For most of us, the first thing that comes to mind is the grade of a “C.”  If you received a “C” in high school, your parents probably asked you what happened, as if satisfactory wasn’t good enough.  Of course, there are some of us in certain subjects, say math, where a “C” was excellent.

But for the most part, getting a “C” in many households was unacceptable.

That word “satisfactory” is at the crux of what is wrong with the Contractor Performance Assessment Retrieval System (CPARS).

Too many contracting officers are saying a vendor’s performance is satisfactory for two main reasons: A lack of time to explain why the contractor was outstanding or exceptional, and to avoid any lengthy back-and-forth if a rating is below average or poor.

But as Greg Rothwell, the former Department of Homeland Security’s chief procurement officer, said at a recent event on CPARS, “If you are a vendor, getting a satisfactory kills you.”

This is because contractors and contracting officers should be using CPARS as one way to differentiate themselves from their competition.  But if everyone is rated “satisfactory,” then CPARS loses most of its value.

Not everyone believes earning a satisfactory rating is a killer.

Continue reading at:  Federal News Network

Journal article: OTAs are government contracts, and why it matters

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Readers of this Journal are likely aware of the burgeoning interest in Other Transactions and Other Transactions Authority (OTA).  Some believe that agencies endowed with OTA are free from the traditional rules of procurement contracting when forming Other Transactions.  With the freedom of OTA, the theory goes, agencies can contract with the most innovative commercial firms, which might otherwise decline the boilerplate terms and compliance burdens associated with procurement contracting.  This article is a reminder that the authority to create an Other Transaction is, at bottom, the authority to create a government contract.  It first explains why Other Transactions qualify as contracts and then begins exploring the implications of the contractual nature of Other Transactions.  Any private party entering into an Other Transaction should be aware of the significance of contracting with the United States.  OTA might clear away many burdensome procurement statutes and regulations, but principles of sovereign immunity and separation of powers, along with the pervasive precedents of the United States Court of Appeals for the Federal Circuit, will continue to ensure that doing business with the federal government, even by “Other Transaction,” is never quite the same as doing business in the commercial market.

Continue reading at:  Arnold & Porter

Tips to help small businesses find success with government contracting

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Finding new customers is a tough task all small businesses face.  One option many never consider is taking on the federal government as a client.

Government procurement – having the federal government purchase their goods and services – can be a big boon for small businesses.  The government needs a lot more than just items for the military, so small businesses that aren’t defense contractors shouldn’t look the other way on these opportunities.  The U.S. government spends hundreds of billions of dollars each year on a wide range of commercial items.

While many may think government contracts only go to large corporations, that isn’t the case.  The law requires the U.S. government, which is the largest customer in the world, to consider buying from small businesses.  In total, the federal government awards nearly one-quarter of its service contracts to small businesses, according to the U.S. Small Business Administration.

Continue reading at:  Business.com

Five-year annual receipts: Don’t start until SBA says “go!”

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Absent further action by the Small Business Administration (“SBA”) Office of Hearings and Appeals or a Federal Court, the GAO has effectively ended the argument as to whether the Small Business Runway Extension Act of 2018 (“Runway Extension Act”) immediately changed the annual receipt average for revenue-based small business size standards from three years to five.  In short, firms should continue to apply the three-year standard until SBA’s regulatory process runs its course.

Continue reading at:  Morrison & Foerster

Where construction contractors are most likely to exceed the budget

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Budget structures vary by the type of construction a contractor performs.  For example, subcontractors typically have a significant amount of their costs allocated to direct labor and materials while general contractors’ budgets are likely to have more subcontracted work on their books.

However, despite the differences in where the budget is weighted, every contractor, no matter its specialty, is vulnerable to cost overruns.

Weather delays

When serious rain, snow or other weather events keep contractors from making progress on their jobs, it’s not uncommon that both subs and GCs have those lost days tacked onto their schedules.  But what about the extra costs?

“If we get a rain day, it’s not like we can send the superintendent home and not pay him,” said Chuck Taylor, director of operations for Englewood Construction in Illinois.  “If we have a construction trailer, it’s not like we can tell the rental company, ‘Hey, it rained today, so we’re not going to pay for the rental on the trailer.’ It doesn’t work that way.”

Additional costs, which also include items like water remediation, wrapping an exposed building in protective material or bringing in expensive heaters, are often compounded by having to spend even more money on extra labor to make up lost time.  That could mean paying for additional crews or paying workers overtime.

This is an area of contract or subcontract negotiations that deserves attention, and it never hurts to ask the owner or GC for reimbursement beyond just adding time to the schedule.

Joe McLaughlin, chief financial officer of Austin Industries in Dallas, said contractors need to take into consideration where they’re building and factor in potential weather issues.  But, he said, it all goes back to what’s in the contract, so it benefits contractors to try to make the terms as flexible as possible.

Continue reading at:  Construction Dive

Labor unveils new resources to boost contractor hiring compliance

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The Labor Department’s Office of Federal Contract Compliance Programs unveiled two new resources Friday for government contractors to help comply with equal employment opportunity rules: an interactive contractor assistance portal and a newly appointed ombudsman.

“OFCCP is committed to transparency in the agency’s enforcement practices and providing more certainty to federal contractors,” Acting Labor Secretary Patrick Pizzella said in a statement.

As Labor’s civil rights agency, OFCCP enforces various federal laws that prohibit those who do business with the government from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran.  The agency offers compliance assistance and conducts evaluations to ensure contractors and their subcontractors follow personnel policies and procedures, recommends enforcement actions to Labor’s solicitor when necessary and links stakeholders with Labor’s job training programs to help employers recruit qualified workers, among other duties.

As a compliance assistance resource, OFCCP’s new portal will act as its online help desk that companies can access to ask the agency direct questions about the specific issues they face when embarking on federal business, retrieve helpful reference and compliance assistance materials, learn about solutions to common compliance challenges and share successful strategies to support other stakeholders in their efforts.

Continue reading at:  Nextgov

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