Georgia Tech Procurement Assistance Center

What to expect from OTA protests and disputes

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Ready or not — federal agencies are increasingly utilizing “other transactions authority” (OTA) to craft agreements that are not subject to traditional procurement laws and therefore should, in theory, allow the government greater access to innovative solutions.

While the goal of OTA procedures may be to avoid bottlenecks inherent in procurement under the Federal Acquisition Regulation, in the end they may result in valuable contracts with the government. As with any such contracts, it is inevitable that disputes will arise during their formation and administration.

While there is very little precedent relating to protests of OTA awards or claims arising under OTA-awarded contracts, there are some fundamental principles and analogous decisions that suggest how this early history of OTA protests and claims may unfold.

This article attempts to portray the current landscape for protests of OTA awards and contract claims arising during performance of an OTA agreement.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=721778

GAO: Agency closing time is 4:30 pm, not 5:00 pm

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Unless an agency designates different business hours, the Federal Acquisition Regulation (FAR) says that a government agency is deemed to close at 4:30 p.m. local time–not 5:00 p.m., as it would be easy to assume.

In a recent case, the 4:30 p.m. closing time cost an unsuccessful offeror a chance at a GAO protest because the offeror’s debriefing request, sent to the agency at 4:59 p.m., was deemed untimely.

The GAO’s decision in Exceptional Software Strategies, Inc., B-416232 (July 12, 2018) involved an NSA solicitation seeking to award up to six IDIQ contracts for the definition, prototyping, development, and production of visualization and presentation tools.  Thirteen offerors, including Exceptional Software Strategies, Inc., submitted initial proposals.

The evaluation panel determined that ESS’s proposal was unacceptable under one of the non-price factors.  On Thursday, March 15, 2018, NSA informed ESS that its proposal had been excluded from the competitive range.  The letter explained that ESS had been found unacceptable, and the reasons why.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/gao-agency-closing-time-is-430-p-m-not-500-p-m/

Want to do business with the State of Georgia? You better know the rules!

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Click on image above to see Georgia Procurement Manual.

Every unit of government has rules about how it purchases goods and services.  As a vendor, your success in doing business with government agencies is dependent upon your knowledge of those rules.

The federal government follows the Federal Acquisition Regulation (FAR), and many federal agencies also issue FAR supplements.  Similarly, each state government has its own purchasing procedures.

In the State of Georgia, the Department of Administrative Services, through its State Purchasing Division (SPD), maintains the Georgia Procurement Manual (GPM).  The GPM governs how state government entities purchase needed goods and supplies.  It also provides information to suppliers about how to conduct business with the State of Georgia.  SPD periodically revises the GPM to incorporate legislative changes, new automated processes and best practices.

In May of this year, the GPM was updated in several important ways, including the supplier protest process as well as internal procedural updates, such as new automated processes for state procurement staff to submit certain reports and requests to SPD.  You can see a summary of the changes here.   A brief overview of the new supplier protest process follows.

What is the supplier protest process?

GPM Section 6.5 defines how suppliers may challenge certain purchasing actions by state entities, such as: solicitations, proposed sole source contracts, proposed purchases through consortia or cooperative purchasing agreements, the results of a Request for Qualified Contractors and the state’s proposed or actual award of a contract.

How has the supplier protest process changed?

SPD has updated the supplier protest process to:

  • Define general principles that govern SPD’s review of supplier protests;
  • Address review of a supplier’s protest that a system error prevented timely submission of an electronic bid or proposal;
  • Identify certain procurements that are exempt from SPD’s protest process;
  • Define how sole source protests will be reviewed, including the option for discussions between the state entity and the protesting supplier prior to SPD issuing a protest decision;
  • Require a supplier to file a protest within 10 calendar days of the date the supplier knows or should have known of the action which is being protested or the other applicable protest filing deadlines, whichever is sooner;
  • Update the submission process to remove the fax number (protests may continue to be either mailed or sent via email to the addresses noted in the GPM); and
  • Provide other clarifications.
When are these changes effective?

Changes became effective May 18, 2018.  You can listen to a recorded webinar on the changes to the Georgia Procurement Manual here: GPM changes.  (Presentation begins at the 9:55 mark.)

How multifactor authentication can help DoD contractors achieve DFARS compliance

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To say that organizations today are concerned about cybersecurity would be a gross understatement.

Every time we turn around, there are reports of incidents where cybercriminals have either gamed a global social media tool or compromised a corporate customer database.

Needless to say, the U.S. government has also been extremely focused on cybersecurity — as evidenced by its recent directive, the Defense Federal Acquisition Regulation Supplement (DFARS), which aims to help government agencies protect their own data and that of organizations with which they do business.

What Does the DFARS Require?

The regulation requires any Department of Defense (DOD) contractor or subcontractor who handles controlled unclassified information (CUI) to comply with the data-protection standards outlined in the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171. According to NIST, CUI consists of “any sensitive federal government information routinely processed, stored or transmitted by a contractor in the course of its work providing essential products and services to federal agencies.”

DFARS is part of a worldwide trend of increasingly stringent data security standards. In May 2018, for example, the European Union (EU) enacted its General Data Protection Regulation (GDPR) to enhance user privacy and provide legal recourse when refuting algorithm-based decisions. Also, the Payment Card Industry Data Security Standard (PCI DSS) requires companies that accept credit card payments to host customer data securely with a PCI-compliant hosting provider. These and countless other standards show that data security is top of mind for industry leaders around the world.

Keep reading this article at: https://securityintelligence.com/how-multifactor-authentication-can-help-u-s-government-contractors-achieve-dfars-compliance/

See GTPAC’s video, template and other resources designed to help contractors comply with the DoD/NIST cybersecurity rules at: http://gtpac.org/cybersecurity-training-video/

In doubt? Check with GTPAC!

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Your team at the Georgia Tech Procurement Assistance Center (GTPAC) stands ready to offer you advice about any aspect of government contracting — especially when you have any doubt about the legitimacy of a contract-related service or solicitation.

We’ve published many articles before about government contracting scams (click here to see previous articles), and once again we want to bring another one to your attention.

Just a few days ago, a GTPAC client contacted one of our Counselors and asked about the legitimacy of a request for a quotation he received, supposedly from the Dept. of Defense (DoD).  Once we examined the email and the attachment that our client sent us, we told him to run — not walk — away from it!

Here Are the Details

The email was purportedly from a DoD official soliciting a quote for some laptops and computer drives.

We examined the email and its attachment, including the following:

  • We called the phone number in the email which was answered by a person who didn’t identify himself.  When we asked questions, he said that he’d have the person identified in the email call us back with details.  No one called back.
  • We checked the identity of the person who supposedly sent the email.  The email’s Quote form identified him as Deputy Director for Procurement at AT&L.   We determined that, in reality, he is DoD’s Deputy Director for Earned Value Management.  AT&L (Acquisition, Technology and Logistics) is a unit within DoD that no longer exists; it’s been reorganized into two groups: research and engineering (R&E) and acquisition and sustainment (A&S).  (See details of that reorganization by clicking here.)
  • We also identified the DoD official’s real email address and his actual phone number; they were not the email address or phone number shown in the email and on the Quote form that was sent to our client.
  • We noted that the federal solicitation number shown on the Quote form was not in the correct format, and the Quote form itself was not a form we have ever seen before.
  • The wording of the email was sloppy and unprofessionally prepared.

Based on the above, we advised our client to not respond because we believe this is a probable scam which will lead to an order to ship the products to a bogus shipping address, for which payment will never be received.  We also alerted the appropriate DoD officials of this probable scam.

What You Should Do

It’s as simple as 1-2-3.

  1. Stay alert to possible scams involving government contracting.  There are many scams in circulation literally every day.
  2. Don’t let the temptation of landing a sale overtake your common sense.  If it looks like easy money, it’s probably bogus.
  3. Whenever you are in doubt, contact GTPAC for advice.  We’ll be happy to check things out for you and provide you with our opinion.  It’s as simple as forwarding anything suspicious to us at: gtpacatl@innovate.gatech.edu.

Remember, the GTPAC team is here to help you succeed in the government marketplace!

P.S.:  If your business is located outside the state of Georgia, you can find a procurement technical assistance center (PTAC) by clicking here.

 

Teaming agreement challenges for subcontractors

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A recent Virginia Supreme Court case underscores the hurdles government subcontractors may face when they seek to enforce common teaming agreement terms (see: CGI Fed’l Inc. v. FCi Federal, Inc., No. 170617 (Va. June 7, 2018).

This case of the “disappearing workshare” also illustrates that strategic choices made during teaming agreement negotiations and in litigation may dictate whether the subcontractor has any recourse against the prime contractor.

In 2012, CGI signed a teaming agreement with FCi to jointly prepare a proposal for a State Department contract for which FCi would act as the prime contractor and CGI as the subcontractor.  FCi retained exclusive rights to finalize the proposal and negotiate any resulting prime contract with the government.   The teaming agreement said CGI “will receive” a 45% workshare of the awarded total contract value, but the “commitment may not be exactly 45% each year,” and it required the parties to enter into “good faith negotiations” for a subcontract after prime contract award.  If the parties could not mutually agree on a subcontract within 90 days after award, the teaming agreement would expire.

CGI and FCi worked together on the proposal for three months.   The government identified weaknesses in the proposal and invited a revised proposal.   CGI agreed to help FCi with the revised proposal if FCi committed to give CGI a 41% workshare and ten management positions on the resulting project.  The parties signed an amended teaming agreement with those new terms, but the other terms of the original teaming agreement did not change.  With CGI’s help, FCi prepared a revised proposal to the government.  

The government awarded the prime contract to FCi, but a competing bidder filed a series of protests.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/07/teaming-agreement-challenges-subcontractors/

Waiting for the final government audit may be too late

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In a case of first impression, a Court of Appeals has held that a government subcontractor’s claim for reimbursement of its actual indirect costs was time-barred.

Fluor Fed’l Solns. LLC v. PAE Applied Techs, LLC, No. 17-1468, 2018 WL 1768233 (4th Cir. Apr. 12, 2018) (per curiam) (unpublished).  It is the first case to directly address the interplay between the Allowable Cost and Payment Clause of the Federal Acquisition Regulation (FAR), 48 C.F.R. § 52.216-7, and a statute of limitations.  It highlights the risks government subcontractors face when they choose to wait for a Government audit rather than litigate promptly after a payment dispute arises.

This case involved a long-term subcontract and a long-delayed government audit.  In 2002, Fluor and PAE entered into a federal government subcontract that ultimately spanned a 15-year performance period. The subcontract incorporated, with minor changes, the FAR Allowable Cost and Payment Clause, 48 C.F.R. § 52.216-7, found in most cost-reimbursable federal government contracts and subcontracts. That clause requires the Government (or, in this case, the prime contractor, PAE), to pay Fluor’s “anticipated final” indirect rates in accordance with the contract terms, subject to retroactive adjustments once a government audit establishes the subcontractor’s final indirect rates applicable to the contract. 48 C.F.R. § 52.216-7(e)–7(g).

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/07/waiting-final-government-audit-may-late/

Government’s delayed response breached contract, says ASBCA

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Note: Author of “The Small Business Guide to Government Contracts,” Steven J. Koprince blogged recently about a recent ruling by the Armed Services Board of Contract Appeals (ASBCA) that the government breached a contract when it waited more than three months to respond to a contractor’s request to amend the contract’s scope of work.  Here is his writing, along with a link to his post:

Here’s a situation my colleagues and I see with some frequency: a contractor, in the course of working on a government contract, submits a request of some sort to the agency.  Then waits for a response.  And waits some more.  Meanwhile, the government’s delay in responding prevents the contractor from moving forward with some aspect of the project, causing the contractor to incur costs.

For contractors faced with this type of government inaction, a recent decision by the Armed Services Board of Contract Appeals is welcome news.  In that case, the ASBCA held that the government breached its implied duty of good faith and fair dealing by waiting more than three months to respond to the contractor’s request to amend the Statement of Work – allowing the contractor to “twist in the wind” during that period.

The ASBCA’s decision in Relyant, LLC, ASBCA No. 59809 (2018) involved an Army contract for the acquisition of pre-fabricated relocatable buildings (abbreviated “RLBs” in the decision) for use at two different sites in Afghanistan.

The solicitation’s Statement of Work included certain specifications for the RLBs.  Among those specifications, the SOW required the installation of gypsum interior drywall to the interior of the shipping containers that would cover fiberglass insulation.  But in its proposal, Relyant, LLC proposed a different configuration: the use of a “sandwich panel,” including Styrofoam as the insulator instead of separate insulation and drywall.

Keep reading this article at: http://smallgovcon.com/claims-and-appeals/governments-delayed-response-breached-contract-says-asbca/

Federal Circuit Court clarifies infringement liability for contractors

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Performance of a government contract often requires use of patented processes and products, which may not be owned by or licensed to the United States or the performing contractor.  Section 1498 of Title 28 of the U.S. Code establishes an exclusive remedy for patent owners to obtain just compensation when the United States or its contractors infringe their patents, while also shielding contractors from infringement liability and ensuring private patent rights do not obstruct government operations.

Under that statutory framework, when a contractor performing work “for the Government and with authorization or consent of the Government” is accused of patent infringement, § 1498 generally shields the contractor from liability and provides that any infringement action must be brought as a claim for money damages against the United States in the Court of Federal Claims.

In other words, § 1498 “waives the Government’s sovereign immunity and provides a remedy ‘[w]henever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same.'”

“By waiving the Government’s sovereign immunity, § 1498 ‘provides a cause of action against the United States’ and [a]t the same time, … protects government contractors against infringement liability and remedies where it applies.'”

Over a century old, § 1498 implements important, long-standing policies that:

1) contractors should not bear the risk associated with performing work for the government that may be infringing, and

2) the government may be liable for money damages (i.e., just compensation) for its infringing activities, but its operations will not be enjoined.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=716932

 

Meeting the definition of a small business concern — A checklist

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This is a  Checklist for existing or prospective federal government contractors to determine whether they can meet the definition of a small business concern (SBC) under the Small Business Act (SBA).

This Checklist includes the definitional thresholds and size standards for SBCs.

This Checklist can also be used to determine if an SBC can qualify under a specific small business category, including:

  • the 8(a) Business Development Program,
  • a Veteran-Owned Small Business (VOSB),
  • a Service-Disabled Veteran-Owned Small Business (SDVOSB),
  • a Women-Owned Small Business (WOSB),
  • an Economically Disadvantaged Women-Owned Small Business (EDWOSB), and
  • a Historically Underutilized Business Zone (HUBZone) SBC.

See the Checklist and related details at: https://www.jdsupra.com/legalnews/meeting-the-definition-of-a-small-42284/ 

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