Georgia Tech Procurement Assistance Center

FAR now requires reporting reduced or untimely payments to small business subcontractors

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The FARThe Federal Acquisition Regulatory Council has issued a final rule amending the Federal Acquisition Regulation (FAR) to implement a section of the Small Business Jobs Act of 2010.  The new rule, which goes into effect on January 19, 2017, will require certain prime contractors to “self-report” to their contracting officers all reduced or untimely payments to their small business subcontractors within 14 days of when the payment was due and the reason for the reduced or untimely payment.

Specifically, the contract will contain a new FAR clause, 52.242-5, which will state:

(a) Definitions. As used in this clause-

Reduced payment means a payment that is for less than the amount agreed upon in a subcontract in accordance with its terms and conditions, for supplies and services for which the Government has paid the prime contractor.

Untimely payment means a payment that is more than 90 days past due under the terms and conditions of a subcontract, for supplies and services for which the Government has paid the prime contractor.

(b) Notice. The Contractor shall notify the Contracting Officer, in writing, not later than 14 days after-

(1) A small business subcontractor was entitled to payment under the terms and conditions of the subcontract; and

(2) The Contractor-

(i) Made a reduced or untimely payment to the small business subcontractor; or

(ii) Failed to make a payment, which is now untimely.

(c) Content of Notice. The Contractor shall include the reason(s) for making the reduced or untimely payment in any Notice required under paragraph (b) of this clause.

Keep reading this article at: http://www.jdsupra.com/legalnews/new-federal-acquisition-regulation-rule-20809/

New rule, effective Nov. 1, finalizes small business subcontracting changes

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Significant regulatory amendments related to small-business subcontracting will take effect on November 1, 2016.

Federal Register pixOn July 14, 2016, the Federal Acquisition Regulatory Council issued a final rule in the Federal Register to implement regulatory changes that the Small Business Administration (SBA) made.

The final rule makes many important changes to the Federal Acquisition Regulation (FAR) Part 19 and FAR clause 52.219-9 to implement the statutory requirements of Sections 1321 and 1322 of the Small Business Jobs Act of 2010 (Pub. L. 111-240). These changes, which take effect on November 1, are summarized here.

SAM profile mistake leads to possible lost contract

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SAM logoSmall business owners have lots of items on their to-do lists. In addition to actually running the business, there are many administrative tasks required to make sure that you meet the applicable small business size standards and maintain those standards year-after-year (in order to avoid, or at least minimize, vulnerability to an SBA size protest).

Among the (sometimes admittedly) tedious tasks associated with remaining eligible for small business contract awards is registering in the required government databases. Over the past five years, this process has been considerably streamlined by the rollout of the System for Award Management (www.SAM.gov). SAM is a no-cost, government website where contractors must register and provide certain identifying information about their business.

One of the areas covered by a SAM profile is a business’s size – and specifically whether it qualifies as “small” under the applicable size standards.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=522310

Remember: SAM.gov registration is free, and help with SAM is free, too.  

Want to get paid? Don’t let your CAGE code expire!

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Keep SAM happy, and your CAGE will be alright.

Let’s explain that first sentence.

  • SAM stands for System for Award Management.  In essence, it’s the federal government’s vendor database.  If your company wants to do business with the federal government, it’s imperative that you register in SAM.  (For tips on how to register, click here.)
  • CAGE stands for Commercial and Governmental Entity, another code.  The government automatically creates and issues your business a CAGE code once you properly register in SAM.  Having a CAGE code is very important because without one, your business is not eligible to receive U.S. Government funds — and that could mean you won’t be paid for contract work you are performing.

So, to restate the first sentence: If you keep your SAM registration up-to-date, your CAGE code will stay active.  

SAM requires all registrants to update their records at least once a year.  Now, with a change that takes effect on Aug. 25, 2016, if you don’t keep SAM up-to-date, you risk allowing your CAGE code to expire.  There is a saving grace: If you allow your SAM registration to lapse, you can renew it.  In turn, the CAGE system will pick up your SAM renewal and reset the expiration date on your CAGE code.

Remember, there is no fee charged to register in SAM and no cost to obtain a CAGE code.

If you need help with SAM registration or verifying your CAGE code, the best place to get help is your nearest procurement technical assistance center (PTAC).  In Georgia, that means the Georgia Tech Procurement Assistance Center (GTPAC).  To see a list of GTPAC offices and staff, visit: http://gtpac.org/team-directory.

 

 

Supreme Court on False Claims Act: Implied certification OK, but materiality is no gimme

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Two weeks ago, in Universal Health Services Inc. v. U.S. ex rel. Escobar, the Supreme Court unanimously affirmed the viability of the “implied false certification” theory of False Claims Act liability, at least in certain circumstances.  Writing for a unanimous Court, Justice Thomas explained that a defendant can face FCA liability under an implied certification theory where two conditions are satisfied:

  1. The claim asserts a request for payment and makes specific representations about the goods or services provided, and
  2. The failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.

Supreme CourtThis portion of the ruling was not unexpected given the overwhelming acceptance of implied certification among the Circuit courts. But, more importantly, out of concern that the statute be applied too broadly, the Court also explained at length that the “materiality” standard in the statute is a “demanding” one, and set a high bar for the Government and relators to demonstrate materiality of the alleged non-compliance.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/06/supreme-court-implied-certification-ok-but-materiality-is-no-gimme/

Subcontractor wants out of shipping contract; hearing set for Oct. 30

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A key subcontractor wants to stop shipping troops’ privately owned vehicles for the Department of Defense, further threatening a system that has been plagued by long delays and complaints from troops.

A U.S. District Court on Sunday enjoined Liberty Global Logistics of Lake Success, N.Y., to stick to its agreement to ship vehicles to and from Europe. Liberty is a subcontractor to Brunswick, Ga.-based International Auto Logistics, which in May took over a DOD contract to ship the personal vehicles of servicemembers and DOD civilian employees.

The temporary injunction will be the subject of a Thursday hearing at the U.S. District Court for the Southern of Georgia, Brunswick Division.

Liberty, of Lake Success, N.Y., has questioned whether International is financially capable of servicing a contract it won in May to ship the personal vehicles of DOD personnel when they transfer duty stations. In documents filed with the court by International, Liberty said that International had taken out an $8 million line of credit last year, which expired in July.

Keep reading this article at: http://www.stripes.com/news/subcontractor-wants-out-of-pov-shipping-contract-hearing-set-for-thursday-1.309580

Government contracting, the False Claims Act, and the art of voluntary disclosures

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With the end of the high levels of government contract spending during the Great Recession and the advent of sequestration and budget cuts, government contractors are competing for fewer and fewer opportunities. As this is occurring, government contracting officers, inspector generals, third-party contract administrators and law enforcement are significantly increasing their collective investigations of fraud, waste, and abuse and related False Claims Act and other statutory violations. Government contractors must prepare for these issues well in advance and ensure a well-developed plan is in place to investigate, evaluate, possibly report and respond to an investigation related to government contracting activities.

It seems like almost every day the government is either reporting the investigation or the settlement and prosecutions of government contractors and government employees for activities related to the False Claims Act. This statute prohibits government contractors, among others, from obtaining payments from the government based on fraud. To be liable, the government does not have to provide that the government contractor knew it was defrauding the government. Individuals and companies have been held liable or settled False Claims Act cases where the only evidence was that the government contractor had a culture of “deliberate ignorance” or “reckless disregard” for the fraudulent acts. In fact, the government contractor does not even need to have had an economic benefit from the fraudulent act to be liable under the False Claims Act.

Keep reading this article at: http://www.jdsupra.com/legalnews/government-contracting-the-false-claims-78363/

Obama renews initiative ordering agencies to more quickly pay small business contractors

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President Obama will renew a federal initiative that requires agencies to quickly pay small business contractors, a July 11 White House statement says.

QuickPay requires agencies to pay small businesses with federal government contracts within 15 days of receiving an invoice, rather than the normal 30-day period, the statement says.

The initiative, which was originally launched in 2011, has saved small businesses more than $1 billion, the White House notes.

Keep reading this article at: http://www.fiercegovernment.com/story/obama-renews-initiative-ordering-agencies-more-quickly-pay-small-business-c/2014-07-14 

Reflections of a small IT contractor on the government shutdown of 2013 and 2014’s uncertainties

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[Note: This article was written by Terry Verigan, vice president of CompuCure.] 

Hurricane Katrina nearly killed CompuCure. In the wake of the storm, just three of us remained by Oct. 1, 2005, and the weeks ahead promised to be grim for our New Orleans-based IT services firm — what was left of it anyway. But we weren’t going to let that damn storm chase us away from our city.

By September 2013, eight long years after Katrina wiped out so many lives and businesses, CompuCure had rebounded sufficiently to make Inc. Magazine’s list of the fastest growing businesses in America. With a talented staff of 30 delivering projects that had achieved national recognition for quality and value, it was tempting to think we’d made it to some sort of safe high ground, economically speaking. But by late September, our president and owner, Angelina Parker, faced another storm, this one political. The federal shutdown nearly took down the business again.

While we had become accustomed to the disruptions that stemmed from continuing resolutions — the stop-gap budgets lawmakers typically adopted while they continued to disagree over larger spending questions — those rarely impacted our work at federal sites. Employees would clock in while budgets were frozen and eventually CompuCure would be reimbursed. Our line of credit was more than sufficient to carry on. Interest charges eat away at profitability, but we could keep going, knowing that our people and their families felt secure. Our most valuable resources, our employees, would still be on the job.

But the shutdown was different. It meant lost revenue to CompuCure, not just a delay in getting invoices paid. Disturbing questions emerged, notably: How would we keep our talented employees from moving to other companies less dependent on federal contracts?

Keep reading this article at: http://www.nextgov.com/cio-briefing/2013/12/reflections-2013-year-nearly-killed-one-small-federal-it-firm/76097/?oref=nextgov_cio_briefing

FAR formally amended to provide accelerated payments to small subcontractors

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For two years, it has been the policy of individual agencies of the federal government to encourage prime contractors, upon receipt of progress payments from an agency, to accelerate payments to small business subcontractors.  Now, this policy has been formalized by publication of a rule and contract clause in the Federal Acquisition Regulation (FAR), effective December 28, 2013.

Here is the background.  The Department of Defense (DoD), the General Services Administration (GSA), and the National Aeronautical and Space Administration (NASA) originally published a proposed rule in the Federal Register at 77 FR 75089 on December 19, 2012, to implement OMB Memorandum M–12–16 that would provide for the acceleration of payments to small business subcontractors.  OMB released  Memorandum M–12–16, Providing Prompt Payment to Small Business Subcontractors, on July 11, 2012. This policy memorandum outlined the steps agencies should take to ensure that prime contractors pay their small business subcontractors as promptly as possible.  OMB released Memorandum M–13–15, Extension of Policy to Provide Accelerated Payment to Small Business Subcontractors, on July 11, 2013.  This policy memorandum extended the OMB
Memorandum M–12–16’s expiration date by one year to July 11, 2014.

With the publication of a formal rule in the FAR, the accelerated payment policy is now in effect, government-wide.  Below is the clause that is to be placed in all federal contracts containing subcontracting opportunities:

FAR Part 52.232–40 

Providing Accelerated Payments to
Small Business Subcontractors (Dec. 
2013)

(a) Upon receipt of accelerated payments
from the Government, the Contractor shall
make accelerated payments to its small
business subcontractors under this contract,
to the maximum extent practicable and prior
to when such payment is otherwise required
under the applicable contract or subcontract,
after receipt of a proper invoice and all other
required documentation from the small
business subcontractor.
(b) The acceleration of payments under this
clause does not provide any new rights under
the Prompt Payment Act.
(c) Include the substance of this clause,
including this paragraph (c), in all
subcontracts with small business concerns,
including subcontracts with small business
concerns for the acquisition of commercial
items.

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