Georgia Tech Procurement Assistance Center

Proposed FAR rule seeks to accelerate payments to small business

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This past week, the FAR Council issued a proposed rule that would potentially speed up payments to small business prime contractors and subcontractors across the federal government.  The proposed rule, found at 86 Fed. Reg. 53,923, seeks to incentivize agencies to pay prime contractors that are small businesses within 15 days instead of 30 days after receipt of a proper invoice if no payment date is specified in the contract.  It also would apply to prime contractors that subcontract with small businesses, applying a similar 15-day requirement to pay small subcontractors when accelerated payments are received.  According to the proposed rule, the FAR Council will apply this to most federal contracts by seeking determinations to make this new rule applicable to commercial contracts as well as those under the Simplified Acquisition Threshold.

Continue reading at:  The Contractor’s Perspective

 

Navigating the FAR/DFARS: The most confusing and little known clauses

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The law firm Piliero Mazza has put together a helpful presentation on navigating the FAR/DFARS, that focuses on the most confusing the little-known clauses.  They write:

“We have fielded numerous calls from new clients asking the same question when it turns out they have violated a FAR provision: ‘Do they really expect me to read all of those regulations?  How is someone supposed to understand everything that is in there?’ Unfortunately, the answer is ‘yes’ the government does expect you to know all of the FAR and DFARS clauses that are relevant to your work and to follow them to the letter.  Not only that, but by virtue of the fact the FAR and DFARS are publicly available, all contractors are presumed to have knowledge of all the clauses and understand them.  This reality can be daunting for new companies or even large well-established businesses looking to enter the federal space.  During this session, we will look at some of the most confusing and poorly understood FAR and DFARS provisions to give you a leg up on your competition or be able to help your own companies or those you work with in navigating these areas of the law.”

You can watch the webinar at:  JD Supra

The top five concerns when selling or acquiring an entity with government contracts

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Contract review is one of the most onerous (and important) processes in any due diligence process when buying or selling a company.  We all know that those contracts are the backbone of many businesses- they document the relationships and operations of the business and are often the value of what a buyer is purchasing.  This review process can get complicated when the selling entity has government contracts that may be governed by special rules known as the Federal Acquisition Regulations System (“FAR”).  The FAR was established to set forth uniform policies and procedures for acquisition by all executive branch agencies.

Individual agency acquisition regulations may implement or supplement FAR, in addition to internal agency guidance.  For example, the Department of Defense has certain certification requirements in order to establish security clearance for defense contracts.  FAR reminds contractors that the government is acting on behalf of the American taxpayer in procuring goods and services for government agencies, and the individual contract officers act on behalf of the government to ensure that each contract benefits the government.

Buyers, sellers, and their advisors should address government contracts as early in the diligence process as possible in order to expedite any required changes which might delay closing.

Continue reading at:  Pullman & Comley

CPARS challenges: No appeals without contracting officer claim

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Ask many government contractors, and they’ll tell you that even a single negative report in the Contractor Performance Assessment Reporting System (CPARS) can have a powerful adverse impact on winning future prime contracts.

Given the importance of these performance reports, it’s little wonder that a contractor on the receiving end of a negative CPAR may want to ask a judge to review the matter.  But as one recent case demonstrates, a contractor cannot challenge a CPAR with a judge until the contractor has followed the FAR’s claims process.

The decision of the Armed Services Board of Contract Appeals in SkyQuest Aviation LLC, ASBCA No. 62586 (2021), involved a contract between the Air Force and SkyQuest Aviation LLC.  Under the contract, SkyQuest was to provide “functional check flight pilot, flight engineer, and related services in exchange for $429,000.”

Continue reading at:  SmallGovCon

Avoid having your early bid deemed late on federal projects

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Bidder beware.  Interpreting federal law can sometimes feel like solving a riddle.  For example, when is an early bid late?

In the case, In re Sea Box, Inc., the Government Accountability Office (GAO) determined that a bid received by government servers eight minutes before the deadline was late because it did not arrive in the Contract Officer’s inbox until shortly after the deadline.  To be clear, it did not matter when the bid was received by government servers, nor did it matter that the bid was fully in the control of the government once it was submitted.

Instead, the case turned on the interpretation of a Federal Acquisition Regulation (FAR 52.215-1) that was incorporated into the bid by reference.

Continue reading at:  Inside Tucson Business

Complying with the government’s restrictions on foreign telecommunications equipment

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Government contractors are facing a significant compliance burden thanks to three new FAR provisions that impose restrictions on contractors who supply or use Chinese telecommunications equipment services.

Generally speaking, the new FAR provisions, 52.204-24, 52.204-25, and 52.204-26, are designed to ensure that contractors do not supply any covered equipment or services to the government (the “supply restriction”) or use any covered equipment or services in their business (the “use restriction”).  Covered equipment or services include any telecommunications equipment or services from companies linked to the Chinese government, such as Huawei (the world’s largest telecom manufacturing company) and ZTE, as well as any subsidiaries or affiliates of such companies.

Continue reading at:  JD Supra

New FAR rule continues shake-up of LPTA procurements

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Federal civilian agencies will now face new restrictions on when and how they can use Lowest Price Technically Acceptable source selection procedures.  A new rule in the Federal Acquisition Regulation is the latest in a series of measures aimed at regulating the use of LPTA source selection procedures.  The new rule implements an October 2019 proposed rule and takes effect on February 16, 2021.

As previously discussed on this blog, the Department of Defense issued a final rule in late 2019 amending the Defense Acquisition Regulation Supplement to establish restrictions on when and how DOD may use LPTA source selection procedures.  Pursuant to the John S. McCain National Defense Authorization Act for Fiscal Year 2019, the new FAR rule places similar — though not identical — restrictions on civilian agencies.

The new FAR rule imposes three primary limits on the use of LPTA procedures.

Continue reading at:  Covington

Final rule implements changes to the Buy American Act regulations

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On January 19, 2021, the Federal Acquisition Regulatory Council published the final rule amending the Federal Acquisition Regulation (“FAR”) in accordance with President Trump’s Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.”  As we discussed in our prior blog articles here (discussing the September 2020 proposed rule) and here (discussing the July 15, 2019 order), the Executive Order required significant changes to the regulations implementing the Buy American Act, 41 U.S.C. §§ 8301-8305 (“BAA”).  The final rule varies very little from the September 14, 2020 proposed rule (discussed in greater detail here).  Accordingly, the final rule amends applicable FAR clauses with three key impacts:

  1. Increasing the domestic content requirement – to 55% for most products, and to 95% for products consisting “wholly or predominantly” of iron or steel, or a combination of both (and including new definitions to clarify further what types of products are covered by the heightened requirements);
  2. Removing the commercially available-off-the-shelf (“COTS”) exception for products consisting “wholly or predominantly” of iron or steel, or a combination of both (but leaving a partial exception in place for COTS fasteners made wholly or predominantly of iron or steel); and
  3. Increasing price preferences for domestic products – from 6% to 20% for large businesses, and from 12% to 30% for small businesses.

The final rule and the new FAR clauses are effective on January 21, 2021 – although it is not required in new solicitations until February 22, 2021.

Continue reading at:  Government Contracts and Investigations blog

GAO: SAM registration is a matter of contractor responsibility, not bid responsiveness

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Government contractors must be registered in the System for Award Management (SAM) and complete required representations and certifications annually.  FAR 52.204-7 also requires bidders, with some limited exceptions, to be registered in SAM at the time of bid and to continue to be registered until time of award, during performance, and through final payment.  Recently, the Government Accountability Office (GAO) addressed the issue of whether a bidder’s failure to have an active registration in SAM at time of bid renders the bid “nonresponsive” and ineligible for award in Master Pavement Line Corp., B-419111 (Dec. 16, 2020).

In Master Pavement Line Corp., GAO concluded that the failure to be registered in SAM and to complete the annual representations and certifications was a matter of contractor responsibility and not bid responsiveness and that such a defect did not impact the responsiveness of the bid.  As a result, FAR 14.405 required the procuring agency to give the bidder the opportunity to cure the defect.  While GAO concluded that the failure to be registered in SAM does not render a bid nonresponsive, this does not mean that a bidder should wait to register in SAM.  GAO also indicated that SAM registration and the completion of the representations and certifications was still a matter of contractor “responsibility.”  In addition to examining bid responsiveness, under FAR 9.104-1, the federal government is required to determine if a contractor is responsible prior to award.  Therefore, an agency could still theoretically find a contractor nonresponsible for failing to properly register in SAM and deem the contractor ineligible for award.

Continue reading at:  Peckar & Abramson Blog

NDAA requires Contracting Officers to provide information to unsuccessful offerors for task and delivery orders valued under $5.5 million

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The annual National Defense Authorization Act (NDAA) has long been used to impose government-wide procurement reforms.  The recently enacted NDAA, signed by President Trump on December 20, 2019, continues this practice, by requiring agencies to provide unsuccessful offerors on smaller dollar task or delivery orders above the Simplified Acquisition Threshold an explanation as to why their proposal was unsuccessful as well as the rationale for the award.

Currently, agencies are not required to provide debriefings to unsuccessful offerors on FAR Part 16 task or delivery orders smaller than $5.5 million, leaving many contractors with no explanation as to why their offers were not successful.  Section 874 of the FY 2020 NDAA requires that Federal Acquisition Regulation (FAR) 16.505(b)(6) be amended to provide that, upon request by an unsuccessful offeror, the Contracting Officer on a contract above the Simplified Acquisition Threshold and less than $5.5 million shall “provide a brief explanation as to why such offeror was unsuccessful that includes a summary of the rationale for the award and an evaluation of the significant weak or deficient factors in the offeror’s offer.”

Continue reading at:  Pillsbury

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