Georgia Tech Procurement Assistance Center

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

By

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

By

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

By

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

By

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

By

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

By

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

By

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

By

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

By

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

Understanding the FAR’s government control exceptions to late proposals

By

[A] number of [government contractors] encounter the same problem: They timely emailed a proposal to a government agency, but, for reasons unknown, the proposal was delivered late or was never received by the Contracting Officer (“CO”).  There, the CO normally enforces the Federal Acquisition Regulation’s (“FAR”) strict “Late is Late” policy and rejects the proposal.  Fortunately, in certain circumstances, it is possible to employ the Government Control Exception to salvage allegedly late proposals; however, the Government Accountability Office (“GAO”) and the Court of Federal Claims (“COFC”) interpret that exception differently.  Any government contractor whose timely emailed proposal is rejected due to the “Late is Late” policy, is encouraged to work with an experienced government contracts attorney who can help them overcome the rejection.

The Government Control Exception, found both at 48 C.F.R. § 52.212-1(f) and 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(1)-(3), contain identical language, but one applies to offerors of commercial items and the other applies to offerors in competitive acquisitions, respectively.  Essentially, they hold that a late proposal may be considered “if it is received before award is made,” and “the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and—

(1) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers; or

(2) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers . . .”

48 C.F.R. § 52.215–1(c)(3)(ii)(A)(1)-(2); 48 C.F.R. § 52.212-1(f)(2)(i)(A)-(B).  Put simply, the Government Control Exception applies if the “late” proposal: (1) is received before award is made; (2) will not unduly delay the acquisition; (3) was received by the government’s servers; and (4) was under the government’s control prior to the deadline.

Continue reading at:  Piliero Mazza

Contracting News

Read More

Contracting Tips

Read More

GTPAC News

Read More

Georgia Tech News

Read More