Georgia Tech Procurement Assistance Center

Who’s the ombudsman? Proposed FAR rule requires clarity

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When GAO lacks jurisdiction to hear a protest over a task or delivery order, contractors have the right to complain to an ombudsman. Implementation of the ombudsman right, however, has been haphazard at best.

Last week, the DoD, GSA, and NASA–the entities comprising the FAR Council–proposed a rule to help alleviate this issue for IDIQ contracts.

Generally, 10 U.S.C. § 2304c and 41 U.S.C. § 4106 require each head of an agency that awards MATOC or delivery order contracts to appoint “a senior agency official who is independent of the contracting officer” as the “task and delivery order ombudsman.” The position requires the appointee to review complaints from contractors in order to ensure “that all of the contractors are afforded a fair opportunity to be considered” in certain circumstances where the underlying contract falls outside of GAO’s jurisdiction.

Keep reading this article at: http://smallgovcon.com/statutes-and-regulations/whos-the-ombudsman-proposed-far-rule-requires-clarity/

DoD to limit use of ‘Brand Name or Equal’ contract competitions

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The Department of Defense (DoD) has proposed a new rule limiting the use of “brand name or equal” contract competitions, calling on contracting officers to publicly justify their need for a brand name-type product before issuing a solicitation.  The rule would implement Section 888(a) of the National Defense Authorization Act of 2017, which directed the Secretary of Defense to “ensure that competition in [DoD] contracts is not limited” by brand name references without a justification under 10 U.S.C. § 2304(f).

Background

Federal procurement law requires agencies to draft competitive solicitations that describe the Government’s needs generally, rather than referencing a specific type of product.  However, “under certain circumstances,” agencies may request a specific brand name product or its equal.  An off-brand product is “equal” if it shares the same the same salient characteristics as the brand name product. 

Contractors have at times challenged, through pre-award bid protests, agency decisions to reference a brand name product as unfair and unduly restrictive of competition, contrary to the Competition in Contracting Act of 1984’s (CICA) requirement for full and open competition.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/11/whats-in-a-brand-name-dod-to-limit-use-of-brand-name-or-equal-contract-competitions/

You’d better ‘feed’ SAM regularly — especially before you submit a bid

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Effective October 26, 2018, the Federal Acquisition Regulation (FAR) requires businesses who are pursuing federal contracts to be registered in the System for Award Management (SAM) prior to their submission of a bid, proposal, or quote to a federal agency.

Think of this as the need to “feed” information about your company into the SAM database, including updates to that information, on a regular basis.

There are only a few exceptions to this new policy (exceptions may be found at FAR 4.1102).

In the context of federal contracting, SAM is essentially the federal government’s vendor database.  By registering in SAM, businesses indicate their compliance and agreement with the federal government’s standard “representations and certifications” requirements.  Updating your SAM record must be done at least annually for a vendor to maintain “active” status is SAM.

The new rule clarifies what had been ambiguity as to when vendors must be registered in SAM in order to be eligible to receive contract awards.  (See details in our earlier article on this subject here.)  With the FAR change, it’s now clear that registration must be accomplished before a vendor submits a response to an Invitation for Bid (IFB), a Request for Proposal (RFP), or a Request for a Quotation (RFQ).

If you need help with your company’s SAM registration, feel free to contact a Procurement Counselor with the Georgia Tech Procurement Assistance Center (GTPAC).  All of our contact information is listed by location at: https://gtpac.org/team-directory.

If you are located outside of the state of Georgia, you can find the procurement technical assistance center (PTAC) nearest you at: http://www.aptac-us.org/contracting-assistance.

Remember: There is never a fee to register in SAM as a government contractor. PTACs are available to provide you with no-cost help to get you through the process.

 

Effective Oct. 26, you must be registered in SAM before you submit a federal bid, proposal or quote

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It’s official: If you intend to pursue a federal contract, your business must be registered in the System for Award Management (SAM) before you submit a bid, proposal, or quotation.  The new rule that makes this clear goes into effect on October 26, 2018.

Any wiggle room that may have existed in the past has been eliminated.  SAM registration is now imperative if you are interested in federal contracting.

It used to be that SAM registration was required before a contract could be awarded. The Federal Acquisition Regulation (FAR) at Subpart 4.1102(a) made that clear.  But that requirement was always a bit ambiguous since another provision of the FAR (Subpart 52.204-8(d)) said that bidders and proponents had to complete the representations and certifications in SAM as a condition of making their offer.  As a matter of practical interpretation, most federal contracting officers simply made sure that an offeror’s SAM registration was complete before awarding the offeror a contract.

That latitude goes away on October 26, 2018.  On that date, FAR Subpart 4.1102 is officially amended to require all entities (i.e., vendors, including joint ventures) to be registered in SAM at the time they submit an offer (a bid or proposal) or submit a quotation to a federal agency.  In essence, vendors who are not registered in SAM are ineligible to submit offers or quotes – effective October 26, 2018.

Keep in mind that the SAM registration process can take time to complete.  If you’re planning to compete for a federal contract in the future, you should complete your SAM registration as far in advance as possible.  And, if you are already registered in SAM, remember that your SAM registration must be renewed at least annually – and renewed whenever any part of your registration needs to be updated.

If you need help with your company’s SAM registration, feel free to contact a Procurement Counselor with the Georgia Tech Procurement Assistance Center (GTPAC).  All of our contact information is listed by location at: https://gtpac.org/team-directory.

If you are located outside of the state of Georgia, you can find the procurement technical assistance center (PTAC) nearest you at: http://www.aptac-us.org/contracting-assistance.

Remember: There is never a fee to register in SAM as a government contractor. PTACs are available with no-cost help to get you through the process.

SAM is located at: https://sam.gov.  But before beginning the SAM registration process, you must first take care of the following:

  1. Obtain a DUNS Number by registering your Legal Business Name and Physical Address with Dun & Bradstreet (D&B).  If you don’t already have a DUNS Number, you can request a DUNS Number for FREE from D&B at: http://fedgov.dnb.com/webform
  2. Make sure you have a Taxpayer Identification Number (TIN) associated with the Legal Business Name registered with D&B.  To obtain information from the IRS on how to obtain a TIN, visit: https://www.irs.gov/individuals/international-taxpayers/taxpayer-identification-numbers-tin
  3. Have your bank’s routing number handy, including your bank account number and your bank account type (i.e., checking or savings).  You’ll need this information to set up Electronic Funds Transfer (EFT) in SAM.  The federal government makes virtually all contract payments via EFT.
  4. The first time you log in to SAM.gov, you’ll be asked to create a login.gov user account (if you don’t already have one). Going forward, you will use your login.gov username and password every time you log in to SAM.gov. Existing SAM.gov usernames and passwords no longer work.

“Workin’ 9 To 5” –but not in a government office: Requesting a debriefing

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In Exceptional Software Strategies, Inc., B-416232, the Government Accountability Office (GAO) recently addressed the obscure rules for when a disappointed offeror must request a debriefing.

It’s generally well known that, in procurements where offerors may have a right to debriefings, a disappointed offeror must submit a written request to the contracting officer within three days after receipt of written agency notice that the company’s proposal has been excluded from the competitive range (FAR 15.505(a)(3)).

If an offeror misses the deadline, it does not necessarily mean it won’t get a debriefing, but any debriefing will not be “required.”

In Exceptional Software, on Thursday, March 15, the National Security Agency (NSA) provided the protester with written notice that its proposal was excluded from the competitive range and provided a brief rationale for that exclusion. Under FAR 15.505(a)(3), the offeror then had three days – until Monday, March 19 – to request a debriefing. (When the third day falls on a weekend or holiday, the deadline always moves to the next business day.) On Monday at 4:59 p.m., the offeror submitted its written request for a debriefing, which the NSA provided on April 2.  Four days later, the offeror protested.

Under the GAO’s debriefing exception, a protest is timely if it is filed either within 10 days after the protester knew or should have known of the basis of protest, or within 10 days after the close of a required debriefing.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=728628

Software companies push Senate to weaken lowest price contracting rule

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Lawmakers are once again looking at ways to peel back the use of lowest price technically acceptable, or LPTA, contracting decisions to enable federal agencies to spend a little more for better products and services.

As part of the Federal Acquisition Regulation, LPTA requires agencies to choose the lowest priced option that meets the requirements set forth in a given solicitation. Abiding by the letter of the law has led to poor contracting decisions for the sake of saving some money.

“LPTA contracting is a useful source selection method for acquisitions with simple, well-defined requirements when cost is the sole objective differentiating factor,” BSA | The Software Alliance Vice President Craig Albright wrote in a letter to the Senate Armed Services Committee. “However, when it comes to more complex acquisitions involving multiple technical variable or functions … LPTA’s priority of price over value leads to acquisition outcomes that actually prevent the government from getting the most for its money.”

Keep reading this article at: https://www.nextgov.com/policy/2018/07/software-companies-push-senate-weaken-lowest-price-contracting-rule/149878/

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.)

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/

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