Georgia Tech Procurement Assistance Center

Defense agencies continue awarding contracts to suspended firms, report finds

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At least nine major contractors, working primarily for defense-related agencies, have benefited from waivers under a 1981 law that allows federal officials to override the firms’ suspensions for such misconduct as fraud, bribery and theft.

That’s according to a new study of 22 contract decisions released this week by Bloomberg Government. Using a Freedom of Information Act request filed with the General Services Administration, the publication also found that some agencies had failed to forward the required documentation on the waivers to GSA.

Such household names as IBM, BP and Boeing have benefited from the law, wrote reporter Sam Skolnik.

Keep reading this article at: https://www.govexec.com/contracting/2018/08/defense-agencies-continue-awarding-contracts-suspended-firms-report-finds/150424

FOIA revisions impact contractor data

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FOIAOn June 30, 2016, President Obama signed into law the Freedom of Information Act (FOIA) Improvement Act of 2016.

The new law revises FOIA to codify the Obama Administration’s policy that executives agencies adopt a presumption that openness prevails.  Among other changes, the act also calls for the creation of a new consolidated online FOIA portal permitting a single point of entry to request documents from any agency.

These changes have the potential to increase the number of FOIA requests and the codification of the presumption of openness may make it more difficult for contractors to object to the public release of contract-related information and other agency records.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/07/revised-foia-statute-may-increase-release-of-contractor-data/

Reforms to IGs, acquisition, FOIA included in POGO’s ‘Baker’s Dozen’ of congressional priorities

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The Project on Government Oversight (POGO) outlined 13 congressional priorities that would make the federal government more transparent, accountable and ethical in a new report.

POGO’s 2015 “Baker’s Dozen” includes areas for legislative reform as well as issues that would benefit from improved oversight, according to the Feb. 11 report.

Near the top of the group’s list is a call to make agency inspectors general more independent and accountable. POGO asks Congress to use legislation to clarify IG authorities and access to agency records, quickly fill IG vacancies and require more thorough responses from agencies on reports. The organization also calls out the Justice Department in particular, asking that the DOJ IG be given more authority to investigate misconduct by DOJ attorneys.

Keep reading this article at: http://www.fiercegovernment.com/story/reforms-igs-acquisition-foia-included-pogos-bakers-dozen-congressional-prio/2015-02-17

 

Bidder beware: Mind the details when using a GSA Schedule

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The General Service Administration’s Federal Supply Schedule (FSS) is supposed to be a way for agencies to streamline procurement. However, achieving the desired efficiency requires that the Government buyer use the right contract vehicle for a given requirement. If the Government uses the wrong schedule—or a contractor proposes to provide goods or services that are not available under its schedule contract, and the agency fails to perform a careful evaluation—litigation may effectively eliminate the desired efficiencies. A recent GAO decision, US Investigations Services provides a good example of how thing can go awry.

The FBI issued a task order for services in connection with its National Name Check Program to the awardee using the awardee’s FSS contract. Under the task order, the awardee would research FBI files, assist in responding to FOIA requests, and support the agency in making national security classification determinations.

The protester raised several protest grounds, and GAO sustained one: the labor categories required to perform the task order were not in the awardee’s FSS contract. The agency’s solicitation included four labor categories, and the awardee proposed a single labor category from its FSS contract to satisfy the requirements of three of the categories. GAO compared the labor categories required under the solicitation with the description of the awardee’s category and determined “that the duties, responsibilities and qualifications of the types of employees solicited by the agency are not encompassed within” the awardee’s labor category. The agency was looking for personnel with in-depth knowledge of FBI policy and functions, as well as experience in records management, declassification review, and paralegal services. The awardee’s labor category focused on general aspects of program management, such as developing business methods, identifying best practices, and creating and assessing performance measurements.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=368660

SBA data show large firms are nabbing contracts reserved for small businesses

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Federal procurement data show that large companies, including leading defense contractors, last year received millions of dollars in contracts intended for small and disadvantaged businesses. The data was obtained last week by the American Small Business League, which fought a multi-year court battle to obtain the information from the Small Business Administration.

The group, based in Petaluma, Calif., and run by software entrepreneur Lloyd Chapman, has been a thorn in the side of SBA for years. It accuses the agency of catering to large companies that misrepresent themselves as small businesses to win government contracts.

Last week the league obtained from SBA an Excel file containing nearly 107,000 entries of vendors that received $83 billion in small business contracts in fiscal 2013. While SBA annually releases analytical information about small business contracting, it took a lawsuit from the league to force the agency to release its list of vendors who receive small business contracts.

Keep reading this article at: http://www.govexec.com/contracting/2014/10/sba-data-show-large-firms-are-nabbing-contracts-reserved-small-businesses/95699/

This group could make — or break — FOIA reform

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A proposed advisory committee to modernize how agencies comply with the Freedom of Information Act could herald a major improvement in relations between government agencies and the researchers, journalists and others who seek documents from them, a privacy advocate says.

If the committee is poorly composed or led by agencies like the Justice Department that have typically advocated more latitude for agencies to deny records requests, however, it could prove little use, said Ginger McCall, federal policy manager at the Sunlight Foundation, which advocates for government transparency.

“At the very least it would do no harm, and it has the potential to do great good depending on the composition,” McCall said. “I’d want it to include people who are knowledgeable about FOIA and passionate and willing to take agencies to task. If it’s stacked with people who are very friendly with agencies and more concerned about maintaining their relationship with agencies, then that would not be good.”

Ideally the committee should include groups from outside government that have deep experience both requesting documents under FOIA and litigating over documents the government refuses to release, she said.

Keep reading this article at: http://www.nextgov.com/cio-briefing/2013/12/group-could-make-or-break-foia-reform/75429 

 

Public release of contractor data delayed

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Contractors can still challenge information tjat goes into the Federal Awardee Performance and Integrity System, but they have just a two-week window before the information becomes public.

The new provision takes affect Jan. 17, 2012. The start date was missing when the final rule was published Jan. 3.

Any information that agencies enter into database from Jan. 17 onward will be subject to a two-week delay before it is transferred to the publicly available part of FAPIIS. Past performance information won’t be published at all. Contractors will receive notice when new information about their company goes into FAPIIS, and they will have 7 days to point out information that should be exempt under the Freedom of Information Act.

In the new Federal Register notice, officials wrote that the delay until Jan. 17 will give agencies time to complete necessary system changes to support the two-week waiting period before contractors’ information goes live.

The current system is designed to automatically transfer information to the publicly available part of FAPIIS. Until officials make the change, companies would not have an opportunity to request withholding the information, the notice states.

FAPIIS is a one-stop website for contracting officers and federal employees to look at the history of companies’ work with the federal government. It includes data from the Performance Information Retrieval System, as well as information from other databases, including the Excluded Parties List System, which cites companies that are suspended or debarred from federal contracting.

The final rule gives companies seven days to find any information that should not be disclosed because it should be considered exempt. In such a case, officials will remove the information from FAPIIS to resolve the issue.

If the government official does not remove the item, it will be automatically released to the public website within 14 days after beginning entered into FAPIIS, according to the notice.

About the Author: Matthew Weigelt is a senior writer covering acquisition and procurement for Federal Computer Week. This article appeared Jan. 11, 2012 at http://washingtontechnology.com/articles/2012/01/10/fapiis-contractor-information.aspx?s=wtdaily_120112.

HUD sued for refusing to release Lockheed Martin subcontracting data

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The American Small Business League (ASBL) has filed suit against the U.S. Department of Housing and Urban Development (HUD) after the agency refused to release subcontracting reports on a contract awarded to Lockheed Martin.

The ASBL filed suit in United States District Court, Northern District of California.(http://www.asbl.com/documents/complaint_lockheedmartin_sub_report.pdf)

The case was filed after HUD repeatedly refused to respond to a Freedom of Information Act (FOIA) request by ASBL for documents related to Lockheed Martin’s compliance with small business subcontracting goals.

In its suit, ASBL states that it believes the information contained in Lockheed’s subcontracting reports may show that the contractor is not complying with its small business goals.  Additionally, the ASBL says it’s concerned the reports may indicate that Lockheed and HUD cooperated in an effort to circumvent federal law, which requires 23 percent of all federal contracts to be awarded to small businesses.

The ASBL’s most recent lawsuit against HUD represents yet another legal action originating from ASBL efforts to gather information on the subcontracting practices of a series of major government prime contractors.  If validated, ASBL’s actions could lead to litigation filed under the False Claims Act, and Section 16(d) of the Small Business Act.

The ASBL’s suit against HUD is the 14th lawsuit filed by the organization against the Obama Administration in pursuit of publicly releasable documents regarding government contracting programs.

In 1994, the 9th Circuit Court of Appeals ruled that subcontracting reports are releasable to the public, and do not contain trade secret or proprietary information.

The ASBL contends that despite continually promising the most transparent administration in history, the Obama Administration has actually been among the least transparent.  In early 2010, the Associated Press conducted a review of FOIA reports filed by 17 major agencies, and found across the board increases in the number of rejections. While the federal government as a whole received fewer

FOIA requests during the first year of the Obama Administration, agencies increasingly said “no” to requesters looking for public documents. (http://www.breitbart.com/article.php?id=D9EFRPJG0)

“I can’t blame them for trying to withhold this information because it shows that the Obama Administration is failing to address widespread abuse in small business contracting programs.  Every day, corporate giants are circumventing their small business subcontracting goals, and every day more than $800 million in small business contracts are diverted to corporate giants,” ASBL President Lloyd Chapman said. “That is why we have to go to federal court for every piece of paper regarding small business contracting programs.  They are treating this stuff like it’s top secret.”

 

Publishing contracts online? Not so fast

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Transparency, apparently, has its limits.

The Obama administration announced on Thursday it was withdrawing a proposal that would have required federal agencies to post copies of contracts and task-and-delivery orders on a public website.

Last May, the civilian and defense acquisition councils, which craft changes to the Federal Acquisition Regulation, published an advance notice of proposed rule-making. The councils said at the time they were seeking public comment on how best to amend the FAR “to enable public posting of contract actions, should such posting become a requirement in the future, without compromising contractors’ proprietary and confidential commercial or financial information.”

The councils heard from 15 respondents, including agencies, industry associations, advocacy groups and private individuals. Most of the responses criticized the plan as difficult to implement, unnecessarily burdensome to industry and a deterrent to competing for government work.

One respondent noted, “With more than 30 million transactions issued by the government annually, the redaction process alone would be overwhelming.”

Faced with stiff opposition and scarce resources to implement their proposal, the councils announced they were abandoning the effort. The notice said some of the information that would be disclosed already is available on federal websites and many nonclassified contracts can be obtained through a Freedom of Information Act request.

The councils also acknowledged the government does not have the capability or the resources at this point to guarantee that proprietary information would be protected if the proposal was implemented. The civilian and defense acquisition councils, which represent the Defense Department, General Services Administration and NASA, acknowledged the government runs the risk of lawsuits if they inadvertently release private information.

“The ongoing efforts to identify protections essential for safeguarding unclassified information are not yet sufficiently mature that such efforts can be bypassed to establish a contract-posting requirement prior to guidance on unclassified information,” the notice said. “To avoid inadvertent disclosures, the government would be required to review contractor-redacted documents before such items are posted to a public website.”

The proposal, which had drawn the ire of many industry groups, was pulled back on the same day House lawmakers debated whether agency regulations were stifling job growth.

The councils cited the costs associated with the plan, including technology, software and the time of contractor and government employees. “DoD, GSA and NASA advocate a judicious approach to establishing contract-posting requirements, one that will appropriately conserve resources and identify information that should be protected from general release to the public,” they wrote.

Ironically, the administration’s decision runs directly counter to a proposal then-Sen. Barack Obama had supported. While on the presidential campaign trail in 2008, Obama, along with Sens. John McCain, R-Ariz., and Tom Coburn, R-Okla., unsuccessfully proposed a bill that would have required agencies to post all contract documents online.

Obama’s Office of Management and Budget reaffirmed the administration’s commitment to posting contracts online in August 2009.

“I know there was opposition to the transparency proposal, but I thought that the public was in good hands since Obama supported spending transparency while in the Senate and on the campaign trail,” said Scott Amey, general counsel for the Project on Government Oversight, a watchdog group that backed the proposal. “I guess it’s harder to promote change from inside the White House.”

Amey argued federal websites that track contract spending provide only summary data while the FOIA process is often so slow that a long-term contract can be completed before the document is provided to a requestor.

The councils said they could revise the proposal at a later date, but such a plan would have to include a high-dollar threshold for contracts, a requirement for the successful offeror to redact portions of the contract and an incentive for the company to allow the contract to be published.

— By Robert Brodsky – GovExec.com – February 10, 2011

Bypass FOIA and seek data from agencies, says Obama official

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The White House’s open government leader said Americans should not bother filing requests for government documents under the Freedom of Information Act and instead should contact open government officials at agencies who can post or e-mail the materials faster.

Beth Noveck, deputy chief technology officer for open government, on Monday said the purpose of the Obama administration’s transparency agenda is to institutionalize a culture in which agencies proactively release data so that disclosing government information is the default. She was addressing complaints about denials of FOIA requests at an event hosted by the American Constitution Society for Law and Policy, a liberal think tank. The talk centered on the conflict between national security and government transparency.

“Why are you writing to the lawyers? We all know it’s going to take months and months. That’s how FOIA works,” said Noveck, who is on leave as a professor at New York Law School, where she researches intellectual property and constitutional law. “The manual nature of the process is so egregious . . . so burdensome.” A more effective way to obtain information would be to contact the designated open government officer at a particular agency — or herself, Noveck said.

For example, in response to public requests, the Patent and Trademark Office this summer partnered with Google to offer bulk downloads of patent materials, such as published applications, grants and assignments, as well as trademark documents, including registrations and applications.

But legal experts debating data disclosure disagreed with Noveck’s advice about bypassing FOIA, arguing that the White House needs to expedite the process. “They should make FOIA work,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington. “You shouldn’t have to go around [the process] and call Beth Noveck,” she added, noting the general public probably does not know who she is.

Federal FOIA staff say their offices lack the staff, funds and technology to process requests expeditiously, according to a survey CREW released in late September. One respondent said: “I don’t see anyone providing more money or resources to support transparency in government. The only change is the public seems to think they will get more and so we have seen an increase in requests, or requests coming back again — overwhelming an already overloaded system.”

Sloan added that citizens, not the executive branch, have pushed to make the White House more open. Senior officials frequently tout the fact that this is the first administration to release White House visitor logs. But CREW had to sue the administration to force disclosure of those lists, she noted.

“The government is only as open as we make it,” Sloan said. “It requires us to remain ever vigilant . . . and to insist that it remain open.”

The discussion also touched on the potential harm caused by the publication of classified data, such as the tens of thousands of unredacted documents about the wars in Iraq and Afghanistan posted by the website WikiLeaks. Most of the panelists argued the courts should have more say than the executive branch in deciding what information becomes public.

Jerome A. Barron, a George Washington University law professor who in the early 1970s was a consultant to the Senate Select Committee on Presidential Campaign Activities, aka the Watergate Committee, said, “As was the case at the time of the Pentagon Papers, there is no law that allows U.S. law enforcement to enjoin the press,” or even determine whether WikiLeaks is a journalistic institution.

The papers, which were leaked by a former government contract employee in 1971, contained a secret study on U.S. involvement in the early prosecution of the Vietnam War.

“Humanitarian considerations outweigh First amendment considerations sometimes,” Barron said. “What I think is most important is a judicial role.”

Vincent Warren, executive director of the Center for Constitutional Rights, added the issues creating tension are not so much secrecy vs. national security, but secrecy vs. wrongdoing in the context of national security. For instance, information documenting interrogation techniques, such as waterboarding, that could be considered international war crimes, should not be covered up, he said. “I pine for the days when the courts would make those kinds of determinations instead of the government making them on their own,” Warren said.

— By Aliya Sternstein – NextGov.com –  11/15/2010

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