When submitting bids, contractors should always double-check their proposal submission methods, whether it be a designated portal, email, or any other method, and do so well before the deadline. GAO recently had the opportunity to examine proposal submission issues related to a US Navy procurement and did not show sympathy for the contractor who experienced proposal submission issues right at the deadline.
Continue reading at: SmallGovCon
Absent further action by the Small Business Administration (“SBA”) Office of Hearings and Appeals or a Federal Court, the GAO has effectively ended the argument as to whether the Small Business Runway Extension Act of 2018 (“Runway Extension Act”) immediately changed the annual receipt average for revenue-based small business size standards from three years to five. In short, firms should continue to apply the three-year standard until SBA’s regulatory process runs its course.
Continue reading at: Morrison & Foerster
In May 2018, the Government Accountability Office (“GAO”) implemented a $350 filing fee for bid protests. There are differences of opinion regarding why GAO implemented the fee. GAO publicly states that the fee was implemented to cover the costs of its new Electronic Protest Docket System (“EPDS”). Many, however, believe the fee was implemented to deter the filing of frivolous protests. Regardless, there “may” be an unintended consequence of the protest filing fee—an increase in agency-level protests. Recently, several agency contracting officers have stated that they are handling more agency protests, and, in their opinion, it is a direct result of GAO’s protest filing fee. As a result, contractors should understand and be prepared to mitigate the risk of agency protests to protect their contracts and position themselves for new ones.
Pros and Cons of Agency Protests
Beyond not having to pay a filing fee, there are pros (and cons) to filing an agency protest as opposed to a protest at GAO. Unlike at GAO, in agency protests, the agency is not required to file an agency report or produce documents; thus, there is no opportunity to review the agency’s decision-making process or file a supplemental agency protest. And, at the agency level, a protester does not get the opportunity to file Comments (i.e., rebut the agency’s legal position) on the agency’s report like it would get at GAO. As a result, a protester’s legal bills will be lower with an agency protest and you may receive an agency protest decision faster than at GAO (35 days vs. 100 days). Also, some believe filing an agency protest is favorable in terms of client relations. When you file a protest you essentially are suing your client or potential client. An agency protest is not a public filing like a protest filed at GAO. Thus, some believe a contractor benefits by filing an agency protest and not publicly airing an agency’s so-called dirty laundry at GAO. Finally, with one important caveat, an agency protest could be useful if a protester intends to elevate the protest to GAO or the Court of Federal Claims. Federal Acquisition Regulation 33.103 requires an agency to provide agency-protest decisions that are “well-reasoned, and explain the agency’s position.” If a protester receives an unfavorable agency-protest decision, the protester can use the information obtained from the decision to strengthen its arguments at GAO or the Court of Federal Claims. However, a contractor should keep in mind that, if its agency protest is unsuccessful, an automatic stay will not be available at GAO.
Continue reading at: BlankRome
Driven largely by the Defense Department, the federal government’s discretionary spending spiked to a seven-year high in fiscal 2018, with agencies obligating more than $554 billion for products and services, up $100 billion from 2015.
According to official spending data from the Government Accountability Office, the Defense Department accounted for $358 billion in contract obligations while civilian agencies, like the Veterans Affairs and Homeland Security departments, obligated $195 billion.
The government closed the 2018 fiscal year on a massive spending spree—due in part to funding increases after a delayed budget agreement—and early fiscal 2019 spending data indicates the government isn’t slowing down its contract spending.
Spending data tabulated by the Professional Services Council illustrates the spending uptick.
Continue reading at: Nextgov
In June 6, 2019, the Government Accountability Office (GAO) issued a decision in the matter of Veterans4You, Inc., deciding that the Department of Veterans Affairs (VA) must apply the “Rule of Two” even when it procures goods and services through other government agencies.
In the VA context, the Rule of Two is the commonly known name for a statutory provision of a 2006 amendment to the Veterans Benefits, Health Care, and Information Technology Act requiring that “the [VA] shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans” where the VA “has a reasonable expectation that two or more [such concerns] will submit offers,” and “the award can be made at a fair and reasonable price that offers best value to the United States.” As discussed in an alert in 2018, VA has struggled to reconcile this mandate with myriad other mandates establishing preferential sources for government procurements.
Continue reading at: Pillsbury
With tax season over, now is a good time to look at how the government uses your tax dollars.
About 40% of the government’s discretionary spending goes to contracts for goods and services covering everything from health care to hand grenades. In fiscal year 2018, the federal government spent more than $550 billion on these contracts, an increase of more $100 billion from 2015. This increase is largely driven by spending on national defense.
GAO has recently published an infographic that shows more details on how federal contracting dollars are spent across the federal government—including which agencies obligated the most funds, what they bought, and whether the contracts were competed.
Continue reading at the: GAO Watch Blog
A sizable portion of the “tax gap” of revenues that go uncollected by the Internal Revenue Service is attributable to current and would-be federal contractors.
Though the IRS is prohibited from sharing such information with agency procurement staff, contracting officers are supposed to examine the self-reporting of tax debts from the companies to which they give awards. That is not always occurring, according to a Government Accountability Office report released on Wednesday addressed to leaders of the House Oversight and Reform and the Ways and Means committees.
“Considering prospective contractors’ reported qualifying federal tax debt—in accordance with federal regulations—helps ensure federal agencies comply with federal appropriations law, supports the integrity of the contracting process, and protects the interests of the government,” GAO noted in its summary of a two-year review of five agencies’ handling of selected contracts in fiscal 2015-2016.
Continue reading at: Government Executive
Past performance is an important evaluation factor in many solicitations. Essentially, it allows an agency to guess as to the likelihood of an offeror’s successful performance under a solicitation by looking to its history of performance on similar projects in the past.
GAO recently confirmed it is “axiomatic” that past performance examples should align with the solicitation’s requirements. If an offeror submits unrelated examples, it risks a downgraded past performance score.
Continue reading the article at: SmallGovCon
Those familiar with Federal procurements know the general rule: If you submit a proposal against a solicitation despite disagreeing with one of its provisions, you usually waive the right to challenge that provision in the future. That rule applies to bid protests at both the Government Accountability Office (“GAO”) and the Court of Federal Claims. In Size Appeal of Cypher Analytics, Inc. d/b/a Crown Point Systems, SBA No. SIZ-5986 (2019), the Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) recently showed that the general rule does not necessarily apply to SBA size protests.
Continue reading the article at: Government Contracts Insights
According to a recent U.S. Government Accountability Office (GAO) report, the Defense Contract Audit Agency (DCAA) and the Defense Contract Management Agency (DCMA) have taken certain steps to improve the contractor business system (CBS) review process and are forecasting that CBS reviews will increase significantly over the next four years. Contractor business systems include a contractor’s accounting, earned value management, estimating, purchasing, material management, and property management systems.
These systems require contractors to maintain internal controls that, as GAO noted, “act as the first line of defense against fraud, waste and abuse of federal funding.” Given their importance, the renewed focus on ensuring CBS reviews are conducted in a timely and consistent manner is not surprising, and contractors should prepare for a new wave of audit activity.
Past Challenges to Completing CBS Reviews
In its report, GAO identified persistent challenges that have prevented DCAA and DCMA from performing consistent and timely CBS reviews. One key factor for DCAA is its focus on eliminating the backlog of incurred cost audits, which determine whether contractor costs are allowable prior to closing out the contract. GAO found that as a result of prioritizing incurred cost audits, Contracting Officers maintained CBS determinations as adequate even though the systems had not been audited in many years. GAO further found that lacking a mechanism to track CBS audits, DCMA and DCAA did not always comply with requirements to report CBS deficiencies or did not report the deficiencies within required timeframes.
Keep reading this article at: https://governmentcontractsnavigator.com/2019/03/21/renewed-focus-on-contractor-business-system-reviews/
