Georgia Tech Procurement Assistance Center

GSA makes vendor participation in transactional data reporting pilot voluntary

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Last week, the US General Services Administration (GSA) announced that it will make participation in its Transactional Data Reporting pilot program (TDR Pilot) voluntary for all GSA contractors.

Previously, for Schedules and Special Item Numbers (SINs) included in the TDR Pilot, participation was voluntary for most existing contractors but mandatory for new offerors and those existing contractors approaching exercise of a five-year option period.

As discussed in the June 2016 LawFlash, as implemented, the TDR rule requires that government vendors electronically submit a monthly report containing line-item transactional data (e.g., part number, price paid) for direct sales to the government. GSA has previously opined that the TDR rule should significantly reduce burdens to contractors—in particular, by exempting participating contractors from the requirements of submitting Commercial Sales Practices (CSP) disclosures and complying with the tracking customer requirements of the Price Reductions Clause (PRC).

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=624718

Fiscal fourth holds prospects for late-game contractors

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Federal BudgetFederal contractors know to wind up their summer vacations early so they can get ready for September. That’s the month ending the fourth quarter of the fiscal year, when by some estimates, the government spends 17 percent of its contracting dollars.

But it can lead to hit or miss situations for contractors trying to get the most out of the fiscal fourth. Where does that leave most this time of year? It depends on how active they’ve been in the market leading up to September.

“Its not too late to get in on that bonanza, so long as you are a company that has some prospects in the pipeline.” said Larry Allen, president of Allen Federal Business Partners in a Federal Drive interview with Tom Temin, “If you’re just coming into the market and deciding now that you’re gonna be a government contractor for the month of September, that’s gonna be a pretty steep hill to climb indeed.”

Keep reading this article at: http://federalnewsradio.com/acquisition-policy/2016/07/fiscal-fourth-holds-prospects-late-game-contractors/

SBA issues new rules affecting small business affiliation — and lots more

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Federal RegisterBack when the U.S. Congress was adopting the 2013 version of the National Defense Authorization Act (NDAA), it included directives to the Small Business Administration (SBA) to make changes to multiple rules pertaining to small business set-aside contracts and subcontracting.  On Monday, May 31, 2016, the SBA published final rules in the Federal Register implementing each of these changes.

The rule changes are wide ranging, amending SBA’s nonmanufacturer rule and affiliation rules, and for the first time allowing joint ventures to qualify as small for any government procurement as long as each partner to the joint venture qualifies individually as small under applicable size standards.

All of the changes can be seen at: https://www.federalregister.gov/articles/2016/05/31/2016-12494/small-business-government-contracting-and-national-defense-authorization-act-of-2013-amendments.

Here is a summary view of some of the most significant changes being made:

  • Affiliation. In the case of a solicitation for a bundled contract, a small business contractor may enter into a Small Business Teaming Arrangement with one or more small business subcontractors and submit an offer as a small business without regard to affiliation, so long as each team member is small for the size standard assigned to the contract or subcontract. This is a major change.  Previously, small businesses risked losing small business status if combined employees or gross revenues exceeded SBA’ s size standards.  This new concept applies to joint ventures as well.  A joint venture of two or more business concerns may submit an offer as a small business for a federal procurement, subcontract or sale so long as each concern is small under the size standard corresponding to the NAICS code assigned to the contract.  In addition, the new rule provides that firms owned or controlled by married couples — in addition to parties to a civil union, parents, children, and siblings — are presumed to be affiliated with each other if they conduct business with each other, such as subcontracts or joint ventures or share or provide loans, resources, equipment, locations or employees with one another. This presumption may be overcome by showing a clear line of fracture between the concerns. Other types of familial relationships are not grounds for affiliation on family relationships.
  • Procurement Center Representatives.  The SBA has Procurement Center Representatives (PCRs) located at federal agencies and military bases which have major contracting programs.  Under the new rules, PCRs are to review all acquisitions that are not totally set aside for small businesses to determine whether a set-aside or sole source award to a small business is appropriate and to identify alternative strategies to maximize the participation of small businesses in the procurement. PCRs are also to advocate against the consolidation or bundling of contract requirements (which tend to adversely impact small business contract participation), and reviewing any justification provided by the agency for consolidation or bundling. This review includes acquisitions that are Multiple Award Contracts (MACs) where the agency has not set-aside all or part of the acquisition or reserved the acquisition for small businesses. It also includes acquisitions where the agency has not set-aside orders placed against MACs for small businesses.  Also, for the first time, PCRs may receive unsolicited proposals from small businesses.  They are to send such proposals to the agency personnel responsible for reviewing such proposals, and the agency personnel are to provide PCRs with information regarding the disposition of each proposal.
  • Subcontracting to Small Businesses.  A prime contractor that identifies a small business by name as a subcontractor in a proposal, offer, bid or subcontracting plan is now obligated to notify those subcontractors, in writing, prior to identifying the concern in the proposal, bid, offer or subcontracting plan.  Safeguards against naming a subcontractor that the prime really doesn’t intent to use are also strengthened.  The new rules state that anyone who has a reasonable basis to believe that a prime or a subcontractor may have made a false statement with respect to subcontracting plans is to report the matter to the SBA’s Office of Inspector General. All other concerns as to whether a prime contractor or subcontractor has complied with SBA regulations or otherwise acted in bad faith may be reported to the Government Contracting Area Office where the firm is headquartered.  Contractors who are judged to have acted in bad faith may be found to be in material breach of contract and subject to liquidated damages under their contract.
  • Limitations on Subcontracting.  The rules have changed for the amount of work a small business may subcontract out.  In order to be awarded a full or partial small business set-aside contract with a value greater than $150,000, a small business concern now must agree that:

    (1) In the case of a contract for services (except construction), it will not pay more than 50% of the amount paid by the government to it to firms that are not similarly situated.  (Any work that a similarly situated subcontractor further subcontracts will count towards the 50% subcontract amount that cannot be exceeded.)

    (2) In the case of a contract for supplies or products (other than from a non-manufacturer of such supplies), it will not pay more than 50% of the amount paid by the government to it to firms that are not similarly situated. (Any work that a similarly situated subcontractor further subcontracts will count towards the 50% subcontract amount that cannot be exceeded.) Cost of materials are excluded and not considered to be subcontracted.

    (3) In the case of a contract for supplies from a non-manufacturer, it will supply the product of a domestic small business manufacturer or processor, unless a waiver is granted.

    (4) For a multiple item procurement where a waiver has not been granted for one or more items, more than 50% of the value of the products to be supplied by the non-manufacturer must be the products of one or more domestic small business manufacturers or processors.

    (5) For a multiple item procurement where a waiver is granted for one or more items, compliance with the limitation on subcontracting requirement will not consider the value of items subject to a waiver. As such, more than 50% of the value of the products to be supplied by the non-manufacturer that are not subject to a waiver must be the products of one or more domestic small business manufacturers or processors.

    (6) For a multiple item procurement, the same small business concern may act as both a manufacturer and a non-manufacturer.

  • Contracts Set-Aside for Service Disabled Veteran Owned Small Businesses.  Under the new rules, a joint venture comprised of at least one Service Disabled Veteran Owned Small Business (SDVOSB) and one or more other businesses may submit an offer as a small business for a competitive SDVOSB set-aside procurement, or be awarded a sole source SDVOSB contract, so long as each concern is small under the size standard corresponding to the NAICS code assigned to the procurement.

All of these rule changes are effective on June 30, 2016.

 

Hope for offerors who win a multiple-award IDIQ contract and want to protest an improper award to a competitor

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You just learned your company is one of several winners of a multiple-award IDIQ contract.  You also learned one of your competitors, which should have been ineligible, is also an awardee.  So, as things stand, you’ll have to split the contract — and compete for orders — with that competitor.

Can you file a protest challenging the improper award to your competitor?  Until last week, the answer was “no.”  Now the answer is “maybe” — but only if you go to the Court of Federal Claims (COFC).

To pursue a protest, the protester must establish that it is an interested party, by showing that (1) it is an actual or prospective offeror; and (2) its direct economic interest would be affected by the award of, or failure to award, the contract in question.  (31 U.S.C. § 3551(2)(A); 4 C.F.R. § 21.0(a)(1))  Since its decision in Recon Optical, Inc., et al., B-272239, July 17, 1996, 96-2 CPD ¶ 21, GAO has consistently held that winners of multiple-award IDIQ contracts are not interested parties for purposes of a protest, but it has typically done so while implying that, in rare circumstances, an awardee might be able to show it has an economic interest sufficient to make it an interested party.

GAO’s most recent decision, however, articulated what appears to be a categorical prohibition on awardee protests.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/05/hope-for-awardee-protesters/

The 3 things every small business contractor should know

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Often overshadowed by their larger, multibillion dollar prime counterparts, small business contractors are critical to the federal procurement community. With billions awarded in set-asides each year, small business has become big business for eager capture executives looking to identify new opportunities.

Small Business Set AsidesOn Nov. 10, 2015 Bloomberg Government hosted a webinar analyzing the importance of small business set-asides. The presentation discussed recent set-aside spending at civilian and defense agencies and how a growing share of small-business obligations are being awarded via set-asides.

No time to watch the replay?  No problem.  We’ve pulled together the top three things every small business contractor should know.

keep reading this article at: http://about.bgov.com/blog/the-3-things-every-small-business-contractor-should-know/

GSA launches new Schedule for professional services

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The General Services Administration created a new schedule for professional services — the Professional Services Schedule — consolidating the agency’s offerings into a single contract vehicle.

GSA Schedule ContractThe new schedule — the culmination of a year’s work — launched Oct. 1, 2015 and is now open for agency use.

The schedule includes contracts for advertising and marketing, business consulting, environmental solutions, financial and business solutions, language services, logistics and professional engineering. Those subcategories still exist for ease of use, however the vendor offers are now consolidated under a single contract for every company.

Previously, there were more than 5,000 professional services contracts from more than 4,500 vendors. After the consolidation, there are now 3,099 contracts under as many companies.

Keep reading this article at: http://www.federaltimes.com/story/government/acquisition/gsa-gwac/2015/10/08/professional-services-schedule/73605190/

4 government contracting trends to watch in 2016

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Today’s times represent an ongoing shift in the federal services marketplace. The changes are broad and include shifts in technology; acquisition methods; and the economics of being a contractor with significant hurdles and barriers to success.  These market dynamics will play out over the coming months and years – here’s a rundown of the most significant of those changes now well underway.

1. Cloud Computing Continues to Absorb IT Services Opportunities
Federal agencies have moved beyond the 2010 Cloud-First mandate to adopt cloud computing, and have begun embracing the cloud to support their business and mission objectives.  Cloud computing represents a significant change to the way that the federal government had done business. Cloud computing permits the customer to spend less time managing complex IT resources and more time investing in core mission work.  Companies that have cloud-based offerings are winning significant business away from providers that have historically supported “in-house” solutions.

FedRamp opt outAn estimated $20 billion of the federal government’s $80 billion in IT spending is a potential target for migration to cloud computing solutions, according to the White House’s Federal Cloud Computing Strategy. The size and scope of cloud programs are becoming larger, driven in part by the success of smaller projects, and by the manifestation of supporting policies, including FedRAMP, a security “stamp of approval” that lets government agencies know a solution has an appropriate and detailed security plan in place. To date, 48 systems have been authorized FedRAMP compliant.  With the cost of a FedRAMP certification reaching as high as $300,000 and authorizations taking 9 to 15 months, gaining certification is a major commitment for any company.  As a result, many firms, especially small businesses, may be locked out of this segment of the market.

Read all 4 contracting trends to watch in 2016 at: http://www.washingtonexec.com/2015/10/guest-column-4-government-contracting-trends-to-watch-in-2016-by-mark-abel/

Yes, there will be a federal spending spree this fall

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Federal agencies typically squeeze much of their contract spending in at the end of the federal fiscal year, and that trend is expected to continue this fall, analysts and agency officials said Wednesday.

Federal BudgetSince 2009, agencies have spent an average of 32 percent of their annual contract dollars in the last three months of the fiscal year, which ends in September, Bloomberg Government analysts said at an event sponsored by the company. The event, called “The Race to the Finish,” was aimed at companies seeking to increase their government contracting opportunities.

Much of the late-stage spending is on large multiple-award contracts, especially for information technology purchases. For example, about half of the spending under NASA’s Solutions for Enterprise-wide Procurement vehicle — which is available to all federal agencies for purchasing IT products — occurs in the the fourth quarter.

Keep reading this article at: http://www.nextgov.com/cio-briefing/2015/07/yes-there-will-be-federal-spending-spree-fall/117829

To see the top 100 federal contractors in FY14, click here: Top 100 Contractors Report_FY14

IG reports continued weaknesses in small business reporting and 8(a) program

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The Office of the Inspector General (IG) of the U.S. Small Business Administration reports on 11 weaknesses in a range of SBA programs.  Two of the “challenges” identified in the Oct. 17, 2014 report pertain directly to small business participation in federal contracting:

  • Procurement flaws allow large firms to obtain small business awards, and allow agencies to count contracts performed by large firms towards their small business goals.
  • The SBA needs to modify the Section 8(a) Business Development  Program so more firms receive business development assistance, standards for  determining economic disadvantage are justifiable, and the SBA ensures that firms follow 8(a) regulations when completing contracts.

SBA - IGThe IG’s full document, entitled “Report on the Most Serious Management and Performance Challenges Facing the Small Business Administration In Fiscal Year 2015” can be downloaded here, but the text of the IG’s finding on the two point just cited appears below.

Procurement Reporting

The Small Business Act established a Government-wide goal that 23 percent of the total value of all prime contracts be awarded to small businesses each fiscal year. As the advocate for small business, the SBA should strive to ensure that only small firms obtain and perform small business awards. Further, the SBA should ensure that procuring agencies accurately report contracts awarded to small businesses when representing their progress in meeting small business contracting goals.

In September 2014, we issued a report that identified over $400 million in FY 2013 contract actions that may
have been awarded to ineligible firms. We also identified over $1.5 billion dollars in contract actions for
which the firms were in the 8(a) or HUBZone programs at the time of contract award, but were no longer in
these programs in FY 2013. Previous OIG audits and other Government studies have shown widespread
misreporting by procuring agencies, since many contract awards that were reported as having gone to small
firms have actually been performed by larger companies. While some contractors may misrepresent or
erroneously calculate their size, most of the incorrect reporting results from errors made by Government
contracting personnel, including misapplication of small business contracting rules. In addition, contracting
officers do not always review the on-line certifications that contractors enter into Government databases
prior to awarding contracts. The SBA should ensure that procuring agencies accurately report contracts
awarded to small businesses when representing their progress in meeting small business contracting goals,
and that contracting personnel are reviewing on-line certifications prior to awarding contracts.

The SBA revised its regulations to require firms to meet the size standard for each specific order to address a
loophole within General Services Administration Multiple Awards Schedule (MAS) contracts, which contain
multiple industrial codes that determine the size of the company. Previously, a company awarded an MAS
contract could identify itself as a small business on individual task orders awarded under that contract, even
though it did not meet the size criteria for the applicable task. Thus, agencies received small business credit
for using a firm classified as small, when the firm was not small for specific orders under the MAS contract. In
addition, the SBA submitted a final rule to the Federal Acquisition Regulations (FAR) Council to implement the
changes made to its regulations in the FAR. The SBA also updated its standard operating procedure (SOP) to
ensure consistency in conducting its surveillance reviews to assess Federal agencies’ management of their
small business programs and compliance with regulations and applicable procedures.

While the SBA has made substantial progress on this challenge, we are working with the Agency to verify that
the surveillance reviews were conducted in a thorough and consistent manner.

                                                                                               ***

8(a) Program

The SBA’s 8(a) Business Development (BD) Program was created to assist eligible small disadvantaged
business concerns to compete in the American economy through business development. Previously, the
SBA did not place adequate emphasis on business development to enhance the ability of 8(a) firms to
compete, and did not adequately ensure that only 8(a) firms with economically disadvantaged owners in
need of business development remained in the program. Companies that were “business successes”
were allowed to remain in the program and continue to receive 8(a) contracts, causing fewer companies
to receive most of the 8(a) contract dollars and many to receive none.

The SBA has made progress towards addressing issues that hinder its ability to deliver an effective 8(a)
BD Program. For example, the SBA expanded its ability to provide assistance to program participants
through its resource partners—small business development centers, service corps of retired executives,
and procurement technical assistance centers. In addition, the SBA has taken steps to ensure business
opportunity specialists assess program participants’ business development needs during site visits. The
SBA also revised its regulations, effective March 2011, to ensure that companies deemed “business
successes” graduate from the program. These regulations also establish additional standards to address
the definition of “economic disadvantage.” Agency officials stated that the rule-making process served
as an adequate proxy to objectively and reasonably determine effective measures for economic
disadvantage, and were not aware of any reliable sources of data to determine economic disadvantage.

However, for the second consecutive year, the SBA has not completed updating its SOP for the 8(a) BD
Program to reflect the March 2011 regulatory changes. In addition, we continue to maintain that the
SBA’s standards for determining economic disadvantage are not justified or objective based on the
absence of economic analysis. In December 2011, the SBA awarded a contract to develop and deploy a
new IT system by December 2012 to assist the SBA in monitoring 8(a) program participants. However,
the new system has not been deployed, and its delivery date and capabilities are undetermined at this
time.

GSA and Air Force partner to look at savings in GSA contracts

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The General Services Administration and the Air Force established a working group to help identify ways to save money on enterprise-wide contracts, an Aug. 18 GSA blog post says.

The working group will look into which GSA contracts the Air Force can use to cut costs, but still complete its mission, the blog post says.

Those GSA contracting vehicles include strategic sourcing initiatives, reverse auctions, the Global Supply Special Order Program and its One Acquisition Solution for Integrated Services contracts.

Keep reading this article at: http://www.fiercegovernment.com/story/gsa-and-air-force-partner-look-savings-gsa-contracts/2014-08-20

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