Georgia Tech Procurement Assistance Center

Government contractor found guilty of theft of government property

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A former government contractor has been found guilty for his role in a scheme to unlawfully convert U.S. government property from the U.S military base at Kandahar Airfield, Afghanistan, shipping items to his home in Arizona for resale.

After a three day trial, Michael Dale Gilbert of Arizona was convicted of three counts of theft and unauthorized sale of government property and one count of interstate transportation of stolen property.  Gilbert’s sentencing is scheduled for Oct. 9, 2018 before U.S. District Judge G. Murray Snow of the District of Arizona, who presided over the trial.

According to the evidence admitted at trial, Gilbert worked at PAE Government Services, a government contractor that provides logistics and other support to the U.S. Department of State (DOS) and the U.S. Department of Defense around the globe, including Afghanistan.

  • From 2012 to 2015, Gilbert was deployed to Kandahar Airfield (KAF), where he assisted DOS with the Foreign Excess Personal Property (FEPP) program.
  • Once equipment, including computer equipment, heavy construction items and work tools, was requested through the FEPP program at KAF, Gilbert was assigned to arrange for its transfer for use or for its destruction, to prevent the items from falling into the hands of insurgents.
  • While in that role, in or around April and December of 2014, instead of facilitating the transportation or destruction of U.S government property, Gilbert shipped FEPP to the United States and transported the items to his residence in Arizona.
  • Gilbert stole FEPP items worth at least $48,900, including items recovered from his residence in Arizona valued at approximately $16,700, approximately $3,700 in sales through eBay, and goods valued at approximately $28,500 that Gilbert sold through other means, the evidence showed.

This case was investigated by the DOS Office of the Inspector General and the Special Inspector General for Afghanistan Reconstruction.

Source: https://www.justice.gov/opa/pr/government-contractor-found-guilty-theft-government-property

Teaming agreement challenges for subcontractors

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A recent Virginia Supreme Court case underscores the hurdles government subcontractors may face when they seek to enforce common teaming agreement terms (see: CGI Fed’l Inc. v. FCi Federal, Inc., No. 170617 (Va. June 7, 2018).

This case of the “disappearing workshare” also illustrates that strategic choices made during teaming agreement negotiations and in litigation may dictate whether the subcontractor has any recourse against the prime contractor.

In 2012, CGI signed a teaming agreement with FCi to jointly prepare a proposal for a State Department contract for which FCi would act as the prime contractor and CGI as the subcontractor.  FCi retained exclusive rights to finalize the proposal and negotiate any resulting prime contract with the government.   The teaming agreement said CGI “will receive” a 45% workshare of the awarded total contract value, but the “commitment may not be exactly 45% each year,” and it required the parties to enter into “good faith negotiations” for a subcontract after prime contract award.  If the parties could not mutually agree on a subcontract within 90 days after award, the teaming agreement would expire.

CGI and FCi worked together on the proposal for three months.   The government identified weaknesses in the proposal and invited a revised proposal.   CGI agreed to help FCi with the revised proposal if FCi committed to give CGI a 41% workshare and ten management positions on the resulting project.  The parties signed an amended teaming agreement with those new terms, but the other terms of the original teaming agreement did not change.  With CGI’s help, FCi prepared a revised proposal to the government.  

The government awarded the prime contract to FCi, but a competing bidder filed a series of protests.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/07/teaming-agreement-challenges-subcontractors/

Contract to watch: State Department’s $850 million effort to revamp passports and services

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The State Department’s Bureau of Consular Affairs is seeking bidders to modernize the underlying technology it uses to process visas, deliver passport services and provide emergency services to Americans overseas.

The Consular Systems Modernization contract, posted to the government’s Federal Business Opportunities website (www.fbo.gov) , is valued at up to $850 million over 10 years, but its importance goes far beyond the price tag.

The request for proposals is crafted around ensuring the Bureau of Consular Affairs provides better customer service to millions of Americans and visa carriers each year, and is the pillar of the “ConsularOne initiative.”

The RFP describes the ConsularOne initiative as “intended to modernize and consolidate the operational environment under a common technology framework to better support the services provided to CA’s customers.”

Keep reading this article at: http://www.nextgov.com/cio-briefing/2017/05/contract-watch-state-departments-85m-effort-revamp-passports-and-services/138066

New guidance on contractor risk management under the human trafficking rule released

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On December 7, the Office of Management and Budget, the Department of Labor, and the Office to Monitor and Combat Trafficking in Persons in the Department of State, issued a proposed memorandum titled “Anti-Trafficking Risk Management Best Practices & Mitigation Considerations.”  The document is intended, at least in part, to “promote clarity and consistency in the implementation of anti-trafficking requirements” imposed by Executive Order 13627, Title XVII of the FY 2013 National Defense Authorization Act, and the implementing regulatory provisions applicable to all federal contractors at FAR 22.17 and FAR 52.222-50.

human-trafficking-united-nations
Source: United Nations Office of Drugs and Crime

Although the guidance document is in draft form, it is important for contractors to consider closely because it: (1) outlines the government’s contemplated expectations on anti-trafficking risk mitigation, and (2) informs agencies that they may immediately take the contents of the memorandum “into consideration in applying the anti-trafficking requirements in the Federal Acquisition Regulation (FAR).”

In addition to reiterating the basic requirements of the anti-trafficking FAR rule (which we have covered in other posts), the memorandum outlines a series of “best practices and mitigation considerations” designed to inform contracting officers’ assessments of whether contractors are effectively carrying out their compliance responsibilities.  Although the guidance states that it is “not intended to augment or otherwise change existing regulatory requirements,” it does specify that, in the event the government becomes aware of a trafficking violation, a contractor’s compliance with the practices identified in the guidance are to be construed as mitigating considerations weighing in the contractor’s favor.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/12/new-guidance-contractor-risk-management-human-trafficking-rule-released/

Contractor update: How to own and control your small business

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Today we review more evidence reminding small business owners to get their house in order when it comes to questions of “ownership and control” in the eyes of the Small Business Administration (SBA).  Failing to plan can mean lost contracts and – even worse – losing your small business status and the opportunity for lucrative set-aside contracts.

Small Business - Ownership and ControlWhen we last visited this issue in April, the SBA determined that Precise Systems, Inc. was ineligible for a $134 million State Department SDVOSB set-aside contract because its employee stock ownership plan raised concerns over whether the company’s service-disabled owner exercised proper “ownership and control” under the applicable SBA rules.

After the Court of Federal Claims remanded the issue for further interpretation, the SBA doubled-down on its authority to interpret questions of small business ownership and control.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=430986

Protest deadline not met because debrief not required

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Yet another unwary government contractor has been turned away by GAO because it failed to file its protest on time. Unsuccessful offerors that contest evaluation issues (rather than solicitation defects) have 10 days to file protests at GAO.

GAO-GovernmentAccountabilityOffice-SealThat generally applicable 10-day deadline is tolled when a “debriefing” is required in FAR Part 15 (and certain Part 16) procurements. But that tolling rule doesn’t apply when the FAR only requires that the agency provide an “explanation” to disappointed offerors (e.g., in FAR Parts 8, 12, and 13 procurements)—and does not mandate a “debriefing.” GAO’s decision in Gorod Shtor illustrates this rule by dismissing the protest of an offeror that fell into this bid protest trap.

Gorod Shtor wanted to sell drapery making and installation services for the U.S. embassy in Moscow. Gorod Shtor submitted a proposal for an IDIQ contract with the Department of State. Importantly, the RFQ was issued as a commercial item acquisition (under FAR Part 12) in which simplified acquisition procedures were applied under FAR Subpart 13.5. Award was to be made on a lowest-priced, technically acceptable basis.

The Agency’s award notice informed the disappointed offeror that the contract was awarded to a competitor, which Gorod Shtor believed did not meet certain RFQ requirements. The notice also stated “[i]f you desire a debriefing, please refer to FAR [] 52.212-1(l)” which lists the types of information to be provided by a debriefing but does not create a right to a debriefing. Gorod Shtor requested a debriefing and was informed of “the reasons why the agency had found the vendor to be technically unacceptable.”

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=402044

SBA to include overseas contracts in rating agencies

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The Small Business Administration will begin to include overseas contracts as part of the baseline used to rate agency performance against small business contracting goals.

SBA logoCurrently about $100 billion a year in federal contracts — including contracts that support overseas projects — aren’t considered when the agency calculates small businesses’ share of procurement dollars annually. It’s been a bone of contention among the small business community, which argues that all awarded contracts should factor into individual ratings, as well as the overall goal of federal government to allocate 23 percent of contracts to small businesses.

“Overseas contracts, we couldn’t find a justification to continue to exclude that,” said John Shoraka, associate administrator of government contracting and business development at the SBA, during a keynote session at a procurement conference hosted by the Montgomery County Chamber of Commerce. “So coming into 2016, we’re working with the Office of Federal Procurement Policy, Defense, USAID and State on including those contracts in the base.”

Keep reading this article at: http://www.bizjournals.com/washington/blog/fedbiz_daily/2015/05/sba-to-include-overseas-contracts-in-rating.html

Follow-on contract to competitive 8(a) award can be sole sourced

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An 8(a) contract was properly awarded on a sole source basis to a tribally-owned entity, even though the contract was a follow-on to a competitive 8(a) set-aside award.

In a recent decision, the GAO deferred to the SBA’s interpretation of the 8(a) program regulations–which, according to the SBA, allow such sole source awards.

GAO-GovernmentAccountabilityOffice-SealThe GAO’s decision in Agency Management Concepts, Inc., B-411206, B-411206.2 (April 21, 2015) involved a Department of State procurement for lock and lock services.  Beginning in 2003, DOS generally procured the requirement through the 8(a) program.  The most recent contract for the services (before the award at issue in this protest) was procured as a competitive 8(a) set-aside.

Advanced Management Concepts, Inc. was an active 8(a) program participant.  After learning that the incumbent contractor had graduated from the 8(a) program, AMC contacted DOS to express its interest in the requirement.  AMC was informed that DOS intended to make a sole source award to a tribally-owned concern, and that the SBA had accepted and approved the sole source offering letter.

AMC then file a GAO bid protest.  AMC alleged that DOS was required to compete the requirement among 8(a) program participants, rather than award it on a sole source basis.  AMC cited several sections of 13 C.F.R. § 124.506, an 8(a) program regulation, in support of its protest.  AMC contended that these regulatory sections prohibit the SBA from accepting a requirement on a sole source basis when that requirement has previously been competed among 8(a) program participants.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/8a-program-follow-on-to-competitive-award-can-be-sole-sourced/

GAO: Small business FedBid suspension was improper

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The suspension of a small business’s FedBid account was improper because the matter was not referred to the SBA under the SBA’s certificate of competency procedures.

In an important decision for small businesses participating in reverse auctions, the GAO recently held that FedBid could not properly suspend a small business’s user account for a supposed lack of “business integrity,” thereby causing the small business to be ineligible to bid on a federal solicitation, without a referral to the SBA.

The GAO’s decision in Latvian Connection, LLC, B-410947 (Mar. 31, 2015) involved a Department of State solicitation for first aid kits and related medical supplies.  DOS conducted the solicitation as a reverse auction on FedBed.  The solicitation was set aside for small businesses.

Latvian Connection, LLC, wished to compete for the award.  However, in July 2014, FedBid suspended Latvian Connection’s FedBid user account.  The FedBid suspension notice stated, in part: “System and Business Integrity: Latvian Connection has taken actions to repeatedly and purposely interfere with FedBid’s business relationships.”

Keep reading this article at: http://smallgovcon.com/gaobidprotests/small-businesss-fedbid-suspension-was-improper-says-gao/

Contracting facts and fictions

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Many debates on the issues in government acquisition rely on assumed “facts” that may or may not be based on reality.

However, examining the latest actual, comprehensive, uniform, and unbiased information directly provided by contracting officers (from the Federal Procurement Data System) sheds light on some discrepancies.

For example, despite the budget drama of the past two years, inflation-adjusted figures reveal that contract awards remain over 20 percent higher in 2013 than back in 2003. For the contracting profession, this news is encouraging, especially considering the wind-down of the longest war in American history and indicative of the continued increase in government contracting in providing essential citizen services.

Similarly, while awards have dropped within the General Services Administration, the Department of Defense, and the Department of State, other agencies—such as the Department of Education, the Department of the Treasury, the Department of Health and Human Services, the Department of Justice, and the Department of Veterans Affairs—have seen increases, as have contracts awarded to small businesses.

Keep reading this article at: http://www.federaltimes.com/article/20140603/BLG06/306030013/Contracting-facts-fictions 

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