Alexandria, Va. – With profound sadness, Technical and Project Engineering, LLC (TAPE) announces that Executive Vice President/Chief Growth Officer William “Bill” W. Jaffe passed away on August 31 at age 71. While his death was sudden and unexpected, Bill had been in ill health in the preceding months.
After a 25-year consulting, management, and executive career including stints at Marriott Corporation, Amtrak, CACI, and 8(a) contracting firms, Bill co-founded TAPE in 2003 shortly after marrying Louisa Long Cullem (now Louisa Jaffe).
While Bill wore many hats in helping to build TAPE into a respected government contracting firm, his true passion was business development, particularly putting together teams to pursue contracting opportunities. As many of his colleagues within TAPE and among our partner firms know, Bill rarely saw a contract opportunity that he did not think TAPE and the right team could successfully pursue, win, and execute. Bill had an infectious enthusiasm and work ethic, often perfecting proposals and holding meetings seven days per week and sending emails in the early morning hours. He was legendary for rarely saying “no” to a teammate’s request for support. True to form, Bill spent the weekend before his death supporting a quick-turn Army opportunity and was working into the afternoon of August 31.
With Louisa’s being a service-disabled veteran of the Women’s Army Corps and U.S. Army Reserve, Bill was also passionate about hiring veterans to allow them to continue their service to our country.
Bill had many hobbies and interests including a love of science fiction/fantasy. He enjoyed interacting with a broad community of board game players in the railroad genre. Additionally, Bill loved buying and selling games and books on eBay. He was a very fast reader and could consume an enormous amount of extracurricular reading each week.
As much as Bill loved government contracting, he cherished his roles as husband, father, and “Papa Bill” to his grandchildren. Bill is survived by his wife Louisa, daughter Karen, stepdaughters Jen (Zach) and Sarah (Tim), and step grandchildren Solomon, Max, and Claire. He also is survived by his brother Todd and sisters Maralyn and Lynn. He is predeceased by his son Bill Sydney Jaffe.
The TAPE Family feels the loss of Bill keenly.
Bill’s family created this Life Tributes page at https://www.jeffersonfuneralchapel.com/obituaries/William-Jaffe/#!/TributeWall to make it easy to share your condolences and memories.
TAPE is a CVE-Verified SDVOSB/8(m) Economically Disadvantaged Woman-Owned Small Business with ISO 9001:2015 certification. The company helps keep the nation safe and strong by providing technology services, training and readiness solutions, and management consulting to the Federal Government.
This is a guest post by Haley Claxton of Koprince Law LLC.
Recently, GAO published a report on small business subcontracting plan compliance, concluding that agency oversight of these plans need improvement.
As many of our readers know, some federal contracts require large business prime contractors to utilize small business subcontractors under a small business subcontracting plan, as described in FAR 52.219-9. For context, in 2019, federal agencies “awarded more than 5,000 contracts requiring a small business subcontracting plan, and obligated more than $300 billion to contracts with required small business subcontracting plans.”
If a small business subcontracting plan is in place, contractors are required to report on any subcontracting achievements and make a “good-faith” effort to keep to the plan. In addition, some regulations and procedures require contracting officers to review the subcontracting plan before or after award to make sure certain information is included in the plan. Agencies are also required to provide SBA Procurement Center Representatives (or PCRs) the opportunity to review the proposed contract and associated subcontracting plan.
After a contract is in place, the FAR requires contracting officers to ensure that subcontracting reports are submitted via the eSRS web platform within a certain amount of time. Contracting officers must then review and decide whether to accept these reports. In addition to reviewing the reports, agencies are also required to perform annual evaluations of all contractor performance though CPARS (the Contractor Performance Assessment Reporting System). One aspect of the annual CPARS evaluation, where applicable, is compliance with the contractor’s small business subcontracting plan.
Despite the amount of oversight agencies appear to have over contractor compliance with small business subcontracting plans on paper, some folks at the Department of Defense were concerned about how much actual oversight agencies were providing to ensure contractors complied with their plans. Thus, GAO looked into how four representative agencies (the DLA, the Navy, GSA, and NASA) provide oversight. It found that the DoD was right to be concerned.
First, GAO looked to pre-award procedures for reviewing subcontracting plans. It found that COs from all four representative agencies reviewed and approved subcontracting plans as required in most, but not all, cases. More problematically, however, the “[a]gencies also could not demonstrate they followed procedures related to PCR reviews in about half of the contracts reviewed.” Put differently, most of the time, the SBA wasn’t involved in reviewing subcontracting plans before contract award, as required.
Next, GAO turned to agency overview of contractor compliance with their subcontracting plans post-award. GAO found this overview was pretty “limited.” Even though each representative agency did offer some amount training to contracting officers on subcontracting plans, GAO found that these contracting officers did not ensure contractors met their reporting requirements in most of the reviewed contracts. In addition, even where reports were submitted as required, many were not reviewed in the manner anticipated.
As a result of its investigation, GAO offered ten recommendations for the reviewed agencies and the SBA. These recommendations are outlined here, but in summary, they ask the relevant agencies to make sure they have steps in place to ensure appropriate review of subcontracting plans and contractor compliance with those plans.
Overall, an increased focus on compliance with subcontracting plans is likely to have an effect on many contractors–hopefully ensuring more contracting dollars go to small business subcontractors. For more on small business subcontracting plans, check out our related blog posts here.
This post originally appeared on the SmallGovCon blog at https://smallgovcon.com/statutes-and-regulations/room-for-improvement-gao-reviews-agency-oversight-of-small-business-subcontracting-plans/ and was reprinted with permission.
This is a guest post by David T. Shafer and Emily J. Rouleau of PilieroMazza PLLC.
Despite requests for delay due to COVID-19, California Attorney General Xavier Becerra has affirmed that enforcement of the California Consumer Privacy Act (CCPA) has started, effective July 1, 2020. The CCPA is a huge step forward in data privacy law, granting California consumers robust data privacy rights and increased control over their personal information. Previous PilieroMazza coverage of the CCPA can be viewed here and here.
While the CCPA has been in effect since January 1, 2020, companies that do business with California consumers will now risk penalties for noncompliance. Below is key information for companies seeking to ensure CCPA compliance and to avoid enforcement action.
Approval of Final Regulations
The Office of the California Attorney General submitted the final proposed CCPA regulations package to the California Office of Administrative Law (OAL) on June 1, 2020, for review. OAL has 30 working days, plus an additional 60 calendar days to review the package.
Once approved, the final regulation text will be filed with the Secretary of State and become enforceable by law. OAL is not expected to make significant changes to the regulations, so a full analysis of the rule will likely be necessary for the creation and implementation of a robust CCPA compliance program.
To understand whether or not you are subject to potential enforcement,, first determine if you fall within CCPA’s compliance criteria. Critically, the statutorily defined terms “consumer” and “personal information” are far broader than comparable statutes and regulations found in other jurisdictions, though that itself is currently the subject of debate in many state legislatures.
The enlargement of these terms causes CCPA’s jurisdiction to be larger than it appears on the face of the statute. Below are certain high-level questions that can help a business determine if it meets certain threshold standards:
- Do you, or any of your subsidiaries or affiliates, engage in business in California?
- Do you do business with contacts or employees who reside in California?
- Does your business have over $25 million in annual gross revenues?
- Does your business buy, sell, or receive personal information?
If you fit certain initial criteria, we recommend identifying the type of personal information your business collects. As briefly mentioned above, CCPA broadly defines personal information as any information that directly or indirectly identifies, describes, or can be reasonably linked to a particular consumer.
CCPA grants consumers significant rights to the use of their personal information, including general notice rights. It is here that companies can take proactive steps to prepare for CCPA’s implementation.
More specifically, CCPA grants consumers the right to know what personal information a business collects, sells, or discloses about them. Additionally, several sections of CCPA require businesses to make affirmative disclosures to consumers by way of privacy policies and other notices.
With the expiration of CCPA’s safe harbor and subsequent July 1, 2020 enforcement, steps that can be immediately taken may include, but are not limited to, the following:
- updating notices and privacy policies;
- reviewing data flows including data mapping and classification;
- segregating data and IT systems between regulated and non-regulated data repositories;
- implementing cookie banners and web beacons in accordance with CCPA-compliant privacy policies;
- implementing individual request processes (including opt-out and deletion); and
- implementing training to meet CCPA’s new requirements.
What to Watch
The California Secretary of State recently announced that the California Privacy Rights Act (CPRA) will be on California’s November 3, 2020, ballot. If approved by voters, the CPRA would significantly update and amend the CCPA, allowing California consumers to block businesses from using a new category of information known as “sensitive personal” information and establishing a new enforcement authority to protect data privacy rights.
PilieroMazza’s attorneys will continue to monitor the CCPA, along with legal developments for data privacy in other states. For assistance with CCPA implementation in your business, please contact the authors of this client alert, Dave Shafer and Emily Rouleau, or a member of the Firm’s Cybersecurity & Data Privacy Group.
This post originally appeared on the PilieroMazza website at https://www.pilieromazza.com/california-consumer-privacy-act-enforcement-effective-july-1/ and was reprinted with permission.
An announcement from the GSA Vendor Support Center.
GSA eBuy will be updated on August 1, 2020 to allow you to self-certify under specific Special Item Numbers (SINs), subgroups of products and services your company offers on contract.
The scope of certain SINs can be very broad. Subgroups were created to highlight specialized products and services that are offered under those SINs. By selecting the subgroup of offerings your company specializes in, your customers can find you more easily in both eBuy and eLibrary when they conduct their searches. As some SINs contain thousands of contractors, this helps the customer to identify the segment of contractors that can perform. Not all SINs have subgroups.
You may have used this functionality under your legacy contract, but you must reestablish these subgroups under the new SIN structure.
Identifying the subgroups of your contract offerings benefits both you and your customers. This function allows your customers to do better market research and email eBuy RFIs/RFQs directly to contractors that can satisfy their requirements.
Please note, the selection of subgroups does not prevent you from seeing opportunities posted for the SIN(s) you have been awarded. Your ability to review all eBuy opportunities on your awarded SIN(s) does not change.
The following SINs will have subgroups starting August 1, 2020:
561210FA, 541690E, 332311P, 532490P, 333241, 336999, 333318F, 335999, 325612, 325998, 325611, 54151HACS, 517312, 54151S, 54151ECOM, 511210, 33411, 339940OS4, 541611, 562112, 541211, 522310, 541330ENG, 562910REM, 541930, 541614, 541620, 561621H, 339113LAB, 334515, 334516, 333997, 332439.
The below steps outline the process to select your SIN subgroups for both eBuy and eLibrary.
How to select SIN Subgroups:
- Step 1: Login to your vendor profile in eBuy
- Step 2: Click on the Modify Subgroups button located on the right hand side of the screen
- Step 3: Select applicable subgroups
A note from Bill: This is really important for those with specialized NAICS and sub-SINS to see the specifics here and make sure to register, since this is an opportunity to register for more and different sub-SINs.
This is guest post by Judy Bradt of Summit Insight.
The federal contracting landscape just changed dramatically. Now what?
I love pretty much everything about geology: The ancient stories in layers under our feet. The slow, relentless, way the earth moves and transforms every day, even when we don’t notice. The way relationships within ecosystems affect each other. And the sudden, dramatic, changes that take us by surprise when pent-up energy suddenly releases.
The pandemic sent shock waves like tectonic plate shifts through our federal contracting world. First, we heard and felt tiny rumblings. Then we were all shaken by unmistakeable, giant waves of change. And just like after an earthquake, we were left to make sense of the aftermath and understand the story that’s still unfolding.
As we get deeper into the pandemic, notice three things about the new federal contracting landscape:
- Some things are still standing: federal departments themselves. Extraordinary federal employees (and their contractors) activated continuity of operations plans to keep government functioning with minimal interruption.
- Some things are completely new: federal agencies are awarding contracts for products and services to carry out programs for pandemic response and recovery.
- Some things have been postponed indefinitely, and we don’t know when they’re coming back: including but not limited to the vast majority of in-person office meetings, conferences, and events.
All three represent opportunities to serve our country as federal contractors, and to thrive as business owners.
Here are five tips that, despite all the challenges and disruptions of life in a pandemic, are bringing wins to my clients right now, and might make a difference for you.
- Go narrow, go deep.
Know who the actual users and choosers are in your niche. Use the bounty of public information (much of it absolutely free) to identify individual federal humans that you know, based on their missions and their spend and your experience, that you know you are meant to serve. Pick only as many as you have the time to research and commit to really getting in front of, no matter how long it takes. Identify the end users, program managers, contracting officers and specialists. (HINT: 99.9% of the time, the Small Business Specialist is not your buyer.) Look ‘em up. Be like a detective: how much can you find out about them? Who they do business with? How they contract? What’s in their forecast? When are their contracts going to be recompeted?
- Federal buyers are answering their phones. Call them.
Federal buyers are working right now. In fact (like you, I’ll bet), many are working even longer hours now, especially those who have extra pandemic responsibilities. If you know you have a product or service they need RIGHT NOW, then put the name of that thing in the email subject and at the top of your voicemail. The phone is the single most overlooked tool for reaching buyers. Expect that it might take a while to get through. Dedicate yourself to persistence. Most people give up after two or three tries. Now you know better. When you leave voicemail, make your tone cheerful and upbeat, let them know when you’ll call again. The “two-fer” is working well these days: when you leave a voicemail, also immediately send a follow up email saying, “Hey, sorry I missed you when I called today. Here’s what’s up…”
- Show up with empathy.
Are you working from home? Got four-footeds underfoot? Naked toddlers zooming through your home office? Having a bad hair day and not enough domestic bandwidth for three online classrooms, two Teams meetings, and why is Aunt Marcie calling now? Your federal buyer is having that life, too. So when you reach them, take your time. Ask, “How ARE you?” and really care about the answer. Really listen. Don’t be in a hurry to sell stuff. Slow the heck down. Maybe what they need more than anything is a chance to just vent, or a reason to smile. Ask them what would make their day a little better. Keep a handful of cheery, hopeful pandemic memes to brighten someone’s day. As Dr. Maya Angelou said, “People will forget what you said. People will forget what you did. But people will never forget how you made them feel.”
- Help them shine.
Federal employees compete for promotions. Your federal buyers are heading for the end of fiscal 2020 with all the same professional goals they started out with last fall. The pandemic probably overloaded that plate. Which means they have all kinds of projects that falling off the bottom of their performance appraisals as “INCOMPLETE.” Even if the pandemic wasn’t their fault. How could you make a difference for that person? How could you change the promotion game for them? What could you help a federal employee finish or achieve by the end of September that would have been otherwise impossible?
- Up your online game.
Sure, in-person meetings and events and conferences and networking are up in the air at best. Many are cancelled for the foreseeable future. So get with the program. If your company isn’t located in or near cities with lots of big federal offices, cheer up: the playing field just tilted in your favor. NOBODY can get into those offices right now in person. Flip side: ANYBODY who has something buyers need and persists in making the connection can set up a video meeting. Not comfortable doing that? Invest in learning how to be an online meeting pro. You’ll get almost immediate, satisfying return on a modest investment in bandwidth, background, audio and video equipment. Then, find a couple of friendly feds to rehearse with, and work out the challenges. Find out what video platforms your target agencies use (it’s almost never Zoom), and master them. See details in this article by the National Security Agency on how agencies make their teleworking choices.
As for networking, get with the program. In particular, see which federal agencies and industry associations are holding online or hybrid events. Register early, and ask the organizers for a briefing on how to master the mechanics of whatever online matchmaking they set up. If you are matched, research in advance as much as you can about the person you’re meeting. Don’t try to sell anything or to recite your capabilities. Try to have two of you from your organization on the call. Get full contact info for the people you’re meeting with. Make your “ask” clear up front. Leave plenty of time (even if it’s only a ten-minute matchmaking slot) for conversation, and make your objective to secure a commitment for a specific date, time, and topic for a follow up call.
Judy Bradt helps established companies win more federal business faster, by getting you in front of your buyer waaaay upstream from everyone else’s pipeline! Find out more at www.growfedbiz.com or book a complimentary call today to find out how she can help you.
Section 872 of the 2020 NDAA makes many notable changes to the Department of Defense’s (DoD) Mentor-Protégé Program. Besides permanently authorizing the program, Section 872 required DoD’s Office of Small Business Programs to establish performance goals and periodic reviews to be submitted to the congressional defense committees by February 1, 2020. This serves to improve outcomes, define expectations, and set measurable goals for the DoD Mentor-Protégé Program going forward.
Notably, Section 872 changes the definition of a “disadvantaged small business concern” to align with how small businesses are defined in other programs. To be considered small, the original definition required a business to have “less than half the size standard corresponding to its primary North American Industry Classification System code.” The new definition states that a disadvantaged small business concern must not exceed the size standard corresponding to its primary NAICS code.
Note that this change has already been approved and signed by the President, and applies to fiscal year 2020, ending in September 2020.
In spite of the fact that this seems like a trivial matter, it is important to understand that unlike mentor-protégé programs in other departments, the DOD program has a healthy budget (typical agreements of $750,000 to $1M or $2M) that can in fact get passed through the mentor for the benefit of the mentor-protégé partnership, i.e., mostly the protégé.
The important thing to understand is that this allows the DOD to pay the mentor for money that is used by the mentor-protégé agreement in ways that benefit the protégé in the future. Because this is a money granting program, it’s authorized not in annual increments (though it’s still budgeted annually), but in multiple-year increments.
As noted above one of the changes with reauthorization was an alignment of the definition of small businesses with other definitions in other classification systems like NAICS codes. If those definitions are different you could be small in one place and not small in another.
One of the interesting things about this legislation is that the new definition says you cannot exceed the size standard of the primary NAICS code but doesn’t say how much work must be in that code.
Why is that important? At TAPE, for example, we have work in three or four different NAICS codes. We do a lot of work in 541611 (administrative), which is a size standard of $16.5M, and we’re larger than that. On the other hand, we have a lot of work in in 541512 and 541513 (IT), which have a size standard of $30.5M, which we’re within so we’re considered small, and 541330 (engineering), which has a size standard of $41.5M, where we’re also small.
So we do some of our work in a NAICS code for which we are large, which is perfectly okay. It just means if it was recompeted we’d have to compete as a large business, or find a small business partner.
After three or four months of working from home, it’s good to go back to one of the things that passed in 2019 and was signed by the President back before any of this happened.
This legislation affects lots of us, including joint ventures that involve an 8(a) protégé, or are led by an 8(a). It’s also particularly close to my heart, and may just be the most wonderful section that ever exists. Why? Because 823 also happens to be my birthday!
Section 823 of the 2020 NDAA increases the threshold for justification and approval for 8(a) Program sole-source awards. While the 2010 NDAA required justification and approval for 8(a) Program sole-source awards valued at or above $20 million (later increased to $22 million), Section 823 of the 2020 NDAA increases this threshold to $100 million.
[Note from Bill: $20M is a long way from the $4M threshold in place when I first started out!]
This change will benefit entity-owned 8(a) Program participants because, under the Federal Acquisition Regulation (FAR) and Small Business Administration’s (SBA) regulations, those are the only participants eligible for sole-source awards above the competitive thresholds ($7 million for manufacturing contracts and $4 million for all other contracts).
What this new legislation means is that if the contracting officer makes the determination that there is a single source that can perform a certain piece of work, and you can couch the language in such a way that states you are the only person that can do so, you can now get a sole-source contract for up to $100M. That is pretty cool!
For contracting officers, there is usually a threshold or limit as to what they can sign for (and this limit is now decidedly higher for 8(a) awards), before the award needs to be approved by another level of command or even by the Pentagon. Still, there is a big distinction in time and energy between a contract that anyone can compete on (e.g., in a vehicle), and a sole-source contract.
There’s still an approval process, but they don’t have to compete the award. They just need to write a J&A and get it approved by the appropriate levels of authority based on the number of dollars involved. Then lo and behold, they can award a contract.
Note from Bill: The following document was sent to us on behalf of the Small Business Administration by Donna Ragucci of the Federal OSDBU Council.
The National Defense Authorization Act (NDAA) for Fiscal Year 2020 authorizes FY2020 appropriations and sets forth policies regarding the military activities of the Department of Defense (DOD), military construction, and the national security programs of the Department of Energy (DOE).
Below is a list of small business-related FY 2020 updates/changes to the NDAA. We’ll highlight each one here, and then delve into more detail in future posts:
SEC. 870. REQUIREMENTS RELATING TO CREDIT FOR CERTAIN SMALL BUSINESS CONCERN SUBCONTRACTORS.
Highlight: If the subcontracting goals pertain to more than one contract with one or more Federal agencies, or to one contract with more than one Federal agency, the prime contractor may only receive credit for first tier SB subcontractors.
Note from Bill: Interesting nuance here. So multi-award contracts or ANY contract that spans multiple agencies, only the first tier subs apply for SB credit. This mostly applies to large businesses, but can also affect “similarly situated entity” use in multiple award GWACS.
SEC. 871. INCLUSION OF BEST IN CLASS DESIGNATIONS IN ANNUAL REPORT ON SMALL BUSINESS GOALS. (House bill)
Highlight: In addition to the requirements listed in this section for each best in class designation, the Administrator shall include new requirements in the in Best In Class Small Business Reporting.
Note from Bill: The Best in Class designation is rapidly taking hold, and many agencies are opting out of having their own vehicles and using the BIC. This change allows for more reporting of BIC vehicles and defines legislatively, the requirements.
SEC. 873. ACCELERATED PAYMENTS APPLICABLE TO CONTRACTS WITH CERTAIN SMALL BUSINESS CONCERNS UNDER THE PROMPT PAYMENT ACT.
Highlight: To the fullest extent permitted by law, the head of an agency will establish an accelerated payment date (with a goal of 15 days after a proper invoice for the amount due is received) if a specific payment date is not established by contract.
Note from Bill: Good for all us smalls, because the fact is, the sooner we get the funds, the better.
SEC. 874. POSTAWARD EXPLANATIONS FOR UNSUCCESSFUL OFFERORS FOR CERTAIN CONTRACTS.
Highlight: Upon receipt of a written request from an unsuccessful offeror for a task order or delivery order in an amount greater than the SAT and less than or equal to $5,500,000 issued under an IDIQ contract; the CO must provide a brief explanation as to why such offeror was unsuccessful.
Note from Bill: So, interesting, this used to be $10M, so the size threshold has gone down (good for us in seeking info), but they mention “brief explanation,” which is frustrating. Brief is NEVER good.
SEC. 875. SMALL BUSINESS CONTRACTING CREDIT FOR SUBCONTRACTORS THAT ARE PUERTO RICO BUSINESSES OR COVERED TERRITORY BUSINESSES.
Highlight: Businesses receive contracting credit for subcontractors that are Puerto Rico Businesses and covered territory businesses. Covered territory businesses are located in the United States Virgin Islands, American Samoa, Guam, and The Northern Mariana Islands.
Note from Bill: A simple change that allows Puerto Rican and territorial companies to be included in US designations for SB credits.
SEC. 876. TECHNICAL AMENDMENT REGARDING TREATMENT OF CERTAIN SURVIVING SPOUSES UNDER THE DEFINITION OF SMALL BUSINESS CONCERN OWNED AND CONTROLLED BY SERVICE-DISABLED VETERANS.
Highlight: In section 3(q)(2) of the Small Business Act is amended (bb) in the case of a surviving spouse of a veteran with a service-connected disability rated as less than 100 percent disabling who does not die as a result of a service-connected disability, is 3 years after the date of the death of the veteran.
Note from Bill: This is useful, because it does mean that for a business designated as SDVOSB when the veteran passes, the surviving spouse has three years to “wind things up.” Definitely a good idea.
SEC. 880. ASSISTANCE FOR SMALL BUSINESS CONCERNS PARTICIPATING IN THE SBIR AND STTR PROGRAMS.
Highlight: The PCR (procurement center representative) is to consult with the appropriate personnel from the relevant Federal agency to assist small business concerns in participating in the SBIR or STTR program (with commercializing research developed under such a program) before a small business is awarded a contract from a Federal agency.
Note from Bill: This affects small businesses doing R&D, and is useful to give the SB staff a say in the process to ensure small businesses are utilized on SBIR and STTR awards.
A government agency’s evaluation of your past performance can often be the difference between winning or losing your bid. In fact we are increasingly receiving RFPs in which the only written material supplied to the government are past performance references.
When we do a contract for the government, the agency is obligated to rate our performance in different areas from 5 to 1 (excellent, very good, satisfactory, marginal, or unacceptable). These reference ratings are then stored in a web-based application called the Contractor Performance Assessment Reporting System (CPARS).
We recently did an RFP where they listed elements from their PWS (Performance Work Statement, which is essentially a list of work you’re supposed to do). We were required to take those PWS elements and map them to the information from the past performance reference that we were giving. Then they would go and consult CPARS, which means the contract in your reference had to have been in place for a year, and the CPARS entry already approved.
For example, one of the PWS elements was project management. We were required to give a written response that yes we do project management and we’ve done it on a past project. Then we had to go the contract documents for that past project, to the actual PDF of the signed contract documents, and put an electronic sticky note where the contract states we were required to do project management reports.
In the end, we submitted 400+ pages of old contract documents with electronic sticky notes on various pages, along with detailed notes in the RFP about where to refer to these pages in the past performance contract.
There is a lot more movement towards using past performance as the only award criteria, and so you really need to focus as a vendor on disputing your CPARS if they’re not appropriated, understanding your rating criteria, and working directly with your CORs and KOs to make sure everything gets into your past performance record.
For better or worse, agencies are given broad discretion in how they evaluate past performance. As such, it is critical that when working with the federal government that contractors understand not only what steps they should take to cultivate and utilize positive past performance, but also the steps they should take to defend their past performance from attacks. Here are some key items for your team to discuss:
- general rules governing past performance evaluations;
- ways in which a prime contractor can utilize different sources of past performance information;
- best practices for obtaining positive CPARS ratings; and
- how and when to challenge negative CPARS ratings.
In the fall of 2019, the United States Government Accountability Office (GAO) released a report about agencies’ use of the lowest price technically acceptable (LPTA) process in federal contracting.
As background, in 2017 section 813 of the NDAA started to create some limitations on using LPTA and when it would be appropriate. Then section 880 of the NDAA FY 2019 required that those changes be applied to civil agencies as well.
As part of that, Congress required the GAO, which acts sort of like Congress’s review agency, to develop some reports on various aspects of the LPTA world – they were looking for large dollar value issues and so forth.
There are eight criteria established for the use of LPTA:
- The agency can clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers.
- The agency would realize no, or little, value from a proposal exceeding the solicitation’s minimum technical requirements.
- The proposed technical approaches can be evaluated with little or no subjectivity as to the desirability of one versus the other.
- There is a high degree of certainty that a review of technical proposals other than that of the lowest-price offeror would not identify factors that could provide other benefits to the government.
- The contracting officer has included a justification for the use of the LPTA process in the contract file.
- The lowest price reflects full life cycle costs, including for operations and support.
- DOD would realize little or no additional innovation or future technological advantage by using a different methodology.
- For the acquisition of goods, the goods being purchased are predominantly expendable in nature, nontechnical, or have a short life expectancy or shelf life.
The important thing about this, from our perspective, is that Congress is making a determination and imposing requirements on DoD and now on the civil agencies that LPTA has a limited space.
Specifically, there has to be a determination that the agency does not need technical trade-offs. If the agency has technical trade-offs then they can’t use LTPA. Furthermore, if there are specific trade-offs between cost and technical activity that is also not conducive to using LPTA.
From our perspective as an observer of the process, it’s clear that there were increasingly non-applicable uses of LPTA, which led to some very anomalous decisions. The net result was that subject matter experts with education, talent, and experience became too expensive to use – they were being priced out of the market.
If there was someone willing to allegedly supply these SMEs for substantially less, that person automatically won an LPTA contract. But then when they tried to hire SMEs at these discounted rates the SMEs just went elsewhere to people who would pay them fairly.
This produced ugly contracts, when half the staff would leave either in the transition time frame or shortly thereafter, and who you lost were the really good people. Fortunately this set of legislation has reigned in the excesses between the two NDAAs. Fundamentally, we must thoroughly understand not just when to use LPTA but why it makes sense (or doesn’t).