The 17-person 809 panel, created in Section 809 of the FY 2016 National Defense Authorization Act (NDAA), was tasked with finding ways to streamline and improve the defense acquisition process. The panel had two years to develop recommendations for changes in the regulation and associated statute to achieve those ends.
As part of its review, the Section 809 Panel reviewed the DoD small business program. The panel ultimately developed several specific recommendations designed to improve how the DoD small business program supports DoD initiatives. One of the major areas of interest was determining how to promote the entry of non-traditional DoD companies who offered advanced technology and innovative solutions to DoD challenges.
I met with the 809 Panel in February 2017. I found it important to note that mid-tier companies performing in the DoD market sector play a major role in generating jobs and enhancing overall economic growth for the Nation and that mid-tier companies, defined as companies earning $25M-$500M annually, are being squeezed by small businesses on one side and by large businesses on the other.
In that context, I offered seven points, which also generally apply to small businesses, innovating companies developing new technologies, and companies that are new entrants into the defense market space.
- First, mid-tier companies cannot grow effectively if they are primarily subcontractors to large businesses since subcontractors are unable to obtain significant workshare. Large businesses have little motivation to offer mid-tier companies significant work since DoD acquisition policies encourage them to award subcontracts to small businesses.
- Second, the primary pathway for growth for mid-tier companies is to win large multiple award, indefinite delivery/indefinite quantity (IDIQ) contracts as primes so they can compete for agency task orders. However, to win these IDIQs, mid-tier companies must surmount major challenges:
- Mid-tiers are often locked out of large multiple award IDIQs owing to significant past performance criteria.
- The tendency of DoD agencies to consolidate contracts to reduce administrative burdens and costs, which favors large businesses. Such IDIQ consolidation reduces opportunities for mid-tier companies to penetrate and support customer agencies, which constrains future growth. Consolidation also poses risk to growth owing to long period of performance of awarded IDIQs; mid-tier companies often have to wait a decade before they can compete again as an IDIQ prime if they miss out on the near-term opportunity.
- Third, mid-tier companies must contend with ever rising costs that increase their indirect rates and make it more difficult to compete against large businesses. These cost increases are the result of several factors, chief among them are supporting employee benefits under newly enacted national healthcare polices, responding to current and emerging cyber security requirements, maintaining sophisticated auditable financial systems, and obtaining certifications and appraisals, such as ISO-9001:2008/20015, ISO 20000, ISO 27001 and CMMI-3/4, which DoD agencies increasingly require of companies seeking to pursue and perform work.
- Fourth, while mid-tier companies are capable of providing the same or better level of service and customer relations as large businesses, their competiveness is hampered by higher overhead costs relative to large businesses because they lack the scale to absorb those indirect costs. These higher costs, combined with the lowest price technically acceptable and low price competition environment we are experiencing in the defense sector, hinder mid-tier companies in achieving success as they compete against large business on full and open competitions.
- Fifth, North American Industry Classification System (NAICS) codes used to classify DoD work and define company size standards offer little support for mid-tier companies. While some NAICS codes, such as 541712/5, Research and Development, reflect a size standard of 1000 employees, up from 500 employees in Feb 2016, DoD agency contracting officials tend to strictly interpret the type of work performed and the size standard offers little benefit to mid-tier companies. Hence, there are no contracting tools to benefit or promote mid-tier company growth.
- Sixth, graduating small businesses confront major challenges as they evolve into mid-tier companies and must compete as newly minted large businesses. While seeking a merger or acquisition may represent a potential exit strategy, in many cases, successful small businesses owe their growth to small business contract awards, which are of little value to large business acquirers. Hence, the businesses are at great risk of failing shortly after graduating from small business status: they are too big to be small and too small to be effective as large businesses. While the Congress and DoD have done an excellent job in establishing policies that promote small business growth, particularly for socio-economic challenged groups, they have failed to establish an effective strategy to promote business health and growth across the total business life cycle, from start-up/small business through mid-tier to large business.
- Seventh, and my final point, small business officials in DoD agencies generally sympathize with the challenges mid-tier companies confront, however they state they can do little to help without congressional and/or department involvement and legislation. Their focus is on accomplishing their duties by promoting the various small business classifications.
The US lacks a strategic approach to promoting growth of US businesses supporting the DoD. The current government programs that promote the interests of small businesses fail to account for their eventual growth into being mid-tier companies. At that point, such companies must compete against small businesses, other mid-tier companies, and very large companies. This poses great challenges to rising small businesses. I believe Congress and DoD should seek avenues to promote the lifecycle growth of companies by accounting for those mid-tier company challenges.
Randy J. (“RJ”) Kolton is VP of Mid-Tier Advocacy Group, and Senior Vice President (SVP), Business Development for Data Systems Analysts (DSA), Inc., a mid-sized, employee-owned company that is a leader in delivering business driven information technology and consulting solutions and services to the Federal Government and industry. Building on experience spanning more than five decades, DSA has deep expertise and comprehensive understanding of the operational, security, collaboration, and identity management challenges our customers must address.
We’ve been discussing the Office of Management and Budget (OMB)’s six proposals for streamlining the acquisition process and improving the acquisition environment, part of the FY 2020 National Defense Authorization Act (NDAA), and we’ve reached the final post in the series.
This proposal would revise 42 U.S.C. 6962(c)(3)(A), which requires certification by Federal contractors to estimate the percentage of the total recovered material content for U.S. Environmental Protection Agency (EPA)-designated item(s) delivered and/or used in contract performance, and to submit a certified report to their contracting officer.
This proposal has to do with the administration’s move to reduce “regulatory burdens.” It is part of a general overall trend, and here at TAPE we are unrelentingly in favor of reducing any kind of administrative burden. In this case there was a duplication where things had to be reported both to the EPA and to the contracting officer, who really wasn’t going to do anything about it because it’s the EPA who needs to keep track of recovered products.
For example, if you’re removing asbestos from a building, you have to report that it’s there, and how you’re going to dispose of it by taking it to the right place, getting it recycled, etc. Since that is an EPA requirement, not a FAR requirement, it makes good sense to leave it out of FAR. There’s still a burden, you still have to report it, but you only have to do it once.
Don’t we love the OMB?
This is a guest post by Morgan Taylor of Winvale.
At Winvale, we are constantly challenged by organizations new to the federal market with questions around why a GSA Schedule contract is so valuable. Any savvy consultant should be prepared to adequately describe the benefits of a GSA Schedule contract program and even articulate drawbacks of having one in place.
Let’s focus first on this contract vehicle’s benefits.
What are the benefits of a GSA Schedule contract?
NO. 5: COMPETITIVE ADVANTAGE
FAR Subpart 8.002 and 8.004 describes the order of precedence for federal agencies considering sources in procuring goods and services. Federal agencies have a statutory obligation to consider mandatory sources of supply of goods and services, and the use of Federal Supply Schedules (i.e., GSA schedule contracts) are encouraged in advance of “commercial sources in the open market.”
This means that your organization will have a competitive advantage when compared to competitors who do not have a GSA Schedule contract. This is significant, because it puts you in an elite group of organizations who may receive preference (in most cases, chances are in your favor) when an agency is considering how to meet its needs.
Having a GSA Schedule is also a great asset to advertise on your company website and marketing materials. Having a GSA Schedule provides a great deal of visibility in the federal marketplace that can be used to win GSA bids and even Open Market bids.
NO. 4: A LONG-TERM PARTNERSHIP
GSA Schedule contracts can last up to 20 years, do not have a sales limit, and everyone in the federal government can use them. Specifically, GSA Schedule contracts have four five-year option terms. It is one of the most widely used government contacts available and they are recommended to anyone serious about selling to the federal government.
Of course, vendors will need to remain productive (generating at least $25,000 annually) and ensure they are properly administering their contract from a reporting and compliance standpoint, but the contract can help facilitate a long-term relationship with agency customers.
NO. 3: ENJOY EASIER AND FASTER PROCUREMENTS
Schedule orders do not require much of the extensive documentation and competitive analysis that is required when vetting commercial sources in the open market. This is why the GSA Schedule contract is so valuable. The contract pre-qualifies you to sell to federal buyers because the GSA has already negotiated fair and reasonable pricing for those federal buyers and made the requisite responsibility determination. This means it is significantly easier to win government business, as individual agencies do not have to go through the process of determining if your pricing is competitive in the market.
As can be seen under the FAR subpart 8.4 language, depending on the specifics, agencies can order directly from a GSA Schedule holder and do not need to make that public. By placing an order against a GSA Schedule contract, the government buyer has concluded that the order represents the “best value.” Less work makes contracting officers happy.
Another way GSA Schedule contracts lead to easier and faster procurements is through pre-vetted technical capabilities.When submitting a GSA proposal, offerors must provide technical narratives that capture a company’s experience in the field and specific expertise related to the proposed Special Item Numbers (SINs). In addition, offerors of SINs such as the Highly Adaptive Cyber Security (HACS) SIN 132-45, must undergo a verbal technical evaluation to ensure the main criteria is met.
While this can sometimes make for a lengthy proposal process, it allows agencies to buy from contractors with the assurance that the work performed will be satisfactory and meet all requirements. This can prevent GSA Schedule holders from having to submit separate technical narratives in each individual bid proposal.
NO. 2: ACCESS TO EXCLUSIVE OPPORTUNITIES
Once you have a GSA Schedule contract, you gain access to GSA sites that other companies do not. For example, GSA eBuy is a website that only contract holders and agency buyers may access. This acquisition tool is where agencies look to request information and quotes from GSA Schedule holders. GSA eBuy often houses high-dollar, high-profile contract opportunities not available anywhere else. GSA eBuy makes it easy to find business opportunities, respond to government requests and establish new business relationships. An impressive number of orders are transacted through this exclusive website.
…AND NO. 1: EXPAND YOUR CUSTOMER BASE
This is the absolute key for anyone pursuing a GSA Schedule contract. The vehicle widens your customer base and has great potential to lead to increased revenue over time. A GSA Schedule contract is also accessible by state and local markets. The Cooperative Purchasing Program under the GSA Schedule program allows state and local governments to purchase from Schedule 70 for information technology and Schedule 84 for law enforcement and security products and services, at any time, for any reason, using any funds available. Having access to this additional market is a key differentiator that again exhibits the value of having a GSA Schedule contract.
The U.S. government is the biggest buyer of goods and services in the world, and a GSA Schedule contract could mean new business relationships and major opportunities with a reliable customer and source of income during tough economic times. Any business should certainly take notice.
What are the disadvantages of a GSA Schedule contract?
GSA Schedule pricing is determined by establishing a company’s Most Favored Customer (MFC) and discounting from there. GSA is obligated to make sure that the government receives the best pricing possible, so maintaining the established discount relationship is an essential part of having a GSA Schedule. Once your ceiling GSA rates are awarded, you are required to charge at or below this rate to government buyers. You may never charge above the GSA established ceiling rate if you are selling through the Schedule. You must also maintain the discount relationship, meaning that you may never charge a commercial customer lower than your MFC rates, or you are required to revise your awarded Commercial Sales Practices (CSP).
These rules require that you monitor the amount you bill and the discount you provide to every customer class, which can sometimes cause unwanted administrative burden. However, structuring pricing this way can help establish firm guidelines for sales desk and business development departments within your company.
COMPLIANCE AND MAINTENANCE
The GSA Schedule should change and grow with your company. Schedule holders should be monitoring the contract pricing and Terms and Conditions throughout the life of the contract to ensure that all changes made commercially are updated on the contract through a contract modification. To remain compliant, contractors are required to report all GSA sales, accept Schedule refreshes and keep the contract terms and conditions current, accurate and complete. Having a GSA Schedule does take some extra time and effort, but if maintained correctly, can be a valuable tool for your company’s continued growth in the federal marketplace.
The GSA Schedule has clear advantages but does require companies to take on additional compliance and maintenance concerns. Looking for compliance and maintenance assistance? Give us a call!
Morgan Taylor is a consultant for Winvale’s Professional Services Department where she provides GSA Schedule acquisition and maintenance support to her clients. Morgan is currently a member of the National Contract Management Association (NCMA).
This proposal seeks to standardize the task and delivery order protest dollar threshold for defense and civilian agencies by raising the civilian agency threshold from $10 million to equal the defense agency threshold at $25 million.
So while this is a straightforward action, it does have extensive implications. Currently, the task and delivery order protest threshold are those things that apply to multiple-award IDIQ-type contracts.
Let’s say, for example, you’re on a contract vehicle like GSA Aliant and you lose a task order. Currently, you can only lodge a protest if the dollar value of the contract exceeds $10 million, however the same situation on the defense side has a threshold of $25 million before you can protest.
If this OMB proposal goes into effect, then everyone would be subject to the higher $25 million limit, below which a protest would not be allowed on task and delivery order contracts.
This will have the effect of reducing the number and likelihood of protests in the civil sector. Things that were formally protestable between $10 million and $25 million will no longer be protestable.
From the government’s standpoint, it is certainly sensible for both sides to have the same rules. By taking on the larger standard, however, it will reduce the protestasbility of a large number of task orders. This is likely to be more of a problem for small businesses then for large businesses.
The government is attempting to streamline and reduce the activities that are different between civil and defense section and in the long run, and that’s a good thing. On the other hand, the reason the rules are different is there is less money in the civil sector and the jobs are smaller in size, and that’s the way it’s always been. Ultimately this is not good news for the small businesses who now cannot protest.
This proposal seeks to bring uniformity to procurement thresholds following the increase of the micro-purchase threshold from $3,000 to $10,000 in the NDAA for FY 2018.
A procurement threshold is the lowest level at which you can award a contract as a sole source to one particular company rather than opening it up for competition. This applies when a job is so small that trying to find enough companies to compete for the work would be too costly for the government.
So this new proposal increases that threshold to also apply to multiple-award contracts, not just single. What this means is if I, as a federal contractor, already have a multiple award IDIQ contract with a government agency, they can issue these micro-purchase orders without competition, as long as they do not exceed $10,000 in value. This makes it more fair to all contractors whether they’re in single or multiple award contracts.
There’s always a risk that the contracting officers will break the jobs up into smaller increments, particularly in DoD where the micro-threshold level is higher. That we will see only with practice, as it were.
At TAPE we’re always interested in more opportunities for sole sourcing, because that allows a customer relationship to flourish. Hopefully this proposal will have that effect.
We’ve been discussing the Office of Management and Budget (OMB)’s six proposals for streamlining the acquisition process and improving the acquisition environment, intended to be included in the FY 2020 National Defense Authorization Act (NDAA).
Proposal 3 is about uniformity in procurement thresholds. So right now purchases starting at $2 million must adhere to cost accounting standards (CAS), but complete coverage doesn’t start until you’re at $50 million. This change will eliminate these wide differences by raising the basic threshold to $15 million.
That means you will only need to start paying attention to CAS at $15 million, and full coverage still starts at $50 million. The reason for this change is that there were already some exemptions established at various other threshold levels that caused confusion about when the basic CAS really apply.
The reason this is important for us as small businesses is that full CAS coverage is very comprehensive and has a lot of details, and it’s really hard for a small business to manage this. That’s why you don’t hit full CAS coverage until $50 million. At that point you presumably have the infrastructure in place to handle the extra requirements.
One other legalistic thing being done is that they’re decoupling the CAS thresholds from the similar thresholds in what’s called the TINA (Truth in Negotiations Act), because there’s some concern that by putting them together, issues and problems come up in both.
The Office of Management and Budget (OMB) has proposed six ways to help streamline the acquisition process and improve the acquisition environment, intended to be included in the FY 2020 National Defense Authorization Act (NDAA).
The second proposal is to do away with the Defense Cost Accounting Standard Board (CASB). The issue here is that there is a Defense CASB, and there’s a federal one as well. The result is, unfortunately, is that the two different sets of cost accounting standards created can often be, well, different. So what this OMB initiative is going to try and do is eliminate the Defense CASB and consolidate everything into this one place under the federal board.
Of course, not everyone is going to be happy about this. There will be differences between the standards, and things from the Defense CASB that somebody’s been taking advantage of and doesn’t want to give up, or conversely, anything changed from the Federal CASB will have proponents and systems that cater to that function. We’ll have to figure out what those things are. Reconciling these two will be a nightmare, but it’s always better to have one rather than two things carrying out the same function.
And don’t forget that there are computer systems that handle acquisition and contract issues and cost accounting, and those will need to be adjusted.
What this demonstrates is that nothing in contracting and acquisition is ever as simple as “just do this.” So much of our regulated activity gets caught up in the very regulations being implemented; it’s never simple to change.
But, we’ll keep working on it…
The fundamental problem with acquisitions is that they take too long, by whatever standards people may be applying. The Office of Management and Budget (OMB), who oversees the performance of federal agencies, has proposed six ways to help streamline the acquisition process and improve the acquisition environment – changes they intend to be part of the FY 2020 National Defense Authorization Act (NDAA).
In a series of posts, we’ll look at each of these six proposals. First up, is to establish acquisition test programs.
You may remember our discussion about other attempts to streamline acquisitions through other transactional authorities and consortia. What the OMB is saying here is let’s set up some innovation in procurement and acquisition and allow individual agencies to test stuff out and cultivate the kind of innovation you might see in Silicone Valley and other high-tech areas.
Someone will still need to approve you to try out your idea, but then you can do so even if it’s not entirely in compliance with the FAR. The idea is to test stuff out, see whether it works, and then that would result in recommendations for future actual changes.
This all fits into the concept of agile development that so many are people are into right now. One example is the Air Force Kessel Run program (for all you Star Wars fans). It’s essentially a place where they’re doing software development in small bits – what they call agile scrums – and they can literally run from requirements to testing, fielding, etc. in months rather than years.
Establishing acquisition test programs is a really good idea. It will fit within what the 809 panel was doing, and it will also fit the government’s move toward innovation.
When you price a government contract, some of your costs are considered direct costs and others are considered indirect costs. The most basic direct cost is labor – specifically the cost of paying the employees who work directly on that contract. Those costs are billable to the government agency who hired your company.
You also have labor costs that aren’t billable to the government because those employees aren’t working directly on that contract. Some of these indirect costs include paying the salaries of your company president, your HR person, or your reception staff.
There are other indirect labor costs, known as fringe benefits, which are things like vacation pay and sick time. You are responsible for these costs as an employer but they are not directly billable to the government.
A cost pool is a calculation that combines these different but related types of indirect costs, and provides you with a percentage, e.g., 2X base salary, that you can include in your bid price to make sure those indirect costs are accounted for.
You would go through this same calculation for overhead costs, such as office space for billable versus non-billable employees, and direct versus indirect general and administrative costs.
I’m making this very simple (here’s a blog post that goes into more detail), but government cost accounting requires you to have these pools and rates established in order for your bid to have appropriate approval by a government cost analyst who might be evaluating the bid. Not to mention protecting yourself in case of an audit by the DCAA (Defense Contract Audit Agency – your processes could be also audited by the Defense Contract Management Agency).
As a small business in the federal contracting space, it’s important to understand cost accounting, cost analysis, indirect rates, cost pools, and all of these concepts in order to understand where you can cut costs and be more price competitive. You’ll still definitely want to consult legal and accounting experts, but educating yourself upfront will help save you time and money along the way.
We’re continuing our look at several new SBA provisions that were announced in December 2018. Sam Finnerty of PilieroMazza wrote an excellent explanation of each change, and here we’ll look closer at some revisions pertaining to LOS (limitations on subcontracting) compliance.
Now these are a somewhat arcane set of issues. The bottom line is that the prime contractor in a small business set-aside contract is required to do 51% of the work. That can be calculated in many different ways, predominantly established as being 51% of the labor dollars. Therefore that imposes a limitation on subcontracting, essentially meaning that you can’t subcontract more than 49% of the total value of a contract.
Keep in mind that there is a whole other set of rules and regulations to do with buying things, as opposed to buying labor. If, for example I am in a construction contract, I may need a whole bunch of materials – wood, cement, whatever – and those purchases must also comply with the size standard and limitations on the subcontracting. Be sure to consult a contracts attorney on this, somebody who understands the Federal Acquisition Regulations or the DFARS.
At TAPE we had the experience of dealing with a set-aside contract with $1,000,000 of labor, and there were some odd things that happened in the definition when you had an independent employee. There are some Department of Labor regulations about when a 1099 independent person has to count as an employee. So when the SBA regulations force you to treat that independent contractor as a subcontractor but at the same time you’re required to treat them and pay them as an employee, that creates a dichotomy of the treatment of that employee in the contract.
Let’s say there is a subcontractor we use repeatedly, such as an inspector. I may wind up using them for 1,000 hours over the course of time, so the Department of Labor says that’s really an employee not a contractor. On the other hand, the SBA rules were different because the person was defined as a contractor, meaning those limitations of 51% and 49% rules applied, and you may have a completely separate treatment.
These new rules reconcile all that confusion. If the Department of Labor rules says they must be an employee then you can also count them on as employee within the limitations of subcontractor (LOS) compliance.
In essence, when you need particular expertise that you hire from the outside, be sure you’re treating those people in compliance with the regulations of the SBA and the Department of Labor. If you have a situation where you’re using outside experts and maybe using one in particular a lot, my strong advice is to work with your contracts attorney or somebody who understands the FARS, DFARS and the SBA regulations.