This is a guest post by Steven Koprince of SmallGovCon.
An offeror submitting a proposal under a solicitation designated with the Information Technology Value Added Resellers exception to NAICS code 541519 must qualify as a small business under a 150-employee size standard–even if the offeror is a nonmanufacturer.
In a recent decision, the U.S. Court of Federal Claims held that an ITVAR nonmanufacturer cannot qualify as small based solely on the ordinary 500-employee size standard under the nonmanufacturer rule, but instead must also qualify as small under the much smaller size standard associated with the ITVAR NAICS code exception.
By way of background, NAICS code 541519 (Other Computer Related Services) ordinarily carries an associated $27.5 million size standard. However, the SBA’s regulations and size standards table state that an ITVAR procurement is an exception to the typical size standard.
An ITVAR acquisition is one for a “total solution to information technology” including “multi-vendor hardware and software, along with significant value added services.” When a Contracting Officer classifies a solicitation with the ITVAR exception, a 150-employee size standard applies.
ITVAR acquisitions, like others under NAICS code 541419, were long deemed to be service contracts; the nonmanufacturer rule did not apply. But in a recent change to 13 C.F.R. 121.406, the SBA specified that the nonmanufacturer rule applies to the supply component of an ITVAR contract.
When is a nonmanufacturer small? The SBA’s rules are not entirely clear. 13 C.F.R. 121.402(b)(2) states that a company that “furnishes a product it did not itself manufacture or produce . . . is categorized as a nonmanufacturer and deemed small if it has 500 or fewer employees” and meets the other requirements of the nonmanufacturer rule. But 13 C.F.R. 121.402(a) also states that an offeror “must not exceed the size standard for the NAICS code specified in the solicitation.”
So, for an ITVAR acquisition, which size standard applies to a nonmanufacturer: 150 employees or 500? According to the Court, the answer is “both.”
York Telecom Corporation v. United States, No. 15-489C (2017) involved the solicitation for the NASA Solutions for Enterprise-Wide Procurement V GWAC. The procurement was divided into several groups. The group at issue in this case (Category B, Group C) was a small business group. NASA designated the category with the ITVAR exception to NAICS code 541519.
The solicitation included FAR 52.212-1, which provided, in relevant part:
INSTRUCTIONS TO OFFERORS –
COMMERCIAL ITEMS (52.212-1) (JUL 2013)
(a) North American Industry Classification System (NAICS) code and small business size standard. The NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet (SF 1449). However, the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees.
York Telecom Company submitted an offer for Category B, Group C. After evaluating proposals, NASA awarded a contract to Yorktel. But NASA developed concerns about Yorktel’s size, and referred the matter to the SBA for a size determination.
In its size determination, the SBA Area Office concluded that the applicable size standard for the procurement was 150 employees. Because the SEWP V solicitation had been issued before the changes to 13 C.F.R. 121.406, the SBA Area Office concluded that the nonmanufacturer rule did not apply. The Area Office issued a decision finding Yorktel to be ineligible under the solicitation’s 150-employee size standard. The SBA Office of Hearings and Appeals upheld the SBA Area Office’s decision.
Yorktel took its case to the Court. Yorktel argued that it was a nonmanufacturer, and therefore, its size was governed by a 500-employee size standard–not the ordinary 150-employee ITVAR size standard.
After addressing various procedural issues such as jurisdiction and standing, the Court concluded that Yorktel’s protest was an untimely challenge to the terms of the solicitation. The Court dismissed Yorktel’s protest for this reason.
Interestingly, though, the Court didn’t stop there. It wrote that “even if Yorktel could pursue its challenge of the size standard for the SEWP V Contract in this litigation, this claim is unsupported by the terms of the RFP and the statutory nonmanufacturer rule.”
Discussing FAR 52.212-1(a), the Court wrote:
When read in its entirety, the Court construes the above provision to require that a non-manufacturer first meet the 500 employees or less size standard to compete for the contract and to also impose the more restrictive size standard of 150 employees or less under the NAICS code in order for the non-manufacturer to be eligible for contract award. And so, to the extent that Yorktel qualifies as non-manufacturer under the statutory non-manufacturer rule, the RFP requires that Yorktel meet the more restrictive, 150-employee, size standard to be eligible for contract award.
The Court wrote that its interpretation was buttressed by the Small Business Act, which (in 15 U.S.C. 637(a)(17)), specifies that a nonmanufactuer must “be a small business concern under the numerical size standard . . . assigned to the contract solicitation on which the offer is being made.” The Court concluded that “the statutory non-manufacturer rule, thus, requires that an offeror seeking coverage under the rule satisfy the size standard imposed by the NAICS code for the relevant contract.”
The relationship between the nonmanufacturer rule’s 500-employee standard, on the one hand, and the size standard imposed by a solicitation, on the other, was previously a question merely of academic interest (and then, only to true government contracts law nerds like yours truly.) That’s because almost all of the size standards for manufacturing and supply contracts are 500 employees or greater; it would be no problem for a nonmanufacturer to satisfy the solicitation’s size standard.
In contrast, the ITVAR size standard is much lower than 500 employees. Now that the SBA has amended its regulations to specify that the nonmanufacturer rule applies to the supply component of ITVAR contracts, the Court’s decision in York Telecom Corporation may have major ramifications for other ITVAR nonmanufacturers.
A note from Bill: From our perspective, smaller is always better. We want big revenue numbers and small employee numbers. The important thing is that employee number standards allow you to have subcontractors, those employees don’t count against my employee limit, even though I still have the revenue. That helps us stay smaller, longer, and we like that.
This post originally appeared at http://smallgovcon.com/statutes-and-regulations/itvar-nonmanufacturer-subject-to-150-employee-size-standard-court-says/ and was reprinted with permission.
So we know that a contract is either unrestricted, which means anybody can bid, or it’s set aside for small businesses. A contract can be a generic small business set aside, or it can be specifically protected for one of the SBA’s socioeconomic small business programs, i.e., a woman-owned small business (WOSB), a service-disabled veteran-owned small business (SDVOSB), a HUBZone business in a historically underutilized business zones, or an 8(a) small business owned by socially and economically disadvantaged people or entities.
In the past, when a generic multiple-award contract (MAC) was set aside for any small business, it used to be that everyone within that winning pool could bid on all the task orders from that contract.
With this new rule that will be implemented by SBA and eventually populated down into the Federal Acquisition Regulation (FAR), agencies will now be able to set aside task orders for a more specific group (WOSB, SDVOSB, etc.) under a multiple-award contract originally awarded as a general small business set-aside.
As Sam Finnerty points out in this PilieroMazza blog post about several SBA changes, in the past the SBA “was concerned that such a rule would unfairly deprive SBCs [small business concerns] of an opportunity to compete for orders issued under their MACs. In the Rule’s preamble, SBA explains that other actions it has taken in recent years have alleviated these concerns. However, SBA is requesting comments on whether it would impact the ability of SBCs to compete for and receive orders.”
Under this new rule, an agency would have a certain number of awards specified for generic small businesses, but would actually be allowed to go down another level. So even though you may have won the contract as a small business, you’re not guaranteed that every task order is available to you, as they would under the current rules of the road. Some orders may be further set aside and if you don’t qualify for that program, you couldn’t bid on the order.
So this change would restrict certain rights, but it gives the federal agency more room to make sure the right activity comes to the right vehicle, and will also help them keep their small business credits going.
As for small businesses, we want the agency to come to this vehicle and this change makes it attractive to them by allowing them to get additional credits, not just small business credits but credits for using specially certified businesses as well. This is particularly important at the end of the year when everything is done in a rush and they’re looking to get in their numbers.
The hope of course is that they will continue to come back to that vehicle, and maybe some of those task orders will be ones that your small business does qualify for. Stuff escapes the system all the time and we’re trying to get to the point where they don’t have to go somewhere else. Ultimately we want them to meet all their requirements in this vehicle and to keep all the agency work together.
“The supreme art of war is to subdue the enemy without fighting.” – The Art of War by Sun Tzu
When we talk about the goals of federal business development and capture management at our Bid & Proposal Academy training courses, we pragmatically reduce them to only five:
- Identify opportunities to bid on
- Eliminate competition
- Reduce competition if you can’t eliminate it
- Get the government customer excited about receiving your proposal
- Make it a goal to produce a usable proposal artifact at every step of the capture process, so that writing a winning proposal is a slam dunk.
Goal 2, Eliminate competition, refers to sole source awards. In their simplest form, sole source awards are modifications to add scope to your existing contracts. It works like this: the government has a problem and comes to you. Your technical and BD people meet with the government to discuss the solution and find a contract vehicle to route the work to.
The government issues the modification, and you’ve won new business won without a fight. Both the government and you save a headache and money while getting great value.
The more complex form of sole source awards is getting your firm under a new contract without competing. We‘ll discuss them below, as well as the pending rule changes that are about to make life a bit easier for socioeconomically disadvantaged small businesses.
When can you pursue a sole source award?
We’ve already talked about sole source awards at the end of the federal fiscal year. Sole source awards increase during that time. This allows government entities to make the most of their remaining budgets. This is the simplest and fastest way for the government to navigate through the “use it or lose it” budgetary conundrum.
You can also get sole source awards from your current government customers at any time of the year, provided that the conditions are right. Sole source awards have to fall under one of the seven authorities laid out in the Federal Acquisition Regulation (FAR).
- There is only one responsible source and no other supplies or services will satisfy an agency’s requirements.
- Unusual and compelling urgency
- Industrial mobilization; engineering, developmental, or research capability; or expert services
- International agreement
- Authorized or required by statute
- National security
- Public interest
Many sole source opportunities are awarded under Authorities 1 and 2.
In Authority 1, your company is the only one who can provide a particular product or service, and full and open competition would just result in the contract being awarded to you anyway.
Authority 2 work results from an emergency situation such as a war effort, or a sudden natural disaster for which there is no multiple award contract vehicle that covers that specific scope of work.
What about 8(a), SDVOSB, HUBZone, and WOSB/EDWOSB sole source awards?
These awards fall under Authority 5 listed above. It states that some contracting awards are only available to small businesses who participate in the Small Business Administration’s contracting assistance programs.
Sole source awards have monetary limits. Currently, the limits for socioeconomically disadvantaged businesses such as 8(a) business are $4 million for services and $6.5 million for manufacturing. The exceptions to that are Alaskan Native Corporations (ANC) and Native American Tribal Entities (“super 8(a)s”). They can receive sole source awards for $22 million, and even higher with justification.
Changes may be coming to special sole source award thresholds in 2019
The House of Representatives recently passed a bill (H.R. 190) referred to as “Expanding Contracting Opportunities for Small Business Act of 2019”. On January 17, 2019, the Senate sent the bill to the Committee on Small Business and Entrepreneurship. The last roll call vote was 415-6 in the House, so there is clear bipartisan support.
The majority of these changes would impact 8(a)s, Service-Disabled Veteran-Owned Small Businesses (SDVOSB), Women-Owned Small Businesses, and HUBZone businesses.
Specifically, H.R. 190 would change the award price calculation requirements. H.R. 190 removes the requirement for option years to be included in the award price. That means contracting officers could price the award at just the base period of the contract.
Let’s do the math. If the initial year of the contract is valued at $4 million for services, but the contract includes four 1-year options also valued at $4 million, the overall value of the awarded contract would be $20 million – much closer to the super-8(a) $22 million threshold.
It used to be that $4 million was the total value of the contract, and now it’s just the projected maximum award price for the initial year. Under the current law, a sole source award of this amount wouldn’t be possible. Let’s see if this is how this law will be implemented.
The bill would also increase the sole source manufacturing threshold from $6.5 million to $7 million for all socioeconomically disadvantaged small business types, along with other changes.
A note about sole source awards
Finally, your customer may not come to you when they have room in their budget and need the work done. It’s up to you to anticipate their needs and act. This is when being in tune with your customer’s requirements comes into play. You may have opportunities to suggest sole source contracts as solutions to your customer’s pressing needs. If you’ve trained your project personnel to report back with any needs your government customer has, you’ll be in a great position to take advantage of small (or not so small) opportunities like these.
If you need to sharpen your business development skills to grow your small federal contracting company, we recommend you attend our Foundations of Federal Business Development course or consider getting the Blueprint for Federal Business Development for self-paced study.
Olessia Smotrova, CF.APMP Fellow, is the president of OST Global Solutions, Inc., a federal business development consulting and training company. She has 21 years of experience in government business development, winning more than $20 billion in funded contracts. She is the author of How to Get Government Contracts: Have a Slice of $1 Trillion Pie. Prior to founding OST, she developed business for Raytheon and Lockheed Martin, and wrote for the Financial Times of London.
On January 24, 2018, a final General Services Acquisition Regulation (GSAR) rule was issued that incorporates order-level materials (OLMs) into the Multiple Award Schedule (MAS) program. On selected schedules, agencies can now acquire not just the products and services they’ve come to rely on from GSA, but also the associated items required to make use of them at the order level.
From GSA: “OLMs are supplies and/or services acquired in direct support of an individual task or delivery order placed against a Schedule contract or BPA. OLM pricing is not established at the Schedule contract or BPA level, but at the order level. Since OLMs are identified and acquired at the order level, the ordering contracting officer (OCO) is responsible for making a fair and reasonable price determination for all OLMs.
OLMs are procured under a special ordering procedure that simplifies the process for acquiring supplies and services necessary to support individual task or delivery orders placed against a Schedule contract or BPA. Using this new procedure, ancillary supplies and services not known at the time of the Schedule award may be included and priced at the order level.”
So what are the new benefits of this policy, and why should you care?
- OLMs increase the flexibility of contracts using the various GSA Schedules, especially the ones that focus on services, to provide a total solution to meet the actual customer requirements.
- OLMs reduce customer agency procurement/administrative costs and makes leveraging GSA Schedules that much easier – of course GSA likes this because they get the order through the MAS, along with any associated fees (the downside is that the company gets OLM “revenue,” which generally is just a pass-through fee, not a profit margin, and therefore is using up revenue).
- Contracting officers are happy because it reduces contract duplication by eliminating the need to set up new commercial IDIQs and/or open market procurements for ODCs (“Other Direct Costs”).
- OLMs potentially eliminate the need for Government Furnished Equipment (GFE), and anything that reduces the burden on the customer/contracting officer to track things is HIGHLY desirable.
- Contracting officers like the fact that MAS terms and conditions apply to OLMs, which ensures customer buys are compliant with FAR and other guidelines.
As a contractor, how do you include OLMs under a Schedule order?
The special ordering procedures are contained in General Services Administration Acquisition Regulation (GSAR) clause 552.538-82 Special Ordering Procedures for the Acquisition of Order-Level Materials, which may be incorporated into contracts under OLM-authorized Schedules. This clause, along with a dedicated Special Item Number (SIN) for Order-Level Materials, allows ordering activities to include OLMs in Schedule orders.
It is important to remember:
- Prices for OLMs are not established in the Schedule contract or BPA.
- OLMs are established and acquired at the order level, and the ordering activity contracting officer is responsible for making the determination that prices for all OLMs are fair and reasonable.
- OLM procedures may be used to purchase OLM products or services to support delivery orders (products) or task orders (services) under authorized GSA Schedules.
- OLMs may be added to any order-type, i.e. Firm Fixed-Price, Time & Materials (T&M), or Labor Hour. However, the OLM CLIN (contract line item number) must be T&M, but it can be the only T&M CLIN on the order. i.e., OLMs may be added to a Firm Fixed-Price order, but the OLM CLIN itself must be T&M.
Current Authorized OLM Schedules
- 00CORP – Professional Services Schedule
- 03FAC – Facilities Maintenance and Management
- 56 – Buildings And Building Materials / Industrial Services and Supplies
- 70 – Information Technology
- 71 – Furniture
- 84 – Security, Fire, & Law Enforcement
- 738X – Human Capital Management and Administrative Support Services
A GSA OLM Ordering Guide is coming soon. In the meantime, check out these resources:
- Training: Understanding Order-Level Materials (OLMs) [PDF – 248 KB]
- Training: Order-Level Materials – Vendor Webinar [PDF – 3 MB]
- Order-Level Materials SIN Description [PDF – 50 KB]
- Summary of Support Item Types for GSA Schedules Program Orders [PDF – 102 KB]
- Order-Level Materials FAQs #1 (April 25, 2018) [PDF – 120 KB]
- Order-Level Materials FAQs # 2 (August 8, 2018) [PDF – 112 KB]
- Download OLM training for federal agency customers and industry partners
This is a guest post by Cy Alba of PilieroMazza PLLC.
With proposals costing hundreds of thousands of dollars and many IDIQs having 50 or more awardees, it can easily happen that some contractors who win a spot on a contract are unable to capitalize on it and simply stop trying to capture task orders. Whether it was because the initial win was based on sheer luck or perhaps because of a tragic, unforeseeable change in circumstances, making it impossible to bid or even keep the company doors open, a contractor may find itself with a shiny new license to hunt, but without the proper tools to successfully compete for and win the actual task orders.
After failing to win any work for usually a year or more, contractors in situations like this may just be looking to recoup the bid and proposal costs or salvage the win. Often, they look to sell their zombie contracts to a more viable candidate. In the past, this was not too difficult, but in recent years, even months, it has become a harder and harder “sell.”
First, it has always been true, yet not fully understood by many, that the sale of a federal contract is prohibited. However, this has always been more of a technical or legal truth than reality. Now, however, agencies have started to question more and more transactions during the novation process, especially in cases where IDIQ contracts without ongoing task orders are sold to other contractors. At some agencies, but particularly GSA, contracting officers are questioning whether a transaction truly includes “all assets needed to perform the contract,” as required by FAR Part 42, or whether transactions are an improper sale of a federal contract.
Many contractors come back with something along the lines of “this is a services contract, there are no assets, just people.” However there are two issues with that statement: (1) it inaccurately admits the improper sale of a federal contract and (2) it ignores the fact that many tangible and intangible assets exist, even when a “naked” IDIQ contract is transferred. Despite what some inside and outside of the government may believe, assets such as proposals, bid strategies, and marketing plans all have real value. Indeed, the proposals themselves for these contracts may have cost hundreds of thousands of dollars to prepare.
Given these facts and recent experience, we recommend that contractors carefully review all possible tangible and intangible assets that are part of a transaction, value each item, and then include them on at least the buyer’s post-transaction balance sheets, if not the seller’s pre-transaction balance sheets when possible, to show the agency the factual reality that there are valuable assets changing hands.
Lastly, we have also seen agencies use purchase terms against contractors. Particularly, terms whereby the seller retains workshare have been used as evidence that (1) the buyer is not capable of performing the work and that (2) not all assets needed to perform the work were transferred. While the existence of a workshare guarantee is evidence of neither, it has not stopped contracting officers from making such conclusions. Thus, given these new interpretations coming out of various agencies, we recommend carefully crafting such provisions going forward and giving full explanations in the novation package cover letter.
While the government enjoys a broad level of discretion when reviewing novations so they are never guaranteed, focusing on these and similar issues can help resolve the government’s concerns as to improper sales of federal contracts. In the past year or so, we have seen a major paradigm shift amongst a number of federal agencies. Thus, if you are buying or selling “naked” IDIQ vehicles, be prepared for a fight on the novation front, regardless of how well crafted the purchase agreement—some agencies will use the smallest excuse to reject a novation as not being in the best interests of the government when, by any reasonable account, it absolutely is.
This post originally appeared on the PilieroMazza blog at https://www.pilieromazza.com/avoiding-flat-tires-when-acquiring-idiq-contract-vehicles and was reprinted with permission.
In a recent blog post we described a procurement method known as other transaction agreements (OTA) that has become increasingly popular to access valuable war-fighting technologies, especially from non-traditional defense companies.
We highlight a structure used by Army Contracting Command – New Jersey (ACC-NJ) that leverages a consortia of companies that agree to participate under a common ruleset to submit white papers in response to the government’s interest in emerging technologies.
10 USC 2371b (Other Transaction Authority for Prototype Projects) provides significant flexibility in how DoD can use OTAs for prototype projects. Another methodology in use by DoD’s Defense Innovation Unit Experimental (DIUx) bypasses the use of consortia and solicits ideas directly from industry with a focus on non-traditional defense companies.
DIUx was stood up in 2016 to “develop new partnerships with the private sector in communities in Silicon Valley and America’s many other great innovation hubs” to “put commercial-based innovation in the hands of America’s soldiers, sailors, airmen and marines.” That same year DIUx initiated a first-of-its-kind acquisition framework called the Commercial Solutions Opening (CSO) by which DIUx solicits solutions to problems that our warfighters are facing.
To effectively work with non-traditional innovators DIUx divided the CSO into several phases: Solicitation, Phase 1 Evaluation, Pitch, Phase II Evaluation, Kick-offs, Proposal, Negotiation and Awards, and OT Modifications as applicable.
In the solicitation phase, DIUx posts areas of interest (AOIs) on its website. Instead of complex requirements and specifications, AOIs describe problems to be solved or particular technologies DoD is interested in. In response to solicitations posted on the DIUx website, companies submit either a short 5-page white paper or a presentation not to exceed 15 slides. In their submission they simply describe their technology and their company.
In Evaluation Phase I, DIUx uses four factors for evaluation:
- Relevance: Is the company’s solution relevant to the AOI?
- Technical merit: Does the proposed solution feasibly address the AOI?
- Business viability: Is the company viable enough to perform the work?
- Innovation: Does the solution represent a truly unique and innovative approach?
If the company receives a favorable evaluation they will be asked to pitch their idea either in person or through video conference. During the pitch phase the company and DIUx discuss the technology and potential use cases in more detail as well as a rough order of magnitude (ROM) of the costs involved.
After the pitch DIUx re-evaluates the technology based on the Phase 1 factors and three additional Phase II factors: cost, schedule, and data rights. Based on a positive evaluation the agreements officer (AO) will issue a Request for Prototype Proposal (RPP).
Once the RPP is issued DIUx schedules a kickoff meeting with the company, the DoD customer and the AO. At the kickoff meeting, the DoD team will explain the proposal process, which is a collaborative process wherein the contractor will develop the statement of work in collaboration with the government. During this process the government team and contractor discuss different ideas and send drafts of the proposal back and forth.
In the proposal process a final statement of work has been collaboratively developed, accordingly the technical aspects of the proposal have already been evaluated and the government performs a final cost/price evaluation based upon non-traditional government methods which might include return on investment.
After evaluation the agreements officer will negotiate the terms and conditions of the OT with the company. Since the government and the company have worked collaboratively, this is usually a relatively quick process. Often the company is willing to sign the baseline OT without any modifications.
Once the project is underway the government may want to modify the scope of the OT based upon requirements changes or even because of emerging technology. As long as the scope changes are within the original AOI, the government and the contractor work together to update the project scope and modify the OT.
The CSO process outlined above and OTs have allowed DIUx to effectively access innovative technologies from non-traditional defense companies. It offers another way to do this without the use of consortia by reaching out directly to the technology companies and leveraging the OT authorities recently given to the Department of Defense.
Early in 2018, Edmund Amorisi of Smith Pachter McWhorter PLC and and Bill Walters of Dixon Hughes Goodman LLP presented a comprehensive summary of the key provisions of the FY 2018 NDAA. As they explained, Sec. 802 emphasizes DoD’s ongoing interest in intellectual property issues.
It directs DoD establish a “cadre of intellectual property experts” to “ensure a consistent, strategic, and highly knowledgeable approach to acquiring or licensing [IP] by providing expert advice” to the acquisition workforce. Sec. 802 also authorizes DoD to contract with a private-sector entity for “specialized expertise” to support the cadre.
Currently there are FAR and DFAR provisions to protect intellectual property, both the portion that the government should own after something new is developed, and the portion that the contractor brings to the table. However, this expertise does not exist in the regular contracting workforce. So this provision really goes into detail about intellectual property and directs the DoD to establish some intellectual property expertise that they can use.
Any company with an innovation will have a real issue about bringing their innovation into the contracting community because they may not be properly protected to keep their IP. Too often contractors don’t pursue their innovative ideas because they don’t want their innovation to become the property of the government.
So this provision is really about allowing innovation to play a part, and that’s a very good thing.
While we at TAPE provide services, other companies provide products, or a combination of the two. In terms of federal contracting, commercial items are all the things that are stuff, for example office supplies like pencils and paper clips.
What Sec. 846 of NDAA 2018 is trying to do is establish Amazon-like online portals where contracting officers and authorized people can simply go online and order their products and commercial items.
That would replace the current process, which in many cases is ordering these supplies off GSA schedules, and will make it easier and more efficient for government buyers to do their job. The problem is whether this takes away opportunities for competition. How do you regulate all of these things?
There is still work to be done to determine who is included in the portal, how search results are delivered, what kind of e-commerce portal do you create, and how this relates to the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS).
Until we figure out these things, I don’t think this portal will happen immediately. There doesn’t seem to be a rush to implement this, and this might be partially because GSA sees this as a competitor to their own portal. But I also don’t think we’ll be waiting too long.
We’ve been taking a closer look at some of the most relevant changes to the 2018 National Defense Authorization Act (NDAA), which includes several provisions designed to reduce the number of protests.
According to the U.S. Government Accountability Office (GAO), “federal agencies are required to award government contracts in accordance with numerous acquisition laws and regulations. If a party interested in a government contract believes that an agency has violated procurement law or regulation in a solicitation for goods or services, or in the award of a contract, it may file a bid protest with our Office.”
With contracting dollars being so tight over the last 10 years, every loss was a big deal, and large losses in particular resulted in long and involved protests. This led to us seeing more and more contracts being protested, which is creating a lot of problems.
So there are a number of things that this provision attempts to do, including to increase the amount of information flow in the debriefing (see: how to take full advantage of a debriefing).
That’s a double-edged sword for both the government and the contractor. On the one hand, it will help bidders better understand the decisions and help them shape future proposals for more success.
For example, they will now allow businesses pursuing contracts of $100 million or greater to see a redacted version of the source selection decision document. This is the recommendation document that goes to the source selection authority (SSA) – the panel that decides who to select among the bids – and is an incredible source of information. Small businesses may request the same disclosure for contracts valued at $10 million or more.
On the other side, these changes will produce a lot more documentation and paper trails, and sometimes when a contractor learns more about a decision, it actually increases the possibility of protest.
Another potential down side is a potential pilot program of charging protesters if they’re unsuccessful when a protest is made and denied. This compensates for the fact that the government has to spend money to defend the protest.
That means you’ll have to really think twice because there is the potential to incur hard costs (where before it was just your legal fees).
The hope in all of this is to get rid of frivolous protests that are only meant to extend existing contracts. Unfortunately, some incumbents who are about to be replaced start a protest knowing that for the 4-6 months while it’s in process, they can still be performing and collecting their money. While the protest is going on the government is prohibited to hire the new company. This is an unfair practice and definitely needs to stop. Time will tell if these changes are successful in doing that.
Simplified acquisition is “a contracting method which seeks to reduce the amount of work the government must undertake to evaluate an offer. Because source selection is less arduous under simplified acquisition, the dollar value of contracts allowable under simplified acquisition …is capped.” (Georgia Tech Contracting Education Academy.)
In the NDAA 2018, this simplified acquisition threshold increased from $100,000 to $250,000, in order to expand opportunities and increase participation of small and disadvantaged businesses – service-disabled, women-owned, small, and small disadvantaged (what used to be known as 8(a)).
What that means is that contracts valued up to $250,000 – a pretty fair amount to most small businesses – don’t have a justification and authorization requirement (known as a J&A). The government contracting officer can just issue a purchase order to the small business.
The Truthful Cost or Pricing Act (TINA) (previously known as the Truth in Negotiations Act) was instituted to protect government agencies from unfair pricing practices by contractors. NDAA 2018 also bumps up the threshold for which contracts need this particular oversight – from $750,000 to $2 million. From a government standpoint, this means fewer regulations associated with a larger pool of contract dollars.
As we head into the year-end federal purchasing blitz, everybody just got their budgets and they have to spend all of their money by September 30th. These changes give small business contractors important opportunities to get bigger amounts of money in sole sourcing.