1
Michelle M. Currier, CPCM, CFCM
Professor of Contract Management
Defense Acquisition University
Acquisition Provisions in Defense
Authorization Bills
90
80
70
60
50
40
30
20
10
0
FY94
FY96
FY98
FY2000
FY02
FY04
FY06
FY08
FY10
FY12
FY14
Sources of FAR Changes
(http://www.acq.osd.mil/dpap/dars/case_status.html
Legislation
IG & GAO Recommendations
Court Decisions
OFPP Policy Letters
Executive Orders
Agency Recommendations
Individual Recommendations
Industry Recommendations
Policy Changes
FAR
DFARS
PGI
CD
Defense Procurement & Acquisition Policy (DPAP)
Operations
Mr. Robert Jarrett
Director
Ms. Claire M. Grady
Contract
Policy/
International
Contracting
(CPIC)
Mr. John Tenaglia
Defense
Acquisition
Regulations
System
(DARS)
Ms. Linda
Neilson
Acquisition
Policy
(AP)
Mr. Skip
Hawthorne
Contingency
Contracting
(CC)
Ms. Barbara
Truillo
Program
Acquisition
(PA)
Ms. Jill Stiglich
Mr. Shay D. Assad assumed the role of Director
of Defense Pricing in June of 2011.
Services
Acquisition
(SA)/
Strategic
Sourcing (SS)
Mr. Kenneth
Brennan
Program
Development
& Implementation
(PDI)
Ms. LeAntha
Sumpter
Better Buying Power 3.0
9 Apr 15
Achieving Dominant Capabilities through Technical Excellence and Innovation
Achieve Affordable Programs
• Continue to set and enforce affordability caps
Achieve Dominant Capabilities While Controlling Lifecycle Costs
• Strengthen and expand “should cost” based cost management
• Anticipate and plan for responsive and emerging threats by building stronger
partnerships of acquisition, requirements, and intelligence communities
• Institutionalize stronger DoD level Long Range R&D Program Plans
• Strengthen cybersecurity throughout the product lifecycle
Incentivize Productivity in Industry and Government
• Align profitability more tightly with Department goals
• Employ appropriate contract types, but increase the use of incentive type
contracts
• Expand the superior supplier incentive program
• Ensure effective use of Performance-Based Logistics
• Remove barriers to commercial technology utilization
• Improve the return on investment in DoD laboratories
• Increase the productivity of corporate IRAD
Incentivize Innovation in Industry and Government
• Increase the use of prototyping and experimentation
• Emphasize technology insertion and refresh in program planning
• Use Modular Open Systems Architecture to stimulate innovation
• Increase the return on and access to small business research and development
• Provide draft technical requirements to industry early and involve industry in
funded concept definition
• Provide clear and objective “best value” definitions to industry
Eliminate Unproductive Processes and Bureaucracy
• Emphasize acquisition chain of command responsibility,
authority, and accountability
• Reduce cycle times while ensuring sound investments
• Streamline documentation requirements and staff reviews
• Remove unproductive requirements imposed on industry
Promote Effective Competition
• Create and maintain competitive environments
• Improve DoD outreach for technology and products from
global markets
• Increase small business participation, including through
more effective use of market research
Improve Tradecraft in Acquisition of Services
• Strengthen contract management outside the normal
acquisition chain – installations, etc.
• Improve requirements definition for services
• Improve the effectiveness and productivity of contracted
engineering and technical services
Improve the Professionalism of the Total Acquisition Workforce
• Establish higher standards for key leadership positions
• Establish stronger professional qualification requirements
for all acquisition specialties
• Strengthen organic engineering capabilities
• Ensure development program leadership for is technically
qualified to manage R&D activities
• Improve our leaders’ ability to understand and mitigate
technical risk
• Increase DoD support for (STEM) education
Continue Strengthening Our Culture of:
Cost Consciousness, Professionalism, and Technical Excellence
Ideas retained from BBP 2.0 and/or BBP 1.0
New in BBP 3.0
Reminders
•
Have you issued your whistleblower protection letters to each of your
employees? As of September 30, 2013 all federal contractors were required to
notify each employee in writing of their whistleblower rights- what they can
disclose, and to whom they can disclose the information, and not be
retaliated against by their employer. If the employee does not speak English,
the letter must be translated for them into their predominant language.
•
Rule prohibits contractor or subcontractor from discharging, demoting or
otherwise discriminating against employees who wish to report fraud, waste
or abuse. Scope of information protected expanded to include disclosures
about “abuse of authority” in the management of a DoD Contract. Old
standard was just mismanagement, waste, violation of law or danger to
public health or safety.
Reminders
• Have you conducted your annual training for each of your
employees on how to prevent and detect human trafficking?
Have you verified your subcontractors prevention and detection
plans?
• Is your workforce comprised of 8% veterans and 7% disabled, or
do you have a written plan to achieve those goals by 2015?
• Have you added sexual orientation and gender identity to your
employee handbook as protected classes that cannot be
discriminated against?
Reminders
• Cost Realism Analysis
– GAO sustained protest where the record shows that
agency’s evaluation was based on the mechanical
application of a government estimate.
– Did not take into consideration each offeror’s
unique technical approach.
– Not consistent with the terms of the solicitation and
applicable statues and regulations.
Historical Title Act
CHANGE TO FAR IS EFFECTIVE 29 MAY 2014
Historical Title of Act
Division/
Chapter/
Subchapter
Title: You can replace
course material with
this name
Anti-Kickback Act
41 U.S.C.
chapter 87
Kickbacks
Brooks Architect-Engineer 40 U.S.C.
Act
chapter 11
Selection of Architects
and Engineers
Other names you could
use to make the course
material clearer or
grammatically correct
 41 U.S.C. chapter
87, Kickbacks
 Kickbacks statute


Buy American Act
41 U.S.C.
chapter 83
Buy American


Contract Disputes Act of
1978
41 U.S.C.
chapter 71
Contract Disputes


Contract Work Hours and
Safety Standards Act
40 U.S.C.
chapter 37
Contract Work Hours and
Safety Standards

40 U.S.C. chapter
11, Selection of
Architects and
Engineers
Selection of
Architects and
Engineers statute
41 U.S.C. chapter
83, Buy American
Buy American
statute
41 U.S.C., Chapter
71, Contract
Disputes
Contract Disputes
statute
40 U.S.C. chapter
37, Contract Work
Historical Title Act
Davis-Bacon Act
40 U.S.C.
Wage Rate Requirements
chapter 31, (Construction)
Subchapter
IV


Drug-Free Workplace Act
41 U.S.C.
chapter 81
Drug-Free Workplace


41 U.S.C. chapter
81, Drug-Free
Workplace
Drug-Free Workplace
statute
Federal Property and
Administrative Services
Act of 1949, Title III.
41 U.S.C.
Procurement
Div. C of
subtitle I*

There is no
consistent name and
USC, so you should
look at the FAR and
DFARS reference in
context of the
material.
Javits-Wagner-O’Day Act
41 U.S.C.
chapter 85

41 U.S.C. chapter
85, Committee for
Purchase from
People Who Are
Blind or Severely
Disabled
Ability One (Check
the reference
before using this,
Committee for Purchase
from People Who Are
Blind or Severely
Disabled

10
40 U.S.C. chapter
31,subchapter IV,
Construction Wage
Rate Requirements
Construction Wage
Rate Requirements
statute
Historical Title Act
Federal Property and
Administrative Services
Act of 1949, Title III.
41 U.S.C.
Procurement
Div. C of
subtitle I*

There is no
consistent name and
USC, so you should
look at the FAR and
DFARS reference in
context of the
material.
Javits-Wagner-O’Day Act
41 U.S.C.
chapter 85

41 U.S.C. chapter
85, Committee for
Purchase from
People Who Are
Blind or Severely
Disabled
Ability One (Check
the reference
before using this,
because referring
to the Ability One
program will not
always make sense)
Committee for Purchase
from People Who Are
Blind or Severely
Disabled

Miller Act
Office of Federal
11 Procurement Policy Act
40 U.S.C.
Bonds
chapter 31,
subchapter
III

41 U.S.C.
Div. B of
subtitle

Office of Federal
Procurement Policy

40 U.S.C. chapter
31, subchapter III,
Bonds
Bonds statute
Office of Federal
Procurement Policy
statute (The USC
Historical Title Act
Service Contract Act of
1965
41 U.S.C.
chapter 67
Service Contract Labor
Standards


Truth in Negotiations Act 41 U.S.C.
chapter 35
Truthful Cost or
Pricing Data
Walsh-Healey Public
Contracts Act
Contracts for
Materials, Supplies,
Articles, and Equipment
Exceeding $15,000.
12
41 U.S.C.
chapter 65
41 U.S.C. chapter
67, Service
Contract Labor
Standards
Service Contract
Labor Standards
statute
The DFARS will remain
Truth in Negotiations
Act (TINA), so if the
material is for DOD
users, TINA is fine. May
have to refer to both
names (FAR AND DFARS)
for learning assets used
by both civilian and
federal gov’t
 41 U.S.C. chapter
65, Contracts for
Materials,
Supplies, Articles,
and Equipment
Exceeding $15,000
 Contracts for
Materials,
Supplies, Articles,
and Equipment
Exceeding $15,000
statute
Thresholds
• Effective October 1, 2015, one final rule amends the FAR to
implement inflation adjustments to acquisition-related
thresholds. Changes include:
• The micropurchase threshold of $3,000 is increased to $3,500.
• The commercial items test program ceiling is increased from
$6.5 million to $7 million.
• The cost or pricing data threshold is increased from $700,000 to
$750,000.
• The prime contractor subcontracting plan floor is increased
from $650,000 to $700,000, while the construction threshold
remains at $1.5 million.
Thresholds
• The threshold for reporting first-tier subcontract information,
including executive compensation, is increased from $25,000 to
$30,000.
• The cost or pricing data threshold and Cost Accounting
Standard threshold are raised from $700,000 to $750,000.
• The simplified acquisition threshold of $150,000 is unchanged,
as are FedBizOpps preaward and postaward notices, which
remain at $25,000. A proposed rule published November 25,
2014, is adopted without change. However, some final
thresholds are lower due to a lower rate of inflation than
projected at the time the proposed rule was published.
New Stuff Coming!
•
•
•
•
•
Contracting officers are prohibited from awarding contracts using FY15 funds
to any contractor that has an adjudicated federal tax liability or has been
convicted of a felony criminal violation of any federal law within the
preceding 24 months.
Women-owned small businesses (WOSBs) now are authorized to receive sole
source contracts up to $4 million (services) and $6.5 million (equipment).
WOSBs MUST BE CERTIFIED BY THE SBA- THEY CAN NO LONGER SELF
CERTIFY.
Small businesses are exempt from fraud penalties for False Small Business
certifications if they relied on written advisory opinions from a SBDC or
PTAC.
The FAR was amended to make it harder for firms to propose uncompensated
overtime as a method for gaining a cost advantage.
Saving Federal Dollars Through Better Use of Government Purchase and
Travel Cards Act (S1616) to examine charge card purchases across
government.
New Stuff Coming!
• FAR rule has been published regarding pass through contracts.
If the prime intends to award subcontracts for more than 70% of
the work effort, the contracting officer must justify continuing
with that contract in writing, or seek to contract directly with the
subcontractor.
– Far 15.404-1(h)(2) COMPETITION REQUIREMENTS STILL
APPLY IF THE CONTRACTING OFFICER SELECTS
ALTERNATIVE APPROACHES
– Far 15.404-1(h)(3) DOES NOT APPLY TO SMALL BUSINESS
SET-ASIDE CONTRACTS
16
Labor Issues
• Fair Pay and Safe Workplaces Proposed
Regulations
• New $10.10 Minimum Wage
• Service Contract Act and GSA Schedules
Interplay
• Nondisplacement of Qualified Workers
• General SCA Compliance Issues
17
New Regulations affecting Service Contracting:
Labor Laws
•
E.O. 13658, Establishing a Minimum Wage for Contractors
– Establish a minimum wage for contractors of $10.10 to be adjusted annually (FAR 22.12, 15 Dec
2014, Interim rule)
•
E.O. 13665, Non-Retaliation for Disclosure of Compensation Information
– Applicants or employees of Federal contractors may discuss compensation without fear of
adverse action (Rulemaking is still at the DOL)
•
E.O. 13673, Fair Pay and Safe Workplaces
– Information to be provided to workers regarding how their pay is calculated and if they are being
treated independent contractors.
– That certain claims brought by workers be adjudicated using arbitration only if voluntarily agreed
to.
– Agencies to appoint a senior labor compliance advisor who will advise contracting officers on
specific procurement actions.
– Disclosure of contractor and subcontractor labor law violations so contracting officers and
contractors, respectively, can consider this information when making responsibility
determinations and during contract/subcontract performance.
•
E.O. 13672, Further Amendments to Equal Opportunity in the Federal Government
18
– Prohibits discrimination in Federal contracting by adding sexual orientation and gender identity
to the prohibited bases of discrimination, which are race, color, religion, sex, and national origin
(FAR Interim rule, 10 April 2015)
Labor Issues
• The Labor Landscape: contracting professionals have a
dizzying array of labor compliance challenges
 New FLSA regulations proposed higher minimum salary
 FLSA Compliance including overtime and employee
categorization
• Exempt employees must be paid as required (salary,
fee, or hourly) Hours worked
• Class actions rising
 Service Contract Act for non-exempt services and DavisBacon Act for construction
 Employee Classification – Employees or Contractors
(1099s)?
19
Labor Issues
• Fair Pay and Safe Workplaces:
– Expected to take effect in 2016
– Proposed regulations issued in May
– Impacts contracts for services and products
– Requires contractors to disclose (in proposal) if
they have labor violations from preceding three
years and update disclosures every 6 mos. after
contract award.
– Contracting agency will make responsibility
determination depending on labor compliance
history
20
Labor Issues
• Fair Pay and Safe Workplaces:
– What is a “violation?” Prospective contractors
bidding on contracts valued over $500,000 would be
required to report whether they have had any
“administrative merits determination,” “arbitral
award or decision,” or “civil judgment” rendered
against them for violation of any one of fourteen
federal labor laws/regulations (or their state
equivalents) within three years of the date the bid or
proposal is submitted. See Proposed FAR 22.2002
(note, DOL will be issuing guidance regarding the
equivalent state laws at some point in the future). 21
Labor Issues
• Fair Pay and Safe Workplaces:
– Reportable violations include restraining orders
issued by a court (including consent injunctions),
summary judgment decisions in a case, or
investigative findings by DOL (such as the
issuance of DOL form WH-56). A DOL investigator
issues a WH-56 form anytime he or she is requiring
the payment of back wages regardless of whether
the contractor is at fault for the “violation.” For
instance, with respect to the McNamara-O’Hara
Service Contract Act of 1965 (the “SCA”),
sometimes the payment of back wages is triggered
by the contracting agency’s failure to include the
SCA statute and appropriate wage determination
into the contract – a circumstance where a
contractor has no fault. See Proposed FAR
22.2002.
22
Labor Issues
• Fair Pay and Safe Workplaces:
– What happens next? If a contractor’s proposal
is considered for award, the prospective
contractor would be required to enter the
following information regarding the violation
into the System for Award Management
(“SAM”): the labor law violated, the case
number or other unique identifying number, the
date rendered, and the agency, panel, or court
that issued the decision. See Proposed FAR
22.2004-2(b)(1)(i).
23
Labor Issues
• Fair Pay and Safe Workplaces:
– Contracting agencies, in consultation with their
internal agency labor compliance advisors (“ALCA”
– a new position created by the Proposed FAR
Regulations), would be required to make an
affirmative determination prior to awarding a
contract in excess of $500,000 as to whether the
prospective contractor is a responsible source. This
analysis is in addition to the existing present
responsibility analysis under Federal Acquisition
Regulation (“FAR”) Part 9. See Proposed FAR
22.2004-2.
24
Labor Issues
• Fair Pay and Safe Workplaces:
– How are subcontractors impacted? Prime contractors would also
be required to make responsibility determinations regarding their
proposed subcontractors if the subcontract is estimated to exceed
$500,000 and is not for the supply of Commercial Off The Shelf
(“COTS”) items (this requirement is supposed to be passed down to
each lower tier subcontractor). See Proposed FAR 22.20041(b). Prime contractors are encouraged to consult with DOL to help
in making responsibility determinations. In addition, in some
circumstances (particularly when a subcontractor with previous
violations has not entered into a Labor Compliance Agreement),
prime contractors will be required to report an affirmative
responsibility determination to the contracting agency.
25
Labor Issues
• Fair Pay and Safe Workplaces:
– Consequences (Unintended and Intended):
– Increase in bid protests challenging responsibility
determinations
– More publicly available information regarding labor
violations
– Double trouble: a second punishment for contractors who
have labor violations
– Increase in court settlements to avoid reporting
– More expensive contracts with a smaller pool of
contractors
26
– Three year look-back starts now!
Labor Issues
• Fair Pay and Safe Workplaces:
– There are also provisions regarding
paycheck transparency and employee
arbitration
– Comments are due August 11
27
Labor Issues
• $10.10 Minimum Wage:
• $10.10 Minimum Wage EO is now a final regulation and
applicable to all new procurements (after Jan. 1, 2015).
• Impacts SCA, DBA and certain other contracts
• Pop Quiz: is it applicable to options that occur after January
1, 2015?
• Requires minimum wage payments to workers on contract
and certain other support workers
• Violations could result in debarment and payment of back
wages
28
Labor Issues
•
$10.10 Minimum Wage:
– WDs not being updated – disclaimer on the front:
– Note: Executive Order (EO) 13658 establishes an hourly minimum wage of
$10.10for 2015 that applies to all contracts subject to the Service Contract Act for
which the solicitation is issued on or after January 1, 2015. If this contract is
covered by the EO, the contractor must pay all workers in any classification listed
on this wage determination at least $10.10 (or the applicable wage rate listed on
this wage determination, if it is higher) for all hours spent performing on the
contract. The EO minimum wage rate will be adjusted annually. Additional
information on contractor requirements and worker protections under the EO is
available at www.dol.gov/whd/govcontracts.
29
Labor Issues
• SCA/GSA Interplay:
– SCA clause and all WDs in all GSA Schedules
– Burden on contractor to determine applicability
of SCA
– Burden on contractor to choose the correct WD
– Ordering agency not expected to include
specific WD
– Guidance coming from DOL?
30
Labor Issues
• The Non-Displacement of Qualified Workers: requires incoming
contractors (with exceptions) to hire the non-exempt SCAcovered workforce.
 Outgoing contractors required to provide employee list with
anniversary dates to contracting officer 30 days prior to the
end of the contract.
 The contracting officer must forward list to incoming
contractor.
31
Labor Issues
 Incoming contractors must provide bona fide offers to incumbent
workforce except:
• Changes with written bona fide staffing plan.
• Outgoing contractor takes their staff.
• Incoming contractor has its own staff.
• Poor performance by worker.
• Note: burden on contractor to prove exemption.
 Some practical issues include:
• No new requirements by incoming contractors.
• Pricing is difficult.
• Even if employee not on list, must be given offer.
• Complaints must be made within 120 days of start of contract.32
Labor Issues
•
SCA Compliance Issues:
– More investigators and investigations
– Basic requirements: (1) pay according to WD/CBA, (2) benefits (H&W,
vacation, and holiday), and (3) notification of SCA applicability
– Pitfalls include benefits for PT and temporary workers, “volunteer”
work, properly counting hours worked, agency failure to include
SCA/WD in contract
– Get help during an investigation
33
Labor Issues
• Affordable Care Act - How is H&W Impacted? Depends whether
ACA benefits are required because SCA benefits cannot
otherwise be required by law.
• The Supreme Court addressed the issue as to whether the ACA
required an employer to provide health insurance in National
Federation of Independent Businesses v. Sebelius, 132 S.Ct. 2566
(2012).
• Because, under the ACA, no one has to actually provide health
insurance, it is not a requirement that would prevent one from
counting it for SCA purposes.
34
Cyber
•The Scary Cyber Landscape
•Keith Alexander: the “loss of industrial information
and intellectual property through cyber espionage”
the “greatest transfer of wealth in history.”
•Tony Scott (federal gov’t CIO): protections instituted
by contractors were “inconsistent” and federal
agencies failed to have proper “contractual language,
policy direction, or awareness” as to how they
should respond to breaches.
35
Cyber
•The Scary Cyber Landscape
• 67K cyber incidents on systems supporting
federal government in 2014
• Of 24 agencies reviewed by GAO, 23 were
not cyber ready
• VA failed its cybersecurity audit for the 16th
straight year (1.2m malware attempts in
April)
• GAO: Healthcare.gov lacks proper cyber
protections
• HBGary provides a cautionary tale (you will
be hacked)
36
Cyber
Federal Agencies Racing…
•NIST Leads the Way
•DOJ, GSA, DoD, and others release guidance
•Guidance may be used against contractors (legally
or for responsibility determinations) if there is a
breach
37
The OPM Breach
38
OPM Breach
•Who is impacted? 22.1 million people including government
employees and contractor employees and their families. Included
was James Comey – FBI Director.
•What was stolen? Highly sensitive information including social
security numbers, health records, criminal records and 1.1 million
fingerprints.
•What are the consequences? Individuals’ information can be sold
and there is a fear that the information can be used to “out”
spies.
•Army blocked OPM e-mail…
39
New DFARS 252.204-7012
Highlights:
–Applies to Unclassified Controlled Technical Information (any
information that has military or space application);
–Must be inserted into every DoD contract: no exemption for
small businesses and commercial buys;
–Must be flowed down to subcontractors;
–Establishes minimum security controls for safeguarding
Unclassified Controlled Technical Information; and
–Requires disclosure to DoD within 72 hours of breach – no safe
harbor.
40
New DFARS 252.204-7012
• Some of the 50+ Requirements:
–AT-2: Contractor must provide security awareness training.
–CM-7: Configuration of the system provides only essential capabilities.
–IA-5(1): Requirement regarding passwords – encryption, type, etc.
–IR-2: The organization provides incident response training.
–PE-2: Maintains list of individuals with physical access to facility where information systems
resides.
–PE-3: Maintains physical access logs, escorts visitors and monitors visitor activity.
–RA-5: Scans for vulnerabilities.
–SC-4: Prevents unauthorized transfer of information using shared system resources.
–SC-28 (and others): Requires encryption of information.
–SI-4: Monitor system to detect attacks and potential attacks.
41
New DFARS 252.204-7012
Some Practical Issues:
• Applies to subcontractors and vendors supplying
your IT
• Penalties can include contract administration
actions (termination)
• Contracts should be getting certifications from
subcontractors where possible
• Agencies should be monitoring contractor
compliance
42
Data Vulnerability
•
Safeguarding Unclassified Controlled Technical Information, DFARS 204.73, 18
Nov 2013, PGI 204.73, 16 Dec 2014
–
–
•
Requirements Relating to Supply Chain Risk, DFARS 230.7306, 18 Nov 2013
(Interim Rule)
–
•
•
Requires the contractor to safeguard DoD unclassified controlled technical information within the
contractor’s unclassified information systems and report the compromise of unclassified controlled
technical information, such as technical data, computer software, and other technical information
Procedures for requiring activity and contracting officer when a solicitation is expected to result in a contract
with CTI.
Provision and clause for inclusion in all solicitations and contracts, including contracts for commercial items
or COTS items involving the development or delivery of any information technology, but only applies to
National Security Systems
Basic Safeguarding of Contractor Information Systems (Proposed FAR Case
2011-020)
–
Will add subpart at 4.17, Basic Safeguarding of Contractor Information Systems
–
Contractor must protect Federal Gov’t information transiting through the contractors information systems
and report information breaches to the Gov’t. Gov’t will have access to computers to analyze breach.
Class Deviation, Contracting for Cloud Services, 9 Feb 2015
– Rules and contract clauses when procuring cloud services
– Associated cyber incident reporting
Controlled Unclassified Information (CUI)
DFARS 252.204-7012 Safeguarding of Unclassified
Controlled Technical Information
• Examples: credit card and healthcare
information, background and law enforcement
records, IRS tax records, patent submissions,
technical data to develop satellites,
communication systems, infrastructure and
weapons.
• Most information stolen in security breaches is
CUI.
Controlled Unclassified Information (CUI)
• Contractors’ information system must at a minimum comply
with NIST Special Pub 800-53 relating to 14 factors including
access control, awareness and training, audit and
accountability, CM, contingency, planning, identification and
authentication and incident response
• Mandatory 72-hour Cyber Incident Reporting with No Safe
Harbor on Compliance
• All DoD contractors and subcontractors including commercial
and small business contracts if contractor has access to or
stores “controlled technical information”
Controlled Unclassified Information
(CUI)
• Be ready!
• Evaluate if you have or use CUI, consider the type of
CUI and the nature of the safeguards as expected by
NARA and by 800-171
• Determine if you conform to the objectives of 800-171,
gaps and find cost-effective means to close them
• Burden not as great as expected
– Use commercial cyber security best practices
instead of government-specific ones
FITARA – The Federal IT Acquisition Reform Act
•
47
Federal Information Technology Acquisition Reform Act (FITARA)
– Implementing guidance coming from OFPP
– Improve how the federal government acquires, implements and manages
its IT investments
– CIOs more authority over the budget, governance and personnel
processes
– TechFAR Handbook- guidance to use existing authorities for software
development procurements
– Digital Services Playbook- propose services on an incremental and
iterative basis
– Reduce government’s commitment to failing contract solutions
– Allow contractors to propose solutions that meet government needs
without having to incorporate predefined solutions
FITARA – The Federal IT Acquisition Reform Act
• Requires CIOs to be involved in IT acquisition,
budgeting, and hiring
• Final regulations issued June 10
• Self assessment and implementation plan due
August 15
• Baseline requirements must be met by
December 31
48
CIO Role in IT Management
49
FITARA
•How is cybersecurity impacted? Federal CIO
Tony Scott said: “While there's nothing specific
in FITARA about cybersecurity, this is going to
be one of the great benefits of FITARA: a greatly
improved cybersecurity posture…[t]he very first
thing in cybersecurity is understanding what's of
value and being very clear about that … Once
you understand what's of value and you figure
out a management strategy of how to protect it,
that's the beginning step in having an effective
cyber strategy.”
Source: Federal Times
50
Crystal Ball-What’s Next??
•Contractors will have to pay close attention to
cybersecurity compliance (see USIS)
•Agencies will come under closer scrutiny
•Legislation is rushing to the forefront and more
regulations are coming
51
The Small Business Programs
DoD Directive 4205.01, March 10, 2009
• It is DoD policy that a fair proportion of DoD total purchases, contracts,
subcontracts, and other agreements for property and services and for
sales of property, be placed with Small Business Programs:
–
–
–
–
–
–
–
–
–
–
Small Business (SB),
Veteran-Owned Small Business (VOSB),
Service-Disabled Veteran-Owned Small Business (SDVOSB),
Historically Underutilized Business Zone Small Business (HUBZone),
Small Disadvantaged Business (SDB),
Women-Owned Small Business (WOSB),
Historically Black Colleges and Universities and Minority Institutions (HBCU/MI),
DoD Pilot Mentor-Protégé Program,
Indian Incentive Program,
Small Business Innovation Research (SBIR), and Small Business Technology Transfer
(STTR)
and that such small businesses have the maximum practicable opportunity
to participate as subcontractors in DoD contracts, consistent with efficient
contract performance.
SET-ASIDE COMPETITIVE
PROGRAM ` ACTIONS >$3000 AND <
SAT
SMALL
BUSINESS
8(A)
Automatically reserved for
set-aside for small
business if two or more
offers anticipated FAR
19.502-2(a)
KO may set-aside prior to a
small business set-aside
COMPETITIVE
ACTIONS >SAT
SOLE SOURCE
May be set-aside if not suitable for other SB
programs, i.e, 8(a), HUBZone, WOSB,
or SDVOSB FAR 19.502-2(b)
No authority
Shall consider set-aside if greater than $6.5M
for manufacturing and greater than $4M for
all other acquisitions – may offer to SBA for
competitive contract
If < $6.5M for manufacturing and $4M
for all other acquisitions – may offer to
SBA for sole source contract. J&A
required if action is > $20M
HUBZONE KO may set-aside prior to a Shall consider set-aside if two or more offers If <$6.5M for Mfg and < $4M for all other
small business set-aside
SDVOSB
anticipated.
If the requirement is currently in the 8(a)
program, must remain in 8(a) program unless
released by SBA
acquisitions, and no reasonable
expectation of more than one HUBZone
offer and award can be made at fair and
reasonable price.
No sole source authority under SAT
KO may set-aside prior to a Shall consider set-aside if two or more offers
small business set-aside
anticipated.
If the requirement is currently in the 8(a)
program, must remain in 8(a) program unless
released by SBA
If <$6M for Mfg and < $3.5M for all other
acquisitions, and no reasonable
expectation of more than one SDVOSB
offer and award can be made at fair and
reasonable price
KO may set-aside prior to a Shall consider set-aside if 2 or more offers
WOSB /
anticipated within the appropriate NAICS.
EDWOSB small business set-aside
53
within the appropriate
NAICS
If the requirement is currently in 8(a)
program, it must remain unless released by
No sole source authority for this
program.
Small Business
2013 NDAA Implemented
•Two substantive changes to the law governing limitations on
subcontracting – Section 1651 of Public Law:
• New limitations for service contracts are now based on the
total amount paid to the small business, not the cost of
the contract incurred for personnel
• Does not count against performance requirements when
subcontracting to other “similarly situated” small
businesses
54
Small Business
•
Under the old law, a small business had to incur at 50% of the labor costs of
the contract for its own employees (services contracts). The same rule
applied for supply contracts, minus the cost of material. Profit and/or fee was
not included in the calculation.
•
Under the new law no calculations are needed. The prime cannot subcontract
more than 50% of the contract value for service contracts, or 50% of the
contract value for supply contracts, less material costs.
Prime contractors may meet the performance requirements by
subcontracting to other “similarly situated” small businesses-i.e. those either
small under the same standard or participating in the same SB program.
•
– If a subcontractor is a “similarly situated” SB its work does not count against the limitation
on subcontractors. The new rule treats the “similarly situated” subcontract as if the prime
performed the work.
•
.
Small Business
New Fines and Penalties
• The penalty for violations is the greater of either
$500,000 or the dollar amount spent in excess of the
permitted levels for subcontracting
• Material misrepresentations
• Prime Contractor is responsible and must certify
compliance in its offer
56
Small Business
Joint Ventures
•SBA is proposing to allow small businesses to compete on any
size contract as long as each business is small
•Simplifies eligibility requirements for joint venture members.
Currently JVs are qualified only when all members are small and:
• (1) the procurement is bundled; or
• (2) the procurement value exceeds half the size standard
of the applicable NAICS code (or $10 million dollars for
employee-based NAICS codes)
•Purpose: to encourage more small business joint venturing,
57
and to extend the “similarly situated” benefits to joint ventures
Changes to Small Business
• Rothe Case (FAR 19.11 and 19.12): Deletion of Price Evaluation Adj,
95% progress payment rate, use of evaluation factor for SDB’s,
10/14/14
– Keeps other SDB incentives such as 5% goal and evaluation of prime
contractors subcontracting plan for SDBs.
• Extension of Test Program for Negotiation of Comprehensive SB
Subcontracting Plans to Dec 2017, Deviation 2015-O0006, 12/24/14
• Socio-economic Parity, FAR rule, 3/2/12
– SVOSB, 8(a), WOSB, HUBZone are equal
– If contractor eligibility is protested or appealed, the KO cannot make award
until SBA determination is made (15 days), FAR 07/25/14
• Accelerated Payments to Small Business Primes and
Subcontractors, 08/01/14
• Contract Consolidation, Deviation 10/01/13
– $6M threshold changed to $2M for justification
Small Business and Multiple Award
Contracts (MAC’s)
• FAR part 8 and 19
– KO’s can make set-asides against MAC’s
– Set asides can be SB, HUB,WOSB, SDVOSB
– Also applies to Orders and BPA’s
• July 12, 2012 DPAP Policy Letter
“For all prospective new MAC’s w/SB contract holders where order set
asides many be appropriate, commit to using order set asides unless a
determination is made … that there is not a reasonable expectation of
obtaining offers from two or more responsible SB concerns that are
competitive in terms of market prices, quality and delivery”
• Jan 13, FPDS was modified to allow agencies to record the
action of set-aside at the order level
Woman Owned Small Business
• Authorizes set-asides for eligible:
– Women-Owned Small Businesses (WOSBs) or
– Economically Disadvantaged Women-Owned Small
Businesses (EDWOSB)
• No sole source authority (Yet!)
• Set-aside for two or more within appropriate
NAICs codes
• KO’s have to check for eligibility at WOSB
Program Repository
https://eweb.sba.gov/gls/dsp_login.cfm
www.sba.gov/wosb
Small Business: BBP 2.0
• New Small Business Career Field, effective 1 Oct 2014
– 500 personnel in the new career field, 1101’s
– They don’t have to come from contracting
– New certification program and courses begin Oct 16
• Director SB will review all MDAP strategy documents
• SB will develop annual procurement forecasts
• New MAXPRAC tool to assist in market research to achieve
small business goals
• http://www.acq.osd.mil/osbp/ or
https://extranet.acq.osd.mil/osbp/maxprac.html
Are you thinking about these?
•Upcoming Deadlines
•Quick Update and What to Expect
– Sequestration
– Shutdown
– Debt Ceiling
– VA Shutdown possible in next few weeks
62
NDAA 2015
• 2015 NDAA Section 804: requires Congress to report on
the commercialization of IT acquisition
• 2015 NDAA Section 813: extends cap on DoD services
• 2015 NDAA Section 823: allows DoD PTAPs to provide
education about the Arms Export Control Act
• 2015 NDAA Section 824: prohibits reverse auctions if
there is only one bidder and are not always compliant
with procurement regulations and prohibits such
auctions for DoD design-build contracts
• 2015 NDAA Section 857: costs related to Congressional
investigations are unallowable
63
NDAA 2015
• 2015 NDAA Section 912: repeals requirement for GAO
to report on DoD service contract inventory
• 2015 NDAA Section 1230: construction projects that
cannot be physically inspected by the Government over
$1 million are prohibited
• 2015 NDAA Section 1632: requires DoD to develop a
plan regarding reporting of cyber intrusions of
contractor “operationally critical” responsibilities
• 2015 NDAA Section 2711: affirms Congressional intent
to reject further base closures.
64
Protests
• Contractors generally have three options when
protesting an award:
• Court of Federal Claims
• Government Accountability Office
• Agency
• Each has advantages/disadvantages
• Despite the chatter, bid protests are not on the rise
65
Protests
66
Protests
• Proposed 2016 NDAA requires DoD to
determine whether contractors are gaming the
bid protest process.
• More specifically, DoD is supposed to analyze
whether:
• Incumbent contractors filed protests to draw
business away from the new contract and
• Contractors filed protests knowing they
lacked merit
67
Protests
Be mindful of perceived unfair competitive advantages
Lesson learned: Agencies must consider whether
former government official had non-public competitive
information that gave offeror an unfair competitive
advantage.
Case Name: International Resources Group
68
Protests
Bait and switch difficult to establish
Lesson learned: Bait and switch is an attractive protest
ground, but must show a misrepresentation that was
relied on by the agency and had a material impact on the
procurement. Even though awardee (EY) was recruiting
incumbent’s personnel after contract award does not
mean bait and switch occurred.
Case Name: IBM U.S. Federal
69
Protests
Federal Supply Schedules Rule of Two
Lesson learned: Rule of Two is inapplicable to Federal
Supply Schedules. The Government does not have to
consider whether two small businesses can perform.
FSS is excluded from FAR Part 19.
Case Name: Walker Development and Trading Corp.
70
Protests
Agencies Must Evaluate Consistent With Criteria
Lessons learned:
1.When conducting a best value tradeoff analysis, cost
must be considered.
2.When evaluating past performance, agency must
consider past performance information that is close at
hand.
Case Name: DKW Communications, Inc.
71
Protests
Contractors Must Re-Submit Proposals
Lesson learned: if the agency modifies a solicitation
following the submission of a proposal and calls for
revised proposals, the contractor cannot rely on the
initial proposal. A new proposal is required.
Case Name: Northstar Location Services
72
Protests
COFC: Attorneys’ Fees Available
Lesson learned: if the agency takes corrective action
that is not reasonably justified, attorneys’ fees are
available under the Equal Access to Justice Act (small
businesses only).
Case Name: WHR Group
73
Protests
Federal District Court: DBA Does Not Apply to CityCenter
Lesson learned: Davis-Bacon Act does not apply to construction
projects that serve the public interest if the government’s only
interest was providing a ground lease and design requirements
for the project.
Case Name: District of Columbia v. Department of Labor
Case to be argued on appeal on September 10.
74
SB Subcontracting Improvements
Proposed FAR rule in Development
• Prime contractor must notify the KO in writing if
it does not use the SB subcontractors set forth
in it offer
• KO monitor and evaluate prime’s adherence to
its subcontracting plan
• Clarifies which subcontracts must be included
in the prime’s subcontracting data reporting
• Funding agencies allowed to receive
subcontracting credit for FSS and GWAC orders
Proposed Rules
•
FAR Case 2014-018, Contractors Performing Private Security Functions,
published on May 27, 2015. This proposed rule proposes to amend the FAR to
remove the distinction between Department of Defense (DoD) and non-DoD
agency areas of operation applicable for the use of FAR clause “Contractors
Performing Private Security Functions Outside the United States” and
provide a definition of “full cooperation” within the clause. The public
comment period closes July 27, 2015.
•
FAR Case 2014-025, Fair Pay and Safe Workplaces, published on May 28,
2015. This proposed rule proposes to amend the FAR to implement the
Executive Order “Fair Pay and Safe Workplaces,” which is designed to
improve contractor compliance with labor laws and increase efficiency and
cost savings in Federal contracting. The public comment period closes July
27, 2015.
Proposed Rules
•
•
•
FAR Case 2015-019, Definition of Multiple-Award Contract, published on June
2, 2015. This proposed rule proposes to amend the FAR to define multipleaward contract. The public comment period closes August 3, 2015.
FAR Case 2014-015, Consolidation and Bundling of Contract Requirements,
published on June 3, 2015. This proposed rule proposes to amend the FAR to
implement sections of the Small Business Jobs Act of 2010 and regulatory
changes made by the Small Business Administration, which provide for a
Government-wide policy on the consolidation and bundling of contract
requirements. The public comment period closes August 3, 2015.
FAR Case 2014-003, Small Business Subcontracting Improvements,
published on June 10, 2015. This proposed rule proposes to amend the FAR
to implement regulatory changes made by the Small Business
Administration, which provide for a Government-wide policy on small
business subcontracting. The public comment period closes August 10, 2015.
Final rules
•
•
FAR Case 2014-022, Inflation Adjustment of Acquisition-Related Thresholds
This final rule amends the FAR to implement the inflation adjustment of
acquisition-related dollar thresholds. 41 U.S.C. 1908 requires an adjustment
every 5 years of acquisition-related thresholds for inflation using the
Consumer Price Index for all urban consumers, except for the Construction
Wage Rate Requirements statute (formerly Davis-Bacon Act), Service
Contract Labor Standards statute, and trade agreements thresholds. This
rule will become effective on October 1, 2015.
FAR Case 2015-006, Prohibition on Contracting with Inverted Domestic
Corporations – Representation and Notification. This final rule amends the
FAR to require additional actions by contractors to assist contracting officers
in ensuring compliance with the Government-wide statutory prohibition on
the use of appropriated (or otherwise made available) funds for contracts
with any foreign incorporated entity that is an inverted domestic corporation
or to any subsidiary of such an entity.
This rule will become effective on
November 1, 2015.
Final Rules
•
•
FAR Case 2015-008, Update to Product and Service Codes. This final rule
amends the FAR to update the descriptions of Federal product and service
codes related to exemptions from services contract labor standards, to
conform to the current Federal Procurement Data System Product and
Service Codes Manual. This rule will become effective on August 3, 2015.
FAR Case 2014-020, Clarification on Justification for Urgent Noncompetitive
Awards Exceeding One Year. This final rule amends the FAR to clarify that a
determination of exceptional circumstances is needed when a
noncompetitive contract awarded on the basis of unusual and compelling
urgency exceeds 1 year, either at time of award or due to post-award
modifications. This rule will become effective on August 3, 2015.
Final Rule
•
•
FAR Case 2014-017, Prohibition on Contracting with Inverted Domestic
Corporations. This rule adopts as final, without change, a previously issued
interim rule that amends the FAR to address the continuing Government-wide
statutory prohibition on the use of appropriated (or otherwise made available)
funds for contracts with any foreign incorporated entity that is an inverted
domestic corporation (under 6 U.S.C. 395) or to any subsidiary of such entity.
The interim rule was effective on December 15, 2014, and the final rule is
effective on July 2, 2015.
FAR Case 2015-010, Permanent Authority for Use of Simplified Acquisition
Procedures for Certain Commercial Items. This final rule amends the FAR to
make permanent the authority to issue solicitations under subpart 13.5. This
rule will become effective on August 3, 2015.
What’s Happening on the Hill
•
•
•
•
A bill was introduced in the senate to allow a surviving non-veteran spouse of
a service disabled veteran who owned an SDVOSB company to retain that
designation and the benefits that go with it for up to three years after the
veteran’s death, if the death was unrelated to the service disability. This is
likely to become law next year.
Both the house and senate are looking at expanding the definition of
“hubzone” tracts to include areas around a base being closed pursuant to a
BRAC statute.
2016 NDAA, Simplified Acquisition Threshold $150,000 to $500,000. Passed
the House not the Senate.
The SBA issued proposed rules greatly expanding the mentor-protégé
program and making multiple substantive changes to the program, including
limiting the number of protégés a mentor can have to three (3) total.
Promote Real Competition
BBP 1.0/2.0
• Continue to emphasize continuous competition
– Competitive prototypes, dual sourcing, subcontractor
competition…
• Use open systems architecture (OSA)and manage
technical data rights
– Allows for greater competition through the lifecycle
• Effectively use prototypes to reduce risk early in the
Technology Development phase.
– Increase use of competition in early development
• Only One Offer to do effective competition
– Go out for 30 more days if necessary to get competition, or if
only one, do cost analysis.
Competition
• BBP 3.0 Continues Emphasis on Competition
– Create and maintain competitive environments with direct or
subcontracting competition, or competitive pressure
– Reach out to global allies with co-research, co-development
– Improve MR in order to find Small Businesses
• “Guidelines for Creating and Maintaining a Competitive
Environment for Supplies and Services in the Dept of
Defense”, December 2014
– Overcome: status quo, time constraints, scope creep,
restrictive or poor requirements, etc.
– Improve: continuous market research, keeping industry
informed, performance based requirements, data
rights/computer software strategy, etc.
Actions to Improve DoD Competition
•
USD(AT&L) memorandum dated August 21, 2014, “Actions to Improve
Department of Defense Competition” and caused changes to the PGI
– Issues “Guidelines for Creating and Maintaining a Competitive Environment for Supplies
and Services in the Department of Defense, Dec 2014”
– PGI 215.371-2 Requires Contracting Officers to solicit feedback from companies that
expressed interest during the market research phase of an acquisition that resulted in only
one offer on why they did not submit an offer. (kept in contract file with source selection
documents)
– PGI 206.302-1 Require Contracting Officers to use RFI’s or Sources Sought notices before
soliciting non-competitive acquisitions and to include results of this inquiry in the
applicable justification document.
84
– PGI 206.303-2, 206.304 ,208.405-6, and 216.505 Justifications for non-competitive follow-on
acquisitions of the same supply or service, shall include the prior J&A as part of the new
J&A package to determine whether actions to remove barriers to competitions were
completed.
Source Selection
Estimated Frequencies of Source Selection Approaches Used in Fiscal
Year 2009 for New, Competitively Awarded DOD Contracts Obligating over
$25 million
Sealed bid
Non-cost factors more
important than price
Lowest price technically
acceptable
Recent GAO findings state
LPTA has increased up to
39%
Non-cost factors
less important than
price
GAO Report 11-8, Figure 2
Non-cost factors
equal to price
Source Selection
• Appropriate Use of LPTA and Associated Contract Type,
Mr. Kendall Memo, 4 March 2015
– Clear, but limited place in “Best Value” continuum
– Only applies if we can clearly define the requirements and can do
a technical evaluation based on “acceptable/unacceptable”
– If these standards are subjective, then LPTA is not appropriate
– Can be appropriate for commercial and non-complex supplies and
services
– Think about using CPFF LOE in Knowledge-based Services
because it is well-suited to these requirements
Source Selection
• BBP 2.0 and 3.0 Sustained Superior Supplier Program
– Recognize higher performing industry partners based on past
performance evaluations
– Service specific implementation
– Higher weight for more recent performance
• BBP 2.0 and 3.0 Clear Best Value Definitions
– How much $ are we willing to pay for higher levels of performance than
minimal or threshold levels?
– Anxiously awaiting the May 2015 Modification to the DOD Source
Selection Guide
87
Improving Acquisition of Services
• Service Acquisition Governance
– New DoDI 5000.ac, “Defense Acquisition of
Services” will complement the recently issued
– DoDI 5000.02, “Operation of the Defense Acquisition
System” by focusing solely on services
– Provides management and oversight of contracted
services by encouraging DAU Service Acquisition
Process for standardization.
– Implement and strengthen the requirements
validation process by utilizing a Services
Requirements Review Board (SRRB)
Improving Acquisition of Services
• Services acquisitions are predominately
decentralized
– Each service acquisition recreates information it
needs each time and
– DoD loses the buying power of acting as a single
buyer
• USD(AT&L) appointed senior DoD officials as
Functional Domain Experts (FDE) for specific
portfolios
Contracting Officer Representative
• DoDI 5000.72, “DoD Standard for Contracting
Officer’s Representative Certification, March
2015
– Supplements FAR/DFARS 201.602-2
– Applies to all requiring activities, CORs and supervisors of
CORs, and Contracting Officers delegating COR
responsibility
– Do you know if you meet or exceed this standard?
Past Performance
• Standardization of Evaluation Factor and Performance Ratings
(FAR subpart 42.15)
– Mandatory entry of all PP information in CPARS
– Minimum of Annual Evaluations; Standard Factors (including
SB subcontracting);Five Scale Adjectival Rating System
– Appeals Process Remains Intact
– New Thresholds for DoD Contracts (CD)
– Offerors must take responsibility to ensure availability of
necessary PP information
– Solicitations can be unduly restrictive if they prohibit
consideration of PP of offeror’s affiliates
Insufficient Discussions
• Agency not required to discuss every weakness
appearing in a pricing proposal
• Only significant weaknesses, not all
weaknesses, must be discussed
• Agency not required to advise offer that its price
was higher than those of its competitors
Commercial Items
• 24 Dec 2014 Deviation, FAR 13.5, Permanent Authority
for use of the Simplified Acquisition Procedures for
Certain Commercial Items
― Test program for commercial items $150K<X<$6.5M
― Congress made permanent in 2015 NDAA
• 25 June 2013, DFAR 212.301(f), Simplification of
solicitation provisions and contract clauses
– Makes it clear which provisions and clauses apply to
commercial item and which flow down to commercial
subcontracts.
– 24 Sept 2013 Deviation allows SPS to automatically select the
clauses
Commercial Items
• Commercial Items and Determination of Reasonableness of
Price, Feb 15 DPAP memo
– Timeliness: KO’s need to make a determination of
“commercial of a type” within 10 days of assembling support
data
– Pay Fair and Reasonable Price: Must evaluate for price
reasonableness; If market pricing isn’t available or sufficient,
KO’s may use cost data
– Changes to DFAR, PGI and Commercial Item Handbook is
coming
– Due to heightened audit and oversight attention, DON’T
ASSUME PRODUCTS AND SERVICES PREVIOUSLY
ACCEPTED AS COMMERICAL ITEMS WILL BE IN THE
FUTURE!
Contractor Business Systems
• Contractor business systems and internal controls are
the first line of defense against waste, fraud, and abuse
• Weak control systems increase the risk of unallowable
and unreasonable costs on Government contracts
• Contractor business systems:
−
−
−
−
−
−
Accounting Systems
Estimating Systems
Purchasing Systems
Earned Value Management Systems (EVMS)
Material Management And Accounting Systems (MMAS)
Property Management Systems
Contractor Business Systems
• Feb 24, 2012, DoD Final Rule
• KO’s must include DFARS clause 252.242-7005 in all CAS
covered contracts/TO/DO after August 16,2011 (not small
business)
• Business Systems Clause allows the KO (generally ACOs) to
withhold a percentage of payments when a contractor's business
system contains significant deficiencies
• Payments could be withheld using:
• Interim payments under:
–
–
–
–
•
•
Cost reimbursement contracts
Incentive type contracts
Time-and-materials contracts
Labor-hour contracts
Progress payments
Performance-based payments
FSS/GWAC/MAC
• Reasonable Fees for Assisted Acquisitions, 11 June 14
Policy Ltr
– Know and document the fees when using non-DoD vehicle if the
assisting agencies approach is to use another agencies contract
vehicle
• Priorities, FAR 7.102 and 8.002/4, Effective 30 Jan 14
– No Mandatory Schedules. Consider existing contracts, including interagency and intraagency contracts before awarding new contracts, especially GWAC, FSS, MACs.
• Interagency, DFAR 217.7802 and FAR 17.7, July 2013
– A DoD acquisition official may acquire supplies or services for DoD in excess of the
simplified acquisition threshold through a non-DoD agency only if the head of the nonDoD agency has certified that the non-DoD agency will comply with defense
procurement requirements including DoD financial management regulations, Class
Deviations, and PGI.
Business Case for GWACS and MACS
• OFPP memo, dated 29 Sept 11, FAR change on 3 Jan 12: For
acquisitions that enter the solicitation phase after Dec. 31, 2011,
agencies must develop a business case using procedures outlined in
the memorandum to support the establishment or renewal of:
– GWACs
– Multi-Agency Contracts
– Multi-Agency BPAs created in the FSS where another agency is expected
to use the BPA significantly
•
Ensure expected return of a new contracting vehicle is worth the cost
of planning, awarding and managing it
• Applies to new MAC with a total value of more than $250 million
• Limit duplication of large contract types
Class Deviation 2014-O0011, March 13, 2014
• Class Deviation: Determination of Fair and Reasonable
Prices When Using Federal Supply Schedule Contracts
– Effective immediately
– In lieu of FAR 8.404(d) must use FAR 15.404-1
– GSA determination of fair and reasonable prices does not
relieve the ordering activity contracting officer from
making determination of Fair & Reasonable Price for
individual orders, BPA’s or orders under BPAs.
– Must use proposal analysis techniques at 15.404-1
• Complexity and circumstances of each acquisition should
determine level of analysis required
Contract Business Analysis Repository (CBAR)
• DCMA shares real time business data with government
employees w/a need to know.
• Where do I find CBAR? Under e-tools at the DCMA website
or http://www.dcma.mil/itcso/cbt/CBAR_1_2/index.cfm
• 24/7 data on individual contractors
– Effective 24 June 13, for all negotiated contracts >$25 M, PCO will
share Business Clearance and PNM’s (PGI 215.406-3)
– FPRA/FPRR
– Status of Contractor Business Systems
– Status of compliance with cost accounting standard issues
– General info on the cost & financial condition of the contractor
division and corporate office
Government Property
• DoD needs to strengthen the accountability and
management of personal property owned by
DoD when the property is provided to
contractors for contract performance
• FAR and DFARS clauses are not being included
in solicitations and contracts as required
• Accountability and auditability of GovernmentFurnished Property (GFP) cannot be achieved if
contracts do not contain the appropriate
contract clauses
Government Property
MANDATORY
•
FAR 52.245-1 Government Property, in all cost type and T&M solicitations and contracts, and in
labor hour and fixed-price solicitations and contracts when the Government will provide
property.
• FAR 52.245-9 Use and Charges, in solicitations and contracts when the clause at 52.245-1 is
included.
• DFARS 252.245–7001 Tagging, Labeling, and Marking of Government-Furnished Property, in
solicitations and contracts that contain the clause at FAR 52.245-1, Government Property.
• DFARS 252.245–7002 Reporting Loss of Government Property, in solicitations and contracts that
contain the clause at FAR 52.245–1, Government Property.
• DFARS 252.245-7003 Contractor Property Management System Administration, in solicitations
and contracts containing the clause at FAR 52.245-1, Government Property.
• DFARS252.245–7004 Reporting, Reutilization, and Disposal, in solicitations and contracts that
contain the clause at FAR 52.245-1, Government Property.
• DFARS 252.211-7007 Reporting of Government-Furnished Property, in solicitations and contracts
that contain the clause at FAR 52.245-1, Government Property.
OPTIONAL
• DFARS 252.245-7000 Government-Furnished Mapping, Charting, and Geodesy Property, in
solicitations and contracts when mapping, charting, and geodesy property is to be furnished.
Government Property
BRAIN HURT? Having a hard time
keeping up with all the changes?
104
Acquisition Central
Defense Procurement and Acquisition Policy (DPAP)
Federal Contracts Report
Defense Acquisition Portal
108
Contracting Site in the DAP
National Contract Management Association
Where In Federal Contracting
http://www.wifcon.com/
Keep in Touch
Michelle Currier
Michelle.Currier@DAU.Mil
757-635-8261