Tag Archives: government contracting

Pentagon To Unveil New Acquisition Structure

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Pentagon Reorganization

“DEFENSE NEWS”

“The Pentagon is scheduled to deliver its new acquisition structure to Congress,  a major step toward redesigning how the building researches and procures equipment.

The 2017 National Defense Authorization Act instructed the Pentagon to devolve the undersecretary of acquisition, technology and logistics, or AT&L, into two separate jobs: undersecretary for acquisition and sustainment, or A&S; and a new undersecretary for research and engineering, or R&E, essentially a chief technology officer.

Those changes are expected to be in place by Feb. 1, 2018.

Congress purposefully allowed time for the Department of Defense to come up with its own road map on how the split should occur, which the department is supposed to deliver to Capitol Hill on Aug 1[2017].

Sources say there were discussions about delaying that delivery, in order to allow newly installed Deputy Secretary of Defense Patrick Shanahan a chance to weigh in. However, all indications are that the department intends to hit its Tuesday deadline.

It is important to note that this report will not be the final say in the issue. Its purpose is to inform Congress of how the department will split the duties of AT&L and the broad organizational strategy, but does not need to detail the nuts and bolts of currently shared services. That also means that Shanahan and Ellen Lord, the longtime Textron executive-turned-AT&L nominee who may be confirmed this week, will have a chance to continue to give input going forward.

An interim, two-page memo to Congress was delivered March 1, which contained few details about how the building is approaching the question of devolving AT&L into the new offices.

Congress, meanwhile, is trying to balance out how to give senior leaders a chance to weigh in and making sure the DoD meets the Feb. 1 deadline. And while the report will be happily received in Congress, there is skepticism about what the DoD will actually deliver and how closely it will hew to Congress’ vision of how the new structure should look.

Bill Greenwalt, a longtime defense acquisition expert who spent two years as a staffer on the Senate Armed Services Committee where he had a central role crafting McCain’s acquisition changes, emphasized that the Pentagon’s thoughts are recommendations and that Congress will have final say.

“I think it will be a back and forth between the Congress and administration in terms of how to make this work,” he told Defense News. “The key thing for Congress is R&E should be driving innovation. A&S should be providing the oversight structure. The boxes shouldn’t be transferred around, it should be a cultural shift.”

SCO, DIUx likely folded under R&E

While the majority of the changes to the AT&L structure will entail a reshuffling of offices already under central control, there are two notable offices that may be brought in house, whether they desire it or not.

The Strategic Capabilities Office, or SCO, and the Defense Innovation Unit Experimental, or DIUx, were two pet projects of former Secretary of Defense Ash Carter. The SCO is focused on finding innovative solutions to near-term challenges, while DIUx is charged with creating ties between the DoD and the commercial technology sector.

Notably, both offices have existed as quasi-independent entities. DIUx actually started as a report inside the AT&L structure before being relaunched a year ago following a lack of progress in its mission; it then became a direct report to Carter. The SCO, meanwhile, was created by Carter during his time as deputy secretary of defense and was formally introduced to the world by Carter during the fiscal 2017 budget rollout.

With Carter gone and Congress seeking to improve innovation inside the building, there is pressure from the Hill to see those groups folded into the new R&E portfolio. In a May 18 interview, Mary Miller, acting assistant secretary of defense for research and engineering, said SCO and DIUx “would naturally fit in the USDR&E, that’s the intent.”

“If we set this undersecretary up as we believe we will, as we’re hoping this turns out to be and it will be a select-in to this whole new culture we’re establishing, we don’t need to have special groups that were set up just to be different, because that will be the undersecretary mission,” Miller said during the interview.

Greenwalt said that if the Pentagon crafts the R&E spot “right,” groups like DIUx, SCO, the various rapid capabilities offices and perhaps the Defense Advanced Research Projects Agency should all fall under its control.

When it was pointed out to him that regardless what the Pentagon says, Congress could step in and demand those groups fall under R&E’s control, Greenwalt smiled. “Right. That’s the back and forth,” he said. ”We’ll have to see how it works.”

Greenwalt isn’t the only one who thinks those outside groups should come inside. Frank Kendall, whose tenure of four-plus years as AT&L ended with the Obama administration, believes that for the R&E spot to work, it must include all the research groups scattered around the department.

“It would have basic research, 6.1, 6.2 and 6.3, it would have DARPA, it would have SCO and DIUx, it would have the existing office that does experimentation,” Kendall said in April, adding that he had provided that recommendation to Deputy Secretary of Defense Bob Work.

Andrew Hunter, an analyst with the Center for Strategic and International Studies, noted that the Senate clearly has been leaning toward putting SCO, DIUx and DARPA into the R&E portfolio. But that may be an imperfect fit, he warned.

“DARPA, by mandate, deals with that leap-ahead tech, 6.1, 6.2, 6.3 work, research that is early stage. Once it gets to prototypes, that’s no longer DARPA territory. SCO is on the other end,” Hunter said. “Both have a fit in the R&E position. But it seems the department is heading towards having R&E have more of an early stage focus, so they might come to a different answer.”

Leadership questions

While the future of the R&E office is uncertain, the A&S job appears to be more stable — in part because its leadership seems intact.

Lord, the former Textron executive, has already gone through a confirmation hearing for the AT&L job, during which she reaffirmed she would be sliding over to A&S once the AT&L office goes away in February.

The Senate’s version of this year’s defense authorization bill would require Lord to be reconfirmed for the A&S job, but given how little headwind she faced in her confirmation hearing, the assumption is she would easily be reconfirmed for the new title.

Which brings up the question of who her counterpart would be. It is understandable that no names have been put forth for the job, as the White House and Pentagon have been focused on filling existing roles, plus the R&E job does not exist. But waiting too long to put forth a nominee could have “risk,” Hunter said.

“You might not be able to get the quality person you want because of how it is cast. The earlier you name a person, the more they have a chance to shape the structure of the office,” he added. “However you slice the piece, what used to be one really powerful job is now two jobs, each of which is slightly less powerful — so how appealing are they for someone who wants to put their stamp on the future?”

http://www.defensenews.com/pentagon/2017/07/31/pentagon-to-unveil-new-acquisition-structure-on-aug-1/

 

 

 

Pricing Small Business Federal Government Service Contracts

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Integrate Long-term Company Strategy With Short Term Proposal Pricing Objectives

INTRODUCTION

Small businesses entering or growing into federal contacting often struggle with developing a pricing approach. They must design a pricing structure to pass an audit and win competitively. A winning strategy for federal services contracting must involve a view of the horizon as well as the instant bid on the table.

If you are a small enterprise selling off-the-shelf commercial items under FAR Part 12 or marketing commercial products on a GSA schedule, you may be initially challenged by the government contracting venue. With persistence you will establish selling relationships through agencies and prime contractors. Your pricing challenge is minimal. A service contractor faces a far greater challenge in understanding the nature of government contact pricing and winning at it.

Strategic thinking must therefore be applied to structuring a government service contracting cost center in your company. It must involve long term planning and designing a business system as well as establishing rates and factors to bid new work.

LONG TERM COMPANY STRATEGY

Build a Business System With Pricing in Mind:

We have previously discussed the basics of small business government contracting business system design: Job Cost Accounting Basics

The structure or your pricing approach from the cost element level through burdens must use the same template as your job cost accounting and billing. The parallel mapping provides the consistency required to pass audits or get your billings approved on a service contract.

Please read the above article and its related references. Then design your processes recognizing the guidance there and applying it to your company organization, and the way you produce your supplies and services:

Sculpt the DCAA Auditor

As you begin submitting government contracting proposals you will encounter your local DCAA audit office. They learn about your company by auditing your cost proposal rates, job cost processes and systems, billings and contract closeouts.

Keep in mind that you are shaping opinions in these encounters on the part of these government personnel that will influence your future and be passed on in reports to contracting officers. Your unique company business system structure must be carefully explained to them against what they know best; their DCAA Audit manual and FAR Cost Accounting Standards:

DCAA Audits and Job Cost Accounting Systems

Protect Rate Information

Your fully loaded rates will appear on your GSA schedule in the public domain, in subcontracts from prime contractors and in data acquired under the Freedom of Information Act (FOIA) by competitors.

It is generally recognized by all industries participating in federal government contracting that internal overhead and G&A rates and the data that support them are proprietary data. The reason for the proprietary nature of rate data between companies is that in government work firms are teaming with each other exclusively on one project and competing against each other on additional contracts or projects at the same time.

Companies do not disclose the details of their rates to other companies and they do not expect to see another company’s proprietary rate information. So companies view each others rate information on a fully loaded basis, meaning the total of the base cost, any proprietary indirect cost and an agreed upon profit percent.

If a prime contractor requests that subcontractor proprietary rate information be supplied with a proposal the detail should be double wrapped and the package stamped, ‘Government Eyes Only’. The prime will then hand the package off to DCAA without opening it and receive only the fully loaded result of the burdened rate pricing.

For further information on intellectual property protection and protective markings on government contract proposals please see the following article:

Protecting Intellectual Property

Recognize Overhead and G&A Rates Are Critical

Assuming your competition pays a generally similar labor rate to their employees as you do and that fringe costs about the same for everyone, then overhead and G&A are what wins and loses contracts.

Please read the following articles carefully with regard to long range planning and setting your overhead and G&A rates:

FAR and CAS Compliant Systems

Provisional Indirect Rates

Keep in mind that if you are performing work inside a government facility the government will expect to be charged a lower overhead rate than if you were paying the space and occupancy costs and the light bill. This is normally achieved by establishing a separate cost center for “On site” (Internal to government quarters) work with lower overhead expenses applied to project direct labor dollars in that cost center.

Price Set Aside Contracts the Same as Full and Open Competitions

If you are a small business lucky enough to receive a sole source set aside contract under an 8(a) or Hub Zone award, or if you are participating in limited competition under a small business set aside designation, use the same sharp pencil you use on the full and open market. Your goal is to compete for the long haul and inflating estimates on particular jobs due to limited competition has an inflationary effect on your business as a whole.

Your company past performance is being constantly evaluated by the government and prime contractor community. Consistency attains and retains new business. You will eventually grow to the point where set asides and sole sourcing will no longer be available; prepare early.

Know the True Value of Your Proposal

Develop risk thresholds (ceiling and floor) for your bids. The ceiling is the price for which you can bid a job, perform to meet specifications and win. A floor is the lowest possible price for which you can accept a contract and survive.

Do not bid or be negotiated out of these thresholds. “Buying In” does not work and sacrificing the future of your company by “Low Balling” cost proposals and hoping to get well on scope changes later is dangerous.

In government contracting the only worse scenario than losing a contract is winning it, performing poorly (cost, schedule or technical) and getting a black eye on your company past performance record that takes a long time to go away.

Understand a Proposal is the Opening Chapter a Baseline for Your Contract

Your proposal represents an initial offer to a government agency or a prime contractor. Please read the following articles on how this baseline is initially set and controlled through the negotiation process and ultimately through careful contract management.

Project Baseline Managment

Contract Negotiation

SHORT TERM PROPOSAL OBJECTIVES

Make Bid/No Bid Decisions Wisely

Conduct your bid/no bid decisions effectively. Please see the bid/no bid analysis process at the beginning of the following article:

Contract Negotiation

Be Conservative in Rough Order of Magnitude Pricing

A common government planning technique in the early phases of marketing is to ask questions and review and approve a concept paper by a company then informally request for “Planning Purposes”, a rough order of magnitude cost estimate (ROM).

If you provide a ROM be very careful. It tends to get cast in concrete in the customer’s mind, even though it is not the final, formal proposal. Make it conservative in cost content and schedule duration, then plan to beat it with your formal proposal.

Make sure you caveat the ROM if you are asked for it with the statement in your cover letter that it is for planning purposes only and is not a commitment on the part of your company. State that you will be happy to make a full formal proposal/commitment upon receipt of a formal RFP from an authorized contracting officer. Keep in mind that contracting officers are the only people who can commit the government:

Customer Relations

The government usually goes forward with the concept paper and the ROM for approval of the funding necessary for the job. The “Agency Higher Ups” either give the project personnel the approval to do a set aside or they require a competitive procurement.

You may want to read the following article on Statements of Work:

Contract Statement of Work and Technical Specifications

Know the Difference Between Firm, Fixed Price, Time and Materials and Cost Plus Contracting

During the solicitation and proposal process the contract type is specified.

Firm, Fixed Price (FFP) is the riskiest type of contracting and should be undertaken only when you have a definitive grasp of a precise statement of work with known variables and end products. You should have achieved similar work scope in the past or be delivering follow-on products and services that are mature in nature to undertake a firm, fixed price contract.

FFP is particularly risky in software development contracts or high technology program pressing the state of the art. You will receive no more in the form of funding than your bid price on a firm, fixed price contract.

Time and Materials (T&M) contracting places the risk on the government and is suited to long term service contracts of a development nature. T&M may be contracted with fixed labor rates, making the hours and pass through materials and other direct costs the only variables.

Cost Plus (CP) contracting is the least risky of all contract types and you are assured of receiving every dollar of cost incurred under this type of contract.

The lower the risk to the contractor the lower the expected negotiated profit rate you can expect, since the government considers risk the principal factor in profit negotiation.

For further explanation of contract types in more detail, please see the following article:

Government Contract Types

Develop a Price Profile of the Competition

Use a copy of your own forward pricing long range plan (LRP) to model your strongest competitors. Profile your best intelligence regarding their size, location, contract base and estimated overhead and G&A expenses. Then interpolate, from your knowledge of the market, their labor and fringe costs, as well as other direct costs as you prepare your proposal. Incorporate any unique approaches you estimate your competition may offer that impact cost.

Modeling Your Competition

Adjust your competitor cost model to perform “What If Analysis” during your risk assessment and proposal review process. For an example of an LRP cost model please see the Box Net Cube in the left margin of this site: Small Business Federal Government Contracting It is Appendix B to the book, “Small Business Federal Government Contracting” and is available as a free download in Adobe format from the BOX in the right margin of the site.

Understand “Best Value” Source Selection

When the government declares a “Best Value” proposal award process the agency will perform a weighted trade study of cost verses technical and management factors in reviewing proposals. They will announce the weight of each factor in relative terms within the solicitation so contractors can focus on the most important elements.

What best value means quite simply is that if you are the low price bidder you may not win. If a competitor proposes a superior technical and management approach, a higher weighted rating in those factors may offset an otherwise non-competitive bid price, resulting in an award. This is a fact you must keep in mind when preparing your own proposal. In short you must perform your own trade study on your own bid.

Past performance has also become a significant weight factor in proposal evaluations in recent years. To address this challenge, please see the following article:

Past Performance Challenge

A balanced proposal, with specific, heavy emphasis on government-designated weight factors and an economical, yet realistic cost/price usually wins. Offsetting weaknesses in any designated government weighted area by proposing excellence in other weighted areas is vital.

Beware of Unallowable Costs

Over the years the federal government has determined that certain costs cannot be allowed in prices, cost reimbursements or settlements under contracts with the US Government. The government is unwilling to pay for these costs as direct charges to federal government contracts or through indirect expense pools applied to federal government contracts.

A company is not prohibited from incurring unallowable costs, but they cannot be recovered either directly or indirectly under federal government contracts. To manage unallowable costs, separate accounts must be established for these type expenses and they must not be priced directly into federal government contracts during the proposal process.

Such costs cannot be made a part of the expense pools which are applied to federal government contracts through an overhead, material handling or G&A cost allocation at accounting period close or during forward pricing rate planning. For more detail on unallowable costs please see the following article:

Unallowable Costs

Integrate Pricing With Technical and Management Approaches

Establish price targets as soon as possible for major tasks, evolve a program plan, or if you are bidding a T&M, IDIQ type program develop a sample work order for a typical representative effort.

As the technical and management proposal move toward completion, use established checkpoints to evaluate the efficiency of your cost estimate, escalation factors, labor, material and other direct costs. Then apply your indirect rates and subject your total proposal to a credibility check with regard to a believable cost estimate considering your solution and its time frame.

Run your competition price model and bring in some outside experts to review the end product proposal “Cold” before it is submitted.

Manage Best and Final Offers (BAFO) Carefullly

Most government solicitations require a format and terms and conditions with submission that permit contract award without further discussion. However, many involve a down-select process, briefings by those selected in the “Competitive Range”, a call for best and final offer (BAFO) or negotiation to achieve a final price.

The best and final offer period is a sensitive time. Most contracting agencies that call for a BAFO will cite weaknesses or concerns in the selected contractor proposals. They wish to hear about solutions to those weaknesses during BAFO briefings and require a re-submitted offer to correct them. The price may be adjusted as well and that is a key consideration. Pay particular attention to the way the BAFO instructions and concerns, specific to your down-selection, are worded. Look for hints that indicate critical opinion about your pricing, and then adjust your costs.

Consider the cost, schedule, technical and past performance implications of the BAFO request letter from the government and revise your proposal by the required submission date. Close the loop on all matters with your suppliers, subcontractors and prime contractors, and then conduct your briefing to the customer when it is scheduled. Present a united front to win. Your price should be your best. You will not be offered a chance to bid another competitively on that program.

On some procurements you may be asked to undertake additional discussions to determine final contract pricing. Please see the negotiation template at the following article for guidance on that process:

Government Contract Negotiation

SUMMARY

This discussion has conveyed how pricing should be a natural outgrowth of the organization structure, market strategy, competitive analysis, business system design and long range planning.

We have further explained how your long and short term pricing factors should be integrated with the management and technical elements of any given proposal. Take the long and the short view of your business by integrating long-term company strategy with short term proposal objectives

Senate Attempt to Reduce Contract Protests Ignores Root Cause

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Sour Grapes Image:  Myislandcity.net

“WASHINGTON TECHNOLOGY” By Stan Soloway

“There are things that can be done to reduce the negative effects and frequency of protests. And they start with enhanced transparency—before, during and after award.

The current Senate proposal fails to consider protests in the context of the broader procurement regime and its innumerable government-unique requirements.”


“When it comes to federal procurement, the frequency and expectation of protests has had a palpable, costly, and sometimes deleterious effect on the process and those competing in it. Most companies now add an extra six to 12 months to their revenue projections in order to account for possible protests.

There is good reason to believe (including surveys) that “low price/technically acceptable” (LPTA) procurement strategies are, with some frequency, driven by a desire to avoid protests, since protesting such procurements is near impossible.

And, of course, there have been cases where incumbents, having lost a re-competition, submit a protest and, as a result, effectively get a contract extension while the protest is decided.

All of these represent unintended and undesirable impacts of the protest process. As a result, many have believed for some time that significant remedial action is needed. This includes the Senate Armed Services Committee, which, for the second year in a row, has included provisions in the defense authorization bill that would require losing protestors to reimburse the government for the costs of a protest when none of the plaintiff’s allegations are sustained.

The legislation would also require the withholding of all profits from incumbent contractors who lose a recompetition and file a protest. The funds would only then be released if some portion of the protest is sustained. If it is fully rejected, the money would be paid to the company that won the competition over which the protest was filed.

Some, including my friend and former federal procurement administrator Steve Kelman would go even further. He has at times argued we should consider doing away with protests altogether since no such equivalent exists in the commercial sector. Unfortunately, sympathetic as I am to the issues driving these views, we are putting the cart before the horse.

First and foremost, we have to remember that protests exist principally to ensure that the outcome of a procurement is in the best interests of the taxpayer. Hence, when mistakes are made, it is in the government’s, and taxpayer’s, interest to take corrective action.

Second, the federal acquisition regulation makes clear that all bidders on a federal procurement must be treated fairly. To the extent the government fails to follow its own rules or stated procurement strategy, remediation is required. There is no such requirement in the commercial world.

Third, even if a protest is dismissed in its entirety one cannot make the leap to assuming nefarious intent on the part of the protestor. That’s like saying everyone who loses a lawsuit was being frivolous in filing it. Obviously that’s not always the case.

For these reasons, and more, the Senate language is the wrong answer. But that does not mean a problem doesn’t exist and that some meaningful action is not possible. Quite the contrary.

Ironically, the proposed legislation includes a crucial part of the answer. In addition to the provisions cited above, it would also mandate quality, detailed debriefings for all significant procurements.

We learned in the 1990s that good debriefings result in far fewer protests. In fact, the data is clear that many companies use the protest process as a means of discovery; of trying to understand why they lost a given competition. In the years immediately following the added emphasis on debriefings, the number of protests dropped significantly.

As but one good example, the IRS had a policy of sharing in a debriefing all information that might otherwise be released during a formal protest (with appropriate redactions). And they executed numerous, significant procurements without a single protest. To its credit, the Senate committee would require that the IRS’s debriefing policy become the norm.

The bill would also require release of the government’s internal, written source selection criteria, which could and should be done anyway. Taken together, these two important steps toward greater transparency could have a very substantial effect. It should also be noted that the IRS was also particularly good in its pre-award communications to bidders, which undoubtedly also facilitated effective and credible competitions. Yet, such communications remain all too inconsistent.

Assigning motive is always a slippery slope. And much of what we think we know remains based on presumption rather than good data. Thus, it would also be helpful if there were better data on the frequency and nature of incumbent protests. How often are they actually sustained, in whole or in part? Is it possible to measure the frequency with which incumbents file protests focused on issues that, while valid, are so minor they would not result in a changed outcome?

Yes, it could reduce the number of protests. But it might well do so for the wrong reasons and based on the wrong assumptions.”

https://washingtontechnology.com/articles/2017/07/25/insights-soloway-bid-protests.aspx

About the Author:

Stan Soloway

Stan Soloway is a former deputy undersecretary of Defense and former president and chief executive officer of the Professional Services Council. He is now the CEO of Celero Strategies.

$9.29 Billion In F-35 Fighter Contract Awards to Lockheed in July 2017

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“BREAKING DEFENSE”

” [Friday, July 27 2017] – A $3.69 billion contract was awarded Lockheed Martin for 50 foreign F-35s and work on the Lot 11 LRIP.

Separately, Lockheed won an interim payment of $5.6 billion in early July to help pay for the 91 American F-35s jets in LRIP 11.”


“After the markets closed on a sleepy and rainy summer Friday afternoon, White House Chief of Staff Reince Priebus was ousted and DHS Secretary John Kelly named to take his place, and, oh, by the way, a $3.69 billion contract was awarded Lockheed Martin for 50 foreign F-35s and work on the Lot 11 LRIP.

What’s in play here?

Most of the money, $2.2 billion, goes to buy one British F-35B, one Italian F-35A, eight Australian F-35As, eight Dutch F-35As, four Turkish F-35As, six Norwegian F-35As aircraft, and 22 F-35As for Foreign Military Sales customers.

The F-35 Joint Program Office said the Pentagon would continue to negotiate the 11th low rate initial production contract with Lockheed Martin and expected an agreement by the end of 2017. The full contract should be finished by the end of the year, the JPO said in a statement. At the same time, they said they are negotiating a separate deal with Pratt & Whitney for the F135 engines, which should be done about the same time.”

http://breakingdefense.com/2017/07/one-big-f-35-contract-2-8b-of-3-7b-for-foreign-planes/

Pentagon Product Acquisition Focus Must Be On Requirements Document

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“DEFENSE NEWS” By Gen. John Michael Loh (retired)

“The most important, yet most overlooked product in the defense acquisition system is a succinct operational requirements document.

The Defense Department’s acquisition process is so overloaded with Office of the Secretary of Defense as well as Joint Staff bureaucracy, unqualified personnel, multiple reviews and councils, and duplication of the service’s requirements organizations, the requirement gets lost.”


“The operational requirements document, or ORD, is the foundation of the acquisition process from concept development through system development.That series of processes — the Joint Capabilities Integration and Development System, or JCIDS — in place since 2003, adds little value and never focuses on the ORD as the centerpiece.In fact, the requirements document isn’t called the “requirements document” in JCIDS. As the lengthy JCIDS process proceeds at a snail’s pace, what substitutes for a requirements document goes by various names like “initial capability document,” then, the “capability development document,” then the “capability production document,” without having a clear owner for each. An end-to-end ORD just doesn’t exist in JCIDS.

Instead of the top-down, JCIDS-based requirements process, the requirements process should be bottom-up with single ownership by the service’s major operating commands throughout. Putting together and managing an airtight, bulletproof ORD should be the first priority and main focus of activity during concept development leading to milestone one. After milestone one, the ORD should stay in the forefront of every decision and remain unchanged. That is the way the system worked before JCIDS.

We need to learn from the past and get back to basics in the acquisition system starting with the requirements process. From the start of the F-15 and F-16 programs in the early 70s through the F-22 start in the late 80s, concept development began with small, smart teams working together from the operating and developing commands; understanding the need; conducting trade-off analyses to assess risk and cost, in continuous dialogue, producing a requirements document unfettered by top-down micromanagement or wall-to-wall reviews and nitpicking.

The teams were manned by smart operators from the major operating command, who understood the capability needed, and by technical experts from the development command, who understood the state of the art and the risk to go beyond it. They worked in harmony in horizontal dialogue, not having to go through vertical chains of command to communicate with each other, as is the case today. Nor did the Pentagon interfere.

This process worked to produce remarkably well-constructed ORDs in less than a year in most cases. The ORD, approved by the operating and development command, went directly to the service chief and secretary for validation, then to the Joint Requirements Oversight Council, which made sure it included joint service support.

Typically, the work in the Pentagon took less than six months to validate the requirement and put it on the street to industry. The key was the work done by the small teams, freed from bureaucratic tyranny and micromanagement by non-experts.

The ORD served as the main product and basis for the system specification, request for proposals and the source selection process. It kept discipline in the acquisition system throughout all pre-full-scale development milestones.

However, building small, smart teams is essential but difficult. Experience and expertise are prerequisites. Experts in development command teams must know technical and cost risks, and have a working knowledge of operational matters. Experts in the operational command teams must know threats and concepts of operations, and a working knowledge of acquisition matters. But, these experts must be trained and educated for their roles.

Today, particularly in the major operating commands, the officers defining requirements are good operators but not expert in the requirements business. To make matters worse, the responsibility for defining requirements has been subordinated in many operational commands under the plans and programming functions.

Many things need fixing in the defense acquisition system. Reform should start with eliminating JCIDS and returning to what worked — making the ORD the foundational document and driving force in acquisition programs created by small, smart teams from the responsible commands in the services The result will be an acquisition cycle that is years shorter than JCIDS, and systems that meet needed capabilities on cost and schedule.”

https://www.defensenews.com/opinion/2017/07/26/defense-acquisition-focus-on-the-requirement-document-not-the-process-commentary/

About the author: (wikipedia)

“John Michael Loh (born March 14, 1938)[1] is a retired four-star general in the United States Air Force who last served as Commander, Air Combat Command from June 1992 to July 1995. His other four-star assignment include being the 24th Vice Chief of Staff of the Air Force from June 1990 – March 1991, and Commander, Tactical Air Command from March 1991 – June 1992.”

https://en.wikipedia.org/wiki/John_M._Loh

John Loh, official military photo.JPEG

NASA Seeks Certified 8(a) Minority-Owned Contractors for $100M Headquarters IT Contract

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“WASHINGTON TECHNOLOGY”

“NASA has kicked off the bidding on a potential five-year, $100 million contract for IT services at the agency’s headquarters in Washington.

Only small businesses with the 8(a) designation are eligible to compete for the the Headquarters Information Technology Support Services III contract. The agency posted a request for proposals on July 18 and responses are due Aug. 18.

A selected contractor will provide integrated IT, systems engineering, operations and IT-related management support services mission directorates and mission support offices at NASA’s headquarters. The solicitation also calls for management of a cloud infrastructure program in a managed computing environment at headquarters.

HITSS III has one base year with four one-year options and is the successor contract to HITSS II won by Digital Management Inc. in 2012. Media Fusion Inc. also is an incumbent contractor through a task order awarded against a GSA Schedule contract, according to Deltek.

HITSS II expires on Sept. 30 and has a potential five-year value of $177 million. Deltek estimates NASA has spent approximately $145 million over that contract’s lifespan.”

https://washingtontechnology.com/articles/2017/07/25/nasa-8a-it-hq-rfp.aspx

 

The Federal Government Annual Spending Spree

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Image: “Static Politico.com”

“FEDERAL TIMES” By Michael P. Fischetti, Executive Director of the National Contract Management Association.  

“Rapid actions at the end of the fiscal year, with contract managers working feverishly as the clock winds down, is never a recipe for prudent acquisition, not to mention management.

In recent years, the rush starts almost immediately once the budget is finally passed, with less than half of the year remaining before funds expire.

Near the end of each and every fiscal year, government agencies, for one reason or another, that were unable to fully obligate their budgeted funding completely and according to plan, find themselves going on “spending sprees” to ensure they completely exhaust those ever-more-scarce dollars available.

Every contract manager is well aware of the implications of the end of a fiscal year. Taking time off for annual leave is often prohibited during August and September while this heavy deluge of procurement requests from the many project managers rolls into the contracting offices — up to 80 percent of annual contracting obligations are often made in the last two months of each fiscal year. While “poor planning” on the part of requirements officials is no excuse for a crisis on the part of the contracting officer, the fact remains that contracting professionals are the final step in a process that starts with agency requirements and project managers determining their mission resource needs, including those to be fulfilled by contract.

This activity has become more pronounced in recent years, given the result of congressional appropriations dysfunction, whereby appropriations are generally not authorized in a timely manner, such as reasonably close to the start of a fiscal year in which they must be contractually obligated. Thus, agencies have ever fewer months in a fiscal year in which to execute their budgets. Instead of managing a 12-month budget beginning at month one, they may not know what their budget is until month three, four, six, etc. Agency priorities are compressed into fewer and fewer months and weeks and “the end of the year fiscal rush” becomes even more “rushed.”

Government agencies have long learned to adapt priorities (or “wish lists”) to move forward when funding may soon expire. These have historically included personal computers, furniture, carpeting, and other forms of housekeeping items. However, as the unknown dates of full annual funding become pushed further and further back into the fiscal year, the end-of-year rush starts to incorporate many basic agency mission activities, dependent upon contractor support. As many agencies are heavily reliant on obtaining products and services by contract, the reality of how this can occur without the required funding up front, with adequate time to buy smartly, and using agile practices, becomes increasingly at issue. Funding not filtering down to program managers until as late as the third or fourth quarter is no longer unusual.

Stop-gap funding mitigates this issue somewhat, but obviously the best response is program execution that occurs on time — after proper planning and before the fiscal year begins. The costs of today’s late budget to the taxpayer (who pays for it), or the citizens and constituencies thereby underserved, leaving aside the frustration and dismay of acquisition officials, is readily measured.

While contract managers — as well as finance, program, and indeed contractors — have all learned to muddle through (such as contractors willing to work “at their own risk” without a contract or guarantee of payment), they shouldn’t have to. This situation often includes the uncertainty of funding to maintain even their own employment. However, through their ingenuity, perseverance, and especially creativity, along with other government career professionals, they keep the trains running, despite the obstacles created by our current political polarization.”
http://www.federaltimes.com/articles/the-annual-spending-spree-commentary


For More on this subject please see:  https://rosecoveredglasses.wordpress.com/2017/04/26/the-one-year-budget-cycle-must-go/

 

Letting Government Contractors Pick Their Own Auditors is a Bad Idea

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Hand in Jar istockphoto by Getty

Image: istock photo by Getty

“THE PROJECT ON GOVERNMENT OVERSIGHT”

“The law in question is the 2017 National Defense Authorization Act (NDAA) passed late last year.

When it comes to contract auditing, giving audit responsibilities to a company working directly for a contractor hampers the government’s ability to negotiate good deals for taxpayers.

Section 820 of the law states that “contractors with the Department of Defense may present, and the Defense Contract Audit Agency shall accept without performing additional audits, a summary of audit findings prepared by a commercial auditor” of contractors’ indirect costs (with some exceptions). This section is scheduled to go into effect on October 1, 2018.

Last year, in annual legislation setting defense policy, Congress gave military contractors the authority to hire their own auditors to review the bills those contractors send to the government. For decades, the Pentagon’s own Defense Contract Audit Agency (DCAA) has helped government contracting officials negotiate better deals by examining a contractor’s charges. But last year’s legislation, which goes into effect next year, diminishes the DCAA’s oversight authority to the detriment of taxpayers.

The topic was broached in an important, but under-the-radar Congressional oversight hearing in April.

Most of the hearing centered on the cost of government versus private auditors, with two conflicting tales being told. But a bigger issue went largely unaddressed: whether allowing contractors to pick their own auditors creates inherent conflicts of interest since the auditors would be in the position of serving contractors—their client—rather than taxpayers. There is a reasonable fear that these private sector auditors, in an effort to keep their client happy and win repeat business, would be reluctant to disclose to the government that the contractor is overcharging taxpayers.

New legislation pending before Congress would rescind Section 820, but it would also allow “contractors to engage commercial auditors to perform incurred cost audits,” according to a Department of Defense (DoD) analysis. The analysis also states that the new provision creates “several unintended consequences that will negatively impact the Department and industry.” The DoD opposes both Section 820 and the new Congressional language. The DoD’s proposed alternative keeps the power to conduct these audits in DCAA’s hands with an option allowing the government (rather than the contractors) to hire private sector auditors on a case-by-case basis. After analyzing the issue, POGO supports the Department’s proposed alternative.

DCAA’s Role

DCAA is responsible for auditing the financial side of certain defense contracts to “ensure that warfighters get what they need at fair and reasonable prices,” according to  its website. DCAA looks for whether contractor costs are “allowable, allocable, and reasonable,” and it performs other audits to ensure contractors have adequate business and accounting systems and adhere to federal cost and accounting principles. DCAA’s report for fiscal year 2016 notes that it audited $287 billion in contract costs that year. These audits are not usually intended to uncover fraud, although DCAA sometimes finds indicators of criminal activity and participates in law enforcement investigations.

What Are “Indirect Costs” and Why Do They Matter?

Contractors charge the government for two types of costs: direct costs that specifically relate to the contract, such as labor and materials, and indirect costs that exist apart from specific work on the contract, such as the rent a contractor pays for its office or fringe benefits for employees.

But there’s nothing fringe about these costs. Within incurred cost audits, indirect costs make up the majority of all questioned costs, according to DCAA Director Anita Bales. Because they are less clear-cut than direct audits, audits of indirect costs can be contentious—especially when auditors want more access to contractor information than the contractor is willing to provide—and quite technical. For instance, contractors are allowed to charge the government for indirect costs associated with litigation under some circumstances, but not in other situations. Contractors can easily pad their profits at taxpayers’ expense if these costs are not carefully examined.

An example of indirect cost overbilling made the news in February 2016 when the Justice Department announced that Centerra Services International (formerly known as Wackenhut Services LLC) agreed to pay $7.4 million to resolve a whistleblower lawsuit alleging the company had defrauded taxpayers. According to the Justice Department, Centerra double billed its labor costs while providing firefighting services on a military base in Iraq. The government alleged Centerra “inflated its labor costs by billing the salaries of certain managers as direct costs under the subcontract, when those salaries had already been charged as indirect costs.”

The Centerra case isn’t a one-off. In 2015, a DCAA audit questioned $14.6 million in costs that a contractor charged the government, according to a DoD Inspector General report to Congress. The vast majority—$14 million—involved wrongly billed indirect costs.

Lessons from the Recent Past

We don’t have to look very far back in history to see that allowing profit-motivated companies to hire their own profit-motivated auditors can lead to problems.

The Enron scandal showed that accountants and auditors aren’t immune from conflicts of interest. “Obviously the history of Enron and the financial crisis suggest we have to be very careful in this situation,” Representative Seth Moulton (D-MA), Ranking Member of the House Armed Services Oversight and Investigations Subcommittee said during his opening statement at the April hearing. Arthur Andersen, Enron’s auditor, had conflicts of interest. It was simultaneously employed as internal and external auditor, meaning that the supposedly independent external auditor could cover up the inaccuracies of the internal audit team.

More recently, during the fallout of the Great Recession, the government required banks to conduct mortgage foreclosure reviews. Banks were allowed to hire for those reviews their own “independent consultants” who proved to be not so independent. The New York Department of Financial Services (NYDFS) punished several of these consultants, including Promontory Financial Group, Deloitte, and PricewaterhouseCoopers, for “misconduct, violations of law, and lack of autonomy.” Settlements generally included multi-million dollar fines and temporary bans from consulting.

“A consultant’s allegiance too often goes to the client that pays the bills,” former NYDFS General Counsel Daniel Alter wrote in a 2015 piece for American Banker. Laws like Sarbanes-Oxley, which create criminal liability for misrepresenting financial statements, have helped to prevent future Enrons by balancing that pressure. However, criminal liability doesn’t apply to other types of financial reporting, such as the consulting work done in the aftermath of the housing crisis and the proposed contract audits.

Counting the Costs  

At the April Congressional hearing, DCAA Director Anita Bales testified that third-party auditors would cost an estimated 30 percent more than DCAA auditors. David Berteau, President and CEO of the Professional Services Council, a contractor lobbying group, countered in his testimony that when civilian agencies have used private auditors, they have in some cases paid significantly less than they used to pay DCAA.

Bales’ claim that DCAA auditors were 30 percent cheaper was based on a comparison of hourly billing rates, according to emails provided to POGO through the Freedom Of Information Act (FOIA). Berteau and other employees of the Professional Services Council did not respond to emails requesting evidence supporting their claims.

Other members of the federal auditing community have told POGO that the comparison of auditing costs is not clear cut. DCAA has more specialized experience and might charge lower costs per auditor hour, but they may also take longer to conduct audits (which may be a good thing in the long run, as more thorough audits may save even more money). Pricing for private auditors can also vary widely from company to company and even year to year, making a comprehensive analysis difficult.

And although cost was the most-discussed factor at the hearing, it isn’t the only factor that needs to be examined. A federal source, not authorized to speak on the record, who is familiar with both DCAA and private contract audits for civilian agencies said the work of private auditors still has to be closely checked, even when they are hired directly by the government. Both last year’s NDAA and a recent proposal for this year’s NDAA prohibit DCAA from examining the work of private auditors before accepting the results.

There is also concern over how the records generated by private auditors would be handled: Will they be subject to FOIA? How would the discovery of potential fraud be handled? Would private sector audits be incorporated into the DCAA’s “Management Information System” that tracks audit data so that auditors can spot trends and look at the bigger picture?

What About Incurred Costs?

New Congressional language would rescind Section 820 but would allow contractors to hire auditors to audit incurred costs. The argument for this is DCAA’s lower rate of return when it audits incurred costs. However, DCAA’s other auditing work with the same contractor and on the same contracts benefits from its incurred cost audits, and vice-versa. For instance, DCAA conducts audits of contractors’ billing, accounts, and internal control systems. The insights DCAA gains from those audits assists DCAA when it audits a contractor’s incurred costs. According to a DoD analysis of the impacts of the recently proposed legislation, keeping incurred cost audits in the hands of DCAA:

…allows for the continuation of many initiatives that DCAA has put in place to more efficiently and effectively perform audits (e.g., the use of the low risk sampling process, the coordination of subcontract assist audits, and the process for obtaining and determining adequacy of incurred cost proposals). Without one group coordinating the need for commercial auditors, the Department will lose many of these efficiencies and will lose adequate oversight over the complete incurred cost audit process. [emphasis added]

One of the primary motivations for the new Congressional language on incurred cost audits is DCAA’s incurred cost audit backlog, which was relatively large until a few years ago and has recently become more manageable according to DCAA’s most recent annual report. The agency said it was on track to eliminate the backlog by next year, although with the hiring freeze it may have to re-evaluate that goal. Regardless of whether the backlog is eliminated one or three or even five years from now, Congress is proposing a rather drastic solution to a problem that is no longer drastic itself.

This is not a backyard experiment with few consequences for failure. Billions of taxpayer dollars are on the line every year. While DCAA has room for improvement, privatizing the agency’s work would most likely make it harder to crack down on contractor overbilling.

Given the large risks and the unclear benefits or privatizing contract audits, Section 820 should be repealed. If DCAA needs a temporary boost, it should be given authority to hire more staff on a temporary basis, or perhaps even hire private sector auditors on a short-term basis. The Defense Department proposes the latter, calling it “much more effective” while ensuring “that a function that is inherently governmental in nature continues to be performed by Government auditors when feasible, but allows for the use of commercial auditors when necessary to address incurred cost backlog.”

POGO does not often agree with the Defense Department, but its proposal makes sense. Let’s learn from our past mistakes rather than repeat them.”

http://www.pogo.org/blog/2017/06/letting-contractors-pick-own-auditors-bad-idea.html

Are You Prepared for a Contract Cancellation?

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nbmcwdot com 31949-Termination-of-Contract

Image:  nbmcwd.com

 

“WASHINGTON TECHNOLOGY”  By Darrell Hineman, Brian Courtney

“The possibility of a contract termination should be incorporated into every government contractor’s business continuity plan.

Implementing safeguards and procedures designed to mitigate the risk of a termination will limit the impact it has on your organization’s operations.

Preparing for the possibility of a contract termination is a defensive strategy that contractors should undertake now. Here are three key steps you should consider immediately:

  1. Plan ahead. Never consider your contract as “termination-proof.”
  2. Fully understand the contract termination process
  3. Learn how to calculate and submit your Request for Equitable Adjustment or settlement proposal.

The possibility of a contract termination should be incorporated into every government contractor’s business continuity plan. Implementing safeguards and procedures designed to mitigate the risk of a termination will limit the impact it has on your organization’s operations. Ask yourself, “Does my organization have procedures in place to deal with cure notices, customer complaints, and quality issues? What about monitoring subcontractors?”

If you are still reading this article, you probably are not as well prepared for a contract termination as you should be. Most contract terminations have a root cause and are not solely due to the government no longer requiring the items or services.

Here are some common contract termination causes and how to prevent them:

Failure to immediately address government concerns

Whether a complaint or “suggestion” is received verbally or in writing from the government, there should be a process in place to respond immediately. Often, we hear from clients that their program personnel were in the process of addressing a government issue (but apparently not in real-time). Now, they are dealing with a cure notice for many items to be corrected in two weeks.

Incorporate the handling and response to government communications and complaints/concerns into your program management policy and procedures. All complaints/concerns should be documented and tracked from the initial problem to the eventual solutions.

Regular communication with the government is also critical in staying ahead of potential contract issues and preventing a termination. The contractor program manager should routinely relay project status to the government in writing – even if not required under the contract terms. We recommend weekly communications but, depending on the project, monthly communications may suffice.

Failure to evaluate change orders for potential effect on cost or schedule

Sometimes, trying to fully please the client can actually lead to a termination. A contractor has only 30 days from the date of receipt of a written order to assert its right to an adjustment. Often, accepting changes without evaluating the impact on scope, cost, and/or schedule can lead to project delays and cost overruns. These may ultimately result in missed delivery/performance dates.

As a preventative measure, create a standard procedure to evaluate the impact of any change request on the scope, cost, and/or schedule of a project. Share this required procedure with the customer: “Yes, we can make changes, but we first need to evaluate the scope, cost, and schedule to identify any project impacts.”

Subcontractor performance issues

Many contractors focus on complying with the requirement to issue subcontracts and neglect their associated responsibility for managing subcontractors under FAR 42.202(e)(2), Assignment of Contract Administration. Prime contractors often assume, without oversight or verification, that their subcontractors will meet prescribed performance and deliverable requirements.

When a subcontractor fails to deliver, the prime contractor is ultimately responsible for addressing the issue, or may face termination. Therefore, you should ensure that you flow down the proper terms and conditions to your subcontractors, including the prime contract termination clauses and deliverable dates.

Another step we recommend is to create a post-award subcontract administration procedure to address the risk. Ensure that adequate and comprehensive subcontractor oversight is built in to your procurement and project management processes. Any issue that can affect contract performance/delivery must be escalated quickly for resolution.

Bidding on unprofitable work

Today, when lowest price, technically acceptable typically beats out best value (though recent legislation directs more limited use of LPTA procurements), contractors often estimate their cost to fit the price they want to bid and what they think the government is willing to pay. Instead, you should be focusing on the actual cost required to address the government’s mission-stated requirements.

Even though you may know that the “price to win” is too low to perform the work adequately, the proposal development organization might not want to deviate from that winning number.

To avoid bidding on unprofitable work, you should develop a comprehensive estimating manual and system so that your estimated costs are based on real costs/prices currently in the marketplace. As part of this, build and encourage a corporate culture that incentivizes employees for more profitable work as opposed to contract wins exclusively.

As no contract is termination proof, the key is to always be prepared and have a defense strategy in place at all times.”

About the Authors

Darrell Hineman is the director of the government compliance group at the accounting, tax and advisory firm CohnReznick LLP. https://www.cohnreznick.com/industries/government-contracting

Brian Courtney is a senior manager at the accounting, tax and advisory firm CohnReznick LLP. https://www.cohnreznick.com/industries/government-contracting

https://washingtontechnology.com/articles/2017/06/09/insights-contractor-termination.aspx

 

For more information on the types of contract terminations, preparing for them and managing them, please see the article linked below:

http://www.smalltofeds.com/2011/08/federal-government-contract.html

GAO: “Late Means Late for Contract Proposals”

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Image: National Defense Magazine

“NATIONAL DEFENSE MAGAZINE” By By Julia Lippman and Jason Workmaster

“GAO’s opinion should serve as a warning to contractors that a late proposal will not be considered.

Especially with the use of electronic submission processes, a matter of seconds can be the difference between a timely and late proposal.

The Government Accountability Office on Feb. 27 reiterated its long standing rule that, when it comes to proposal submissions, “late” means “late.”

GAO addressed a protest filed by Tele-Consultants Inc. in connection with a request for proposals issued by Naval Sea Systems Command. TCI’s protest argued that its proposal was improperly rejected by the agency for being submitted after the deadline.

Under the request for proposals, the Navy sought support services for the Naval Undersea Warfare Center through the issuance of a task order to a small business holder of the SeaPort-e multiple award indefinite-delivery/indefinite-quantity contract. The solicitation was issued Sept. 28, 2016 and proposals were to be submitted electronically through the SeaPort-e portal by Nov. 8 at 2:00 p.m. eastern time. The solicitation required compliance with the proposal submission instructions outlined in the SeaPort-e multiple award contract and the SeaPort Vendor Portal User Guide.

In using the portal, contractors were required to designate an “authorized user” who could confirm the intent to engage in a legally binding action, such as submitting a proposal. When a contractor was ready to submit its proposal, its authorized user was required to use the “submit signed proposal” button. The portal would then generate a confirmation prompt that would require the user to confirm his or her intent to electronically sign and submit the proposal.

The portal was set up so that contractors could store their proposals on the contractor side of the portal prior to submitting their proposal.

The agency received three proposals by the deadline. TCI’s proposal was not among them. Rather, TCI’s proposal remained in its draft form on the contractor side of the portal because it had not engaged the submit button.

Based on a review of the server logs, the agency determined that TCI’s representatives had unsuccessfully tried to engage the button 23 and 34 seconds after the proposal deadline. TCI reached out to the contracting officer by phone and email stating that the proposal button had not allowed it to submit its proposal but that “TCI’s proposal was timely submitted and it was intended to be binding on TCI.”

TCI received an email that evening from the SeaPort-e portal that noted that, “[a]n event for which you created a draft proposal has closed without you completing the final submission process. As a result, the draft will not be considered.” There was no indication that the portal had experienced any technical malfunction that would have prevented TCI from timely submitting its proposal.

TCI argued that its proposal should not have been rejected because, even though it did not receive notice that its proposal was timely submitted, its proposal was, in fact, submitted on time. Additionally, TCI argued that, even if its proposal was late, it was in the government’s control and was, thus, subject to the exception set forth in FAR 15.208. Under FAR 15.208, proposals that are submitted after the deadline are late unless, among other exceptions, there is evidence that the proposal “was received at the government installation designated for receipt of proposals and was under the government’s control prior to the time set for receipt of proposals[.]”

TCI argued that the archival lock on proposal files was acceptable evidence to establish that its proposal was received at the government installation designated for receipt of proposals and was under the government’s control prior to the time set for receipt of proposals.

The agency responded that TCI’s failure to engage the button meant that TCI had failed to submit its proposal either on time or after the deadline. The agency explained that proposals were not added to the government side of the portal until the submit button was selected. Thus, TCI’s proposal was never received by the government or under the government’s control. The agency also proffered that it could not know if TCI meant to be legally bound by its proposal in light of its failure to engage the button.

Although noting that it was not clear that FAR 15.208 even applied to this FAR Part 16 procurement, GAO nevertheless agreed with the agency and found that TCI failed to submit its proposal. GAO reiterated the well-established rule that an offeror is responsible for delivering its proposal to the designated place by the designated time and that an agency is not required to consider a proposal when there is no evidence that it was “actually received” by the agency.

GAO found that there was no evidence that TCI had actually submitted its proposal to the agency as the electronic submission of a legally binding offer was not completed. TCI did not dispute that it tried to use the submit button after the 2:00 p.m. EST deadline. And TCI never engaged the button even though it tried to do so. TCI’s failure to engage the button meant that it had never submitted a legally binding proposal. GAO concluded that it had “no basis to challenge the agency’s decision that it had not received, and could not consider, TCI’s draft proposal.”

Contractors should take extra care when submitting a proposal electronically to ensure that all proper submittal steps for the submission of a legally binding proposal have been completed well before a proposal deadline.

Additionally, a proposal stored on a government portal may not be sufficient to establish it was in the government’s control.”

Jason N. Workmaster is of counsel and Julia Lippman is an associate in the government contracts practice at Covington & Burling LLP.

http://www.nationaldefensemagazine.org/articles/2017/6/15/late-means-late-for-contract-proposals