Tag Archives: Government Regulations

Techniques for Small Business Product/Services Development in Government Contracting

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product_development

Image:  Getentrepreneurial.com

“SMALLTOFEDS” By Ken Larson

“INTRODUCTION

This article will suggest approaches in developing a product or service to the point where it can be marketed in the small business federal government contracting venue. Individuals usually succeed at such an endeavor by forming a company, separating it from their personal assets and then developing the company and its product(s)/service(s); even if it is only a one-person operation at the start.

There are techniques for small business to gain government participation in growing an idea into a company. Small Business Innovative Research and Technology Transfer (SBIR/STTR) programs in major federal agencies seek concepts that can be funded and developed into products the government needs. Here are some examples:

DOD SBIR/STTR Small Business Portal

National Institute of Health SBIR/STTR

Service contracting is another form of gaining entrance into the market, creating opportunities for introducing products by selling skilled labor under a government agency service contract or prime contractor teaming arrangement.

A GSA schedule affords a platform for products and services, but sales must have been achieved historically in the commercial or government markets before applying because GSA relies heavily the most recent 2-year pricing data in negotiating a schedule.

The government contracting product and services venue is competitive and requirements by federal agencies are often bundled into larger systems procurements. Therefore, it is necessary first to position a small enterprise and its product offerings before tapping the federal market for development support.

GENERAL OVERVIEW

Product entrepreneurs all face the same challenges. Those who succeed recognize they need to visualize themselves in the product development business, structuring an enterprise, generating a business plan, protecting intellectual property and then seeking industry partners and investors to bring the product to market.

In the process, copyrights, patents and royalty issues may come into play and development and distribution agreements are formed. Pricing is finalized based on cost and expense projections and competitive factors unique to the company as negotiation results are achieved with industry teaming partners, developers, manufacturers and distributors.

Financing is always a factor and can be achieved through loans or investors with a good business plan. The remainder of this article will address the basic elements of a framework within which to succeed with your product development for federal government contracting.

BUSINESS STRUCTURE

For the majority of individuals who are starting single person or no more than 2 or 3 person operations, a Limited Liability Company (LLC) registered with the state and with the federal government is recommended.

It will separate personal assets from company assets and protect them. When product or services sales begin generating revenue an LLC has many tax advantages. It can be registered as Sub Chapter ‘S’ for tax purposes and revenue and the expenses can be passed through to personal tax returns, paying no taxes as a company. The double taxation issue prevalent with many of the other types of incorporation is avoided with a Sub chapter “S” LLC. An LLC assists in limits your personal liability for debt and court judgments that may not fall in your favor.

Representing the business as a company allows pursuing financing as an enterprise. You can think of a creative name for your LLC and you can complete the articles of incorporation necessary to bring your enterprise into existence. The term, “LLC” must conclude the name of your company if you decide to form such an organization.

Instructions for registering in your state and federally with the IRS are available at your state web site and at the IRS site. You will receive tax and employer identification numbers by registering your business.

PROTECTING INTELLECTUAL PROPERTY

Patents and copyrights for your idea may ultimately protect you to a degree but the government agencies granting them have no enforcement arm so you must discover a violation yourself, retain a lawyer, bring a court proceeding against a violator and then hope to recover your costs and a reasonable settlement if you win.

The U.S. Patent System

Therefore, most of my clients use non-disclosure agreements (NDA’s) in dealing with other companies. Teaming is a practical fact of life in pursuing the larger federal government contracts.

You can download an NDA from the “References” Box Net Cube at the right margin of this site. Fill in the blanks as appropriate for a given exchange with outside individuals and companies. Before you meet to disclose details with a potential teaming company or investor, for instance, ask them to sign the document with you up front, put a serial number on it and reference the serial number and the agreement and date on any written materials you give to them.

After the meeting draft a short letter, documenting the minutes of the meeting, what was discussed and stating that the verbal disclosures and materials in the meeting are subject to the agreement and reference the agreement by number and date. Put an acknowledgment line on the letter and ask them to return a signed copy to you. This confirms their receipt of your proprietary information and their agreement to protect it in accordance with the NDA.

There are certain exceptions with regard to individuals or companies you may be dealing with on investing where you may not choose to use an NDA. Some Angel and Capital Investors are sensitive about being asked to sign them. You will have to trade their objections off against the value they represent to your company and conduct your risk analysis on a case-by-case basis.

For detail information asserting rights in technical data and software to government agencies and protecting intellectual property with other companies please see the following article:

Protecting Intellecutal Property

BUSINESS PLANNING

Visit the SBA website on business planning. There are major topics in the business planning process which, when addressed in a plan, will insure the success of your enterprise and assist you in determining and supporting the amount of funding you need. Such topics as marketing, advertising, competitor analysis and financing are covered there. You will find a presentation and examples that you can follow in improving your plan or in generating a plan if you do not have one. The link to the site is below:

Writing a Business Plan

Articles on strategic planning and developing your marketing plan are also at the “References” Box Net Cube at this site. They address evolving an operations vision for your enterprise showing its potential to present to a banker or to an investor.

Here is a site with free business plan samples:

Business Plan Samples

It may assist you in visualizing your own business growth to look at an example of how someone else addressed a given topic. I have learned from having worked with many new business owners that it is best to have you examine the material and continue your plan, contacting me with issues and questions as they occur.

THINGS TO THINK ABOUT WHILE PLANNING

Locate teaming companies to further the objective that they would market your product as part of their offerings with your company licensing and sharing in the proceeds.

A business plan and the guidance above for its generation is the road map for developing ideas, laying out how to expand the sales of your product and researching your market to do so. It will also assist in developing pricing to considering the direct costs of product development, service implementation and distribution as well as the indirect costs of the enterprise itself (operating expenses).must be considered and financed.

A negotiation position for a given product will be driven by certain strategic factors:

1. Does a developer or teaming partner have a strong but realistic incentive to actively make the product a part of the marketplace?

2. Does market research indicate the idea will have strong sales volume once it is developed and distributed?

3. How much will a prospective teaming partner or investor have to invest in the product to get it to market? Does the product require testing?

4. Which is the better deal? Is it better to receive a 7% royalty on $5,000 worth of sales or a 1% royalty on $500,000 of sales? Even though 1% does not sound too impressive, of course it’s the better choice in this example.

A negotiation position should be based on support by for the argument that a concept will experience a certain level of sales and the royalty should be based on a % of estimated end user volume sales, discounted for the investment that the developer and distributor must make to get it to market.

The royalty should be outside of the distributor cost breakdown and the end user cost breakdown. It is simply a deductive factor the manufacturer will have to introduce into their profit equation after the costs have been tabulated. They should not view royalties as a cost factor; they should view them as a share of the profit on the total estimated sales.

Chances of succeeding with a negotiation with a developer and/or distributor are increased by showing understand the prospective market for the product and drawing some comparisons between the product and other similar successful products.

Naturally there will be some give and take with the other side about estimated costs to get the product to market. Be forthright in acknowledging their investment but also support a position with some research and comparative data on the product potential.

Lastly, settle on a % of the end user sales volume based on an estimate to which is agreed with the other party and insures that the purchase agreement for royalties entitles the agreed upon % on all future sales.

FINANCING

The SBA assists prospective business owners in completing sound business plans, which can then be presented to a banker in applying for financial assistance.

In the event that 2 banking institutions deny a loan application, a candidate can apply to the SBA for a loan guarantee that may assist in achieving a loan, since it would back up the application to a bank.

Loan officers are interested in a business plan to get a view of the business future and place a value on products and services based on the market, the competition, the sales projections, costs, expenses and profit expectations. The link to the SBA loan guarantee program is below:

SBA Loans and Grants

Veterans have access to small business loans via the Patriot express program:

Patriot Express Program

ANGEL AND CAPITAL INVESTORS

Angel and private investors have two prominent characteristics:

(A) They want a high return on investment (ROI)

(B) They typically want a great deal of control of the operation.

According to the Colorado Capital Alliance, surveys of angel investors show that:

1. Angels are seeking companies with high growth potential, proven management and sufficient information about the company, its management team, and its market to be able to assess a company’s value.

2. On average, Angels expect 10 to 15 percent above of the S&P 500 return on equity.

3. Typically, Angels invest in companies seeking between $50,000 and $1,000,000.

4. Angels generally prefer to finance manufacturing or product-oriented ventures, especially in the high-tech fields.

5. On average, Angels are 47 years old, have a postgraduate degree, and management experience in an entrepreneurial venture.

An angel investor may ask for at least ten to twenty times return in just five years. For many angel investors, it’s not just about the money; they want to actively participate in developing your business. They want to act as a mentor and sometimes even to take an active role in managing the company. This often translates into the angel investor having a seat on the company Board of Directors.

Angels are also highly interested in an exit strategy from for a full return on their investment in your business. The closest thing to it is an astute business plan that calls out the specifics of potential ROI, based on sound planning and analysis and addresses the following as possible exit strategies. Remember, investors are very aware that an exit strategy cannot be guaranteed. But they can be offered more than the wishful thinking that an IPO will occur in three years.

It is always good to have a lawyer involved in complex documents or in the development of documents. This will further protect a concept. A lawyer does not necessarily have to be present during the exchanges with prospective companies, but a lawyer review and comment on documents before they are signed.

SUMMARY

This article has conveyed preliminary steps for the small business in product development for the federal marketplace.

It should be noted that much of the process discussed in this article is the same for the commercial product development and a certain amount of commercial success is usually achieved before selling products in the government contracting venue. The exception to that rule is in highly technical product pursuits where the government is funding advanced development.

To consider non-profit grants and direct government contract funding potential please see the following article:

Grants Vs, Direct Government Contracts

Once a company is formed, a product platform established and a position to market a useful product to the federal government is achieved, please see the following articles at this site in developing a marketing plan

Registering Your Business For Government Grants and Contracts

Multiple Front Marketing

Should You Consider Small Business Governement Contracting?

Small Business Teaming

With careful structuring, planning and marketing, a product with potential can find its place in federal government contracting.”

Smalltofeds – Techniques for Product Development

ABOUT THE AUTHOR:

Ken Portrait

Ken Larson has over 40 years in the Military Industrial Complex. He is a veteran of 2 tours in the US Army Vietnam. Subsequently Ken spent over 30 years in federal government program and contract management and 10 years in small business consulting. As a Micro Mentor Volunteer Counselor, he assists many small businesses with their planning and operations processes. 

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Military Kills Recruiting Contracts for Hundreds of Immigrant Recruits

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Thirty-seven service members from 22 different countries take the Oath of Allegiance during a naturalization ceremony held at Bagram Air Field, Afghanistan on July 4, 2013. (Army/Sgt. Anita VanderMolen)  

“WASHINGTON POST”

“Many of these enlistees have waited years to join a troubled recruitment program designed to attract highly skilled immigrants into the service in exchange for fast-track citizenship.

U.S. Army recruiters have abruptly canceled enlistment contracts for hundreds of foreign-born military recruits since last week, upending their lives and potentially exposing many to deportation, according to several affected recruits and former military officials familiar with their situation.

Now recruits and experts say that recruiters are shedding their contracts to free themselves from an onerous enlistment process, which includes extensive background investigations, to focus on individuals who can more quickly enlist and thus satisfy strict recruitment targets.

Margaret Stock, a retired Army officer who led creation of the immigration recruitment program, told The Washington Post that she has received dozens of frantic messages from recruits this week, with many more reporting similar action in Facebook groups. She said hundreds could be affected.

“It’s a dumpster fire ruining people’s lives. The magnitude of incompetence is beyond belief,” she said. “We have a war going on. We need these people.”

The nationwide disruption comes at a time when President Trump navigates a political minefield, working with Democrats on the fate of “dreamers” — undocumented immigrants brought to the country as children — while continuing to stoke his anti-immigrant base. It was not immediately clear whether Pentagon officials have taken hard-line immigration stances from the White House as a signal to ramp down support for its foreign-born recruitment program.

Stock said a recruiter told her there was pressure from the recruiting command to release foreign-born recruits, with one directive suggesting they had until Sept. 14 to cut them loose without counting against their recruiting targets, an accounting quirk known as “loss forgiveness.”

The recruiter told Stock that the Army Reserve is struggling to meet its numbers before the fiscal year closes Sept. 30 and that canceling on resource-intensive recruits is attractive to some recruiters, she said.

On Friday, the Pentagon denied ordering a mass cancellation of immigrant recruit contracts and said there were no incentives to do so. Officials said that recent directives to recruiters were meant to reiterate that immigrant recruits must be separated within two years of enlistment unless they “opt in” for an additional year.

But some recruits among half a dozen interviewed for this article said they were not approaching that two-year limit when their contracts were canceled, sowing confusion about the reason they were cut loose. The Pentagon declined to address whether messages to recruiters contained language that could have been misinterpreted.

Lola Mamadzhanova, who immigrated to the United States from Kyrgyzstan in 2009, said she heard that Army recruiters in Evanston, Ill., texted immigrant recruits last week asking whether they still wanted to enlist, with an unusual condition: They had 10 minutes to respond. She never received the text message.

“The recruiters did some dirty trick just to get me out so I won’t be trouble anymore,” Mamadzhanova, 27, told The Post on Thursday. Her active-duty contract was canceled Sept. 7, according to a separation document obtained by The Post that said she “declined to enlist.” She later learned the recruiters used a wrong number to text her.

The senior recruiter at Mamadzhanova’s station contacted by The Post declined to comment and called Mamadzhanova seven minutes afterward to reverse previous guidance, saying her unlawful immigration status was the reason she was released. She enlisted in December 2015, which puts her three months outside the two-year limit.

Mamadzhanova was assured by other recruiters that her status would not be an issue and that she would ship for training soon after her immigration status slipped, around her enlistment date. Mamadzhanova, who is fluent in Russian, said the shifting and unclear rules have blindsided her.

“Joining the Army was a dream of mine since America has treated me so well,” she said. She applied for asylum in April, joining other recruits who have sought asylum or fled.

Some anti-immigration sentiment has swirled in the Pentagon for years, former staffers have said, with personnel and security officials from the Obama administration larding the immigrant recruiting process with additional security checks for visa holders already vetted by the Departments of State and Homeland Security.

“Immigrant recruits are already screened far more than any other recruits we have,” Naomi Verdugo, a former senior recruiting official for the Army at the Pentagon, told The Post.

“It seems like overkill, but there seems to be a sense that no matter what background check you do, it’s never enough,” she said. Verdugo, along with Stock, helped implement the recruitment program.

One Indian immigrant, a Harvard graduate and early recruit who is now a Special Forces soldier, was called back to undertake the updated security checks, she said.

“Even though you’re in the Army, even though you’re naturalized, these policies say ‘we’re not going to treat you like any other soldier,’” Verdugo said of the concerns over immigrants held by some at the Pentagon.

Internal Pentagon documents obtained by The Post have said the immigrant recruitment program, formally known as the Military Accessions Vital to National Interest (MAVNI) program, was suspended last fall after the clearance process was paralyzed and officials voiced concern over foreign infiltrators, though it remains unclear whether any threats have ever materialized.

Experts say the relatively small number of recruits in the MAVNI program possess skills with outsize value, such as foreign languages highly sought by Special Operations Command. The program has rotated 10,400 troops into the military, mostly the Army, since its inception in 2009.

Although the military says it benefits from these recruits, they can generate a disproportionate amount of work for recruiters who must navigate regulations and shifting policies. The layered security checks can add months or years to the enlistment process, frustrating recruiters who must meet strictly enforced goals by quickly processing recruits.

In a summer memo, the Pentagon listed 2,400 foreign recruits with signed contracts who are drilling in reserve units but have not been naturalized and have not gone to basic training. About 1,600 others are waiting to clear background checks before active duty service, the Pentagon said.

The document acknowledges 1,000 of those troops waited so long that they are no longer in legal status and could be exposed to deportation. That number probably has climbed since the memo was drafted in May or June. Lawmakers have asked Trump and Defense Secretary Jim Mattis to intervene on behalf of those recruits.

Sens. Kamala D. Harris (D-Calif.) and Richard J. Durbin (D-Ill.) filed an amendment in the defense authorization bill Tuesday to retain MAVNI recruits until their lengthy background investigations are finished.

“These brave men & women enlisted & the Administration turns its back on them,” Harris tweeted Friday. “We must pass Sen. Durbin’s & my bill to protect these recruits.”

During July 19 testimony in a lawsuit filed by recruits who said the federal government unlawfully delayed their naturalizations, Justice Department attorney Colin Kisor assured a district court in Washington that recruits would see their contracts canceled only if “derogatory” information was found in extensive background investigations.

Mamadzhanova and others said their screenings, which take months to complete, have begun recently and could not have returned results.

Meanwhile, confusion reigned for recruits in multiple states.

At one office in Illinois, a senior recruiter restored a contract less than two hours after The Post inquired about a case. In Texas, a recruiter did the same 12 minutes after a call seeking to confirm whether a recruit’s contract was canceled.

An immigrant recruit who came to the United States in 2006 and enlisted in Virginia said her contract was canceled Tuesday after she had waited for two years, just as her legal immigration status expired. She asked to opt-in for another year, but her contract was dissolved days later, she said.

Recruiters had assured her, saying her contract was a shield from federal immigration authorities, she said. She spoke on the condition of anonymity for fear of retribution.

She now fears deportation to her native Indonesia, which strips native-born people of citizenship if they enlist in a foreign military or pledge loyalty to another country, as she has done.

“I feel devastated,” she said. “The Army was my only hope.”

GAO to Agencies: Stop Using Social Security Numbers

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Social Security for Everything

“FEDERAL TIMES”

“Federal agencies continue to over-collect, over-use and over-display Social Security numbers, leading to the an unnecessarily high risk of identity theft.

That’s the latest from the U.S. Government Accountability Office. In a recent report GAO declares that a decade’s worth of effort to pare the use of SSNs in government has had only “limited success.

While all 24 agencies covered by the Chief Financial Officers (CFO) Act have developed plans to the reduce the use of SSNs, they have been hampered in implementing those plans.

Agencies cited statutes and regulations mandating SSN collection. They told inspectors that SSNs often are necessary in interactions with other federal entities, and that technological constraints within agency systems and processes have hampered their efforts to reduce the use of the identifier. “Further, poor planning by agencies and ineffective monitoring by OMB have also limited efforts to reduce SSN use,” GAO notes.

The report comes at a time when Congressional overseers have focused their scrutiny on the apparent over-use of SSNs in government. This spring the House Ways and Means Social Security Subcommittee and the Oversight and Government Reform Information Technology Subcommittee held a joint hearing on the subject.

“Our SSNs are connected to so many personal aspects of our lives — from our Social Security benefits and finances, to our medical histories and education,” said the hearing’s chair, Rep. Tom Rice (R-SC). “This hearing is about making sure that SSNs are only used when necessary and that the federal government is doing what it can and what it should to make sure that when SSNs are used and collected, they are kept safe.”

Some federal entities have taken action. GAO points to the Department of Defense, which has replaced SSNs on its identity cards. Nonetheless, use of SSNs is widespread. Of the 24 CFO Act agencies, 22 use the identifier for employee benefits and services; 17 use it for law enforcement; 16 for statistical and research purposes; 13 for tax purpose and 12 for other uses.

The fix should come from OMB, which could set standards for how the rest of government handles SSNs.”

https://www.federaltimes.com/federal-oversight/watchdogs/2017/08/30/gao-to-agencies-stop-using-social-security-numbers-for-everything/

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/

 

 

 

Senate Attempt to Reduce Contract Protests Ignores Root Cause

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Protests Myislandcity dot net

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.

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

The “Freedom Of Information Act” (FOIA) Turns 51 Years Old

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flag_and_fireworks_575 FOIA Photo biy US Dept. of Transportation

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“THE PROJECT ON GOVERNMENT OVERSIGHT”

“What Is It and Why Does It Matter?”

“Happy birthday to the Freedom of Information Act! Originally enacted in 1966, FOIA created a way for all citizens to obtain information from the federal government.

It requires federal agencies to release any requested information that is not covered by its nine exemptions, and requires agencies to make basic information about their policies available to the public.

The FOIA Improvement Act included some great updates to the landmark access-to-information law, like improved requirements for agencies to proactively post documents online and a new standard of transparency.

But what is FOIA?

Originally enacted in 1966, FOIA created a way for all citizens to obtain information from the federal government. It requires federal agencies to release any requested information that is not covered by its nine exemptions, and requires agencies to make basic information about their policies available to the public. FOIA is a tool commonly used by researchers, historians, journalists, and the public to discover information about possible environmental contamination near their property, the safety of consumer products, and more, and it is being used more than ever before, with almost 800,000 requests submitted in 2016. Many of POGO’s own investigations rely on documents we obtain through FOIA.

While there are still problems with the law that must be addressed and continued threats against it, today is about celebrating and looking back on the impact it has had so far. The Sunshine In Government Initiative launched a Tumblr last year that rounds up news stories that wouldn’t have been possible without the landmark transparency law, and journalists continue to use FOIA every day.”

http://www.pogo.org/blog/2017/07/foia-turns-51-what-is-it-and-why-does-it-matter.html

 

 

 

 

Neutrality Matters

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Net Neutrality CNN dot com

Image:  CNN.com

“WIRED”

“In a time when there are too few companies with too much power – we need net neutrality now more than ever.

Getting rid of Title II would lead to even more centralization, handing more power to the largest Internet companies while stifling competition and innovation.

Next month, Amazon, Netflix, and dozens of other companies and organizations will host a “day of action” aimed at saving net neutrality as we know it. The Federal Communications Commission, meanwhile, is on the verge of revoking its own authority to enforce net neutrality rules, and the country’s biggest telecommunications companies are cheering along. The future of the internet is on the line here, but it’s easy to be cynical about the conflict: What does it matter which set of giant corporations controls the internet?

Under the current net neutrality rules, broadband providers like Comcast and Charter, and wireless providers like AT&T and Verizon, can’t block or slow down your access to lawful content, nor can they create so-called “fast lanes” for content providers who are willing to pay extra. In other words, your internet provider can’t slow your Amazon Prime Video stream to a crawl so you’ll keep your Comcast cable plan, and your mobile carrier can’t stop you from using Microsoft’s Skype instead of your own Verizon cell phone minutes.

If the Trump administration gets its way and abolishes net neutrality, those broadband providers could privilege some content providers over others (for a price, of course). The broadband industry says it supports net neutrality in theory but opposes the FCC’s reclassification of internet providers as utility-like “Title II” providers, and that consumers have nothing to worry about. But it’s hard not to worry given that without Title II classification, the FCC wouldn’t actually be able to enforce its net neutrality rules. It might be less alarming if the internet were a level playing field with free and fair competition. But it’s not. At all.

If you want to search for anything online, you’ve got to go through Google or maybe Microsoft’s Bing. The updates your Facebook friends share are filtered through the company’s algorithms. The mobile apps you can find in your phone’s app store are selected by either Apple or Google. If you’re like most online shoppers, you’re mostly buying products sold by Amazon and its partners. Even with the current net neutrality laws there’s not enough competition—without them, there will be even less, which could stifle the growth and innovation that fuels the digital economy.

Fast lanes or other types of network discrimination could have a big impact on the countless independent websites and apps that already exist, many of which would have to cough up extra money to compete with the bigger competitors to reach audiences. Consider the examples of Netflix, Skype, and YouTube, all of which came of age during the mid-2000s when the FCC’s first net neutrality rules were in place. Had broadband providers been able to block videos streaming and internet-based phone calls in the early days, these companies may have seen their growth blocked by larger companies with deeper pockets. Instead, net neutrality rules allowed them to find their audiences and become the giants they are today, and without net neutrality, they could even potentially become the very start-up-killers that would’ve slowed or stopped their own earlier growth. Getting rid of net neutrality all but ensures that the next generation of internet companies won’t be able to compete with the internet giants.

The end of net neutrality could also have ranging implications for consumers. Amazon, Netflix, YouTube, and a handful of other services may dominate the online video market, but without net neutrality, broadband providers might try to make it more expensive to access popular streaming sites in an attempt to keep customers paying for expensive television packages. “[Net neutrality] protects consumers from having the cost of internet go up because they have to pay for fast lane tolls,” says Chris Lewis, vice president of the advocacy group Public Knowledge.

Lewis also points out that there are a few other consumer friendly protections in the FCC’s net neutrality rules. For example, the FCC rules require internet service providers to disclose information about the speed of their services, helping you find out whether you’re getting your money’s worth. They also force broadband providers to allow you to connect any device you like to your internet connection, so that your provider can’t force you to use a specific type of WiFi router, or tell you which Internet of Things gadgets you can or can’t use.

“The Internet is as awesome and diverse as it is thanks to the basic guiding principle of net neutrality,” says Evan Greer, campaign director for Fight for the Future, one of the main organizers of the net neutrality day of action, which will take place on July 12 and try to raise awareness about net neutrality across the web.”

https://www.wired.com/story/why-net-neutrality-matters-even-in-the-age-of-oligopoly/

Are You Prepared for a Contract Cancellation?

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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