- 1. What Every Corporate CounselNeeds To Know About Doing
BusinessWith the Federal Government Presented By:
- David Kessler, Symantec Corporation
- Scott Hommer, Venable LLP
2008 Venable LLP 2. Major Differences Between Government and
Commercial Contracting
- Government policy establishes competition criteria for
procurements
- Government contracts contain extensive clauses, many of which
are non-negotiable by law
- Government may terminate a contract for failure to make
progress or for its convenience
- Extensive reporting requirements
- Company determines competition criteria
- Uniform Commercial Code and agreed-upon provisions govern the
contract
- Unilateral termination right is usually not available unless
mutually agreed upon
- Social pressures dictate whether socioeconomic policies are
included, some required by law
- No reporting required unless agreed upon by the parties
2008 Venable LLP Government Contracting Commercial Contracting
3. Understanding Government Contracts 2008 Venable LLP Sealed
Bidding (IFB) Contract Awarded: Responsible Bidder with Lowest
Responsive Bid Contract Awarded: Best Value Proposal Bid Protest
Competitive Negotiation (RFP) Federal Acquisition Regulation (FAR)
Full and Open Competition Contract Performance Contract Performance
4. Understanding Government Contracts Contd 2008 Venable LLP Court
of Federal Claims Decision Agency Level Protest GAO Decision Bid
Protest Contract Performance Contract Close-Out Claims &
Disputes 5. Basic Structure of Government Contracts
- Section A: Solicitation/Contract Form
- Section B: Supplies or Services and Prices/Costs
- Section C: Description/Specs/Work Statement
- Section D: Packaging and Marking
- Section E: Inspection and Acceptance
- Section F: Deliveries or Performance
- Section G: Contract Administration Data
- Section H: Special Contract Requirements
- SectionI: Contract Clauses
- Section J:List of Attachments
- Section K: Representations, Certifications, Other Offeror
Statements
- Section L: Instructions, Conditions, Notices to Offerors
- Section M: Evaluation Factors For Award
2008 Venable LLP 6. The Regulations
- Federal Acquisition Regulation (FAR)
-
- Sets forth policies and procedures for acquisitions by all
executive agencies.
-
-
- Codified at Title 48 of the Code of Federal Regulations.
-
- While the FAR is the primary document, each agency may and most
often does adopt acquisition regulations that supplement the
FAR.
-
-
-
- Department of Defense (DFAR)
-
-
-
- Department of Agriculture (AGAR)
-
-
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- Department of Education (DEAR)
-
-
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- Environmental Protection Agency (EPAAR)
-
-
-
- Department of Transportation (TAR)
- The FAR and Agency Supplements to the FAR Include Standard
Solicitation Provisions and Contract Clauses.
2008 Venable LLP 7. Non-Negotiability of Almost All Clauses
- No deviations from Standard FAR Clauses
-
- Individual deviations affect only one contract action, and . .
. may be authorized by the agency head.FAR 1.403
-
- But under FAR Part 12 Commercial Item Acquisition Contracting
Officers may tailor
- To challenge the inclusion of a clause in a solicitation, an
offeror must protest the terms of a solicitation prior to
bidding
2008 Venable LLP 8. Contract Types (FAR part 16)
- Time-and-materials; Fixed Labor Hour
-
- Risk to Contractors Varies With Contract Type
-
- Contract Type Will Drive Application of Certain FAR
Provisions
2008 Venable LLP 9. Acquisition Methods:Soliciting Bids /
Proposals
- Full and Open Competition
-
- In 1984, theCompetition in Contracting Act (CICA)was enacted,
requiring executive agencies to achieve full and open competition
in the acquisition process unless an enumerated exception
applies.
-
-
-
- Government issues anInvitation for Bids (IFB)
-
-
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- Rigid adherence to formal procedures
-
-
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- Agency must award to the responsible bidder with the lowest
responsive bid
-
-
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- Government issues aRequest for Proposals (RFP)
-
-
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- Agency may conduct discussion, evaluate offers, permit
revisions, and award the contract using price and other
factors
2008 Venable LLP 10. Exceptions to Full & Open Competition:
GSA Schedule Contracting & GWACS
- Federal Supply Schedule (FSS) Contracts
-
- Under the GSA Schedules (also referred to as Multiple Award
Schedules and Federal Supply Schedules) Program, GSA establishes
long-term, government-wide contracts with commercial firms to
provide access to over 11 million commercial supplies (products)
and services that can be ordered directly from GSA Schedule
contractors or through the GSAAdvantage! online shopping and
ordering system.
2008 Venable LLP 11. Exceptions to Full & Open Competition:
GSA Schedule Contracting & GWACS
- Blanket Purchase Agreements (BPAs)
-
- A simplified method of filling anticipated repetitive needs for
services and supplies
-
- Akin to "charge accounts" established with schedule contractors
by ordering agencies
- Government-Wide Acquisition Contracts (GWACs)
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- Issued by Agencies Other Than GSA, Usually for a Discrete Range
of Supplies or Services
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- ITOP - IT Omnibus Procurement - includes technical services,
hardware and software
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- Millennia Lite Performance based, full spectrum IT
-
- MOBIS - Management, Organizational and Business Improvement
Services
2008 Venable LLP 12. Multiple Award Contracts (MACs)
- Historically, Single Award Contracts (i.e., one contract, one
contractor) Were the Norm
- Federal Acquisition Streamlining Act of 1994 (FASA)
-
- Made multiple award a preference over single award
contracts
- MACs Emphasize the Task Order Environment
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- Individual contract order placed under overall contract
vehicle
- Competition for Task Orders is Limited to MAC Contractors
- Limited Right to Protest Task Order Award
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- Items that can be protested include maximum value, scope or
period, or orders in excess of $10M
2008 Venable LLP 13. Unique Concepts of Government
Contracting
- Actual Authority Doctrine
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- Only those with actual authority may bind the government
-
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- Contracting Officer versus COTR
- Termination for Convenience
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- Government may terminate in whole or in part at any time when
in the Governments best interest
- Flowdowns to Subcontractors
-
- Many standard FAR contract clauses require the prime contract
to make the terms of such clauses applicable to its
subcontractors
-
- Prime Contractors often go beyond mandatory flow-down clauses
and impose additional or different terms and conditions, leading to
issues for negotiation
-
- Allows the Government tounilaterallyissue orders to the
contractor to change the terms of the contract
-
-
- Contractor may submit request for equitable adjustment to
price, schedule and other applicable terms
-
- FAR Part 12 requiresbilateralmodifications to change the terms
of the contract
2008 Venable LLP 14. Unique Concepts of Government
Contracting
-
- In the event that the Government contracting officer fails to
include a mandatory contract clause in a prime contract, the
omitted clause will be read into and made applicable to the
contract by operation of law under theChristiandoctrine, enunciated
inG.L. Christian & Assoc. v. U.S .
- Commercial Item Acquisitions
-
- To implement the Federal Governments preference for acquiring
commercial items, policies and procedures more closely resembling
those of the commercial marketplace were added to the FAR.
-
- For commercial item acquisitions, Government contracting
officers are authorized to tailor all but a few of the standard FAR
contract clauses in a manner that is not inconsistent with
customary commercial practice for the item being acquired.
2008 Venable LLP 15. Unique Concepts of Government
Contracting
- Truth in Negotiations Act (TINA)
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- Contractors must submitcost or pricing datawhere any negotiated
contract is expected to exceed $500,000
-
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- Government obtains substantial visibility into underlying
elements of pricing
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- Define when and to what extent costs can be recovered under a
government contract
-
-
- All costs must be allowable, allocable, and reasonable
- Cost Accounting Standards (CAS)
-
- Certain contractors and subcontractors are required to comply
with CAS and to disclose in writing, and follow consistently, their
cost accounting practices.
-
- Government may audit a contractors proposal price, as well as
any other data of the contractor for up to three years after the
final contract payment
-
- DCAA audits many aspects of government contractor operations,
including: purchasing, government property, estimating,
compensation, and management information systems
2008 Venable LLP 16. Bid Protests
- Choice of Forum = CO, GAO, USCOFC
- Varying Degrees of Discovery
- Protective Orders for Competition Sensitive and Source
Selection Sensitive Information
- Stay of Contract Performance During the Pendency of the
Protest
2008 Venable LLP 17. Contract Disputes Act of 1978
- Contract Disputes Act (CDA)
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- Codified a special process for disputes arising under a
government contract between the Government and the contractor
-
- Contractors must follow the mandated procedures of the CDA, or
risk waiving or otherwise losing their right to proceed against the
agency
-
- The FAR implements the CDA through the standard disputes
clause
- The Disputes Clause Defines a Claim as:
-
- A written demand or written assertion by one of the contracting
parties seeking, as a matter of right, the payment of money in a
sum certain, the adjustment or interpretation of contract terms, or
other relief arising under or relating to [the] contract.
- Contractors Must Continue Performance Pending Resolution of a
Dispute with the Government
2008 Venable LLP 18. Presentation of a Claim
- Contractor Initiates the Dispute Process by Submitting a Claim
to the Contracting Officer (CO)
- Claims Over $100,000 Must be Certified by the Contractor
- If the Contractor and the Government are Unable to Negotiate a
Resolution to the Dispute, the CO Must Issue a Final Decision
- Once a Final Decision (or Sufficient Passage of Time) has
Occurred, the Contractor may Appeal the COs Final Decision
2008 Venable LLP 19. Steps In Claims Litigation
- Request for Final Decision
- Issuance of Contracting Officers (COs) Final Decision
- Notice of Appeal and Filing of the Complaint
- Civilian Agency Board of Contract Appeals or Armed Services
Board of Contract Appeals or the U.S. Court of Federal Claims
- Appeal to the U.S. Court of Appeals for the Federal
Circuit
2008 Venable LLP 20. Candidate Issues for Contract Disputes
- Contractor Claims for Money
2008 Venable LLP 21. Termination for Default (T4D)
- Excess Reprocurement Costs
2008 Venable LLP 22. Oversight Issues GSAs Get It Right
Program
- Are Agencies Ordering Properly scope issues?
- Contractors are Expected to be Proactive
- Ensuring Competition on Schedules
- Do Contractors Report Sales Correctly?
2008 Venable LLP 23. Avoiding Government Contracting
Pitfalls
-
- Provides for treble damages and civil fines for the reckless
submission of false claims for payment to the Government.
-
-
- Also includes whistleblower (orqui tam ) provisions.
- Improper Business Practices
-
- The FAR contains several prohibitions and restrictions on
actual (and sometimes only apparent) improper business practices,
including:
-
-
- Contractor gratuities to Government personnel, kickbacks,
antitrust violations, agreements to pay contingent fees,
prohibitions on placing unreasonable restrictions on subcontractor
sales, andOrganizational Conflicts of Interest(OCIs)
-
- Remedies available to the Government include criminal and civil
penalties, default termination of affected contracts, and
suspension and debarment from Federal acquisitions.
2008 Venable LLP 24. Avoiding Government Contracting
Pitfalls
-
- Requires mandatory disclosure in writing to the Office of the
Inspector General with a copy to the contracting officer whenever,
in connection with the award, performance, or closeout of a
contract or any subcontract, the contractor has credible evidence
of:
-
-
- Criminal law violations involving fraud, conflict of interest,
bribery, or gratuity violations;
-
-
- Civil False Claims Act violations; or
-
-
- Significant overpayments.
-
- Mandatory Disclosure Rule provides for suspension or debarment
penalty forknowing failure to timely disclose .
2008 Venable LLP 25. Avoiding Government Contracting
Pitfalls
- Ethics and Compliance Programs
- Recent FAR changes require companies to have an ongoing
business ethics and compliance program and internal control system
within 90 days of contract award (not required for small business
or commercial item contracts).
- Program requires companies to:
-
- Establish standards and procedures to facilitate timely
discovery of improper conduct in connection with Government
contracts;
-
- Ensure corrective measures are promptly instituted and carried
out;
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- Assign responsibility at a sufficiently high level and provide
adequate resources to ensure effectiveness of the business ethics
awareness and compliance program and internal control system;
and
-
- Exclude principals whom due diligence would have exposed as
having engaged in conduct that is in conflict with the Contractors
code of business ethics and conduct.
2008 Venable LLP 26. Avoiding Government Contracting
Pitfalls
- Intellectual Property RightsThe FAR and agency supplements to
the FAR contain complex provisions applicable to intellectual
property rights
-
- For example, unless the contractor takes steps to identify
limitations on the Governments rights to the contractors
intellectual property ( e.g. , technical data), the Government may
acquire unlimited rights to such property, meaning that the
Government has the right to use, disclose, reproduce, prepare
derivative works, distribute copies to the public, and perform
publicly and display publicly, in any manner and for any purpose,
and to have or permit others to do so.
- Revolving Door Restri ctionsRestrictions and/or limitations
apply to post-Government employment activities of certain former
Government employees
2008 Venable LLP 27. Socioeconomic Program Opportunities:An
Overview
- The Federal Acquisition Regulation (FAR) Part 19 Implements
Socioeconomic Programs Applicable to Agency Acquisitions:
-
- Small disadvantaged business program
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- Economically and socially disadvantaged (8(a)) business
program
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- Woman-owned business program
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- Historically underutilized business zone (HUBZone) program
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- Veteran-owned small business program
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- Service-Disabled Veteran-Owned small business program
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- Native American, Alaskan, and Hawaiian program incentives
- Qualifying Contractors may Receive Preferential Treatment or
Competitive Price Reductions
2008 Venable LLP 28. Small Business Program: Gaining a
Competitive Edge
- Benefits of Contracting with Qualified Companies Under the
Small Business Program Include :
-
- Contracts being totally or partially set-aside for small
businesses;
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- Competitive contracts being awarded with a price elevation
preference; and/or
-
- Subcontracting plans for large business Federal contractors
including a small business subcontracting goal.
- Disadvantages(?) to Consider:
-
- Control and Affiliation Pitfalls
2008 Venable LLP 29. First Steps: What is small?
- A Company Must be Small According to the SBA for Entry into any
Small Business Program
- Size Standards are Based on the North American Industry
Classification System (NAICS), Which Establishes Standards for
Various Types of Industries
- Under the NAICS, Size is Based on Either:
-
- 1. Number of Employees:The number of employees of the concern
(including part-time employees and the employees of domestic and
foreign affiliates) based on number of employees for each of the
pay periods over the past 12 months; or
- 2.Annual Receipts:Gross revenue averaged over previous three
years.
2008 Venable LLP 30. Small Disadvantaged Business (SDB)
Program
- A Business Development Program Created to Help Small
Disadvantaged Businesses Compete and Access the Federal Procurement
Market.
- To Qualify, a Company Must:
-
- Meet applicable size standards for small businesses;
-
- Be at least 51% owned and controlled by a socially and
economically disadvantaged individual or individuals;
-
-
- African Americans, Hispanic Americans, Asian Pacific Americans,
Subcontinent Asian Americans, and Native Americans are presumed to
qualify;
-
-
- Other individuals can qualify if they show by a
-
-
- preponderance of the evidence that they are disadvantaged;
-
- All individuals must have a net worth of less than $750,000,
excluding the equity of their business and primary residence.
2008 Venable LLP 31. Small Disadvantaged Business (SDB) Program:
Benefits
- Qualified prime contractors can receive an evaluation price
credit of 10% in competing with other contractors if:
-
-
- The SDB is certified by the SBA; and
-
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- The procurement is a competitive negotiated acquisition over
$500,000, or $1,000,000 in construction
- The evaluation credit does not apply to small business set
asides, 8(a) acquisitions, or contracts performed entirely outside
the United States.
2008 Venable LLP 32. 8(a) Business Program
- Offers a Broad Scope of Assistance to Socially and Economically
Disadvantaged Firms and Does Not Strictly Pertain to Benefits in
Federal Procurement, as does the SDB Program.
-
- Qualified companies may remain in the 8(a) program for a total
of 9 years.
-
- 8(a) Firms Automatically Qualify for SDB Certification.
- In Addition to the Qualifications Necessary for SDB
Certification, 8(a) Firms Must:
-
- Be in business for at least two years;
-
- Display reasonable success potential;
-
- Demonstrate good character; and
-
- All individuals must have a net worth of less than $250,000,
excluding the value of their business and personnel residence.
2008 Venable LLP 33. 8(a) Business Program: Benefits
- 8(a) Firms may form Joint Ventures and Teams to Bid on
Contracts;
- This Enhances the Ability of 8(a) Firms to Perform Larger Prime
Contracts and Overcome the Effects of Contract Bundling;
- Sole Source Awards When no Reasonable Expectation that Two
Eligible Firms will Submit Offers and Award will not Exceed $5M for
Contracts Assigned NAICS Codes and $3M for all Other
Contracts.
2008 Venable LLP 34. Woman-Owned Business Program
- The Federal Acquisition Streamlining Act of 1994 Established
the Government-wide Goal for Participation by Small Business
Concerns Owned and Controlled by Women at not Less than 5% of the
Total Value of All Prime Contract and Subcontract Awards.
-
- Normally, a self-certification process.
- Benefits of Subcontracting with a Woman-Owned Business:
-
- Although there are currently no set-aside procurement programs
or incentives for contracting with women-owned businesses, the 5%
procurement goal established by FASA means agencies have a strong
incentive to look for qualified women-owned businesses when filling
contractual needs.
2008 Venable LLP 35. Historically Underutilized Business Zone
HUBZone Program
- The HUBZone Empowerment Contracting Program is Designed to
Stimulate Economic Development and Encourage Job Creation in Urban
and Rural Communities.
-
- Must be a small business;
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- Must be owned and controlled by U.S. citizens;
-
- 35% of employees must live in a HUBZone; and
-
- Must maintain a principal office in a HUBZone.
- Woman-Owned Businesses, 8(a) Participants, and SDBs can Qualify
as HUBZone SBCs, and Receive Preferential Treatment,
including:
-
- Permanent status as an HUBZone SBC, if otherwise qualified
- Benefits of Contracting with a HUBZone Company:
-
- HUBZone companies receive federal contracting preferences
.
2008 Venable LLP 36. Service-Disabled Veteran Owned Business
Program
- Benefits for Service Disabled Veteran Owned Businesses
-
- Veterans Entrepreneurship and Small Business Development Act of
1999, Expanded the Eligibility for Certain Small Business
Assistance Programs to Include Veterans:
-
- Veterans Benefits Act of 2003 authorized agencies to award sole
source or set-aside contracts to service disabled veteran owned
businesses
- Benefits of Contracting with a Veteran-Owned Companies:
-
- Federal contracting agencies must establish and achieve a
participation goal of 3% of the total value of all prime contract
and subcontract awards for each fiscal year for small businesses
owned and controlled by veterans with service-connected
disabilities.
2008 Venable LLP 37. Native American, Alaskan &
HawaiianObjectives and Initiatives
- Office of Native American Affairs is Devoted to Ensuring
American Indians, Native Alaskans and Native Hawaiians Seeking to
Create, Develop and Expand Small Businesses Have Full Access to
Business Development and Expansion Tools Available Through the
Agency's Entrepreneurial Development, Lending and Procurement
Programs .
-
- SBA has a particular interest in assisting small business and
economic development in disadvantaged tribal areas.
-
- Native American businesses increased 84% from 1992 to
1997.
- Benefits of Contracting with Native American Businesses:
-
- May permanently remain an 8(a) company, if otherwise
qualified
-
- Rebuttable presumption of socially disadvantaged status.
2008 Venable LLP 38. SBA, DOD & NASA Mentor /
ProtgPrograms
- No Determination of Affiliation or Control:
-
- Between a protg firm and its mentor based on the mentor/protg
agreement or any assistance provided pursuant to the
agreement.
- Generally, a Mentor May Only Have one Protg at a Time .
- Credit Under Subcontracting Plans for Un-reimbursed costs:
-
- Mentors may receive credit for certain costs incurred under the
Program in providing developmental assistance to protg firms
2008 Venable LLP 39. Subcontracting Plans for Large Business
Federal Contractors
- A Plan, Adopted by the Contractor, to Further the Government's
Program Under the Small Business Act
- Successful Offerors Under both Negotiated and Sealed Bidding
Acquisitions that are Expected to Exceed $500,000 ($1M for
construction) and that have Subcontracting Possibilities must
Provide a Formal Subcontracting Plan
-
- Percentage Goals for using Small Business Concerns, SDBs,
Woman-owned Small Businesses
-
- The name of the individual who will administer the offeror's
subcontracting program;
-
- A description of the efforts the offeror will make to ensure
that small businesses have an equitable opportunity to compete for
subcontracts;
-
- Assurances that the offeror will include the clause at FAR
52.219-8 (Utilization of Small Business Concerns, SDB and
Woman-owned Small Business Concerns);
-
- Additional Assurances A recitation of the records the offeror
will maintain
-
- to demonstrate procedures adopted to comply with the plan
2008 Venable LLP 40. Teaming Arrangements
- Trend is Toward Larger and More Complex Teams
- How to Avoid a Finding of Affiliation if Teaming to Win a
Set-Aside Procurement
2008 Venable LLP 41. Problems Under Contractor Team
Arrangements: The 50% Rule
- A Concern May not be Awarded a Contract Under Subsection (a) of
this Section as a Small Business Concern Unless the Concern Agrees
That -
-
- in the case of a contract for services (except construction),
at least 50 percent of the cost of contract performance incurred
for personnel shall be expended for employees of the concern;
or
-
- in the case of a contract for procurement of supplies (other
than procurement from a regular dealer in such supplies), the
concern will perform work for at least 50 percent of the cost of
manufacturing the supplies (not including the cost of
materials).
2008 Venable LLP 42. Problems Under Contractor Team
Arrangements: The 50% Rule
- Small Business Administration Regulations, 13 C.F.R. 125
-
- Generally defines the cost of performing the contract as All
allowable direct and indirect costs allocable to the contract,
excluding profit or fee.
-
- Those costs incurred by the firm in the production of the end
item being acquired
-
- Direct labor costs plus any overhead which has only direct
labor as its base, plus general and administrative costs multiplied
by the labor cost
2008 Venable LLP 43. Watching Out for Affiliation Problems When
Contracting With Large Businesses
- For Restricted Procurements (other than 8(a)), the Following
Individuals or Entities may Challenge an Offerors
Self-Certification as a Small Business:
-
-
- The Contracting Officer may protest the representation of an
offeror;
-
-
- An offeror, the SBA, or other interested party may protest the
representation of an offeror in a specific offer; and/or
-
-
- A protest may be lodged by any interested party.
2008 Venable LLP 44. Affiliation Defined
- A contractor and subcontractor are treated as joint venturers
if the ostensible subcontractor will perform primary and vital
requirements of a contract or if the prime contractor is unusually
reliant upon the ostensible subcontractor. All requirements of the
contract are considered in reviewing such relationship, including
contract management, technical responsibility, and the percentage
of subcontracted work.
2008 Venable LLP 45. The Case Law: Affiliation =The Totality of
the Circumstances Test
- Who will manage the contract?
- Which party possesses the requisite background and expertise to
carry out the contract?
- Which party chased the contract?
- What degree of collaboration was there on the bid or
proposal?
- Are there discrete tasks to be performed by each concern or is
there a commingling of personnel and resources?
- What is the amount of work to be performed by each?
- Which concern will perform the more complex and/or costly
contract functions?
2008 Venable LLP 46. Affiliation Can Arise:
- Through Contractual Relationships
- Through Common Management
- Under Joint Venture Relationships
- The SBA will closely scrutinize a newly organized concern
2008 Venable LLP 47. Small Business Size Recertification
-
- SBA determines the size status of a concern, including its
affiliates, as of the date the concern submits a written
self-certification that it is small to the procuring activity as
part of its initial offer . . . which includes price.
-
- Thus, under the traditional rule, it is irrelevant whether the
contractor grows beyond the size standard, or is acquired by a
large business, during performance of the contract.
-
- Several exceptions to the traditional rule have been
established.
2008 Venable LLP 48. Small Business Size Recertification
- Novation or Change of Name Agreements
-
- Within 30 days of an approved contract novation, a contractor
must recertify its small business size status to the procuring
agency, or inform the procuring agency that it is other than small.
If the contractor is other than small, the agency can no longer
count the options or orders issued
-
- Where a contract novation is not required, the contractor must,
within 30 days of the transaction becoming final, recertify its
small business size status to the procuring agency, or inform the
procuring agency that it is other than small. If the contractor is
other than small, the agency can no longer count the options or
orders issued pursuant to the contract, from that point forward,
towards its small business goals. The agency and the contractor
must immediately revise all applicable Federal contract databases
to reflect the new size status.
2008 Venable LLP 49. Small Business Size Recertification
-
- Final Rule including these provisions went into effect on April
20, 2009.
-
- Long term contracts are contracts of more than 5 years,
including options. Long term contracts may include Multiple Award
Schedule (MAS) Contracts, Multiple Agency Contracts (MACs) and
Government-wide Acquisition Contracts (GWACs).
-
- A contracting officer must request that a business concern
re-certify its small business size status no more than 120 days
prior to the end of the fifth year of the contract, and no more
than 120 days prior to exercising any option thereafter. If the
contractor certifies that it is other than small, the agency can no
longer count the options or orders issued pursuant to the contract
towards its small business prime contracting goals. The agency and
the contractor must immediately revise all applicable Federal
contract databases to reflect the new size status.
-
- A business concern that certified itself as other than small,
either initially or prior to an option being exercised, may
recertify itself as small for a subsequent option period if it
meets the applicable size standard.
2008 Venable LLP 50. Small Business Size Recertification
- Long Term Contracts (contd)
-
- Contracting Officers Discretion
-
-
- A contracting officer may require concerns to recertify their
size status in response to a solicitation for an order.The SBA will
determine size as of the date the concern submits its
self-representation as part of its response to the solicitation for
the order.
-
- Blanket Purchase Agreement
-
-
- The SBA does not consider a Blanket Purchase Agreement (BPA) a
contract. Goods and services are acquired under a BPA when an order
is issued. Thus, a concern's size may not be determined based on
its size at the time of a response to a solicitation for a
BPA.
2008 Venable LLP 51.
2008 Venable LLP