PNWC’s Government Contracting Update - page 4

A “claim” according to FAR (Federal Acquisition Regulation) 2.101 is a written demand or written assertion by one of the contracting parties (could be the contractor or the Government) 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. Further, a written demand or written assertion by the contractor seeking payment of money exceeding $100 thousand is not a claim unless certified.

Source: PNWC’s Government Contracting Update: Government Must Specify a “Sum Certain” When Issuing Final Decisions

Section 890 of the 2019 NDAA (National Defense Authorization Act) authorized the Defense Department to conduct a pilot program with contracts in excess of $50 million (excluding those that are part of a major defense acquisition program) by

Source: PNWC’s Government Contracting Update: Pilot Program to Accelerate Contracting and Pricing Processes

The SBA (Small Business Administration) announced last week that it will launch a 16 city road tour connecting entrepreneurs working on advanced technology to the country’s largest source of early state funding – the SBIR (Small Business Innovation Research) and STTR (Small Business Technology Transfer) programs. These programs, also known as America’s “Seed Fund” is led by the SBA with eleven participating federal agencies.

Source: PNWC’s Government Contracting Update: SBA Road Tour to Engage Small Businesses Working On Innovative Research

The Justice Department just announced the indictment of a Michigan business owner for fraudulently obtaining nearly $12 million in Government construction contracts over an eight-year period by falsely claiming the company was owned and controlled by a service-disabled veteran.

Source: PNWC’s Government Contracting Update: “Rent-a-Vet” Schemes Still Going Strong

To compete for a Government contract as an SDVO (service-disabled-veteran-owned) limited liability company (LLC), a service-disable veteran must own and control the company. SBA regulations define ownership and control for LLCs (see 13 CFR 125.12 and 13). To show ownership for an LLC, one or more service-disable veterans must “unconditionally and directly own at least 51 percent interest. Regarding control, an LLC demonstrates control by a service-disabled veteran by showing that the service-disabled veteran:

Source: PNWC’s Government Contracting Update: SDVO Status Requires Ownership and Control

The SBA’s 8(a) business development program is designed to help small, disadvantaged businesses compete in the federal marketplace. It has helped thousands of aspiring entrepreneurs to gain access to Government contracts. To qualify, small businesses must be owned and controlled at least 51 percent by socially and economically disadvantaged individuals who are American citizens. It also helps to be able to demonstrate potential for business success and possess good character.

Source: PNWC’s Government Contracting Update: Future 8(a) Status is not an Evaluation Factor if not Specifically Stated

The Project on Government Oversight (POGO) published a new asking whether the benefits of using “Other Transaction Agreements” (OTAs) are commensurate with the risks (see: Other Transactions: Do the Rewards Outweigh the Risks?). OTAs have been around for a long time but are being used more frequently these days to streamline the procurement process. POGO wonders whether the increased use of OTAs is putting the Government (and taxpayers) at undue risk.

Source: PNWC’s Government Contracting Update: Government may be Awarding Too Many OTAs (Other Transaction Agreements)

When companies are successful in winning a bid protest before the GAO (Government Accountability Office), the GAO often also recommends that the successful protester be reimbursed reasonable costs of filing and pursuing its protest. Such a recommendation to reimburse successful protesters however, is not a blank check. A protester seeking to recover the costs of pursuing its protest must submit sufficient documentation to support its monetary claim.

Source: PNWC’s Government Contracting Update: Bid Protest Costs must be Adequately Supported to be Reimbursable

Prime contractors are responsible for oversight of their subcontracts. That is a well grounded and established principle of Government contracting. The Defense Contract Management Agency (DCMA) and Defense Contract Audit Agency (DCAA) dedicate a significant number of resources to ensuring the propriety of subcontract costs passed along to the Government through prime contractor billings. These include pre-award policies and procedures involving purchasing systems and consent to subcontract requests all the way to incurred cost audit procedures.

Source: PNWC’s Government Contracting Update: GAO Criticizes DOE for Subcontractor Oversight Practices

We recently encountered a situation where a Government contracting officer questioned stipends paid to two employees to cover the business use of their personal cell phones. We do not know whether the contracting officer is acting on recent guidance or if he/she is acting on his/her own accord. We did note that the challenge was made without benefit to a regulatory basis such as the FAR Part 31 cost principles.

Source: PNWC’s Government Contracting Update: Stipends Paid for Business Use of Personal Cell Phones