capabilities | The Contracting Education Academy

March 22, 2017 By AMK

How an acquisition can jeopardize pending bids

When acquiring a government contractor, review and analysis of the target’s current government contracts is a central focus of due diligence for purposes of assessing the legal and business risks. Pending bids and proposals, however, also present unique issues and challenges and could have a significant impact on the anticipated value of the business.

Post-acquisition, the loss of resources from a former parent company or affiliated company may jeopardize the target company’s pending proposals. This situation could arise both where the proposal is successful and a protester challenges the award to the successor contractor, and where the successor contractor is not the successful awardee and itself seeks to challenge the procuring agency’s award decision. This article discusses recent decisions issued by the U.S. Government Accountability Office and the U.S. Court of Federal Claims and highlights key issues for both sellers and buyers arising from pending proposals. The decisions highlight the potential impact a merger or acquisition may have on a target company’s outstanding proposals and the importance of careful review of these proposals during due diligence.

The issues presented by pending proposals, like all issues presented in a due diligence review and risk assessment, must be considered in the context of the broader deal. Typically, this will involve negotiation of key provisions in the acquisition and ancillary agreements, U.S. Securities and Exchange Commission filings in the context of a public deal, Hart-Scott-Rodino reviews, and approvals by the U.S. Department of Justice or the Federal Trade Commission and avoidance of “gun-jumping” under the antitrust laws. Additionally, there is often the need to maintain secrecy and limit knowledge of the deal to a confined, manageable deal team with a “need to know.”

For a publicly traded company, prior to a public announcement of an acquisition, it would be unlawful for the company to share information about the proposed transaction with the procuring agency or others in advance of the public announcement or the required filing with the SEC. Regulation FD (Fair Disclosure) prevents a public company from selectively disclosing material nonpublic information to certain individuals or entities without making public disclosure of such information. The upshot is that when a target has a significant portfolio of pending proposals that could be material to the deal and the future value, and sustainability of the acquired business, the acquirer should appoint a team to review each pending proposal and, based on its terms, decide what needs to be disclosed to the contracting agencies, or risk disqualification or loss of a contract in a post-award protest. This also means that notice to agencies must be coordinated with notices to the SEC and public announcements. Risks concerning pending proposals may, of course, also arise in acquisitions of privately held companies.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=576436

April 29, 2013 By AMK

Space acquisition no longer broken, getting better, says GAO

Less than five years ago, almost every major unclassified space program was grossly over budget and behind schedule.

The rock stars of rottenness were the weather satellite program known as NPOESS and the missile warning satellite program called SBIRS, but they were not alone. These problems ate at the soul of the Air Force and the space community, which had both been justifiably proud of the remarkable accomplishments they had wracked up during the first quarter century of the space age.

Now the Government Accountability Office — which most people in industry and many in the Pentagon will tell you never met a program it liked — has given its tentative stamp of approval to space acquisition with a report bearing this euphonious title: “DOD Is Overcoming Long-Standing Problems, but Faces Challenges to Ensuring Its Investments Are Optimized.” It sounds as if space acquisition is halfway out of the woods.

Here’s the nub of the GAO testimony delivered before House Armed Services strategic forces subcommittee:

“For the portfolio of major satellite programs, new cost and schedule growth is not as widespread as it was in prior years, but DOD is still experiencing problems. For example, total program costs have increased approximately $180 million from a baseline of $4.1 billion for one of two satellite programs that are in the earlier phases of acquisition. Though satellite programs are not experiencing problems as widespread as in years past, ground control systems and user terminals in most of DOD’s major space system acquisitions are not optimally aligned, leading to underutilized satellites and limited capability provided to the warfighter.”

Keep reading this article at: http://defense.aol.com/2013/04/25/space-acquisition-no-longer-broken-getting-better-says-gao.

May 17, 2012 By AMK

Government contract marketing workshop a success

Eighty business people participated in a half-day workshop at Georgia Tech on May 16th, taking advantage of expert instruction on how to market to the federal government.

“Victory in Procurement: Marketing to the Government” was co-sponsored by American Express OPEN and The Contracting Education Academy at Georgia Tech.

The workshop was led by Denise Rodriguez-Lopez, an American Express OPEN Advisor on Government Contracting. She provided practical guidance to participants on how to put together both a two-minute elevator speech as well as a written Capabilities Statement. When put to use, both of these marketing techniques are designed to effectively convey an entrepreneur’s experience and expertise. Attendees also received a sample Capabilities Statement, written instructions for constructing an elevator speech, and worksheets for creating a marketing strategy.

A panel, consisting of successful business leaders and government decision-makers, provided workshop attendees with insights into how the government contracting process works. The panelists included Tina Baker, president and CEO of the Cadence Group; Lesa Adeboyé, CEO and founder of The Alliance Group, Inc.; JoAnn Braxton, Business Development Specialist with the Georgia District Office of the U.S. Small Business Administration; and Gwen Miles, Small Business Specialist with the Centers for Disease Control and Prevention. The panelists interacted with the audience, providing feedback on marketing techniques that work and crtitiques of individual elevator speeches that were crafted by workshop participants.

Information also was provided to participants on the services provided by the Georgia Tech Procurement Assistance Center and the professional education courses offered by The Contracting Education Academy at Georgia Tech.

To download a copy of the workshop presentation, please click here.

May 9, 2012 By AMK

OFPP dispels 8 more agency, vendor communications myths

The solution to many of the problems with federal procurement comes down to communication between industry and government. So it’s to that end the Office of Federal Procurement Policy is taking a second turn at dispelling some of the most commonly held myths.

As Federal News Radio first reported, OFPP issued its Mythbusters 2 memo today detailing eight more fictional reasons why agencies and contractors can’t talk, and the real truths about why they can communicate freely. The administration issued the first Mythbusters memo in February 2011 with the goal of breaking down barriers in how contracting officers and program managers talk to vendors.

Keep reading this article at http://www.federalnewsradio.com/?nid=517&sid=2855399.

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