Congress | The Contracting Education Academy

June 13, 2019 By AMK

Federal online shopping platform coming soon – GSA to issue prototype RFP within the year

In the latest step towards delivering on the long-promised “Procurement Through Commercial e-Commerce Portals” program, the General Services Administration has announced plans to build a proof-of-concept for federal online shopping, aiming to issue an RFP by the end of the year for web-based acquisition platforms.

According to GSA’s notice, the platforms will be based on an “e-marketplace” model — one that connects federal customers to a range of competing vendors, similar to online shopping websites in the private sector. These “e-commerce portals” will carry “routine commercial items found on today’s commercial e-commerce platforms (with office supplies and industrial products being amongst the most common)[.]” Purchases will be limited to the micro-purchase level, which is currently set at $10,000.

The agency expects to award multiple prototype contracts, and it indicated that further proof-of-concept contracts may be needed to test other online purchasing models. These other purchasing models include an “e-commerce model,” under which each portal provider would serve as the seller of goods, and an “e-procurement model,” under which the acquiring agency would manage the platform using software supplied by a contractor to facilitate sales through multiple vendors. On this point, GSA explained that “the one model that best fits GSA’s priorities for an initial proof of concept is the e-marketplace model.”

Keep reading article at: https://www.insidegovernmentcontracts.com/2019/05/federal-online-shopping-platform-coming-soon-gsa-to-issue-prototype-rfp-within-the-year/

June 12, 2019 By AMK

Defense contracting fraud: A persistent problem

During the five year period from 2013-2017, there were 1,059 criminal cases of defense contracting fraud resulting in the conviction of 1,087 defendants, including 409 businesses, according to a newly released Department of Defense report to Congress. There were another 443 fraud-related civil cases resulting in judgments against 546 defendants.

During that same period, the Department of Defense entered into more than 15 million contracts with contractors who had been indicted, fined, and/or convicted of fraud, or who reached settlement agreements. The value of those contracts exceeded $334 billion, according to the DoD report. See Report on Defense Contracting Fraud, DoD report to Congress, December 2018.

The report was prepared in response to a requirement in the FY2018 defense authorization act at the initiative of Sen. Bernie Sanders. It was released this week under the Freedom of Information Act.

A previous report covering the period of 2001-2010 was produced by the Department of Defense in 2011, also at the request of Senator Sanders. The earlier report likewise found extensive fraud including criminal and civil offensive in defense contracting.

“Simply put, the Pentagon continues to be riddled with waste, fraud and abuse of taxpayer funds to a degree unmatched across the federal government,” Sen. Sanders said in 2017. “It is unacceptable that the Department of Defense continues to lose vast sums of taxpayer money because of fraud perpetrated by major defense contractors. This has got to end.”

Keep reading article at: https://fas.org/blogs/secrecy/2019/05/defense-contracting-fraud

June 4, 2019 By AMK

Can contracts be awarded without pricing?

Since the enactment of the Competition in Contracting Act in 1984, price has been an essential element of every contract awarded by the Federal Government under the Federal Acquisition Regulation, along with technical capability and (more recently) past performance. In addition, before making an award, every contracting officer must determine that the price offered by the winning offeror(s) is “fair and reasonable.”

Agencies have wide discretion in establishing the value of the factors and subfactors under each of these three elements, and frequently price is identified as the least important of the factors to be evaluated.

But what if the price on a solicitation was not a factor to be evaluated at all? As part of the Professional Services Council’s long-standing acquisition reform advocacy agenda, we supported just such an experiment and it is now in effect for some agencies.

In Section 825 of the Fiscal Year 2017 National Defense Authorization Act (NDAA), Congress provided that, for multiple-award indefinite delivery/indefinite quantity (ID/IQ) contracts, DoD, NASA and Coast Guard buying activities are not required to evaluate cost or price during the evaluation of the formation of the ID/IQ contract, provided other conditions are met. If cost or price is not evaluated at formation, however, cost or price must be an evaluation factor in conjunction with the issuance of any task or delivery order under such awarded contract. The Professional Services Council strongly supported that legislative proposal.

What all of these ID/IQ solicitations and resulting contracts have in common is that there is actually no work associated with the formation of the base contract. All of the actual work is solicited under task or delivery orders issued once the base contract is in place. As such, we argued that agencies were creating irrelevant price evaluation factors in order to comply with the then-existing statutory requirement to evaluate price at contract formation, and agencies were not making true comparative evaluations of offerors’ pricing since there was no factual basis for doing so. And it didn’t matter whether the ID/IQ contract provided for fixed prices, labor hour pricing, or hybrid pricing.

Keep reading article at: https://www.pscouncil.org/a/Content/2019/Can_Contracts_Be_Awarded_Without_Pricing.aspx

May 29, 2019 By AMK

The Pentagon’s software buying has been outdated since 1987

The Defense Innovation Board warned that the Defense Department’s age-old approach to software procurement and development could dull the military’s technological edge.

“A large amount of DOD’s software takes too long, costs too much, and is too brittle to be competitive in the long run,” the board said in the study’s executive summary of its Software Acquisition and Practices report. “If DOD does not take steps to modernize its software acquisition and development practices, we will no longer have the best military in the world, no matter how much we invest or how talented and dedicated our armed forces may be.”

The SWAP study was mandated by the National Defense Authorization Act in fiscal 2018. It examines how the agency procures and advances software and offers recommendations on how it could do so more efficiently.

“This particular assessment, from over 30 years ago, referenced over 30 previous studies and is largely aligned with the assessments of more recent studies, including this one.”

Keep reading article at: https://www.nextgov.com/it-modernization/2019/05/pentagons-software-buying-has-been-outdated-1987/156782/

April 24, 2019 By AMK

2019 NDAA analysis: A harder look at major defense acquisitions

This is the sixth blog post in a series analyzing the 2019 National Defense Authorization Act (NDAA) as signed into law on Aug. 13, 2018. Stay tuned for more blog posts covering additional topics in the near future from Holland & Knight’s Government Contracts Team.

With the 2019 NDAA, Congress has put teeth behind recommendations stemming from an independent study on sustainment planning in the Defense acquisition process. Reflecting congressional concern with the sustainment and total life-cycle costs of major defense acquisition programs, Section 844 of the 2017 NDAA had required the Secretary of Defense, through an agreement with an independent entity, to conduct a review of the extent to which sustainment matters are considered in decisions related to the requirements, research and development, acquisition, cost estimating, and programming and budgeting processes for major defense acquisition programs.

The 2019 NDAA directs the Secretary of Defense to “commence implementation of each recommendation submitted” as part of this independent assessment, or provide Congress with a “specific justification” for the delayed implementation or non-implementation of a recommendation. Where the Defense Secretary is opting not to implement one of these recommendations, he or she must provide “a summary of the alternative actions the Secretary plans to take to address the purposes underlying the recommendation.”

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=795216

The Defense Innovation Board warned that the Defense Department’s age-old approach to software procurement and development could dull the military’s technological edge.

This is the sixth blog post in a series analyzing the 2019 National Defense Authorization Act (NDAA) as signed into law on Aug. 13, 2018. Stay tuned for more blog posts covering additional topics in the near future from Holland & Knight’s Government Contracts Team.

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