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July 18, 2019 By AMK

2019 NDAA analysis: Enhancing IDIQs and other provisions

Over the past several months, this blog has analyzed several key provisions of the Fiscal Year 2019 National Defense Authorization Act (NDAA) that impact government contractors. This post briefly summarizes a variety of other government contracts-related provisions of the FY 2019 NDAA that we have not yet discussed, including several that reflect a congressional intent to enhance the use of multiple-award, indefinite-delivery/indefinite-quantity (IDIQ) contracts and encourage commercial item contracting, several that concern subcontracting and supply-chain considerations, and assorted other issues.

Awarding IDIQ Contracts Without Considering Price to Increase Order-Level Competition.

Section 876 provides a limited exception to the general requirement in 41 U.S.C. § 3306 that agencies must include cost or price to the government as an evaluation factor in evaluating proposals. The exception applies to task-order contracts (i.e., IDIQ contracts) for services that are priced on the basis of hourly rates. Specifically, agencies need not consider price as an evaluation factor for such contracts if:

  1. the agency will award a base contract to every “qualifying offeror”—meaning a responsible source whose proposal conforms to solicitation requirements, meets all technical requirements, and is otherwise eligible for award; and
  2. the agency will consider cost or price to the government in competitions for individual task orders.

This provision applies to non-defense agencies. Defense agencies had previously been granted a similar exception in the FY 2017 NDAA. See 10 U.S.C. § 2305(a)(3)(C).

Congress’s goal, as evidenced by the title to section 876, is “Increasing Competition at the Task Order Level.” By awarding base IDIQ contracts to all compliant proposals, without discriminating between them based on price, agencies are likely to have more contract-holders available to compete for specific work at the task-order level. Use of this mechanism should reduce an important barrier to entry to many potential competitors—not holding the necessary IDIQ contract to compete for work solicited under task order solicitations—and, by increasing competition, could result in lower pricing and better technical offerings at the task order level.

 

 

Keep reading article at: http://www.mondaq.com/article.asp?articleid=810088

Filed Under: Government Contracting News Tagged With: cost analysis, DFARS, DoD, evaluation factor, FAR, GSA, GWAC, IDIQ, multi-year contracts, NDAA, past performance, property acquisition, Section 816, Section 871, Section 876, Section 882, subcontracting, task order

April 8, 2019 By AMK

OIG seeks voluntary refund despite contractor’s adherence to TINA requirements

DoD’s Office of Inspector General (OIG) for the Department of Defense (DoD) has recommended that a contractor be requested to provide a refund based on “excessive profits.”

On February 25, 2019, the Office of Inspector General (OIG) for the Department of Defense (DoD) issued an audit report analyzing the prices of spare aviation parts purchased by the Defense Logistics Agency (DLA) and the Army from TransDigm Group, Inc.

The audit was conducted in response to letters from certain Members of Congress, who had inquired whether the spare parts were sold at fair and reasonable prices and in compliance with the Truthful Cost or Pricing Data Act (formerly known as the Truth in Negotiations Act or TINA).

The OIG’s audit confirmed that both TransDigm and the responsible DoD contracting officers fully complied with the Act and related regulations governing the price negotiations, but the OIG nonetheless concluded that the contractor earned excess profit on the majority of parts sold.  In a highly unusual move, the OIG recommended that DoD request a “voluntary refund” from TransDigm of its allegedly “excessive” profits, and the OIG also recommended a number of changes to statutory, regulatory, and administrative policies governing the provision of cost or pricing data.

The OIG’s Findings

At the request of U.S. Representatives Ro Khanna and Tim Ryan and Senator Elizabeth Warren, the OIG reviewed the price reasonableness of 47 spare aircraft parts DoD procured from TransDigm between January 2015 and January 2017.  Using uncertified cost or pricing data that it collected during the audit, the OIG calculated the apparent profit realized by the contractor on the sale of each part, and concluded that the contractor realized “unreasonable” profits (defined as profits of greater than 15% in the report) on all but one of the parts.  (The OIG arrived at the 15 percent profit percentage, in part, by looking at maximum profit percentages allowed in the FAR for three different types of contracts, none of which were fixed price.)  The OIG applied this finding to a broader sampling of contracts held by TransDigm, and concluded that the contractor had earned $16.1 million in “excess profit” (i.e., profit over 15 percent) for the parts at issue.

The OIG concluded that a number of factors contributed to these supposedly “excessive” profits.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/03/when-compliance-is-not-enough-oig-seeks-voluntary-refund-despite-contractors-adherence-to-tina-requirements/

Filed Under: Government Contracting News Tagged With: cost analysis, DLA, DoD, excessive profit, IG, NDAA, OIG, profit, refund, TINA, Truth in Negotiations Act, Truthful Cost or Pricing Data Act, unreasonable profit

January 24, 2017 By AMK

ASBCA shoots down DCAA overreach on responsibility to manage subcontractors

A prime contractor is responsible for managing its subcontractors, but what exactly does that require?

In a recent decision, the answer of the Armed Services Board of Contract Appeals was: not nearly as much as DCAA claimed.

In Lockheed Martin Integrated Sys., Inc., ASBCA Nos. 59508, 59509, the Board ruled on a Government claim seeking more than $100 million from LMIS for allegedly breaching an obligation to manage subcontracts. In DCAA’s reading, this obligation was extensive and required a number of concrete actions by the prime contractor.

After auditing three LMIS contracts, DCAA questioned $103 million in subcontract costs. DCAA claimed that, for the costs to be allowable, LMIS had to provide documents showing it had: (1) reviewed subcontractor resumes to confirm personnel qualifications; (2) reviewed subcontractor timesheets to confirm the accuracy of invoiced hours; and (3) tried to obtain incurred cost submissions from its subcontractors, contacting “the Government” for “assistance” if the subcontractors refused.  DCAA claimed it could find no subcontract costs allowable “[w]ithout an incurred cost submission from the subcontractor,” which was the prime contractor’s responsibility to obtain.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2017/01/asbca-shoots-dcaa-overreach-responsibility-manage-subcontractors/

Filed Under: Government Contracting News Tagged With: allowability, ASBCA, claim, cost analysis, DCAA, qualifications, subcontracting

August 12, 2016 By AMK

GAO sustains protests of $17.5 billion DISA contract

Encore III, a controversial contract before the Defense Department began soliciting bids from industry to purchase up to $17.5 billion in IT services, received its strongest rebuke yet – this time from the Government Accountability Office.

DISAThe contract supports the department’s Joint Information Environment, a massive IT modernization project to globally connect the military services and defense agencies to supply “information on demand,” as the RFP states.

GAO announced last week it upheld pre-award bid protests from contractors CACI and Booz Allen Hamilton on grounds that the Defense Information Systems Agency (DISA) – the Pentagon’s IT arm – failed on two grounds “to provide a reasonable basis for comparing the cost of competing proposals.”

Keep reading this article at: http://www.nextgov.com/defense/2016/08/gao-sustains-bid-protests-175-billion-disa-contract/130519

Filed Under: Government Contracting News Tagged With: award protest, bid protest, cost analysis, cost and price analysis, cost reimbursement, DISA, DoD, Encore III, GAO, lowest price technically acceptable, LPTA, protest

August 1, 2016 By AMK

IG: GSA wastes millions due to pricing problems in computer resale program

Despite years of efforts to streamline multiple award schedules used by information technology resellers, the General Services Administration (GSA) has been offering many identical items at varying prices, said an inspector general’s report released last week.

GSA IG 07.2016“GSA’s ability to obtain competitive, market-based prices may be impaired when IT schedule resellers have no/low commercial sales and when the Price Reductions clause is modified to exclude certain sales,” the report said, warning of “millions of dollars in unnecessary costs to the government.”

IT resellers typically buy computers and software in bulk and then add value through customization before selling the adopted product to agencies or commercial customers.

Keep reading this article at: http://www.govexec.com/management/2016/07/ig-gsa-wastes-millions-due-pricing-problems-computer-resale-program/130191 

 

Filed Under: Government Contracting News Tagged With: category management, cost analysis, cost and price analysis, cost and pricing, fair and reasonable, fair and reasonable price, FAS, GSA, GSA Schedule, GSA Schedules, IG, IT, MAS, multiple award contract, OIG, resellers, technology

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