debarment | The Contracting Education Academy

September 21, 2011 By AMK

Defense department contractors may see new hiring regulations

A proposed Defense Department regulation, if implemented, will substantially change how contractors hire, oversee and track certain former civilian and military personnel. As proposed, it will also establish a new suspension and debarment risk for contractors that hire former personnel.

On June 6, the department issued a proposed rule — DFARS Case 2010-D020 “Representation Relating to Compensation of Former DoD Officials” — to require all offerors to submit a representation, upon submission of the offer, that all employees who are former Defense Department “covered officials” (defined in DFARS Clause 252.203-7000), to the best of the offeror’s knowledge and belief, comply with:

Defense Federal Acquisition Regulation Supplement (DFARS) 203.171-3 that
states that covered Defense Department officials must have received or requested
an ethics opinion on post-government employment restrictions;

18 U.S.C. 207 and 5 C.F.R. Part 2641, which is the statute and regulations
affecting post-government employment of ex-government civilian personnel and
military officers; and
Federal Acquisition Regulation (FAR) 3.104-2, which implements the
Procurement Integrity Act.

This proposed rule would likely have the several effects. For example, it will share responsibility for compliance with post-government employment laws and regulations between ex-government personnel to defense contractors. Current post-government employment laws impose criminal and civil liability on ex-government personnel violations.

It will also require defense contractors to implement new compliance measures. To ensure compliance, defense contractors must establish systems and processes to identify, track, educate, and obtain periodic certifications from all employees, consultants, and others who receive compensation and who are former “covered officials.”

The new requirement will burden both smaller contractors that must establish a new compliance program to meet this requirement, as well as larger defense contractors that must levy the requirement on subsidiaries, joint ventures and affiliates, even those entities that are non-government contractors. Any new compliance system obviously will increase contractor overhead costs, which often are passed on to the government.

It will also impose on defense contractors a new liability over which they have no control. Because the proposed regulation does not limit the certification to the activities of the former “covered employees” on a Defense Department contract or even related to employment by the contractor, the contractor will be required to certify compliance of its employees even as to their personal, off-duty activities.

Consultants and part-time employees working for other companies or organizations may violate their restriction in pursuit of other activities wholly unconnected to the certifying contractor. For example, an ex-military officer employed by a contractor may violate her representational restrictions under 18 U.S.C. 207 by contacting the government on behalf of another company for which she is consulting, or even as a volunteer for a civic,
charitable or scouting organization.

The proposed regulation may also deter smaller companies from bidding on Defense Department contracts. Smaller commercial contractors with less sophisticated employee screening and tracking systems may view this requirement as too costly to introduce across their enterprise in order to seek new defense business.

Another result may be that contractors will be deterred from hiring ex-military and Defense Department personnel. The proposed rule imposes both a new risk of non-compliance, which could lead to suspension and debarment or liability under the False Claims Act, as well as a new requirement for a compliance system to mitigate the risk. Thus, defense contractors likely will be deterred from hiring ex-military and department personnel. Ironically, this proposed rule red flags former department personnel — including Title 10 reserves and National Guard personnel — as potential burdens for Defense contractors.

The proposed regulation applies only to “covered officials,” but the difficulty in identifying who qualifies as a “covered official,” may cause defense contractors, especially smaller contractors, to simply close the door to all former department personnel.

Another potential consequence is that it may deter civilian federal employees from working in the Defense Department. Since the restrictions apply only to former department personnel, civilian employees, especially procurement and senior program managers who qualify as “covered employees,” may choose to serve in other federal agencies instead of Defense, if they envision post-government employment in the commercial sector. This obviously would frustrate Defense Department efforts to build a world-class acquisition work force.

The bottom line is that the proposed regulation offers several dysfunctional, expensive, and possibly unintended consequences that the Defense Department hopefully will address as it considers whether it should be implemented.

– by Steve Epstein, chief counsel for ethics and compliance at The Boeing Company. The views expressed are solely those of the author. Published by National Defense magazine, October 2011 at http://www.nationaldefensemagazine.org/archive/2011/October/Pages/DefenseDepartmentContractorsMaySeeNewHiringRegulations.aspx

September 15, 2011 By AMK

OMB announces final guidance on inherently governmental functions

Long-anticipated final guidance on “inherently governmental functions” is set for publication on Monday and should clarify confusion over blurred lines in agencies’ understanding of which types of work should be outsourced, top officials at the Office of Management and Budget told reporters on Friday.

The final policy letter, said Chief Performance Officer Jeffrey Zients, “helps agencies do better at balancing contracting out with management by federal employees. The mix was out of balance and we think this protects the public interest. Given our fiscal situation today, it is important more than ever that taxpayer money be well spent.”

With a few exceptions, the guidance, which takes effect Oct. 12, is similar to the draft released in March 2010, said Dan Gordon, administrator of the Office of Federal Procurement Policy. “But it is a milestone” that follows up on a memorandum of understanding about reducing waste in contracting issued by President Obama in March 2009.

The document includes lengthy lists of functions that are clearly inherently governmental and separate lists of “functions closely associated with the performance of inherently governmental functions” — where agencies can use more discretion.

One difference in the new guidance is a provision intended to “clarify the confusing and controversial” policy on the contracting out of military security operations, Gordon said. If a function is part of combat or could evolve into combat, then contractors can’t be used. “We benefited on this issue from public comments from the private sector, agencies, nonprofits and the Hill,” he added.

A second departure is a provision intended to help small businesses. “It places a lower priority on in-sourcing if the function is not inherently governmental,” Gordon said. “Insourcing is not a goal, but agencies need to understand that if an inherently governmental function is improperly contracted,” they can lose control of the work.

The administration “is sensitive” to realities of the current budget crunch, Gordon acknowledged. “We need to demonstrate fiscal responsibility on both sides” of the contracting process, he said. “We don’t want to dramatically increase [full-time equivalent] levels on the federal side, but in today’s fiscal world, the solution is not massive contracting out,” nor is it massive insourcing.

Zients presented the letter in the context of the administration’s two-and-a-half-year-old effort to trim waste by curbing contracting “after its uncontrolled growth under the prior administration.” One in six federal dollars is contracted out, and the rate, mostly in services, doubled since 2008, he said. But 2010 marked the first time in a decade that the level of contracting decreased, by $80 billion.

Examples of smarter contracting, Zients said, include “strategic sourcing,” such as pooling purchases of office supplies, which can save as much as 40 percent. “Rather than buying like 100 medium-sized businesses, take advantage of the fact that the United States is the world’s largest purchaser,” he said.

Another means is cutting spending on management support, which quadrupled over the past 10 years, he added. “In information technology and acquisition, management support produces many wasteful and unnecessary consultants’ reports that sit on a shelf.” That approach will reduce expenses by 15 percent, or $7 billion in fiscal 2012, he said.

Focusing on interaction with contractors, the administration also has “strengthened suspension and debarment” processes, Zients said, stressing, however, that “contractors do valuable work and will continue to do so.”

Over the past year and a half, Gordon said, the outsourcing-insourcing issue has been reviewed most thoroughly by the Defense and Homeland Security departments, a process now largely complete. Most agencies have already been working under the principles of the final guidance, he said, so its release won’t prompt major shifts.

Critical functions differ by agency, Gordon said, but the letter provides “clear direction to managers responsible for policy on the closely associated functions to make sure that the agency can control it and that the work doesn’t expand.”

The problem, he said, though “now largely corrected,” has been that some agencies, for example, would have a contractor write a statement of work and then award the contract to that same company. In managing IT functions, he added, he’s heard federal managers say that “no one in-house understands the work and that they’re completely dependent on the contractor. It’s intolerable.” The solution, he said, might be limited insourcing, adding two to three people, or simply applying more attention.

The guidance’s definition of inherently governmental, as in the draft, is based on the 1998 Federal Activities Inventory Reform Act, and Zients said the letter’s other changes, though small, would require adjusting the Federal Acquisition Regulation to conform.

Dozens of interest groups had been following the evolution of final guidance on what is inherently governmental. “We are pleased OFPP has retained flexibilities for agencies to determine what functions are considered closely associated with inherently governmental functions or are critical functions to agency missions and to provide for these functions in a way that best meets their needs and capabilities,” said Stan Soloway, president of the industry group the Professional Services Council. “However, we are concerned that the list of closely associated functions could be misconstrued as a ‘do not contract’ list, even though it is not the case, nor OFPP’s intent. The checklist that identifies closely associated functions must not become a barrier to contracting for work where it is appropriate to do so.”

Scott Amey, general counsel of the watchdog group the Project on Government Oversight, said he is impressed with the guidance. “The policy comes clean about the government’s over-reliance on contractors and improves the categories of activities and functions that shouldn’t be performed by contractors,” he said. “Private security in combat areas was never a good policy, and OFPP’s changes will ensure that properly trained and mission-responsible government personnel conduct such work.” He wonders, however, whether agencies will actually retain or insource work that his group believes should be performed by public servants.

Steve Amitay, federal legislative counsel of the National Association of Security Companies, said on Friday that absence of any mention of “building security” in the guidance “validates the continued successful use of contract security by federal agencies. Furthermore, given the decades of effective and efficient use of contract security by federal agencies, any agency that is considering insourcing security jobs should, as the policy states, be required to conduct an in-depth, comprehensive cost-analysis of such a move.”

— by Charles S. Clark – Government Executive – September 9, 2011 – http://www.govexec.com/dailyfed/0911/090911cc1.htm?rss=getoday&oref=rss

September 9, 2011 By AMK

Daniel Gordon: ‘Progress on Wartime Contracting’

This commentary originally appeared as a blog post on The White House’s Office of Management & Budget web site.

When the Administration took office, it was clear to us that for too long there was not adequate oversight of contractors, leading to wasted taxpayer dollars, repeated delivery delays, and unacceptable contractor performance. Nowhere has this been more apparent than in wartime contracting during the last decade. That’s why this Administration has focused on cutting waste in contracting, boosting oversight, and strengthening accountability of contractors. And more broadly, earlier this summer the White House launched the Campaign to Cut Waste, a government-wide drive to crack down on fraud, waste, and abuse.

On August 31, the Commission on Wartime Contracting released a report on these challenges. We welcome the report and commend the Commission for shining a spotlight on waste in contracting, on the need to strengthen the contracting function at agencies, on the value of increasing competition in contracting, and on the importance of holding contractors accountable for their performance.

The Administration already has made significant progress addressing each of the issues raised in the Commission’s report, in many cases reversing more than a decade of problems. Whether it is reducing improper payments to contractors and grantees, closing down redundant data centers, or cracking down on nonperforming contractors, we cannot tolerate the wasting of hard-earned taxpayer dollars.

There is a lot in the report, and I want to highlight the main issues raised in it and how the Administration is working on them.

Cutting Waste and Reducing Overreliance on Contractors:

On March 4, 2009, the President issued the Memorandum on Government Contracting, which called attention to the rapid growth in contracting spending, and raised concerns about contracts awarded without adequate competition. The memorandum also addressed issues with contractors performing functions that should be performed by public-sector employees. Agency efforts to reduce waste and demonstrate fiscal discipline are producing results. We cut contracting spending for the first time in 13 years in fiscal year 2010; agencies spent nearly $80 billion less than they would have if contract spending continued to grow at the same rate it had under the prior Administration.

Expanding Competition and Strengthening Contract Management and Oversight:

Over the past two years, significant progress has been made in reducing the use of high-risk contracting methods – including cutting $5 billion in spending on so-called “no bid contracts” last year. Consistent with the Commission’s recommendations, the Administration is strengthening the acquisition workforce by increasing training and certification requirements for those with a key role in oversight of contractors, including those working in Iraq and Afghanistan. The Department of Defense has made improving the defense acquisition system a top priority, and is tracking metrics on cost overruns, schedule delays, competition, the acquisition workforce, and acquisition employee training certifications.

Strengthening the Suspension and Debarment Process for Bad Actors and Improving Contractor Accountability:

Where there are bad actors in the contracting community, agencies have increased their use of suspension and debarment and other tools to deal with irresponsible contractors, consistent with the Commission’s recommendations. For example, in the last 18 months alone, USAID has taken more than 40 suspension or debarment actions – almost double the number of actions taken in the prior seven years combined. OMB has worked closely with the Interagency Suspension and Debarment Committee (ISDC) to review current agency suspension and debarment practices and to identify opportunities where these practices can be strengthened.

The Commission’s report recommends improving the recording and use of contractor performance data, so that contracting officers have ready access to useful information about vendors’ past performance, and can take this information into account in decisions to award contracts. This Administration has made unprecedented progress in improving the collection of contractor performance data and in making this information publicly available, as part of our commitment to transparency.

For the first time, contractor performance data is posted online to help ensure that the government does business with reputable companies. Data is now available on suspensions and debarments, terminations, and criminal activities of contractors. Data on where contractor dollars are being spent is now posted on http://www.usaspending.gov/ – including down to the sub contract or sub award level for the first time this year. Finally, the Office of Federal Procurement Policy issued guidance to agencies to enter meaningful assessments of contractor performance into a central database to ensure that the government awards to vendors that can perform.

Our agreement with the broad contours of the Commission’s report and with many of the specific recommendations does not, of course, mean that we agree with all details of the Commission’s recommendations, but we welcome the focus the report brings to the need to continue improving contracting. We simply cannot afford to continue to tolerate the waste of taxpayer dollars that we saw in the past. We look forward to continuing to work with Congress and all concerned citizens in addressing the Commission’s legislative recommendations, as we continue to make strides toward boosting accountability and cutting waste in contracting.

Daniel Gordon is Administrator of OMB’s Office of Federal Procurement Policy.

March 31, 2011 By AMK

Pentagon resists automatic suspension of indicted contractors

Mandatory suspension or debarment of indicted contractors could have a “chilling effect” on contractor relations, the Defense Department’s top acquisition official told the Commission on Wartime Contracting on Monday.

In February, the congressionally chartered commission released an interim report on how the department could reduce waste, fraud and abuse through enhanced oversight and improved deployment of government resources in contingency contracting.

The report offered 32 specific legislative, regulatory and policy proposals, including limiting the government’s reliance on armed private security contractors. The commission’s final report is due out in July and likely will be considered by Congress for possible legislation.

Defense agreed with most of the suggestions in the interim report and already has begun to implement some, according to Ashton B. Carter, undersecretary of Defense for acquisition, technology and logistics. But Carter told the panel that other ideas would do more harm than good.

For example, the commission recommends automatic suspension or debarment for indicted contractors. The group would mandate that suspensions and debarments no longer be subject to the terms of agreements the contractors make with the Justice Department — agreements that allow firms to avoid prosecution in criminal actions. Also, contingency contractors operating overseas should no longer be guaranteed a hearing to dispute facts in a suspension or debarment case, according to the report.

Carter disagreed with those recommendations, noting suspension and debarment officials need the flexibility and discretion to judge each case on its own facts and circumstances.

“There is a potential unintended consequence of turning suspensions and debarments from tools to protect the government’s interest into tools that automatically punish contractors,” he testified. “Such an approach may have a chilling effect on contractor cooperation in identifying and fixing real problems, including those that affect the health and safety of our personnel.”

The department also is not on board with the commission’s recommendation to limit past performance evaluations exclusively to those records in a federal database. Carter argued some contractors could have valuable experience working for foreign governments that should be considered as part of a past performance appraisal.

“We don’t want to erect a barrier for contractors that have not worked for the [U.S.] government,” he said.

Defense also is opposing commission recommendations that would mandate broader governmentwide access to contractor records by oversight personnel and establish offices of contingency contracting at Defense, the State Department and the U.S. Agency for International Development.

Nonetheless, Carter conceded the department’s contingency acquisition process remains too slow and outdated to effectively serve the warfighter. “We have to create a fast lane for contingency acquisitions so requirements are not done in the ponderous usual way,” he said.

Congress recently approved a Defense request to reprogram some of its fiscal 2011 funding. But, the annual budgeting system — and the absence of permanent funding for the rest of the fiscal calendar — has created a constant headache for Defense.

“The budgeting system is not adequate for dealing with ongoing wars,” Carter said, calling for a more rapid system to implement and issue wartime contracts.

Carter is leading Defense’s Better Buying Initiative to increase contractor competition, improve acquisition practices and reduce costs. Thus far, the department has identified $100 billion in unnecessary spending that has been cut and reinvested in warfighting operations. An additional $78 billion has been returned to the treasury for deficit reduction.

— by Robert Brodsky – GovExec.com – March 28, 2011 – at http://www.govexec.com/story_page_pf.cfm?articleid=47439&printerfriendlyvers=1

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