GAO | The Contracting Education Academy

February 11, 2019 By cs

Proposed FAR amendment makes whistleblower protections permanent

The Federal Acquisition Regulation (FAR) is being amended to make permanent a “pilot program” of whistleblower protections established in 2013.

When announcing this move, the government affirmed its commitment to enhanced whistleblower protection for government contractor employees and clarified existing rules.

Whistleblower protections for contractor employees were first added to the FAR as part of reforms mandated by the Federal Acquisition Streamlining Act of 1994. These provisions remained unchanged until September 2013, when an interim rule implemented a four-year pilot program to enhance these protections under contracts with civilian agencies (while temporarily suspending the original provisions). The proposed rule implements Congressional direction to make the pilot program permanent. DoD, NASA, and the Coast Guard have their own whistleblower protection system codified in 10 U.S.C. 2409.

Under the pilot program, now being made permanent, a contractor or subcontractor employee who believes he or she was discharged, demoted, or discriminated against for making a covered disclosure may file a complaint with the agency’s Inspector General within three years of the alleged reprisal. The initial whistleblower protection regulations had encompassed only disclosures to a Member of Congress, an authorized agency official, or the Department of Justice of information “relating to a substantial violation of law related to a contract.”

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=775878

January 29, 2019 By cs

Domestic sourcing requirement doesn’t fit DoD’s gloves

The Government Accountability Office (GAO) recently issued a bid protest decision regarding the application of the Berry Amendment’s domestic sourcing requirement to a U.S. Department of Defense (DoD) solicitation for leather combat gloves with touchscreen capability.

In that decision, the GAO found that the nonavailability exception to the Berry Amendment applied to the glove’s kidskin leather even though the agency determined, through market research, that this type of leather was available domestically. Importantly, this decision provides an opportunity for stakeholders to consider the nuances associated with the Berry Amendment’s nonavailability exception and to reflect upon the complex regulatory landscape of domestic sourcing requirements.

Federal Government Domestic Sourcing Regimes and the Nonavailability Exception

Over the last 100 years, the U.S. government has enacted myriad domestic sourcing laws. For example, during the Great Depression, Congress enacted the Buy American Act (BAA) to “create jobs for American workers and protect American industry” by requiring the U.S. government, under certain circumstances, to procure items that have been mined, produced or manufactured in the United States. As implemented through the Federal Acquisition Regulation (FAR) and agency supplemental regulations, like the Defense Federal Acquisition Regulation Supplement (DFARS), the BAA generally requires executive agencies to purchase “domestic end products” unless an exception or waiver applies.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/01/domestic-sourcing-requirement-doesnt-fit-dods-gloves/

January 4, 2019 By cs

Someone is waging a secret war to undermine the Pentagon’s huge cloud contract

As some of the biggest U.S. technology companies have lined up to bid on the $10 billion contract to create a massive Pentagon cloud computing network, the behind-the-scenes war to win it has turned ugly.

In the past several months, a private investigative firm has been shopping around to Washington reporters a 100-plus-page dossier raising the specter of corruption on the part of senior Defense Department and private company officials in the competition for the JEDI cloud contract. But at least some of the dossier’s conclusions do not stand up to close scrutiny.

The dossier insinuates that a top aide to Defense Secretary Jim Mattis worked with Mattis and others to steer the contracting process to favor Amazon Web Services, or AWS — and enrich the aide. The aim of the dossier seems clear: to prevent the deal from going solely to AWS, the odds-on favorite in part because it operates the CIA’s classified commercial cloud. Far less clear, however, is who backed its creation and distribution.

It’s an unusually hardball form of backroom maneuvering in the world of lucrative but rigidly controlled defense contracting. The firm that prepared the dossier, RosettiStarr, shopped it to various Washington reporters earlier this year. Defense One was given a copy in May. At the time, RossettiStar President and CEO Rich Rosetti declined to reveal who funded the firm’s efforts.

Former defense officials told Defense One they received inquiries about the allegations from the Wall Street Journal, the Washington Post, Reuters, and the Intercept. For months, the accusations went unaired by news outlets, including Defense One and Nextgov, sister publications in Atlantic Media’s Government Executive Media Group.

But in the past few weeks, some of the information in the dossier has surfaced in various publications. Now that the dossier’s targets have been publicly accused, they are speaking out. In exclusive interviews with Defense One and Nextgov, they vehemently deny any wrongdoing and seek to turn the spotlight on their mysterious accusers.

Keep reading this article at: https://www.defenseone.com/technology/2018/08/someone-waging-secret-war-undermine-pentagons-huge-cloud-contract/150685/

December 10, 2018 By cs

GAO says FEMA needs to use and manage advance contracts more effectively

Following 2005’s Hurricane Katrina, Congress required FEMA to establish contracts for goods and services in advance to enable quick and effective mobilization of resources in the aftermath of a disaster.

As a result, the Federal Emergency Management Office (FEMA) and the Army Corps of Engineers used “advance contracts” for $4.5 billion in goods and services after Hurricanes Harvey, Irma, and Maria, and the California fires of 2017.

But in new audit report just released, the Government Accountability Office (GAO) found that FEMA’s guidance on the use of these types of contracts is unclear, and that inconsistent information from FEMA could impair its efforts to help state and local governments use advance contracts.

GAO found limitations in FEMA’s use of some advance contracts that provided critical goods and services to survivors, including:

An outdated strategy and unclear guidance on how contracting officers should use advance contracts during a disaster, and

Challenges performing acquisition planning.

FEMA also did not always provide complete information in its reports to congressional committees. Specifically, GAO found 29 advance contract actions that were not included in recent reports due to shortcomings in FEMA’s reporting methodology, limiting visibility into its disaster contract spending.

FEMA identified challenges with advance contracts in 2017, including federal coordination with states and localities on their use. FEMA is required to coordinate with states and localities and encourage them to establish their own advance contracts with vendors. However, GAO found inconsistencies in that coordination and the information FEMA uses to coordinate with states and localities on advance contracts. Without consistent information and coordination with FEMA, states and localities may not have the tools needed to establish their own advance contracts for critical goods and services and quickly respond to future disasters.

In its new report, GAO made nine recommendations to FEMA, including that it update its strategy and guidance to clarify the use of advance contracts, improve the timeliness of its acquisition planning activities, revise its methodology for reporting disaster contracting actions to congressional committees, and provide more consistent guidance and information to contracting officers to coordinate with and encourage states and localities to establish advance contracts. FEMA concurred with GAO’s recommendations.

See GAO’s full Dec. 7, 2018 report here: https://www.gao.gov/assets/700/695829.pdf

November 28, 2018 By cs

Pentagon lags on policing lowest price, technically acceptable contracts

Two years after Congress required clearer criteria on when the Defense Department could issue lowest price, technically-acceptable (LPTA) contracts, Pentagon contracting officers still lack adequate written guidance, the Government Accountability Office (GAO) concluded in a recently released audit.

Under the fiscal 2017 National Defense Authorization Act (Section 813), the department is required to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to reflect eight criteria that justify the sometimes-controversial use of LPTA’s for awards of $5 million or more. (The requirements governing their use were expanded in the fiscal 2018 version.)

***FAR Part 15 describes the use of several competitive source selection*** ***processes to meet agency needs, which include the LPTA process and*** ***tradeoff process on a best value continuum.***

Though this type of contract can be efficient and quick for obtaining supplies and services, competing contractors often complain that the vehicle can short-change quality.

Keep reading this article at: https://www.nextgov.com/cio-briefing/2018/11/pentagon-lags-policing-lowest-price-technically-acceptable-contracts/152955/