Contractors are mainly reactive to government needs. This ultimately results in frustration not
only for government agencies, but for contractors, themselves, as well. The government
actually often wants input and acknowledges that they make better decisions
when industry participates. Yet, twice this week we’ve been in
discussions with government officials who practically had to beg for industry
input. Even when companies have
the ability to comment through associations, and thus retain some degree of
anonymity, meaningful input can be scarce.
This leaves government officials scratching their heads and wondering
why the same companies that are reluctant to provide insights before a program
starts are inevitably the same ones that ask for changes immediately after its
inception. What do your government
contacts want to know about?
It’s not just the latest technology solution. Those discussions have their place, but so,
too, do insights on best practices a contractor may have seen work well in one
area that can be adapted to another.
Similarly, recommendations to senior officials on identified best
management strategies, budget ideas and even suggestions, pre-contract, on how
to best move money around can be well-received.
Contractors can’t expect their government colleagues to be up to date on
all of the latest commercial industry changes or innovations that have worked well
in other government agencies – sometimes not even in their own agency. The best
time to shape a project, too, is before it starts. The bottom line is that contractors
should provide reasoned input and ideas, especially when their customers are
openly asking for it. Don’t sit
quietly and then wonder why the requirement, budget initiative, or management
practice isn’t as good as it could be.
Federal business is a much relationship-driven as process driven. With the holiday season coming up, companies
are looking for ways to say “thank you” to federal customers to keep those
relationships solid. Though
well-intentioned, the wrong gift at the wrong time could backfire on you and
your intended recipient. Allen Federal
can help. We’ve taught gift giving and
ethics classes to dozens of companies.
Are sessions aren’t only informative, they’re amusing, with a host of
“don’t let this happen to you” examples.
Your team will be educated and entertained. Find out what we can do for you at firstname.lastname@example.org.
President Trump’s Executive Order (EO) reclassifying certain federal
policy workers as “at will” employees could impact people at GSA, DOD, and elsewhere
that create and advise upon acquisition policy. The order, which created “Schedule F” for
federal workers, is highly controversial. Its implementation is being
threatened with both legal and legislative action. The confusion and concern could have a
definite impact on the pace of pending FAR cases and other acquisition policy
changes as agencies better define who will be covered by the new
classification. The timing of the EO may also compound delays that would
otherwise occur at the end of a four-year term as appointees change over and
priorities shift. Similarly, officials
may elect to take no action on any major policy move anticipating a change in
the White House or the ultimate cancellation or nullification of the EO. Delays can both benefit and harm
industry. There are multiple pending FAR
cases, for example, that have to do with secure supply chain issues, most of
which would add new burdens to contractors.
On the other hand, cases that seek to remove obsolete requirements or
clarify ambiguities will be as well.
Policy changes to GSA’s Multiple Award Schedule, such as the
implementation of a non-priced Schedule, may also be impacted. It is difficult to underestimate the impact
of the EO on policy workers of all types.
Career federal workers feel that their jobs are at risk if they
implement a change that harms a politically-connected constituency. Contractors that follow policy changes
and work with such officials should monitor this situation closely and take
potentially high-running emotions into account when discussing policy matters.
Federal contractors spend a lot of time on business development, one
part of which is developing the message they want to send to different federal
agencies. Sometimes, though, this process
becomes an end to itself, taking significantly longer to get out the door than
originally planned. Results we’ve seen
recently include a company that wanted to get out a message for fiscal
year-end, but is just rolling it out now, and a company that managed its
messaging so precisely that the terminology they’re using is now out of
date. The result in both cases is a
message that won’t get the pop the contractor had hoped for. The bottom line on your messaging is that
it only works well if it is timely and targeted with necessary specificity. This means that those directly involved with
federal business must work with their internal counterparts who may not be as
familiar with market timing as they are.
It also means understanding that some messaging can be broad and
multi-agency in nature, while others can only be properly used in specific
agencies. Telling the Commerce
Department that your product is Berry Amendment-compliant, for example, means
little as that standard is only applicable to DOD acquisitions. It can also make your company look
amateurish. Getting maximum bang
for your marketing buck requires both conducting research to ensure you’re in
sync with federal priorities, and an understanding of the time of year when
certain messages can have the most benefit. One more thing that may seem obvious, but is
not: Make sure your message is proofread
before it’s issued. You’d be surprised.
The Court of Federal Claims recently
determined that a federal agency can be determined to have issued a Termination
for Convenience even if they really didn’t. You know it must still be 2020 for this type
of ruling to have been issued. In JKB Solutions and Services, LLC v. United States,
the Court held that the Army constructively terminated a contract for
convenience and, therefore, did not breach it. The Court was not swayed by the fact that the
Army did not, in actuality, terminate the contract. Importantly, the
company’s claim was based on the fact that the Army contract specified that a
certain number of training classes were to be delivered, but that the Army
never actually ordered all of the classes. This is just the latest example of a frequent
occurrence: a federal customer contracts
for one thing, only to have the task orders not match it. Whether in this case, or others like it, way
too many contractors just “go with the flow” and don’t insist that task orders
be consistent with the underlying contract. This approach NEVER works in the company’s
favor if there is a dispute later on.
Here, the company’s claim for payment on the classes contracted for, but
not actually held, was denied. Adding insult
to injury, the firm had to pay extensive legal fees for the benefit of having
the Claims Court invent new protections for the government. There are two main take-aways from this case
that contractors should remember: 1. The
government’s Termination for Convenience authority is, indeed, very broad.
2. It is only worth the time and effort
to ensure that task orders match with the awarded contract if you actually want
to get paid.