While Congress has passed a Continuing Resolution (CR) that will keep some government agencies open until January 19^th and others until February 2^nd, contractors should not view this CR as “business as usual”.  The timing, “laddered” approach, and disagreements on longer-term spending levels should be a concern to anyone who supports the sound operation of government.  First, the two-tiered nature of the CR means that the VA, HUD, Transportation, and military construction operations will need to have permanent appropriations or another CR by January 19^th.  The good news here is that these areas are less controversial than others and significant House and Senate action has already taken place on their appropriations.  The rest of government, including DOD and DHS, runs through February 2^nd, but substantial hurdles remain to arrive at spending measures that could actually pass each chamber of Congress.  In fact, the House adjourned early last week because it could not agree to take up one or more of the controversial spending measures.  Unless cooler heads prevail, there is still a very real prospect of a partial shutdown.  Even absent that, national security will take a hit in the absence of regular appropriations.  Further, there will be an automatic 1% cut of all agencies’ discretionary funding as of January 1^st because Congress will not have passed final appropriations bills for all branches of government.  This provision was part of the debt ceiling agreement measure passed earlier this year.  While it could be rescinded by Congressional action, it likely will not be as many in the House support cuts much deeper than 1%.  All of this means that agencies cannot start any new project requiring appropriated dollars for the foreseeable future.  We are also on a path of substantial confusion, with the prospect of having some agencies open and not others.  Contractors may see reduced action on any non-critical projects during this time.  When deciding who to blame, please remember not to shoot the messenger.

A legislative proposal to change how GSA Schedule contracts meet the terms of the Competition in Contracting Act (CICA) and a proposed rule to modify the Schedules Economic Price Adjustment Clause are among the larger changes GSA announced for the Multiple Award Schedules program at last week’s Coalition for Government Procurement Fall Conference.   Under the current CICA definition, which dates back over 30 years, the use of GSA Schedule contracts is deemed to meet competition standards when doing so results in the “lowest overall cost alternative” to the government.  That wording has always been widely read to include such factors as the cost of initiating, awarding, and managing a new contract, along with other factors.  More recently, however, the wording had led to confusion among some GSA Read more

The legal panel at the Coalition for Government Procurement’s Fall Conference highlighted the risk to contractors of not keeping proper records, not being specific about the recovery sought in a dispute, and the danger of leaving ambiguous contract clauses undefined.  The bottom line for contractors is:  Be clear about what you want, make sure you leave no ambiguities, and, above all, keep good records.  Three separate contractors found these issues out the hard way and paid substantial legal fees along the way.  First, a company was found to not have an identifiable, appropriate cost tracking system that properly captured its losses on a contract Read more

Leveraging data across federal agencies to drive lower prices and better terms, negotiating common enterprise-wide software licenses;  reducing waste in government contracts, and enhancing value from sole source contracts are the four main pillars of the Better Buying Initiative (BBI)  announced by the Office of Management and Budget last week. The effort may call to mind the old standard “I’ve Heard That Song Before” from experienced contractors, as many BBI elements are already in use by GSA and other buying agencies, while others have been tried before.  While leveraging data to drive lower prices is a good objective, it’s hardly new.  GSA has been trying to do this for several years now with its own contracts and, to some Read more

Although the House is scheduled to vote on Tuesday on a new Continuing Resolution (CR) to fund the government until January, few details have emerged about what could be in it.  The good news for contractors and their customers is that  House Speaker Mike Johnson (R-LA) has said that he does not believe that there will be a shutdown.  He has reportedly been working on a measure that would garner enough votes to pass the House, though its future in the Senate would be uncertain.  Conservative House Republicans have argued for a “ladder” approach, which would set tiered funding times based on specific agencies.  The idea is to have Congress pass specific appropriations bills, instead of the now-usual omnibus measure.  Under a ladder Read more