Blog

THE CASE FOR BEING PROACTIVE WITH GOVERNMENT

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.

HOLIDAY TIME IS APPROACHING. DO YOU KNOW FED GIFT GIVING RULES?

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 info@allenfederal.com.

NEW EXECUTIVE ORDER COULD IMPACT ACQUISITION POLICY OFFICIALS

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.

IS YOUR MESSAGE TIMELY AND TARGETED CORRECTLY?

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.

COURT RULES THAT A TERMINATION CAN TAKE PLACE EVEN IF AN AGENCY DOESN’T ISSUE ONE

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.