Yesterday was the 73rd anniversary of the “Day that will live in infamy” that drew the United States into World War II. Take time today to give thanks for the freedoms we have, including the freedom to complain. Also worth contemplating is what comes to our shores when we don’t pay attention trouble beyond them.
Noting that the government is moving into an era of increased transparency and real-time pricing information, GSA Administrator Dan Tangherlini stated last week that “everything should be on the table” when discussing the future of the Multiple Award Schedules program. Tangherlini also questioned the role of the Schedules when agencies can have information on other government procurement programs at the touch of a button.
Tangherlini, who’s primary expertise is in real estate, an area in which he spends most of his time, may not be fully aware of all that the Federal Acquisition Service does, including programs like GSA Advantage or E-Buy. While Advantage needs a makeover, it was one of the first digital marketplaces in government. Should Tangherlini choose to direct some of his 18F innovation firepower at Advantage, it could again become the government’s leading digital marketplace.
While it is true that government buyers have multiple choices for purchasing IT solutions, there aren’t abundant, if any, choices outside of that segment where federal buyers can easily make purchases for common items. BPA’s, frequently cited by some as alternatives to Schedules, are, in fact, Schedules-based and not stand-alone contracts. Even in the IT sector, it would take approximately 5 Alliant programs to equal the sales made through the IT Schedule.
None of this even begins to touch the robust small business success of the Schedules program, where fully 30% or more of all dollars go directly to small business contract holders. More money flows to small business dealers and subs. One would think that GSA has already caused itself enough small business aggravation in Congress with its nascent FSSI attempts.
Companies and federal buyers that rely on the Schedules program need to make sure that message gets to Mr. Tangherlini. Even though he’s a numbers guy, the $30-38 billion that goes through the Schedules each year doesn’t seem to register. The fact that customers and contractors use the program more often than any other Indefinite Delivery Indefinite Quantity contract should.
The Department of Justice has recently implemented a procedure to ensure that all new qui tam complaints are reviewed contemporaneously by the Civil Division and the Criminal Division as soon as cases are filed. If you’re a government contractor, this new policy needs your attention now. While civil penalties have been the primary enforcement mechanism for whistle blower, or other False Claims Act, cases, the fact that experienced prosecutors in DOJ’s Fraud Section are now working on a parallel track to conduct criminal investigations takes contract compliance to a whole new level. It’s important to keep several things in mind and have a full discussion, with counsel, to determine what they mean for you.
1. Criminal actions, like civil, can be brought against both companies and individuals,
2. Although the standard for criminal conduct is higher than for civil violations, never underestimate ambitious career prosecutors trying to get ahead,
3. The most frequent source of FCA suits are from whistleblowers – either disgruntled employees or competitors. Do not pass go, or collect $200 before your firm discusses this new program with your contract counsel.
Government Accountability Office (GAO) stated last week that protests increased 5% in FY’14, no surprise in a tight government market. While the “sustain” rate, the rate at which GAO agrees with the protestor and recommends an agency take corrective action, decreased to 13%, the “effective” rate remained the same. This is due in large part to agencies taking some type of corrective action before GAO issues a final decision. Contracting officials are increasingly taking corrective action after a protest is filed, often making the original protest moot, and offering the protestor some type of potential relief.
The latest example of this is with the NASA SEWP program where NASA withdrew all SEWP V awards and went back to examine offers for the purpose of potentially taking some sort of corrective action. There’s some good news in this for contractors who file protests. If an agency isn’t sure of its due diligence approach, especially for larger, multiple award IDIQ contracts, an initially unsuccessful offeror may get a second look. At the same time, however, agencies are increasingly taking that second look before initial awards are made, as was the case last year with GSA’s OASIS program. Despite several attempts, there were no successful post-award protests there. Still, protesting when there is a valid reason to do so makes sense for contractors. While the sustained rate may have gone down, the effective rate shows that companies can sometimes get what they want short of that remedy.
Allen Federal wishes all of our readers a Happy Thanksgiving. Try to get by without the Week Ahead next week, though we know it will be difficult. There will be no Allen Federal float in the Macy’s Parade this year, but, contrary to public opinion, it is not due to a hot air problem. Remember, too, that despite what you hear on the radio, it is Thanksgiving. Be sure to be thankful for whatever it is that makes you smile.