A government contractor and its new employee, a former Department of Homeland Security (DHS) official, are facing a six-count False Claims Act Complaint filed by the Department of Justice that, in part, maintains that the former official had improper communications with his former agency during the post-employment “cooling off” period and that the company then tried to cover up such contact. This is generally what is meant by “Don’t try this at home”. The Department of Justice (DOJ) has an extensive record of text messages and phone calls between the former official and a senior DHS former colleague during the cooling off period. That is in direct violation of rules of which all parties were certainly aware. Further, DOJ has obtained a detailed account of the invoices through which the company allegedly tried to hide the violations from agency contracting personnel. No one, apparently, remembers the lesson from Watergate: It’s not the crime, it’s the coverup. The company now faces the prospect of lost business, a damaged reputation, and millions in legal fees, all before an expensive settlement with Justice is negotiated. Instead of fairly competing for, and possibly winning, profitable business, it will now spend a lot of its own money. Cooling off periods are in place for a reason. Companies and former federal employees must respect and follow such rules. It is essential not only to have policies in place to ensure compliance with rules like these, but to regularly train on such rules and have consequences for those who do not follow them. Such practices may cost a little money now but consider the much large price tag of non-compliance.
The General Services Administration has many projects under development right now, but few, if any, new people to help run and manage them. The projects are important parts of the agency’s core mission, with both contractors and government customers anticipating the new solutions. A new small business IT contract, a new cloud BPA, and the much-anticipated follow-on to the agency’s popular services IDIQ are just three examples. At the same time, there is a real need for additional contracting professionals. GSA is stretched thin. This is the time when senior agency leadership should be supporting the agency’s core missions by ensuring that project managers have the people and resources needed for each to succeed. It is surprising, therefore, to see senior agency leadership be primarily focused not on these issues, but on sustainability and a host of other political agenda items. To be clear, sustainability, and its accompanying wish-list issues, are great things. That doesn’t mean, though, that they can be implemented without costs. One is the obvious increase in costs to contractors in complying with any new mandates. Another is the cost in progress on the roll out of the programs noted above. Contractors and GSA are partners in serving their common federal customer and companies should be prepared to speak up if they see timelines slipping on core projects. A former GSA official was well known for his mantra of “getting the General what he wants”. That’s a good basic statement that GSA leadership needs to keep in mind. Take care of the customer and execute your core mission and not only will you be able to work on sustainability and other non-core areas, but GSA, itself, will be more sustainable.
Successful government contractors know that relationships matter. Whether its with key government contacts or industry partners, good relationships and good reputations definitely position a company to grow. Another aspect of this issue that doesn’t get as much attention, but should, is the reality that, despite thousands of companies selling across a large government, the world of government contracting is a small one. Whether IT, professional services, pharmaceuticals, or virtually any other industry segment, there are groups of contractors who seem to travel in packs from one meeting to the next and from one issue to the other. They often meet with the same people from government, as well. Taking a line from Casablanca, we often call these people “the usual suspects”. There truly are only one to two degrees of separation. Further, the person who you see today wearing one hat, may be the person you see next year wearing another. This reality amplifies why having a good reputation is important, both for companies and individuals. It’s important to get along with people in this market and to treat them fairly, even if they get on your nerves sometimes. Experience has proven over and over that you will almost certainly work with the very person you didn’t want to work with again. If a bridge was previously burned that makes the new encounter much more difficult, if not impossible. That can hamper both company and individual success over time. Remember that today’s political “in’s” will be tomorrow’s “outs”, but that some of those “outs” will be “in” again one day. While it is difficult to get along with every person in every situation, professionalism matters. Giving in to the temptation of taking a dig at someone – or worse – can do more harm to you than the intended target. Don’t be surprised to find yourself uttering the phrase “small world” in government business. Just make sure you can say it positively and not with regret. The impact on your business can be very real.
The ubiquity of technology in government contracting keeps refining the government’s “late is late” bid policy. What happens if a company sends its bid via email, only to have that bid quarantined or accidentally go to a junk mail folder? Is the bid late? Unsurprisingly, there is a FAR clause on this, FAR 52.212-1(f)(2)(i)(A), which essentially permits a late proposal “only if it was received at the initial point of entry to the government infrastructure no later than 5:00 p.m. the preceding working day.” Perhaps unsurprisingly, too, there is a difference of opinion on how this clause can be interpreted between GAO and the Court of Federal Claims. GAO recently re-affirmed its stance that offerors who have their emailed bids received, but then quarantined or otherwise held up from the email box of the appropriate contracting officer, are out of luck. To GAO, that bid is considered late (Matter of: Versa Integrated Sols., Inc., B-420530). GAO seems to base its position on that part of the FAR clause which states that offers must be at the government point of entry by 5:00 pm the proceeding workday. So, if you think your proposal will be delayed, make sure you send it in by at least that time. The Court of Federal Claims, however, has previously ruled that such an offer would be counted as having been received on time and, therefore, should be considered by the agency (Federal Acquisitions Service Team, LLC v. United States, 124 Fed. Cl. 690). This inconsistency provides contractors with a clear choice of the forum in which they can protest a determination that their bid was late under the scenario discussed above. Although it may be more expensive and potentially time-consuming to file a protest at the Claims Court, companies may be better positioned to receive the outcome they want. This could matter if the bid in question was for a large piece of work, especially if the contractor is an incumbent and the email SNAFU occurs on the recompete. Contractors, of course, can minimize their risk by not waiting until the last minute to submit a bid. Being early helps reduce the chances of procurement delays and legal fees incurred to ensure that your proposal is fairly considered. To paraphrase Benjamin Franklin, the early bird gets the contract.
Industry will finally get official, albeit interim, regulatory guidance on how to comply with Cybersecurity Maturity Model Certification (CMMC) requirements from DOD in May. Well over two years after CMMC was officially rolled out as a mandate, touching off a slew of expenses for defense contractors of all types, guidance on what businesses actually need to do will become officially known. While most larger defense contractors have already taken steps to comply with the underlying NIST 800-171 rules, on which CMMC requirements will be based, a substantial number of smaller and medium sized businesses have held back, partly due to an ever-changing list of requirements for such companies. As of now, all but the smallest DOD contractors may need to undergo third-party certification to ensure that their cybersecurity systems meet CMMC requirements. Be prepared for that expense, along with the expense of a host of “coming soon” cyber rules that will impact both DOD and non-DOD contractors.