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Hot Issues in GSA and VA Contracting

Hot Issues in GSA and VA Contracting. Breakout Session #1202 Barbara S. Kinosky, Esq., Centre Consulting, Inc. James S. Phillips, Esq., Centre Consulting, Inc. April 6, 2009 3:00-4:30 p.m. General Services Administration (GSA) Update.

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Hot Issues in GSA and VA Contracting

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  1. Hot Issues in GSA and VA Contracting Breakout Session #1202 Barbara S. Kinosky, Esq., Centre Consulting, Inc. James S. Phillips, Esq., Centre Consulting, Inc. April 6, 2009 3:00-4:30 p.m.

  2. General Services Administration (GSA) Update GSA announced the creation of a new office aimed at improving its Federal Supply Schedules program. The Multiple Award Schedules Program Office is responsible for promoting the schedules.

  3. General Services Administration (GSA) Update Federal Advisory Committee Recommendations on Multiple Award Schedules (MAS) Program Issues that will be addressed: Length of time it takes to process modifications Length of time to add new products and services Price Reductions Clause?

  4. General Services Administration (GSA) Update In the midst of an extensive rewrite of the GSA Acquisition Manual (GSAM) to maintain consistency with the FAR. GSA proposed 96 provisions/clauses for inclusion in GSAR Part 538, Federal Supply Schedule Contracting.

  5. New GSA Regulations Incremental Funding for Fixed-Price, T&M and Labor Hour Contracts Revises GSAM Subpart 532.7 – Contract Funding Specifies which contract items are incrementally funded and total contract price currently available for payment Clause also states “contractor agrees to perform up to point at which total amount does not exceed contract price” 90 day notice requirement when total amount is at 85% total – standard is “contractor best judgment”

  6. GSA Mentor-Protégé Program Proposed rule would amend GSAR to establish a GSA mentor-protégé program designed to encourage GSA prime contractors to assist small businesses, small disadvantaged businesses, women-owned small business, veteran-owned small business, and HUBZone small businesses.

  7. GSA Mentor-Protégé Program A large prime contractor would be eligible to serve as a mentor if it is: Currently performing under at least one approved subcontracting plan within the last 5 years; and Able to provide developmental assistance that will assist protégé.

  8. GSA Contract Awards AT&T Receives First GSA Award for Trusted Internet Connection Services (TIC) Award part of AT&T’s Networx Universal telecommunications contract

  9. GSA Contract Awards Alliant Small Business GWAC 72 awards 5 year base plus one 5 year option

  10. GSA Contract Awards Alliant GWAC 29 awards original announced Protest by Serco and others resulted in review of original awards IG Report spotlights problems with source selection process 59 awards announced late March 2009

  11. GSA Schedule Developments New MAS Focus on Energy Management Support Services Energy Management Services include: Energy audit services Energy management program support Water audits Resource efficiency management Innovative renewable energy solutions Building commissioning services Metering services

  12. GSA Schedule Developments Contract renewals continue to be challenging – many GSA contracting offices backed up on renewals. Schedule contractors need to be able to demonstrate prices/rates remain reasonable at renewal. Other Issues – Basis of Award & Price/Discount Relationship

  13. VA Schedules Update VA manages MAS contracts covering medical products and services under a delegation from GSA. Unlike GSA, VA contracts have different Industrial Funding Fee rates of either .5% to 1 % vs. .75% for GSA contracts. VA expected to standardize their MAS IFF rate to .75% in near future.

  14. MAS Audits GSA expands annual reviews to include contractor policies/procedures for monitoring sales to basis of award customer – Critical to compliance with Price Reductions clause! VA currently not performing annual reviews of contractors

  15. Recent GAO Protest Rulings Potentially Enhancing GSA/VA MAS Contracting

  16. Recent GAO Decisions of Interest Delex SystemsB-400403, October 8, 2008 GAO ruled that the issuance of a task order under a non Schedule (FAR Part 16) IDIQ contract is an acquisition subject to small business set aside evaluations and the so-called “Rule of Two” The “Rule of Two” requires contracting officers to set-aside acquisitions for products in excess of $100,000 for small businesses if there is a reasonable expectation that: at least two responsible small business concerns will submit offers; and the award will be made at fair market price.

  17. Recent GAO Decisions of Interest Impact of Delex Systems Decision may lead to less competition for task order awards since only small businesses will be able to compete for certain work. Negates a major benefit of using ID/IQ contracts since agencies will now be forced to conduct a more intensive pre-solicitation analysis to ensure compliance with small business requirements.

  18. Recent GAO Decisions of Interest Impact of Delex Systems (continued) May motivate agencies to make more extensive use of GSA/VA schedules, since schedules clearly are not subject to small business requirements. Agencies can also achieve perceived benefits of FAR 16 IDIQs through Schedule-based Blanket Purchase Agreements (BPAs).

  19. Other Task Order Protest Decisions International Program Group, B-400278; B-400308, Sept. 19, 2008 GAO holds that agencies must give first priority to HUB-Zone small business set-aside when implementing small business program requirements under FAR 16 task order awards. Under MAS contracts set-asides are subject to the discretion of the buying agency.

  20. Other Task Order Protest Decisions Triple Canopy, B-310566.4, Oct. 30, 2008 GAO essentially extends FAR Part 15 requirements to FAR 16 task order competitions. As with Delex, decision will require agencies to expend far more effort and resources conducting task order competitions. Again MAS competitions under FAR 8.4 not subject to same rigorous requirements.

  21. Upcoming Issues in 2009

  22. Recovery Act Contracting Recently enacted Recovery Act provides massive contracting opportunities outside normal budgetary process But Recovery Act places unique requirements on procurements using “Recovery” funds Recovery Act rules apply to procurements under MAS Contracts!

  23. Recovery Act Contracting Rules Pre-solicitation notices on FedBizOps required on buys > $25,000, including planned MAS buys. Thereafter procurements are to be conducted as normal (in case of MAS buys using FAR 8.4 procedures and/or through E-Buy). FedBizOps notice is for information purposes to enhance awareness of opportunities.

  24. Recovery Act Contracting Rules Recovery Act also requires that orders placed against MAS contracts must be published on FedBizOps Requirement applies to awards of task/delivery orders, BPAs & orders under BPAs.

  25. Recovery Act Contracting Rules Recovery Act creates strong preference for both competitive and fixed price contracts. All contract awards using Recovery Act funds that are not both competitively awarded and fixed priced shall be posted to FedBizOps together with an explanation of the rational for either not pursuing competition or not making a fixed price award.

  26. Recovery Act Contracting Rules Act also imposes special reporting requirements set forth in new FAR clause 52.204-11. Clause is to be inserted in all contracts using Recovery Act funds. If Recovery Act funds are added to existing contracts than FAR 52.204-11 must be added by contract modification.

  27. Recovery Act Contracting Rules New FAR 52.204-11 requires prime contractors to submit quarterly reports on the following: Amount of funds invoiced by contract; Listing of supplies/services furnished; Performance metrics, deliverables or outcomes achieved; Progress achieved to date; Employment impact achieved, in terms of number and types of jobs created or retained;

  28. Recovery Act Contracting Rules FAR 52.204-11 reporting (continued) Names and compensation of 5 most highly compensated officers (if the contractor received > $25M in federal contracts revenue & > 80% of revenue from fed. contracts/grants); and Aggregate number and value of first tier subcontracts Above requirements shall be flowed down to certain first-tier subcontractors as well.

  29. Recovery Act Contracting Rules Quarterly reports shall be posted to www.FederalReporting.gov, a public website. New FAR 52.204-11 effective March 31, 2009. Initial reports due July 10th 2009; thereafter 10th day after end of quarter.

  30. Hot Issues in GSA and VA Contracting Questions?

  31. Hot Issues in GSA and VA Contracting Thank You! bkinosky@centreconsult.com jphillips@centreconsult.com

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