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Government Contracts Monitor

Commercial Items

Buy American Changes Yet Again

March 7, 2022, marked the publication of yet another final rule implementing changes to “Buy American” requirements for federal contractors. Final BAA Rule. There are very few surprises in this rule, largely because it closely tracks the proposed rule published last July.  That said, the final rule significantly changes FAR Part 25 – the regulations implementing the Buy American Act (BAA).

First,…

Exemption 4: Protection of Confidential Information - The Ground May be Shifting

The Supreme Court recently granted a petition for writ of certiorari over (that is, agreed to review) an Eight Circuit decision involving Exemption 4 of the Freedom of Information Act (“FOIA”).  What is Exemption 4?  It is the exemption that protects from public disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Why is this…

Will DoD Change How It Procures "Readily Available" Commercial Items?

The Section 809 Panel has recommended some drastic changes that would impact government contractors doing business with the Department of Defense (DoD).  What is the Section 809 Panel? It is a panel created in Section 809 of the FY 2016 National Defense Authorization Act (NDAA) with goals outlined in the NDAA such as: (i) reviewing DoD’s acquisition regulations with a view toward improving the…

Are there Cybersecurity Risks in Your Supply Chain?

By now we all know that the Federal Government has dramatically increased its efforts to reduce threats to cybersecurity: witness a case in the Court of Federal Claims (COFC) where the Social Security Administration (SSA), in acquiring new printers, was determined to avoid supply chain risks it suspected were present in a bidder’s offer. The bidder protested, but the COFC agreed with the agency.

Mindful Negotiation and Consistency in Quoting Can Help Fend Off Misguided Evaluators on FSS Procurements

For many contractors, the process of obtaining or renewing a Federal Supply Schedule (FSS) contract is a loathsome chore only slightly less painful than repeatedly sticking needles in one’s eyes. Firms with this attitude often “go along to get along”, choosing the path of least resistance between them and their coveted Schedule contract. As a result, they might get their contract sooner but they…

Short Take: GSA Releases Audit Report of its Purchase Card Program

The General Services Administration (GSA) performed a routine annual audit of its Government Purchase Card (GPC) program, analyzing transactions from Fiscal Year 2015 (FY15). Under the GPC program, cardholders procured $27.5 million worth of goods and services for GSA in FY15, down nearly 8 percent from the previous year’s use. Overall card use has decreased every year since 2011, when GSA card…

When a Solicitation is Cancelled, Should an Offeror Protest?

Given the high cost of preparing a proposal in response to a government solicitation, an agency’s cancellation of a procurement can be both frustrating and disappointing. However, as the recent Government Accountability Office (GAO) opinion in Medfinity LLC, B-413450 (September 9, 2016) makes clear, it is exceedingly difficult to prevail on a protest challenging an agency’s decision to cancel a…

DOD Issues New Guidance on Commercial Item Determinations

On September 2, 2016, Defense Procurement and Acquisition Policy (DPAP) Director, Claire M. Grady, issued a guidance memo concerning commercial item determinations and the determination of price reasonableness for commercial items. The memo begins by noting the proposed rule issued August 11, 2016 under DFARS Case 2016-D006 implementing Sections 851-853 and 855-857 of the FY 2016 National Defense…

Short Take: FAR Council Updates Standard Forms for Bonds

The FAR Council recently issued a final rule amending five standard forms prescribed by the Federal Acquisition Regulation (FAR) for contracts involving bonds and other financial protections. The revisions are aimed at expanding the options for organization types and clarifying liability limitations. 

More particularly, the new rule addresses the concerns by surety bond producers that they may be…

Is That Contract Modification Allowable or Not?

Depending on your perspective, a contract modification that adds work to the existing contract may be either absolutely and “obviously” appropriate (if you’re the contractor) or an improper method of avoiding the fair and open competition required by the Competition in Contracting Act (CICA) (if you’d like an opportunity to compete for the new work). Choosing between these two extremes can be…

Buy American – What Can A Government Contractor Deliver?

Many government contractors and subcontractors ask the question, “What does ‘Buy American’ mean?”  Unfortunately, Buy American refers to number of complex statutory and regulatory schemes that impose different requirements. One thing is certain, however:  whether you are conducting business with the federal government directly, as a prime contractor, or indirectly, as a subcontractor,…

 

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