Federal Procurement Background The US Government is the worlds largest purchaser of goods and services 2 Federal Procurement Background The US Government is the worlds largest purchaser of goods and services ID: 215098
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Basics of Government ContractingSlide2
Federal Procurement Background
The U.S. Government is the world’s largest purchaser of goods and services
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Federal Procurement Background
The U.S. Government is the world’s largest purchaser of goods and services
All of this procurement is highly regulated, primarily by the Federal Acquisition Regulation (FAR)
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Federal Procurement Background
The FAR requires
full and open
competition for federal contractsNaturally, there are exceptions
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Federal Procurement Background
Exceptions to “full and open” competition
Sole Source Contracts
Statutory RequirementSmall Business Set-AsidesThe Government has a “goal” that 23% of all Federal Contract dollars will go to small businesses
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What is a small business
set-aside?
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Small Business
Set-Asides
“Set-aside” – Contract opportunity limited to small business (or certain type of small business)
Federal Agencies are encouraged, and sometimes required, to set aside a contractAutomatic set-aside if between $3K - $150K
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Small Business
Set-Asides
“Rule of Two” – Contract
must be set-aside if:Valued at over $150K;Reasonable expectation to receive offers from at least 2 small businesses; and
Award will be made at fair market price.
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Small Business
Set-Asides
Types of Small Business Programs:
Small business set-aside8(a) business development set-asidesHUBZone set-asides
Service-disabled veteran-owned, and veteran-owned small business set-asides (SDVOSB & VOSB)
Women-owned small business set-asides
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How does the government procure goods and services?
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Simplified Procurement Process
The Government announces what it needs
Fedbizopps.gov
Interested contractors submit offers to fill those needsOffers are reviewed and evaluatedContract Award
The procuring agency enters into a contract with the selected offeror
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Simplified Procurement Process
Two Primary Procurement Methods
Sealed Bidding (FAR Part 14)
Negotiated Procurements (FAR Part 15)More prevalentGSA Schedules
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Sealed Bidding
Government issues an Invitation for Bids (IFB)
Contains all necessary specs and requirements
Interested contractors submit a BidMust agree to all contract requirementsReally all about price
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Sealed Bidding
All bids are opened publicly
Award made to lowest priced responsive bid
If lowest bidder determined non-responsive, goes to next in line
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Negotiated Procurements
Government issues a Request for Proposals (RFP)
Agency
must follow terms of the RFPInterested contractors submit a ProposalDemonstrate how they can meet RFP requirements and at what price
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Negotiated Procurements
Agencies can make an award based on initial proposals, or enter into “
discussions
” with offerorsWhere there are many proposals, agencies may establish a “competitive range”
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Negotiated Procurements
After final proposals, agency makes award decision based on process identified in RFP.
Referred to as “source selection decision”
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Negotiated Procurements
Debriefings – After award, unsuccessful offerors may request a post-award debriefing
Agency must provide the debriefing
Opportunity for contractor to pose questions to agency as to why its offer was not selected
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GSA Schedules
Allows Federal Agencies to quickly purchase commercial items and services from listed vendors
Vendors apply to GSA Schedules
GSA awards schedule contract with set prices/ratesContracts last up to 20 years
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Types of Government Contracts
Firm fixed-price
All risk on the contractorCost Reimbursement
Risk primarily on government
Also Cost plus Fee, and Cost plus Incentive
Time and Materials
Fixed hourly rates, must have a ceiling cost
Indefinite Delivery, Indefinite Quantity (ID/IQ)
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What are the difference between government and private contracts?
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Government vs. Private
Changes Clause – Contractor must do all additional work ordered by agency, as long as it’s within scope of the contract
Contractor can submit request for equitable adjustment
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Government vs. Private
Termination for Convenience of the Government
Government can terminate any gov’t contract, for any reason, at any time
Contractor can recover costs associated w/ terminationNo lost profits though
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Government vs. Private
Disputes over government contracts are highly regulated and very rarely litigated in traditional courts
Generally three types of disputes in government contracting:
Pre-awardPost-awardPerformance related
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Pre-Award Disputes
Contractors can protest terms of solicitation
Too restrictive, ambiguous
Protest can be filed with either Government Accountability Office (GAO) or Court of Federal ClaimsContractors can also protest exclusion from “competitive range”
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Post-Award Disputes
Contractors can protest the award decision
e.g., Improper evaluation
Post-award protests can be filed in 3 forums:AgencyGAO
Court of Federal Claims
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Post-Award Disputes
GAO Protests
Interested parties have 10 days to protest
Automatic Stay is availableGenerally, the awardee is allowed to interveneDecision due within 100 days
Generally best option
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Performance Disputes
Disputes begin with a claim for money submitted to the contracting officer
CO has 60 days to issue Final Decision responding to claim
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Performance Disputes
Contractors can appeal denial of claim in one of two forums:
Board of Contract Appeals – Civilian Board, Armed Services Board
Court of Federal ClaimsCannot appeal to both, must choose one or other
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Performance Disputes
Appeals to Boards of Contract Appeals
Must file appeal within 90 days of Final Decision or deemed denial
Appeals to Court of Federal ClaimsMust file within 1 year of denialFederal Circuit hears appeals of these decisions
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Teaming Agreements
and Subcontracts
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Teaming Agreements
Multiple companies agree to compete as a team, usually before proposal
Teaming Agreement between Prime Contractor and Subcontractor(s)
Generally, parties agree to negotiate subcontract in good faithJoint Venture
Multiple companies agree to perform together as the Prime Contractor
Binding Contracts
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Subcontracts
Defines the relationship between Prime and Subcontractor
Typically executed after award
Should include Sub’s scope of workProvisions from prime contract can “flow down” to subcontract
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Basics of Government Contracting
Contact Info:
General Counsel, P.C.703-556-0411
info@gcpc.com
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