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Government Contracts Advisor

Industry Insights & Analysis

The New System for Award Management (SAM) Database Goes Live on May 29, 2012

Posted in Federal Databases, Procurement Fraud, Small Business By Justin M. Ganderson

On May 29, 2012, Phase 1 of the new System for Award Management (SAM) database will go live.  SAM will combine the following federal government database into one larger database:

  • Phase 1 – Central Contractor Registration (CCR), Federal Agency Registration (FedReg), Online Representations and Certifications Application (ORCA), Excluded Parties List System (EPLS),
  • Remaining Phases – Catalog of Federal Domestic Assistance (CFDA), Electronic Subcontractor Reporting System (eSRS), Federal Business Opportunities (FBO), Federal Procurement Data System – Next Generation (FPDS-NG), FFATA Subaward Reporting System (FSRS), Past Performance Information Retrieval System (PPRIS) and Wage Determination Online (WDOL). 

SAM is being created to “include streamlined and integrated processes, eliminat[e] . . . data redundancies, and reduce costs while providing improved capability.”  Contractors, vendors, and federal grant / assistance award recipients interested in being eligible for federal government contracts and federal grants must now utilize one log-in to: register to do business with the federal government, view business opportunities or represent/self-certify as a small business.  They must also use the same log-in to make certain required representations and certifications.

 Here are the links to the reference guides posted on the SAM website:

Please contact us if you have any questions about the SAM Database, and how it may affect you.

OFPP Issues Contractor Myth-Busters Memo

Posted in In The News By Brian Cruz

Co-authored by Jason Workmaster.

The Obama administration has just released a memorandum intended to address “misconceptions” the administration believes contractors who are new to government contracting may have.   The Office of Federal Procurement Policy (“OFPP”) memo, entitled “Myth-Busting 2”: Addressing Misconceptions and Further Improving Communication During the Acquisition Process proposes to give the contracting industry advice on improving their proposals for government contracts but it’s unclear just how helpful this memo will be.   

The memo tackles eight misconceptions and then sets about “debunking” them.   It’s unclear, however, exactly how OFPP identified these misconceptions as ones it needed to address, and some of them are quite simplistic.  Take number 7 for instance:  this “misconception” is that contractors believe that they “don’t really need to tailor [their] solution to the specific solicitation since the government won’t read [their] proposal that closely anyway.”  It’s hard to imagine any serious contractor thinking they don’t need to do their best to fit their solutions to the agency’s needs, however.  In addition, a number of the “misconceptions” are issues that contractors can’t do much about.  In this category is “misconception” number 8, in which OFPP practically begs vendors to continue to request debriefings, even though they may think doing so is a waste of time because agencies don’t release any meaningful information at debriefings.  This certainly is something that, in our experience, can happen, and the only real solution is for agencies to take seriously OFPP’s direction to release as much information at debriefings as possible and as consistent with the FAR.

On a positive note, this memo, and its predecessor released last year, which was geared towards government procurement personnel and much more substantive, is a starting point for further attempts at improving the acquisition process and going forward we would hope to see OFPP engaging in more dialogue with industry and trade associations about more substantive concerns and potential misperceptions held by contractors.

Cyber Legislation Outlook: What Companies Should Monitor as Congress Considers Cybersecurity Legislation

Posted in Cybersecurity, Legislative & Regulatory By Elizabeth Ferrell

The House of Representatives recently passed a number of cybersecurity bills, aimed at protecting the nation against cyber threats, and in the next coming weeks, the Senate is expected to consider its own proposed cybersecurity legislation. The proposed legislation has the potential to significantly impact government contractors across industry sectors, and as such, contractors should closely read the proposed legislation, assess its legal and regulatory consequences, and monitor its progress.

On April 26, the House passed the Cyber Intelligence Sharing and Protection Act (“CISPA”), H.R. 3523, along with other cybersecurity bills. In the Senate, there are a number of bills awaiting action, including: the Cybersecurity Act of 2012, S. 2105, the Cybersecurity Information Sharing Act of 2012, S. 2102, and the Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology Act of 2012 (“SECURE IT”), S. 2151. Many of these bills overlap in the cybersecurity issues they address, including:  government involvement and responsibility in the cyber arena, information sharing, protection of critical infrastructure, and reform of the Federal Information Security Management Act (“FISMA”). 

Analyzing this overlap suggests that while the cybersecurity bills contain key similarities (such as reforming FISMA to require continuous monitoring and beefed up security protections), they also contain key differences. For example, the bills contain varying levels of critical infrastructure protection, ranging from requiring that owners and operators of critical infrastructure work with DHS to conduct a cyber-risk analysis and implement cyber response and restoration plans, to a narrow approach focusing on penalties for anyone who harms critical infrastructure computers. The bills also contain differing approaches on coordination and sharing of cybersecurity information. 

Understanding the similarities and differences between these bills will help contractors better assess the impacts of the proposed legislation. Contractors should expect that any legislation will impose enhanced cybersecurity requirements as well as additional disclosure and reporting obligations. For more information on the key similarities and differences between and among the competing legislation and for predictions for future legislative action, check out our client advisory: Cyber Legislation Outlook: What Companies Should Monitor as Congress Considers Cybersecurity Legislation.

CBP, EU sign C-TPAT Mutual Recognition Decision

Posted in International Trade By Kevin Lombardo

On May 4, 2012, the U.S. Customs and Border Protection (“CBP”) and the European Union (“EU”) signed a Mutual Recognition Decision between CBP’s Customs-Trade Partnership Against Terrorism (“C-TPAT”) program and the EU’s Authorized Economic Operator (“AEO”) program.  Starting July 1, 2012, the U.S. and EU customs authority will treat members of the other customs authority in the same way that it treats its own program members.  This means that all the program members can benefit from faster controls and reduced administration for customs administration, while customs officials can focus their resources on risk areas and improve the security of the global supply chain. 

The U.S. and EU have been working to finalize this Mutual Recognition for months, and this decision is expected to boost trade opportunities for members of both programs.  Director-General Heinz Zourek, European Union Taxation and Customs Union Directorate noted, “It will save time and money for trusted operators on both sides of the Atlantic while it will allow customs authorities to concentrate their resources on risky consignments and better facilitate legitimate trade.” 

 Both the C-TPAT and AEO are voluntary government-business initiatives that seek to strengthen and improve the supply chain by offering members a fast-tracked customs process for those who meet comply with certain security criteria.  The AEO currently has about 5,000 members while the C-TPAT has over 8,000 certified members; membership in both programs continues to grow.  The U.S. currently has Mutual Recognition Arrangements with New Zealand, Canada, Jordan, Japan, and Korea, and is seeking to negotiate one with Singapore.

US Senators Push the Department of Defense to Insource More Work to Civilian Employees / Less Work to Government Contractors

Posted in In The News, Legislative & Regulatory By Justin M. Ganderson

On April 25, 2012, twenty-six US Senators wrote a letter to Defense Secretary Panetta advocating that the Department of Defense should insource more work to civilian employees in light of budget constraints, and in lieu of outsourcing work to government contractors.   In their two page letter, the Senators explained that “while the size of the civilian workforce is proposed to be cut back to FY 2010 levels, no comparable constraints were imposed on workforce hired through contractors.  We are concerned that this would incentivize managers to use contracting firms rather than civilian employees even when the latter costs less.”  The letter outlines the Senators’ belief that more work would be performed by civilian employees if the Department of Defense follows the “sourcing and work management laws” and makes an exception to the “arbitrary cap on the civilian workforce” under 10 USC § 129.  We will continue to monitor developments on this important topic.

A Primer on Bid Protests in the US P3 Market

Posted in Bid Protests, Public Private Partnerships By John Sorrenti

As the public-private partnership (“PPP”) market matures, more and more companies will be disappointed bidders and look to challenge PPP solicitations and awards.  Accordingly, companies competing in the PPP market should be familiar with the general aspects of the bid protest process as well as potential issues that can give rise to protest grounds.  Companies should thus be aware of the standards and procedures governments are required to follow when conducting competitive procurements.  The key thing to remember is that the government is expected to conduct an open, fair and transparent competition – any departure from this standard should be examined closely as it may provide a ground for protest. 

With that as background, companies interested in PPPs should become familiar with what specific laws must be incorporated into the solicitation according to controlling law of the jurisdiction; such as prevailing wage laws, domestic or local preferences, bonding requirements, etc.  Interested parties should review carefully the terms of the solicitation and respond by submitting a statement of qualifications, proposal or bid, depending on the type of solicitation issued.  Furthermore, PPP companies should ensure that the process is conducted according to the terms of the solicitation and request debriefings from the government entity managing the competition should they lose. This will help determine if grounds for protest exist.  Companies should also become familiar with any jurisdictional requirements they would need to follow in order to file a protest.

As PPPs grow in popularity, companies unfamiliar with the bid protest arena should be aware of the avenues they have to protest the process and award.  In addition to understanding the applicable laws and regulations for the government conducting the PPP competition, companies should pay close attention to the terms of the solicitation and any guidance it may provide about filing a protest.  Again, should the process appear to depart from the standards set forth in the solicitation or applicable laws and regulations, there could be grounds for a protest.  Our team has a lot of experience in this area, so please give us a call if you need any help.

White House Will Not Ban Employment Discrimination by Federal Contractors on Basis of Sexual Orientation or Gender Identity by Executive Order “At This Time”

Posted in Legislative & Regulatory By Seth Borden

Last week, the White House indicated that President Obama would not be signing a proposed Executive Order prohibiting employment discrimination on the basis of sexual orientation and gender identity by federal contractors.  There had been reports that the text of such an Order had been approved by the Department of Labor early in the year and sent to the President for consideration; and just a week earlier, seventy-two Members of Congress had sent a letter urging its implementation.  After the White House advised activists it would not be signing the Order, a spokesperson reiterated:

The president is dedicated to securing equal rights for LGBT Americans and that is why he has long supported an inclusive Employment Non-Discrimination Act (ENDA), which would prohibit employers across the country from discriminating on the basis of sexual orientation and gender identity.

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Judge Upholds 70 Year-Old Ban on Contractor Contributions

Posted in Legislative & Regulatory By Mason Smith

This post was co-authored by MLA Litigation partner, David Fine.

On Monday in Wagner v. FEC, No. 11-cv-1841, Judge James Boasberg of the U.S. District Court for the District of Columbia denied a motion for preliminary injunction challenging the 70-year old federal ban on campaign contributions made by government contractors.  The ban, found at 2 U.S.C. § 441c(a), bars individuals holding government contracts from making contributions to candidates, committees or political parties in connection with federal elections.   Key to the 26-page opinion was the judge’s finding that the three plaintiffs were unlikely to succeed in arguing that the ban violates the U.S. Constitution. 

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