Sole Source Contracts are non-competitive procurements that allow a single supplier to fulfill the needs of the contractual requirements. Though Full and Open Competition is preferred in federal acquisitions, the use of a sole source can be highly valuable when specific circumstances are met. Sole-Source acquisitions are detailed in the Federal Acquisition Regulation (FAR) parts 6 and 13; aspects of the sole-source award process include an exigent need, limited source of supply or service, brand-name justification, and/or competition is determined inadequate. In most cases, Sole Sourcing is the result of competitive proposals being not applicable to the contract requirements.
How Are Sole Sources are Awarded?
Sole source awards can be made to vendors when one or more of three criteria are met.
- The item/service is available only from one source (Brand Name Justification).
- The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation.
- Competition is determined inadequate after solicitation of a number of sources.
Justification an Approval (J&A)
Sole source awards require contracting officer to complete written justifications for approval when considering a sole source contract. It is important for vendors to arm contracting officers with the information that need to help to make this justification. The requester will provide circumstances for approval with applicable supportive information. These criteria include:
- Description of the project and amount to be designated for the contract
- Explanation of necessity to contract from one source:
- Descriptions of unique aspects in which eliminates competition. Such as unique capability, expertise, facilities or equipment that no other source can provided.
- Verifying that such aspects are indeed only available through the one source.
- If this is an urgent timing matter, such as emergencies that will have a significant effect, please provide the descriptions of deadlines, impacts of deadlines and the need for the timely contract.
- If there are competitors, explanation of how long they would take to complete the same task
- Results of a Market survey determining the inadequate competition
- Declaration that this sole source procurement is in the best interest of the agency.
Sole Source Thresholds
Here are a few tips to remember when purchasing lobbying for a sole source. Every purchase that goes over the Micro-Purchase Threshold of $10,000 (or $3,500 for DOD), a justification will be required, unless the purchase is from an existing contract, the supplier is named in the opportunity or the purchase is being competitively solicited. The only exception for justification is consulting services.
When above the micro-purchase threshold, agencies have the authority to award Sole Source contract noncompetitive proposals but must meet extensive criteria for justification and approval. Sole Source justification must meet the following circumstances:
- Written justification must be provided and approved specified in FAR based on value of acquisitions
- Above the micro-purchase threshold, but below the simplified acquisitions threshold – contracting officer certification that acquisition is accurate and complete
- Above the simplified Acquisition Threshold, but below $700,000 — contracting officer certification that acquisition is accurate and complete
- Above $700,000, but not exceeding $13.5 million – the advocate for competition for the for the procurement activity or designated officer (see FAR 6.305) approval is required
- Above $13.5 million, but below $68 million – head of the procuring activity of designated official (see FAR 6.305) approval is required
- Above $68 million — by the senior procurement executive of the agency in accordance with agency procedure
- Make the justification publicly available within 14 days after contract award, unless it is an unusual and compelling urgency, then 30 days after award
Sole Sourcing Denial
There will be situations where the Sole Source contract will not be accepted. This happens when there is more than one bidder or offeror for the one proprietary item, when an agency prefers a specific name branded product or at times, those aspect’s uniqueness alone will not be enough to be determined as a sole provider. In addition, the justifications can also result in disapproval if it is used to select a preferred vendor. This will lead to auditors digging for details to suggest a possibility of favoritism, partiality or other bias.
The benefits to a vendor are multiple, but you should understand the benefits to agencies as well to help negotiate the need for a sole source. Aside from a quicker acquisition process, other benefits include an efficiency increase on the administrative side with lowered production costs, fewer contracts to negotiate and, ideally, a better value for the prices. Product quality should improve as the delivery process will be more effective. Because of the short span from delivery to use, there may be quicker discoveries of any defective items. There will also be an opportunity to build a partnership with the supplier which could be very beneficial long term.
Please let Coley know if you have any questions on federal contracting or sole sources items.
GSA IT Schedule 70 HACS SINs
During today’s GSAs Interact Webinar for the new stand-alone Highly Adaptive Cybersecurity Services (HACS) SIN 132-45, plans were discussed with industry detailing best practices for the upcoming Schedule 70 Solicitation Refresh. With this upcoming refresh, currents SINs 132-45A, 132-45B, 132-45C, & 132-45D will be deleted in their entirety and reclassified as a subcategory under SIN 132-45. Along with this new structure, GSA discussed a new “fifth” subcategory and what to do as a current and prospective HACS vendor.
- 132-45A – Penetration Testing
- 132-45B – Incident response
- 132-45C – Cyber Hunt
- 132-45D – Risk and Vulnerability Assessments (RVA)
- High Value Assets (HVA) Assessments (New Subcategory)
With the migration of the HACS SINs to subcategories, GSA will be adding a fifth subcategory (not previously available on GSA). The new subcategory, High Value Asset Assessments, encompasses a company’s ability to provide Security Architecture Review (SAR) and Systems Security Engineering (SSE). If you believe you qualify for this new subcategory, GSA has identified two group: Vendors with all Currents HACS SINS and Vendors with one or three HACS SINs.
For vendors with all current HACS SINs (132-45A thru D), GSA is accepting a “Service Self-Attestation” acknowledging the company’s capability to perform these services. GSA will be providing a template of the attestation so if you are a vendor with all current HACS SINs, be on the lookout for the template to be released in the solicitation refresh documents. You will have to submit the request through eMod (after the refresh and bilateral modification has been accepted) but the entire mod evaluation process will not be necessary. For vendors with only a few of the HACS SINs, the Service Self-Attestation will not be accepted. Those vendors will be required to go through the evaluation process including the Oral Technical evaluation to add each additional subcategory.
As of now, GSA has recommended that all mods be postponed until these changes have been implemented, however, GSA is still accepting and processing modifications based on the current solicitation. GSA has not established a cutoff date but as the refresh nears, GSA will be closing the window for accepting mods based on the current solicitation. So, if you have already submitted a mod or have been working on a mod to add the HACS SINs, be sure to work with your contracting officer to process the mod in a timely manner. BE RESPONSIVE to any clarifications to ensure the mod is awarded prior to the refresh.
What This Migration Does In Ebuy:
With the migration of all the HACS SINs under one SIN, vendors previously not able to see SIN specific RFQ’s will now be able to see all available opportunities under 132-45. However, if you are vendor with only a few subcategories, you still may not be eligible to submit a bid. Agencies will now have the responsibility of clearly stating the subcategory(ies) they are looking to compete. You can help those agencies understand these new changes by providing responses during the “Request for Information (RFI)” stage to ensure your subcategory is identified in the Scope of Work.
When To Expect These Changes:
GSA has a tentative release date of Winter 2018-2019.
Visit GSA Interact for the Presentation and Draft documents: GSA IT Schedule 70 Program to Incorporate Highly Adaptive Cybersecurity Services (SIN 132-45)
If your company offers cybersecurity and is impacted by this update, contact Coley to help with your modification. You can reach us directly at 210-402-6766 or [email protected].
For reporting a TDR service contract, filling out the fields is very simple. You just need to give a description of the deliverables (ex: Security Services), which is a mandatory field. Next, you would need to input the unit price and quantity. This will populate the total price in the next field. You can add as many line items within this order. You can also submit more than one order as well. If needed, you can also save your submission to submit at a later time.
Using the 72a reporting is basic and simple, as the main actions to use are “Form Entry” and “Adjust Data”. If there are multiple pending payments needing to be made, you will have to pay each individually. Unfortunately, you cannot be merged numerous pending payments into one transaction. For sales adjustments, you will need to click on the “Adjust Data” option. Any time you the corrected data is less than what was initially reported, a credit will apply to the future payment report. There will also be an agency tracking number for all payments made.
This time around reporting zero sales just became easier, as it takes just a few clicks to submit. All you need to do is click “zero sales”, then hit the submit and check the “agree” box, and your good to go.
What is SRP?
This new one stop-shop for TDR and 72A data will be a safe, secure and user-friendly portal to report both transactional and aggregate level data. Reporting is very user friendly to navigate as both monthly and quarterly contracts are visible, along with the reporting period, last reported and balance. You will also be able to do multiple payments options for remitting the fee required pursuant to your contract.
Where do I Login to SRP?
The URL is now officially changed to https://srp.fas.gsa.gov/. If you go to the old TDR portal, you will be redirected to the new link.
How can I Access SRP?
You will now be required to use a digital certificate to login. This is a welcomed changed from previously where you needed to enter time sensitive security codes. In addition to the digital certificate, your name must be in the system to access the reporting portal. Although you can now add an authorized negotiator with the FAS portal, you would still need to submit a modification through the E-Modify system.
Can I pay fee with a Credit Card?
Please keep in mind, when paying with credit/debit card, you cannot exceed more than $24,000 per report. This applies to both TDR and 72A reporting.
I’m on TDR, when will my contract be migrated to SRP?
March 31, 2019 is the targeted date for all contracts to be migrated to the Sales Reporting Portal. TDR clients with multiple contracts will be migrated first. Also, there will be a multifactor authenticity code that will take effect around April 2019.
To be successful in the federal marketplace, you must effectively sell your company’s offerings in a highly competitive market and stand out among other contractors – just having a GSA Schedule does not guarantee sales.
Beyond sales, contractors must continue to manage the contract throughout the base period. Successfully managing your GSA Schedules contract requires you to become knowledgeable of requirements to maintain compliance as well as be familiar with operational processes impacting your Schedule. In this post, we will discuss contractor responsibilities within GSAAdvantage! to help avoid you having to cancel orders and understand any adverse actions that your Contracting Officer may impose.
Three Reasons a Contractor Can Reject a GSA Advantage Order
Each contractor holds unique terms and conditions specific to their GSA Schedule Contract and the responsible parties must be very familiar with them. The pricelist (I-FSS-600), items 1-26 contain pertinent information regarding a contractor’s options for cancelling an order. However, you may be able to cancel a GSAAdvantage order but only in very specific conditions. Below are 3 Questions to ask if you meet the conditions that will allow you to cancel an order:
- Does the order total fall outside your minimum order or above the maximum order threshold
If a Schedule contractor is unwilling to accept an order above the maximum order threshold or from an agency or activity outside the executive branch, the order will be returned to the ordering activity within five workdays after receipt by the contractor.
- What agency did the order come from?
GSA Schedule contractors are obligated to accept orders placed by activities within the executive branch of the federal government. Is the customer outside the executive branch of the federal government? Then consider GSA Schedule contractors are not obligated, but are encouraged, to accept orders from agencies and activities outside the executive branch.
- Has the order been accepted or rejected in a timely manner?
The order is considered as “accepted” by the contractor and all provisions of the Schedule contract shall then apply if the Schedule contractor fails to return the order, or advise the ordering activity, within the specified timeframes.
If you’re outside of these conditions, you have 5 days to cancel the GSAAdvantage! order, otherwise the Purchase Order (PO) must be filled. If you cannot sustain this order and you’re within the conditions above, you can cancel the Purchase Order (PO) with reason that these products are being removed from the GSA Schedule.
How to Avoid Having to Cancel a GSA Advantage Order:
- Know your Contract – Read the terms and conditions of your GSA Contract and understand everything you are responsible for.
- Stay Compliant – Make sure your modifications are up-to-date. Adding, Deleting, Economic Price Adjustments (EPA) or any administrative modifications to your schedule, should be maintained efficiently. In addition to products, make sure your point of contact and email address on GSA ebuy are accurate so you are receiving all required communications regarding orders you receive.
- Be Proactive – Always stay in touch with your supply chain to ensure you are able to deliver on all your future orders at the price awaded. If you are offering products, make sure your vendor has not changed manufacture to a non TAA compliant country. Ensure your costs have not exceeded your list price so you can modify price or remove those items before orders come in.
- Be Effective – If you are using a GSA Schedule management service that provides you with eCatalog support including GSAAdvantage or you have an internal team, ensure they keep your eCatalog current with new prices, deleted items or new offerings. The speed on how your team can effectively complete these tasks will keep you flexible, competitive and contribute to your success.
If you were mandated to accept the Transactional Data Reporting provisions there is now a path to reverse to legacy clauses.
As stated by Mary Davie, Acting Deputy Commissioner of FAS, GSA has decided to make the Transactional Data Reporting (TDR) Pilot Program voluntary for those vendors initially included in the program. Since it’s 2016 introduction by Tom Sharpe, TDR was met with skepticism by industry concerned with how the transactional data would be used and made public. The TDR pilot program has been burdensome for contractors since its roll-out requesting contractors to update or re-work their current accounting and tracking systems to allow for monthly transactional reporting. The benefits are promising, however, with the elimination of the Commercial Sales Practice (CSP-1) as well as the Price Reduction Clause (PRC); this has been an industry request for 20 years. This idea seemed great initially, but as industry questions arose about how Industrial Operations Analyst visits (IOA) will be conducted, direction from contracting officers (CO) was limited. Having spoken with various CO’s at industry days, most stated that there will be available training for the process and until then TDR was not to be accepted until the time of schedule renewal. GSA has now stated that due to its early success and participation, new vendors will have the option to decline TDR thus reinstating the tracking of the CSP-1 and PRC.
Which Contractors can get out of TDR?
GSA will conduct an analysis on which vendors are eligible to revert to legacy clauses. Keep in mind that not all vendors who voluntarily accepted Mass Mod A509 will be allowed to revert to legacy clauses. However, vendors who were mandated to accept TDR will now be able to “opt out” through the modification process and reinstate the CSP-1 and PRC requirements. In a recent announcement GSA published the following:
“For those contractors who were previously required to accept TDR, GSA is extending them the option to execute a one-time reverse modification to undo this action and work with their contracting officer to revert back to operating under the structure and tracking requirements of the price reduction clause”
Future Solicitation may include mod process to “opt in” for TDR. However, if you opt-in, you cannot revert to legacy clauses. GSA doesn’t want people going back and forth. On September 12th, GSA hosted a webinar to help provide additional information about TDR.
Answers Provided on Transactional Data Reporting Updates
How will my reporting revert to the 72a system?
- You will begin reporting in the 72a system on the 1st day of the next business quarter.
- You will continue to use the TDR monthly reporting system until the mod has been awarded.
So, what does reinstating the CSP-1 and PRC mean for future IOA visits or negotiations?
- Reverting to legacy clauses will re-establish the BOA/MFC category, Commercial Sales Practice (CSP-1), and Price Reduction Clause.
- GSA hasn’t specifically stated if discounts will be re-negotiated but a plan of action is a good idea to have in place.
- Master IOA Carrie Cuevas was on webinar and stated she is not aware of any structure changes for IOA visits. TDR review vs Legacy Clauses review.
What kind of modification/documentation is required by my CO to remove TDR?
- A solicitation refresh will be coming Mid October. Look out for Mass Mod
- No Mod type has been identified yet so your PCO will notify you if you are eligible and will provide instructions on how to revert.
- You must respond within 60 days of notification. Otherwise, CO will assume your voluntary continuation on TDR.
What schedules are affected?
- Currently, No additional SINs will be added to the TDR pilot program. Only those are already participating will continue to offer TDR as voluntary.
TDR Pilot Schedules and SINs include:
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In addition to TDR, they mentioned that GSA will continue to push for Formatted Price Tool (FPT) across all product schedules but still deciding which schedules to convert to FPT first. More info to come in FY 2018. Webinars are in the works but nothing scheduled yet.
Find a link to the slides from September 12th at 1:00PM EDT:
When you receive the notification to modify, Coley can assist you if you need help in reversing TDR.
Changing the way you submit your GSA Modifications
GSA has implemented a new process regarding the submission of your addition and Economic Price Adjustment (EPA) modifications for your schedule contract. These changes have recently taken affect for the following Schedule programs: (more…)
As you’ve probably heard, GSA is currently in the process of reviewing industry feedback regarding the reopening of Schedule 75. Late last year, GSA issued an RFI in which responses were due Jan. 17, 2017 to ensure industry feedback was utilized in the final decision making process. GSA anticipates that responses to industry feedback will be posted later this month, February 2017, on FedBizOpps as well as GSA Interact. If you haven’t done so already, be sure to create an account at GSA Interact, join the GSA Schedule 75 Community Group, and register to the Coley blog to continue getting updates.
What will you see with the new solicitation?
- New enhanced SIN, 75-2XX (actual number will be provided when plans have been finalized). Take a look below as contractors must demonstrate increased requirements for qualification!
- Combining of SINs 75-200 (Office Products) and 75-210 (Office Services). As of today, GSA’s plans are to keep these SINs closed as the enhanced SIN will include both Office Products and Office Services.
Steps Government Contractors on GSA Schedule 75 need to take:
Important GSA Points of Contact:
- Wdonna Woods, Contracting Officer, 212-577-8623, [email protected]
- Maria Viscione, Supervisory Contracting Officer, 212-264-8727, [email protected]
- National Administrative Services and Office Supplies Acquisition Center
Keep in mind that questions may not be answered as the RFI is now closed. General questions/topics can be posted to the GSA Schedule 75 Community Group at the GSA Interact.
Deloitte to Pay $11M for Alleged False Claims/Price Reduction Clause Violation:
Another example of the importance of compliance under the GSA Schedule contract. The GSA OIG (Office of Inspector General) issued a press release stating the Deloitte Consulting, LLP. Has agreed to pay $11.38 million for alleged false claims/price reduction clause violations.
The Department of Justice and GSA OIG handled the case and alleged that Deloitte failed to disclose more favorable pricing offered to a commercial customers and then did not reduce prices to Federal customer through their GSA schedule commensurately during the term of its GSA contract. Deloitte’s alleged failure to disclose and reduce GSA rates essentially resulted $11M in overcharges to Federal customers over the 6 years under suspicion.
Everyone in business wants to win work, and the Federal Government has been a consistent business partner and revenue source, but it comes with additional compliance costs. For government contractors, compliance and success in the Federal market go hand-in-hand. It is important to invest the resources into systems and processes that help ensure that compliance. Deloitte’s case is just one more in a long string False Claims or Price Reduction Act violations – most are too small to report. Here are some examples of the bigger ones:
- Oracle did not fully disclose commercial sales practices and discounts and paid back $199.5 million in over charges.
- An Office Furniture and products company did not monitor price/discount relationship and overcharged the government, paid back $9 million in over charges
Understanding the Price Reduction Clause Compliance to Avoid Fines
GSA, FAR, and ColeyGCS have training and service resources that can help your company understand the compliance concerns and systems required to remain compliant in Federal Contracting.
In our post How to Monitor Your Price Reduction Clause, we list out how to report deviations that disrupt discount relationships.
Get your GSA Schedule Pricing Relationship Right from the Start
If you’re considering a GSA schedule it is imperative that you get it right from the start. Take a deep dive into your current pricing practices and understand what mechanisms must be developed to ensure you remain agile and competitive commercially and compliant Federally.
At ColeyGCS, we perform an internal audit of our customers’ commercial practices before submission to identify standard practices and system to improve compliance.
If you have concerns about your compliance or simply are not sure one way or the other, please contact your GSA PCO, the VSC or contact ColeyGCS at 210-402-6766. We would be happy to help.
April 5th, 2016, GSA posted the VETS 2 GWAC presolicitation on FedBidOpps. The VETS 2 GWAC is a contract developed for service-disabled veteran owned IT small businesses to provide customized Information Technology (IT) services and IT services-based solutions to the Federal government. The VETS 2 is the latest version of the VETS GWAC which received $1.9B over 10 years among 32 contract holders.
The contract ceiling is currently set at $5B and awards should be announced in 2017. GSA intends to host an optional pre-proposal teleconference consisting of a RFP overview on or about May 2, 2016. FBO and GSA Interact will have details on when an official date and time are announced for the teleconference.
The current/previous VETS GWAC had 32 contract awardees receiving $1,880,134,305.60 in obligated dollars. The top agencies using the VETS GWAC:
|DEPARTMENT OF VETERANS AFFAIRS|| $ 677,110,260.47|
|DEPARTMENT OF THE AIR FORCE (HQ USAF)|| $ 327,606,225.73|
|DEPARTMENT OF DEFENSE|| $ 224,736,296.80|
|DEPARTMENT OF AGRICULTURE|| $ 122,881,950.65|
|ARMY (EXCEPT COE CIVIL PROGRAM FINANCE)|| $ 119,263,389.79|
|ENVIRONMENTAL PROTECTION AGENCY|| $ 105,634,297.26|
|DEPARTMENT OF HEALTH AND HUMAN SERVICES|| $ 49,207,188.54|
|DEPARTMENT OF ENERGY|| $ 47,879,520.53|
|GENERAL SERVICES ADMINISTRATION|| $ 46,967,264.02|
|DEPARTMENT OF COMMERCE|| $ 46,962,211.24|
|DEPARTMENT OF LABOR|| $ 43,618,753.78|
|DEPARTMENT OF THE NAVY|| $ 16,152,110.19|
|DEPARTMENT OF HOMELAND SECURITY|| $ 14,114,100.55|
|DEPARTMENT OF STATE|| $ 13,910,468.66|
|SMALL BUSINESS ADMINISTRATION|| $ 13,662,650.60|
|DEPARTMENT OF TRANSPORTATION|| $ 4,193,508.27|
|DEPARTMENT OF THE TREASURY|| $ 3,431,026.36|
|DEPARTMENT OF JUSTICE|| $ 2,803,082.16|
GSA Administrator, Denise Turner Roth, released a video launching her “Making It Easier” (MIE) Initiative for the IT schedule 70. Roth’s initiative is to drive more vendors and technologies to the GSA contracting vehicle, but responding to criticism of confusing language, complicated proposal developed, and the difficult post-award grind of winning new work.
Ms. Roth identified several key areas in her initiative including: (more…)
Update: The deadline for submissions is October 16, 2015.
GSA, working with OPM, has created the HCatS Contract, drafting it to focus on five Key Service Areas (KSA). These include
- Training and development services
- Human capital strategy services
- Human resources and human resource management temporary services
- Information technology support of human resources systems
- And Organizational performance improvement
See the most recent collection of Q&As and more information in the HCaTS Community blog on Interact.
How Do You Handle Bpas And Task Orders With The Professional Service Schedule Transition?
On October 1, 2015, GSA is migrating all vendors under the following schedules to the new Professional Services Schedule (PSS):
- Schedule 520 Financial and Business Solutions (FABS)
- Schedule 541 Advertising and Integrated Marketing Services (AIMS)
- Schedule 738 II Language Services
- Schedule 871 Professional Engineering Services (PES)
- Schedule 874 Mission Oriented Business Integrated Services (MOBIS)
- Schedule 874V Logistics Worldwide (Logworld)
- Schedule 899 Environmental Services
- Schedule 00CORP Consolidated (platform for Professional Services Schedule)
If your contract is being transitioned you will receive a unilateral GSA initiated modification awarding you a new GSA Schedule under the PSS. You will be required to update your GSA pricelist in eLibrary and Advantage, but otherwise you should see little change, according to GSA.
But what about open task orders or Blanket Purchase Agreements? If your company has an open task order under your current GSA schedule, you will continue work on that task order with no change until task order end date. Any future task orders or follow-on work must be awarded to the new PSS contract.
Open Blanket Purchase Agreements, however, require involvement of the BPA Contracting Officer. Your BPA CO has two options:
- Document the new contract number with a minor administrative change through a Memo to File (the CO will handle this) and establish a new BPA referencing the new GSA Schedule – the terms & conditions will remain unchanged. or
- Continue with business as usual under the current GSA Schedule until either the BPA or GSA Schedule expires. GSA recommends the first option as it prevents any possible contract interruptions.
We recommend you send your BPA CO to the following GSA link for additional guidance, sample language, and support contacts: PSS Transition for your Government Customers.
If you need advice or assistance, give us a call at 210-402-6766. Any of our experienced Coley Contracts Advisors can guide you through the process.
Financial experts and analysts recognized a slowing trend in the growth of State, Local, and Educational (SLED) contracting opportunities in 2014. The 2015 forecast calls for mixed results, with the improvement of larger-growth drivers and growing technology niches tempered by stiffer competition for smaller vendors at the mercy of cooperative contracts.
One of the more interesting trends in recent years is the spread of IT solutions into traditionally low-tech areas. This movement has proven lucrative for technology providers while strongly benefitting the buyer. Examples of historically low-tech markets include law enforcement, education, and road infrastructure. Social issues have exacerbated the demand for technology solutions. For example, use-of-force concerns in police departments have prompted the introduction of officer-mounted cameras that can be clipped to an officer’s lapel. School bus violence and bullying have spiked school districts’ purchase of digital bus surveillance cameras. Other areas in which education buyers are looking to ramp up technology contracting activity are through solutions including the issuance of student laptops, tablets, or Chromebooks. The technology trend in schools does not stop there, as online resources and training are efficient alternatives to expensive textbooks and onsite faculty trainers. In road infrastructure, Intelligent Traffic Systems can maximize efficiency on overtaxed, high-traffic roadways by coordinating traffic signals and reducing congestion. Vendors that specialize in this sort of technology solution find themselves in a favorable position in 2015.
Firms providing construction, architecture, or other infrastructure-related companies also stand to have a strong 2015. This trend is likely to materialize more out of necessity than choice, as the condition of bridges, roads, overpasses, and buildings continues to degrade at an accelerated level. Some of these cities have severely depleted funding that barely allows for routine maintenance, much less new construction or additions. Fortunately, increased state tax revenue and greater bond income should also stimulate some spending activity in this area (the American Society of Civil Engineers estimates $3.6 trillion is needed by 2020 to bring America’s roads and bridges up to an acceptable level. While it is unlikely that precise amount will be applied to infrastructure construction, experts predict an uptick in spending estimated at 18% over 2014.
Despite modest overall growth projections, smaller firms will face stiffer competition for fewer bids. This has a familiar ring to it in all government circles, from the Federal government down. In a universal trend to consolidate and cut costs, agencies are making a move toward cooperative purchasing. Cooperative purchasing means that a specific, established “lead agency” offers a negotiated contract for joint-use with other agencies. In such an arrangement, agencies still reeling from recession-era layoffs can cut both costs and time. On the other hand, smaller vendors are driven to the perimeter and may experience greater difficulty as they are forced to compete directly with larger vendors over a smaller number of contracts.
Overall, the chances for prosperity in 2015 depend, as always, on the vendor’s niche and capacity to remain competitive. While experts largely agree on the likelihood of recovery from 2014 slowdown, there are limiting factors that may temper the improvement for smaller businesses. For example, a mid-sized, established IT vendor has a brighter outlook than a small, younger business that has not traditionally marketed well. As 2015 proceeds and SLED agencies pick and choose their preferred solutions, time will tell if these trends indeed pan out.
On March 10, 2015, the procurement world felt a groundswell beneath its feet. The United States Court of Appeals for the Federal Circuit in CGI Federal, Inc. V. United States 2014-5143 ruled that FAR 12 takes precedence when there is inconsistency in other FAR parts, particular to 8.4. FAR 12 governs the acquisition of commercial items, whereas FAR 8.4 governs the Federal Supply Schedule.
In the above referenced case, CGI filed a protest to the COFC stating that a 2014 RFQ bid under the GSA schedule violated FAR 12.302 (c) that states “the Contracting Officer shall not tailor any clause or otherwise include any additional terms or conditions in a solicitation or contract for commercial items in a manner that is inconsistent with customary commercial practice for the item being acquired.”
The client agency wanted to change some payment terms in the RFQ request and it was determined that FAR 12 disallows the revision as the new payment terms were inconsistent with customary commercial practice.
How will this ruling affect Government Contractors?
Your day-to-day operations are unlikely to be affected by this ruling. However, future GSA RFQs may be scrutinized to comply with both FAR 8.4 and 12, and protests may see a slight increase.
Tangentially, this ruling also extends the definition of “Interested Party.” The previous understanding of Interested Party was that you were an actual or prospective bidder and that you had a direct economic interest. This case asserts that because CGI submitted a pre-award protest and the protest was not denied prior to the quote submission deadline, they did not have adequate time to respond to the bid and therefore remain a prospective bidder. Likewise, they were diligent in filing a second protest when the initial denial was received.
To demonstrate direct economic interest, CGI had to show “a non-trivial competitive injury which can be redressed by judicial relief.” CGI stated that the RFQ payment terms were illegal and therefore CGI filed a protest rather than a bid; this demonstrated non-trivial and competitive injury.
The takeaway from this litigation is that if you wish to protest, remember to be timely, responsive, and diligent.