Federal Contracting Answer Book, 3rd Edition

Table of contents

1. Cover
2. Title Page
3. Copyright
4. About the Authors
5. Dedication
6. Contents
7. Preface
8. Chapter 1: Introduction to the Federal Marketplace
   1. 1. What is the federal government market?
   2. 2. How is conducting business with the federal government different from conducting business with commercial companies?
   3. 3. Why do business with the federal government?
   4. 4. Have any changes occurred in the government marketplace?
   5. 5. What are the roles of each branch of the government in federal procurement?
   6. 6. What methods can be used to secure a government contract?
   7. 7. What assistance does the government provide small businesses seeking to pursue government business?
   8. 8. What information can a company get from the government? What information from a company can be protected?
   9. 9. What steps does an agency take in a negotiated procurement to purchase goods and services?
   10. 10. What steps must a company take to sell goods and services?
   11. 11. What are some basic terms in procurement?
9. Chapter 2: Introduction to Federal Contracting
   1. 12. What regulations govern federal acquisition?
   2. 13. What are the standard procurement methods used in federal acquisition?
   3. 14. What are competition requirements?
   4. 15. What types of contracts exist in the government marketplace?
   5. 16. Are there any types of small procurements that can be accomplished without all the paperwork associated with a full and open competition?
   6. 17. Are there any websites that are particularly useful for government procurements?
   7. 18. What is the HUBZone program?
   8. 19. What is the Javits-Wagner-O’Day Act and how does it apply to procurement?
   9. 20. What are some of the policies that the government has in place to ensure integrity throughout the procurement process?
   10. 21. What are the standards for disabled access? What are the Section 508 compliance issues?
10. Chapter 3: Commercial Item Contracting
    1. 22. What is the historical perspective to commercial item contracting?
    2. 23. What did the Competition in Contracting Act do for federal procurement?
    3. 24. What did the Federal Acquisition Streamlining Act do for commercial item contracting?
    4. 25. What makes something a “commercial item”?
    5. 26. How did FAR Part 12 change commercial item acquisitions?
    6. 27. What does the government look for in market research?
    7. 28. Does the uniform contract format still apply?
    8. 29. Can the contractor negotiate terms and conditions once they are established in the RFP?
    9. 30. Can the government still use best value techniques in a commercial item acquisition?
    10. 31. Can the government unilaterally change the terms of a commercial item contract?
11. Chapter 4: GSA Schedule Contracts
    1. 32. What is the GSA Schedule?
    2. 33. How does a GSA Schedule contract streamline acquisition?
    3. 34. What products and services does GSA offer?
    4. 35. Why should a company get on a GSA Schedule contract?
    5. 36. What is the overall process a company goes through to get on a GSA Schedule contract?
    6. 37. What are the typical parts of a GSA proposal?
    7. 38. What happens after all the proposal pieces are completed?
    8. 39. What are the types of GSA multiple award schedule contracts?
    9. 40. What are some of the tools GSA has available for contractors on multiple award schedule contracts?
    10. 41. When can a simplified acquisition use multiple awards?
    11. 42. Are there any significant terms and conditions in the GSA MAS process that a contractor should be aware of?
    12. 43. How does a contractor secure a GSA Schedule contract?
    13. 44. Are agencies required to use the Federal Supply Schedule?
    14. 45. If a contractor is not getting a fair share of task orders, what can the contractor do?
    15. 46. How can task orders be protested?
    16. 47. Can the failure to get a task order be challenged as a claim?
    17. 48. Can losing a blanket purchase agreement be protested?
12. Chapter 5: Subcontracting
    1. 49. Why should a company subcontract?
    2. 50. What should a prime contractor consider when determining whether to subcontract?
    3. 51. What should a subcontractor consider when determining whether to subcontract?
    4. 52. How can a company find a prime contractor to work with?
    5. 53. What does a prime contractor need to consider before entering into a subcontractor relationship?
    6. 54. What should a prime contractor keep in mind when working with subcontractors?
    7. 55. What tasks do prime contractors and subcontractors work on during a proposal and subsequent contract effort?
    8. 56. What should a subcontractor consider when working with a prime contractor?
    9. 57. What does the subcontractor need to provide to the prime contractor?
    10. 58. What should a subcontractor keep in mind when working with prime contractors?
    11. 59. How does a subcontractor determine if it is worth working as a subcontractor?
13. Chapter 6: Marketing
    1. 60. What are the overall steps to conducting marketing?
    2. 61. What kind of data are useful for market research?
    3. 62. What are some of the methods to obtain marketing information?
    4. 63. How does a company use marketing information?
    5. 64. What are some of the benefits of shaping the procurement for the competing companies?
    6. 65. What are the benefits of RFP shaping for the government customer?
    7. 66. What should a company consider when developing a position paper or holding a marketing meeting as a way to shape an RFP?
    8. 67. How does a company shape an RFP by responding to draft documents?
    9. 68. How can a contractor use bidders’ conferences to shape an RFP?
    10. 69. How are bid and proposal budgets different on commercial versus government programs?
    11. 70. What is included in a B&P budget and how is it determined?
    12. 71. How does a company analyze its competitors for a particular program?
    13. 72. What areas of analysis are required prior to making a bid decision?
    14. 73. What work must be completed before making a bid decision?
    15. 74. What are the implications of the bid decision process?
14. Chapter 7: Ethical Pitfalls
    1. 75. What do these more recent changes require contractors to do?
    2. 76. What does an ethics awareness and compliance program look like?
    3. 77. What is an internal control system (or “internal controls”)?
    4. 78. What ethical requirements do commercial item contracts have?
    5. 79. Procurement integrity has changed over the years. What does procurement integrity now require as a practical matter?
    6. 80. What are the basic restrictions of the procurement integrity laws?
    7. 81. Does the dollar value of the contract determine what parts of procurement integrity apply?
    8. 82. What land mines are hidden in the procurement integrity law?
    9. 83. Does a violation automatically invalidate the procurement?
    10. 84. What is the difference between a personal conflict of interest and an organizational conflict of interest?
    11. 85. What are the CO’s responsibilities?
    12. 86. What does being “debarred” mean and is it serious?
15. Chapter 8: Proposal Development
    1. 87. Is there a standard RFP format?
    2. 88. What is the difference between product and labor contracts?
    3. 89. What is the difference between solicited and unsolicited proposals?
    4. 90. What are some of the characteristics of a typical proposal effort?
    5. 91. How many people should be involved in a proposal effort?
    6. 92. What are the key positions on a proposal effort?
    7. 93. What is the process for developing a proposal?
    8. 94. How does a company develop technical and management solutions?
    9. 95. How does a team write a proposal?
    10. 96. What are some of the unique components of the management solution?
    11. 97. Why should customers use oral proposals?
    12. 98. How does a company prepare for an oral proposal?
    13. 99. What are some of the contractual implications of the price proposal?
    14. 100. Do cost and price refer to the same thing?
    15. 101. Can the government make an award decision based on the initial proposal submission?
    16. 102. What is the overall process for developing a price proposal?
    17. 103. What is the overall process for developing a contracts volume?
    18. 104. What is the overall process for reviewing proposals?
    19. 105. What are some common mistakes in the proposal process?
    20. 106. What are the production tasks required to submit a proposal to the government?
    21. 107. What is the government’s approach to contractor past performance?
    22. 108. What is the PPIMS?
    23. 109. What are oral proposals?
    24. 110. How does the government evaluate oral proposals?
16. Chapter 9: Cost Analysis
    1. 111. How does the government define contract costs on a submitted proposal?
    2. 112. What key factors does the government review in a submitted proposal?
    3. 113. Why does the government review cost estimating systems?
    4. 114. What does the government look for in a contractor’s financial systems?
    5. 115. What type of estimating system does the government use?
    6. 116. What must the government include in the solicitation?
    7. 117. What is cost or pricing data?
    8. 118. What is information other than cost or pricing data?
    9. 119. What is the Truth in Negotiations Act?
    10. 120. When can the government grant an exception from TINA?
    11. 121. Which specific items must the contractor provide to the government?
    12. 122. What if the offeror submits false data?
    13. 123. When can the government request information other than cost or pricing data?
    14. 124. How does the government determine if the contractor’s proposed costs are compliant?
    15. 125. When does CAS coverage apply to contracts or subcontracts?
    16. 126. Does the government look at individual cost elements?
    17. 127. Does the government look at anything besides costs in cost analysis?
    18. 128. Do the source selection authority and contracting officer ever request additional government expertise? Are these people qualified?
    19. 129. How does the government evaluate the design of the work that the offeror proposes?
    20. 130. How does the government evaluate an offeror’s planning assumptions?
    21. 131. Should the offeror include any contingency costs in its proposal?
    22. 132. How does the should-cost analysis help the government evaluate an offeror’s proposal?
    23. 133. How does the government evaluate and mitigate risk?
    24. 134. What are the offeror’s material costs?
    25. 135. How does the government analyze the offeror’s material costs?
    26. 136. Does the government analyze the proposed offeror’s subcontracts at this point?
    27. 137. How does the government analyze direct labor costs?
    28. 138. What else does the government look at with regard to labor rates?
    29. 139. How does the government analyze other direct costs?
    30. 140. How does the government analyze indirect costs?
    31. 141. Are G&A expenses included in indirect costs?
    32. 142. How does a company identify pools and bases for rate development?
    33. 143. Is the government looking for anything in particular when it analyzes rates?
    34. 144. How does the government analyze a contractor’s forward-pricing rates?
    35. 145. How does the government analyze a contractor’s facilities capital cost of money?
    36. 146. How does the government analyze a contractor’s proposed profit or fee?
17. Chapter 10: The Government’s Price Evaluation
    1. 147. Why is the government required to conduct market research prior to issuing the solicitation?
    2. 148. What is the relationship between market research and contract pricing?
    3. 149. How does the government prepare estimates?
    4. 150. What does market research entail?
    5. 151. What does the government do if it thinks it will not get enough competition?
    6. 152. How does the government publicize the acquisition?
    7. 153. What strategies does the government use for making an award?
    8. 154. How does the government evaluate a contractor’s prices?
    9. 155. What is the difference between price reasonableness and price realism?
    10. 156. What are the inputs into a price evaluation based on solicitation provisions?
    11. 157. What are the Buy American Act criteria?
    12. 158. How does the government use government-furnished production and research property factors in its solicitation provisions?
    13. 159. How does the government handle transportation costs?
    14. 160. Can the government have long-term business relationships with contractors?
    15. 161. Does the government consider energy conservation and energy efficiency factors in making award decisions?
    16. 162. Does the government consider leasing instead of outright purchases in its procurement decisions?
    17. 163. How does the government conduct price analysis with regard to the total price offered?
    18. 164. With so many companies offering so many different products, how does the government compare products and prices?
    19. 165. Which factors affect the government’s ability to compare prices?
    20. 166. How does the government analyze the differences?
    21. 167. What vendor-related differences does the government look for?
    22. 168. Does the government go through the same analysis on a sealed bid?
    23. 169. What price-related decisions are involved in a negotiated procurement?
    24. 170. What does the term “cost and pricing data” mean?
    25. 171. When can the contractor get a cost or pricing data exception?
    26. 172. How does the government determine the competitive range?
    27. 173. Does the government communicate with the offerors after it receives the proposals but before it makes an award decision?
    28. 174. How does the government evaluate risk?
    29. 175. Does the government keep a record of its pricing decisions?
18. Chapter 11: After Proposal Submission
    1. 176. How does a contractor answer customer questions or respond to proposal amendments?
    2. 177. How does a company prepare for a demonstration?
    3. 178. How does a company finalize its competitive target?
    4. 179. How does a company prepare for and conduct negotiations?
    5. 180. How does a contractor work with the customer to develop a negotiation summary?
    6. 181. How does a company prepare the final proposal revision?
    7. 182. What are the key components of start-up planning?
    8. 183. How does a company conduct start-up planning?
19. Chapter 12: Exchanges with Offerors
    1. 184. What is the competitive range?
    2. 185. How does the government decide who is in the competitive range?
    3. 186. What is the one great advantage of the competitive range?
    4. 187. Is there only one competitive range determination?
    5. 188. What are clarifications, discussions, and communications, and what are the distinctions among them?
    6. 189. What happens if an offer doesn’t get to the government by the deadline?
    7. 190. What happens if both the government and the bidder cause a bid to be late?
20. Chapter 13: Final Proposal Revisions
    1. 191. What happened to BAFOs?
    2. 192. What are “meaningful discussions”?
    3. 193. How can the government accept a good offer that comes in late?
    4. 194. What are unbalanced bids and what is the best way to determine whether one exists?
21. Chapter 14: Past Performance
    1. 195. If a company filed claims, can the government hold that against the company and consider claims filing as part of (adverse) past performance?
    2. 196. What are the rules on how an agency should evaluate a vendor’s past performance in the solicitation process?
    3. 197. What if the evaluation information on past performance is wrong? Must the government give the offeror a chance to correct it?
    4. 198. When can an agency properly refuse an offeror a chance to rebut adverse past performance information?
    5. 199. Does an agency have to verify the past performance information submitted by references?
    6. 200. How is the government supposed to rate someone new to the work?
    7. 201. In evaluating past performance, can an agency consider only the past performance of the corporate entity and not that of the key personnel?
    8. 202. Can a settlement agreement limit what an agency may say about a contractor’s bad performance?
22. Chapter 15: Debriefings
    1. 203. What information is usually provided at a debriefing?
    2. 204. What form does a debriefing take?
    3. 205. Do debriefings really provide fodder for a protest?
    4. 206. If a debriefing is unlikely to lead to a successful protest, is there a better use for a debriefing?
    5. 207. When do debriefings occur?
    6. 208. How does a company get a debriefing?
    7. 209. Should a lawyer come to a debriefing?
    8. 210. What information does the government have to disclose at a postaward debriefing?
    9. 211. What information cannot be disclosed at a debriefing?
    10. 212. Does the government really have to admit at a debriefing that it made a mistake?
    11. 213. The government has to tell losing companies their rankings and ratings. What are “rankings” and “ratings”? What is the difference?
23. Chapter 16: Contractor Qualifications
    1. 214. What makes a government contractor “responsible”?
    2. 215. What purpose does “responsibility” serve?
    3. 216. What is the difference between “responsive” and “responsible”?
    4. 217. Why should a small business be especially concerned about this responsibility/responsive distinction?
    5. 218. What are definitive responsibility criteria?
    6. 219. Does the contracting officer have to warn me that I was looking non-responsible and give me a chance to prove I am responsible?
    7. 220. What is an organizational conflict of interest?
    8. 221. What kind of situations create an unequal-access-to-information OCI?
    9. 222. What kinds of situations create a biased-ground-rules OCI?
    10. 223. What kind of situations create an impaired-objectivity OCI?
    11. 224. Whose job is it to monitor whether there is an OCI?
    12. 225. What is the contracting officer’s role in OCIs?
    13. 226. What is a “teaming agreement”?
    14. 227. Are teaming agreements legally enforceable?
    15. 228. What is a GSA Schedule contract contractor team arrangement?
24. Chapter 17: Protests
    1. 229. What are the chances of a company’s winning a protest?
    2. 230. What is the best approach for a company to take?
    3. 231. What are the advantages and disadvantages of filing a protest to the agency?
    4. 232. What are the advantages of filing a protest at GAO?
    5. 233. What can a contracting officer do to avoid a protest?
    6. 234. What are the disadvantages to a company protesting?
    7. 235. Is it smart for a company to argue that the contracting officer showed bad faith?
    8. 236. What’s the worst thing a contracting officer can do after getting a GAO protest that seems to have merit?
    9. 237. What is an automatic stay?
25. Chapter 18: Inspection, Acceptance, and Warranties
    1. 238. In plain English, what does the inspection clause say?
    2. 239. If the government had a chance to inspect the work but didn’t, can the government later complain that the work was not done correctly?
    3. 240. What are the differences in the concepts of “strict” compliance, “substantial” compliance, and “substantial performance”?
    4. 241. The government approved something with defects it knew about. Now the government rejects it. Can it do that?
    5. 242. The government used it. It bought it, right?
    6. 243. Under a warranty, does the contractor have to prove that it did the work right, or does the government have to prove that the contractor did it wrong?
    7. 244. Is the contractor off the hook when the warranty period ends?
26. Chapter 19: Earned Value Management
    1. 245. What is the purpose of earned value management?
    2. 246. What is the starting point for obtaining EVM metrics?
    3. 247. How does EVM work with PMOs?
    4. 248. What are the earned value metrics?
    5. 249. Does an organization have to implement the full 32 EVM criteria?
    6. 250. How does a company use EVM to compare projects across a company to determine how each is doing in comparison to the others?
    7. 251. Are there any EVM metrics that help a project manager forecast any potential problem areas?
    8. 252. How are the measurements used?
    9. 253. If we have these EVM metrics, why do we need an EVM system?
    10. 254. Does the value of EVM justify the return on investment needed to implement the technology and change the organizational culture?
    11. 255. So why should an organization be willing to go through this expense to implement an EVMS?
    12. 256. Is there any downside to implementing EVM?
27. Chapter 20: Closeouts
    1. 257. How soon after the contract is over should the contracting officer close out a contract?
    2. 258. How long must the files be kept?
    3. 259. Is there some way the government can take money from a contractor to pay a debt the contractor owes?
    4. 260. When a contractor signs a release for a modification, does that prevent the contractor from getting additional costs at the end of the contract?
    5. 261. Is a release with a broad exceptions clause really effective for keeping the contractor’s options open for future claims?
    6. 262. Will the FAR release language for modifications work to prevent claims at the end of the contract?
    7. 263. When is it too late to file claims?
28. Chapter 21: Contract Interpretation
    1. 264. What are some of the rules for contract interpretation?
    2. 265. What is the parol evidence rule?
    3. 266. The contract says one thing, which is different from the way it’s being carried out. Does this change affect the interpretation and meaning of the words of the contract?
    4. 267. What is the difference between a design specification and a performance specification? Why does it matter?
    5. 268. How does the principle of words being construed against the drafter work?
    6. 269. What’s the harm in a contractor making an aggressive or at-the-fringe argument? It might win!
29. Chapter 22: Delay
    1. 270. If a contractor finishes before the contract completion deadline but after the deadline it had set for itself, must the government pay delay damages?
    2. 271. Before signing a release for a time extension given by the government, what land mine should a contractor be alert to?
    3. 272. What is the Eichleay formula and what does it do?
    4. 273. Is the Eichleay formula applicable to modifications extending the contract?
    5. 274. How detailed and precise must the calculation of liquidated damages be?
    6. 275. Can the government pay delay damages if a subcontractor is delayed but the prime contractor is not?
    7. 276. Is all delay caused by a defective specification compensable?
30. Chapter 23: Changes
    1. 277. What are the limits of the government’s use of the changes clause?
    2. 278. How are ripple effect costs paid for?
    3. 279. What are the time limits for a contractor submitting requests for equitable adjustments due to changes under the changes clause?
    4. 280. Does the contractor have to carry out the change while fighting about it with the government?
    5. 281. If a contractor is forced to agree to a modification under the changes clause, is the modification valid?
    6. 282. Can anyone other than the contracting officer bind the government?
    7. 283. What is imputed authority?
    8. 284. What is apparent authority?
31. Chapter 24: Equitable Adjustments
    1. 285. What is the starting point for calculating an equitable adjustment?
    2. 286. How much profit should a contractor make on an equitable adjustment?
    3. 287. When work is taken from a contract and different work is added, how is that priced?
    4. 288. Sometimes the same kind of government action can be compensated under various clauses, with different dollar consequences. How does this work?
    5. 289. Can an equitable adjustment include the costs of a consultant like a lawyer or an accountant?
32. Chapter 25: Claims
    1. 290. What does a claim consist of?
    2. 291. What is the difference between a request for equitable adjustment and a claim?
    3. 292. When should the contractor start out with a request for equitable adjustment? And when should the contractor go straight to a claim?
    4. 293. How does a contractor make a claim?
    5. 294. What documents does the contractor have the right to see on filing a claim?
    6. 295. Is there a statute of limitations on filing a claim?
    7. 296. Does it matter what clause the contractor uses?
    8. 297. Does the contractor have to keep working on the project while it has a claim pending?
    9. 298. Does the government have any time limits for responding to the claim?
    10. 299. Can a contracting officer stall indefinitely and simply fail to issue a contracting officer’s final decision?
    11. 300. What about arbitration?
    12. 301. What if the contracting officer gives only partial relief? What does the contractor have to lose if it appeals?
    13. 302. What are the deadlines for appeals?
    14. 303. What are the advantages of going to the board or the court?
    15. 304. When does the interest clock start to run?
    16. 305. Can the contractor get paid for filing a claim?
    17. 306. What are EAJA costs? What costs can the contractor get back from the government under EAJA?
    18. 307. Can the government come after the contractor and make the contractor pay its costs if the contractor loses?
    19. 308. Can an invoice be a claim?
    20. 309. What does it take to make a termination for convenience settlement proposal a claim?
33. Chapter 26: Terminations
    1. 310. What are the most common mistakes the government makes in doing a termination for default?
    2. 311. Are cure notices needed before doing all terminations for default?
    3. 312. How does a contracting officer correctly charge a defaulted contractor for the excess costs of reprocuring the materials that should have been bought under the defaulted contract?
    4. 313. On what grounds can the government terminate for convenience a newly awarded contract?
34. Chapter 27: Fraud
    1. 314. What are the government’s remedies for contractor fraud?
    2. 315. With all these remedies, what is the contracting officer’s role when fraud is discovered in the claims process?
    3. 316. What is this land mine for contractors called an “implied certification”?
    4. 317. Can government contractors violate the False Statements Act?
35. Acronyms
36. Index
37. Back Cover