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Sunday, March 1, 2015

GOVERNMENT CONTRACT WAGE DETERMINATIONS

MANAGING COMPLIANCE WITH THE SERVICE CONTRACT AND DAVIS-BACON ACTS


INTRODUCTION:


When pricing government contracts, in particular service contracts, the small business will encounter government wage determinations under the Service Contract Act and Davis-Bacon Act. These determinations specify the minimum wages and related benefits that must be paid to all hourly employees charging time directly to a federal service contract as part of a total compensation plan.   

The Department of Labor Manages the Wage Determination program.

DOL Wage Determination Web Site


Contractor compliance with Wage Determinations  is subject to audit by the Department of Labor, Defense Contract Audit Agency, or other agency audit procedures. Failure to prove compliance may subject the contractor to debarment from all government contracts for up to three years.

Service Contract Act, as an example, requires minimum wages be paid per labor category as defined in the Directory of Occupations and listed as minimum wages per labor category on the Area Wage Determination incorporated into each contract. The wages are mandatory minimums paid employees for every hour worked on the contract as defined by The Act, both full-time and part-time. A typical Wage Determination is below: (Please Click Image to Enlarge)



MANAGEMENT CONSIDERATIONS:

When bidding a service contract with a requirement containing a Wage Determination, the labor category wages and fringe must conform, as a minimum,to the Wage Determination in the government Request for Proposal (RFP).  The personnel must be paid not less than the wages and fringe benefits specified in the determination when the contract is awarded.   


Due to competitive factors and labor market concerns the company may propose labor and fringe exceeding the Wage Determination, but the bid cannot go beneath the government specified rates.  Below is a typical conformance table for an engineering firm with the Wage Determination information of the right side and the company bid rate on the left side of the table.  (Please Click Image to Enlarge)

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The Fringe element of the Wage Determination conformance is usually discussed in the basis of estimate for the fringe rate in the price proposal. A major project in a given location may impact on the company wide-fringe rate if existing fringes in the company do not meet the minimum requirement for the wage determination in the area being bid. This can be a deciding factor in a bid/no bid decision on a prospective project.
 
When conforming a labor category to a government wage determination,  the title of the company job need not be identical to that to which the government wage determination refers, but the company job description must be made available to an auditor for compliance mapping purposed; i.e. the role of the individual and the scope of his or her job description must very closely match the government documents. It is best to use existing company labor categories and descriptions and work any exceptions during the conformance process, conveying the results in the form of a table similar to the above in your proposal.

If a particular wage determination selected by the contracting officer in the RFP appears to be vastly out of sync with the scope of work in the prospective contract, it is best to bring this to the government's attention in the form of a question or a suggestion for improvement during the Q&A or draft RFP comments phase of the bid process.  But remember, your question, its answer and any action taken by the CO will be made available to all competitors. 

In many instances competitive labor rates, and in some cases benefits as well, will be higher than those specified in the government wage determination. Wage determination updates by the government often lag rapidly changing technical labor markets and area economic trends.

Evaluate your initial GSA Schedule and renewals against area wage determinations, since the government may choose to buy off your schedule or you may choose to use your GSA Schedule rates to bid a procurement where a wage determination applies.

Demographics in your company may play a role.  Accumulation of labor cost history driving a pay rate in one geographic location of a company for a given labor category may not meet government wage determinations if that category is used in another geographic area with a different area wage determination in a substantially different labor market.  Many larger firms maintain standard rates across multiple geographic locations to deal with this factor.  

SUMMARY

Regularly review your company labor category rates and fringe benefits for ongoing compliance with DOL Area Wage Determinations. Sample the DOL Wage Determination web site regularly as a normal function of maintaining your labor rates and fringe benefits costs. 












 

Sunday, February 1, 2015

10 TIPS TO EXPAND YOUR CLIENT BASE MIX FOR STABILITY IN GOVERNMENT CONTRACTING

Image:"grindstone.com"


1. A mix of commercial and government business is good. In fact, most small business federal government contractors who move from commercial to government work, remain in  commercial business.  They separate government from commercial work in unique cost centers of the company for pricing and cost control purposes, recognizing the market and competitive differences in the two venues.

 Cost Center Strategic Planning 

2. Your marketing efforts must be sensitized to swings in world events, geopolitics, domestic priorities and technology trends. 
 
3. The over 100 federal government agencies all have the same small business contracting requirement under the law. Focus on government contacting applications for your core business by exploring agencies on FEDBIZOPPS other than those with whom you have been doing business.

WHAT SMALL BUSINESS SHOULD KNOW ABOUT "FEDBIZOPPS.GOV" - THE FEDERAL BUSINESS OPPORTUNITIES WEB SITE  
 
4. Industry partners are an excellent way to move into new fields.


Small Business Teaming 

5. Keep an eye on USA Spends and a close view of the domestic vs. foreign emphasis in the federal budget.  (War vs. bridge repairs). 

 USA Spends

6. Remember there is not much agencies of the federal government do not buy and they buy in huge quantities. 

 7. If your high-end navy IT customer requires support, security or related services, it is likely his or her counterpart in the Department of Agriculture or Health and Human services requires the same expertise.   This rule holds true for other services as well.

8. Maintain Your Capability Statement current with evolving trends and your growth. Seek to utilize it as a vital tool in your company marketing program.


9.   Preserve your credit rating and your finances in top shape to respond effectively when opportunities arise.
 
10. Remember market research is a continuing and ongoing process

Thursday, January 1, 2015

FREE SMALL BUSINESS GOVERNMENT CONTRACTING BOOKS AND SUPPLEMENTS





The table of contents below reflects available, free small business federal government contracting materials at this site.  You may download the book, Small Business Federal Government Contracting and its supplement from the first, vertical "Box" in the left margin below.  Blue topic titles are the basic book and red topics are contained in the Supplement. 

Use the links beneath the table to access more recent articles here since the publication of the book and the supplement.

(Please click on image to enlarge)


RECENT MATERIAL LINKS (Not included in Above)

SMALL BUSINESS COMPANY TRAINING

MANAGING INDUSTRY TEAMING RELATIONSHIPS

UTILIZING THE FREEDOM OF INFORMATION ACT (FOIA) 

GOVERNMENT CONTRACT BID PROTESTS 

UNSOLICITED GOVERNMENT CONTRACT PROPOSALS


VITAL TIPS FOR PROJECT MANAGEMENT 

FIXED PRICE VS. COST PLUS IN CONTRACTING 

MAKING AN ASUTE BID/NO BID DECISION 

THE TRUTH IN NEGOTIATIONS ACT (TINA) 

You may also benefit from the free "Reference Materials" in the second, vertical "Box" in the left margin below.  Contract agreements, incorporation instructions for all the US states, guidance on marketing and business planning are all included. 

Other books by Ken available as free downloads in the "Box" include:

"A Veteran's Photo/Poetry Journal of Recovery
From Post Traumatic Stress Disorder " 


"Odyssey of Armaments" My Journey Through the Defense Industrial Complex"





Monday, December 1, 2014

Saturday, November 1, 2014

THE TRUTH IN NEGOTIATIONS ACT (TINA)




MANAGING THE RISKS ASSOCIATED WITH DEFECTIVE PRICING 

INTRODUCTION:
 
We have previously discussed at this site the development of credible cost and pricing data. That data is the product of not only estimating and pricing but also job cost accounting for managing contracts, business system design to meet Cost Accounting Standards (CAS) and the integrated aspects of the company business system demonstrating regulatory compliance:

The purpose of this article is to cite the specifics of the “Truth in Negotiations Act” and recommend  management techniques to comply  with this law and avoid defective pricing claims by the US Government. 

THE TRUTH IN NEGOTIATIONS ACT (TINA)

Public Law 87-653 (codified by 10 USC 2306a) was originally enacted in 1962 to place the Government on equal footing with the contractor during contract negotiations.  The following are the principal features of the law:
  • Defines requirements for obtaining cost or pricing data
  •  Requires certification that data are current, accurate, and complete
  • Delineates exceptions to the requirement
  • Addresses data submission for pricing of commercial items, below threshold contracts, and “other information”
  •  Provides right of Government to examine contractor records
  • Defines cost or pricing data
  • Provides rules governing defective pricing
  • Downward Contract price adjustment
  • ·Recovery of overpayment (cost & profit) & interest (as of 1985)
  • 700K Threshold for contract actions
  • Contract actions include contracts, subcontracts, and modifications
  •  TINA applicability is not affected by contract type
  •   For subcontracts, the $700k threshold applies to the submission of data from the subcontractor to the prime contractor.
Below is an excellent presentation on further details of TINA by the National Contracts Management Association:
 
FIVE POINTS THE GOVERNMENT UTILIZES FOR ESTABLISHING DEFECTIVE PRICING
 
1)    The information in question fits the definition of cost or pricing data.

(2)    Accurate, complete, and current data existed and were reasonably available to the contractor before the agreement on price.

(3)    Accurate, complete, and current data were not submitted or disclosed to the contracting officer or one of the authorized representatives of the contracting officer and these individuals did not have actual knowledge of such data or its significance to the proposal.

(4)    The Government relied on the defective data in negotiating with the contractor.

(5)    The Government’s reliance on the defective data caused an increase in the contract price.

MANAGING THE RISK OF A DEFECTIVE PRICING CLAIM
 
A government auditor relates to TINA and defective pricing whether or not it is required contractually and uses the TINA provisions as a frame of reference in how he or she views trend analysis of your company. Even if you do not have the TINA requirement in your bid or your contract, be aware the auditor is forming his or her opinion of your compliance with the law against the TINA framework.

Post award audits can be ordered at any time by a PCO. During such audits your proposal is juxtaposed to your incurred cost and historical data on a given contract. During such juxtapositions, defective pricing stands out glaringly.  If you become aware of an anomaly, cover your tracks by immediately assessing the impact and deciding whether or not a disclosure should be made.  

Integrate your system from pricing to billing to close out utilizing a consistent cost structure template and be aware you are putting audit history in place and that historical trends are what auditors follow.
 
Keep all subsequent disclosures under proposals to the government well documented, serialized and current at the prime and subcontract level, reflecting them in a detail record of negotiation.  

If you have commenced work prior to final negotiations under a letter contract or similar interim arrangement, conduct a sweep of actual costs and commitments and reflect them in an updated proposal to the government prior to negotiation of a final price.  Reassess quotes, escalation factors, indirect costs and related factors in the same manner if a proposal expires and you are asked to extend your pricing. 

If substantive conditions in an open proposal estimate change, document them thoroughly and disclose them to the government based on an astute analysis of your risk if they can be misconstrued as defective pricing by an auditor.  Carefully convey the impact on the prospective contract and its pricing to the contracting officer if you decide to disclose. 

Consistency with CAS and your CAS disclosure statement as well as your latest negotiated forward pricing rates is mandatory. Any departure from these baselines will attract audit attention.
In many defective pricing instances what you knew and when you knew it becomes a factor.  Continually assess changing conditions that may dramatically impact your cost performance and manage them by taking corrective actions, developing workarounds and carefully communicating requirements to your subcontractors and suppliers. 

Remember under TINA you are required to perform cost/price analysis of your subcontractors if their work scope exceeds the $700k threshold. You must submit the results with your proposal to the government.  If a disclosure becomes necessary, make it sooner rather than later when the data may be under the cloud of a negative audit finding.

SUMMARY
 
Defective pricing actions by the government can have a severe impact on your past performance rating.  They must be cited by you with any new business proposal in which you are asked if your company has been accused or convicted of a violation of the law or has open or pending government adjudications regarding legal violations. 

For examples of TINA violations please see the “Federal Contractor Misconduct Data Base”, maintained by the Project on Government Oversight:

Sculpt and educate your auditor, contracting officers and government analysts on the specifics of your company business system and preserve its integrity over the long run to maximize your win potential and lower the risk of defective pricing claims by the government. 

A good rule of thumb is to consider every proposal as if it were under TINA compliance whether or not you must submit a “Certificate of Current Cost and Pricing” under TINA.  This will keep your business system sharp, your ethics and standards high and your past performance record clean.