New Federal Fiscal Year Ahead - Have You Managed Contract Funding Risk?

As the federal fiscal year draws to a close and the new year opens on 1 October, an astute contractor will have examined the funding status of all government contracts for risk.

Limitation of funds and funding exposure must be a vital topic for every government contractor.

THE FUNDING CHALLENGE

Many federal contracts are funded incrementally, usually based on the government fiscal year that runs from 1 October to 30 September. Although the government may negotiate dollar price ceilings for cost plus and time and materials contracts or firm, fixed total price arrangements, the contracts themselves may be incrementally funded, particularly if they extend over multiple government fiscal years. A contract may contain negotiated prices or a cost ceiling but also specify an incremental funding value.

The contractor is required to inform the government when actual costs incurred plus obligations to suppliers or payroll on a specific contract reach certain thresholds of the current incremental funding specified in the contract (usually 80%). The government is then obligated to further fund the contract. 

In the event the contract is not funded further, the contractor has the right to stop work before he exceeds the incremental funding. Some contractors choose to operate on "risk," continuing to perform on a contract while exceeding the incremental funding in booked cost and obligations. 

The government is under no obligation to reimburse the contractor for invoiced amounts exceeding incremental funding. Nearing the end of a government fiscal year, a contractor may find delays in funding reaching all the way to congress. This situation must be managed with the government contracting officer. Limitation of Funds and Funding Exposure

STOP WORK ORDER

Contractors may receive stop work orders from agencies unless their contracts were fully funded in the previous fiscal year.  The government reserves the right to 
de-obligate funding on contracts, which can effectively bring them to a halt. 

Stop work orders are serious matters and require special handling to comply with government direction and manage the associated financial risk. 

Upon receipt of a stop work order you have no guarantee of payment for any transaction date-stamped in your accounting system after the date of the stop work order (or the commencement date of a stop work order specified in a Contracting Officer's Letter).

Applicable charge numbers in the accounting system must be closed until the stop work order is lifted and any effected suppliers and subcontractors must be notified to do the same.

To the degree the government has made progress payments or has any other form of payment invested in a physical product to date it has ownership rights. If that is the case, treat the physical material work-in-process as government owned, store it as such without performing any more effort on it and await further disposition.

To the degree the government has not paid anything on the contract or delivery order they have no ownership rights to the physical product and you are free to complete it and sell it to another customer (commercial or government that has not stopped work). If the government recommences the order, quote a new price and delivery from ground zero.

At the bottom line a stop work is blunt and to the point.  Treat it as if you will never hear from this customer again to manage the risk.

To the degree you do hear from the Contracting Officer again and he or she has the funding to recommence work, be prepared to submit a proposal for what it will take to start the effort and a realistic delivery schedule to complete it, but do not build any retroactive costs incurred during the stop work period into your logic and expect to bill them; they may not come to payment fruition. 

Continuing effort on a contract after receipt of a stop work is high risk. Astutely managing your options is a far better approach.   What is a Government Contract Stop Work Order?

SUMMARY

Having a limitation of funds and funding exposure process in the company should be a standard part of doing business.  A shrinking, remaining funding level condition on incrementally funded contracts should trigger a risk analysis and government notification process throughout the year.

The federal fiscal year-end brings an additional element of risk to the process with the annual budgeting, approval and appropriations process required by law. 

Utilizing The Freedom of Information Act (FOIA)

 

The purpose of this article is to discuss the background and administration of the Freedom of Information Act (FOIA) and suggest tips in using the FOIA as a tool in operating your business.

BACKGROUND

Extract: United States Department of Justice Web Site:

“Enacted on July 4, 1966, and taking effect one year later, the Freedom of Information Act (FOIA) provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. A FOIA request can be made for any agency record. Before sending a request to a federal agency, you should determine which agency is likely to have the records you are seeking. Each agency’s website will contain information about the type of records that agency maintains.

The FOIA is a law that gives you the right to access federal government information.  It is often described as the law that keeps citizens in the know about their government. Under the FOIA, agencies must disclose any information that is requested – unless that information is protected from public disclosure. The FOIA also requires that agencies automatically disclose certain information, including frequently requested records. As Congress, the President, and the Supreme Court have all recognized, the FOIA is a vital part of our democracy.”

POINTS OF CONTACT (POC)

A typical POC page will look like this:

 

The Office of Management (OM) advises the public and U.S. Department of Education (ED) employees regarding FOIA requests and ED information available to the public. As the lead organization for ED's FOIA Program, OM provides training for ED officials and guidance and support to the FOIA Coordinators and FOIA Review Officers in the Department's Principal Offices and 12 regional and field offices.

Contacts

Send requests via email to: EDFOIAManager@ed.gov
Send requests via fax to: (202) 401-0920
Send requests via mail to:

U.S. Department of Education
Office of Management
Office of the Chief Privacy Officer
400 Maryland Avenue, SW, LBJ 2E321
Washington, DC 20202-4536
ATTN: FOIA Public Liaison

FOIA Requester Service Center
(202) 401-8365

FOIA Director
(202) 453-6362
Gregory Smith

FOIA Public Liaison and Team Lead 
(202) 205-0733
Robert Wehausen

FOIA Analysts
(202) 401-8365
Elise Cook
Arthur Caliguiran
Christie Swafford

FOIA Appeals
(202) 401-8365
Arthur Caliguiran

Department of Education FOIA Contacts

Website: FOIA Request Forms"

PRACTICAL USE

Although occasions may arise for use of the FOIA on legal matters, personnel issues, and records that relate to agency background and activities, the most common uses of the FOIA in government contracting are as follows:

• Market Research

• Copies of historical contracts issued by an agency as well as contractor proposals.

• Specific articles supporting a protest action.

RESPONSE TIME

The FOIA require a 30 day response time to your request, but actual response times vary by agency and backlog. 

If the agency determines the request will exceed $25 in costs, you should indicate in your request that you will be willing to pays those costs to receive the data. 

MAKE YOUR REQUEST  AS SPECIFIC AS POSSIBLE

Identify the document or documents specifically by name and identifying number (s).  When requesting contracts, RFP’s, change orders and similar data, always include the contract number and be specific with regard to references to all changes.  If proposals are requested include a specific request for management, technical and cost volumes. The more detail you provide the more likely the response will supply what you wish to have.

BE PREPARED FOR GOVERNMENT REDACTING

When the government receives requests for copies of contracts, proposals and similar data that contain specific in formation pertinent to another company, they are required to contact that company and ask for identification of information the firm deems proprietary.  To the extent the firm identifies such data, expect the response you receive to have the data redacted (blanked out and unreadable). 

EXPEDITING

Among the larger agencies, especially DOD and Justice, it is rare to receive the information requested in a FOIA within 30 days.  Be prepared to expedite, by email, registered letter and by visitation if necessary, depending on the importance of the request to your business. 

 
REFUSALS

Refusals by the government can be appealed if you and your legal counsel make the judgment a given request falls outside of the following exemptions permitted the government or one of three special law enforcement record exclusions detailed at the FOIA web site:

"Exemption 1: Information that is classified to protect national security.  The material must be properly classified under an Executive Order.

Exemption 2: Information related solely to the internal personnel rules and practices of an agency. 

Exemption 3: Information that is prohibited from disclosure by another federal law. Additional resources on the use of Exemption 3 can be found on the Department of Justice FOIA Resources page.

Exemption 4: Information that concerns business trade secrets or other confidential commercial or financial information.

Exemption 5: Information that concerns communications within or between agencies which are protected by legal privileges, that include but are not limited to:

Attorney-Work Product Privilege
Attorney-Client Privilege
Deliberative Process Privilege
Presidential Communications Privilege

Exemption 6: Information that, if disclosed, would invade another individual's personal privacy.

Exemption 7: Information compiled for law enforcement purposes if one of the following harms would occur.  Law enforcement information is exempt if it:

            7(A). Could reasonably be expected to interfere with enforcement proceedings 

            7(B). Would deprive a person of a right to a fair trial or an impartial adjudication 

            7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy "

            7(D). Could reasonably be expected to disclose the identity of a confidential source

            7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions

            7(F). Could reasonably be expected to endanger the life or physical safety of any individual 

Exemption 8: Information that concerns the supervision of financial institutions.

Exclusions:

Congress has provided special protection in the FOIA for three narrow categories of law enforcement and national security records.  The provisions protecting those records are known as “exclusions.”  The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings. 

The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed.  

The third exclusion is limited to the Federal Bureau of Investigation and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified.  Records falling within an exclusion are not  subject to the requirements of the FOIA.  So, when an office or agency responds to your request, it will limit its response to those records that are subject to the FOIA."

WHAT IF YOUR COMPANY DATA IS REQUESTED UNDER THE FOIA?

When notified by a contacting officer that copies of your company contract(s) and/or proposal(s) have been requested by another firm, identify to the officer  the pricing data, proprietary data and sensitive information you do not wish to have disclosed and formally indicate by letter the sections of the documents you wish redacted prior to release to another firm. The officer may or may not provide to you the name of the firm requesting the information. If you are involved in a re-compete effort for which you are the incumbent it is wise to inform the FOIA Officer of the agency involved that you expect to be notified when requests are made for copies of your information.  

SUMMARY

We suggest you study the FOIA site and the agency(s) you target for information.  Be specific in your requests and be prepared to expedite them. The FOIA can be a valuable tool for your business, but it usually takes patience and practice to use it effectively.

Your Free Small Business Federal Government Contracting Advisory Service

This site is dedicated to Small Businesses who wish to succeed in Federal Government Contracting. 

There are over 100 agencies or "Departments" in the federal government. Each of these agencies has a statutory obligation to contract from small business for 23% of everything it buys. Contracting officers must file reports annually demonstrating they have fulfilled this requirement. Not fulfilling the requirement can put agency annual funding in jeopardy. You have a motivated customer in federal government contracting officers and buyers.

Large business, under federal procurement law, must prepare and submit annual "Small Business Contracting Plans" for approval by the local Defense Contract Management Area Office (DCMAO) nearest their headquarters. These plans must include auditable statistics regarding the previous 12 month period in terms of contracting to small businesses and the goals forecast for the next year. 

The federal government can legally terminate a contract in a large business for not meeting small business contracting goals. Approved small business plans must accompany large business contract proposals submitted to federal government agencies. Small businesses have motivated customers in large business subcontract managers, administrators and buyers.

This site provides practical, no cost, “How to" guidance on the following:

1. Understanding the federal government contracting environment and small business set-aside opportunities

2. Registering a small business as a supplier with the federal government

3. Marketing to the federal government

4. Understanding the requirements of the Federal Acquisition Regulation (FAR) and Cost Accounting Standards (CAS)

5. Teaming with other small businesses

6. Achieving a General Services Administration (GSA) Schedule

7. Subcontracting to prime contractors on federal government contracts

8. Preparing competitive proposals

9. Negotiating federal contracts with government agencies, prime contractors and subcontractors

10. Managing government contracts

Consider The Women Owned Small Business (WOSB) Federal Contracting Program Certification Process

Small Business Administration 

Becoming certified for the WOSB Federal Contracting Program means your business is eligible to compete for contracts that are set aside for WOSBs and economically disadvantaged WOSBs and sole-source federal contracts within eligible industries. 

New WOSB Federal Contracting Program regulations were published in the Federal Register on May 11, 2020, detailing changes to the certification process. DON’T MISS OUT! 

Visit the The Women-Owned Small Business Federal Contract Program (WOSB Program) web site to submit your initial application. The site makes it easy for you to understand the the certification process to ensure you remain eligible. 

On the homepage, you can: 

• Access checklists that provide guidance prior to applying

• Explore your company’s eligibility 

• Find answers to questions regarding your firm’s eligibility in the program

 

• Request information from SBA program experts 

• Create an account and proceed with your application 

SBA WOSB Certification

Work Authorization Is Key To Contract Management Process

The execution of a contract (signing by both parties) is a key benchmark in government contracting. It triggers several events such as the start of the period of performance and the delivery schedule time period. Execution begins a billing period start date, and contractual obligations by the government and the contractor.

Establish an internal document to your company that contains the pertinent data for the contract and assigns it a unique contract identifier in your business system. This is necessary for billing and cost collection purposes as well as government audits. 

Astute government contractors do not allow effort to proceed or cost to be incurred on a particular contract until such a document is generated, signed, approved and distributed by a company official assigned the duty of releasing the contract for performance. 

Such documents are commonly called "Work Authorizations", "Release Orders" "Production Release Orders" or a similar term to benchmark the new business and begin performance, accounting, and time and materials accumulation on the contract. 

Any cost or supplier commitments prior to a signed contract are considered pre-contract costs by the government under FAR and require special authorization by the PCO under the contract. They cannot be billed until the contract is signed. Incurring pre-contract costs without authorization is high risk for the contractor. 

Any work or supplier commitments outside the scope of the current contract documentation are also high risk without a negotiated contract amendment adding the scope of work to the contract or government authorization for the use of designated management reserve.

Sarbanes Oxley regulations and other recent government laws regarding corporate responsibility have made control of work authorization and record keeping important factors. Keep in mind that a small business past performance record begins when a contract is signed.  This record is maintained by the government and is updated as deliveries and performance occur. 

You should begin your internal project management record on each contract by attaching all the necessary information for your performing organizations and support functions to begin doing their jobs. 

A copy of the contract should accompany the internal release to key functions in your enterprise. The master should be filed in your central files. Some companies perform work authorization electronically. The government is moving in the direction of electronic record keeping as well.

Thank You - From A Small Business Volunteer Counselor

It has been a pleasure for the last 16 years to serve the Micro Mentor and SCORE Small Business Communities as well as many other venues through the "Small To Feds Foundation". 

I appreciate the many small enterprises who have contacted me for support, as well as others who have visited my websites, downloaded the free books and conversed with me on social media as we shared our concerns for the welfare of small business.

Small business volunteering has kept me active in retirement, in touch with my profession and engaged in a continuous learning mode. You have been my "Window On The World" in pursuing those objectives.

Thank You,

Ken Larson

GOVERNMENT ACQUISITION CATEGORIES

GOVERNMENT ACQUISITION CATEGORIES

The federal government generally recognizes 6 principal categories of acquisitions. Below is an extract from the FAR for each. It is possible for a product to go through, or be supported by, all 6 acquisition categories during its life cycle.

FAR 34.005-3 - CONCEPT EXPLORATIONS

Whenever practicable, contracts to be performed during the concept exploration phase are for relatively short periods, at planned dollar levels. These contracts are to refine the proposed concept and to reduce the concept's technical uncertainties. The scope of work for this phase of the program is consistent with the government's planned budget for the phase. Follow-on contracts for such tasks in the exploration phase are awarded as long as the concept approach remains promising, the contractor's progress is acceptable, and it is economically practicable to do so.

FAR 34.005-4 - DEMONSTRATIONS

Whenever practicable, contracts for the demonstration phase provide for contractors to submit, by the end of the phase, priced proposals, totally funded by the government, for full-scale development. The contracting officer provides contractors with operational test conditions, performance criteria, life cycle cost factors, and any other selection criteria necessary for the contractors to prepare their proposals.

FAR 34.005-5 Full - FULL SCALE DEVELOPMENTS

Whenever practicable, the full-scale development contracts provide for the contractors to submit priced proposals for production that are based on the latest quantity, schedule, and logistics requirements and other considerations that will be used in making the production decision.

FAR 34.005-6 - FULL PRODUCTION

Contracts for full production of successfully tested major systems selected from the full-scale development phase may be awarded if the agency head (a) reaffirms the mission need and program objectives and (b) grants approval to proceed with production.

FAR 35.002 - RESEARCH AND DEVLEOPMENT

The primary purpose of contracted R&D programs is to advance scientific and technical knowledge and apply that knowledge to the extent necessary to achieve agency and national goals. Unlike contracts for supplies and services, most R&D contracts are directed toward objectives for which the work or methods cannot be precisely described in advance. It is difficult to judge the probabilities of success or required effort for technical approaches, some of which offer little or no early assurance of full success. The contracting process is used to encourage the best sources from the scientific and industrial community to become involved in the program and must provide an environment in which the work can be pursued with reasonable flexibility and minimum administrative burden.

Contracts are used only when the principal purpose is the acquisition of supplies or services for the direct benefit or use of the federal government. Grants or cooperative agreements are used when the principal purpose of the transaction is to stimulate or support research and development for another public purpose.

FAR 37.1 - SERVICES

"Nonpersonal services contract" means a contract under which the personnel rendering the services are not subject, either by the contract's terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the Government and its employees.

"Personal Services Contract" means a contract that, by its express terms or as administered, makes the contractor personnel appear, in effect, Government employees.

"Service Contract" means a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply. A service contract may be either a nonpersonal or personal contract. It can also cover services performed by either professional or nonprofessional personnel whether on an individual or organizational basis. Some of the areas in which service contracts are found include the following:

(a) Maintenance, overhaul, repair, servicing, rehabilitation, salvage, modernization, or modification of supplies, systems, or equipment
(b) Routine recurring maintenance of real property
(c) Housekeeping and base services.
(d) Advisory and assistance services
(e) Operation of Government-owned equipment facilities, and systems
(f) Communications services

FY 19 – A Small Business Government Contracting Record Year

“SBA“ By Dr. Francis Spampinato, Assoicate Administrator

“In FY 19 the federal government not only exceeded its small business contracting goal, it awarded a historic $132.9 billion or 26.50 percent in prime contract dollars to small businesses.

The Women-Owned Contracting Goal was met for the second time in scorecard history.”

___________________________________________________________________

“Every year, the federal government spends over $400 billion on goods and services, making it the largest purchaser of goods and services in the world. Today, the U.S. Small Business Administration released the annual Fiscal Year 2019 Small Business Federal Procurement Scorecard, which tracks and assesses each agency’s yearly and individually negotiated small business prime and subcontracting performance and determines grades ranging from A+ to F

We are very pleased to announce that in FY19 the federal government not only exceeded its small business contracting goal, it awarded a historic $132.9 billion or 26.50 percent in prime contract dollars to small businesses. This is an increase of $12 billion from FY18, earning the federal government an “A” on SBA’s Scorecard. This smashes the record-setting $120 billion the federal government awarded to small businesses in FY18!

It was a record-breaking year for women-owned small businesses too!  For the second time ever since the implementation of the women-owned contracting goal, the federal government met the five percent contract goal awarding $26 billion in federal contracts, or 5.19 percent to women-owned small businesses.    

The federal government also awarded nearly $90.7 billion in subcontracting dollars to small businesses.  The prime and subcontracting dollars combined amount to one million jobs created that are supported annually through federal contracting. These jobs  help to build communities and fuel the nation’s economy.

I have spent 25 years of my government tenure as a professional program administrator,  the Chief Procurement Officer for the Federal Emergency Management Agency, the Director of Acquisition and Contracting for the Federal Aviation Administration and the Chief Acquisition Officer at the Department of Energy. I am pleased to oversee the SBA’s Office of Government Contracting and Business Development, which is charged with making sure that the federal government spends at least 23 percent of its contract dollars with small businesses annually. 

The goal of my office is to increase support to the small business contracting community, namely, the agency procurement personnel which includes: SBA’s Procurement Center Representatives, Commercial Market Representatives, the  Office of Small Disadvantaged Business Utilization, the Office of Small Business Programs and contracting officers who are responsible for actually making the contract awards to small businesses to achieve the 23 percent goal. 

I am so pleased to see this shared result between the SBA and its colleague agencies and partners despite the challenges caused by the pandemic. Meeting these small business contracting goals is part of our commitment to ensuring that entrepreneurs are adequately supported and represented throughout the government.

These positive results are also because of small business owners like:

• James Moore, Managing Partner of Expert Maintenance and Construction Services, LLC (EMCS), an 8(a) and Disadvantaged Business Enterprise-certified firm of Prairieville, Louisiana and SBA’s Louisiana 2020 Small Business Person of the Year.  James founded his business with just two employees and has grown his business to 85 employees, with $16 million in revenues. 
• EMCS has performed numerous contracts with federal, state, and local agencies in addition to private entities and has completed projects in multiple states, including Louisiana, South Carolina, Kansas, Missouri, and Texas, with offices in all five states.

SBA is incredibly proud of the small businesses that we support. We are deeply gratified to work with our federal partners and are appreciative of their efforts in helping to achieve and exceed the 23 percent goal. This achievement is not only a win for the federal government; it is a win for small businesses and the nation’s economy.”

SBA Small Business Scorecard

ABOUT THE AUTHOR:

Dr. Francis Spampinato is Associate Administrator for the Office of Government Contracting and Business Development

GSA Awards Contract To Replace Duns Number for Entity Validation In System For Award Management (SAM)

Image:  "Dun and Bradstreet"

"FEDSCOOP"

"Now, instead of the DUNS number, GSA, through Ernst and Young, will use a government-owned unique entity identifier called the SAM Managed Identifier (SAMMI) within SAM and GSA’s Integrated Award Environment. 

This eliminates issues with vendor lock-in associated with the government relying on a private company’s proprietary identifier."

___________________________________________________________________

"The government is moving to a new provider to validate and track its business with contractors and other parties.

The General Services Administration awarded a $41.75 million contract to Ernst and Young LLP for up to five years of entity validation services for the federal award process through GSA’s System for Award Management (SAM).

“Securing this five-year contract means that the federal government will have a safe, secure, and unified method for validating entities, while also simplifying the process for those who seek awards,” GSA Office of Systems Management Assistant Commissioner Judith Zawatsky said in a statement. “This award greatly improves the government’s ability to manage data and is an important step forward to competitively procuring entity validation services on behalf of the entire government award community.”

Ernst and Young will replace incumbent Dun & Bradstreet, which has provided the government entity validation through its Data Universal Numbering System, or DUNS number, for more than two decades. As GSA transitions to EY ‘s services, “the government will receive continued service from Dun & Bradstreet to maintain award reporting and data integrity,” the agency said in a release.

GSA has been exploring new options for entity validation for more than two years.  It issued a request for proposals late last year.

Watchdogs have championed the move away from the DUNS number system because of its proprietary nature.

D&B said in 2017 it hoped to continue its work with the federal government. “Dun & Bradstreet believes that our government partners will continue to find value in what we deliver to support the federal government across a multitude of missions"

GSA picks Ernst and Young to phase out the DUNS number