A New Paradigm for Training the Acquisition Workforce

One trillion dollars. That’s trillion with a capital “T”, folks. Our acquisition community is responsible for managing that amount and more on an annual basis through contracts, grants, and loans. In contractual expenditures alone, the figure is in the neighborhood of $530 billion per year. We as taxpayers might presume that these public servants have a systematic training program to prepare them for future job responsibilities. Unfortunately, we the taxpayers would be wrong.   The current aversion to investing in federal workforce training can be linked to the misguided behaviors of a few civil servants who, within the last two years, spent upwards of $7 million dollars on extravagant, much-publicized conferences for their employees. As a result, agencies have nearly eliminated training budgets (which includes … Continue reading

Afterthoughts: Contract Interpretation

If you are performing a contract and the terms of the contract become an issue, what are the key things that you should be concerned about? Is it different if you are a government procurement official or private contractor? Well I think the concerns are basically the same whichever party you are a part of. If you are having a disagreement, the parties need to step back and look at the positions they are each taking and ask themselves, if a judge read these words – without any help about how we performed this contract before or after we signed it – what would he or she objectively think the words meant. What is the plain meaning of these words? To do this sort of … Continue reading

Informational Requirements Associated with Organizational Conflicts of Interest in Healthcare Related Contracts

Guest Author: Rodney L. Benson, Attorney, Buchanan Ingersoll & Rooney PC In recent solicitations, the Centers for Medicare and Medicaid Services (CMS) has required offerors to provide an increased amount of information for CMS’s evaluation of potential organizational conflicts of interest (OCI). For many years, CMS has been extremely vigilant in identifying and resolving potential OCIs. The agency has a myriad of statutory contracting authorities. Pursuant to these authorities, CMS utilizes contractor services to perform virtually all major functions and activities, including paying Medicare claims, identifying and investigating fraud and abuse and auditing and recovering improper payments. Because contractors act in a fiduciary capacity for the United States, and otherwise perform functions that require that they be free of financial interests that might impair their … Continue reading

FAR Knowledge Quiz

Below are the answers to Steve’s 5 FUN with the FAR questions posted on LinkedIn.  How did you do?  Steve can’t wait for the series to begin. We hope you can join in the fun and “Go FARther℠” with us as we begin our journey on August 14! [Note for our regular Blog readers: Steve Daoust, the lead instructor for PCI’s 25 bi-weekly webisode series, Fun with the FAR ℠, starting in August 2013, has promised to enlighten and entertain you with FUN FAR FACTS, and answer questions throughout the year. Steve is so excited about the inaugural show which will focus on FAR Parts 1 & 2, that he could not wait to start a dialogue with you and test your FAR knowledge.  If you … Continue reading

Virginia Court Confirms “Agreements to Agree” in Teaming Agreements Are Generally Unenforceable

Guest Author: Kimberly Heifetz*, Counsel, Thompson Coburn LLP, writes: Teaming agreements (TA) are a standard part of many prime contractor/subcontractor relationships, but a recent decision should serve as a reminder that TAs are also a trap for the unwary.  In Cyberlock Consulting, Inc. v. Information Experts, Inc., — F. Supp.2d –, 2013 WL 1395742 (E.D. Va., April 3, 2013), a federal district court held that a TA’s terms regarding the parties’ “agreement to agree” to future “good faith” negotiations of a subcontract, did not constitute an enforceable contract.  Teammates’ pre-award agreements to negotiate subcontracts after the prime contract is awarded are very common, but the Cyberlock decision reinforces the dangers of such provisions when the prime and sub subsequently reach an impasse in their subcontract … Continue reading

Panelists Discuss Pros, Cons Of New Strategic Sourcing Push

Executive Briefing: May 23, The Future of Multiple Award Contracts Bloomberg Government, The Public Contracting Institute (PCI) and the Professional Services Council (PSC) have partnered to bring together leaders in Government and industry to discuss the important issues affecting the acquisition community. The United States Government, as the largest buyer in the world, spends more than $500 billion annually on goods and services. In a time of significant budget cuts and increasing pressure on the Government acquisition workforce to save costs, the need for Government and industry to collaborate and work together efficiently and effectively is essential. Through a series of briefings, this coalition will facilitate the coordination and communication between Government and industry on critical issues that have significant impact on how both parties … Continue reading

Mastering the Art of Government Contracting —Why You Need the FAR

One of my favorite movies in recent times is Julie and Julia.  I loved it because I love to cook and it told a wonderful story about a woman who decided to engage in a journey to cook every single recipe in Julia Child’s famous cookbook —  Mastering the Art of French Cooking.  Cook books are fabulous things. They provide step by step instructions on how to make delicious meals but many folks are intimidated by them. I personally think, if you can read, you can cook, and once you learn to cook, you learn to improvise and become creative in what you prepare for friends and family. A Cookbook for Government Contracting If there is a “cookbook” for government contracting, it’s certainly the Federal … Continue reading

Afterthoughts: Flowdown Clauses

What are the three most significant errors contractors make when dealing with flowdown clauses? 1) I think the first error is just having a blanket provision in the front;  a blanket clause that says wherever you see the term “Government” insert “prime contractor” and wherever you see the term “contractor” insert “subcontractor”  because a number of the clauses just don’t work well that way. 2) Incorrect drafting or not complete enough drafting of a disputes provision that gives both parties the opportunity to resolve disputes in a reasonably efficient way.   This entails drafting  two provisions.  One provision for when a subcontractor claims that the government has caused it to incur additional expenses and will need  the prime to sponsor the claim.  The other provision is for … Continue reading

Afterthoughts: Good Faith & Fair Dealing

What responsibilities are included in the duty of good faith and fair dealing/ what should be included? The Restatement of Contracts lists some examples but without trying to go into the specifics of that list, I always said that the duty of good faith and fair dealing was at the center a requirement that the two parties would reasonably respond to each other’s problems. If you go back to the Civil War and look at the case law, we talked about the duty of cooperation and the duty not to hinder contractor’s performance. Those were the original duties that our legal background is full of. When we started to talk about the broader duty of good faith and fair dealing, these two duties, the duty … Continue reading

Government Claims Are Subject to the Statute of Limitations Just Like Contractor Claims

Under the Contract Disputes Act, the Government is subject to the same six year statute of limitations in filing its (a government) claim that contractors are. As is the case with contractors, the date cannot be manipulated by either party, as shown in Raytheon Missile Systems, ASBCA No. 58011, Jan. 28, 2013. (Government claims include refunds for defective pricing, overpayments made, money owed because of a change in Cost Accounting Standards (“CAS”), etc.) If a claim is not submitted within 6 years after accrual of the claim, the Boards of Contract Appeals and the Court of Federal Claim lack jurisdiction, and the Government’s (or contractor’s claim) will never get its day in court, and that is what happened in the Raytheon case. Raytheon submitted a … Continue reading