The PCI Network – Three Keys to a Winning Proposal

The next episode of The PCI Network is all about putting together a winning proposal. Lou Chiarella, Director and Faculty at PCI, shares three tips to help you craft a winning proposal. Mr. Chiarella is an attorney in the Washington, D.C. area with 20 years of experience specializing in all aspects of Government contracting.  In addition to his current position, his previous experiences include: Professor of Contract and Fiscal Law, U.S. Army Judge Advocate General’s School, Charlottesville, Virginia; Chief of Administrative and Civil Law, Fort Carson, Colorado; and Trial Attorney, U.S. Army Contract Appeals Division, Arlington, Virginia.

The PCI Network – Character Traits for a Great Government Contracts Professional

In this episode of The PCI Network, the head of our FUN with the FAR series, Stephen Daoust, discusses the four traits of a great government contracts professional. Throughout his 25-year career, Steve has worked as a Chief Government Contracts Counsel, Director of Contracts, and Chief Compliance Officer for both publicly traded companies like Iridium and Affiliated Computer Services and large accounting firms like PricewaterhouseCoopers, where he was asked on a daily basis to provide expert advice and counsel on the negotiation and administration of contracts with federal, state, and local Governments. Check out what he has to say below!

Myth No. 4: We Will Only Work as a Subcontractor Because We Don’t Want To Be Exposed the Way a Prime Is

*This post is the fourth in the ten part series, “Ten Myths of Government Contracting” and will be released weekly. Each week will introduce  a new myth and run for ten weeks.    How many times have you heard this?  My response is always the same:  Have you actually read any of your subcontracts?  I already know the answer to that question, of course, because no one who has read a properly drafted subcontract could ever utter the words above. If a prime contractor is doing its job, it is going to “flow down” many of the clauses from its prime contract to its subcontractors.  Primes go about this in a variety of ways.  Some will actually print each and every clause verbatim and include … Continue reading

FAR 52.216-31 Time-and-Materials/Labor-Hour Proposal Requirements (Part 3)

Commercial Item Acquisition NOTE: This is the third in a three-part series on Time-and-Materials/Labor-Hour Proposal Requirements.  Part 1 addressed non-commercial item acquisition with adequate price competition (FAR 52.215-29).  Part 2 addressed non-commercial item acquisitions where there is not adequate price competition (FAR 52.216-30).  This Part 3 addresses commercial item acquisitions at FAR 52.216-31 (which must, by law, be awarded based on adequate price competition).    Applicability: As stated at FAR 16.601(f) (3), the solicitation provision at FAR 52.216 31 applies to Time-and-Materials/Labor Hour (T&M./LH) solicitations for all acquisitions contemplating the use of a Commercial Time-and-Materials or Labor-Hour contract.   Key Requirements: T&M/LH contracts provide for reimbursement to the contractor based on a fixed hourly rate for each labor category listed in the contract.  Under the current FAR … Continue reading

FAR 52.216-30 Time-and-Materials/Labor-Hour Proposal Requirements (Part 2)

Non-Commercial Item Acquisition with Adequate Price Competition NOTE: This is the second in a three-part series on Time-and-Materials/Labor-Hour Proposal Requirements.  Part 1 addressed non-commercial item acquisition with adequate price competition. This Part 2 addresses non-commercial item acquisitions where there is not adequate price competition (FAR 52.216-30).  Part 3 will address commercial item acquisitions at FAR 52.216-31 (which must, by law, be awarded based on adequate price competition).    Applicability: As stated at FAR 16.601(f)(2), the solicitation provision at FAR 52.216 30 applies to Time-and-Materials/Labor Hour (T&M./LH) solicitations for non-commercial item acquisitions, where the price is not expected to be based on adequate price competition.   Key Requirements: T&M/LH contracts provide for reimbursement to the contractor based on a fixed hourly rate for each labor category listed in the … 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

FAR 52.216-29, Time-and-Materials/Labor-Hour Proposal Requirements

Non-Commercial Item Acquisition with Adequate Price Competition NOTE: This is the first in a three-part series on Time-and-Materials/Labor-Hour Proposal Requirements.  This Part 1 addresses non-commercial item acquisition with adequate price competition.  Part 2 will address non-commercial item acquisitions where there is not adequate price competition (FAR 52.216-30).  Part 3 will address commercial item acquisitions at FAR 52.216-31 (which must, by law, be awarded based on adequate price competition).    Applicability: As stated at FAR 16.601(f)(1), the solicitation provision at FAR 52.216 29 applies to Time-and-Materials/Labor Hour (T&M./LH) solicitations for non-commercial item acquisitions, where the price is expected to be based on adequate price competition.   Key Requirements: T&M/LH contracts provide for reimbursement to the contractor based on a fixed hourly rate for each labor category listed in the … 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

A Brief Note on the Pay-If-Paid Clause: An Occasional Thorn to US Government Construction Subcontractors

Subcontractors bidding US government construction projects often find themselves subject to both mandatory and non-mandatory FAR clauses and provisions flowed-down from the prime contractor’s RFP, as well as the prime’s particular special terms and conditions – and conflicts often exist between the two.  Contract payment is one area where discrepancies abound between the FAR clauses and the prime’s own subcontract terms and conditions.  It cannot be stressed enough that, prior to bidding work, subcontractors must be able to recognize and understand the various payment provisions contained in subcontract RFPs.  Quite simply, for subcontractors, it’s all about the money and how fast they get it. Thus, the type of payment provision is extremely important to subcontractors.  To be sure, a subcontract RFP for a government construction … Continue reading

FAR 52.236-1, Performance of Work by the Contractor (A Hard Clause for OCONUS Construction Contractors)

The US government, and in particular the DoD, has spent, and will continue to spend, millions of dollars on OCONUS construction projects.  Contracts have been awarded for building complete compounds in Djibouti, Africa, troop barracks in Afghanistan, and runways in Qatar.  Unsurprisingly, there’s no shortage of bidders for these projects – with their millions of dollars in revenue.  Many large US government contractors, as well as foreign construction firms, have competed over and over again for these projects.  Inasmuch as all of these construction projects are FAR based, the RFPs are substantially similar, containing identical clauses and provisions, even though, of course, the SOWs differ.  One clause consistently included in all of the respective RFPs, and which causes a great deal of angst for many … Continue reading