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Government Contracting News: February Edition One

Written on February 14, 2020

Amazon Effort to Stop Jedi Task Orders Underscores Importance of Timely Protests

Amazon Web Services (AWS) filed a status update last week as part of its JEDI protest indicating that it will file a motion later this month seeking to stop task orders from being issued under the DoD JEDI contract for cloud solutions. It is unclear why AWS did not seek a stop work request with its original protest, but the fact is that they didn’t gives us the opportunity to educate our readers. Protests, whether filed at the Court of Federal Claims, like the AWS protest, or GAO don’t always, by themselves, stop work on the acquisition being protested. Protestors must specifically request that work be stopped. At GAO such a request must be part of a protest that is filed within five days of the time the unsuccessful offeror knew, or should have known, of the identified acquisition action. Waiting until the tenth day, the last on which a GAO protest can be filed and still be considered timely, very likely will result in work not being stopped. Even if the protest ends up being sustained, the protesting contractor gets no relief, other than the knowledge that it was right. Even experienced contractors can sometimes go back and forth multiple times on whether to file a protest. This is not a situation where waiting makes things better. The outcome of AWS’ motion, not expected to be officially filed until January 24th, is unknown. What is known is that the company will likely have to pay more in legal fees as it tries to seek an injunction.  This is a luxury few contractors can afford. Deciding on a stop work request is an issue that should be considered any time your company considers a protest. See the AWS story here.

Does MAS Refresh End Contractor Ability to Buy from Schedule Contracts?

One change made by the General Services Administration (GSA) in its recent update of the consolidated Multiple Award Schedule solicitation is causing confusion for both GSA and contractors. There is no need for panic. The ability for a government contractor to buy from a Schedule contract in support of the fulfillment of its own federal contract remains the same. While the refresh eliminated the FAR 51 deviation that had previously been used to place such orders, the FAR itself, was previously updated to add FAR 51.03. This provision provides the same authority for contractors to place Schedule orders and makes it permanent so that no deviation is needed. Schedule contractors that accept orders from other contractors that want to buy from their contract must have a letter from an authorized government contracting officer allowing the buyer to make the purchase. Failure to obtain such a letter could have contract compliance ramifications for Schedule contractors. The order is treated just like any other Schedule order, is recorded as a Schedule buy, and the Industrial Funding Fee must be paid on it, just as with any other Schedule order. Here is a link to the permanent language.

Do You Know How Your Customers Buy What You’re Selling? 

Federal business success isn’t just about having the best, or most competitive solution. It is often just as important to know how your customer buys what you would like to sell. The new solution your company just came out with? Make sure you know how federal customers want to buy services if you want to truly dominate your market segment. This is becoming more and more important as the Office of Management and Budget (OMB) directs agencies to increasingly buy from Best in Class (BIC), or other established contracts. The federal business door may not be completely closed to you if your technology isn’t on one of those contracts, but it’s not exactly wide open, either. Selling cloud services? DOD is moving to increasingly use the JEDI and DISA DEOS contracts. Laptops and desktops? The preferred contracts for those are NASA SEWP, the GSA Schedule, and NIH’s CIOSP III.  There are even preferred contracts for furniture, pharmaceuticals, and office equipment. Market research is important to determine how federal agencies buy your services before you make a list of the top 10 federal agency targets you would like to call on. This can be difficult for a newer market entry to understand but proceeding without proper research is like taking a “Ready, Fire, Aim” approach. You will waste your time and those of potential clients, leading to frustration on both sides. Make sure your firm does its homework on what motivates the organization to purchase a service. If your technology is truly great, the “what” will take care of itself.

Suspension Doesn’t Only Mean Loss of Federal Business

Companies participating in the public sector market may not always have the federal government as their largest public sector customer. Some companies find that their largest public sector clients are state, or even local, governments. It is important to remember that violations on a federal contract can have serious implications for all your company’s public sector business. Even if the amount of federal business is small in terms of your firm’s overall sales, it is vital to understand the terms of each federal contract and help ensure that proper compliance systems are in place. Your federal business may not look small to federal contract compliance officials. In addition to fines and penalties, companies that violate the terms of their federal contract can find themselves in front of a suspension or debarment official. A negative outcome puts your state and local government business at risk. Almost all states use the federal suspension and debarment list to determine whether a company is eligible for an award. If your firm is on the list, it will essentially be banned from any new business with state and local governments that use the list. In addition, competing companies have also been known to tell state and local officials when an incumbent has landed on the list. This could jeopardize existing business. The subcontractor route is also closed to you as well, as at least prime contractors at the federal level are forbidden from doing business with suspended or debarred companies. It is a definite best practice to ensure good compliance with all public sector contracts. While they may have different terms, most are united in refusing to do business with a suspended or debarred company.

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