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Protest Basics: Pre-Award, Post-Award, and the Process

Recently BOOST’s Director of Contracts Robin Desmore and Maria Panichelli, Partner and the Chair of the Government Contracting department at Obermayer Rebmann Maxwell & Hippel LLP discussed the first of a two-part virtual series on the Protest Basics: Pre-Award, Post-Award, and the Process.

You can view the replay of the event here.

Here are some of the notable pieces from the discussion:

What are the Different Types of Protests: 

• Solicitation

• Contractors Submit Responses to Solicitation

• Evaluation of Contractors/Source Selection

• Awardees Chosen

What are the Common Protest Deadlines: 

• Pre-award Protests Based on Errors in the Solicitation need to be submitted before the response deadline.

• General (GAO) Rule: 10 days after the basis of the protest is known (or should have been known)

What are Some Protestable Issues: 

• Pre-award protests based on errors in the Solicitation:
• Ambiguous or contradictory terms
• Inclusion of prohibited terms/exclusion of required terms
• Unduly or overly restrictive terms or specifications
• Improper use of LPTA
• OCI Issues
• Set-aside/“rule of two”/Kingdomware issues
• De Facto responsibility determination
• Pre-Award Competitive Range/Post-Award Protests:

• Common Non-Price Evaluation Factor Issues

• Unstated evaluation criteria or subfactor, etc.
• Error in applying evaluation criteria/assigning ratings
• Unequal or disparate treatment of offerors
• Meaningful/misleading/uneven discussions
• OCI Issues

• Common Price Evaluation Issues

• Price Reasonableness
• Price Realism
• Escalation, Adjustment
• Balanced Pricing
• HUBZone Preference

To have your protest questions personally answered by our experts, join us at the November 17th, 2020 Part 2 of this series: Where OCIs Meet Protests.
Our presenters will discuss:
• Award Protests
• OCI Considerations
• Protest Scenarios
• and the Answers to Your Questions

Please register in advance to secure your spot and access to the replay!

Bidding SCA Contracts – Is It Worth It?

As we ebb and flow through the proposal season, there are numerous types of RFPs that will drop which you might consider bidding on.  Some might even have the Service Contract Act (SCA) clause 52.222-41 buried in the document.  If you decide an RFP with the SCA clause is worth the bid, there are some things to take into consideration throughout the process.  Here are a few items to consider:

• SCA clause is in the RFP, but not the Wage Determination (WD).
It is always a good idea to ask during the Q&A process if SCA does apply.  If it does, then the government should provide the WDs.  If the government does not, it is up to you to find the applicable WD on the Department of Labor (DOL) website.  This is especially important when developing pricing as you will want to be sure that you have the most up to date data in order to develop your fringe pools and understand the hourly pay rates.

• The prior contract should have had the SCA clause incorporated into the contract.
If it has become apparent that the SCA provision did apply to the prior contract, the DOL may require retroactive application of the SCA. If you are the incumbent, you must make the employees as whole as possible when complying with the SCA.
You will need to ensure that the employees were:

• afforded the correct Health & Welfare (H&W) dollars,
• mapped to the appropriate labor category,
• considered with employee seniority on the contract when afforded vacation benefits, and,
• if the sick leave Executive Order is applicable, the employees will need to have sick time calculated based on hours worked.

If you are not the incumbent, you will still want to consider all of these options to develop your rates as they will be applicable going forward on the new contract.

•Benefits must comply with the Affordable Care Act (ACA).
In the past, organizations have attempted to reduce their pricing by trying to gut the benefits offered.  Benefits must still comply with ACA’s minimum essential coverage and cost requirements.  Just because the H&W is employer money to be used to purchase insurance on behalf of the employee, it still must meet the maximum cost threshold set by the government each year.  Generally, benefit costs to the employee should not be more than approximately 9.5% of the lowest waged household income.  Unfortunately, employers are not privy to an employee’s household income so it is a recommended best practice to take the lowest wage earner in the company and determine the maximum amount the medical benefit should cost that employee when determining cost allocations.

• SCA applies to all non-exempt employees on the contract.
Do not overlook part-time employees.  Part-time employees are entitled to all SCA benefits, with the exception of health insurance benefits.  You will want to be sure to incorporate costs for vacation and sick leave in your rates.

• Subcontractors’ compliance is a common issue/pitfall.
A good practice tip is to draft a form that calls out the requirements of the SCA with emphasis on its exemptions and provide this to your subcontractors.  Train your contracts shop to send out the form to each subcontractor supporting a prime contract that contains the SCA clause in the prime contract. It is best to have documentation that shows your subcontractors’ assertion that it is exempt. And yes, the FAR clause does flow down to your subcontractors, they need to be aware and compliant, the Prime is on the hook for subcontractor compliance with the prime contract requirements.

• When bidding on IDIQs, make sure to check the master IDIQ contract vehicle.
It is common that the SCA clause is at the master IDIQ level but may not be incorporated into the task order.  It is up to you, the contractor, to be sure that the SCA clause is adhered to even if it is not included in the task order.

• There is a Collective Bargaining Agreement (CBA) in place.
Just because there is a CBA in place, does not mean that the SCA provision does not apply. Yes, the CBA takes precedence over the SCA as it pertains to wages, H&W rates, and benefits; however, as an employer, you would still be required to adhere to the provisions of the SCA.  When bidding, ask for a copy of the CBA so that your rates incorporate their requirements for wages, H&W, and benefits.  Too often, employers will bid without understanding the CBA and find that they will need to adjust pay and benefits. Despite this required adjustment, the employer may not be able to go back to the government and request an equitable adjustment on your rates. You may have leverage in renegotiating the CBA if the SCA offers conflicting guidance.  Always work with your legal team to ensure all the risks on both items.

• If you do not comply with SCA, the repercussions are harsh.
It is imperative that you know what you are getting yourself into when bidding and working on an SCA contract.  The government will not accept that you did not know.  It is up to you to make sure that you comply.  If it is found that you did not comply, the government sanctions and fines can be harsh, and you could open yourself up for a DOL Wage & Hour audit.  Government sanctions and an audit could include fines, penalties, back pay, punitive damages paid to the government and to the affected employee, debarment, and contract termination.  It is in your best interest to be sure to comply with all applicable FAR clauses under the SCA.

Luckily for BOOST clients, we have the knowledge required to help keep you compliant. If you’re wondering if a bid is worth the SCA headache, let’s talk and set some strategic pricing plans in motion. Email [email protected] to learn more.

BOOST Contracts

Contact BOOST for your govcon contracts needs today!
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What is a CPSR and Why Should You Care?

We recently told you about the Contractor Purchasing System Review (CPSR) process, and today we will (attempt to) convince you to care about this mega-compliance hurdle. If you want to read more about a CPSR, check out our white paper here.

There appears to be a trend in government evaluations looking for CPSR compliant contractors. CPSR compliance was an extra 500 points for the recent OASIS bid.  Many of our competitors will happily sell you a CPSR package without blinking at the cost or whether you actually needed it.

Who needs CPSR?
First, the main factor we tell our clients is to assess how much subcontracting work they do.  If your business weighs heavily on issuing a myriad of subcontracts or large procurements in support of your prime contract awards, then you have checked the first box to “needing” a CPSR compliance plan.  The remaining boxes are comprehensive.

Second, if a majority of your work is with the DoD, you may want to consider checking out DFARS 252. 252.244-7001, the regulatory birth of what a CPSR compliant system looks like. Finally, if your contract says you have to be CPSR compliant – we hope you already have systems in place to pass an audit before signing the dotted line.

Finally, most organizations do not like or want a CPSR compliance plan because of the heavy administrative burden it places on corporate processes.  Think about the last time you waited for a large GovCon to issue you a subcontract that was allegedly “on fire.”  In most cases, the subcontractor is issued a letter subcontract or works at-risk with an authorization to proceed (also part of the CPSR compliant program) before the “real” subcontract is issued.  This is because nearly all GovCons with CPSR compliance programs have to take several steps to coordinate awarding a procurement.  These steps were put in place to comply with CPSR requirements.

If we have not talked you out of it and you are ready to start the box-checking, administrative hurdles of CPSR land, consider an organization like BOOST that will tailor a compliance plan to fit your organization. We will not open a canned manual and serve it to you on a platter. We exist to add value. We can provide a customized CPSR plan; if you need it.