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Stay Updated With Federal Contracting Trends

Explore timely articles, actionable insights, and essential updates curated for your federal contracting success.

Stay Updated With Federal Contracting Trends

Explore timely articles, actionable insights, and essential updates curated for your federal contracting success.

March 11, 2025

DoD Reduction In Force (RIF) Guidance

Just when you thought it couldn't get any more confusing, some agencies also have their own RIF guidance separate from the OPM guidance that is what we've heard the most about. DoD is one of those agencies.

A copy of the current DoD RIF guidance, DoD Instruction 1400.25, Volume 351, is found at: https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/140025/140025_V351.PDF?ver=DgEFMmb9dLDV7OV-PLb7VQ%3D%3D

This guide establishes policy, assigns responsibilities, and prescribes procedures for reduction in force (RIF) actions taken under Part 351 of Title 5, Code of Federal Regulations (CFR), as modified by Section 1597(f) of Title 10, United States Code (U.S.C.).

This guidance does not, in full, apply to DoD employees covered by an alternative personnel system (e.g., the Acquisition Demonstration; Science and Technology Reinvention Laboratories; and the Defense Civilian Intelligence Personnel System). Those systems will develop their own policies and procedures for RIF that comply with the law, as approved by the Under Secretary of Defense for Personnel and Readiness (USD(P&R)). This guide also does not apply to Senior Executive Service (SES) positions.

The policy statement in 1.2 states that, "For any RIF of civilians in the competitive and excepted services in the DoD, the determination as to which employees will be separated from employment must be made primarily on the basis of performance."

In accordance with 10 U.S.C. 1597, DoD must report to Congress 45 days prior to implementing an approved RIF.

DoD will comply with 5 CFR 351.402 and 351.403 when establishing competitive areas and competitive levels, respectively. Competitive service employees and excepted service employees are placed on separate retention registers established in accordance with 5 CFR 351.404 and 351.405.

For purposes of DoD RIF, employees are placed in one of two categories:

employees with a period of assessed performance of less than 12 months, and
employees with a period of assessed performance of 12 months or more.

An employee’s period of assessed performance for purposes of RIF will be the sum of the months of assessed performance associated with the employee’s performance appraisals within the most recent 4-year period preceding the cutoff date established for the RIF. However, periods of time in a rating cycle for which an employee’s performance was not assessed are not included in the employee’s period of assessed performance.

For example, if an employee receives a rating after serving 10 months of the 12-month cycle, the employee’s period of assessed performance is 10 months for that rating cycle.

For employees absent for military service, periods of time during the rating period may be treated as periods of assessed performance if they meet the requirements of Paragraph 3.3.c.(1) under Paragraph 3.3.b.(2) of the DoD guide.

Retention Factors

Competing employees are listed on a retention register based on--

Rating of Record. See Section 3.3.c. for rating of record examples based on cutoff dates, military service, time frames for ratings to be used, and ratings from a system other and the Defense Performance Management Program (DPMAP).
Tenure Group. This follows the definitions found in 5 CFR 351.501(b) for competitive service and 5 CFR 351.502(b) for excepted service.

Average Score. In general, an employee’s average score for one performance appraisal is derived by dividing the sum of the employee’s performance element ratings by the number of performance elements. The average of the average scores drawn from the two most recent performance appraisals received by the employee, except when the performance appraisal reflects an “unacceptable” rating of record will be reviewed. When the most recent performance appraisal reflects an “unacceptable” rating of record, only that performance appraisal will be considered for purposes of the employee’s average score.
Veterans’ Preference. This follows the procedures in 5 CFR 351.501(c) with three veterans' preference subgroups:
- AD - 30% or more disabled veteran
- A - eligible for veterans' preference for the purpose of RIF but not for placement in the AD category (i.e., less than 30% disabled veteran determination)
- B - not eligible for veterans' preference for purpose of RIF

DoD Service Computation Date-Reduction in Force (DoD SCD-RIF). Follows rules of credible service as found in 5 CFR 351.503(a) and (b). DoD does not follow 5 CFR 351.504, which grants additional retention service credit in RIF based on an employee's ratings of record.

Rounds in Reduction in Force (RIF)

Two rounds of RIF will be conducted. Round One, Release from Competitive Level, and Round Two, Assignment Rights, are explained in the document in detail related to types of appointments, order of release from the competitive level, and exceptions that may apply. They are found in sections 3.5 and 3.6, respectively.

Displacement may occur during Round Two. Displacement is the assignment of an employee to a continuing position in a different competitive level that is held by another employee with a lower retention standing (i.e., “bumping” another employee). Displacement may be at the same grade or at a grade up to three grades or grade intervals (or equivalent) below the position of the released employee.

Right of Only One Offer

Employees released from a retention register are only eligible for one offer of assignment (similar to OPM rules), with some exceptions. If the employee accepts and offer, rejects an offer, or fails to reply to an offer in a timely manner, they are not entitled to further offers. However, the DoD Component must make a better offer of assignment to a released employee (i.e., to a position with a higher representative rate) if a position becomes available before, or on, the RIF effective date.

Sample retention registers and scenarios are found in the guide in Appendix 3A. Employees have the right to request a review of retention registers and have representation also be allowed to review the registers, as requested by the employee.

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DISCLAIMER: Info is provided for awareness. I am NOT an HR professional but an HR enthusiast having started in HR and being a Federal supervisor and hiring manager. Before taking any action that changes your status, please seek the advice of an attorney knowledgeable in Federal employment law.

Fed Forward

March 10, 2025

Voluntary Separation Incentive Payment (VSIP)

Voluntary Separation Incentive Payment (VSIP) allows agencies that are downsizing or restructuring to offer employees lump-sum payments up to $25,000 as an incentive to voluntarily separate. The amount received is reduced by Fed and state taxes, social security, and Medicare, as applicable.

The full guide on the program is found at the OPM website https://www.opm.gov/policy-data-oversight/workforce-restructuring/voluntary-separation-incentive-payments/guide.pdf

Eligibility for VSIP requires an employee be employed by an Executive Branch agency for at least three (3) continous years without a time limit and not be--

▶️ a reemployed annuitant;

▶️ otherwise be eligible for disability retirement;

▶️ recipient of a notice of involuntary separation for misconduct or poor performance;

▶️ recipient of any previous VSIP from the Federal Government;

▶️ on a service agreement for which--

➡️ a student loan repayment benefit was paid, or is to be paid, during the 36-months preceding the date of separation;

➡️ a recruitment or relocation incentive was paid, or is to be paid, during the 24-months preceding the date of separation; and

➡️ a retention incentive was paid, or is to be paid, during the 12-months preceding the date of separation.

If you receive a VSIP and later come back to Federal Service within 5 years of the date of the separation on which the VSIP is based, you must repay the entire amount before your first day of reemployment. This includes working under a personal services contract or other direct contract with the Government.

The top 10 questions related to VSIP can be found at https://www.opm.gov/policy-data-oversight/workforce-restructuring/voluntary-early-retirement-authority/top-10-frequently-asked-questions-about-vera-and-vsip.pdf

OPM's page on VSIP is at https://www.opm.gov/policy-data-oversight/workforce-restructuring/voluntary-separation-incentive-payments/

DISCLAIMER: Information is provided for situational awareness. I am not an HR professional but an HR enthusiast having been a Chief of Contracting and Federal supervisor. Please consult with an attorney knowledgeable in Federal employment law before making any decisions that impact your Federal employment status.

Fed Forward

March 10, 2025

Separate Your Government and Personal Communications

Feds...if you haven't separated your Government communications from your personal communications yet, now is the time to do it.

There has never been an expectation of privacy while using Government Furnished Equipment (GFE). But GFE has been allowed to be used for quick personal calls or emails to check in with children or with family members during the work day. And over time, you may have blended your Government and personal communications more than you realize.

Now, however, it appears your every digital and possibly physical move may be tracked, recorded, and stored. Software and hardware that tracks employee activity, digital behavior, and even movements within Government office space should be expected. Tracking software has (allegedly) already been pushed at some agencies or is (allegedly) expected to be pushed soon.

Computer monitoring programs are expected to track:

🔸️Key stroke loggers to record what is typed or edited

🔸️Analyze chats for flagged words

🔸️Network activity, file access, login, and online behaviors

🔸️Application usage and websites visited and what was searched

Expect software applications to be employed that will analyze this information and generate behavior risk scores by employee. Also expect that all online meetings and chats will be recorded, transcribed, and stored / archived for review without the choice to turn those features off.

Several employees at one prominent agency are reporting their GFE laptop cameras and possibly mics are being turned on during their work day without their consent and outside of active video meetings.

Highly suggest --

▶️ using a privacy cover for your webcam.

▶️ monitoring the activation light.

▶️ taking all personal calls away from your work space on a personal device.

▶️ taking other precautions to protect sensitive conversations, business and personal such as only using a personal device.

Fed Forward

March 10, 2025

FedSubK Feature: Shiny Sparkly Things and SLED

"Shiny sparkly things." We all like them. I know I do.

In a podcast hosted by Chelsea Meggitt, she and I and the great David Neal were talking and Chelsea used that term related to GovCon consultants and how you may not want to go with the "shiny sparkly things" because sometimes they are there to draw attention and distract you.

It got me thinking today...in William Randolph's Mindset Mondays sessions this past Monday we talked about the SLED (State and Local Government, and Higher Education) marketplace versus Federal marketplace. We talked about the differences in the marketing strategies. I mentioned that at the Federal level, businesses are always trying to be the "shiny sparkly things" to draw attention to themselves to attract the Government buyers. All those fancy and impressive differentiators where you talk about complex projects, etc.

But in the SLED space, depending on the level, that could be overwhelming. SLED entities have sometimes --

▶️ fewer resources,

▶️ fewer dollars, and

▶️ needs that, if met, can be much more immediately impactful.

Being the "shiny sparkly thing" at that level may come with the connotation that --

▶️ your services cost more,

▶️ you can't relate to their problems or concerns, and

▶️ you may not see them as an important customer within your client base because they have smaller projects.

If you are thinking of pivoting to other marketplaces, get to know them -- just like you did at the Federal level. Do your homework. Build the relationships. And as Juliet Fletcher MPA, CF APMP, CEO at Writing is Easy put it in the Mindset Monday call -- "you may want to start in your own backyard."

Think about all the possibilities that you haven't taken advantage of because of your focus in the Federal space and start to explore ALL of your options during these times of challenge and uncertainty.

(BTW...if you haven't attended William's Mindset Monday get togethers, consider it a safe space to talk about change and what it means in the Federal marketplace and GovCon space for businesses and consultants alike.)

FedSubK Features

March 10, 2025

Breaking Down a RIF Notice

Let's break down a recent RIF notice. This is one received by an agency career employee on a competitive appointment whose work unit was abolished along with all positions in it.

(NOTE: If you receive a RIF notice, it will depend on your status and the rationale as to how it will read. I'm sharing this example merely to dispel some of the fear and stigma.)

1. Attempt at empathy.

2. Adverse action to be taken. In this case, abolishment of the work unit and all positions within it.

3. Initial action. In this case, immediate separation on the effective date provided and indication that the employee will be put on 30 days immediate paid administrative leave.

4. Future actions. Not earlier than 30 days from this notice the employee will receive their official RIF notice at which time--

➡️ 60 days paid admin leave will start,

➡️ the final separation date will be disclosed,

➡️ the employee will be advised of their rights to other avenues for separation for which they qualify such as voluntary retirement, Discontinued Service Retirement (DSR), and the date by which such action must be taken (typically PRIOR to the final separation date given),

➡️ info on leave pay outs, if due, are provided,

➡️ calculation and amount of severance pay due, if any, is disclosed, and

➡️ continuation of benefits, as allowable, s dictated by eligibility, is provided.

5. Return of GFE and Identification. Info on how to turn in GFE and clear the agency.

6. Future Communications. How future correspondence will be received from the agency by the employee until time of separation.

7. Actions by the employee to initiate admin leave. The employee will need to take timely action to ensure pay begins accordingly.

Is this normal? Not necessarily.

#3 and #4 does not typically come with immediate admin leave without warning in the middle of the night or on a weekend, or 60 days of admin leave prior to separation. Normally the agency wants you on the job so projects and documentation can be wrapped up and info collected as required by NARA regulations. I have little faith that is happening right now.

90 days paid admin leave prior to the final separation date seems to be the norm in these cases, but may not be in all cases.

Any HR or legal folks want to weigh in so we can dispel the fear around these notices? Let's start this discussion and not hide from these realities so Feds can plan for their moves forward.

Fed Forward

March 10, 2025

Be Prepared - Transitioning from the Federal Government Workforce

It's time for a frank discussion, Feds. If you aren't prepared for a possible layoff you need to start thinking about it. Some of the Feds who I've spoken to in my backyard of Oklahoma and across the country that I've worked with over the years are not being realistic about what this "RIF stuff" all means.

It means--

▶️ No one is going to negotiate the severance package you want. You get what get per the OPM policy... and that's it. Know if you are eligible and calculate it now. (https://www.fedsubk.com/post/severance-pay-and-reduction-in-force-rif)

▶️ Your agency doesn't care that you don't want to retire until 62 when you reach that 1.1% for the annuity calculation and that reaching that goal is the only reason you stayed as long as you did. You may have to retire earlier than planned or can afford to.

It also means--

▶️ If you are a remote worker or have a sweet 1 day a week in the office set up now, you will likely not have that in the private sector. Be prepared to be in an office.

▶️ Your Federal title and grade doesn't equate to what it did as a Fed. You need to be able to describe what you did in industry terms. Don't cop a 'tude if people don't know what you did by the job title or understand what your grade meant in terms of seniority or supervision in the Fed space.

▶️ The salaries (or many times now hourly rates) are going to be different. In many cases the pay will be lower because your position as a Fed may hold different and less importance in private industry.

▶️ The duties related to your position as a Fed may not translate to equal duties, responsibility, or authority in private industry. A good example is Contracting Officers. You hold a lot of power as a Fed CO/KO for decisions and signature authority. It won't be the same in private industry. You won't be signing contracts or be the final decision-maker. Start adjusting your expectations now.

▶️ Taking a step down to take a step up again in a few years. You may need to play the "get your foot in the door" game now. You will likely need to prove yourself again, especially if you aren't picked up by an entity that knows you.

▶️ You may have ethics considerations around seeking employment while a Fed or in your post-employment that you must consider. See my previous post about this which I will find and link in the comments.

I'm never trying to burst your bubble, but these are the things my private industry contacts and I who are talking to Feds want you to realize.

➡️ You have great skills but you also must be realistic and practical.

➡️ Learning to covey those skills and understanding where they fall in the pecking order in industry is important to adapting to working a different sector.

➡️ Talk to a financial advisor about your options and start planning your financial future if you haven't already. Find an advisor that is familiar with the payments and benefits of Federal employees. A great resource is SOFA (https://www.sofausa.org/about).

Be prepared.

FedSubK Now! Fed Forward article "Severance Pay and Reduction in Force (RIF)"

Fed Forward

March 10, 2025

Be Careful If You Move Between Positions -- Probationary Periods for Competitive and Supervisory Appointments

I know some Feds are looking to move jobs right now within the Government in an attempt to stay safer from RIF than you might think you are in your current position. But there are some things to know so you don't jeopardize your status.

▶️ For example, if you are in an excepted service appointment, you may think moving to a competitive appointment gives you a better chance of job survival. But...

➡️ If you have never held a position under a competitive appointment, you will typically have to serve a one year probationary period when you move from the excepted service to a competitive appointment.

Now is not the time to become a probationary employee.

➡️ If you've previously held a career appointment prior to your excepted service appointment, then the agency MAY not require the probationary period if--

🔸️you've had no break in service and

🔸️previously completed the probationary period on the prior competitive appointment.

That's a "MAY" not have to.

An employee on a competitive appointment where the employee has completed the initial appointment probation is in Tenure Group I. Employees on permanent excepted appointments where there is no restriction or condition on the appointment will typically be placed in the same tenure group. Meaning for the purposes of tenure, there is not necessarily an advantage.

ASK and if you are told the probationary period will be waived to GET IT IN WRITING in the offer letter. ASK HR to fully state the rationale for waiving the probationary period in writing. You will want this in case someone tries after the fact to say it was in error and forces the issue.

▶️ Same goes for taking a promotion from a non-supervisory position to a supervisory position. Typically there is a probationary period involved upon entering the supervisory ladder. Before you start eyeing a climb right now, consider the risk versus reward until the final RIF and separation notices shake out that will start to hit 30 - 60 days from now for those recently notified. Total work units and their positions can still be abolished and are every day. Just because someone is hiring doesn't mean the work unit is necessarily safe. More abolishments are coming.

Entire work units at some agencies are requesting waivers from RIF. Even if a work unit is saved, positions will still be cut. GSA's TTS has said as much in that while work units that are responsible for statutory programs will remain, cuts of 50% will occur and many could still be in remaining groups.

Think before you jump jobs in the Fed space right now.

ASK the questions BEFORE accepting a new Federal position and get it ALL in writing.

DISCLAIMER: Info is provided for awareness. I am NOT an HR professional but an HR enthusiast having started in HR and being a Federal supervisor and hiring manager.Before taking any action that changes your status, please seek the advice of an attorney knowledgeable in Federal employment law.

Fed Forward

February 26, 2025

What is a VERA - Voluntary Early Retirement?

What is a VERA? Voluntary Early Retirement Authority.

Things to know:

▶️ Agencies are not required to offer VERA -- it is discretionary.

▶️ Agencies must request VERA and RECEIVE OPM APPROVAL to offer voluntary early retirements.

▶️ VERA is only open for a SPECIFIC PERIOD of time.

▶️ Offer of VERA is NOT A RIGHT a right, it's an OPTION.

When offered--

▶️ There are GENERAL ELIGIBILITY REQUIREMENTS related to age, years of creditable Federal service, your position, and the separation date.

▶️ CSRS and FERS annuities DIFFER in when they start and the calculations.

▶️ There are IMPACTS ON BENEFITS related to continuation of coverage for health benefits and life insurance.

▶️ If you have vision, dental, or long-term care insurance, you'll want to check with BeneFeds.gov on continuation of coverage.

▶️ There are non-Federal employment restrictions post-VERA based on the Standards of Conduct (i.e., cooling off, lifetime bans, revolving door) and if you are receiving the FERS supplement.

▶️ There are Federal employment restrictions post-VERA. If you came back to work for the Federal Government later, you would be considered a "reemployed annuitant" with salary offset. NOTE: Reemployed annuitant hiring is uncommon in most job series.

Read more about these topics and the details around them in the OPM Guide to Voluntary Early Retirement Regulations guide at https://www.opm.gov/policy-data-oversight/workforce-restructuring/voluntary-early-retirement-authority/vera_guide.pdf

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DISCLAIMER: This info is provided for personal awareness only and is not legal advice. Please ALWAYS SEEK LEGAL ADVICE FROM AN ATTORNEY versed in Federal Employment Law when faced with decisions or actions impacting your Federal employment status.

Fed Forward

February 25, 2025

Focus in FY2025 - What is Your Value Proposition?

Do you know how to define your value proposition?

Several of my clients are asking how to substantiate their current contracts, sell to agencies, and market to large businesses as the Administration shifts to "merit based" decision-making.

Now is the time where you must lead with WHAT YOU DO, not who you are. And what you do may differ by agency or customer, depending on your catalog of offerings -- both products and services.

Think task based. Think uniqueness. Think about your "superpowers"!

Need some help?

I've created the attached worksheet to help businesses during these changing times.

Defining Your Value Proposition vNov 2024.pdfDownload PDF • 94KB

February 19, 2025

Employee Assistance Program (EAP)

The Employee Assistance Program (EAP) provides numerous services to assist Federal employees through difficult times. Services include:

Assessment, counseling, and referrals
Financial and legal services
Critical incident response
Management consultation and counseling
Educational presentations, orientations, and outreach

Call 1-800-222-0364

Go to the Department of Health and Human Services (HHS) Federal Occupational Health (FOH) page: https://www.foh4you.com/

Learn more at https://www.hhs.gov/about/agencies/asa/foh/bhs/employee-assistant-program/index.html

Fed Forward

February 18, 2025

Standards of Conduct When Seeking Employment While You're a Fed and Post-Employment Restrictions

As Executive Branch employees, there are sometimes restrictions on what you can do after you leave Federal Service or leave certain positions. There are also rules about seeking employment while you are still a Fed.

When I prepared for retirement from being a Fed two years ago, one of the first things I did before leaving service was ask my Ethics Officer in the GSA Office of Council for my post employment briefing and a letter advising me of any post employment restrictions.

Having been involved in writing FAR policy yet to be publicized and managing a set of $750B Governmentwide contracts as a COR within 2 years of my retirement, I knew I could have some conflicts I might need to contend with as a consultant in retirement. I could assume from the rules but I wanted it in writing.

Post Employment Restrictions

Here is a copy of the Office of Government Ethics (OGE) Rules for the Road for those leaving Federal Service. I received this from my Ethics Official at GSA a little over two years ago as I separated from service at retirement.

Download a copy here:

OGE RulesForTheRoad.pdfDownload PDF • 38KB

Several things come into play related to post-employment considerations. The nature of your Government job will come into play if you:

participated in a procurement of or the administration of a contract,
had access to certain sensitive procurement information,
worked on certain trade or treaty negotiations during your last year of
Government service and had access to certain restricted information,
have served in a high-level Government position,
other considerations like access to classified materials, etc.

After you leave your Federal job you may be limited to your interactions with the Government. While you may contact the Government solely on your own behalf, you may not try to influence any Federal agency or court on behalf of anyone else (such as your new employer) concerning matters related to contracts, grants, or lawsuits if you worked on those same matters as a Federal employee. This includes duties that would not fall under lobbyist laws.

The length of the restrictions depend on how you were involved in the matter while you still worked for the Government.

If you were PERSONALLY and SUBSTANTIALLY involved, the restriction is permanent.
If you supervised others who did the actual work, then the restriction lasts for two years from the date you leave Federal service.
- This two-year restriction does not apply unless you supervised the matter during your last year of Federal Service.
If you had certain responsibilities or took certain actions relating to a large procurement involving the contractor for which you are seeking employment, you may not receive compensation from that contractor to serve as an employee, officer, director, or consultant for a period of one year.
- You can receive compensation from a division or affiliate of the contractor that does not product the same or similar products or services as the entity responsible for the contract.

For a more detailed write up of the rules summarized in the attachment above, see the Post Employment Restrictions summary document below.

Summary - PostEmployment Restrictions.pdfDownload PDF • 61KB

Seeking Outside Employment While a Federal Employee

There are recusal requirements that apply to employees when seeking outside employment with companies or persons whose financial interests would be directly and predictably affected by matters under which the employee participates PERSONALLY and SUBSTANTIALLY. (18 U.S.C. 208(a))

Recusal means that you must notify your supervisor and state your recusal during the period in which the employee has begun seeking employment and until the employee is no longer seeking employment. Seeking Employment is defined as directly or indirectly--

Engaged in negotiations for employment with any person or their agent / intermediary.
Made an unsolicited communication to any person or their agent / intermediary regarding possible employment.
Made a response, other than rejection, to an unsolicited communication from any person or their agent / intermediary about possible employment.

A person is no longer seeking employment when--

the employee or prospective employer rejects the possibility of employment and all discussions have terminated, or
two months have passed after the employee sends an unsolicited resume or employment proposal AND the employee has not received any response.

Examples are provided throughout the document below and in 5 C.F.R. Chapter 16 Subchapter B, Part 2635, Subpart F.

SOC as of 81 FR 81641 FINAL (1).pdfDownload PDF • 433KB

Review these documents and know the rules before you start your employment discussions and/or leave Federal service.

Links to the original LinkedIn Posts are:

https://www.linkedin.com/posts/shauna-weatherly_dont-get-stuck-in-the-revolving-door-a-activity-7297331139130576897-SNE-?utm_source=share&utm_medium=member_desktop&rcm=ACoAAA6vqSABLArM73HgjpmDnYG-5LRTJXgTTYQ

https://www.linkedin.com/posts/shauna-weatherly_oge-rules-of-the-road-activity-7297332917536530433-WeqR?utm_source=share&utm_medium=member_desktop&rcm=ACoAAA6vqSABLArM73HgjpmDnYG-5LRTJXgTTYQ

DISCLAIMERS:

CONSULT YOUR AGENCY HR OFFICE OR AN ATTORNEY KNOWLEDGABLE IN FEDERAL EMPLOYEE LAW OR PAY BEFORE MAKING ANY DECISION OR TAKING ANY ACTION THAT IMPACTS OR CHANGES YOUR FEDERAL EMPLOYMENT STATUS.

ADVICE PROVIDED BY FEDSUBK DOES NOT CONSTITUTE LEGAL OR FIDUCIARY ADVICE NOR DOES IT CREATE A BINDING LEGAL OR FIDUCIARY RESPONSIBILITY BETWEEN FEDSUBK AND CLIENT. CLIENTS ARE ADVISED TO HAVE ALL DOCUMENTS REVIEWED BY AN ATTORNEY PRIOR TO USE.

Fed Forward

February 18, 2025

Look for the Helpers -- People to Follow and Helpful Resources for Feds

Updated: Mar 10

As Mr. Rogers used to say: "When I was a boy and I would see scary things in the news, my mother would say to me, "Look for the helpers. You will always find people who are helping.""

These are the people I'm following and sharing posts and information from on LinkedIn along with their webpages and most helpful posts (in no particular order):

NOTE: This post will be updated as new sources / posts are added.

[Disclaimers:

Users are advised to read all terms and conditions of any person or entity below engaging in an contractual relationship or making any payment for services.
These persons and entities are not affiliated with Federal Subcontract Solutions LLC (dba FedSubK) in any way and are independent consultants and/or companies. FedSubK makes no promises, claims, or warranties as to the advice given or work performed by these persons or entities.
Availability of these persons or entities is strictly within their own control and choosing.
FedSubK does not receive a referral fee or other compensation for listing an individual or entity here.
Links to persons or entities webpages and/or contact information may be changed without notice.
Use of links is at the User's own risk.
Advice and agreements provided by FedSubK do not constitute legal or fiduciary advice nor does it create a binding legal or fiduciary responsibility between FedSubK and any User.
Users are advised to seek counsel from an attorney of their choosing versed in Federal employment law and/or benefits before making any decisions that impact their Federal employment status.]

1.0 FEDERAL EMPLOYMENT LAW & ADVOCATES

Suzanne Summerlin, Federal Labor Law Advocate / Attorney at Law

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Robert Erbe, Law Office of Robert P. Erbe, PLLC

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Federal News Network -- Answers to Questions about RIFs and Early Retirements

Tom Temin and Tammy Flanagan

HelpFeds.com -- AI Assistance for Feds -- Quick resources on EEOC Federal Sector Information to include help with EEO complaints and processes, Reasonable Accommodation requests, Merit Systems Protection Board (MSPB) info, Office of the Special Counsel (Whistleblower), Federal Labor Relations Authority, and more.

National Federal of Federal Employees (NFFE)

American Federation of Government Employees (AFGE)

Civil Service Strong - Resources for Federal Civil Servants

Info on the Democracy Forward Office of Special Council (OSC) Class Complaint related to firing of probationary employees. If you are in this situation and want to join the complaint, reach out to info@civilservicestrong.org.

U.S. Merit Systems Protection Board (MSPB) Information Sheets

Information covering: Jurisdiction, Initial Appeal Process, Stay Request, Probationary Employees, Discovery, Motion Practice, Military Leave Appeals, e-Appeal, Veterans Employment Opportunities Act of 1994 (VEOA), Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), Enforced Leave, and Furloughs

Federal Workers Rights - Check the latest updates and topics concerning your Federal employment questions. Also can be followed on Bluesky.

2.0 CAREER, RESUME, & JOB SEARCH RESOURCES

David J. Valencia, Founder, Federal 2 Industry (F2I) and CEOofMyOwnLife Podcast

Federal 2 Industry (F2I) Showcase Page -- consolidates and spotlights transitioning Feds into a single talent pool who are "#OpenToWork" on LinkedIn for visibility to hiring managers, recruiters, employers. Engage and repost for maximum visibility.

F2I Resume GPT - Transforms Federal Resumes into Industry Resumes.

F2I Recommendation Letter GPT - Generate professional personal recommendation letters.

F2I Networking GPT - Guidance for professionals transitioning from Federal to private sector networking.

F2I Interview Prep GPT - Helps interviewers and interviewees prepare for transitions from Federal to private sector interviews.

F2I Scam Sleuth GPT - Helps users identify and avoid LinkedIn scam profiles.

Federal2Industry@gmail.com -- Allows job posting distributions lists to add F2I in an effort to find private sector opportunities to amplify for the transitioning Federal workforce.

G2X Federal Resource Center -- Practical, actionable information organized for easy access and sharing. Whether you're a small business owner or a federal employee, you'll find resources to help you navigate transitions and challenges. Legal resources, HR & employee support, career transition, and general guidance.

Former U.S. DOT Staff Job Matching -- for USDOT staff who were fired in February 2025 because they were in a probationary period associated with their roles. Private industry is hiring and looking for transportation professionals.

Anita Brady, Workforce Development Executive -- Free 1-hour Career Coaching Session

Alison Doyle, Co-Founder, The Job Hopper

Jen Hubley Luckwaldt, Co-Founder, The Job Hopper

The Job Hopper -- Special Edition: Resources for Unemployed Federal Workers

Nancy Segal, Federal Career Expert | Resume Writing, Interview Prep, SES Applications, Training

State of Maryland Resource Directory for Federal Workers and Others Impacted by the Federal Government Transition

Virginia Career Works - Transitioning from the Federal Government

Minnesota State Government Resources for Federal Employees

Eileen Kent, The Federal Sales Guide -- Reposting and sharing job openings in her LinkedIn feed daily.

All Hands - Connection platform for job introductions and community

Good Citizen - Connecting transformative contributions to organizations

Democracy Jobs -- 99 organizations looking for their talent network

3.0 SELF CARE & RESILIENCE

Dr. Justin Ubert, USDOT Division Chief (Component CISO) & Adjunct Professor, College of BILT at Marymount University

Your Rights in a RIF

Your rights in a RIF. I'm going to break a few things down that are important to know when it comes to a RIF.

I understand from some folks in the know that DOGE (allegedly) plans to run the RIFs at each agency and install its own DOGE RIF team (allegedly) to do it. It is unclear whether agency HR personnel will be assigned to any RIF team, though the HR specialists with staffing, classification, position management, benefits, and employee / labor relations are to be involved. experience rules say they should and that they should be involved.

I also understand that the DOGE will (allegedly) use AI to cull through the records in the eOPF system (e.g. "AutoRIF" or some other tool they may create) to establish the retention registers. HOWEVER, even with the use of an automated personnel records system, the OPM Workforce Reshaping Operations Handbook states that--

"Even with an automated personnel records system, a RIF requires the agency to manually verify all relevant information, such as each employee’s official position description, three most recent performance ratings of record, retention service computation date, and veterans’ preference status."

It goes on to say--

"Employee Access to Retention Records. The agency must allow its retention registers and related records to be inspected by:

1. An employee of the agency who has received a specific RIF notice, or the employee’s representative; and

2. A representative of OPM."

Remember these points as we talk more about RIF throughout the coming days.

If you or someone you know are experiencing depression or other feelings of dread or despair related to these events, please reach out to others for help. Call 988 or visit https://lnkd.in/gRWxq6CE

Original LinkedIn post is found here: https://www.linkedin.com/posts/shauna-weatherly_get-help-activity-7296299746313281536-3N1u?utm_source=share&utm_medium=member_desktop&rcm=ACoAAA6vqSABLArM73HgjpmDnYG-5LRTJXgTTYQ

DISCLAIMERS:

CONSULT YOUR AGENCY HR OFFICE OR AN ATTORNEY KNOWLEDGABLE IN FEDERAL EMPLOYEE LAW OR PAY BEFORE MAKING ANY DECISION OR TAKING ANY ACTION THAT IMPACTS OR CHANGES YOUR FEDERAL EMPLOYMENT STATUS.

Fed Forward

February 14, 2025

The "Fork in the Road" (or as it is known in my house, the "Fork U") Email

Okay my Fed friends. I saw the "Fork in the Road" email. (https://www.opm.gov/fork)

I started my Fed career (since retired) in HR working employee benefits and I stayed on top of it throughout my career because I was a hiring/firing manager and Chief and Director, so know a little here. I'm telling you what I told my VA employee / military spouse daughter tonight. Her job keeps their household able to have groceries on the table in a high cost of living area (in case you haven't seen enlisted military pay lately). The impacts are great.

I highly suggest BEFORE responding with "Resign" and hitting Send to an email that only says you'll "be paid not to work through September 30, 2025" that you get answers to these questions...

▶️Will my health, vision, and dental insurance continue thru the payment period or what is the cutoff date?

▶️What happens to my retirement contributions -- can I ask for my FERS employee portion back or can I still defer and leave it in case I come back as a Fed later?

▶️What happens to my TSP? Will I still get the auto 1%, matching, and/or auto deductions made? Will contributions still come out of my pay thru September? What if I have a TSP loan?

▶️Will state taxes still be taken out? Same with social security (OSDI) payments?

▶️Will life or long-term care insurance benefits continue during the "deferred resignation" period? Am I still covered or not?

▶️Will I retain my career status with reemployment rights for future Federal positions I might want to apply for down the road?

▶️Will I continue to accrue leave (sick & annual) since I'll technically be in a "paid" status? When will I receive my annual leave pay out?

▶️What happens to my unused sick leave since that's usually counted toward service credit at retirement?

▶️What is the effective date of this resignation if I do select it?

▶️Am I waiving any rights to a future class action suit if I resign?

▶️Am I waiving rights to future Federal employment?

▶️Am I agreeing to any NDA or other agreement in resigning?

▶️How do I outprocess (i.e., turn in equipment, badge, etc.)?

▶️Am I waiving severance payments if I become employed before the payments are complete?

▶️Have I had this reviewed by a trusted LABOR ATTORNEY knowledgeable in Federal labor law?

There's plenty more.

Most career Feds don't know the HR rules very well. That's okay.

But if you don't understand what these questions mean or why it's important to get these answers then you aren't aware of your rights as a Federal employee and you don't know what you might be --& very likely are-- giving up by typing "Resign" and hitting send.

You must get these answers before making this critical decision.

Do NOT act rashly or out of fear.

Don't assume ANYTHING.

Things now may not be as they have always been in the past because this email gave you NONE of these details and NO ASSURANCES. FAQs mean 0.

I standby and support the Federal workforce. 💙 I'm thinking of you all during this time.

Original LinkedIn post is found here: https://www.linkedin.com/posts/shauna-weatherly_okay-my-fed-friends-i-saw-the-fork-in-the-activity-7290358023846346752-_qZt?utm_source=share&utm_medium=member_desktop&rcm=ACoAAA6vqSABLArM73HgjpmDnYG-5LRTJXgTTYQ

DISCLAIMERS:

CONSULT YOUR AGENCY HR OFFICE OR AN ATTORNEY KNOWLEDGABLE IN FEDERAL EMPLOYEE LAW OR PAY BEFORE MAKING ANY DECISION OR TAKING ANY ACTION THAT IMPACTS OR CHANGES YOUR FEDERAL EMPLOYMENT STATUS.

Fed Forward

February 14, 2025

Severance Pay and Reduction in Force (RIF)

Knowledge is Power -- Severance pay may be available for full-time and part-time Feds who are involuntarily separated (i.e., RIF'd) from Federal Service, within the conditions of eligibility and the written notice given. You can view the specifics at the Code of Federal Regulations, 5 CFR § 550.703, found at https://www.ecfr.gov/current/title-5/chapter-I/subchapter-B/part-550/subpart-G/section-550.703

Employees are eligible for severance pay if the employee is:

✅ serving under a qualifying appointment, and

✅ has completed at least 12 months of continuous service by the date of separation, with some qualifiers (see the link above).

Employees are NOT eligible for severance pay if the employee:

✅ is serving under a nonqualifying appointment;

✅ declines a reasonable offer of assignment to another position;

✅ is serving under a qualifying appointment in an agency scheduled to be terminated within 1 year after the date of the appointment;

✅ is receiving injury compensation under 5 U.S.C. chapter 81, subchapter I; or

✅ is eligible upon separation for an immediate annuity from a Federal civilian retirement system or from the uniformed services.

The employing agency determines whether an employee was provided a reasonable offer, as defined in 5 CFR 550.703. The three components of a reasonable offer are:

✅The offer is in writing

✅The employee meets established qualification requirements, and

✅The offered position is--

In the employee's agency, including an agency to which the employee is transferred with his or her function in a transfer of functions between agencies;
Within the employee's commuting area, unless geographic mobility is a condition of employment;
Of equal or greater tenure and with the same work schedule (part-time or full-time); AND
Not lower than two grade or pay levels below the employee's current grade or pay level, without consideration of grade or pay retention under part 536 of this chapter or other authority. In movements between pay schedules or pay systems, the comparison rate of the offered position must not be lower than the comparison rate of the grade or pay level that is two grades below the grade of the current position on the same pay schedule as the current position.

Lists of qualifying and non-qualifying appointments are also found at the link above.

Employees are considered to have been involuntarily separated if they resign after receiving a specific written notice that they will be involuntarily separated by an action effective on a specific date or under a written notice of reduction in force or transfer of functions, if three distinct actions are met (see the OPM link and make a note of the last (3rd) bullet).

REMEMBER...as the OPM website states,

▶️ If the written notice is canceled before the separation takes effect, resignation is NOT considered an involuntary separation.

▶️ Resignations under any other circumstances are voluntary separations and do NOT carry entitlement to severance pay.

The OPM link at the top talks about how severance pay is calculated. There are a few components to the severance pay calculation:

▶️ Basic severance pay allowance -- components of the basic severance pay calculation include creditable service for each full year through 10 years AND each full year beyond 10 years PLUS an additional percentage for each full 3 months of creditable service beyond the final full year.

▶️ Age adjustment allowance of 2.5% of the basic severance pay for each full 3 months of age over 40 years.

Creditable service for the purpose of pay calculations and the definition of "rate of basic pay" are defined in the 5 CFR 550.703 (linked above).

🚨 Rate of basic pay does NOT include locality pay or other special pay components as listed. 🚨

The lifetime limit on severance pay for employees is 52 weeks of the basic rate of pay.

Feds can find the Severance Pay Estimation Worksheet at https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/severance-pay-estimation-worksheet/.

Stay strong! We see you and support you! 💙

DISCLAIMERS:

THE SEVERANCE PAY ESTIMATION WORKSHEET IS A PRODUCT OF THE OFFICE OF PERSONNEL MANAGEMENT (OPM) AS FOUND ON THEIR OFFICIAL GOVERNMENT WEBSITE AS LINKED BELOW. THERE IS NO EXPRESS WARRANTY PROVIDED BY FEDSUBK OR MYSELF AS TO THE ACCURACY OF THE ESTIMATE OBTAINED THROUGH THE USE OF THIS WORKSHEET.

CONSULT YOUR AGENCY HR OFFICE OR AN ATTORNEY KNOWLEDGABLE IN FEDERAL EMPLOYEE LAW OR PAY BEFORE MAKING ANY DECISION OR TAKING ANY ACTION THAT IMPACTS OR CHANGES YOUR FEDERAL EMPLOYMENT STATUS.

Fed Forward

February 14, 2025

How to Read and Understand Your SF50

Feds...I found this easy to understand resource below on the Department of Commerce site and it is accurate and current.

---------------------------------------------------------

GUIDE TO UNDERSTANDING YOUR NOTIFICATION OF PERSONNEL ACTION FORM, SF-50 The SF-50, Notification of Personnel Action Form is a very important document. It is your written documentation of a personnel action that affects your position or pay. Keep it with your records because it could be used to make employment, pay, and qualifications decisions about you in the future. It is your responsibility to read all the information on the front of your SF-50 and notify the Human Resources staff immediately if you notice an error.

NOTE - This guide does not provide instructions for reviewing every block on your SF-50; the primary purpose of this guide is to assist you in reviewing those blocks that contain data that have a significant impact on your pay, position, employment benefits, and tenure. When reviewing your SF-50s, please review the data in the blocks described below as well as the instructions on the back of your SF-50. If you have further questions, please contact your agency Human Resources staff.

Blocks #1-3 Name/Social Security Number/Date Of Birth information

Verify the accuracy of this information.

Block #4 Effective Date

This block indicates the effective date of the specific action described in block#5B.

Block #5B Nature of Action

This block indicates the type of action being taken, such as appointment, reassignment, promotion, within-grade increase, separation, award, etc.

Block #15 Position Title & Number

This block indicates your position title - verify the accuracy of this information by comparing it with the title on your position description (a written description of your major duties and responsibilities). The two titles should match.

Block #16 Pay Plan

Most employees are covered by the general schedule, (GS) pay system, which covers Awhite collar@ positions.

Block #17 Occupational Code

This code corresponds to the series for your position as developed by the Office of Personnel Management. Verify the accuracy of this information by comparing it to the series code shown on your position description.

Blocks #18-20 Grade / Level / Step / Rate / Total Salary Award

Verify the accuracy of this information by comparing it to your job offer letter or other documentation you have received. Refer to the back of your SF-50 for further explanation.

Block #23 Veterans Preference

If you are a veteran, verify the accuracy of this information. If you are a veteran and your SF-50 does not reflect the appropriate code, provide the Human Resources staff with a DD-214 as proof of service.

Block #24 Tenure

This block indicates the tenure of your position. Codes are defined as follows:

A1 - (Competitive Service) Indicates you are a career employee. You have completed three years of qualifying service and have completed your initial appointment probation. (Excepted Service) indicates you are on a permanent appointment.
A2 - Indicates you are serving in a permanent position with less than three years of qualifying service and may also be serving an initial appointment probation.
A3 - Indicates you are on a temporary, term, or time-limited appointment.

Block #27 FEGLI

This block indicates your life insurance coverage. If you have elected life insurance, verify the accuracy of the coverage shown.

Block #30 Retirement Plan

This block indicates the retirement plan under which you are covered.

If your appointment is for longer than one year and you began your initial employment after 12/31/83, the code AK@,AFERS and FICA@ should be in this block.
If your initial Federal employment was before 12/31/83, and you DID NOT elect to switch to the FERS retirement system, the code A1",ACS@ or ACSRS@ should appear here.
Employees on temporary appointments of one year or less are not eligible for retirement coverage and will have a remark indicating AFICA@ in this block.
If you are a civil service retirement system offset employee, this block will have the code AC@, AFICA & CSRS@.

Block #31 Service Computation Date (SCD)

This block either indicates when your Federal service began or is a date calculated to include all years, months, and days of prior creditable civilian and military service as if it was all served without a break. This date is used to determine your leave category.

Block #35 FLSA

This block indicates whether or not your position is covered under the Fair Labor Standards Act (FLSA).

Exempt employees are not covered by the minimum wage and overtime law.
Nonexempt employees ARE covered and are entitled to overtime pay protections.
Generally, managers, professionals, and most administrative personnel above GS-7 are exempt from coverage.

Block #37 Bargaining Unit Status

If your position is not covered by a Bargaining Unit, the correct code is “8888”.
If your position is eligible for coverage but no unit currently exists, the correct code is “7777”.
If your position is both eligible and a bargaining unit exists, you will have a different numeric code, i.e., “0121”.

If you have questions regarding your bargaining unit code, please contact the Employee and Labor Relations Group in your HR Office

Block #38 Duty Station (City, County, State or Overseas Location)

Verify the accuracy of the duty station listed for your position. For example, if your official duty station is Washington, DC, this block should list Washington, DC.

Original LinkedIn post is found here: https://www.linkedin.com/posts/shauna-weatherly_understanding-your-sf50-activity-7292192119442526211-HRLL?utm_source=share&utm_medium=member_desktop&rcm=ACoAAA6vqSABLArM73HgjpmDnYG-5LRTJXgTTYQ

DISCLAIMERS:

CONSULT YOUR AGENCY HR OFFICE OR AN ATTORNEY KNOWLEDGABLE IN FEDERAL EMPLOYEE LAW OR PAY BEFORE MAKING ANY DECISION OR TAKING ANY ACTION THAT IMPACTS OR CHANGES YOUR FEDERAL EMPLOYMENT STATUS.

Fed Forward

February 14, 2025

It's Personal For Me

I was a 35+ year Fed and retired in December 2022.

My husband was a 35+ year Fed and retired 10 years before me.

We both deployed many times over the years as civilians; Afghanistan being the last.

My husband and step-dad, and their dads, all served in the military during WWII, the Korean War, and Vietnam War.

My son-in-law is active duty Air Force and has done multiple tours in Iraq and Afghanistan.

This is personal for me. And there is more...

I spoke with my Federal employee military spouse daughter tonight. The career she thought she would be able to cultivate working in her field as a military spouse while her husband serves will likely end. She learned her position is not exempt from the cuts at the VA. She was teleworking every other week but is a social person so isn't worried about the RTO. In fact, she's happy about it.

Her job, provides:

▶️ a much needed cushion to supplement her husband's enlisted pay income in a high cost of living area,

▶️ the ability to pay off student loans, which will likely need to be deferred,

▶️ a purpose and sense of service that she can be as proud of as her husband's, and

▶️ a "family" and friends for support when she's so far away from her own, particularly as her husband gets ready for a long deployment.

She had just been through a selective leadership course. She was asked to lead a townhall activity of her own creation...and she nailed it. She is an informal leader in her office.

But now she's making plans. Well, a Plan B, that is. She's researching retraining grants for military spouses. She's looking at anything that brings in more money than she will have to outlay for childcare. She's stressed but she plans to stand strong and ride this situation out until she's RIF'd or fired. Why? The possibility of collecting unemployment pay that could bridge her to the next opportunity. Hopefully. Like many others.

As a mom who knows how much she loves her coworkers and GS-6 job she feels gives her purpose by supporting veterans (like her step-dad, my husband), I'm heartbroken for her. I worry that as a young mom without a job and place to go each day for support that her husband's long deployment could be difficult, having been in her shoes myself a long time ago and knowing how I struggled through long months alone far away from family. I started my Federal career as a military spouse and I know what a life-line that job can be when you're all alone raising kids as a "sometimes sole" parent.

She said morale is very low and the lost production on the job from meetings and chaos is more than people imagine. It's taking minds off critical tasks to support Vets and those that do the work in support of the doctors and nurses. They are pushed and pulled into meetings about the "Fork" and people are feeling pressured to take it.

But she's not. She's a smart cookie. She knows words matter and if something seems too good to be true it likely is. She picked up more from me and all the contracting and Federal rules talk over the years than I realized.

Her story is only one among hundreds of thousands of Federal employees and what their positions mean to them and their family.

She will stand strong, staying or going with grace and dignity.

She is resilient.

You all are. 💙

Fed Forward

February 14, 2025

Keep Records of All Conversations Related to Reduction in Force or Change in Your Employment Status or Position

Several agencies have told their employees this week that information on continued processes to cut the Federal workforce will no longer come in writing by email but will only be conveyed verbally via team, branch, division, organization, bureau, or agency level meetings and townhalls.

A tip for Feds in this situation are to keep a handwritten notebook (not typed on your Federal device) of meeting notes that includes for each meeting or event--

▶️ email address that sent the meeting invite, including any names of persons in the from line

▶️ date and time sent

▶️ if the invite was not by email, who directed you to attend the meeting

▶️ subject of meeting

▶️ meeting speakers' names and titles,

▶️ date of meeting,

▶️ start and end times,

▶️ method of delivery (teleconference, in person)

▶️ details of what was discussed and said by whom

This should be done for any meeting where change in employee status is raised...even by those you trust such as a supervisor.

Make copies of any written information received to date regarding personnel status changes and keep it in a file with your documentation.

And yes this may sound paranoid but...

▶️ Once you are back in the office, I suggest that you do NOT carry your entire notebook into a meeting. Don't leave it at work or unattended or in an unlocked location in case it is confiscated. Take notes on a single page (NOT your personal phone) and consolidate the information later with your other notes.

▶️ If you aren't allowed to take notes in a meeting (I'm hearing phones may be excluded from meetings once in the office) then document what was said as soon as possible afterwards.

(I've been subject to these tactics used by a past federal supervisor who was doing illegal things at an agency before that person was finally under investigation and terminated. Just sayin'....unprecedented times call for unprecedented (and frankly, depressing) things to protect yourself.)

Do this for EVERY conversation. Even one with your supervisor you like a lot; don't take a reassignment or other position before knowing the facts. You don't want to make a decision you think saves you and it hurts you. I've seen employees jump from competitive appointment-based positions to excepted service and they don't realize that the RIF processes between the two are different.

💙 I stand with you. I see you. And I'm advocating for you. I'm dialing daily to talk to Congressional members about the value of the Federal workforce and the dignity with which they should be treated, given their oath of office and service to our nation.💙

Original LinkedIn post is found here: https://www.linkedin.com/posts/shauna-weatherly_several-agencies-have-told-their-employees-activity-7292897278132895745-nOEW?utm_source=share&utm_medium=member_desktop&rcm=ACoAAA6vqSABLArM73HgjpmDnYG-5LRTJXgTTYQ

DISCLAIMERS:

CONSULT YOUR AGENCY HR OFFICE OR AN ATTORNEY KNOWLEDGABLE IN FEDERAL EMPLOYEE LAW OR PAY BEFORE MAKING ANY DECISION OR TAKING ANY ACTION THAT IMPACTS OR CHANGES YOUR FEDERAL EMPLOYMENT STATUS.

Fed Forward

February 14, 2025

Guidance on Collective Bargaining Obligations in Connection with Return to In-Person Work

Find the Office of Personnel Management Memo at this link: https://www.chcoc.gov/content/guidance-collective-bargaining-obligations-connection-return-person-work

DISCLAIMERS:

CONSULT YOUR AGENCY HR OFFICE OR AN ATTORNEY KNOWLEDGABLE IN FEDERAL EMPLOYEE LAW OR PAY BEFORE MAKING ANY DECISION OR TAKING ANY ACTION THAT IMPACTS OR CHANGES YOUR FEDERAL EMPLOYMENT STATUS.

Fed Forward

February 14, 2025

How to Download Your eOPF

Feds...Stop now and get your eOPF.

NOTE: You must sign in from a Federal IP address to access eOPF.

eopf.opm.gov

See attached guide created by the Department of Commerce for accessing the site and navigating download of your documents.

(NOTE: The URL in the guide is specific to Commerce (".../doc/"). You will need to know your URL for your specific agency.)

How to download your eOPF.pdfDownload PDF • 170KB

There are reports that users can no longer access the system with valid active passwords and that those who need updated eOPF passwords can no longer request links to update their passwords.

Once in, you can email the password protected file to yourself.

IMPORTANT NOTE:

The password to open the file is your last name and print request number found in the first column of the screen that pops up that your file is queued (you may have more than one file...save all numbers).

You'll type them in together, like "doe123456". Keep that info in a safe place so you can access your file(s) later.

Keep your eOPF on a non-Federal device.

Should you separate from service involuntarily or through resignation, there is no current guarantee you will be able to access your records again.

If you plan to retire, your agency HR rep should advise you that once retired your eOPF is no longer available to you; you must download a copy BEFORE you submit your retirement package. This is important so you can answer an questions from OPM during the adjudication of your retirement case.

If you find records are missing from your eOPF, contact HR immediately and BEFORE you hit send on a resignation or for your retirement package. They will do a records search in the archives (if you were a Fed before eOPFs were a thing and everything was paper). If you have copies of missing documents, forward a scanned copy to your HR rep.

ACCURACY OF YOUR EOPF CONTENTS IS CRUCIAL FOR REDUCTION IN FORCE PURPOSES!

If you find you do not have a copy of your eOPF and--

▶️ your password is valid but not working or

▶️ you've requested an update link for one with no response, and after that

▶️ you appear to be locked out,

▶️ contact your agency HR office and

▶️ consider contacting your elected official (or have a friend or family member do it on your behalf, if you have concerns).

You are entitled to a copy of your eOPF.

(Instructions for some agencies may vary. Contact your agency HR if you need more details.)

Original LinkedIn post is found here: https://www.linkedin.com/posts/shauna-weatherly_guide-to-downloading-eopf-documents-activity-7292190146374811651-hV47?utm_source=share&utm_medium=member_desktop&rcm=ACoAAA6vqSABLArM73HgjpmDnYG-5LRTJXgTTYQ

DISCLAIMERS:

CONSULT YOUR AGENCY HR OFFICE OR AN ATTORNEY KNOWLEDGABLE IN FEDERAL EMPLOYEE LAW OR PAY BEFORE MAKING ANY DECISION OR TAKING ANY ACTION THAT IMPACTS OR CHANGES YOUR FEDERAL EMPLOYMENT STATUS.

Fed Forward

February 14, 2025

FedWeek Resources, Documenting Discussions, and Challenging Adverse Actions

It's been a few weeks of lending an ear to my Fed friends. They are resilient and they are making their plans for return to office or to retire. None I know are taking the "Fork in the Road". Things we've talked about this week include:

Knowledge is power.

In times like these don't expect your rights to be acknowledged or granted. You may need to assert enforcement of your rights and having knowledge is your way to do that. If you don't know anything about HR rules for Feds, FEDWeek has some great books that are up to date on a variety of Federal employee topics. Books I have (which are at or around $15 each) are:

Federal Employees Handbook
FERS Retirement Guide
The Books of Answers for Federal Employees and Retirees
The Federal Employee's Legal Handbook

https://www.fedweek.com/store/

(NOTE: I get nothing from this. I used these books as a Fed manager over the years and to help me when I was working through decisions as I completed my retirement package 2 years ago.)

Download your eOPF.

I keep saying it. Please do it right now. Keep it on a device that is NOT your Federal device. Within your eOPF find...

✅ your current position description,

✅ last two SF50s,

✅ all of your documents where you last elected any benefits (i.e., health, vision, dental, life, long-term care) and any changes you made after that original election,

✅ your current performance plan with your performance elements documented in detail, and

✅ your last three performance ratings received (minimum).

Read them and know what they say. If you get pulled into some last minute (surprise) call from an agency rep about your status, pay, position, etc., you can think and talk from a place of knowledge.

Document, document, document.

✅ Do not delete the "Fork" and other OPM or agency emails about your employment before printing them or saving them to another device. Start collecting files/documents... whatever way works for you. If you aren't an organized person, ask a friend or family member for help if you are feeling overwhelmed.

✅ Document every verbal discussion. Annotate dates/times and take notes at one-on-one meetings with your supervisor, those within your working group, branch, division, and all townhall meetings. Record who was in attendance and method used. Ask for copies of all slides and handouts.

Challenge adverse actions quickly.

You may be on a very short 30-day deadline to file any challenge. Check with your union and obtain legal counseling.

NOTE: The Administration has removed all Employee Assistance Programs (EAP) provider lists from the OPM site. Legal advisors were included in the EAP prior to Jan 20th.

💙 If you or someone you know are experiencing depression or other feelings of dread or despair related to these events, please reach out to others for help. Call 988 or visit https://988lifeline.org/get-help/ 💙

Original LinkedIn post is found here: https://www.linkedin.com/posts/shauna-weatherly_fw-handbooks-activity-7291252021418938368-REdx?utm_source=share&utm_medium=member_desktop&rcm=ACoAAA6vqSABLArM73HgjpmDnYG-5LRTJXgTTYQ

DISCLAIMERS:

CONSULT YOUR AGENCY HR OFFICE OR AN ATTORNEY KNOWLEDGABLE IN FEDERAL EMPLOYEE LAW OR PAY BEFORE MAKING ANY DECISION OR TAKING ANY ACTION THAT IMPACTS OR CHANGES YOUR FEDERAL EMPLOYMENT STATUS.

Fed Forward

February 14, 2025

eOPF -- Print Queue Wait Times

Feds...There is a banner on the eOPF system that they “...are receiving an unprecedented volume of eOPF print folder requests….”

Well, duh.

Print queue requests are taking hours for individual docs and days for complete file requests, and some not received at all.

If you don't want to wait, see if you can grab individual documents that include:

▶️ Last several SF50s -- Make sure you have the last full SF50 with all of the blocks filled in; not that one that is barely filled out with your performance award on it. The recent pay adjustment SF50 would be a good one.

▶️ Current position description...all pages

▶️ Past 4 years of performance evaluations

You may also want to grab:

▶️ Any documents where you made your initial election of benefits like FEHB (health benefits), FEGLI (life insurance), LTCI (long- term care) plus the latest election document for each.

▶️ If you've ever held jobs in different job series at your same grade level, grab those SF50s and position descriptions, too. (Ex. You were a GS-1102-13 Contract Specialist and took a reassignment to GS-1101-13 Business Management Specialist).

If the system gives you the option to email the files to yourself, suggest using it.

If you've waited days with no luck that you might want to inform the union. If you don't have a union, you may want to reach out to your elected official.

Original LinkedIn post found at: https://www.linkedin.com/posts/shauna-weatherly_fedsthere-is-a-banner-on-the-eopf-system-activity-7294706678090907648-3VM0?utm_source=share&utm_medium=member_desktop&rcm=ACoAAA6vqSABLArM73HgjpmDnYG-5LRTJXgTTYQ

DISCLAIMERS:

CONSULT YOUR AGENCY HR OFFICE OR AN ATTORNEY KNOWLEDGABLE IN FEDERAL EMPLOYEE LAW OR PAY BEFORE MAKING ANY DECISION OR TAKING ANY ACTION THAT IMPACTS OR CHANGES YOUR FEDERAL EMPLOYMENT STATUS.

Fed Forward

February 14, 2025

Educate Yourself on Reduction in Force (RIF)

Okay Feds...time to educate yourself about Reduction in Force (RIF). I know it's a stressful day & you may not want to read this right now so pin it. You'll want it soon.

A majority of you are going to ride this wave to the possibility of involuntary separation, especially if you are a mid-to late careerist or on the bubble. Many are just shy of qualifying for voluntary retirement by either age or years or don't meet the eligibility criteria for a VERA. There are a lot of you in this situation; you are not alone.

There are protections in RIF you don't get when you resign. Priority Placement means that after separation you may be referred for any open position / grade under which you qualify (as determined in the doc below) and that referral list MUST be cleared before anyone else has a shot at that job. During the RIFs in the 90s under Base Realignment and Closure (BRAC) civilians were subject to RIF and reassignment. The only hiring we did for years after was off those lists.

As of right now, OPM's webpage about RIF and the attachment that outlines the RIF process in detail below (current from March 2017) appears to be accurate. But because OPM messaging is "fluid" right now, I trust the document at this link (https://www.opm.gov/policy-data-oversight/workforce-restructuring/reductions-in-force/workforce_reshaping.pdf) more than the URL.

Phrases you need to know are:

▶️ Standing

▶️ Retention Register

▶️ Competitive Area and Competitive Level

▶️ Tenure Group (on your SF50)

▶️ Service Credit (which is based on the Service Computation Date (SCD) on your SF50, make sure it is correct ... see comments for my post about reading your SF50)

▶️ Placement Offers

▶️ Career Transition Assistance Plan (CTAP) and Interagency CTAP (ICTAP)

▶️ Reemployment Priority List

▶️ Retraining Options Under the Workforce Investment Act of 1998 (a law)

In summary, regulatory requirements governing RIF are contained in 5 CFR Part 351. Federal agencies must follow these procedures when conducting a RIF. There are four factors used to determine releasing employees:

▶️ Tenure of employment (e.g., type of appointment as shown on your current SF50);

▶️ Veterans' preference (e.g., 30% or higher, vet, or non-vet as shown on your SF50);

▶️ Length of service (as based on your Service Computation Date (SCD) on your SF50); and

▶️ Performance ratings.

An agency is required to use the RIF procedures when an employee is faced with separation or downgrading for a reason such as reorganization and/ or shortage of funds. A furlough of greater than30 calendar days, or greater than 22 discontinuous work days, is also considered a RIF action. (A furlough of 30 or fewer calendar days, or 22 or fewer discontinuous work days, is an adverse action.)

Now you know why you need to download your ENTIRE eOPF.

Do it now, if you haven't already.

If you find any of your information is incorrect like your SCD, tenure, or veterans' preference, contact HR IMMEDIATELY to have it corrected because your file is what is used to run the RIF, not anything you provide later.

I know this is overwhelming.

We've been here before.

You are resilient.

I support & stand by you. 💙

Original LinkedIn post is found here: https://www.linkedin.com/posts/shauna-weatherly_opm-rif-handbook-2017-activity-7293272981034713089-I2cm?utm_source=share&utm_medium=member_desktop&rcm=ACoAAA6vqSABLArM73HgjpmDnYG-5LRTJXgTTYQ

DISCLAIMERS:

CONSULT YOUR AGENCY HR OFFICE OR AN ATTORNEY KNOWLEDGABLE IN FEDERAL EMPLOYEE LAW OR PAY BEFORE MAKING ANY DECISION OR TAKING ANY ACTION THAT IMPACTS OR CHANGES YOUR FEDERAL EMPLOYMENT STATUS.

Fed Forward

February 4, 2025

Focus in FY2025: Who are the Buyers for the Government?

The word "buyer" gets thrown around a lot in the GovCon sector. But who are the buyers for the Government?

Answer? It depends.

There are a few key parameters that dictate if a Federal employee is a "buyer" or not:

▶️ The role of the individual "buyer" (again, an often misused term when talking about roles and who does what in the Federal acquisition process),

▶️ The total aggregate dollar value of the action, AND

▶️ The authority granted to that individual to obligate the government.

(Before reading more, and to learn more about the players / roles in the Federal acquisition process, check out this past FedSubK Feature, "Hate the Game, Not the Players - Know the Roles in Federal Contracting".)

Let's talk about each of those key parameters above.

First, "buyer" is a loose term not used in the Federal acquisition process because it's not specific enough to the roles that occur and the work performed. It's taken from private industry and used by GovCon's to oversimplify the process. "Buyers" in Government can be--

▶️ Any Government employee that has been issued a Governmentwide Purchase Card (GPC or "p-card). There are over 705,000 "GPC holders" (their official title for that role).

▶️ Procurement Assistants, administrative support staff of a contracting office.

▶️ Purchasing Agents, the lower graded employees in a contracting office that may also hold a GPC but have no other authority and support others on the simpliest buys. You don't see this role often anymore.

▶️ Contract Specialists -- journeymen who do most in the acquisition except they don't have authority to making Contracting Officer decisions or enter into / sign contracts.

▶️ Contracting Officers (COs in civilian agencies and KO in DoD), a Contract Specialist who has been granted specific decision-making and signature authority by means of a Contracting Officer Warrant.

▶️ Ordering Officers, a Contracting Officer or other trained individual granted written authority to place orders under existing contracts (like GWACs).

▶️ Administrative Contracting Officer (ACO), a Contracting Officer that can only perform administrative post award actions that do not impact the terms and conditions of the overall contract.

Notice that in the descriptions above not everyone makes buying decisions; that is reserved for the GPC holder at or below the micro-purchase threshold and the CO/KO, OO, or ACO for everything else; a select group with written authority. These are your "buyers".

BUT... decision making also extends to levels above the Contracting Officer, based on the dollar value of the action. The CO/KO is not always the final decision-maker and having "approval authority" is not the same thing as having "procurement authority" by means of a formal written instrument (a "warrant") which grants signature authority to sign contracts. Approvers are not "buyers" because they don't have that written authority to obligate the Government (aka, sign contracts). They are there strictly for oversight.

And let's talk a tad about "buyer's preferences" here for a moment. Buyers may seem to have "preferences" BUT...

What you are really seeing is an overall agency preference because every buy--YES, EVERY BUY--goes through a review process.

The basic review includes:

Acquisition Strategy -- Completed regardless of dollar value to ensure the purchase strategy is sound and the purchase is for an official use. Documentation is simplified and dependent on the complexity of the purchase.
Acquisition Plan (FAR 7.105) -- Formal process that addresses a review of the mission need (to include history of the need); acquisition milestones; conditions impacting the purchase; life-cycle, design-to-cost, and should-cost; delivery; risks; acquisition streamlining; sources; competition; selection of contract type; selection procedures; budgeting and funding; priorities, allocations, and allotments; contractor versus Government performance; inherently governmental functions; management information requirements; make or buy analyses; tests and evaluation; logistics considerations; government-furnished property; government-furnished information; environmental and energy conservation objectives; security considerations; contract administration; and other implications like foreign sales, special requirements, the Defense Production Act, the Occupational Safety and Health Act, industrial readiness, and more.

GPC holders and COs/KOs, OO, and ACOs have every action reviewed even when they are the decision-maker, which at a minimum is a peer review or supervisory review.

P-Card buys are reviewed by the supervisor and Approving Official (if not the supervisor) at a minimum to ensure the purchase is for official use and funds are available to make the purchase.

All actions over the Simplified Acquisition Threshold (SAT, presently $250,000 and proposed to increase to $350,000 by 10/1/2025) require this more formal written Acquisition Plan. Review and concurrence is required by the Requiring Activity, Contracting Officer, Contracting Chief / Director, Small Business Technical Advisor, Office of Small Business Utilization, Chief Financial Office / Budget Officer, Chief Information Officer (as required for IT purchases), and Office of the General Counsel, along with any other personnel up to, and including, the Head of the Contracting Activity (HCA), depending on the dollar value. Some agencies also have Capitol Investment Boards and/or additional business case requirements for major systems investments and/or the procurement of contracts for Governmentwide use (i.e., OMB's "Best in Class" or GWAC contracts).

As you can see, being a "buyer" is not mean a single person can make the decision to expend funds; there is review and accountability, even for Contracting Officers with unlimited signature authority, as I was during my career. Federal contracting is NEVER done in a vacuum and the "buyer" is not the ultimate decision-maker.

Now you know when you hear the word "buyer" who that is and that they alone rarely make the purchase decision.

(Copyright 2/3/2025, Federal Subcontract Solutions LLC)

January 6, 2025

FedSubK NOW! Issue 19 - December 2024

This issue is archived at https://www.fedsubk.com/so/cbPES-9Jo?languageTag=en

This edition includes links to past FedSubK Features as a recap of information for the past two years.

FedSubK NOW! Archives

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January 5, 2025

FedSubK Feature: "Buyers Buy From People They Like and Trust"

Updated: Jan 9

After I retired and decided to start doing some knowledge-sharing in this space, the one mantra I saw every consultant use that helps businesses with finding and winning Federal contracts was (paraphrased) -- "Buyers buy from people they like and trust."

While I like this mantra, it has stuck in my craw for a couple of years now because it oversimplifies what really takes place and how the process works in such a way that it can derail businesses who aren't prepared. And it may be part of why you might feel like you are hitting a brick wall trying to make headway in this sector.

Entertain me a bit here while I explain from the Contracting Officer’s perspective what the rub is and why, in my opinion, this mantra isn’t 100% true.

“But it is true!” (I can hear my GovCon peers exclaim.)

Okay, there are “unicorns” – things that occur that are out of the norm as if out of a fairytale. Those "in-the-right-place-at-the-right-time" moments you hear about. But those aren't the norm.

Hear me out.

I admit that building relationships in any industry is important at all levels. But knowing where to build those relationships is what is most important.

It is also important to understand that when you are doing business with the Government, the part about “like and trust” works differently than you may be led to believe.

So…let’s break this common mantra down into pieces by starting with “Buyers buy…”

The “Buyer” Is…

The term “buyers” isn’t used inside Government; that’s an industry term. Inside Government, the term “buyers” encompasses many people who perform different duties as part of the various processes used to purchase products or services. Some do market research, some do the contract paperwork, some do technical or price analysis, and some negotiate with businesses and sign the contracts. It is rarely a singular “buyer” for any acquisition, but instead a team of people knowledgeable in the various aspects of the procurement process that make up the term “buyer”.

Not all “buyers” are equal. Authority to obligate the Government for payment must be granted in some form, typically by use of a warrant or, in the case of use of the Government Purchase Card, commonly by an appointment letter. The “buyer” that holds a warrant is a “Contracting Officer” (CO, or KO in the Department of Defense so as not to confuse them with Commanding Officers). Only a CO/KO or Government Purchase Card Holder can only obligate the Government within the limits of the authority granted to them.

For example, as a Fed, I held a Contracting Officer warrant with authority to sign contracts without any restrictions in the dollar value or type of contract; an Unlimited Warrant. That means I had the signature authority for contracts of any size or type. Most warrants are limited by contract type, total dollar value, types of duties, and/or office / organization. For example, “Ordering Officers” can only order off specific existing contracts called out in their appointments. “Administrative Contracting Officers” can only effect modifications under existing contract terms and conditions of a contract but not change those terms and conditions themselves. Some Contracting Officer's only have authority up to the simplified acquisition threshold, or only for firm-fixed-priced contracts.

Notice that nothing in what I explained above talked to a buyer deciding WHAT to buy and WHO gets the contract. That’s because “buyers” don’t make those decisions in a vaccum. They manage the process of buying and decide HOW to buy. There are a lot of reviews and approvals and people in this process. As I've said before, buying is a team sport. Even the smallest buys require oversight and approval.

The decision on WHAT to buy comes down to the Requiring Activity, which is the agency or activity charged with meeting a mission and delivering requirement to the end-user. The Requiring Activity is the technical subject matter expert that determines the specifications, scope, and budget of a purchase.

But many GovCons have businesses convinced that “buyers” decide what to buy.

They tell you to ask buyers about upcoming opportunities when you should be talking to the Requiring Activities for that purpose -- from the largest buys down to the smallest buys.

If you want to get your product or service the real attention and speak to people that will understand the innovative solutions you offer, start to build a relationship with Requiring Activity personnel. They are your make-or-break relationship in the Federal contracting space, not the “buyer”.

Now that we know who the "buyer" is and what they really do, let’s move on to the rest of the mantra – “…from people they like…”

If the Government LIKES Me, I Will Win Contracts

Bluntly put, no. I’ve liked a lot of contractors that have never won a contract I had available to award. That’s because you don’t win a contract strictly based on rapport with a Contracting Officer (or "buyer", to continue out theme here).

Now before my GovCon peers’ heads explode, hear me out again…

It helps to have that rapport in some instances where buys do not require competition (i.e., micro-purchases) or when your company is part of a program like the 8(a) Business Development Program (because of the ease of negotiating and awarding 8(a) sole source actions). Positive name recognition is also helpful in the case of a competed action where the selection of sources occurs. But it doesn’t get you the contract.

What does?

A compliant QUOTE, OFFER, or PROPOSAL with a high-quality innovative solution at a great price. That will get you liked!

You can be the best contractor with great customer service, reasonable prices, on-time delivery, and quality products and services, but all it takes is for the proposal not to follow instructions, fail to address the Government’s concerns in detail, or have a price higher than your competitors and you won’t win no matter how much anyone likes you.

Some GovCons will tell you that the positive name recognition helps to elevate a company in the source selection process (see FAR Subpart 15.3 Source Selection to learn more about the formal source selection process, FAR Subpart 8.4 for GSA Schedules, and FAR Subpart 13.1 for simplified acquisitions).

How much an agency likes you only comes into play in the evaluation of the company’s past performance for a contract. That's because it is documented on past performance questionnaires (PPQs) and/or in the Contractor Performance Assessment Reporting System (CPARS). It cannot come from the reviewer's knowledge of your company, unless they were a past customer and provided either a PPQ for this specific solicitation or were part of the team providing performance feedback in a formal CPARS report. And remember that past performance is only one of the many criteria that may be included as a factor considered in the technical review of your quote, offer, proposal.

In formal source selection (used for the highest dollar value contracts -- the ultimate goal) is covered under FAR Subpart 15.3. You’ll find that the source selection decision (as outlined in FAR 15.308) “…shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation.”

The Source Selection Authority (SSA) makes that final decision and that person may also have knowledge of your company or a relationship, especially if you are an incumbent. But their rapport and knowledge of your company can only come into play if –

the rationale for the use of that knowledge is fully documented as to how it factored into the decision to ensure fairness and accountability,
the knowledge directly relates to the requirements of the solicitation and evaluation criteria in the solicitation, and
the knowledge supplements the evaluation process findings, not replaces them.

The SSA’s decision, while independent in nature, cannot solely be based on their own personal knowledge of a company or replace the findings of the Source Selection Evaluation Board(s). No matter how much they like you, it cannot be the deciding factor in granting you an award.

A real life example is a 45-page protest I reviewed for my supervisor of a GSA contract where an SSA in her office used his personal knowledge of a company to displace other companies from a contract award. The SSA failed to document what knowledge was used or how it directly related to the requirements of the solicitation and evaluation criteria. GSA lost the protest, another award was made to the displaced company, and it was suggested to this SSA that he might want to find another job (he left the acquisition career field).

That process is what keeps the playing field level. It prevents personal knowledge to impact or prejudice an award. I’ve told contractors I liked and that had great past performance that they didn’t win a contract. It's part of the job. But it was never because I liked or didn't like them. It was always a proposal red flag that was the culprit (see my FedSubK Feature: Proposal Red Flags for more info).

Now let’s talk about the last part of the mantra – “…and trust.”

If The Government TRUSTS Me, I Will Win Contracts

This part of the mantra is often used to imply that if the CO/KO trusts you that you can win a contract. But it’s really a “trust, but verify” situation with the Government, not a “I like you, therefore I trust you” deal.

Sure, if you’ve done work for the agency before or many other agencies, there is an implied trust factor simply because you've received other awards. That trust factor goes up the more awards you've received. But it is never blind trust. Trust always comes down to -- Are you considered a responsive and responsible contractor for the purposes of receiving an award?

Responsiveness is determined by the evaluation of the quote, offer, or proposal. Contractor identified as the selected source, regardless of the acquisition procedure used, are often called the “otherwise responsive” contractor until such time a responsibility determination is made prior to award.

FAR Subpart 9.103 states three distinct requirements related to contractor responsibility:

(a) “Purchases shall be made from, and all contracts shall be awarded to, responsible prospective contractors only.”

(b) “No purchase are award shall be made unless the contracting officer makes an affirmative determination of responsibility.”

(c) “The award of a contract to a supplier based on lowest evaluated price alone can be false economy if there is subsequent default, late deliveries, or other unsatisfactory performance resulting in additional contractual or administrative costs. While it is important that Government purchases be made at the lowest price, this does not require an award toa supplier solely because that supplier submits the lowest offer. A prospective contractor must affirmatively demonstrate its responsibility, including, when necessary, the responsibility of its proposed subcontractors.”

FAR 9.104-1 outlines the general standards that a prospective contractor must meet. They are:

Have adequate financial resources to perform the contract, or the ability to obtain them.
Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors).
Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them.

FAR states, “The Contracting Officer shall require acceptable evidence of the prospective contractor’s ability to obtain required resources outlined above. Acceptable evidence normally consists of a commitment or explicit arrangement, that will be in existence at the time of contract award, to rent, purchase, or otherwise acquire the needed facilities, equipment, other resources, or personnel.”

A prospective contractor must also--

Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments.
Have a satisfactory performance record. A prospective contractor shall not be determined responsible or nonresponsible solely based on a lack of relevant performance history, except when special standards are established and stated in the solicitation, as is allowable for specific acquisitions or certain classes of acquisitions under FAR Subpart 9.104-2.

FAR also states, “A prospective contractor that is or recently has been seriously deficient in contract performance shall be presumed to be nonresponsible, unless the Contracting Officer determines that the circumstances were properly beyond the contractor’s control, or that the contractor has taken appropriate corrective action. Past failure to apply sufficient tenacity and perseverance to perform acceptably is strong evidence of nonresponsibility. Failure to meet the quality requirements of the contract is a significant factor to consider in determining satisfactory performance. The Contracting Officer shall consider the number of contracts involved and the extent of deficient performance in each contract when making this determination.”

Lastly, a prospective contractor shall--

Have a satisfactory record of integrity and business ethics.
Be otherwise qualified and eligible to receive an award under applicable laws and regulations.

Determination of subcontractor responsibility is the duty of the prime contractor, except regarding debarred, ineligible, or suspended firms. Primes may be required to provide written evidence of their determination of a proposed subcontractor’s responsibility. Also, determinations of prospective subcontractor responsibility can affect the Government’s determination of the prospective prime contractor’s responsibility. The Government, using the same standards applied to the prime contractor, may directly determine the responsibility of a proposed subcontractor in urgent requirements or contracts for medical supplies, contracts with substantial subcontracting, and others.

Then there is more...

Remember all those answers to that long list of questions in SAM.gov that populated your formal representations and certifications in SAM.gov? Or any that were included in the solicitation that you had to complete?

Well, guess what? Those are also part of the determination of responsibility for prospective contractors! Misrepresent on a provision and it could result in some additional questions from the Government.

Same goes for any Exclusions and the Responsibility / Qualification section of your SAM entity record (formerly FAPIIS.gov). Depending on the type of issue, you could be found nonresponsible.

If you can get through the gauntlet, then your company is considered a responsible contractor for award.

Now, let’s sum it all up!

The mantra “Buyers buy from people they like and trust” really means…

“Contracting Officers or other Federal personnel with authority to obligate the Government buy from companies that propose compliant products and/or services that meet the Government’s needs and which are offered at a fair and reasonable price, who are then determined to be the most responsive and a responsible source for purposes of contract award.”

Not as simple as you might have thought, huh?

Does that mean you don’t need to build relationships? Not at all!

Does it mean that you won't win contracts? No. But this shows you how claims of "Buyer buys from people they like and trust" are a tad overblown when it comes to the ease at which a relationship can result in a large award. A purchase card buy, yes. But not any contract over the micro-purchase threshold (presently $10,000 and increasing to $15,000 on 10/1/2025).

Relationships should be targeted and strategic, not sending off an email to every Fed whose email address you can get your hands on.

Getting to know Feds will create rapport. But understanding how far that rapport can get you toward a win in your industry, given your specific business situation and the specifics of the acquisition, is very important.

This is where reviewing historical data and procurement forecasts comes into play. For more on that, check out fedsubk.com/fedsubk-in-action for webinars that teach you how to do that or check out my trusted support provider network at fedsubk.com/support-provider-network for people who can assist you.

The Federal space takes patience and persistence. There are opportunities for some quick wins using avenues like micro-purchases and simplified acquisitions.

Did this burst a bubble? Don't let it. Use it as motivation to dig in, learn more, and put your resources in the right places; PLAN. Target the right people for that important conversation, put your effort into that proposal you know is a winner, and be prepared for all the post award stuff that comes with being a prime Federal contractor. That's what will help your company be one the Government likes and trusts.

Check out our website to learn more and watch for an exciting announcement we have coming this spring related to expanding your Federal Contracting knowledge!

FedSubK Features

January 4, 2025

FedSubK Feature: Are Capabilities Statements Worth the Effort?

Updated: Jan 6

I'm about to challenge some assumptions here, and I apologize in advance.

Many GovCon professionals claim that an excellent capabilities statement will attract calls from Federal buyers.

When you hear this, you might think, "A quick way to build relationships with buyers? Great, count me in!" So, you rush around, create a cap statement (maybe paying someone thousands to do it) and begin sending it out to every Government email address you can locate.

Today, let's get real about capabilities statements. And here is the real REAL part -- I was a Contracting Officer and Chief of Contracting for a very long time as a Fed. In the offices I worked in and managed, not once did a capabilities statement prompt a call from a Government Contracting Officer for the purpose of offering a company a contract.

Sure, a Small Business Specialist might call to learn a little more about your company. That's their job. Requirements folks might call as part of early market research. It might get you a micropurchase (read more about those here).

But a Contracting Officer calling your company based solely on a capabilities statement is, frankly, not very likely to happen. If you do get a call it will most likely happen because:

1) the office is in a contingency and emergency buying situation, or

2) the Government needs to scare up companies to make up a competition pool because they are trying to get to a particular company, they can't justify a sole source, and the need to ensure the Rule of Two will be met to justify getting to the competitive pool they want.

That's the truth.

So...should you put the effort in to create a capabilities statement for your business? Read more and decide for yourself. I'm giving you the real insider perspective of how the Government views what GovCon tells you is a must. Decide for yourself after learning more about:

What information it should contain,
Who it should be sent to, and
What to expect from the Government after it is received.

What Information Should Be Included in a Capabilities Statement?

Of course there are the basics:

Business name (and logo)
Business address
Company website URL
Unique Entity Identifier (UEI) and Commercial and Government Entity (CAGE) (or NCAGE, or NATO CAGE) code
Point of contact name and information (email and phone number)
Primary and secondary NAICS
Product and Service Code (PSC) and Federal Supply Class (FSC) code
Business certification logos (i.e., SBA certifications like 8(a), those required for the industry, or affiliation with prominent business associations)

Then there are the things that set your company apart:

A succinct summary of the products and/or services provided. Don't be overly generic. Think of it as your 1-minute elevator pitch in writing and focus on your value proposition. Company history is fine but keep it very very brief.
Discriminating characteristics or factors that set your business apart from others in your industry. Don't over-generalize, boast, or overpromise. Make sure you have the receipts to back up claims here. Certifications such as SBA socioeconomic certifications are great but should not be relied upon as an important discriminating factor.
Names of recent key customers, projects, and/or current contracts, to include project titles, dollar values, and your role (if not the prime). Showcase the depth and breadth of your experience.

Some don'ts I commonly find when reading capabilities statements are:

Poor use of the real estate available on a single page. Use narrow margins and shorter headers and footers
Logos and headers that are too big.
Fonts that are too small.
Long paragraphs versus short sentences, bullets, or graphics
Providing information that the Government already has like the title of a NAICS code.
An over-reliance on SBA certifications or business associations
Omitting dollar values of contracts or projects
Summaries that focus too much as company origin and history
Failing to tailor it to the mission of the agency or the types of products or services they buy

There are a lot of GovCons who can help you prepare a capabilities statement for a price. My advice is open PowerPoint or Canva and create a cheap and eye-catching cap statement yourself in a few hours. Don't pay thousands to have one created for you. If the reason you should save that money is not already apparent, the reason will be clearer as you read on.

Who Should Receive Your Capabilities Statement?

This goes against the advice of most GovCon advisors but...DO NOT send the Contracting Officer your capabilities statement unless one of these two conditions are met:

They ask for it
--OR--
You've done your homework, and you know based on historical purchase data for the procurement office in which the Contracting Officer resides that the agency or office routinely purchases the types of products or services you are trying to sell.

Sending your cap statement to every Contracting Officer whose email you have on the off chance they may be buying what you are selling is a big "No Bueno". While you think you're being proactive with your marketing, what you are really saying to the Contracting Officer is:

1) "I don't understand your role or how the procurement process works, but I'm super excited about the fact I have the email address of a real person who might be able to give me a Federal contract."

Contracting Officers don't decide WHAT to buy. They decide HOW to buy. The "WHAT" is decided by the Requesting Activity. If you what to market an innovative product or service, instead try to find out who the Requiring Activity points of contact are and send your capabilities statement to that person / group. This gets your business cred directly to the technical experts and, possibly, the end users.
Contracting Officers use the SBA's Dynamic Business Business Search (DSBS) database and SAM.gov as their authoritative tools for small business information. You are far better off making sure your DSBS and SAM registration reflect your business information correctly than floating a Contracting Officer a cap statement.
- While you are maximizing the information in your DSBS record, be sure to add your website URL AND ensure that it matches what your SAM and DSBS reflect. You don't want your DSBS to say you do IT services but your website to reflect janitorial services. (Use our instruction guide to update your DSBS record.)

2) "Although I didn't do my due diligence to learn more about your office, agency, or buying trends before firing off this capabilities statement, please take your valuable time to open this attachment and provide a response."

If data "ain't your thang" and you don't want to pay for a tool or someone to do it for you, then you are better off sending your capabilities statement to the cognizant Small Business Specialist or Office of Small Disadvantage Business Utilization (OSDBU) for the procurement office.
It is the job of Small Business Specialists to:
- Collect information on the pool of eligible small businesses that can support the agency's mission.
- Know who is in that pool and their qualifications.
- Provide input on available small businesses to the Contracting Officer as part of the Project Team during the market research phase.
- Serve as an advisor during the formulation of the Government's acquisition strategy.
- Perform small business outreach on behalf of the agency.

(Psst! If you need to know more about the roles in Federal procurement, check out my blog post "Hate the Game, Not the Players - Know the Roles in Federal Contracting".)

What Should I Expect After Sending My Capabilities Statement to the Government?

This is where it gets real. The true answer? It depends on where the Government is in its procurement cycle and who you send it to. Most of the time, it will sit with no action taken. That's the honest to goodness truth.

Conferences. If you hand a copy of your capabilities statement to someone in person at a conference, the likelihood is that it will sit in a general file that is cleared out periodically to keep it current or end up in the circular file. Only the Small Business Specialist or possibly the Requiring Activity will follow up and then, only if your differentiators make you really standout from the crowd. (Those differentiators are KEY.) Feds are not likely to make a follow up call based on a capabilities statement.

Contracting Officers. If you sent it to a Contracting Officer and they didn't ask for it, don't expect an answer or response. They get a lot of these docs. The email will either go in an email folder for possible later use ONLY if the Contracting Officer knows about upcoming purchases and it's a possible match. They are not required to keep source lists.

If it is not deleted, it may be forwarded to the Small Business Specialist, OSDBU, or the requirements activity, if the agency makes purchases like what you offer.

If the agency doesn't buy what you are selling, they likely will not respond, and your cap statement and email will be deleted. Frankly, that's on you for not doing your homework. Don't waste your time or theirs. ALWAYS. DO. YOUR. HOMEWORK.

The chance of a Contracting Officer passing your email along to other agencies or friends / colleagues that are also buyers are very very low. If anyone tells you this happens, they don't know any Contracting Officers. Nobody has time to worry about another agency's buys.

Requiring Activity. The Project Manager is interested in one thing; can you deliver a quality product on time and within budget. If there is a current acquisition, they can't talk to you. If there isn't, this is your best point of contact to start a conversation about future requirements. If you want your cap statement to grab them, tailor it to them.

Small Business Specialists and OSBDUs. Let's say your cap statement makes it through at its easiest entry point for interest and possible action -- the Small Business Specialist. You still might not hear anything, but your cap statement will get filed because this person is required to keep tabs on their outreach efforts and have a ready list of small business sources not only for the Contracting Officer but for large business primes who are not meeting their goals. You have a chance of achieving a follow up call or meeting with the Small Business Specialist more than the other because of their need to track their own due diligence of tracking small businesses.

What type of info might you get as part of follow up with a Small Business Specialist? They can--

Talk to you about upcoming acquisitions; they are involved in the forecasting process.
Talk to you during the acquisition cycle when Contracting Officers and technical Subject Matter Experts or Project Managers can't due to potential conflicts of interest.
Tell you who the Requiring Activity is and make introductions.
Answer procurement questions and provide insights into agency buying trends.
Introduce you to primes with subcontracting plan requirements looking for small business subcontractors.

This builds a relationship with THE internal advocate for small businesses. They get to know your company and IT'S THEIR JOB TO DO IT. Even though they are only advisory in nature, the Contracting Officer must conduct coordination with them on every action over a specific dollar value that is procured, including those set-aside for small business and obtain their concurrence. They are a gatekeeper for small business participation.

Isn't that the person you want to talk to? YES, you do. Because they WILL remember you. They will keep your cap statement. And it is their job to help.

So, after all that...

Are Capabilities Statements Worth the Effort?

Yes, but only when...

Done without spending tens of thousands on the effort.
It easily differentiates your company from your competitors.
Tailored to target agencies and their buying history and trends.
Sent to the right person at the agency and at the right time.
YOU follow up to build relationships and market how you can help THEM (not ask for a contract or information).

Capabilities statements are not a check-the-box exercise that is then rapid-fired to all the Government email addresses you have in order to ask for a contract or information. If you use it...

It must look professional.
Make it meaningful.
Be intentional on who receives it.
Have realistic expectations about the outcomes they can generate.

It's not a MUST to create a capabilities statement. It is only one tool in the marketing tool box. While it may not get you quick wins or call backs, it can be a useful tool to --

Help you hone your elevator pitch.
Stick to a script of talking points when talking to Feds.
Aid in finding and focusing on your business's core capabilities.
Identify key discriminators that set your business apart from your competitors.

January 2, 2025

Focus in FY25: Do I Need to Attend Conferences to Get Federal Contracts?

Here is another recent question from a small business to help you Focus in FY2025... and prioritize.

Q: Do I need to attend conferences ("play the game") to get Federal contracts?

A: No. There is a lot of FOMO when it comes to a new year on this platform following the GovCon space. 😱 You'll soon start to see selfies taken from venues in the Beltway and Sunbelt. You'll hear stories of great presentations and meeting people face-to-face.

What you won't hear is anyone say they won a contract by shaking a hand at a conference. (But if you have, congrats, you are a unicorn in this marketplace.)

Why?

Because no one Government official can make those decisions in a vacuum. Federal contracting is a team sport and everyone has their role. And nothing is done without approvals, authority, and accountability. So don't worry, you aren't missing out on contracts directly by not attending.

Network within your means to the target audience for the entry point(s) into the Federal marketplace you've chosen. And that doesn't require travel and expense accounts.

Start right here, on LinkedIn. I'm no LI expert but I know what has worked for me...

✅️ Talk about what you know.

✅️ Share stories related to your expertise.

✅️ Occasionally share "human stuff" (not too personal, please... save that for FB or IG).

✅️ Be kind (...that is, unless you need some space from someone who wants to repeatedly and/or publicly makes it known that they aren't that in to you. Or maybe they like to "borrow" your content as their own. Then you use that unfollow, "disconnect", or block button all you want, okay?)

✅️ And most of all...be YOU, boo.

Open your network and follow people that resonate with you. See who they are connected with and hit the buttons to follow and connect.

▶️ Start conversations.

▶️ Comment on others.

If you want or feel you need a conference experience, pick one or two and budget for them. 🛫 🚨(Psst! I've got a list of these events. You can find the link at fedsubk.com/library.)🚨

Conferences can connect you with potential partners, primes/subs, and give you the chance to talk to a Govvie (but only quickly). But you can do that EVERY DAY here with a connection, comment, or DM.

And consider this...

Outside of a conference, the chance of being just another face in the crowd is drastically reduced. The interaction becomes more memorable and meaningful because there are no distractions.

It's not about where you go, it's about how you connect! And that's your call to make, literally. ☎️

January 2, 2025

Focus in FY25: How Does the Government Determine if a Threshold Applies to an Acquisition?

Here is another Focus in FY25 Question of the Day!

Q: How does the Government determine if a threshold applies to an acquisition?

A: Most often acquisition thresholds apply at the contract level. When that's the case, the Contracting Officer must use the total aggregate dollar value of the known requirement, to include all options. The total aggregate dollar value can be derived from--

✅ The Independent Government Cost Estimate (IGCE),

✅ The ceiling amount in the case of an Indefinite-Delivery Vehicle (IDV). The ceiling is based on historical, known, and anticipated utilization of the contract vehicle.

✅ Other means documented in the formal acquisition strategy or formal acquisition plan.

The total aggregated dollar value of the known requirement is then bounced against the threshold in the Federal Acquisition Regulation (FAR) and FAR's instructions as to how the threshold should be applied (i.e., if the dollar value is over or under the acquisition threshold).

Here is an example:

The Government has a known requirement for environmental cleanup of a Formerly Used Defense Site (FUDS) (a service acquisition) totaling $1M. The acquisition is going out full and open (unrestricted). The threshold for requiring a subcontracting plan is $750,000*, therefore FAR clause 52.219-9 Small Business Subcontracting Plan is required to be included in the solicitation and resultant contract. Should a large business be the otherwise successful offeror, they must submit a small business subcontracting plan prior to award for review and approval by the Contracting Officer. Submission is usually part of the price proposal but can be once notified prior to award, based on solicitation instructions.

In some cases thresholds may apply to a certain dollar thresholds for a subcontract, a portion of the work (like only the services portion of the effort), or materials (I'm it here a bit). When that's the case, the FAR will indicate what the particular dollar threshold should be measured against for purposes of the application of the threshold.

*This threshold is subject to inflationary increase based on the proposed rule published on 11/29/2024 (FAR Case 2024-001 found at https://lnkd.in/dAeYy66M)

January 2, 2025

Focus on FY25: What are the Limitations on Subcontracting for Small Business Primes?

Now that we are post holidays, while the kids are playing with their new gadgets or you are having your coffee scrolling on your phone (because, as entrepreneurs, that's what we do, right)...take a quick read and expand your Federal contracting knowledge!

Q: What are the limitations on subcontracting for small business primes?

A: Limitations on subcontracting typically apply to all contracts awarded to small businesses under set asides valued over the Simplified Acquisition Threshold (SAT), as defined in the Federal Acquisition Regulation (FAR) subpart 2.101. It's implemented via FAR clause 52.219-14.

The clause provides notification to a small business prime contractor of limits on subcontracting to first-tier subcontractors who are not similarly situated entities. Of the amount paid by the Government, the prime may not subcontract more than the following percentages:

▶️Services (except construction) - 50% of the amount to be paid by the Government under the contract, excluding the cost of materials.

▶️Supplies (other than procurement from a nonmanufacturer of the supplies) -- 50%, of the amount to be paid by the Government under the contract, excluding the cost of materials.

▶️General construction -- 85% of the amount to be paid by the Government, excluding the cost of materials

▶️Construction by special trade contractors -- 75% of the amound to be paid by the Government, excluding the cost of materials.

Work performed by a first-tier subcontractor who is a "similarly situated entity" does not count toward these limitations and can be used by the prime toward the percentage that must be self-performed. However, credit cannot be taken for work that a first-tier subcontractor further subcontracts to a similarly situated entity.

What is a "similarly situated entity"? An entity that has the same small business program status as that which qualified the prime for award AND is considered small for the size standard under the NAICS assigned by the prime contractor to the subcontract. Example: Prime contractor received a contract award under a small business set-aside. Any first-tier subcontractor who is also a small business AND is a small business under the NAICS assigned by the prime to the subcontract is a "similarly situated entity". Independent contractors are considered a subcontractor for the purposes of determining if their work qualifies them as a similarly situated entity.

The Contracting Officer will indicate compliance is required by either (1) the end of the base term of the contract, and end of each subsequent option period; or (2) by the end of the performance period for each order. For orders, it is by the end of the performance period of the order.

Read more about limitations on subcontracting when part of a joint venture and other details at the FedSubK NOW! blog here.

January 2, 2025

Focus on FY25: What are the Key Entry Points for Small Businesses in the Federal Marketplace?

I've got another popular question for you...

Q: What are the key entry points for small businesses in the Federal marketplace?

A: There are a lot of opinions throughout GovCon consultants on this topic. My personal advice is to build an entry strategy from multiple angles. I've listed two of several below.

✅️ Prime vs. Sub -- As a prime you are on the hook not only for the work but the relationship with the agency / customer, invoicing, recordkeeping (to the Government’s standards, not yours), compliance, and reporting. If you're ready for that because you're pivoting from private sector success, cool! But if not, consider subcontracting by performing a subset of requirements and a smaller set of responsibilities as you learn the Federal marketplace. Both are lucrative paths AND nothing says you can't try both in the marketplace at the same time.

Read more about what to consider when choosing a role at the FedSubK NOW! blog https://www.fedsubk.com/post/prime-or-subcontractor-what-to-know-about-each-role

✅️ Large Dollar vs. Small Dollar -- Everyone wants the $1M+ contract. But there are entry points that favor small businesses at lower dollar values and some don't require competition. Make yourself familiar with these terms and market to the Government at these different thresholds:

▶️ Micro-Purchases. These are buys with a total aggregate value at or below $10,000* (or higher limit overseas, during contingency or natural disaster events, or when buying training at some agencies). These buys are made with the Government Purchase Card (think credit card, but slightly different). Buys at or below this threshold do not require competition (yes, you read that right). When it comes to micro-purchases think not only about what you want to sell (a complete solution) but what you can sell (hourly subject matter expertise or training). Check out the MicroMarket.co platform for examples of how to sell micro-purchase offerings. And read my blog post at https://lnkd.in/gwj67-6q

▶️ Simplified Acquisitions. These are buys larger than a micro-purchase but with a total aggregate value at or below $250,000* (or higher in specific situations). These buys are automatically set-aside for small businesses unless otherwise justified in writing by the Government. These buys are made via formal written purchase order as a result of a Request for Quote (RFQ) and do require competition. While some think this threshold isn't lucrative long-term, there are often multi-year opportunities under this threshold in the form of Blanket Purchase Agreements (BPAs) under which calls (e.g., requests for work) are placed.

There are other entry points like Mentor-Protege or joint venture arrangements but those above are the most common and easiest to implement out of the gate.

Learn more on this topic and other contracting basics at my blog, FedSubK NOW! at https://www.fedsubk.com/fedsubk-now

While you're there, check out the other great available free resources.

January 2, 2025

Focus on FY25: What Does It Mean When the Government Refers to the "Color of Money"?

Show me the money!

Q: What does it mean when government refers to the "color of money"?

A: The origin and types of funds dictate what, how, and by when funds can be used, the expiration dates for the purposes of obligation of funds (i.e., obligating the use of specific funds source to a contract), and by when funds it must be expended (i.e., paid out to the contract) or returned to the Treasury. Often the different "buckets of money" funds fall into is referred to as the "color of money" internally in Government.

Not all Government funds are created equally. If dollars are appropriated for use in a specific timeframe or specific reason, most often they can't be used for a different purpose unless the are available for reprogramming. In other words, an underrun on one project does not automatically create additional funds that are then available for an overrun on another project except under a very limited set of parameters.

Learn more about the different funding types and how and when they must be used in my FedSubK Feature: Appropriated Funds & Federal Contracting at https://www.fedsubk.com/post/fedsubk-snapshot-appropriated-funds-federal-contracting

If you really want to dig into how funding works in the Government and it's rules (or you just have a case of insomnia and need a sleep aid), check out the U.S. Government Accountability Office (GAO), Principles of Federal Appropriations Law (aka “The Red Book), 4th and 5th editions at https://www.gao.gov/legal/appropriations-law/red-book. The Red Book is to funds management and utilization what the Federal Acquisition Regulation (FAR) is to procurement.

January 2, 2025

FedSubK 2024 Overview

After almost 38 years around federal contracting, you'd think there wouldn't be anything new to learn. But 2024 reinforced FedSubK's core belief that making federal contracting knowledge accessible isn't just good business - it's essential for the health of the entire system.

The numbers tell a stark story: in FY23 the number of small business prime contractors dropped to almost half of what it was in FY16. Record dollars were awarded, but those dollars went to half as many small business primes as were present in the space just eight years ago. This isn't just a statistic - it's a crisis of accessibility for these businesses.

In 2024, FedSubK doubled down on our mission to democratize federal contracting knowledge:

▶️ Expanded educational resources and website content

▶️ Launched the FedSubK Support Provider Network

▶️ Started monthly 'FedSubK in Action' webinar series

▶️ Only small business speaker at a major government payment conference (two years running)

▶️ Maintained commitment to accessible resources

Three posts that captured what matters most:

"The Disappearing Small Business Prime"

Small business participation crisis demands immediate action

"Record numbers of dollars were awarded. But those dollars went to half as many small business primes as were present in the space in 2016"

https://www.linkedin.com/feed/update/urn:li:activity:7203738515698851840/

"Content Theft in GovCon"

Fighting for authenticity in federal contracting education

"Little independents like me aren't the competitors to bigger GovCon. We take the work you don't want. Helping people you don't want to make time for because they don't want to pay thousands to get advice"

https://www.linkedin.com/feed/update/urn:li:activity:7262832460973916162/

"OSDBU Calendar Reality Check"

Agencies must refocus on meaningful small business outreach

"Outreach is less about the conferences you are attending and more about MAKING YOUR AGENCY'S MESSAGE to small businesses & yourself ACCESSIBLE to the ENTIRE small business community WHERE THEY ARE"

https://www.linkedin.com/feed/update/urn:li:activity:7270069335933501441/

In 2025, I'm doubling down again to make even more federal contracting knowledge accessible and affordable to small businesses and create products that will give you tools you can leverage throughout your journey in the Federal space. This space shouldn't be only for those who can afford expensive consultants. The market needs more transparency, not more gatekeeping. It needs to support more small business entrants, not create financial barriers to entry.

To every small business trying to navigate the federal marketplace: your patience and persistence matters. Agencies need your innovation and fresh perspective more than ever. FedSubK is here to give you the insider's perspective few others can so you can communicate with the right Government people at the right time with an expanded knowledge of Federal Contracting.

See you on the flip side in 2025!

Happy New Year! 🥂🍻🍾🕛🎉

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December 20, 2024

Focus in FY25: Can the Contracting Officer Break a Contract Info Smaller Contracts to Avoid an Acquisition Threshold?

The simple answer is "No". The Federal Acquisition Regulation (FAR) prohibits Contracting Officers (COs/KOs) from intentionally splitting a single requirement into two or more separate requirements to circumvent acquisition thresholds. It may be considered a violation of the Procurement Integrity Act, it is likely considered an ethics violation, and it may also be a violation of the laws upon which many thresholds are based, (i.e., Small Business Act, etc.). It is a HUGE "no-no" and contracting officers or agencies that habitually try to circumvent procurement thresholds may lose their procurement authority.

Here is a simple real life example:

A Project Manager is asked to buy a $26,000 trailer for their customer. It is the end of the FY and the Contracting shop isn't taking purchase orders for processing again until after September 30th. The PM held a purchase card with a $10,000 single transaction limit; the micro-purchases threshold (MPT) is $10,000. The PM decides to use her card and has the trailer vendor charge her card twice for $10,000 and once for $6,000. This purchase splits the requirement into three smaller purchases in order to circumvent her purchase card single transaction limit and micro-purchase threshold.

The Army Criminal Investigation Division agent showed up at my desk a couple months later (yes, I'm the one who turned this PM away at the end of the FY). He asked, "Do you know of an instance where a single flatbed trailer could be delivered in three parts?" He then clarified he was referring to three charges made to the PM's card to purchase the trailer. The PM said she felt pressured by the customer to spend their remaining one-year money at the end of the FY. Because I had turned down her request, she decided with the aid of the customer's budget office, to split the requirement and intentionally circumvent her card limit and the purchase threshold.

The PM was suspended without pay for a month and lost her purchase card privileges permanently.

So why do some agencies seem to split requirements? Well, there are ways around the "rule". We all know that everyone does things a little different -- which we all LOVE, right? (Not.) Here are a few examples of how an agency can seem to split a purchase and it is legit:

▶️ Classifying the same purchase funded with different funding streams as separate requirements by funding stream.

▶️ Classifying severable products and services (those that when purchased separately still have value without the other parts of a known requirement being purchased at the time time) as separate requirements.

▶️ Classifying the same purchase but at multiple locations as separate requirements by geographic location.

▶️ Classifying the same purchase but with multiple delivery points as separate requirements by delivery point.

If the agency has "cover" by either an inculcated agency buying process, a set of contractual vehicles with terms that allow this type of buying, or legal concurrence on this determination of what constitutes a requirement given the product or service being purchased, it is likely allowable and legal. Then the battle becomes agency culture, and that's one battle that is not easily won.

Bottom line is....please please please...as a small business, I know you are looking for avenues to find opportunities. But DO NOT suggest that agencies find ways to circumvent acquisition thresholds. Some "green" COs should know better but often don't. With those COs that do understand it can leave a lasting negative impression that can jeopardize your future opportunities with that agency, erode any trust in your company, and you could face other fall out -- particularly if you are a participant in an SBA Federal contracting assistance program like the 8(a) program.

(P.S. The purchase card example with the trailer actually happened twenty years ago when the micro-purchase threshold and card limits were at the lower $3,000 and the trailer cost $9,000. The current threshold and limit was used for this story so not to confuse folks on the current micro-purchase threshold and single purchase card limit.)

December 19, 2024

Focus in FY25: Who Controls the Funding When It Comes to Federal Contracts?

Updated: Dec 20, 2024

I cannot stress this enough to businesses. If you are marketing to the Contracting Officer (CO/KO) thinking they control the money and what the Government buys, you haven't read the FedSubK Features--

"Hate the Game, Not the Players: Know the Roles in Federal Contracting."

https://www.fedsubk.com/post/fedsubk-feature-hate-the-game-not-the-players-know-the-roles-in-federal-contracting

and

"Mythbusting the Role of Federal Buyers in the Acquisition Process"

https://www.fedsubk.com/post/fedsubk-snapshot-mythbusting-the-role-of-federal-buyers

The contracting chain of command does not control the money for a contract action...the funding activity does. The funding activity can be the requesting activity (aka program/ budget office) or another office or other agency in the case of interagency or intra-agency buying. Or it can be a cost-share arrangement with a non-fed entity like a water resources board in the case of civil works projects, for example, that provides funds.

The CO/KO only deals with money at a few points in time in the procurement life cycle and controls it in none of them.

Yes, the CO/KO may lead or be involved in price negotiations but there is no CO/KO or Head of the Contracting Activity (HCA) with "power of the purse". They don't know what other funds are out there for similar projects in out years. Contracting isn't part of the budget request or budget approval process for projects. It's not their lane.

When it comes to determining funding sources, amounts, or funds availability for projects (and contracts), it's all the job of the funding activity. If the negotiated price is more than the amount on the funding commitment document, if the funding activity doesn't have enough money available then there is nothing the CO/KO can do. There is no contract (unless it is a rare contract that can be incrementally funded); end of story.

A CO/KO also can't de-scope or negotiate things out of a competitive action to get the price within the funds available because that would be a Competition in Contracting Act (CICA) violation, unless the RFP also includes the rare use formal additive or deductive items and procedures.

COs/KOs decide HOW to buy, NOT what or how much to buy.

Read the articles and you'll know the right marketing conversation to have with which player.

December 19, 2024

I'm Just a Former Fed Reciting an SOP on Process Trying to Get Businesses to Listen

Those of us who are movie buffs will remember Julia Roberts giving a similar / not similar line to Hugh Grant in Notting Hill ("I'm just a girl, standing in front of a boy, asking him to love her," is the movie line.)

Well, not everyone is interested in listening, but I try my best on the platform that is LinkedIn. And on it I learn something new about the GovCon space every day. Some things are fun and others not so fun.

Today I got labeled a "Fed reciting an SOP on process" (paraphrasing more nicely than it was stated) from someone I looked to as a quasi-mentor in this space. I made a comment (since deleted) on a post from my default perspective...a former Fed that knows process like the back of her hand. My bad, but it is who I am. They nailed it. Congrats!

I don't do business development or sales. I do "process" and "real life experience" from being the Contracting Officer or higher level Contracting supervisor. I've spent decades honing that knowledge and can usually explain those rules and processes in an easy to understand way to others. (Okay, I'm a process and policy nerd, too, because I actually ENJOY picking processes and policy apart to understand why they exist (or shouldn't)). There is a lot of nuanced detail and context that does matter. The "devil is in the details", as they say.

I was told the post I commented on was about sales to Feds and it was also pointed out to me I knew nothing about sales. But I was on the receiving end of those sales visits and calls and emails so I know what worked. And I know process. If you are selling to the wrong person at the wrong time in the Federal process, it's a HUGE turn off. The Contracting Officer is usually thinking, "Great. They don't get it and I don't have time to explain it to them." Businesses are often told by GovCons that COs/KOs are in charge of things they actually don't control.

AND...that's why you may get the brush off from a Contracting Officer. I know because I felt like doing that ALOT as a Contracting Officer and likely did unintentionally during busy times of the year. And it does happen.

If you're lucky, the CO/KO will take the time out of their schedule to point you to the person who has that knowledge or maybe explain it to you. Many times they won't.

Those of us in the Federal space working to help small businesses understand this market better should be open to having complimentary view points shared so that our combined information provides a well-rounded point of view to those looking to us for guidance.

My three cents (inflation). 🤷‍♀️

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December 19, 2024

How does the Government determine if a threshold applies to an acquisition?

Most often acquisition thresholds apply at the contract level. When that's the case, the Contracting Officer must use the total aggregate dollar value of the known requirement, to include all options. The total aggregate dollar value can be derived from--

✅ The Independent Government Cost Estimate (IGCE),

✅ The ceiling amount in the case of an Indefinite-Delivery Vehicle (IDV). The ceiling is based on historical, known, and anticipated utilization of the contract vehicle.

✅ Other means documented in the formal acquisition strategy or formal acquisition plan.

Here is an example:

*This threshold is subject to inflationary increase based on the proposed rule published on 11/29/2024 (FAR Case 2024-001 found at https://www.federalregister.gov/documents/2024/11/29/2024-27851/federal-acquisition-regulation-inflation-adjustment-of-acquisition-related-thresholds.

Contracting Basics

December 19, 2024

Federal Acquisition Circular (FAC) 2024-02 issued 12/16/2024 - Certifications for SDVOSBs and Training to Prevent Human Trafficking for Air Carriers

▶️ FAR Case 2022-009 Certification of Service-Disabled Veteran-Owned Small Businesses is issued to finalize FAR implementation of SBA's SDVOSB program, update SDVOSB protest procedures, and require an SDVOSB concern determined ineligible by SBA to update its status in SAM within two days of the eligibility determination.

Specifics of the changes by FAR Subpart are found outlined in the interim rule (published 2/23/2024) which is unchanged by the final rule, at: https://www.federalregister.gov/documents/2024/02/23/2024-02797/federal-acquisition-regulation-certification-of-service-disabled-veteran-owned-small-businesses#p-17

Since the interim rule is unchanged, the final rule is effective the same day of publication, 12/16/2024.

▶️ FAR Case 2019-017 Training to Prevent Human Trafficking for Certain Air Carriers (Final Rule) amends FAR to require that domestic air carriers for the Federal Government that provide air transportation report annually to GSA, DOT, DOL, TSA, and CBP the number of personnel trained in the detection and reporting of human trafficking and sex trafficking, notifications made by staff or other passengers, and whether the carrier notified the National Human Trafficking Hotline or law enforcement and if so, when. This rule does not apply to solicitations or contracts by the Department of Defense.

This rule is effective 1/3/2025 and details can be found at the permalink https://www.federalregister.gov/documents/2024/12/16/2024-29373/federal-acquisition-regulation-training-to-prevent-human-trafficking-for-certain-air-carriers

FAR News

December 19, 2024

Focus in FY 25: Are You Compliant with Federal Funding Accountability and Transparency Act (FFATA) Subaward Reporting Requirements?

Updated: Dec 20, 2024

(If your answer is "What?", read more.)

A: The FFATA was signed into law on 9/26/2006. It requires that information about federal awards -- contracts and financial assistance -- be made available to the public. YOUR PART as the PRIME is reporting subaward and executive compensation data on your first-tier subawards.

▶️ Prime contract awardees must report first-tier subcontracts awarded that are valued greater than or equal to $30,000. (Reference FAR Clause 52.204-10 Reporting Executive Compensation and First-Tier Sub-Contract Awards)

▶️ Prime grant awardees must report first-tier subgrants awarded under both mandatory and discretionary prime grants that are valued greater than or equal to $30,000*. (Reference 2 CFR Chapter 1 Part 170 Reporting Sub-Award and Executive Compensation Information)

▶️ ▶️ If the initial grant award is below $30,000 but subsequent grant modifications result in a total award equal to or over $30,000, the award will be subject to the reporting requirements, as of the date the award exceeds $30,000.

▶️ ▶️ If the initial award equals or exceeds $30,000 but funding is subsequently de-obligated such that the total award amount falls below $30,000, the award continues to be subject to the reporting requirements of the Transparency Act and this Guidance.

The prime awardee is required to file a FFATA sub-award report by the end of the month following the month in which the prime contractor or grant recipient awards any sub-contract or sub-grant greater than or equal to $30,000*. Again, this is a PRIME RESPONSIBILITY. Only the Prime awardee is required (and able) to report sub-award actions in the reporting module.

The data submitted is pulled to USASpending.gov and reflected under the prime award for transparency.

Another IMPORTANT NOTE:

The FFATA Subaward Reporting System (FSRS) is being retired and migrated into the System for Award Management (SAM) in March 2025. GSA states there will be a blackout period before the migration and ample notice will be provided to users. More training and materials to prepare users for the changes are in the works; see separate post for briefing slides.

A list of FAQs can be found at https://www.fsrs.gov/#a-faqs until such time fsrs.gov is decommissioned.

*NOTE: The recent proposed rule under FAR Case 2024-001 recommends an inflationary increase for reporting by prime contract awardees under FAR clause 52.204-10 from $30,000 to $40,000. If unchanged in the final rule, this increase threshold would go into effect on 10/1/2025. The threshold for prime grant recipients in 2 CFR Chapter 1 Part 170 would require change under separate rulemaking.

December 6, 2024

SBA's Recent Final Rule on the WOSB Program Provides Clarifications and Updated Definitions

SBA issued a final rule this week on Wednesday, December 4, 2024, making changes to the Women-Owned Small Business (WOSB) Federal Contract Program regulations. The final rule makes administrative updates to align with current practices, procedural processes related to the launch of MySBA Certifications, and then a few notable updates outlined below.

✅ Clarifies discrepancies between Sections 124.106(a), 127.202(c), and 128.203(i) related to outside employment that may affect program eligibility; 8(a), WOSB, and VetCert language did not align. The rule confirms that WOSBs will generally be required "...to have the qualified woman that controls the concern devote full time to the business during the business's normal hours of operation." There is an exception wherein the woman on which the eligibility is based can demonstrate to SBA that they have "...ultimate managerial and supervisory control over both long-term decision making and day-to-day management of the business although the woman may not meet full-time devotion."

✅ Amends the definition of "interested party". The definition is changed to clarify that for the purposes of protesting a WOSB or EDWOSB's status, only WOSBs and EDWOSBs certified by SBA or an approved third-party certifier or that have a pending application for certification AND who submitted an offer for the WOSB / EDWOSB requirement in question are considered "interested parties". This stands to reason since only certified WOSBs / EDWOSBs who submitted an offer are eligible to receive the award. SBA states this will prevent what it calls "delay tactics" in which incumbent contractors file size or status protests solely to extend their performance.

✅ Removed the proposed language to align with the 8(a) program regarding the waiting period before reapplying for program certification after the application has been repeatedly declined within a specific timeframe. SBA has proposed the removal of that language under a subsequent 8(a) rule and therefore removed the same from the final rule here.

✅ Clarifies that when using an SBA-approved third party certifier that it is the WOSB applicant's responsibility to upload all documents necessary to be on record with the SBA, not the responsibility of the third party certifier.

✅ Clarifies that a WOSB or EDWOSB "pending application" is one which has not received a negative determination on the application.

✅ Implements Section 863 of the NDAA for FY22 requiring that once a status determination has been made that a WOSB / EDWOSB does not meet eligibility requirements, if the WOSB / EDWOSB self-certified as such for the purposes of participating on a pending procurement (while an application was pending) that the entity must update their status in SAM and failure to do so is a violation of the Small Business Act. The entity must also notify other contracting officers under which other offers, bids, or quotes have been made to provide their updated status.

Changes under this rule are effective January 5, 2025.

Read more details of the rule at the Federal Register Permalink here.

SBA News

December 6, 2024

FedSubK NOW! Issue 18 - November 2024

This issue is archived at https://shoutout.wix.com/so/9dP9TFT8w?languageTag=en

FedSubK Features in this issue include:

What to Know Before You Say Go (or No-Go)
Proposal Red Flags

FedSubK NOW! Archives

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December 6, 2024

FedSubK NOW! Issue 17 - October 2024

This issue is archived at https://shoutout.wix.com/so/9dP9TFT8w?languageTag=en.

FedSubK Features in this issue include:

Be a Dynamic Small Business!
Focus in FY25 - Be Seen and Be Heard

FedSubK NOW! Archives

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December 1, 2024

Focus in FY25: I Want to Sell to the Government; Where Do I Start?

Updated: Jan 2

The first two questions I ask small businesses that approach me about Federal contracting are (1) "What do you want to sell to the Government?" and (2) "Have you found your target agencies yet?"

Most often a business can answer the first question, but rarely can they answer the second. Yet they are registered in SAM, applying for SBA certifications, maybe have a GSA Schedule contract they've paid $$$ for, and are starting to look at and even propose on opportunities. All without knowing which agencies provide the best chances of an entry point.

"Winging it" isn't going to get you very far, especially when it comes to creating entry points. Sure, there are socioeconomic small business set-asides and the occasional story of a business being in the right place at the right time and getting a big contract (which is rare, btw). But it's not easy. You have to do some homework.

So, where do you start?

✅️ Begin Your Journey Here

A road map of assessment questions and actionable steps to take before submitting that first bid, quote, or offer. In my book, these are non-negotiable. ✅️

👀 Empower Your Federal Contracting Journey

Myth-busting and things to know as you prepare to market and sell to Federal agencies. As a former Contracting Officer and Chief of Contracting these are things businesses need to know to go into the Federal market with your eyes open. 👀

🔍 Using Government Tools to Read the Federal Marketplace

Understand the tools to research the Government’s buying history, trends, and determine your target agencies. 🔍

🎯 Using Government Tools to Anticipate Federal Opportunities

Learn how to find and watch for upcoming opportunities before they are announced to the public.🎯

Expand your Federal contracting knowledge at fedsubk.com. Check out my blog at fedsubk.com/fedsubk-now for articles on contracting basics.

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December 1, 2024

GSA MAS Refresh #23 Coming December 2024

GSA is issuing Refresh #23 to its Multiple Award Schedule (MAS) Solicitation in December 2024. Here are the major revisions that you need to know if you are a current Schedules holder -- OR -- if you are in the middle of an eOffer or eMod submission:

▶️ SCP-FSS-001 Instructions Applicable to All Offerors is getting an update. Read it carefully!

▶️ New Service Contract Labor Standards (SCLS) Wage Determinations will be issued (the last update was May 2023). Once updated, you can find them at https://lnkd.in/gVw4gM2m

🚨 Check your pricing and wage compliance -- they could be impacted by these SCLS updates.🚨

▶️ Both the Offer and the Modification Price Proposal Template (PPT) will be updated (again 👀🤐🤯).

▶️ I-FSS-600 Contract Price Lists is being retired (which outlined the format for your price list file).

▶️ Incorporates new provision and clause to identify single-use plastic free packaging availability for products.

▶️ Incorporates clause FAR 52.240-1 Prohibition on Unmanned Aircraft Systems Manufactured or Assembled by American Security Drone Act - Covered Foreign Entities (NOV 2024).

The following categories, subcategories, and SINs will also be revised:

Large Categories -- Add additional language to “Drones/Unmanned Aircraft Systems” under “General Information” section

Office Management (A), Office Supplies Subcategory (A09) -- Revisions to SINs:

▶️ 339940 Office Products 339940OS4 OS4 Office Products and Supplies

▶️ 339940OVER OS4 Overseas Office Products and Supplies

▶️ 339940SVC Office Supply Support Services

Facilities (B), Facilities Maintenance and Repair Subcategory (B01) -- Revisions to SIN 561210FAC - Facilities Maintenance and Management

Furniture and Furnishings (C), Packaged Furniture Subcategory (C07) -- Revision to Packaged Office Subcategory SINs

Industrial Products (E)

▶️ Hardware & Tools Subcategory (E04) -- Revision to SIN 332510S - Hardware Store, Home Improvement Center, Industrial or General Supply Store, or Industrial Maintenance Repair and Operations (MRO) Distributor - Store Front

▶️ Industrial Products Subcategory (E05) -- Revisions to SINs 335220D Domestic Appliances & 335220E Export Appliances

Information Technology (F)

▶️ IT Services Subcategory (F03) -- Revision to SIN 54151HACS Highly Adaptive Cybersecurity Services (HACS)

▶️ IT Solutions Subcategory (F05) -- Revisions to required templates under SIN 518210FM Financial Management Quality Service Management Office (FM QSMO) Core Financial Management (FM) Solutions and IT Professional Services

Transportation and Logistics Services (K), Motor Vehicles (non-Combat) Subcategory (K02) -- Revisions to SINs:

▶️ 532112 Leasing of Passenger Cars, SUVs, Vans and Light Trucks

▶️ 336212 Trailers and Attachments

▶️ 3361V Vocational Vehicles

Travel (L), Travel Agent and Misc. Services Subcategory (L03) -- Revisions to SIN 561510 - Travel Agent Services

Learn more at GSA Interact buy.gsa.gov/interact/

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GSA News

December 1, 2024

FAR Case 2024-001 Inflation Adjustment of Acquisition-Related Thresholds (Proposed Rule)

What's one thing to be thankful for this year? That on Friday, 11/29/2024, FAR Case 2024-001 Federal Acquisition Regulation: Inflation Adjustment of Acquisition-Related Thresholds will be published as a proposed rule. These inflationary increases are part of a review done every five years for statutory acquisition-related thresholds. (The proposed rule gets into the methodology; I won't bore you here.)

Many thresholds in FAR are impacted but many are not. For example, thresholds related to the Service Contract Labor Standards (SCLS) and the Construction Wage Rate Requirements (CWRR), bonding levels, and trade agreements are exempt from inflationary increases.

That's not to say there isn't some GOOD NEWS here. I'm highlighting a few below. You'll want to check out the full proposed rule for all the "deets" at https://lnkd.in/gBfDjYCa.

✅ Micro-Purchase Threshold (MPT) -- proposed increase from $10,000 to $15,000. Per the analysis provided in the rule, this brings another 49,000+ awards into the MPT sphere that can be made with the purchase card, based on FY2022 to FY2024 numbers. Increases are also proposed for the MPT in other situations like contingency operations and emergency response situations, among others. (FAR 2.101)

(Shauna's Two-Cents: This is the ⬆️ I've been telling folks to expect despite a House memo recommending $25,000. That increase wasn't realistic given that over $15K other statutory thresholds kick in for clauses and flow downs to subcontractors and suppliers. Adding clauses to p-card buys isn't something to wish on ourselves. Let's keep this streamlined process efficient for now, shall we?)

✅ Simplified Acquisition Threshold (SAT) -- proposed increase from $250,000 to $350,000. Between the MPT and the SAT is where awards are reserved for only small businesses (unless otherwise justified in writing). Per the rule's analysis, up to 5,000+ more contracts would now be available to only small businesses. When looking at that number in dollars, the increase is roughly 2%. Similar increases are proposed for contingency operations, emergency response, and humanitarian / peacekeeping operations. (FAR 2.101)

✅ 8(a) Limitation on Competition Threshold -- proposed increase from $25M to $30M (FAR 6.204) -- GREAT NEWS for 8(a)s!

✅ Threshold for Justifications of Single-Award Indefinite-Delivery Contracts (IDCs) -- proposed increase from $100M to $150M. (FAR 16.504(c))

✅ Sole Source Orders and Awards -- proposed increases from $7M to $8.5M for manufacturing NAICS and $4.5M to $5.5M for all other acquisitions for 8(a), HUBZone, SDVOSBs, and WOSBs. (See FAR 19 in the rule.)

Subcontracting plan thresholds for large businesses will jump from $750,000 to $950,000, with an increase from $1.5M to $2M for construction contracts.

Public comments are due by January 28, 2025. The effective date for thresholds is 10/1/2025 (the start of FY2026).

Permalink: https://www.federalregister.gov/documents/2024/11/29/2024-27851/federal-acquisition-regulation-inflation-adjustment-of-acquisition-related-thresholds

Happy Thanksgiving! 🦃

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thresholds

FAR News

November 17, 2024

DoD Issues Final Rules on the Inapplicability of Certain Clauses to Commercial Items Contracts and Affiliate Companies of Small Businesses (11/15/2024)

The Department of Defense (DoD) issued three final rules amending the Defense Federal Acquisition Regulation Supplement (DFARS) on Friday, November 15th, 2024. Two of these rules have positive material impacts on small business offerors on competitive DoD solicitations and subcontractors under DoD prime contracts. A synopsis of each is provided below.

DFARS Case 2024 - D016, Past Performance of Affiliate Companies of Small Business Concerns (Final Rule) -- This rule amends DFARS Subpart 215.305 (under the authority of 41 U.S.C. 1303 and 48 CFR Chapter 1) to state under a new subparagraph (a)(2)(C) that for competitive solicitations, contracting officers shall consider relevant past performance provided for affiliates of offerors that are small business concerns.

This is great news for small businesses who can now use the past performance experience of their affiliates as part of their offer. However, caution should be taken and it is my personal suggestion that businesses disclose in their offer that the performance submitted is that of an affiliate and not claim it under their own name for full transparency and Contracting Officer info.

(Implements Section 865 of the National Defense Authorization Act (NDAA) of Fiscal Year (FY) 2024 (Pub. L. 118-31).)

Published: 11/15/2024 | Effective Date: 11/15/2024 (89 FR 90237)

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DFARS Case 2018-D074, Inapplicability of Additional Defense-Unique Laws and Certain Non-Statutory DFARS Clauses to Commercial Item Contracts (Final Rule) --

This rule modifies the list of provisions and clauses listed in DFARS Subpart 212.301 paragraph (f) which apply to DoD solicitations and contracts using FAR part 12 procures for the acquisition of commercial products and commercial services to--

Remove DFARS Clause 252.203-7003, Agency Office of the Inspector General
Remove DFARS Provision 252.215-7007, Notice of Intent to Resolicit

This rule also modifies the list of provisions and clauses listed in DFARS Subpart 212.370 which are not applicable to contracts and subcontracts for the acquisition of commercial products, commercial services, and commercially available off-the-shelf (COTS) items to ADD--

DFARS Clause 252.203-7003, Agency Office of the Inspector General
DFARS Provision 252.215-7007, Notice of Intent to Resolicit.

Similar clarifications are also made to the list of provisions and clauses in DFARS Subpart 212.371 which are not applicable to the acquisition of COTS items to ADD--

DFARS Clause 252.205-7000, Provision of Information to Cooperative Agreement Holders
DFARS Provision 252.204-7008, Compliance with Safeguarding Covered Defense Information Controls
DFARS clause 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting
DFARS provision 252.204-7019, Notice of NIST SP 800-171 DoD Assessment Requirements
DFARS clause 252.204-7020, NIST SP 800-171 DoD Assessment Requirements
DFARS clause 252.204-7021, Cybersecurity Maturity Model Certification Requirements.

Since publication of the proposed rule for this case, other final rules have been issued and the changes below were necessary to this final rule as a result.

DFARS Subpart 212.371 was revised to add the following clauses to the list of solicitation provisions and clauses that are inapplicable to contracts solely for the acquisition of COTS items:
- DFARS Clause 252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting
- DFARS Clause 252.205-7000 Provision of Information to Cooperative Agreements Holders
DFARS Subpart 212.301 was revised to add DFARS Provision 252.203-7005, Representation Related to Compensation of Former DoD Officials, back to the list of provisions and clauses that apply to contracts for commercial products and commercial services.

(Implements Section 849 paragraphs (b) and (c) of the NDAA for FY 2018 (Pub. L. 115-91) and Section 837 of the NDAA for FY 2019 (Pub. L. 115-232).)

Published: 11/15/2024 | Effective Date: 11/25/2024 (89 FR 90233)

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DFARS Case 2024-D026, Updates to the Definition of Departments and Agencies (Final Rule) -- This direct rule amends the definition of "departments and agencies" at DFARS Subpart 202.101 to add recently established defense agencies. There is no contractor action as a result of this rule.

Published: 11/15/2024 | Effective Date: 11/15/2024 (89 FR 90238)

DoD News

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November 12, 2024

A Little Strategic Communication Can Go A Long Way - Try the "Dribble Method"

Updated November 2024

Have you tried using the "dribble method" of communication when contacting Government POCs? Those POCs can be the Contracting Officer (CO/KO) or other members of the Government’s acquisition team like requiring activities, small business specialists, project managers, etc.

What is the "dribble method"?

▶️ It's when you refrain from a long email asking multiple questions that require extensive answers from the POC.

▶️ Instead you ask ONE question that can be answered with a yes or no.

▶️ Then you ask ONE follow-up question, also in a yes or no answer format.

▶️ Repeat at a regular cadence (NOT daily or weekly; try every 2 months to quarterly at most).

Need an interpretation of a policy, want to learn more about an agency, or don't understand a contracting process and need some help? Do your homework first, state your understanding, and ask, "Are we correct in our understanding?" Again, a yes or no answer, plus you showed you did your homework to research an answer and do not expect the POC to be your readily available answer book.

So, what does the dribble method get you?

✅️ It creates the relationship.

✅️ It starts a conversation chain between you and the POC to build on.

✅️ It shows you respect that person's limited time.

✅️ You'll likely get a response. Your email won't slip to the bottom while the inbox while the POC is trying to find time to answer it.

✅️ That answer will happen faster because it's a small victory for them to clear it off their plate and out of their inbox.

When a "GovCon Whisperer" tells you that a rapid fire "email-a-day" approach daily to the CO/KO to get an answer works, run the other way. It does not get you any points. Being real, it's the stuff that makes a Government employee cringe.

And why would you do that when you're trying to make a good first impression? Try this approach and watch how the relationship and trust builds. A little bit of strategic persistence pays off in big ways.

From LI posts of Shauna Weatherly, President, FedSubK: https://www.linkedin.com/posts/shauna-weatherly_have-you-tried-using-the-dribble-method-activity-7252682268068978688-SXYf?utm_source=share&utm_medium=member_desktop

November 2, 2024

FedSubK Feature: Proposal Red Flags

Updated: Dec 1, 2024

I’ve seen a lot of proposals; all sizes and all types of work. There are a few specific "red flags" that can indicate potential risks, issues of compliance, or even fraud when the Government sees them in a quote, offer, proposal, or bid. These flags aren’t always deal-breakers, but they definitely trigger a closer look and add a layer of concern where none may not need to be. Here’s a quick list of some common red flags I've seen over the years, along with practical insights to help you spot these warning signs in your own proposals.

Red Flag 1 -- Non-Compliant Proposal Format (FAR 15.305(a))

FAR encourages a clear evaluation of proposal format and completeness, especially for negotiated procurements. Proposals that fail to follow the required format, exceed page limits, or lack necessary sections can indicate poor attention to detail or an unprepared or inexperienced team. These types of errors leave the Government asking, “If this is what the proposal looks like, what errors will there be during performance?”

A tip from my days as a secretary when I first started as a Fed; proofread your proposal in this order—

Forwards for formatting.
Backwards for typos.
Forwards for grammar, punctuation, and flow.
Backwards for capitalization, spelling out acronyms, paragraph numbering, etc.
Check images and/or graphics.
Complete a page count.

It may seem like a lot, but it works. Nothing will slip through the cracks.

Red Flag 2 -- Vague or Inadequate Technical Descriptions (FAR 15.305(a))

FAR emphasizes the importance of a thorough technical evaluation, highlighting the need to ensure the proposal is specific and realistic. Proposals that provide generic or unclear descriptions of how the Contractor will accomplish the work, or simply parrot the Government's requirements back to them as a response, suggest a lack of the necessary expertise or resources. Make sure your technical descriptions are clear, specific, and directly tied to the requirements. Avoid vague language without specific outcomes and remember that while not every detail is necessary, your proposal will be reviewed by a team with expertise in the subject matter and some who aren't experts . The latter requires the need to baseline your approach with information to provide a necessary level of detail to ensure evaluators can see how what you provide meets the contract requirements. "The Devil is in the Details," as they say. It is very true with an offer / proposal from both a pricing and technical perspective (however, never mix technical and price info...read more about that below).

Red Flag 3 -- Frequent Personnel Changes or Lack of Key Personnel (FAR 15.304(c)(3))

FAR allows for evaluation of individual personnel qualifications as part of the technical approach when key personnel are essential to performance. Proposals that don’t identify key personnel or suggest frequent personnel changes (such as short times in an assigned position or role) are a red flag. Rapid turnover or a lack of named experts signal potential performance risks. Stable teams generally indicate better chances of contract success. What does a stable team look like? It’s a team of individuals within a company or a team of companies (primes, subs, suppliers) that have worked together on similar projects in the past. Ensure key personnel, particularly for complex projects, are identified by name and role and that resumes and qualifications match the contract's scope. It is always helpful, but not always required (depending on solicitation instructions) that resumes match in terms of format. The easier it is for the evaluation board to find the information, the better you will be rated. (Hint, Hint, HINT!!!!)

Red Flag 4 -- Overly Aggressive or Unsubstantiated Promises (FAR 9.104)

FAR outlines contractor responsibility, emphasizing the need to assess whether an offeror can realistically meet their proposed terms. Proposals with promises of quick turnarounds, guarantees of substantial savings, or ambitious technical claims indicate the contractor is overpromising. The Government will verify whether the proposal’s claims are substantiated with past performance evidence or technical data, especially when a contractor claims outcomes which are not easily achievable. Be sure that your proposal has a balance of realistic expectations, no pie-in-the-ski promises you cannot deliver on, and it is believable. It's always better to under promise and over-deliver but there is a balance in that which comes into play as part of your risk / reward decision with how competitive and aggressive you want to be. Play to win but don't be stupid about it.

Red Flag 5 -- Unverified Past Performance Claims (FAR 15.305(a)(2))

FAR requires the assessment of past performance, requiring agencies to review the relevance and quality of previous work. Questionable past performance references or lack of verifiable past performance on similar contracts can be a sign of inexperience or poor reliability. Yes, the Government isn't good at always getting that past performance recorded timely either, but follow up WELL BEFORE you need that past performance and tap your Contracting Officer on the shoulder with a friendly reminder.

When writing your proposal, be sure to use SPECIFIC examples of past performance, tied to an easily identifiable project in your experience (either as an entity or individually), and provide valid current references. Lack of relevant or verifiable past performance indicates higher risk to the government, meaning a less desirable rating, particularly for complex requirements. However remember that Government employees retire and move on to different agencies, going back to why getting that past performance memorialized in CPARS (Contractor Performance Assessment Reporting System) is SO IMPORTANT.

Red Flag 6 -- Inconsistent Pricing or Unrealistic Costs (FAR 15.404-1(b))

FAR governs price analysis and outlines the necessity of fair and reasonable pricing. A few red flags are:

Significant price variations between similar line items or services is always questionable.
Overly low bids suggest inexperience or an attempt to win the bid at any cost (i.e., “buying in”), possibly leading to performance or financial issues during performance.
Unbalanced offers where costs are "front loaded" (priced) in contract line items (CLINs) or tasks that are paid earlier in contracting performance.
Prices near, similar, or the same as a competitor’s price can indicate collusion (i.e., price fixing), which is also a red flag and will invite more in-depth review.
Unrealistic or unsubstantiated proposals prompt Government questions about how the offeror plans to deliver within the price proposed.

Ensure all pricing is consistent and justified by clear calculations when required to be provided. And if calculation details are not required to be submitted, ensure your proposal can withstand audit scrutiny should it be required, as is the case for larger contracts.

The Government views red flags as indicators of potential issues and may, at best, be investigated by the Government before making a final award decision, or at worst be grounds for low evaluation ratings that express that risk or even elimination of your proposal from further consideration. Red flags also leave a not-so-great impression with Contracting Officers and technical personnel involved in the evaluation. Rigorous evaluation and due diligence are part of the Government’s charge to ensure that any concerns are substantiated or resolved before award and do not hinder performance later.

Clearing red flags should be an important part of your proposal writing and submission process. Look at the proposal with a critical. Better yet, hire someone to do it for you (I can recommend a detailed-oriented former Contracting Officer...lol). However, it is accomplished, you won't regret taking the time to assess your proposal objectively from the Government’s lens. You're giving your team and your proposal the best chance of success. And isn't that the whole point anyway?

November 1, 2024

FedSubK Feature: What To Know Before You Say Go (or No-Go)

The day has come…the Request for Proposal (RFP) you’ve been watching and waiting for has gone “live.” Your team has made a tentative decision that it wants to submit a proposal for this project. You download the solicitation documents and start looking through the requirements. Contract type, type of work, is subcontracting or limitations in subcontracting required, terms, conditions, pricing…you run down all the key pieces of information that you need to form your risk tolerance decision for the work. But, there are some other key pieces of information that, from a former Contracting Officer and Source Selection Authority’s perspective, to also keep in mind as you make your final “go/no-go” decision to propose and develop your proposal.

Know the Rules for Government Exchanges with Industry Before Receipt of Proposals (FAR Subpart 15.201)

Exchanges of information between the Government and Industry are encouraged. However, any exchange must be consistent with the procurement integrity requirements of FAR Subpart 3.104. This includes not only exchanges but also disclosure, protection, and marking of contractor proposal information and source selection information.

Requests for Information (RFIs) and Draft RFPs for industry input are considered part of the market research process under acquisition planning. These methods are not required but when used allow for more open exchanges between the Government and Industry. Potential offerors can share information to influence the Government’s procurement strategy (but mark anything proprietary accordingly). The Government may also hold conferences or meetings for the purpose of obtaining industry input. Recently one agency did an oral RFI exchange with industry and I was skeptical of how it would go but was pleasantly surprised at how Government posed the questions live and how industry responded (or didn’t when the line that led to exchange of proprietary info was near crossing). (See even an old dog can learn new tricks!)

Exchanges after issuance of the solicitation but before receipt of proposals are used by the Government to improve potential offerors’ understanding of requirements and allow them the chance to determine their ability to meet those requirements. These exchanges often take the form of questions from industry on RFP documents, answers in response from the Government, and pre-proposal conferences. The Contracting Officer oversees and controls these exchanges. If you get information from another source—a team member or someone other than the Contracting Officer—proceed with caution and verify, verify, verify.

Watch for Amendments! (FAR Subpart 15.206)

Changes to the RFP documents are made by formal amendment to the solicitation before the established time and date for receipt of proposals. Amendments must provide sufficient time for potential offerors to digest changes and update proposals. Each amendment will also be announced with its own notice and published in the Government Point of Entry (GPE), typically SAM, GSA eBuy, or other agency portal used to publicize opportunities. Amendment notices will outline the changes made. An oral notice may also be used when time is of the essence, such as the case may be in a contingency or emergency environment, which is then formalized by a written amendment issued by the Contracting Officer.

More often than not, the Government provides answers to RFP questions that may or may not be material in nature or result in an amendment. The Government doesn't always tell you if an amendment is forthcoming either. If in doubt, ASK. Don't wait for an amendment and then ask for a proposal extension later; not likely to happen. Instead put it in your rhythm to ASK questions like this as soon as they come up. Don't make assumptions!

Amendments can also be issued after the close of receipt of offers/proposals. However, if the Contracting Officer determines that such an amendment “...is so substantial as to exceed what prospective offerors reasonably could have anticipated so that additional sources likely would have submitted offers had the substance of the amendment been known to them”, the Contracting Officer must cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.

The worst possible thing is to finish an offer/proposal and realize too late that you haven’t taken an amendment into account. Failure to acknowledge an amendment is grounds to eliminate your proposal from consideration right out of the gate!

Understand the Basics of Different Source Selection Techniques (FAR Subpart 15.1)

Techniques for the selection of sources under competitive procurements fall within a range called the Best Value Continuum. This range equates to the Government’s perceived risk of unsuccessful performance which is then translated into the prioritization of technical factors and cost or price factors and their individual and collective importance.

An agency may use only one or a combination of the Tradeoff Process and the Lowest Price Technically Acceptable Process to arrive at the determination of the best value for the Government. The characteristics of each are found in the table below.

Tradeoff Process

Lowest Price Technically Acceptable Process

Allows selection of other than the lowest-priced or highest technically rated offeror using tradeoffs between technical superiority and cost or price, as described in the solicitation.

Requires selection of the technically acceptable proposal with the lowest evaluated price

The technical factors and significant subfactors that affect contract award and their relative importance are disclosed in the RFP.

The RFP also includes a statement whether all evaluation factor factors other than cost or price (aka “technical factors” when combined, are–

Significantly more important than cost or price,
Approximately equal to cost or price, or
Significantly less important than cost or price.

Technical factors are not ranked by relative importance.

Failure of a proposal to meet the minimum technical acceptability standard of any technical factor or subfactor automatically eliminates the proposal from further consideration.

Past performance is a required evaluation factor.

Past performance is not a required evaluation factor.

Factors and significant subfactors establish a list of criteria describing required or desired skills and experience against which the proposal is subjectively evaluated.

Factors and significant subfactors establish objective thresholds of technical acceptability (measures) against which the proposal is evaluated.

Technical ratings are subjective and use a rating scale of adjectival descriptors, colors, numerical weights, or original rankings. Cost or Price is evaluated, not rated.

Technical ratings are objective and use a go/no-go, pass/fail, or acceptable/unacceptable scale. Cost or Price is evaluated, not rated.

Provides the greatest flexibility for the Government to achieve the best balance of technical and cost/price acceptability.

Provides the ability to achieve a minimum technical acceptability level on all technical factors and significant subfactors and achieve the lowest evaluated price.

Any perceived benefits of a higher-priced proposal require supporting documentation to quantify the payment of any additional cost in terms of specific benefits to the Government.

Only the lowest-priced proposal of the proposals found to be technically acceptable is considered for award.

The point-by-point tradeoff decision is documented and reviewed as required by FAR, any agency FAR supplement, and agency policy.

Tradeoffs are not allowed.

Award Without Discussions or Competitive Range? (FAR Subpart 15.306(c))

The Government has a choice. It can choose to make a contract award decision based solely on initial proposals and not engage with offerors, or it can establish a competitive range to conduct discussions (aka, negotiations) before an award is made.

What’s a competitive range? Based on the ratings of each proposal against all evaluation criteria, the Contracting Officer will establish a competitive range comprised of all of the most highly rated proposals; those most likely to receive the contract award. It’s a down-selection. The competitive range can be further reduced for purposes of efficiency when documented with the rationale why and the solicitation so states.

The solicitation will disclose the Government’s choice. This choice is important. An award without discussions means you get one shot – the first shot – to get your proposal right. There are no fixes or changes allowed later. However, even when the Government chooses “award without discussions,” it always reserves the right to open discussions with offerors if it is in the Government’s best interest to do so. But don’t rely on it happening. If the Government can avoid discussions before the award, it will; trust me on that. It saves weeks of work and documentation when discussions are avoided. Write your best offer/proposal the first time!

When developing your go / no-go decision matrix, add these elements. Depending on your current risk tolerance, you’ll feel more confident that you’ve covered the bases procedurally as well as technically when making that important decision about expending resources for offer / proposal development.

Tags:

October 5, 2024

FedSubK NOW! Issue 15 - August 2024

This issue is archived at https://shoutout.wix.com/so/94P4VgBCm?languageTag=en

FedSubK Features in this issue include:

Lowest Price Technically Acceptable (LPTA) - What is it Good For? Absolutely Nothing When Not Used Correctly
The "Rule of Two" and the Rest of the Story

FedSubK NOW! Archives

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October 5, 2024

FedSubK NOW! Issue 16 - September 2024

This issue is archived at https://shoutout.wix.com/so/66P7DiS_D?languageTag=en

FedSubK Features in this issue include:

CPARS Secrets: Insider Tips for Maximizing Your Performance Ratings
Subcontracting Best Practices, Pitfalls, and Frequently Asked Questions

FedSubK NOW! Archives

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October 4, 2024

How Many NAICS are Too Many?

I get asked this question often from small businesses. My answer is, "As many as accurately describe the actually product(s) or service(s) you can provide."

Some firms choose dozens of NAICS codes using a scatter-shot approach. But what impression does that give the Contracting Officer (CO/KO)? They are thinking (at least) two things:

▶️ "There is no way this small business does all this."

AND

▶️ "What portion of all these NAICS can they really provide?"

Some industries lend themselves to many NAICS, like IT and Real Estate. Listing all related NAICS is a good strategy if you actually perform several types of interrelated services that fall under separate NAICS.

But other industries don't. In those cases, having a mish-mash laundry list of NAICS will have the CO/KO scratching their head wondering if your business has chosen a lane, knows what that lane is, and is experienced and focused enough in those NAICS to provide the products or services it says it can to an acceptable standard.

Then factor in SBA Dynamic Small Business Search (DSBS) and narrative portions of that record. With DSBS being the authoritative source repository for SBA small business certifications, every CO/KO goes to it at some point in their market research. Does your record capture info related to your chosen NAICS well enough that the CO/KO will want to open your Capabilities Statement or hit the link to your website to learn more?

I've read hundreds of DSBS records where narratives are over-generalized, don't use the space provided, and lack good use of key words. Even if your profile lists the NAICS code the CO/KO needs, if the DSBS narrative or record does not speak to the NAICS listed the CO/KO will be left wondering if you are a viable contractor for the work. They have no info from which to document market research affirmatively about your firm. You'll end up counted in the market research as a company who has the NAICS code but not counted as a firm the CO/KO believes could likely submit a successful offer.

Why? Well, market research isn't just about how many small businesses claim they can do work under a NAICS code on their SAM, DSBS, or RFI response or hold a certain socioeconomic certification.

It's all about the CO/KO having "...a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of fair market prices, quality, and delivery", or in other words, a proposal likely to win. If you're all over the map in your NAICS codes and don't capture them in your DSBS narrative, the CO/KO won't necessarily open your capabilities statement or go to your website because they won't have confidence that they will receive a competitive proposal from you.

Bottom line: Don't over-select NAICS. Use the space you're allowed in DSBS to talk to all your selected NAICS. Use DSBS fields to the max. Make your record count! It can be your first and only impression maker!

Contracting Basics

October 4, 2024

FedSubK Feature: Focus in FY25 - Be Seen and Be Heard

From the perspective of a Contracting Officer (CO/KO) and acquisition workforce member for over 30 years, I see small businesses every day chasing Government contracts without focus. FOMO is your nemesis and a resource killer.

As we head into the new fiscal year, let's "Focus in FY25" in a couple of areas. Our first is… Be Seen by Federal Buyers.

This may not be popular opinion in the GovCon community—particularly by those businesses that write these and charge small businesses a lot of money to do them, but...a great capabilities statement alone rarely gets you noticed.

Nine times out of ten if the subject line says "ABC Company - Capabilities Statement" the Government recipient is going to immediately drag and drop it into an email folder without reading it and, frankly, may never open it. This is why I caution businesses -- do not spend a lot of money paying for a cap statement. A few hours, your logo, some basic instructions that you can get from others here on LinkedIn, and an AI tool like Gamma, Canva, or PowerPoint get you the same thing.

INSTEAD...after your SAM registration is active, FOCUS on…

(1) completing your Dynamic Small Business Search (DSBS) profile, and

(2) polishing your website.

DSBS is where EVERY FEDERAL BUYER doing market research eventually goes to see how many small businesses identify under the NAICS code they are using for a buy AND how many of those smalls fall under each socioeconomic category. If you don’t have your DSBS profile filled out, you are missing out -- plain and simple.

DSBS has a place to put your business URL -- use it. There is a higher chance of the buyer clicking on your website link than opening your cap statement. Why? It's faster and from one look at your website they can see how "finished" and "polished" your business is with its messaging. A website says more than a cap statement in that regard.

Did I use cap statements in my market research as a CO/KO? Sometimes, but not often. Most often DSBS was my source because it is the authoritative source for socioeconomic status info and provides for quick queries and export of report results. SAM.gov Data Bank reports can also be used. Capabilities statements age and the data is always churning in new small business information. Contracting Officers must use information that is current within the past 18 months to inform their acquisition strategy analyses. They aren’t going to dust off a bunch of old emails to do their market research and cull through the long list they get.

Am I saying you shouldn't do a capabilities statement?

Not at all! It is a great exercise in objectively assessing and honing your written pitch to use in DSBS or orally when you meet people. It can also help you really stretch yourself to identify the true differentiators of your business from your competitors. These are the two areas in the cap statement that need the most work in those I review.

Want to know an even better person to send the capabilities statement to on a regular basis instead of the Contracting Officer?

A person that is charged to advocate internally for small businesses – the office Small Business Specialist. These specialists are charged with advising the Contracting Officer on small business matters. Every action under the Simplified Acquisition Threshold that isn’t going to a small business and every action over the Simplified Acquisition Threshold, regardless of dollar value or acquisition strategy, goes through the Small Business Specialist for review and sign off.

But with all that said, again...a great capabilities statement alone is rarely going to get you noticed. FOCUS on your DSBS profile and website.

Next let’s talk about how to…Be Heard by Federal Buyers

I meet so many small businesses concerned about interactions with the Government. They are worried about making a good impression, asking the right questions, coming across smart about Government contracting, but still getting answers to questions important to them. The worry results in a paralysis of sorts, particularly because so much of that communication is no longer in person but via email.

Trying to sort out what “GovCon Whisperer” to listen to is hard to decide. They all have their own take. But… have they been on the receiving end of these marketing emails from thousands of businesses? Ummm, probably not. Lucky for you, I have!

It's a good thing to be conscientious of making a good first impression; you only get one, as they say. But before you start firing off emails to Government acquisition personnel with cute snappy subject lines and a list of asks, then following up with daily, “Can we connect ASAP?” inquiries out of FOMO, let me give you some advice – that isn’t going to do anything but annoy the heck out of the Government recipient.

INSTEAD…Educate yourself on the different roles on the Government’s acquisition team and FOCUS on...

1) Asking the right people the right questions at the right time, and

2) Creating a cadence for regular communications.

The Right People

You can learn about the different roles involved in the Government acquisition process in the prior FedSubK Feature: Hate the Game, Not the Players – Know the Roles in Federal Contracting (Feb 2024). This article talks to the main function of each and their focus during a procurement.

The Right Questions

After you know the roles of who does what in the acquisition process, you know better who can best answer specific questions. You could ask the Contracting Officer to provide an interpretation of the Federal Acquisition Regulation (FAR) like an answer book. Or you can go to acquisition.gov, do a little research yourself, and instead ask for the Contracting Officer to confirm of your interpretation of a topic, situation, clause, etc. Even if that interpretation is wrong, you learned something in the process and you aren’t asking the Government to spoon feed you answers. Contracting Officer’s like that. And from a Contracting Officer’s perspective, there are no dumb questions. Most are there to help you because that helps them later.

The Right Time

You’ve heard the saying, “Timing is everything?” Well, that’s definitely the case in Federal contracting. Even if you know the right people and the right question, knowing WHEN to ask is important. Has the Government issued an RFI, RFP, or have you just heard a rumor something is coming? Where the Government is in the acquisition process will tell you when they can (or can’t) entertain or answer a question.

So how do you know when the time is right for a question? Generally:

Pre-Award: FAR Subpart 10.001 encourages agencies to engage with industry early during market research to gather info about potential solutions. Regardless of the question, expect to get broad answers equating to general information about agency mission needs and future requirements; no specifics about when an RFP will be issued, the acquisition strategy, or scoping information.

Solicitation Phase: FAR Subpart 15.201 states the limitations on exchanges with industry before receipt of proposals. The Government may issue an RFI, a draft RFP, hold a presolicitation conference, site visit, conference, or conduct one-on-one meetings with potential offerors among other methods.

During this time, specific questions can be asked to identify and resolve concerns regarding the acquisition strategy, including proposed contract type, terms and conditions, and acquisition planning schedules; the feasibility of the requirement, including performance requirements, statements of work, and data requirements; the suitability of the proposal instructions and evaluation criteria, including the approach for assessing past performance information; the availability of reference documents; and any other industry concerns or questions related to the information provided by the Government.

The Government may choose to share answers to industry questions without attribution to ensure a level playing field.

Evaluation / Award Phase: Communication and any exchanges with industry, particularly offerors, is severely restricted after receipt of proposals and must go through the Contracting Officer. This includes all communications before and after establishing a competitive range (FAR Subpart 15.306), the limitations on what information can be exchanged, to whom it can be exchanged with, when exchanges can occur, and award and unsuccessful offeror notifications.

Only interested parties (i.e., offerors) should ask questions and then, only when contacted by the Contracting Officer, following instructions for the response. Other parties should expect no response to questions or inquiries.

Post Award Phase: The Government will make a public announcement of award, when required in SAM.gov. After award the Government may answer general questions about the awardee (name and location) and the general scope of the work. Pricing and other source selection sensitive information will not be released.

Please do not try to coerce a Government official to tell you anything more than they can when they can. It shows you don’t understand the process or respect the rule of procurement integrity (i.e., keeping the playing field level). Remember that impression you want to make? Keep that in mind and don't let frustration over the silence get to you.

Also, be cognizant of the time of year it is in the Federal acquisition cycle. Don’t expect immediate responses to general inquiries July – mid October. After Thanksgiving through the end of the calendar year, most contracting offices are also operating with minimum staff. That’s because Contracting Officers are taking all the vacation time they can’t take in the summers with their family over the holidays every year.

Touching base is great. Offering to be a resource – great. But read the room and look at the calendar. And that leads me to…

The Right Cadence

Let me give you some advice. Do not send messages to government personnel on successive days in a row to follow up on an email. I repeat – DO NOT. If your GovCon advisor is saying that to you, they don’t know the mind of a Contracting Officer. There is a difference between persistent and pushy. You DO NOT want to be that business that makes the Contracting Officer cringe when they see your name pop up in their inbox.

So…what is a good cadence?

While you’re building a relationship, check in at least every 3-4 months minimum. Once you’ve established the relationship, check every 6-8 weeks max. For a Contracting Officer, time flies. If they get requests too often, you’ll become cringe-worthy again. Don’t do that.

If you’ve sent an email and are waiting for a response, remember, read the calendar.

Was it sent on a Monday or Friday? A lot of Federal employees work compressed schedules and have alternating Mondays or Fridays out of the office.
Was it sent within the last few days? Wait at least 4-5 days to follow up. Life happens, people are out with sick kids, sick themselves, have doctor appointments, bosses and other work that demands their time constantly, or the question may not fall high on the priority list that week. Be patient. And if you know their phone number, maybe try a call after a few failed email attempts. It’s always harder to tell you “no” on the phone than ignoring an email. A personal touch never hurts.
Was it sent during a major conference period like the National Contract Management Association (NCMA) World Congress? They may be taking online classes or be at the one office trip they get a year.

Focusing on a few essential basics in FY25 is a great way to kick on the new fiscal year and get realigned with your business goals!

Check out small business training events, guides and templates, FedSubK Features and blog articles to add more focus in your Federal contracting journey at fedsubk.com

October 4, 2024

FedSubK Feature: Be A Dynamic Small Business!

I’ve posted on LinkedIn a lot recently about ways to be seen as a little fish in the big pond that is the Federal marketplace. Every GovCon consultant has a take on the best entry points with agencies. My take is there is only one place small businesses MUST put their best foot forward to be quickly and easily seen by Federal buyers for potential opportunities and influence small business set-asides.

The Small Business Administration (SBA) Dynamic Small Business Search (DSBS) is THE PLACE you must be on your A-game.

The Dynamic Small Business Search (DSBS) is a database in which SBA houses the authoritative information on the certification status of small businesses. However, small businesses that do not have certifications or are self-certified, may also create a profile in this database. The DSBS is used by contracting officers, small business specialists, and large prime contractors to find small businesses to meet requirements and identify businesses that can help the Government (or a prime contractor) meet its small business goals. DSBS is one of the first--and often only--sources used in market research by agencies to determine the numbers of small businesses able to provide products or services by North American Industry Classification System (NAICS) code.

You can see why this might be an important place to pay attention to, eh?

Businesses have forgotten about the DSBS in the last few years because SAM.gov no longer sends small business registrants directly to DSBS at the end of their registration to complete the profile like it used to. I HUGE bummer. Businesses now must wait for their SAM.gov registration to be activated, then they can establish an SBA Connect account, claim their entity record, and create a shell in the DSBS system. Once those steps are completed, it’s time to complete the information that Federal buyers are looking for as part of their market research.

DSBS isn’t only for market research.

Even more importantly, the DSBS shows Federal buyers the status of any pending certification applications for the purpose of determining whether you are eligible to compete for a set-aside action. For example, an Economically Disadvantaged Woman Owned Small Business (EDWOSB) can still submit an offer for an WOSB set-aside even with a pending application for certification showing in the DSBS. Also, prior to award, Contracting Officers are required to use DSBS as the authoritative source to confirm the socioeconomic certification status and 8(a) program participation.

While DSBS automatically sends socioeconomic certification status to SAM.gov and updates the requisite reps and certs to reflect the correct socioeconomic status, in recent months that migration has taken extended periods of time to complete. WOSBs and EDWOSBs have reported not seeing their correct socioeconomic status reflected in their SAM entity record. You’ll find the status reflected under “Entity Types” directly under the Business Types table, as shown below.

Businesses should always check their SAM entity record to ensure that the proper status is shown within a reasonable time after receipt of an active certification status; usually within 14 business days. If the record is not accurately reflected, you can contact answerdesk@sba.gov or the SBA socioeconomic program under which your business was certified for assistance. If a Contracting Officer says that your SAM record does not reflect the status claimed, ask the Contracting Officer to check the authoritative database, DSBS for the more accurate information.

So now let’s talk about becoming a “Dynamic Business” in DSBS and walk through each part of the registration.

FedSubK has created a step-by-step guide that shows you how to request an SBA Connect login, claim your entity from SAM, and create the shell record. The guide, How to Update Information in SBA’s Dynamic Small Business Search (DSBS), can be found under the FedSubK.com Resource Library menu at Guides and Templates (fedsubk.com/guides-and-templates).

Understanding how to maximize the fields in DSBS is how you can make the best possible first impression so that Federal buyers want to learn more about YOU!

The Key Words

Often businesses pluck these from thin air and over-generalized based on what they think the Government wants to see. Key words need to reflect and incorporate aspects of your primary NAICS, secondary NAICS, and what you can provide under those NAICS. If you use key words that don’t reflect your primary NAICS, you’ll leave the Government scratching their head about you. They won’t understand the message you’re sending about your company. Be consistent and specific with key words while tying into your NAICS codes in order to leave the best impression.

The Website

Be sure that you include the URL for any website you have. Make it be more than a landing page. It needs to tell your story. It needs to include information about your company, what you sell, past customers, and products or solutions you provide. And most of all, it must be polished. Scrub your site hard for formatting, typos, grammatical errors, etc. Acquisition personnel using the DSBS will often quickly click on the site to see just how polished it is. When it looks good, they get the impression you know your stuff and pay attention to details.

The Capabilities Narrative

This is the written equivalent of your elevator pitch. This section should include all the things you’d include in that two-minute speech. Hit hard on what your company specialized in and its core product or service areas. Show the business’s focus and avoid being all over the map by overpromising on the breadth of work the business performs.

Near the end of the capabilities narrative, list any socioeconomic certifications Why not lead with it? Because that certification is only part of your business, and it alone does not get you interest from the Contracting Officer. End with that information so the Contracting Officer can easily see it in a quick query and get your business into their market research counts.

Lastly, identify any government contract vehicle or GSA Schedule your company may hold. If you can catch their eye that you have an existing GSA Schedule or your business participates in the 8(a) program, you’ll get counted and likely get a look in terms of the Contracting Officer wanting to know more. If they need to meet a socioeconomic goal, they can see quickly. You’re helping the Contracting Officer do their job. They LOVE that! (And made another great first impression!)

DSBS now also includes a field immediately below the capabilities narrative to add a link to your online capabilities statement. Use it!

The “Extras” You Should Never Skip

Special Equipment / Materials

Don’t use or have any? Don’t scroll past this space without using it to take advantage of more characters to tell your story! Tell more about your business here by adding all the other things you’d say if you got a longer elevator ride to do that pitch. Talk about your management approach, innovative ideas or solutions to solve identified Government needs, regulatory compliance, and outcomes. Differentiators go here; set yourself apart!

References

I cannot say this enough…if you have references, list them! Don’t play the “they’ll see that when I propose” game. Showing performance history—even if it is minimal or commercial and not Government--helps. How? It proves the viability of the business and the size and types of projects you’ve completed. Those goes a long way to determining eligibility of the business based on performance on same / similar work of a same / similar dollar value (“Rule of Two” stuff – you can read more about that here).

Review Your Profile

Go out to the DSBS site and do a query for your primary NAICS code and see how your profile measures up to your competitors. At dsbs.sba.gov/search/dsp_dsbs.cfm run a simple query. Now click on the competitors whose query results make you curious to know more and ask yourself...why. Look at their records and see what they did you haven’t. Use the good ideas of others, but don’t plagiarize. Contracting Officers will see that and that won’t look good for either of you.

Keep Evolving

Your DSBS isn’t something that you can just set and forget either. Make reviewing your profile in DSBS something you do when you renew your SAM.gov registration every year. If something major changes in your business focus, NAICS, or socioeconomic status, make associated changes in DSBS.

What GovCon doesn't always talk about -- The DSBS Influence

When doing market research and trying to determine if an acquisition should be set-aside for small businesses, the Government is not only counting about the numbers of small businesses that claim they can do the work under a NAICS code in DSBS. They are analyzing your DSBS profile to see if your business could be one of the "... two or more responsible small business concerns that are competitive in terms of fair market prices, quality, and delivery" and they have “…a reasonable expectation of obtaining an offer…” from you. (There’s that pesky “Rule of Two” again.)

In other words, based on what they see, could you submit a proposal likely to win? And how does a Contracting Officer determine that? Simply put...by your answers to everything we just covered.

Completing your profile helps tip the market research scales toward a small businesses set-aside and possibly a specific socioeconomic set-aside. If you're all over the map in your DSBS narrative, the Government will not consider you viable eligible contractor towards that “Rule of Two” and could possible choose to go another way with their acquisition strategy, away from a small business set-aside. Or worse, they set it aside but remember your name from the market research as one of the businesses that didn’t make their initial market analysis cut.

Influence where you can! DSBS is the place where you have a lot of influence!

Have I convinced you to get out there and create or update your DSBS profile yet?

Life is dynamic, business is dynamic, and your DSBS profile should be dynamic, too. Get it completed ASAP. You can’t afford not to.

Remember again, DSBS IS WHERE FEDERAL BUYERS GO TO FIND SMALL BUSINESSES and where other small businesses go to find teaming partners and subcontractors.

Get out there, GET NOTICED and BE DYNAMIC!

September 7, 2024

FedSubK Feature: Subcontracting - Best Practices, Pitfalls, and Frequently Asked Questions

Everyone is always talking about the big wins – getting that first PRIME contract. But you don’t have to be a prime to make a difference by providing much needed products and services to support agency missions and get a pie of the Federal marketplace pie. In this FedSubK Feature, I’ll share a few best practices, pitfalls, and frequently asked questions I get about Subcontracting.

When we talk about best practices, we are coming from the perspective of the business looking for subcontracting opportunities, but primes can also benefit from these tips as well when thinking about it from their perspective.

BEST PRACTICE #1 – BUILD A NETWORK OF PRIME CONTRACTORS

Let me tell you a story from when I was a CO/KO. I had a subcontractor come to me one day after a prime they had worked with on our site for about seven years had failed to win the follow-on award for the work. The sub said, “I’m not sure what we’ll do now. This is our bread and butter.” I asked about other prime contractors they had subcontracts with and what work they did commercially. The sub said, “Well, this job was so big, we put all our eggs in this basket. We thought we’d be here a long time.”

My advice is don’t put all your subcontract eggs in one prime contractor’s basket. There is too much at risk to think that one lucrative contract with a prime with continue in perpetuity just because things are great now. Why? Because of the reliance on a process where you don’t control – that being the prime’s relationship with the agency, the prime’s submission of an offer, and the Government’s evaluation of it as a winning proposal.

You must build a network of prime contractors that allows you to spread your exposure and income from Federal work across several subcontracts so that one prime losing a contract does not become a catastrophic event to YOUR business. I’ll cover below how to find Federal prime contractors.

BEST PRACTICE #2 – READ THE SUBCONTRACT AGREEMENT

There are several things outside of the work that subcontractors need to focus on in the Federal space, more so than in the commercial sector. You must read (and understand) the subcontract agreement between you and the prime. That includes:

The scope of the effort the prime is having you perform or support,
Payment terms,
Non-disclosure agreements,
Non-compete clauses,
The flow down of government terms and conditions from the prime contract,
How changes in performance will be handled,
Disputes / termination / cancellation / closeout, and many other terms.

Your agreement is what it is. And it can change based on changes in Federal regulations, policies, and procedures that impact the Prime’s contract at any point of performance.

Know it and get very familiar with it. Make sure you agree with it before you sign. Subcontractors can ask the prime to clarify processes, communication, and terms before signing. But understand that some terms will flow down from the Government. More on that in a minute.

You must also understand privity of contract between the prime and the Government, meaning the prime and Government have a contractual relationship for the work. Subs do not have privity of contract with the Government…your relationship is with the prime only (or higher tier sub). There is no coming directly to the Government with a complaint about your subcontract or the terms it contains, except for very few special circumstances. I’ll also address one of those below.

BEST PRACTICE #3 - UNDERSTAND FEDERAL REQUIREMENTS

Have you heard of the legal principle that says, “Ignorance of the law is no excuse”? Thomas Jefferson said that if ignorance of the law was an excuse, laws would lose their effect. In the case of Federal contracting, even at the subcontractor level, this still holds true.

It is important as a subcontractor to understand the specific Federal requirements called out within your subcontract terms and conditions that flow down from the prime’s contract to yours. Failure to comply can lead to fines or penalties for you and your prime contractor.

The “flow downs” are Federal requirements set forth through a number of avenues that culminate in your subcontract as mandatory for compliance by both the prime and you as a subcontractor.

Set by statute -- such as compliance with prevailing Department of Labor wage determinations
Regulatory -- such as what is found in the Federal Acquisition Regulation (FAR) or set forth in agency supplements to the FAR)
Technical Performance – such as compliance with a specific method of performance (like as in environmental cleanups or handling hazardous waste) set forth in policies or compliance with security requirements like security checks for employees or badging for access to government facilities
Procedural – such as upwards reporting requirements

If you oversee a lower tier sub, these requirements may also have to be flowed down to all lower tiers, as indicated in your subcontract.

Specific requirements to be aware of where ignorance does not excuse a lack of compliance includes, but is not limited to:

Regulatory compliances with agencies outside of the agency for whom the work is performed (i.e., Fish and Wildlife Service, Department of Homeland Security, etc.)
Pricing (depending on the type of prime contract, subcontractors can be subject to certified cost or pricing data) – your prime will indicate this in the subcontract.
Prevailing wages – Dept of Labor Wage Determinations – provided by prime
Data Rights
Acquisition, Handling, and Treatment of Government Furnished or Contractor Acquired Property
Security & Facilities Access
Safety
Section 889 Prohibition on Contracting with entities using certain telecommunications and video surveillance service or equipment from made by five specific Chinese companies and their subsidiaries, affiliates, and successor organizations. (Search on “Section 889 prohibited companies” for a list).
Prohibition on the use of any hardware, software, or service developed or provided by Kaspersky Lab to include any successor, any company that is controlled by or under common control with Kaspersky Lab, or any company with which Kaspersky has a majority ownership.
Prohibition on ByteDance applications (aka Tik Tok) related to the use of any equipment used in the performance of work to acquire, store, analyze, evaluate, manipulate, manage, move, control, display, switch, exchange, transmit, or receive data or info under a contract with an executive agency….including computers, peripherals, telephones, hardware, software, firmware, etc. The Contractor is prohibited from having or using a covered application on any information technology owned or managed by the Government, or on any information technology used or provided by the Contractor under this contract, including equipment provided by the Contractor’s employees.
Cybersecurity
Reporting
Other Compliance (Gratuities, Code of Ethics, etc.)

As mentioned, many of these impact lower-tiered subs you may manage on the work, and they must be flowed down to them as well in your agreements.

BEST PRACTICE #4 - CREATE A COMMUNICATION & COORDINATION CADENCE

To avoid disagreements and other pitfalls we will talk about later, you must insist that your prime engage in a regular communication and coordination cadence.

This spells out--

Who do you contact in specific instances. This will likely be the Prime in all instances but who at the Prime is important and having an open line of communication.
How will you communicate? Phone, email, text, WhatsApp? Etc. and as we will talk about next, keeping records of those communications – particularly if they impact the scope, cost, schedule, or other key aspects of the project.
When do you communicate? Set a cadence for regular communication – a check in at the very least or more formal status meetings weekly or biweekly, particularly on long terms projects. Have an agenda and an understanding of the critical elements or the prime that require your immediate communication (i.e., security or safety incident, departure of an employee deemed “key personnel”, etc.)
How will conflicts or disputes be handled? Determine an escalation chain so conflicts and disputes can be resolved quickly. On large projects with multiple subs, the Government does want to know that lost time / effort is minimized in these situations.

As the sub, you may have to be proactive to engage your prime and not wait for them to contact you. You likely aren’t their only sub or this isn’t their only contract.

You must also your best judgement and err on the side of caution when it comes to notifying your prime during performance of potential or actual issues. It could save you a lot of grief later.

BEST PRACTICE #5 - ESTABLISH A RECORDKEEPING SYSTEM

Establishing a recordkeeping system for your Federal work is a good idea. In it you should include:

Project Library – summaries of the work you’ve performed and outcomes for future use with other primes or stretching into becoming a prime contractor yourself one day.
Pricing / Rates – maintain a record of your prices and labor rates and how they were substantiated so you withstand any future questions or the rare possibility of an audit.
Payroll / Accounting – particularly when Department of Labor prevailing wages are involved, you must keep detailed records of the wages, fringes, and benefits paid to those employees and how they were calculated. The DOL Wage and Hour Division has amazing guides on how to do all that correctly so you don’t find yourself on the receiving end of a not-so-great outcome should they get a compliant and do an audit.
Organized and segregated – make sure records are organized and segregated by contract, project code, or other method.
Retention after performance – make sure you retain all records for the required minimum time after the end of contract performance (which should be called out in your subcontract agreement)
Available for audit – if required, be sure you can make all records available for audit by the prime or Government.

Too many subs think about these things too late and then play catch up once they are in the middle of performance.

COMMON PITFALL #1 - FAILURE TO MAINTAIN RELATIONSHIPS

If you aren’t leveraging relationships with prime, suppliers, and Government contacts for future opportunities, you are missing out on future opportunities both as a subcontractor but possibly as a prime. Even as a subcontractor, you will build valuable relationships with the Government through business name recognition and performance. You can use that to further your relationships with agencies, primes, and other team members to create and grow in the type of sizes of Federal opportunities you participate in and the roles you hold.

Letting these relationships die on the vine shows a lack of interest in future opportunities. Never “check out” of a relationship with an agency or prime without completing the work. It can come back to haunt you on future opportunities.

Avoid incumbent-itis and the thought only you can do what you do as a sub. Trust me, there is another sub waiting in the wings to do the work if you aren’t or don’t maintain the relationships that matter to keep yourself as a person who is “in” with the prime or Government.

COMMON PITFALL #2 - AMBIGUOUS TERMS & CONDITIONS

We talked about a best practice being reading your subcontract agreement. But you also need to understand it. If you aren’t sure, ask the prime to clarify or explain early and “GET IT IN WRITING” to avoid assumptions, misinterpretations, and other disputes that can be costly to you in performance.

Clearly understand—

Scope
Payment Terms
Prevailing wages
Compliance
Reporting
Communications (who and when)
And limits of your authority within the project, with the prime, and with the Government

Don’t let things get glossed over to your detriment.

COMMON PITFALL #3 - FLOW DOWN FAILURES

We talked earlier about clauses that flow down from the prime contract to the subcontract. It is the prime’s responsibility to ensure that all applicable contract clauses are flowed down to subcontractors. Primes will often flow down as much as possible as a means of risk mitigation, even when a flow down is not required by the clause itself.

It’s important to do your due diligence to understand the clauses that should flow down from the contract as a course of business on Federal contracts as well as understand the clauses that should NOT flow down. And it’s important from two perspectives. You want to be sure you are not being held to a requirement not required for performance AND you want to be sure any mandatory requirement is not left out of your subcontract.

If a flow down is not required, subcontractors can negotiate with the prime using the applicability language in the clause and the prescription for its use as found in the FAR to have it removed from the subcontract agreement. Easy enough.

But…what happens when the prime fails to correctly flow down a clause that is required to be in its subcontracts. And what happens to you -- the subcontractor -- when that occurs?

Some say the Christian Doctrine could potentially apply. The Christian Doctrine is a principle stating that if a contract clause is required by either statute (i.e., law), regulation, or Executive Order the required clause is automatically incorporated by operation of the law into any existing contract. This could imply that a clause in the prime contract that states it should flow down to the subcontract in its language is still binding on the subcontractor. However, that can depend on the nature of the clause.

At present there is no direct precedent where the Christian Doctrine has been explicitly used to hold a subcontractor responsible solely due to the prime contractor’s failure to include a required FAR clause. However, s subcontractor may find itself subject to certain obligations even if those were not explicitly stated in the subcontract, especially if the clauses involve important regulatory or statutory requirements; one example being payment of prevailing wages or a federal minimum wage to subcontractor employees. This this case, a subcontractor could face legal risk if it is assumed that it is not bound by certain FAR clauses simply because they weren’t included in the subcontract. Courts could still enforce these clauses based on underlying public policy.

While the prime contractor is ultimately held accountable for any failure to comply with contract terms and conditions, The prime contractor can amend the subcontract to include the missing clause. Subcontractors may need to negotiate with the prime for any changes such as increased costs, should that occur.

I highly recommend that you have an attorney you can contact who is versed in Federal contract law to review your subcontracts – particularly if you are new to Federal subcontracting – and advise you of your responsibilities so you operate within the law.

COMMON PITFALL #4 - COMMITMENT VS DELIVERY

A prime has asked you if you are available for some subcontract work. You’ve got several other commercial jobs and a few other subcontracts with other primes. You don’t want to miss the opportunity so you decide to try to make it work and agree to the prime’s schedule even though it will be tight. A few weeks later, you realize you can’t meet the prime’s schedule. You reach out to the prime and try to work out a schedule delay so you can finish the work.

When it comes to Federal work never ever EVER over commit and under deliver. It is the fastest way to get a bad reputation, and it not only impacts you but every other subcontractor on the job, your client (the prime), and the Government as well as the end user, which could be military members, veterans, or the public.

If you can’t meet a schedule, take a pass or negotiate a longer schedule up front. Build in contingency time and/or have a “Plan B” for not if, but when, delays occur and take you off your timeline and take the project off the critical path.

I highly suggest that subcontractors, like primes, create surge capability so that if another opportunity hits or a project delay occurs you can flex without fear of failure. This gives you practice for moving into prime contractor opportunities and builds a network of reliable subcontractors for yourself when that time comes.

COMMON PITFALL #5 - POOR MANAGEMENT & RECORDKEEPING

We talked about a best practice being the creation of a communication and coordination cadence with your prime. Projects can suffer from a lack of proactive management. And it can occur at any level. And management includes compliance with contract requirements from both a technical and operational perspective.

The same with recordkeeping. Most reporting subcontractors do on Federal contracts flows up through the subcontracting tiers to the prime. Waiting on the records of your lower-tier subcontractor or having the prime wait on you isn’t good.

You can perform the work well on a contract and may think that’s enough. But if you can’t manage your lower-tier subs well enough and/or keep accurate, complete, and organized records, it will leave the Government doubting your capabilities to one day migrate from subcontractor to prime. And they will remember you…but not in a good way

Now let’s go over five frequently asked questions I receive about subcontracting.

WHERE CAN I FIND A LIST OF FEDERAL PRIME CONTRACTORS?

There are a few great places to find this information (links at underlines):

SBA Directory of Federal Government Prime Contractors with a Subcontracting Plan -- List of all Federal prime contractors with a subcontracting plan requirement.
GSA Subcontracting Directory
DoT Subcontracting Directory
FAA Subcontracting Directory
DHS Prime Contractors List
GSA eLibrary -- Subcontractors can use this resource to identify potential prime contractors who may need subcontracting partners for GSA Schedule contracts.

WHERE CAN I FIND SUBCONTRACTING OPPORTUNITIES?

SAM.gov -- While it's mainly used by prime contractors to find federal opportunities, subcontractors can also use it to identify potential prime contracts that may require subcontracting. By searching for opportunities by NAICS codes, keywords, or specific agencies, subcontractors can identify prime contractors who might be looking for subcontractors.
SBA SubNet -- Is a database of subcontracting opportunities posted by prime contractors. This platform is particularly useful for small businesses looking to partner with larger primes on federal contracts.
APEX Accelerators (formerly Procurement Technical Assistance Centers (PTAC)) -- free or low-cost assistance to businesses seeking to compete in the government marketplace. They provide guidance on finding subcontracting opportunities and can connect subcontractors with prime contractors.
Direct outreach to Prime Contractors -- Large Federal Prime Contractors sometimes have their supplier portals, under which you can register for possible subcontract opportunities. Lockheed Martin, Northrop Grumman, Raytheon Technologies, Boeing, General Dynamics, BAE Systems, Leidos, L3Harris Technologies, SAIC, and Huntington Ingalls Industries are a few of the large contractors in the Federal marketplace with such portals

DO I NEED TO BE REGISTERED IN THE SYSTEM FOR AWARD MANAGEMENT (SAM.GOV) TO BE A SUBCONTRACTOR?

No. However, primes often use SAM to find a list of potential subcontractors. Being registered builds credibility since your business is vetted through the IRS TIN Match and the SAM Exclusions match processes. Registration gives you visibility to prime contractors, access to SBA SubNet, allows you to respond to critical FAR clauses such as choosing your business type (small, WOSB, SDVOSB, etc.), and representing and certifying to certain critical FAR flow down clauses like some we talked about (Section 889, etc.).

WHAT SHOULD I DO IF I HAVE AN ISSUE OR DISPUTE WITH THE PRIME?

Follow your subcontract agreement and the procedures outlined within it. Working within the bounds of agreed to dispute resolution through escalation chains, mediation, and arbitration before litigation, when possible.

Do not call the Contracting Officer or Federal Government to complain about your prime contractor. Without privity of contract, the Government has no authority or ability to pursue any recourse on the subcontractor’s behalf.

For example, if you have a claim against the prime and the prime is not willing to settle it, if it chooses the prime can sponsor the subcontractor’s claim to the Government for consideration. But it is not required that the prime sponsor the claim and the sub cannot present its own claim to the Government. Again, it gets back to that privity of contract thing.

There is one exception, however, to the don't-call-the-CO/KO guidance...

WHAT IF I HAVEN'T BEEN PAID BY THE PRIME?

If the prime contractor has failed to make timely payments and there is no resolution with the prime after multiple attempts, subcontractors can document the communications made (in detail) and, after seeking legal assistance, the matter can be reported to the Contracting Officer for assistance in resolving payment disputes (FAR 32.112-1).

The role of the subcontractor is vital in providing products and services to the Government. Primes can’t do it all. They rely heavily on subcontractors and an overwhelming majority of those subcontractors are small businesses.

Want to learn more about the role of the subcontractor? Check out our FedSubK Feature “Prime or Subcontractor: What to Know About Each Role” at https://www.fedsubk.com/post/prime-or-subcontractor-what-to-know-about-each-role.

September 7, 2024

FedSubK Feature: CPARS Secrets - Insider Tips for Maximizing Your Performance Ratings

Updated: Oct 1, 2024

Ever wonder why some contractors consistently win federal contracts while others struggle to get a single award? The secret often lies in past performance; how much they and their ratings. The system that collects and houses that information is the Contractor Performance Assessment Reporting System, or CPARS. Ratings in this system can make or break your chances of getting that Federal contract, but most contractors and consultants in GovCon don’t fully understand how to maximize it. I’m going to give you my insider tips that can elevate your game when it comes to your CPARS ratings – and your chances at contracting success.

First let’s cover some basics…

CPARS is the Government’s official source for past performance information (FAR 42.1501(b)). This system plays two roles:

(1) Collection of data about a contractor’s performance on a specific contract, and

(2) Provides source selection officials with valuable feedback from which to evaluate contractors for possible award of future contracts.

You can see why it’s something you might want to pay attention to, right?

CPARS ratings are required generally at least annually and at the time the work under a contract or order is completed (FAR 42.1502(a)). However, there are some thresholds that apply.

Single-agency contracts and orders exceeding the Simplified Acquisition Threshold (SAT) (presently $250,000[1]), at the contract or order level, as determined by the Contracting Officer (CO/KO).
Multiple-agency contracts and orders (i.e., GSA Multiple Award Schedule (MAS) contracts, Governmentwide Acquisition Contracts (GWACs), etc.) exceeding the SAT.
Construction contracts exceeding the threshold in FAR 42.1502(e) (presently $750,000[2]).
Construction contracts terminated for default regardless of dollar value.
Architect-Engineer services contracts exceeding the threshold in FAR 42.1502(f) (presently $35,000[3]).
Architect-Engineer services contract terminated for default regardless of dollar value.
When a modification increases the total award amount over one of the thresholds above, a past performance evaluation is then required for that contract.

The CO/KO typically serves as the Assessing Official (AO) and oversees the process of the collection of past performance evaluation information from technical personnel, program managers, Contracting Officer’s Representatives (CORs), or sometimes, the quality assurance office and/or end user of the product or service. Of these officials providing input, the COR is typically assigned as the Assessing Official Representative (AOR) who enters the proposed performance evaluation and preliminary ratings into CPARS.

Evaluations are source selection information, and they must be treated accordingly and protected from release in accordance with FAR 3.104. CPARS evaluations are also considered pre-decisional in nature because they are used to support source selections on an ongoing basis. The only people that can view ratings, narratives, etc. for a specific contract are personnel with a need to know and the contractor who is the subject of the evaluation. In addition, evaluations are not releasable under the Freedom of Information Act, or FOIA. CPARS ratings are retained and used for source selection purposes for three (3) years following the completion of the contract or order; six (6) years for Architect-Engineer and Construction contracts. But those durations aren’t as short as they might seem, and ratings can hang around longer than you might think.

For example, let’s say we have a five-year contract for services, with an annual reporting requirement. That means the Government completes a past performance evaluation every twelve months. At the end of our five-year contract, there are five evaluations entered in CPARS. The clock doesn’t start ticking on the retention period in CPARS until the contract completion date. All five of those evaluations will remain in CPARS for three years beyond the contract end date, meaning the first evaluation is actually in the system approximately eight (8) years.

That’s not anything to sneeze at if you have issues on a long contract and those issues, even after they are overcome, will likely end up documented in the annual CPARS evaluation and could follow your business for nearly a decade! Evaluations are meant to serve to motivate good performance by Federal contractors.

Let’s look at the elements of a CPARS rating and talk about the rating criteria used. This is where my secrets come into play.

The evaluation factors that must be used, as a minimum, for each past performance assessment are found in FAR 42.1503(b)(2).

Secret #1: You Must Continually Self-Assess During Performance & DOCUMENT IT

As a CO/KO and COR who evaluated contractor performance on simple orders to highly complex contracts, the specific things we are assessing about your performance don’t differ much. I’m sharing my checklist with you that I used for YEARS when evaluating contractor performance under each factor.

Technical Quality of the Product or Service

Did the product or service meet all technical specifications, standards, and performance requirements outlined in the contract? (FAR 42.1503)
Was the work completed accurately and without the need for excessive corrections or rework?
Did the contractor demonstrate the ability to identify and solve technical challenges or offer innovative solutions to improve performance or outcomes?
Was the contractor consistent in delivering a high-quality product or service over the course of the contract?
Was the work compliant with industry, safety, and environmental standards relevant to the contract?

Cost Control (not applicable to fixed pricing arrangements)

Was the work completed within budget?
Did the contractor demonstrate the ability to control costs without sacrificing quality or performance?
Did the contractor avoid cost overruns? If not, were they justified, documented, and proactively communicated?
How well did the contractor respond to budget or funding changes?
Did the contractor conform with standard earned value management and cost control processes?

Schedule / Timeliness

Were products or services delivered on time according to the contractual schedule?
Did the contractor meet interim milestones (e.g., phased deliveries, project stages)?
If delays occurred, did the contractor take proactive measures to mitigate the impact?
How quickly and effectively did the contractor resolve delays?
Did the contractor’s adherence (or failure) to the schedule affect the government’s mission or project outcomes?
If there were modifications or change orders on the contract, how effectively did the contractor adjust to revised timelines?

Management and Business Relations

How effectively did the contractor allocate and manage personnel, equipment, and other resources to meet the contract requirements?
How effectively did the contractor manage key personnel assigned to the project, including their experience, qualifications, and how well they meet contract requirements?
Did contractor responsiveness to staffing changes and its ability to replace personnel impact project performance?
How did contractor management adjust resources when project demands changed, or unforeseen issues arose?
How well did the contractor communicate effectively and regularly with the Contracting Officer and other government representatives?
Were timely responses to inquiries, requests for information, or problem-solving efforts received from the contractor?
Did the contractor engage proactively with the Government to identify and resolve issues before they escalated?
How efficiently and effectively did the contractor identify and address challenges, whether technical, operational, or logistical?
How willing and able was the contractor to implement corrective actions quickly and professionally?
Did the contractor comply with legal and ethical standards, including honesty, integrity, and transparency in business dealings?
To what degree did the contractor avoid conflicts of interest and adhere to ethical practices?

Small Business Subcontracting

Did the contractor manage subcontractors efficiently and effectively, ensuring they meet performance expectations, deadlines, and contract requirements?
Did the contractor perform oversight of subcontractor compliance with small business utilization goals, if applicable?
Did the contractor make a good faith effort to comply with the terms of their small business subcontracting plan, if applicable?
Was the contractor responsive to small business subcontractors in terms of resolving disputes or concerns raised during performance?
Did the contractor have any untimely payments to small business subcontracts?

Other (as applicable)

Were contractor reporting requirements completed timely?
Did the contractor have any trafficking violations, tax delinquency, failure to report in accordance with contract terms and conditions, defective cost or pricing data, terminations, suspension and debarments, or failure to comply with limitations on subcontracting?
Did the contractor adhere to Federal, state, and local laws or regulations that apply to the specific contract and work performed thereunder, including compliance with environmental, labor laws, and safety regulations?
How well did the contractor adhere to required security protocols, including physical security, information security, and compliance with cybersecurity regulations (e.g., NIST standards) and protect any sensitive or classified information under the contract?
Did the contractor incorporate sustainable practices, reduce environmental impact, and use energy-efficient technologies or processes (as applicable) during performance?

Early in my career, past performance evaluations were rated on an adjective scale similar to that in FAR Subpart 42.1503 today, but there were no standardized definitions for each. Agencies, not wanting to impact companies on future contract opportunities, would often default to the highest rating even though the contractor may have only met the requirements of the contract – and meeting the requirements is what they should be doing! COs/KOs could easily tell which agencies took a hardline approach when rating contractors more than others when viewed across the board. Unfortunately, none of that could be taken into consideration during proposal evaluations and many companies missed out on contract awards simply because of disparities between how agencies applied the adjective ratings. When Tables 42-1 and 42.2 were introduced into the FAR, this adjective rating scale suddenly became standardized across all agencies. It leveled the playing field again.

Secret #2: COs/KOs are Detail Oriented People But Sometimes Need Reminders

Now that FAR clearly outlines what the thresholds are to achieve each rating, you know what you need to do to get the ratings now, right? Eh, not so fast. I’ve heard contractors complain that they deserved an “Exceptional” and being very upset that they didn’t get one. Let’s take the definition of “Exceptional” from the FAR tables and use its corresponding note to break it apart.

“Performance meets contractual requirements…” This speaks for itself. Moving on...

“…and exceeds many…”

What contractual requirements were capable of being exceeded?
What does that look like under each evaluation factor?
Is it possible for each evaluation factor?
When you believe you have exceeded contractual requirements, you MUST—
- Clearly document the requirement you exceeded and how, and
- Make the Government aware of it DURING performance AS IT OCCURS.

“…to the Government’s benefit.”

What type of contractual requirement, if exceeded, would benefit the Government?
Can you quantify the benefit?
Was it a technical, schedule, or cost benefit?
Ask the Government if it feels it received a benefit and document the feedback received, when it was received, and from whom it was received.

“The contractual performance of the element or sub-element being evaluated was accomplished with few minor problems…”

Did you encounter any problems in the Government’s eyes?
Were they considered minor by the Government?
If you aren’t sure, check in with the Contracting Officer’s Representative or other technical points of contact that oversee the work and ASK.
Again, document the feedback.

“…for which corrective actions taken by the contractor…”

If the Government directed corrective action, was it accomplished to their satisfaction and do you have a record of that (i.e., email, meeting minutes, etc.)?
If you took corrective action, was it apparent to the Government?
Did you document the actions taken for the record?

“…were highly effective.”

Was corrective action highly effective in your eyes or the eyes of the Government?
Did you get feedback from the Government on their perceived level of effectiveness? If not, ASK.

To justify an Exceptional rating, the Government must be able to identify MULTIPLE significant events and SUPPORT how they benefited the Government. If there is only a singular benefit, it must be of such a magnitude that it alone constitutes the Exceptional rating. Also, there can be NO significant weaknesses identified. Not as easy as you thought to get an Exceptional rating, is it?

A Very Good rating doesn’t require that much less than an Exceptional. The only difference is that only SOME contractual requirements were exceeded. Still not any easy get, eh?

Now you know in detail what COs/KOs and CORs are looking at AND must also be able to substantiate with SUPPORTING DOCUMENTATION.

If you are keeping that documentation up yourself through self-assessments, you can share it in the form of an “Annual Contractor Self-Assessment” with the CO/KO and COR before the next rating period and just in time to refresh their memory. Chances are that info will influence their ratings and they will rely, at least in part, on your supporting documentation. Good acquisition people don’t stay in one place long and you will likely provide the new person the best record of the performance during the rating period.

Secret #3: A Satisfactory Rating Means You’ve Performed All Contract Requirements.

The very definition of a Satisfactory rating is “Performance meeting contractual requirements” with only minor problems or major problems that the contractor recovered from without impact to the contract or order. There is no shame in a Satisfactory rating. There is no contractual requirement to perform over and above the contract requirements, terms, or conditions. FAR states, “A fundamental principle of assigning ratings is that contractors will not be evaluated with a rating lower than Satisfactory solely for not performing beyond the requirements of the contract/order.” You cannot receive less than Satisfactory when all contract requirements have been met. Conversely, a Satisfactory rating is all you're entitled to if you don't meet and exceed at least some or many contractual requirements to the benefit of the Government, like we broke down above.

Secret #4: ALWAYS Respond to Your CPARS Ratings

I cannot stress this enough so I’m saying it again. ALWAYS Respond to Your CPARS Ratings! If you want to make a CO/KO or COR really annoyed…ignore it. Then complain about it later. Then complain when you get the next rating and it’s not any different. And then don’t respond to that rating either.

(Getting the point here?)

Assign a Contractor Representative to monitor CPARS ratings and coordinate contractor comments on the evaluation received. The CO/KO will tell you when it has been released in CPARS for your review and the system will notify you by email. Now the clock starts ticking. You will have up to 14 calendar days from the date of notification of availability in the system to submit comments, rebutting statements, or additional information.

Don’t agree with a rating?

Respectfully state why you disagree AND substantiate your rebuttal with documentation and timelines. Don’t complain or get personal no matter what. Tell your side of the story and why you see it from a different perspective. But remember, the ultimate decision on the performance evaluation and ratings received is the decision of the contracting agency.

Once finalized, copies of the evaluation including your contractor response and review comments, if any, will be retained as part of the evaluation. Tell your side of the story! These evaluations are used to support future award decisions! COs/KOs will read that entire record including your take on events. You’ll get more in the long run by respectfully telling your story than making it a scathing account of drama on the project and throwing people (Government or subs) under the bus. Don’t create a future problem that doesn’t make a difference now!

Get an awesome rating and think, “Why should I provide a response to it?” That’s part of our next and last secret…

Secret #5: Don’t Leave It to the Government’s Imagination

There are two possibilities here.

The first is, you aced your past performance evaluation, and you don’t think you need to respond. Wrong. Want to impress the Government on that future opportunity? Acknowledge the rating and talk about the ways the project worked well within your contractor team and with the Government personnel. Maybe even highlight some lessons learned. You’ll make a great impression that way and it shows you appreciate the Government’s time to provide that good rating, even when you deserved it.

The other is that you didn’t get the evaluation you thought you should, and you are silent; no response is found in CPARS. What happens when you don’t tell your side of the story in CPARS when that next opportunity comes along? Now you've left it up to the Government’s imagination and interpretation. Is that really what you want to do – let there be any doubt that you did your best? Don’t be silent. Don’t let someone assume. Tell your story yourself. It does make a difference, even with the worst ratings it matters. Stuff happens. Even the Government can appreciate that when it's reasonable.

Now you've got my CPARS secrets from my days as a CO/KO and COR! Use them well. Did any surprise you? Let us know!

[1] See Federal Acquisition Regulation (FAR) 2.101 Definitions for the current threshold after 10/1/2025.

[2] See FAR 42.1502(e) for the current threshold after 10/1/2025.

[3] See FAR 42.1502(f) for the current threshold after 10/1/2025.

August 8, 2024

Now Get Paid Faster Under Your GSA Schedule Contract

Updated: Dec 9, 2024

GSA Schedule Holders...Multiple Award Schedule (MAS) solicitation Refresh #22 was issued this afternoon (8/8/2024). You can find Refresh #22 at: https://sam.gov/opp/da6dacecb6b6481f85811f8fee9f733d/view

(Check out my prior LinkedIn post at https://lnkd.in/g-HB8jgw for all the changes in this refresh.)

The biggest (and BEST) change in this refresh "rights" what I've seen as a "wrong" for a long time.

You know that term in the contract that says you will accept the Government Purchase Card (GPC) ("P-Card") for payment? If you got paid by the Ordering Agency using the GPC, you couldn't recoup any card processing surcharges and fees to accept that payment...until NOW!

YES!!!

BUT...there's a process to do it. (And we expect that because, well, it's the Government.)

Refresh #22 allows contractors to add the processing fees they incur to accept the GPC as a payment method into the MAS prices offered on their schedule. They CANNOT be added at the order level.

So...adding GPC fees to schedule prices = an eMod.

I know, I know, eMods take time and cost money. BUT, this is a "win-win" for you.

(Hear me out.)

Before this refresh, processing fees came out of your bottom line (i.e., PROFIT), right?

Well, I have been advocating for this change for YEARS both inside Government and outside as a consultant. Agencies should not be able to arbitrarily choose to pay you using the GPC without allowing you to factor in the processing fees you must pay into your pricing to them.

There should be no "gotcha" that has you LOSING money. Period.

Refresh #22 solves that problem.

ALSO, the BENEFITS of being paid by the GPC to YOU are amazing!

✅ Not waiting for a 30-day billing cycle -- GET PAID THE SAME DAY in many cases!

✅ That fast payment IMPROVES CASH FLOWS, which...✅ INCREASES your CASH RESERVES,

✅ Giving you ACCESS TO more AFFORDABLE CREDIT, which in turn...

✅ ACCELERATES GROWTH opportunities, thereby...

✅ EXPANDING ACCESS to the Federal marketplace.

This is a HUGE win, particularly for small business schedule holders!

This will be implemented through the addition of a note to FAR clause 52.232-36, Payment by Third Party, the standard Price Proposal Templates (Read Me First tab) and MAS Modification Guidance on gsa.gov.

That note reads--

"1. Proposed prices must be inclusive of all costs associated with acceptance of the Governmentwide commercial purchase card (e.g., payment processing fees). Schedule contractors may not impose a surcharge at the order level for payment by Governmentwide commercial purchase card."

You got that, right?

You CANNOT impose a surcharge at the order level.

You MUST go through the eMod process to recoup these costs.

So why did the GSA add this now?

Well, there's a couple of reasons...

If you didn't know, the Government earns cash back on every purchase and payment made with the GPC. They use that money to maintain their card programs and buy items that are a bona fide need where appropriated money isn't available.

AND

The Government needs to start accelerating payments to small businesses under a final rule that was issued in the spring of 2023.

Using the GPC to make contract payments, particularly to small businesses, gets money into your hands faster and gets the Government more cash back.

WIN-WIN

Start getting those eMods submitted because I guarantee agencies will start using their cards to make payments in the near future, particularly GSA, and you don't want to be left with less in your bottom line.

What if your agency doesn't want to pay with the GPC? Offer them a discount off your rates equivalent to your processing fees and keep your pricing competitive.

Again, WIN-WIN.

Once your eMod is processed, if you want to be paid by the GPC, ask your contracting officer at the ordering agency about making that happen.

Take advantage of this opportunity! The Government is trying to expand its p-card use in a variety of ways. This is one of them.

These things don't come along often where everyone WINs! Be a winner!

(August 2024)

August 4, 2024

FedSubK NOW! Issue 14 - July 2024

This issue is archived at: https://wix.to/BuDvOjM

FedSubK Features in this newsletter include:

The End of FY Madness: Things Contracting Officers Want You to Know
Unsolicited Proposals - Share New, Unique, or Innovative Services and Products with an Agency without an RFP!

FedSubK NOW! Archives

No items found.

August 4, 2024

FedSubK Feature: The "Rule of Two" and the Rest of the Story

If you are a small business, you’ve probably heard that if there are two small businesses interested in a solicitation, the Government is required to set aside that opportunity for small businesses.

(INSERT BUZZER SOUND HERE)

Not so fast. It’s a little more complicated than that so we are going to break down what the “Rule of Two” means to you and when it comes in and works to your advantage.

Let’s start first with…

What is the “Rule of Two”?

The “Rule of Two” is inculcated in Federal procurement via the Federal Acquisition Regulation (FAR) and Title 13 of the Code of Federal Regulations (CFR). In essence it means that, over the micro-purchase threshold (see FAR Subpart 2.101), the Contracting Officer must determine that there is reason to believe that quotes or offers will be obtained from at least two or more responsible small business concerns which are competitive in terms of fair market price, quality, and delivery.

When Does the Rule of Two Apply?

Simplified Acquisitions. Simplified Acquisitions are those opportunities where the total aggregate dollar value does not exceed the Simplified Acquisition Threshold (SAT), presently $250,000. The Federal Acquisition Regulation (FAR) Subpart 19.502-2(a) says that the Contracting Officer shall set aside simplified acquisitions for small businesses unless there is NOT a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of fair market prices, quality, and delivery.

Over the Simplified Acquisition. These actions are anything over the SAT (over $250,000 in total aggregate dollar value). FAR Subpart 19.502-2(b) says that the Contracting Officer shall set aside any acquisition over the simplified acquisition threshold for small business participation when there is a reasonable expectation that-

(1) Offers will be obtained from at least two responsible small business concerns; and

(2) Award will be made at fair market prices.

Total small business set-asides shall not be made unless such a reasonable expectation exists.

Task or Delivery Orders under Multiple Award Contracts. The Office of Management and Budget (OMB) issued a memo titled, “Increasing Small Business Participation on Multiple-Award Contracts” (1/25/2024) requiring that, except for orders citing an exception to competition (as allowed in accordance with FAR Subpart 16.505(b)(2), exceptions to fair opportunity, or agency procedures), that orders over the micro-purchase threshold should be set aside for small business contract holders “…when the contracting officer determines there is a reasonable expectation of obtaining offers from two or more small business contract holders under the multiple-award contract that are competitive in terms of market prices, quality, and delivery.”

The Department of Defense (DoD) also issued its own memo (4/19/2024) stating,

a. “Under multiple-award contracts, acquisition teams should consider setting aside orders over the micro-purchase threshold (MPT) for small business contract holders (to include specific small business socio-economic set asides as applicable) when the contracting officer determines there is a reasonable expectation of obtaining offers from two or more small business contract holders under the multiple-award contracts that are competitive in terms of market prices, quality, and delivery.”

b. “If there are not at least two small business contract holders that are competitive for the requirement, the contracting officer is reminded to document the basis for not using an order set-aside via a DD Form 2579, "Small Business Coordination Record" in accordance with DFARS 219.201(c)(10)(B), agency procedures and the referenced OMB memorandum.”

Partial Set Asides to Small Businesses. Whan an acquisition is not appropriate for a total small business set-aside, but a logical portion or portions of the work (except for construction) lends itself to a partial small business set-aside, the “Rule of Two” is also applied. FAR 19.502-3(a) mandates that the Contracting Officer shall set aside that portion or portions exclusively for small business participation when—

(1) Market research indicates that a total set-aside is not appropriate (see 19.502-2),

(2) The requirement can be divided into distinct portions,

(3) The acquisition is not subject to simplified acquisition procedures,

(4) Two or more responsible small business concerns are reasonably expected to submit offers on the set-aside portion or portions of the acquisition that are competitive in terms of fair market prices, quality, and delivery,

(5) The specific program eligibility requirements identified in this part apply, and

(6) The solicitation will result in a contract other than a multiple-award contract (see 2.101 for definition of multiple-award contract).”

What Does the Contracting Officer Consider When Applying the “Rule of Two”?

Going back to the rule, let’s break down what the Contracting Officer’s considerations must be.

Are there two or more responsible small business concerns? The Contracting Officer may look at procurement history, past and current market research using the methods outlined in FAR Part 10 given the scope, complexity, and value of the action in question, and determine if the work falls within that which small businesses can reasonably perform, applying the general standards at FAR Subpart 9.104-1. The general standards must all be met by prospective contractors:

(a) Have adequate financial resources to perform the contract, or the ability to obtain them.

(b) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments.

(c) Have a satisfactory performance record. A prospective contractor shall not be determined responsible or nonresponsible solely because of a lack of relevant performance history, except as provided under FAR Subpart 9.104-2.

(d) Have a satisfactory record of integrity and business ethics.

(e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors).

(f) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them.

(g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations.

Small businesses must also be determined capable of meeting the limitations on subcontracting, as required by the type of work performed (i.e., supplies, services, construction).

Are those same small business concerns expected to submit offers? The Contracting Officer may determine if those small businesses have submitted offers in the past for same/similar work and the likelihood they would submit an offer now, to include seeking statements of interest.

These two questions above are why it is SO important that if you are remotely thinking this opportunity is something you could perform as a small business prime or could team with another small business to perform, you MUST answer the RFI. Those RFI responses inform the answers to these two questions.

Will the offer be competitive in terms of fair market price(s), quality, and delivery? If the small business has submitted an offer in the past for same/similar work, the Contracting Officer may choose to look at the competitiveness of the pricing submitted at that time. The Contracting Officer may explore contractor websites, look at current Federal and private sector award info, catalog or market pricing available, or current contract pricing (i.e., GSA Schedule, other agency contracts, etc.).

Are other factors considered?

Shifting economic or industrial factors may result in changes in the market since the last purchase was made.
The Contracting Officer should consider additional market research using the methods in FAR Part 10, as appropriate for the dollar value of the action, before locking in the acquisition strategy.
The Contracting Officer may also look at SAM.gov exclusions, responsibility, and qualification information.
Risk if offers are not received from at least two responsible small business offerors. There could be reprocurement costs if the single offer is not responsive (i.e., does not meet the requirements set forth in the Request for Quote (RFQ) or Request for Proposal (RFP).

o In DoD in particular, if only one offer is received in response to a competitive solicitation that the offer but comply with statutory requirements for certified cost or pricing data (see DFARS Clause 252.215-7008 Only One Offer).

o If less than 30 days was provided for the receipt of offers and only one offer was received, the Government may be required to revise the opportunity to promote more competition and resolicit for an additional 30-day period. This could add risk depending on the duration of the funds available for obligation and/or mission requirements.

What is with all the “Shalls” and “Shoulds” and “Musts” and “May”?

Did you pick up on those throughout this article? Well, those tell you what the Contracting Officer is directed by the regulation to do versus what they only need to consider doing. “Shall” and “must” are mandatory; “should” and “may” are not.

Those last two are where the “gray area” of contracting comes into play and the Contracting Officer’s judgement is used to determine if they need the info or not.

And this is how the Rule of Two doesn’t always mean that a solicitation will have an acquisition strategy that is a small business set-aside even when two small businesses appear to be interested and qualified. A simple rule isn’t always as simple to follow when subjectivity is part of the process and can come into play. The Contracting Officer doesn’t make these decisions in a vacuum; they have a team of advisors like the Project Manager, agency Small Business Specialist, SBA PCR, and others. Together, they will decide how these factors apply and are met by small businesses as it relates to the acquisition strategy for an opportunity based on their collective knowledge of the industry, the market, and competition pool and its competitiveness.

And as Paul Harvey used to say…”now you know the rest of the story.”

(Aug 2024)

August 4, 2024

FedSubK Feature: Lowest Price Technically Acceptable (LPTA) - What is it Good For? Absolutely Nothing When Not Used Correctly.

Who needs a quiet Sunday? I guess I decided I didn’t since I got a slew of questions related to my response to Jackie Robinson-Burnette’s post on LPTA a while back where she posted a picture of a partial started house addition with a blue tarped roof with the tag line “Covered Deck. Lowest Priced Technically Acceptable”. (By the way, great picture, Jackie. It illustrated the concept most people have about LPTA perfectly. You can find Jackie’s post and my comment here.)

If you know anything about me it’s--

(1) I love a chance to talk about the FAR, and

(2) source selection is one of my favorite topics because it was my favorite thing to do as a Contract Specialist and Contracting Officer.

And I did A LOT of source selections. So much so I was THE person that reviewed and critiqued all evaluation criteria written for service contracts within my branch, division, or business line at the three agencies where I worked. I was able to write evaluation criteria that were protest-proof, and I trained evaluation teams on how to evaluate criteria correctly and document their evaluation in such a manner that there were no protest gaps. I was good at it because I always wrote / reviewed solicitations from the perspective of not only the Government but the industry perspective and how it could be interpreted. This allowed us to shore up gaps before moving forward.

And this takes me back to one of the most controversial and polarizing things in source selection, use of the Lowest Price Technically Acceptable (LPTA) evaluation method. If you’ve been in the Federal marketplace for any amount of time you know what it is and the history behind its popularity and bad rap. For those that don’t, let’s go over it quickly.

What is LPTA?

FAR Subpart 15.101-2 covers the LPTA process and states LPTA is a source selection process that is right for use when the best value is expected to result from selection of the “technically acceptable proposal with the lowest evaluated price”. In the case of LPTA, cost tends to be the driver in the selection since technical superiority is not desired, only that the contractor meets a minimum acceptability threshold as set in the solicitation. The solicitation will also specify the award will be made on the basis of the lowest evaluated price of proposals meeting or exceeding the acceptability standards for non-cost factors.

What does that mean? Ultimately, if you meet the technical thresholds set across the board and your price is the lowest, you win! It’s a way to verify that a company can meet minimum technical requirements though budget is the true driver for the acquisition.

So, let’s break that down a little more.

Technical Acceptability. The level of technical acceptability is determined by the Government and evaluation factors must describe technical acceptability in terms of objective measures and/or standards. When evaluating only “Pass/Fail”, “Go/No Go”, or “Green/Red” scores are used. To be among offerors considered for contract award, an offer must receive a “Pass”, “Go”, or “Green” in every factor and subfactor. Those offers move forward for the evaluation of price. It only takes one “Fail”, “No Go”, or “Red” rating and the offer is eliminated from further consideration. Because there is no subjectivity in this type of evaluation method, offers are not ranked in terms of technical superiority.

Conversely, when using the tradeoff method, factors are written such that subjective analysis and review results in various degrees of technical acceptability which are expressed as adjectival ratings, colors, or numeric scores within a range. A Competitive Range is established and only those offers with the most likelihood of award continue on into negotiations with the Government.

While there is no room for subjectivity in the LPTA technical review, trust me, evaluators will try to sneak it in. For example, they will use ratings like “Pass++”, “Go – “, and “Bright Green”. And you guessed it, that doesn’t fly. They get sent back to the evaluation room to do it all again and put offers clearly into one of the two categories for every factor.

In LPTA, those offers that meet the technical acceptability thresholds then moved on to the price evaluation.

Lowest Evaluated Price. Notice the word “evaluated”. This means that the agency may review the price along with any other price factors as stipulated in the solicitation for those offers that achieved a “Pass”, “Go”, or “Green” in all technical factors.

In some instances, the term “evaluated price” means the actual price offers. But in other instances, the Government may add other price factors into the mix (and as disclosed in the solicitation) to arrive at an evaluated price, or a price that may not reflect the actual price(s) proposed but is used to determine the awardee.

Evaluated prices are ranked in order from low to high. The technically acceptable offer with the lowest evaluated price is the apparent contract awardee.

When is LPTA Used?

It differs for Department of Defense (DoD) and non-DoD agencies. Section 880 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 states that, except for DoD, LPTA shall only be used when ALL the below are met—

(1) The minimum technical acceptability requirements can be comprehensively and clearly described.

(2) There is no realized, or only minimal, value from a proposal that exceeds the minimum technical or performance requirements.

(3) Technical proposals will require no, or only minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal.

(4) There is a high degree of confidence that reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit.

(5) The lowest price reflects the total cost, including operation and support, of the product(s) or service(s) being acquired.

(6) The Contracting Officer determines in writing the circumstances that justify the use of the LPTA process.

In the same law, except for DoD, Contracting Officers are directed that they shall AVOID, to the maximum extent practicable, the use of LPTA for procurements that are predominantly for the acquisition of—

Information technology services,
Cybersecurity services,
Systems engineering and technical assistance services,
Advanced electronic testing,
Audit or audit readiness services,
Health care services and records,
Telecommunications devices and services,
Knowledge-based professional services,
Personal protective equipment, or
Knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.

The Defense FAR Supplement (DFARS) Subpart 215.101-2-70 states the same rules apply within DoD but adds* that the use of LPTA shall also only be when—

No, or minimal, additional innovation or future technological advantage will be realized by using a different source selection process,
Goods to be procured are predominantly expendable in nature, are nontechnical, or have a short life expectancy or short shelf life.
The contract file includes a determination that the lowest price reflects full life-cycle costs of the product(s) or service(s) being acquired.

*(as amended by Section 822 of the NDAA for FY2018 (Pub. L. 115-91))

In addition, DoD outlines the following prohibitions:

Contracting Officers shall not use the lowest price technically acceptable source selection process to procure items designated by the requiring activity as personal protective equipment or an aviation critical safety item, when the requiring activity advises that the level of quality or failure of the equipment or item could result in combat casualties.
In accordance with section 832 of the National Defense Authorization Act for Fiscal Year 2018 (see 10 U.S.C. 4232), contracting officers shall not use the lowest price technically acceptable source selection process to acquire engineering and manufacturing development for a major defense acquisition program for which budgetary authority is requested, beginning in fiscal year 2019 and beyond.
Contracting Officers shall make award decisions based on best value factors and criteria, as determined by the resource sponsor (in accordance with agency procedures), for an auditing contract. The use of the lowest price technically acceptable source selection process is prohibited (10 U.S.C. 240f).

Is Past Performance Evaluated under LPTA?

Unless the Contracting Officer documents the file in accordance with FAR Subpart 15.304(c)(3)(iii) that past performance is not an appropriate evaluation factor for the acquisition, it will be evaluated. ed not be an evaluation factor in lowest price technically acceptable source selections.

If the Contracting Officer elects to consider past performance as an evaluation factor, it will be evaluated like any other solicitation in accordance with FAR Subpart 15.305 but there will be no comparative assessment made. The same ratings of "Acceptable", "Unacceptable" (or similar), and "Neutral" (for no record of past performance) will be used.

If the Contracting Officer determines that a small business’ past performance is not acceptable, the matter shall be referred to the Small Business Administration (SBA) for a Certificate of Competency (COC) determination, in accordance with the procedures at FAR Subpart 19.6.

How an LPTA Evaluation is Conducted.

As is standard for all source selection procedures, the technical and price evaluations are conducted separately by different teams called the Technical Evaluation Board (TEB) and the Price Evaluation Board (PEB), who combined are known as the Source Selection Evaluation Board (SSEB). The TEB and the PEB do not show the findings of their team to the other and non-disclosure agreements are signed by all evaluators and non-voting board members (i.e., advisors).

After the Boards receive their training on how to conduct the evaluation, in accordance with the Source Selection Evaluation Plan (SSEP) (which is developed prior to the receipt of proposals), the TEB will receive copies of each offer and worksheets to document an independent review and assessment of each offer in terms of meeting the technical acceptability thresholds of each factor (and subfactor). TEB members will individually document their rationale and write down the pages of the offer and quote offer language to substantiate their position.

Once the individual reviews by TEB members are completed, the TEB will meet as a group and discuss their individual ratings and rationales until they come to a consensus evaluation rating and agree on the supporting documentation within the offer (or missing from the offer) for their findings. Typically, when using the LPTA method, once a “Fail”, “No Go”, or “Red” rating is received by an offer it is documented and the offer removed from further review and consideration for award without the remaining factors / subfactors being evaluated. Review of all factors continues for the remaining offers until all offers remaining are either eliminated from further consideration or they have received “Pass”, “Go”, or Green ratings on all factors.

The TEB completes consensus rating sheets. A final consensus TEB report of findings is prepared to summarize the process, individual and consensus ratings, and any key discussions and decisions made by the TEB, any dissenting opinions, and to summarize the outcome. The consensus evaluation report with all supporting documentation (to include individual and consensus worksheets and notes) is provided to the Contracting Officer for review and feedback.

The PEB will do its separate evaluation related to the price requirements of the solicitation similarly to the process used by the TEB (i.e., individual reviews, then by consensus, documented and a report written). Upon completion, a PEB consensus report is created and provided to the Contracting Officer, if the Contracting Officer did not take part in the price review directly.

The Contracting Officer then reviews both reports and the supporting documentation, discusses any discrepancies found, asks for more information or documentation where needed, and then writes the Source Selection Decision document outlining the process, each Boards’ findings, and the contract award decision. This decision document is then signed by the Source Selection Authority (SSA) which may be the Contracting Officer themselves but may be one level above the Contracting Officer when certain dollar thresholds are met.

Give Examples of LPTA Technical Evaluation Criteria.

“Vendor shall submit a copy of the certification documenting they are a current licensed KDHE UST contractor and tightness tester. Failure to submit this certification will cause the vendor to be rated technically.”

“Contractor shall name and provide for least one currently certified Diagnostic CT/Radiological Technologist available for the duration of the contract for the work hours shown. Include all required information as listed below with supporting credential documentation as listed in the Statement of Work. Failure to provide any document in the personnel package will result in this factor being rated as “Unacceptable.””

“The Altitude Simulation Unit to be provided must meet the following product specifications:

o Interior dimensions (minimum dimensions): 15” x 15” 15”

o Exterior dimension (maximum dimensions): 60” (W) x 30” (D) x 30” (H)

o Pressure range (minimum): 1,000’ – 8,000’

o Features a controller unit that will monitor pressure within the chamber, recognize when pressures have diverged from a given setting, and then re-pressurize as needed.

o Chamber fitted with glove access for use while pressurized.

o Whole system needs to include the pump, controller unit, and chamber.

Failure to provide a specification sheet for validation of these requirements will result in the elimination of your offer from further consideration.”

Can a Solicitation include both LPTA and Other Evaluation Criteria?

Yes, however, it is not a recommended practice. This occurs most often when a requirement must be verified through submission of a document such as a certain certification, insurance rating, or other industry standard.

Is the LPTA Evaluation Method Being Used Successfully by Government?

Well…that’s THE loaded question and where the LinkedIn post by Jackie Robinson-Burnette and my answer takes us. My opinion is--

The Government uses LPTA.
The Government currently awards contracts using LPTA methods.
BUT (and it's a big one) the Government isn’t doing it correctly.

What the Government labels as LPTA criteria really isn’t measurable simply using “pass/fail” ratings. This is why TEBs tend to play around with ratings to find a way to describe for the Contracting Officer the degrees in which offers vary. This is, as Randy Lange wrote in his comment to the post, “…LPTA disguised as “best value”.” And it drives me crazy!

There are also several experiences on both sides of the fence -- industry and Government -- and takes on it. From the Government taking the easy way out, Contracting Officers not having the time to babysit Project Managers who cannot come up with objective measures, and industry bystanders who have been battle-worn by the process when it’s not deployed correctly.

Now what do you think? What is LPTA good for? Absolutely nothing? There are still very good and reasonable use cases for LPTA, when done right!

Regardless of where you stand on the LPTA debate, now you know what LPTA is supposed to be good for and how it is supposed to work. But until the Government can use it correctly, LPTA should be used for absolutely nothing.

(August 2024)

Tags:

LTPA

July 5, 2024

FedSubK Feature: The End of FY Madness: Things Contracting Officers Want You To Know

Updated: Dec 6, 2024

It's that time of year when I start reflecting on end of FY activities. For decades, I worked 60-70 hour weeks starting right after the July 4th holiday through September 30th. It was a grind and I'm not sure if industry necessarily understands, let alone appreciates, the mountains that get moved so that contracts are awarded by 11:59 pm on that last day, September 30th. (And, yes, I've signed my share of contracts at that very last moment.) I thought this year I'd share all the things I wish industry knew from the insiders perspective on what happens during an end of FY in the Federal contracting offices in every agency across the country.

Purchase Request Cutoff Dates

The purchase request package is the trigger to start an acquisition. It answers the six basic questions a KO (Contracting Officer, remember) needs in order to determine their next course of action:

What is the scope of the work being procured (e.g., services, supplies, construction, R&D, utilities, etc.)?
What is the random order of magnitude (ROM) estimate for the entire effort?
What type of funds are being used (e.g., one-year, two-year, no-year), are they available, and if so, what is the committed amount (i.e., the amount fenced specifically for this contract)?
What is the duration of the scoped effort?
When does work need to begin?

Every contracting office sets dates by which requiring activities must have their completed purchase requests submitted in order to guarantee award by September 30th. The dates vary by type of action and dollar value based on the processing time required but generally speaking the customary cut-offs are--

July 1st for large negotiated contracts,
August 1st for negotiated task orders, and
August 15th for all other small dollar actions.

This gives the Chief of Contracting a known workload. If only it were that easy.

A Typical Day in the Life of a Chief of Contracting at the End of FY.

It goes something like this:

It's July 20th. The Commanding Officer (CO in DoD) has met with a customer agency and they just completed their scoping work on a very large key project for critical recurring services.
He / She promised the customer in that meeting that we (i.e., my office) will have it awarded by September 30th.
The project manager tells the Contracting Officer (KO in DoD).
The KO tells me (Chief).
I call the CO (Colonel) and say, "Sir, we have a July 1st cutoff for actions of this type and size that require a formal acquisition and are a competitive negotiated acquisition."
Silence on the phone. We both know how it happened. They are a habitually late customer. It's not the first time and it won't be the last.
The Commander promises my KO will have a complete purchase request package in a few days.

Tick-tock. Tick-tock. Days and more days go by. It's now August 1st and no purchase request package.

How many times do you think this same scenario happens in the last three months of the fiscal year? A few? A dozen? Try many times a week.

Are you starting to see how Requests for Proposal (RFPs) end up being released with short fuses for offer receipt dates? If not, let's talk about...

Procurement Action Lead Times (PALTs).

The PALT is the time between the initiation of a procurement action and the award of the contract. Most types contract actions have a designated PALT duration within which an award should be made. However, the more time lost early in the PALT by the program office or others in reviews and approvals is less for the Contracting Officer later in the process.

The simplified run down of what a Contracting Officer has to fit within the PALT to get every new contract action on the street, regardless of dollar value, is:

Receive a complete purchase request package (e.g., estimates, scope, technical specifications, and special instructions) -- the preparation of which may or may not count against the PALT, depending on agency policy.
Conduct market research.
Develop an acquisition strategy and possibly a formal written acquisition plan (depending on that ROM estimate and use of existing contracts).
Prepare bid, quote, or solicitation documents.
Obtain pre-bid/pre-quote/pre-solicitation approvals and legal sufficiency concurrence.
Issue a pre-solicitation notice (when required).
Issue the bid, quote, or solicitation.

PALT also includes the offer/proposal period, answering questions during the solicitation period, review of offers, training and overseeing technical and price evaluation boards, documentation of findings, contract formation, award, unsuccessful offeror letters, debriefings, and even a potential protest.

The minimum PALT for the most simple negotiated new contract is 60 days with half of that being the offer / proposal period.

Then there shorter PALTs for task orders and purchase orders at lower dollar values, and other types of purchases (i.e., Blanket Purchase Agreements (BPA), BPA calls, Basic Ordering Agreements (BOAs)), and no PALT for micropurchases. Those also have their own buying process, though not as involved as a new contract. These types of actions tend to pop up out of the blue even later than contracts because people think that smaller dollars equals fewer headaches. Not so.

Getting Back To Our Scenario...

Eventually the procurement package arrives on August 12th. Now the Contracting Officer has to squeeze their work, a 30-day offer/proposal period, evaluation, and award into less than 60 days. Near impossible.

AND

That same Contracting Officer has multiples of these types of actions on their desk at the same time. One action gets awarded and the celebration is short because another is immediately added to your plate.

All which have to be awarded by 11:59pm on September 30th.

Starting to feel panic setting in? Good, because now you can begin to understand the life of a Contracting Officer and Chief of Contracting at the end of EVERY FISCAL YEAR.

And exceptions to the cutoff dates get made over and over again.

I've had my own staff say, "Can't you push back?" Yes, I can. But as a Chief of Contracting you make exceptions early when risk of untimely award is low. You hold your cards for when leadership tries to force that last minute big contract or two into the pecking order when it is far too late to be successful and risk of no award is greatest. And it always happens.

As a Chief, you watch the workload, push people on status and deadlines weekly, monitor overtime, and watch for employee burnout. Then you shift workload as needed based on skill sets. It's non-stop balancing act taking into account remaining time, staff skills, employee morale, agency mission, and public funds. And it's a grind.

So...Why Do Contracting Officers (COs/KOs) Get A Bad Rap?

Bottom line, here are the facts about COs/KOs and Contract Specialists this time of year.

They hate late RFPs and short offer periods just like you. The scenario above happens constantly through the end of FY. So when a RFP drops late, know that COs/KOs aren't doing it for the fun of it. And they aren't making up their time on your time. It is simply that there isn't enough time and if you want the contract (and they want to award the contract on time) everyone has to make it work somehow.

They are the "Enforcers" of Federal procurement. (And yes, my nickname as a CO/KO was "The Enforcer".) Because of this enforcer role, COs/KOs deal with a lot of people that become rude very quickly when they don't get their way. It gets old really quick. Be the one nice person in their day and they will remember you. Honey, not vinegar.

The "End of FY Email Deluge" is H-E-Double Hockey Sticks. Quarter 4 of any FY is NOT (I repeat, NOT) the time to do a huge marketing push at a CO/KO if you haven't done any work for that agency before and don't have an existing relationship. If you haven't done your marketing by this point in the FY, work on your strategy for Quarter 1 of the next FY. Sure, you can send an email or two and let them know you are there if they need a vendor for a last minute purchase order in your area of expertise, or a micropurchase (read my blog on those small actions that are prevalent at the end of FY). Bad timing and pushiness doesn't start any relationship off well.

Our Lips Are Sealed. This 80's song is the "Go-Go" motto of COs/KOs and Contract Specialists year round but especially during end of FY procurements. Why? Risk of jeopardizing a contract award with no time left to recalibrate. If a CO/KO says they can't give you any info, it applies to everyone calling about that same project. It goes back to the rules (which they don't make and only enforce). And they understand it can be frustrating. It can be for them, too.

Money gets tighter the closer it gets to September 30th. When it comes to budgets and funding, COs/KOs don't control any of it. If you worked long hours on a proposal to get it submitted in a matter of days (or hours) only for project funds to never materialize, you aren't the only one disappointed.

COs/KOs and Contract Specialists are constantly juggling the use of multiple Federal systems and tools. Market research tools, SBA Dynamic Small Business Search (DSBS), contractor portals, eOffer and eMod systems, SAM.gov and its Contract Opportunities, contract writing systems, financial management systems, invoice and payment processing, GSA eBuy, GSA Advantage!, Federal Procurement Data System (FPDS), Contractor Performance Assessment Reporting System (CPARS), and more. And each system has workarounds because systems development doesn't keep up with rulemaking and policy. Sounds sort of backwards, right? It does to them, too.

They are not policy experts, but COs/KOs live and die by it. Read the FAR or any FAR supplement. Now you see my point. Enough said.

The sacrifices are big. Only now, in their 30s, have my daughters told me how much of their childhood I missed as a single mom while climbing the ladder, going to college at night, TDYs to negotiate and oversee contracts, and working 60-70 hour weeks for no less than 25%-30% of the year as a CO/KO and Chief of Contracting. I wish I could get it back. No one can. Contracting jobs age people fast. People get sick from the stress. I know the extremely high level of stress over many years and deploying to Afghanistan for several months in a contingency contracting environment contributed to my own cancer diagnosis at age 42 within two months of my return from overseas. I had no prior family history. This happened as I reached my dream job as a Chief of Contracting. And I worked every day while going through treatments except chemo days and a few days after surgeries. I've seen Contract Specialists, Contracting Officers, and the technical folks that support them take computers to hospitals to work while their kids go through leukemia treatments, come back to work the day after a funeral for a loved one, hold negotiations on the afternoon before their wedding that night. All to get it done. They do superhero things at the end of FY, but they are human.

What I'm Trying to Say is...

Be kind at the end of FY. Thank a CO/KO and Contract Specialist for their time, their hard work, and for their service to the public. They are the stewards of the public's funds and they take that job very seriously.

They will do it all again next year, and the next year, and the next knowing what they know of the workload, obstacles, challenges, and successes. And now you know too.

Signed,

A former superhero that is human, too.

References:

Check out the fedsubk.com/abou t page for a small sliver of the experience that informed the above.

July 5, 2024

FedSubK NOW! Issue 13 - June 2024

Updated: Aug 4, 2024

This issue is archived at: https://shoutout.wix.com/so/a2O-_wN1v?languageTag=en

Featured articles:

Now What? My Offer was Excluded from Further Consideration
Post Award Compliance - Thinking Beyond the Win

FedSubK NOW! Archives

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June 9, 2024

FedSubK Feature: Post Award Compliance - Thinking Beyond the Win

It’s been a long road. Registration in SAM.gov. Applications for SBA certification(s), when you’re eligible. Capabilities Statements, researching historical awards, cold calls, and cold emails. Conferences, handshakes, and more calls and emails. After responding to Requests for Information (RFIs) and preparing submissions under Requests for Quote (RFQs) and/or Requests for Proposal (RFPs), you get your first WIN! You are now a Federal prime contractor!

Maybe it’s a small contract, or maybe not. But now that you have your foot in the door with your first win, don’t forget that performance is not only about the scope of work but also about compliance with Federal procurement policies AND reporting that compliance to the Contracting Officer and others. What you do before the contract award to pre-position your company for compliance with all those contract clauses is just as important to your overall success as a Federal contractor.

Let’s review where we find those in the solicitation – since again, you want to start your preparation BEFORE you win the contract, not after you start performance.

In the FedSubK Feature from January 2024, Finding Your Way Around a Federal Solicitation, and following the Uniform Contract Format (UCF), you’ll find clauses that you must comply with during performance in the following sections:

Section D, Packaging and Marking. Provides packaging, packing, preservation, and marking requirements, if any, specific to the agency or end user’s needs.

Section E, Inspection and Acceptance. Includes inspection, acceptance, quality assurance, and reliability requirements as outlined in FAR Subpart 46.2 Contract Quality Requirements. Other higher-level standards applicable to the work, such as International Organization for Standardization (ISO), American Society for Quality (ASQ)/American National Standards Institute (ANSI), National Institute of Standards and Technology (NIST), and others, will also be indicated.

Section F, Deliveries or performance. Specifies the requirements for time, place, and method of delivery or performance.

Section G, Contract Administration Data. Includes accounting and appropriation data (if not elsewhere included) and contract administration information like reporting requirements and invoicing instructions.

Section H, Special Contract Requirements. Includes special contract requirements that are not standard FAR clauses or those from a FAR supplement required to be included in other sections of the solicitation. Examples of special contract requirements are security, badging, facility access, task order award processes under multiple award contracts, key personnel requirements, and min/max order thresholds.

Section I, Contract Clauses. Houses standard FAR clauses and those required by agency FAR supplements as appropriate for the requirement, as required by law.

Section J, Attachments. Includes any applicable Department of Labor (DOL) wage determinations and for the Department of Defense (DoD), Data Item Descriptions (DIDs) and Contract Data Requirements Lists (CDRLs).

Remember all those representations, certifications, and other assertions you made in SAM.gov about your business? You know the ones. Is there a parent company that owns your business? What were your gross receipts? Well, a large majority of those provisions are represented by a corresponding clause in the resulting contract that requires compliance of some sort, too.

Some examples of compliance and reporting requirements that you’ll have as a Federal prime contractor are:

✅️ notifying employees of their rights under a Federal contract (i.e., EEO, whistle-blower, prevailing wages, etc.),

✅️ documenting and tracking costs from and the hours expended by employees covered under Service Contract Labor Standards (SCLS) for Service Contract Reporting,

✅️ assuring that new telecom doesn't include prohibited equipment,

✅️ explaining the Government TikTok ban to employees,

✅️ paying wages and fringe benefits in compliance with Department of Labor prevailing wages,

✅️ tracking limitations on subcontracting between the work you and your subs perform,

✅️ submitting employment reports on veterans,

✅️ acquiring energy efficient and green products under your contract,

✅️ complying with the Buy American Act,

✅️ using invoice formats and submission tools that make your head spin,

✅️ other agency-specific background, badging, security, cybersecurity, and reporting at a variety of intervals depending on agency requirements, and more.

If you are a GSA Schedule Holder, you can also add monthly / quarterly reporting on sales and Industrial Funding Fee (IFF) tracking, collection, and remittance to GSA and the effort can pile up fast. GSA has created a page that contains a list of post-award compliance requirements that can be found here.

If a little panic is starting to set in, now is the time to act. If you’ve already got a Federal contract and you’re not doing some of those things, you're well behind the power curve. If you are still waiting for that first contract, now is the time to have a plan for how to comply. Don't freak out. PLAN! NOW!

▶️ Read the solicitation and extract compliance requirements from the sections identified above.

▶️ Determine the resources you need to successfully comply and report in a timely manner.

▶️ Study similar solicitations and start building a Corporate Compliance Plan for Federal sector work BEFORE you win that first contract.

Some AI tools on the market now can take a solicitation and digest it down into a compliance matrix. If you subscribe to a tool or you are shopping around, ask if it can generate a post award compliance matrix. Other AI tools dump every “shall” and “must” statement into a table. That’s not helpful to anyone. (Check out FedSubK's checklist to assess your readiness for using AI tools for more things to ask yourself and at a demo.)

When it comes to compliance, another thing you must be aware of is that many of the clauses are required to flow down to subcontractors. Except for clauses that incorporate DOL wages, if a clause requires subcontractor compliance, it will state it in the last paragraph of the clause and indicate the reach of the clause requirements in terms of which tier of subcontractors and/or suppliers it applies to.

I’ve heard contractors over the years say, “We’ll thought we'd worry about it when it happened” or “Isn't that the subcontractor’s problem.” Don't think like that. Here are a couple real examples from my experience where that thinking was costly to the contractor.

Prime Contractor doesn’t monitor subcontractor timesheets and payroll against DOL Service Contract wage determination. A disgruntled subcontractor employee decided to call the local DOL office, who then called me as the Contracting Officer. A DOL wage survey and audit of payroll / timesheets was triggered to determine if wages paid were accurate and complete. After the review was over, the subcontractor had to pay additional wages in back pay to employees and change their method of payroll and procedures. The prime also had to pay a fine of $93,000 to the DOL for failing to ensure its subcontractor paid proper wages, fringe, and benefits. (Service Contract Act violation – 41 U.S.C § 6703 & 6704)

Prime Contractor gets a contract with the Department of Defense (DoD) under a solicitation that contains the DFARS Provision 552.204-7008 dictating compliance with certain cybersecurity requirements which, by submission of the proposal, the contractor agreed they were compliant. The resulting contract contained the DFARS clause 552.204-7012 to enforce such compliance. During performance it was found that the Prime failed to disclose non-compliance with the provision in their offer and their systems fail to meet the standards required. Had the Government known of the noncompliance prior to award it could have impacted the contract award decision. The person signing the offer (i.e., authorized official of the company) was liable for three times the Government’s damages plus a penalty for acting knowingly, even when there is no intent to defraud. (Civil False Claims Act violation - 31 U.S.C §§ 3729)

(In the same instance above, if the person liable was found to have made the representation with the intent to defraud the Government, then the violation could fall under the Criminal False Claims Act (18 U.S.C § 287). Not where you want to find yourself.)

Once you get a Federal contract award, you’re off to the races. But playing catch-up on compliance and reporting after award indicates a lack of readiness to the Contracting Officer when being considered for future work (which is one of the reasons that the Government asks about prior Federal experience and past performance to begin with). And that can create a negative image of your company and put a cloud over your current performance at a time when you need to most impress the Government.

My advice? Putting in the effort to think about post-award compliance before award will help you position your company for success from your first contract and for the long term. Think beyond the win.

June 9, 2024

FedSubK Feature: Now What? My Offer was Excluded from Further Consideration

Updated: Dec 11, 2024

Often small businesses face several conundrums when they are on the receiving end of a notice of elimination from the competitive range and then faced with a decision on when to receive a debriefing or, if necessary, to protest. From the inside, as a Contracting Officer, I didn’t ever fully understand the concern over taking a debriefing and contemplating a protest. I worried about getting a protest because it can derail a contract for months, but I never understood the concern from the side of the business.

Before getting into what I’ve learned since becoming a consultant, let’s talk about debriefings a little bit. If you’ve never been through the debriefing process, or even if you have but haven’t felt you’ve received the information you needed, here Is a run-down of why asking for the debriefing at any stage of the process (pre-award elimination or post-award) is a good thing.

Why did I receive notice that my proposal has been excluded prior to the contract award?

The RFP will state when the Government plans to establish a competitive range for the purposes of a more efficient evaluation. A competitive range determination and preaward notification of exclusion of the proposal from further consideration is made when the Government believes that there is a clear delineation between proposals that have a chance of receiving contract award and those that don’t. When this determination is made, it is done so a few reasons:

Efficiency in the process for the Government to negotiate with a smaller sub-set of offerors most likely to provide the best value to the Government.
To minimize further costs for offerors with no chance of contract award.

The notification will offer the opportunity to request a debriefing within 3 calendar days of receipt of the notice. Or you may opt to take a post award debriefing instead. If you don’t make this request in a timely manner, the Government is not required to provide a debriefing (pre or post award).

Why should I want a debriefing if I’ve already lost the contract?

A debriefing is where you can find out how the Government viewed your proposal and find out how to improve on that perception for the next time you propose to that agency or another.

Should I ask for a debriefing?

The answer here is always going to be YES. Even if you receive a written debriefing abstract with your notification letter, ask to talk to the Contracting Officer via a debriefing request. The question is when.

If I receive a preaward notification, when should I ask to be debriefed, preaward or post award?

It depends. A few things to consider are:

The Government can refuse a preaward debriefing when requested but must make every effort to provide a debriefing as soon as practicable. In any event, it must be provided no later than when post award debriefings are held.
If a company does not take the offer of a preaward debriefing, it may be too late to bring up a known issue that is then later, at time of the post award debriefing, untimely to protest.
A preaward debriefing does not include the same level of detail in terms of trade off decisions related to your proposal and the winning proposal because that information is not yet available. At minimum, preaward debriefings include:
- The agency’s evaluation of significant elements in the offeror’s proposal.
- A summary of the rationale for eliminating the offeror from the competition.
- Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition.
Preaward debriefings do not disclose the--
- Number of offerors.
- Identity of other offerors.
- Content of other offerors’ proposals.
- Ranking of other offerors.
- Evaluation of other offerors.

What information is available to me as part of a post award debriefing?

A post award debriefing provides information that is beneficial to seeing the competition landscape for the contract. At a minimum, the post award debriefing includes:

The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable.
The overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror.
The overall ranking of all offerors, when any ranking was developed by the agency during the source selection.
A summary of the rationale for award.
For acquisitions of commercial products, the make and model of the product to be delivered by the successful offeror.
Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.

You can see that it’s significantly more info. Waiting for it and then protesting exclusion from the competitive range on grounds of something you knew at the time of exclusion will most likely render your protest untimely.

What types of info should I not expect to get in a preaward or post award debriefing?

Under no circumstances will debriefings include:

Point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors
Information prohibited from disclosure under the Freedom of Information Act ( 5 U.S.C.552) including-
- Trade secrets.
- Privileged or confidential manufacturing processes and techniques.
- Commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information.
- The names of individuals providing reference information about an offeror’s past performance.

Can and should I protest being excluded from the competitive range?

This is more complicated, based on things I’ve learned since becoming a consultant. There is a perception that if a business protests, a CO/KO or agency might hold a grudge. It doesn’t happen (I know, I’ve never seen it in over 35+ years). But there is a real fear among small businesses that a protest isn’t worth the risk of being labeled as a troublemaker or ruining an existing relationship with an agency or its personnel.

Example in point, last year a client of mine received notice they had been eliminated from the competitive range. In the notice, the CO/KO provided its rationale for removal. The client requested a pre-award debriefing from the CO/KO the same day. The client was interested in the other two pieces of info that, at a minimum, they were entitled to under FAR 15.505(e) as part of a pre-award debriefing:

the agency's evaluation of significant elements in the offeror's proposal, and
reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competitive range.

The CO/KO's response to the client’s request was that the request for a preaward debriefing was noted but that they had not made an award and were still in source selection. Well, duh! So, now what? That’s not very compelling.

The client sent a follow up outlining that:

It had made a timely request within 3 days of receipt of notice of its exclusion (FAR 15.505(a)(1)),
It had not requested a delayed pre-award debriefing (FAR 15.505(a)(2)), and
The Contracting Officer had not provided a compelling reason to refuse the request in its notice of exclusion or its response to the pre-award debriefing request (FAR 15.505(b)).

The response the client received from the agency? Crickets. Even with follow up emails every two weeks.

Four months later, after award had been made, the agency provided a letter and attachment titled "Preaward Debriefing" AND the info provided was limited to what was allowed under FAR 15.505(e) for a pre-award debriefing. Disappointing at best.

Did the client have a legitimate complaint? Likely. Particularly because the debriefing disclosed a measure used by the agency that was not disclosed in the RFP evaluation criteria and was indicated as part of the basis for its elimination.

Did the client do anything about it? It thought about it but wrestled with how a complaint or protest might impact their current work relationships on other projects with the same CO/KO as well as future opportunities. The client ultimately made a business decision to preserve the existing business relationship, accept the debriefing provided, and move on. And this happens more often than you'd think.

What should you walk away from a debriefing understanding?

You should walk away with and understanding of places in your proposal where you missed the mark and can improve your next proposal, even when not with the same agency. Capturing debriefing feedback is important and doing your own "hot wash" after a debriefing is even more important. Don't make the same mistakes twice! Update your proposal team review checklists with your findings after each debrief.

While you may weigh existing work with the same agency, existing relationships, etc., in the matter of the timing of your request (and potential protest), know that from the CO/KO perspective inside, they don't take debriefing requests and protests personally. They aren't allowed to view your business less favorably on future proposals.

What's happens next depends on YOU. Only YOU can determine the best time to request a debriefing when eliminated from the competitive range, particularly if there is the potential of a protestable issue. And only YOU can mitigate proposal writing mistakes from occurring again and improve your proposal writing and review processes. And learning from those mistakes should be an expected part of the proposal life cycle on our way to that winning proposal.

References:

FAR 15.5

May 17, 2024

FedSubK NOW! Issue 12 - May 2024

Updated: Jul 5, 2024

An archived copy of this newsletter can be found at this link:

https://shoutout.wix.com/so/79Oz0ZnwF?languageTag=en

Features articles:

FedSubK Features Recap: Know the Rules, Understand the Players and Processes, & Speak the Lingo
- For Everyone
- For Service Contractors
- For Product Providers
- For GSA Multiple Award Schedule (MAS) Contractors
Where Can I Find....? Key Content on FedSubK.com You May Have Missed
- Guides & Templates
- Quick Links to Federal Contracting Info
- Begin Your Journey Here
- Federal Marketing Action Plan

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May 5, 2024

FedSubK NOW! Issue 11 - April 2024

Updated: Jul 5, 2024

Find the archived post for this issue at:

https://shoutout.wix.com/so/e9Owgla-u?languageTag=en

Featured articles:

The Acquisition Lifecycle for Service Contracts: Phase 3 Contract Administration & Closeout
Evaluate Your Readiness to Use AI Tools for Federal Responses and Proposals

FedSubK NOW! Archives

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May 5, 2024

FedSubK NOW! Issue 10 - March 2024

Updated: Jul 5, 2024

Find the archived post for this issue at:

https://shoutout.wix.com/so/19Ots7Jp1?languageTag=en

Featured articles:

The Acquisition Lifecycle for Service Contracts: Phase 2 Contract Formation & Source Selection

FedSubK NOW! Archives

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April 2, 2024

FedSubK Feature: The Acquisition Lifecycle of Service Contracts - Phase 3 Contract Administration & Closeout

Updated: May 4, 2024

This month we end our three-part series on the acquisition lifecycle of service contracts with an overview of the third and last phase, Contract Administration and Closeout (or “Post Award” Phase). (NOTE: Find Part 1 here and Part 2 here.)

As before, we will talk about each subactivity in this phase but first, let’s review the lifecycle of a typical Federal services contract valued over the Simplified Acquisition Threshold (or “SAT,” presently $250,000).

Figure 1 – Acquisition Lifecycle

You’ve been selected as the awardee of a Federal contract! Congratulations! All that hard work paid off. But the fun isn’t over yet.

To see that pay out, you’ve got to perform. Yes, now you must back up that proposal by providing stellar performance of the requirements. That means providing the personnel promised in the proposal (i.e., Key Personnel), the deliverables necessary to begin performance, and continue building the relationship with your Federal client.

Contract Administration & Closeout (Post Award)

The Contract Administration and Closeout (Post Award) phase is where performance begins with the successful offeror now a Federal Prime Contractor (or “Prime”). The Government and Prime work together to ensure the performance, compliance, and reporting requirements are met and the end user receives the products and/or services required. Tasks are primarily performed by the Prime with Government oversight, acceptance, and performance evaluation.

Tasks in this phase are:

Figure 2 – Steps in the Contract Administration & Closeout (Post Award) Phase

Legend: I = Integrated Project Team, P = Project Management Office / Requestor, and A = Acquisition Office

These tasks will culminate in a completed contract and closeout under which the Government and Prime agree that all deliverables (products or services) have been received, are acceptable, meet inspection criteria, and no further monies are due to the Prime or Government.

Key tasks in this phase and their impacts on the Prime are:

Kick Off Meeting (or “Post Award Conference”) (FAR Subpart 42.503)

The Kick Off Meeting is where contract administration planning and performance planning take place and a post award orientation meeting is conducted between the Prime and the Government. The CO/KO typically determines if and when a Kick Off Meeting is needed. The CO/KO will arrange the time and place, create the agenda, act as the meeting chair (or designate one), brief Government personnel before the meeting, and prepare a summary report of the meeting.

It is not the purpose of the meeting to change the contract. However, the Contracting Officer (CO/KO) may make commitments or give directions within the scope the CO’s/KO’s authority and the contract. The CO/KO must execute a formal written modification before the Prime takes action on such changes. If the chair is not the CO/KO, the chair is not authorized to commit the Government to any changes that impact scope, schedule, or price.

Often on large extraordinarily complex contracts, partnership agreements are developed and partnership meetings between the parties are held. Schedules and processes are agreed to for assurances that a positive relationship continues between the Government and Prime and to lay out how performance issues will be handled and escalated for resolution between the parties. For smaller contracts, a post award letter may be sufficient to outline requirements for communications and submission of deliverables if not already called out in the contract scope, terms, and/or conditions.

Subcontractors do not typically attend the Kick Off Meeting (Post Award Conference) between the Prime and the Government since the Government has no privity of contract with Subcontractors and vice versa. This is also when the Prime’s agreements with their subcontractor should be solidified if not done so already (NOTE: Primes can determine the clauses that flow down to their subcontractors from the solicitation document; little if anything will change in terms of clauses short of a new law or national initiative like a telecommunications ban, TikTok prohibition, or minimum wage increase (as we’ve seen in recent years).

The Prime may ask Government representatives attend the Prime/Subcontractor Kick Off Meeting and Government personnel may attend provided they: (1) remember the limitations in privity of contract, (2) take no action that alters a subcontract, and (3) ensure any changes that may impact the Prime contract with the Government are documented and reported to the CO/KO for further discussions with the Prime and resolution.

Quality Assurance (FAR Part 46)

The Government performs quality assurance through inspection/acceptance, documentation of past performance, monitoring the Prime’s subcontracting plan (if applicable), and coordinates on performance issues and set procedures to remedy any less than satisfactory performance.

Contract clauses for inspection and acceptance of services will be found in Part I, Section E of the solicitation under UCF. For fixed-priced contracts, FAR clause 52.246-4 Inspection of Services - Fixed-Price, requires that the contractor provide and maintain an inspection system acceptable to the Government covering the services under the contract. Other inspection and acceptance clauses exist for other types of contracts (see FAR Subpart 46.3). The Government has the right to always inspect and test all services and places during contract performance. FAR clause 52.246-4 specifically reserves the Government’s right to require reperformance by the Prime for nonconforming services at no cost or reduce the contract price if reduced services result in reduced value. It also puts the Prime on notice that if it fails to promptly perform the services again or to take the necessary action to ensure future performance is in conformance with the contract, the Government may have the serviced performed by others and charge the Prime for any costs incurred related to performance or terminate the contract for default.

Contracts for Commercial Products and Commercial Services

When acquiring commercial products under FAR Part 12, the Government relies on the Contractors' existing quality assurance systems as a substitute for Government inspection and testing before tender for acceptance, unless customary market practices for the commercial product being acquired include in-process inspection. Any in-process inspection by the Government is conducted in a manner consistent with commercial practice.

The Government relies on the Contractor to accomplish all inspection and testing needed to ensure that commercial services acquired conform to contract requirements before they are tendered to the Government.

Contracts aren’t without their share of “administrivia” type tasks. One of those tasks that is most important to the Prime is getting payments.

Payments and Accounting

Invoices must be submitted using the formats required by the Government, if applicable, and may sometimes be submitted electronically via an agency’s/organization’s financial system (i.e., Wide Area Work Flow (WAWF) for DoD, Corps of Engineers Financial Management System (CEFMS), or Vendor Inquiry Payment Electronic Reporting System (VIPERS) to name a few).

This step is CRUCIAL during performance; it is where you want to know your game plan and have your “A-Team” on the job. Why? Because delays in payment mean delays in getting capital to continue performance, pay subcontractors, order supplies, etc.

How often do you invoice? As often as the contract allows. They could be monthly for recurring monthly services, but most often is upon completion of task or deliverable as outlined in the deliverables and/or payment schedule. Other than Firm Fixed Price services may require that you also track costs and bill (and/or provided supporting documentation) in the form of hourly rates, hours expended, or agreed upon work breakdown structures (WBS) down to a specific level, depending on the type of contract (i.e., cost reimbursement, time-and-materials, or labor-hour).

The Government can turn away any invoice that is not considered a “proper” invoice (see FAR Subpart 32.905), meaning accurate, current, and complete with all information required by the agency to be submitted using the format they require (when indicated). Any delay pushes your payment back in the billing / accounts payable process. And when the delay in payment is because of the Prime’s error, there is no prompt payment interest involved (watch for a future FedSubK Feature on Prompt Payment coming in the May edition of FedSubK NOW!).

As mentioned, on complex type service contracts (i.e., cost, time-and-material, or labor-hour) you may have to track, segregate, and report hours, hourly rates, and total costs by line item and accounting string in your invoices or in attachments to support your invoice.

Modifications

Modifications ( sometimes referred to as "change orders") are issued when changes are needed as part of performance due to unforeseen circumstances, changes in conditions or assumptions, and mandatory statutory requirements come into effect. Contracting modifications are issued formally in writing by the Contracting Officer and are typically bilateral in nature, meaning the Prime must first sign the modification before the Contracting Officer signs. However, administrative modifications and modifications based on terms and conditions of the contract may be issued unilaterally, or with only the Contracting Officer’s signature.

Exercising Options

Options exercise the Government’s right to purchase more products or services at a pre-agreed pricing, extend services, or term the term of the contract. In the case of options, the Contracting Officer must supply written notice to the Prime of the Government’s intent to exercise an option within the period specified in the contract.

Options may only be exercised after a determination that all the following apply:

Funds are available.
The requirement covered by the option fulfills an existing Government need.
The exercise of the option is the most advantageous method of fulfilling the
government’s need, price and other factors considered.
The option was synopsized per FAR Part 5 unless otherwise exempted.
The contractor does not have an active exclusion record in SAM.gov (see FAR 9.405-1).
The contractor’s past performance evaluations on other contract actions have been considered.
The contractor’s performance on this contract has been acceptable, e.g., received satisfactory ratings.

After considering price and other factors, the Government must make a written determination that exercise of the option is in its best interest based on one of the following:

A new solicitation would fail to produce a better price or a more advantageous offer than that offered by the option.
An informal analysis of prices or an examination of the market shows that the option price is better than prices available in the market.
The time between the award of the contract containing the option and the exercise of the option is so short that it indicates the option price is the lowest price obtainable or the more advantageous offer, considering market stability and comparison of the time since award with the usual duration of contracts for such supplies or services.

Other factors to be considered include the Government’s need for continuity of operations and potential costs of disrupting operations and the effect on small business.

There are two types of options that can extend the life of a contract. They are:

Option to Extend Services

As prescribed in FAR clause 52.217-8 of the same name, the Government may require continued performance of any services within the limits and at the rates specified in the contract (unless revisions are required to meet Department of Labor prevailing rates). This option may be exercised more than once, but the total extension of performance cannot exceed 6 months. The Prime must receive written notice of the Government’s intent to exercise an option to extend services within a period indicated in the fill-in found in the clause, most often 60 calendar days prior to the end of the current contract term.

Option to Extend the Term of the Contract

As prescribed in FAR clause 52.217-9 of the same name, the Government may exercise the option to extend the term of the contract with written notice to the Prime within a time period indicated in the fill-in found in the clause (most often 30 calendar days prior to the end of the current contract term). The Government must give a preliminary written notice of its intent to extend at least 60 days before the contract expires, unless a different number of days is inserted in the clause, though this notice does not commit the Government exercise the extension.

The clause also says that if the option is exercised that the extended contract is considered to include this same option clause and indicate the total duration of the contract, including the exercise of any options periods. Per FAR 17.204(e), unless otherwise approved in accordance with agency procedures and/or statute, the total of the basic period and all option periods cannot exceed 5 years in the case of services.

Performance is chugging along and you’ve come to the anniversary date of the contract. The Government exercises an option to continue performance. But the Government must also now rate the Prime’s performance at certain intervals.

Contractor Performance Assessment Rating System (CPARS)

CPARS is the Government’s official source for past performance information. Agencies must monitor compliance with the past performance evaluation requirements found under FAR Subpart 42.1502, and use the CPARS metric tools to measure the quality and timely reporting of past performance information for each contract that exceeds the SAT, or at such time a modification causes the dollar amount to exceed the SAT. For construction contracts, performance evaluations are required for contracts exceeding $750,000. For architect-engineer contracts, performance evaluations are required for contracts exceeding $35,000.

Past performance evaluations are prepared at least annually for multi-year contracts, and at the time the work under a contract or order is completed. Evaluations are generally for the entity, division, or unit that performed the contract or order. Past performance information shall be entered into CPARS by the Government and addresses, at a minimum, the following factors:

Technical (quality of product or service).
Cost control (not applicable for firm-fixed-price or fixed-price with economic price adjustment arrangements).
Schedule/timeliness.
Management or business relation
Small business subcontracting, including reduced or untimely payments to small business subcontractors when a subcontracting plan is required.
Other factors, as applicable, such as trafficking violations, tax delinquency, failure to report per contract terms and conditions, defective cost or pricing data, terminations, suspension and debarments, and failure to follow limitations on subcontracting.

Factors are evaluated and a supporting narrative is provided by the Government. Factors are rated with a five-scale rating system (i.e., exceptional, very good, satisfactory, marginal, and unsatisfactory). Ratings and narratives must reflect the definitions in the tables found at FAR Subpart 42.1503, Table 42-1 and Table 42-2 (when applicable).

Once entered by the Government, the Contractor will receive notification of a rating and can supply information for the record on any Government rating, comment, or feedback. If the Contractor does not agree with the CPARs rating, the rating still becomes available in the CPARS system for source selection officials to view not later than 14 days after the date on which the Contractor is notified of the evaluation’s availability for comment. The CPARS record is updated with any Contractor comments provided after 14 days as well as any subsequent agency of review of Contractor comments received. CPARS ratings are not subject to FAR protest procedures.

Agencies must use past performance information in CPARS. that is within three years (six years for construction and architect-engineer contracts) of the completion of performance of the evaluated contract or order, and information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS), related to terminations for default or cause.

Contract Closeout or Termination

Contract closeout will occur once the Government makes its final inspection/acceptance and final payment has been made. Contract termination may also prompt an end to contract performance either for the convenience of the Government or due to the deficient performance of the contractor (“default”). Closeout of contract files can be a time-consuming process but is necessary to fully remove completed projects from the Government’s books. Termination, on the other hand, can be a quick process because it is most often reactionary in nature. Both require Government resources and Contractor cooperation to achieve results in a reasonable period.

Closeout

The closeout process is the process most all contracts will go through at the end of the performance cycle. Closeout is triggered by the physical completion of performance under a Federal contract. A contract is “physically completed” when the Contractor has completed the required deliverable and the Government has inspected and accepted supplies, the contractor has performed all services and the Government has accepted those services, and all option provisions, if any, have expired.

The Administering Contracting Officer (ACO), if one has been assigned, handles initiating administrative closeout after receipt of evidence of physical completion. If one has not been assigned, the Contracting Officer will act as the ACO to conduct the closeout. The ACO reviews the contract funds status and notifies interested parties (i.e., contractor, finance, and funding office) of any excess funds that require deobligation (i.e., removal from the contract by modification). Administrative closeout requires that the ACO ensures (as applicable)—

Disposition of classified material is completed.
Final patent report is cleared.
Final royalty report is cleared.
There is no outstanding value engineering change proposal.
Plant clearance report is received.
Property clearance is received.
All interim or disallowed costs are settled.
Price revision is completed.
Subcontracts are settled by the prime contractor.
Prior year indirect cost rates are settled.
Termination docket is completed.
Contract audit is completed.
Contractor closing statement is completed.
Contractor final invoice has been submitted.
Contract funds review is complete and excess funds are deobligated (i.e., taken off the contract by formal written modification).

Files for contracts using simplified acquisition procedures should be considered closed when the ACO receives evidence of receipt of property and final payment, unless otherwise specified by agency regulations.

Files for firm-fixed-price contracts, other than those using simplified acquisition procedures, should be closed within 6 months after the date on which the ACO receives evidence of physical completion.

Files for contracts requiring settlement of indirect cost rates should be closed within 36 months of the month in which the contracting officer receives evidence of physical completion. Files for all other contracts should be closed within 20 months of the month in which the Contracting Officer receives evidence of physical completion.

The ACO will complete a Contract Completion Statement when all tasks are completed and forward the statement to the paying office of record. The paying office will close the contract file upon issuance of the final payment to the Contractor. Note that a contract cannot be closed if it is under litigation or terminations actions have not been completed.

Termination

The termination clauses along with other contract clauses authorize Contracting Officers to terminate contracts for convenience, or for default, and to enter into settlement agreements.

Whether for default or convenience, the Contracting Officer should only terminate a contract when it is in the Government’s interest. A no-cost settlement should be used instead of a termination notice when-

It is known that the Contractor will accept one,
Government property was not furnished, and
There are no outstanding payments, debts due to the Government, or other contractor obligations.

When the price of the undelivered balance of the contract is less than $5,000, the contract should not normally be terminated for convenience but should be permitted to run to completion.

Terminations should only occur after written notification to the Contractor, whether for convenience or default. The notice will say the contract affected, effective date, extent of termination (partial or total), special instructions, and steps the contractor should take to minimize impact on personnel if the termination will result in a significant reduction in the contractor’s workforce.

After the Contracting Officer issues a notice of termination, the Termination Contracting Officer (TCO) (if designated) handles negotiating any settlement with the Contractor. Auditors and TCO’s must promptly schedule and complete audit reviews and negotiations, giving particular attention to the need for prompt action on all settlements involving small business concerns. In the interim, per FAR Subpart 49.104, the Contractor must—

Stop work immediately on the terminated portion of the contract and stop placing subcontracts thereunder.
Terminate all subcontracts related to the terminated portion of the prime contract.
Immediately advise the TCO of any extraordinary circumstances precluding the stoppage of work.
Perform the continued portion of the contract and submit promptly any request for an equitable adjustment of price for the continued portion, supported by evidence of any increase in the cost, if the termination is partial.
Take necessary or directed action to protect and preserve property in the contractor’s possession in which the Government has or may acquire an interest and as directed by the TCO, deliver the property to the Government.
Promptly notify the TCO in writing of any legal proceedings growing out of any subcontract or other commitment related to the terminated portion of the contract.
Settle outstanding liabilities and proposals arising out of termination of subcontracts, obtaining any approvals or ratifications required by the TCO.
Promptly submit the Contractor’s own settlement proposal, supported by appropriate schedules.
Dispose of termination inventory, as directed or authorized by the TCO.
In the case of terminated construction contracts, ensure the cleanup of the site, protection of serviceable materials, removal of hazards, and other action necessary to leave a safe and healthful site.

A subcontractor has no contractual rights against the Government upon the termination of a prime contract. A subcontractor may have rights against the Prime Contractor or ia higher-tier subcontractor with whom it has contracted. Upon termination of a prime contract, the Prime Contractor and each subcontractor are responsible for the prompt settlement of the settlement proposals of their immediate subcontractors.

For additional details regarding settlement agreements, see FAR Subpart 49.109 for Prime Contractors and FAR 49.108 for settlement of subcontract settlement proposals.

That’s it! You’ve just successfully finished your first Government contract for services. Now you’ve got experience, a new (and hopefully happy) Federal agency as a client, and confidence to continue pursuing more contracts and grow your space in the Federal marketplace. And not just winning a contract but understanding the process will show your commitment to serving your target client agencies and helping them be successful in their mission to provide products and services to the warfighter and/or the public.

Thanks for joining us!

March 1, 2024

FedSubK Feature: The Acquisition Lifecycle of Service Contracts - Phase 2 Contract Formation and Source Selection

Updated: May 4, 2024

This month we continue with an overview of the second phase of the acquisition lifecycle for Federal service contracts; Contract Formation and Source Selection (or “Award” Phase). (NOTE: If you missed last month, you can find Part 1 here.)

We will talk about each subactivity in this phase but first, let’s remind everyone of the lifecycle of a typical Federal services contract valued over the Simplified Acquisition Threshold (or “SAT,” presently $250,000).

Figure 1 – Acquisition Lifecycle

Contract Formation & Source Selection (Award)

The Contract Formation and Source Selection (Award) phase begins at the point when Acquisition Planning is completed, and the method of procurement has been established. Tasks in this phase are shown below.

Figure 2 – Steps in the Contract Formation & Source Selection (Award) Phase

Legend: I = Integrated Project Team, P = Project Management Office / Requestor, and A = Acquisition Office

These tasks will culminate in an awarded contract (or contracts) and a path that is free of obstacles for the awardee to start contract performance.

Let’s go over a few key tasks in this phase and their impacts on you, the potential offeror.

Pre-Solicitation Notice (“Notice of Proposed Contract Action” or “Advance Notice”) (FAR Subpart 5.203)

Agencies must publish a Pre-Solicitation Notice in the Contract Opportunities section of SAM.gov at least 15 calendar days before the solicitation is issued, or before issuing a solicitation or proposed contract action the Government intends to solicit and negotiate with only one source (see FAR Subpart 6.302-1).

This notice period may be shorter than 15 calendar days, at the discretion of the Contracting Officer (CO/KO) when acquiring commercial products or commercial services. The period can also be shorter when the CO/KO uses the combined synopsis and solicitation procedure outlined in FAR Subpart 12.603. (Note: See the FedSubK Feature “Navigating Federal Contract Opportunity Notices” for more info.)

The Pre-Solicitation Notice is important because it–

Gives a summary of the upcoming project,
Discloses the acquisition strategy to be used in terms of competition and contract type,
Provides the estimated date for issuance of the solicitation to the public and the response time, and
Outlines other special instructions such as pre-proposal conferences planned.

From this notice alone, many businesses can make their go/no-go decisions on whether to propose.

For the Government, this 15-day period is crunch time. It’s when final approvals are obtained to release the documents to the public. If something comes up (and it always seems to), the 15 days may be extended for any length of time by the Government without further notice to the public. However, it is always in the Government’s best interest to ensure its competition pool knows when the solicitation will be published. The solicitation issuance date in the notice is an estimated release date.

For sole source actions offered to the Small Business Administration (SBA) 8(a) Business Development Program, a pre-solicitation notice is NOT required.

Solicitation Issuance

Once at least 15 days have passed, the solicitation will be uploaded in the GPE under a separate notice. This notice will contain a synopsis of the project along with solicitation documents and all attachments made available for download by potential offerors. Now the real fun begins because the clock is ticking!

(See FedSubK Snapshot “Finding Your Way Around a Federal Solicitation” for more info about where to find solicitation response times and instructions to ask questions, seek clarification, and how to format and submit proposals.)

You’ve got a lot of moving parts once the RFP goes “live.” Here are some key things, from a CO/KO perspective, that offerors need to keep in mind as they develop their proposal.

#1 - Know the Rules for Government Exchanges with Industry Before Receipt of Proposals (FAR Subpart 15.201)

Draft RFPs for industry input are considered part of the market research process under acquisition planning.

#2 - Watch for Amendments! (FAR Subpart 15.206)

Amendments can also be issued after the close of receipt of offers/proposals. However, per subparagraph (e) of the referenced FAR Subpart, if the CO/KO determines that such an amendment “...is so substantial as to exceed what prospective offerors reasonably could have anticipated so that additional sources likely would have submitted offers had the substance of the amendment been known to them”, the CO/KO must cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.

An oral notice may also be used when time is of the essence, which is then formalized by a written amendment issued by the CO/KO.

The worst possible thing is to finish a proposal and realize you haven’t taken an amendment into account. Failure to acknowledge an amendment can be grounds to eliminate your proposal from consideration right out of the gate!

#3 - Understand the Basics of Different Source Selection Techniques (FAR Subpart 15.1)

Tradeoff Process

Lowest Price Technically Acceptable Process

Allows selection of other than the lowest-priced or highest technically rated offeror using tradeoffs between technical superiority and cost or price, as described in the solicitation.

Requires selection of the technically acceptable proposal with the lowest evaluated price

The technical factors and significant subfactors that affect contract award and their relative importance are disclosed in the RFP.

The RFP also includes a statement whether all evaluation factor factors other than cost or price (aka “technical factors” when combined, are–

Significantly more important than cost or price,
Approximately equal to cost or price, or
Significantly less important than cost or price.