Do's and Don'ts in Government Contracting

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If you follow professional football, you are familiar with the message generally given to an aspiring player just before he is cut – “Coach wants to see you.  Bring your playbook.”  The playbook, that step-by-step guide to on-the-field success, is something that teams guard zealously.

Not all teams, however, maintain the secrecy of their playbooks, and the U.S. Government is a case in point.  The Government actually publishes its playbook of bargaining techniques recommended for its contract negotiators.  Like the Commandments Moses brought down from Mount Sinai, the Government playbook consists of 10 Rules.  These Rules can be found in Chapter 6 of Volume 5 of the DoD’s Contract Pricing Reference Guides.  The Rules are all reasonable and, in many ways, predictable. Because “Forewarned is forearmed,” here they are –
Continue Reading The Government’s Playbook – Your Guide to Uncle Sam’s Negotiating Techniques

Accepting money from the Government, whether through a contract, grant, or other transaction, does not come for free. In the commercial world, companies typically engage in a cost/benefit analysis when they make major decisions, such as whether to enter a new line of business, extend their product line, open new facilities, or expand globally. To make these decisions, the company tries to understand not simply the available business opportunities, but also the obligations that are imposed and the risks that are inherent. This is equally, if not more, true when a commercial company decides to sell anything to the U.S. Government – whether as a prime contractor or subcontractor. The Federal Government is an extremely large consumer of goods and services, and so it is a marketplace that is hard to ignore. But, seller beware – because with the opportunities arising from this marketplace come obligations with which your company may not be able to comply. Moreover, while compliance may cost you more than you anticipate, noncompliance could destroy your business. So make sure that you look before you leap into the federal marketplace.
Continue Reading Look Before You Leap – Pitfalls and Trip Wires Inherent in Government Contracting

By John W. Chierichella

B&P is a precious resource, a pool of investment dollars. Used wisely, B&P can perpetuate one’s existing position in the market, grow existing product lines, and expand into new fields of endeavor. The prudent use of B&P can be the difference between achieving short, intermediate and/or long term business goals and failing to do so. All too often, however, companies can fall into patterns of conduct that effectively vitiate that investment.
 Continue Reading 10 Ways To Waste Your B&P

In our claims practice, we frequently represent clients seeking compensation for constructive changes. One of the most common obstacles to recovery arises where the Government employee who ordered the additional or changed work lacked the authority to do so. Invariably, the Government’s first line of defense in these cases is the well-established principle that the Government is not bound by the unauthorized conduct of its agents. Although there are certain narrow exceptions to this general rule, the absence of actual express authority can make it significantly more difficult to recover for a constructive change.
 Continue Reading But You Promised!Ten Simple Steps for Avoiding the “Apparent Authority” Trap

On January 15, 2009, the FAR Councils issued the final rule implementing the provision of the Trafficking Victims Protection Reauthorization Act of 2005 ("TVPA") 22 U.S.C. § 7104(g).  The final rule is implemented by FAR 52.222-50 entitled “Combatting Trafficking in Persons.”
 Continue Reading FAR Councils Issue Final Rule for Human Trafficking

By now, everyone who has even a passing familiarity with the new “Contractor Code of Business Ethics and Conduct” clause that went into effect on December 12, 2008 knows that “internal controls” are important.  In fact, with the stakes under the new clause so high, many government contractor personnel can tell you that, under the clause FAR 52.203-13, they are required to:Continue Reading Internal Control Compliance: It’s More Than You Think

On April 23, 2008, the U.S. House of Representatives passed H.R. 3033, "Contractors and Federal Spending Accountability Act," agreeing by voice vote that GSA would maintain a centralized database of government contractors.  The GSA database would collect information on contract defaults, suspensions, and debarments, as well as "any civil or criminal proceeding, or any administrative proceeding" for which a contractor paid at least $5,000 in restitution, that has been "concluded" by the federal or state governments.  If a contractor committed in a three-year period more than one offense for which it could be debarred, the contracting officer must affirmatively demonstrate the contractor’s responsibility prior to award.Continue Reading Unanticipated Consequences of the “Contractors and Federal Spending Accountability Act”