First things first, I’m sorry about the title; I couldn’t resist. The longer, alternate title would have been “Rest In Peace – the Past Performance Information Retrieval System Sleeps with the Fishes.” But that doesn’t have the same kind of obscure, punchy, epitaph-type quality that I’m aiming for. So instead, I give you get a garbled mess of an acronym to remind us that the Past Performance Information Retrieval System (“PPIRS”) – the system once used by the U.S. Government to house the final performance assessments for government contractors – is no more. As far as epitaphs go, I think that most of us would agree that “R.I.P.” is just about what an acronym deserves.
Continue Reading R.I.P. PPIRS

In its most recent attempt to strike the appropriate balance between the Veterans First and AbilityOne programs, the U.S. Department of Veterans Affairs (“VA”) issued on May 20, 2019 a class deviation to the VA Acquisition Regulations (“VAAR,” 48 C.F.R. Chapter 8), instructing contracting officers to conduct a “Rule of Two” analysis before procuring from the AbilityOne Procurement List.
Continue Reading Veterans Are First at the VA Following New Class Deviation Implementing Recent Federal Circuit Mandate

Department of Veterans Affairs (VA) acquisitions are about to get a lot more attention – from the VA Office of Inspector General (OIG), the U.S. Department of Justice (DOJ), and possibly Congress, as well. The U.S. Government Accountability Office (GAO) recently published a report (GAO-19-157SP) updating its “High Risk List,” which lists 35 government agencies and programs that may be particularly vulnerable to fraud, waste, abuse, and mismanagement, adding “VA Acquisition Management” to the list of the usual suspects. If, as Aesop opined, “a man is known by the company he keeps,” then the VA has now joined a notorious group. VA vendors should be aware of this development, because any attempt by the VA to “get well” will likely come with heightened compliance obligations for VA vendors.
Continue Reading VA Vendors Beware: Mind the Company You Keep; It’s Time for a Compliance Checkup

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

On January 7, 2015, the U.S. Department of Defense (“DoD” or “the Department”) released an update for DoD Instruction 5000.02, on the “Operation of the Defense Acquisition Service.”  The new Instruction is designed to assist acquisition personnel in tailoring the acquisition process to the specific item or system being purchased and to further the Department’s Better Buying Power initiative, launched in 2010.  The Instruction focuses largely on the acquisition of DoD-specific software and weapons systems.
Continue Reading Department of Defense Updates Its Instruction for Acquisitions of Software and Weapons Systems

The pricing of spare parts has been a subject of Government criticism for decades.  Pick up any DCAA or IG audit report relating to spare parts or any intra-agency memorandum on the topic and you will sense the dudgeon with which the Government reacts to the prices of those parts.
Continue Reading “How Dare You Charge That for a Spare Part!” – The Untold Story of the X27 Interface Assembly

This month’s Federal Register Updates include four important changes that will impact the day-to-day activities of Government Contractors and Agencies alike.  The first, a final DFARS rule on Performance-Based Payments, provides detailed guidance and instructions on the use of the Performance-Based Payment analysis tool, which is required to be used by all Contracting Officers contemplating use of performance-based payments on new fixed-price type contract awards.  The second is a proposed rule that would extend personal conflicts of interest to a newly expanded group of “covered employees” who perform functions closely associated with inherently governmental functions (not simply acquisition functions, as is currently the case under the present rule) and contracts for personal services.  The third change does not impose requirements on contractors, but does establish DoD procedures relating to the reported foreign ownership, control, or influence (FOCI) information that DoD is tasked with evaluating, mitigating, or negating. And the fourth important change, the President’s Memorandum and Executive Order on Compensation Data Issued on National Equal Pay Day, continues the President’s push for greater pay equality between women and minorities.
Continue Reading What’s New Out There? Highlights from the April 2014 Federal Register

A.  EPA Adopts Final Rule: EPA-Specific Past Performance Regulations (79 Fed. Reg. 15921-24) (3/21/2014)

The EPA is deleting EPA-specific past performance regulations in the EPA Acquisition Regulation (EPAAR) because they are no longer necessary to meet the agency’s needs in light of recent updates to the FAR.  See 79 Fed. Reg. 46783 (Aug. 1, 2013).  The new FAR requirements mirror current EPA policies for collecting and maintaining contractor past performance, so there is no longer a need for an EPA-specific supplement.  FAR subpart 42.15, combined with the CPARS guidance and reference material included at the CPARS web site (www.cpars.gov) provides sufficient policy, procedures, and guidance to satisfy the EPA’s needs.  Thus, the EPA deleted EPAAR sections 1542.15, 1552.242-71, and 1553.209.


Continue Reading What’s New Out There? Highlights from the March 2014 Federal Register

1. Proposal to Amend FAR to Implement Revised SBA Regulations

On February 3, 2014, DoD, GSA, and NASA proposed to amend the FAR, via FAR Case 2012-022, to implement revisions made by the SBA to its regulations implementing section 8(a) of the Small Business Act “to provide additional FAR coverage regarding protesting an 8(a) participant’s eligibility or size status, procedures for releasing a requirement for non-8(a) procurements, and the ways a participant could exit the 8(a) Business Development program.”  In addition to several editorial changes, the notice proposes the following substantive changes:


Continue Reading What’s New Out There? Highlights from the February 2014 Federal Register

1. Final Rule Requiring Accelerated Payments to Small Business Subcontractors.

On November 25, 2013, the FAR Councils published a final rule that, inter alia, amended the FAR to require accelerated payments to small business subcontractors in certain circumstances.  The final rule adds a new FAR clause, 52.232-40, Providing Accelerated Payments to Small Business Subcontractors, which must be included in all subcontracts with small business concerns.  The new clause requires prime contractors to make accelerated payments to small business subcontractors “to the maximum extent practicable and prior to when such payment is otherwise required under the applicable contract or subcontract” once the Government has issued an accelerated payment to the prime contractor and once the small business subcontractor has submitted “a proper invoice and all other required documentation” for receipt of payment.  The final rule, which became effective on December 26, 2013, does not provide any new rights under the Prompt Payment Act.


Continue Reading Government Procurement: November and December 2013 and January 2014 Federal Register Update

1. Proposed Rule to Amend DFARS Coverage of Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States. 

On October 31, 2013, the Department of Defense (“DoD”) proposed to amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to amend and clarify certain provisions regarding contractor personnel supporting U.S. Armed Forces deployed outside the United States.  As an initial matter, DFARS § 252.225-7040(a) would be amended to clarify which contractors are authorized to accompany the force (“CAAF”).  Further, DoD proposed to add language to section (b)(3) to emphasize that, when CAAF are authorized to carry arms for personal protection, they are only authorized to use force for individual defense.  Finally, the proposed rule would clarify the broad discretionary power of the Contracting Officer overseeing CAAF; specifically, the rule would provide that the Contracting Officer “may direct the Contractor, at its own expense, to remove and replace any Contractor personnel who jeopardize or interfere with mission accomplishment or who fail to comply with or violate applicable requirements” of the Contract.


Continue Reading Government Procurement: October and November 2013 Federal Register Update