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Basics of Government Contracting
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Federal Procurement Background
• The U.S. Government is the world’s largest purchaser of goods and services
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Federal Procurement Background
• The U.S. Government is the world’s largest purchaser of goods and services
• All of this procurement is highly regulated, primarily by the Federal Acquisition Regulation (FAR)
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Federal Procurement Background
• The FAR requires full and open competition for federal contracts– Naturally, there are exceptions
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Federal Procurement Background
• Exceptions to “full and open” competition– Sole Source Contracts– Statutory Requirement– Small Business Set-Asides
• The Government has a “goal” that 23% of all Federal Contract dollars will go to small businesses
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What is a small business set-aside?
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Small Business Set-Asides
• “Set-aside” – Contract opportunity limited to small business (or certain type of small business)
• Federal Agencies are encouraged, and sometimes required, to set aside a contract• Automatic set-aside if between $3K - $150K
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Small Business Set-Asides
• “Rule of Two” – Contract must be set-aside if:– Valued at over $150K;– Reasonable expectation to receive
offers from at least 2 small businesses; and
– Award will be made at fair market price.
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Small Business Set-Asides
– Types of Small Business Programs:• Small business set-aside• 8(a) business development set-asides• HUBZone set-asides• Service-disabled veteran-owned, and
veteran-owned small business set-asides (SDVOSB & VOSB)
• Women-owned small business set-asides
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How does the government procure goods and services?
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Simplified Procurement Process
– The Government announces what it needs• Fedbizopps.gov
– Interested contractors submit offers to fill those needs
– Offers are reviewed and evaluated– Contract Award The procuring agency
enters into a contract with the selected offeror
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Simplified Procurement Process
• Two Primary Procurement Methods– Sealed Bidding (FAR Part 14)– Negotiated Procurements (FAR Part 15)
• More prevalent
• GSA Schedules
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Sealed Bidding
• Government issues an Invitation for Bids (IFB)– Contains all necessary specs and
requirements• Interested contractors submit a Bid
– Must agree to all contract requirements– Really all about price
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Sealed Bidding
• All bids are opened publicly– Award made to lowest priced
responsive bid– If lowest bidder determined non-
responsive, goes to next in line
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Negotiated Procurements
• Government issues a Request for Proposals (RFP)– Agency must follow terms of the RFP
• Interested contractors submit a Proposal– Demonstrate how they can meet RFP
requirements and at what price
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Negotiated Procurements
• Agencies can make an award based on initial proposals, or enter into “discussions” with offerors
• Where there are many proposals, agencies may establish a “competitive range”
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Negotiated Procurements
• After final proposals, agency makes award decision based on process identified in RFP.– Referred to as “source selection
decision”
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Negotiated Procurements
• Debriefings – After award, unsuccessful offerors may request a post-award debriefing– Agency must provide the debriefing– Opportunity for contractor to pose
questions to agency as to why its offer was not selected
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GSA Schedules
• Allows Federal Agencies to quickly purchase commercial items and services from listed vendors– Vendors apply to GSA Schedules– GSA awards schedule contract with set
prices/rates– Contracts last up to 20 years
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Types of Government Contracts
– Firm fixed-price All risk on the contractor
– Cost Reimbursement Risk primarily on government• Also Cost plus Fee, and Cost plus Incentive
– Time and Materials• Fixed hourly rates, must have a ceiling cost
– Indefinite Delivery, Indefinite Quantity (ID/IQ)
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What are the difference between government and
private contracts?
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Government vs. Private
• Changes Clause – Contractor must do all additional work ordered by agency, as long as it’s within scope of the contract– Contractor can submit request for
equitable adjustment
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Government vs. Private
• Termination for Convenience of the Government– Government can terminate any gov’t
contract, for any reason, at any time– Contractor can recover costs
associated w/ termination• No lost profits though
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Government vs. Private
• Disputes over government contracts are highly regulated and very rarely litigated in traditional courts
• Generally three types of disputes in government contracting:– Pre-award– Post-award– Performance related
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Pre-Award Disputes
• Contractors can protest terms of solicitation– Too restrictive, ambiguous – Protest can be filed with either
Government Accountability Office (GAO) or Court of Federal Claims
• Contractors can also protest exclusion from “competitive range”
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Post-Award Disputes
• Contractors can protest the award decision– e.g., Improper evaluation
• Post-award protests can be filed in 3 forums:– Agency– GAO– Court of Federal Claims
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Post-Award Disputes
• GAO Protests– Interested parties have 10 days to
protest– Automatic Stay is available– Generally, the awardee is allowed to
intervene– Decision due within 100 days– Generally best option
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Performance Disputes
• Disputes begin with a claim for money submitted to the contracting officer– CO has 60 days to issue Final Decision
responding to claim
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Performance Disputes
• Contractors can appeal denial of claim in one of two forums:– Board of Contract Appeals – Civilian
Board, Armed Services Board– Court of Federal Claims
• Cannot appeal to both, must choose one or other
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Performance Disputes
• Appeals to Boards of Contract Appeals– Must file appeal within 90 days of Final
Decision or deemed denial• Appeals to Court of Federal Claims
– Must file within 1 year of denial• Federal Circuit hears appeals of
these decisions
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Teaming Agreementsand Subcontracts
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Teaming Agreements
– Multiple companies agree to compete as a team, usually before proposal• Teaming Agreement between Prime
Contractor and Subcontractor(s)– Generally, parties agree to negotiate
subcontract in good faith
• Joint Venture– Multiple companies agree to perform together
as the Prime Contractor
– Binding Contracts
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Subcontracts
• Defines the relationship between Prime and Subcontractor– Typically executed after award– Should include Sub’s scope of work– Provisions from prime contract can
“flow down” to subcontract
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Basics of Government Contracting
Contact Info:General Counsel, P.C.
703-556-0411
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