Government Contracting as a Team Sport: The Consideration of Subcontractor Experience

SumCo Eco-Contracting LLC, B-409434, B-409434.2, April 15, 2014
A company’s past experience often comes into play when an agency is going through the evaluation process in a procurement. In many cases, the procuring agency will evaluate a proposal based on the offeror’s past experience with projects of a similar scope and size as the project at issue in the solicitation.

But what happens to an offeror that has experience of its own, but not necessarily of the same size and scope of the work called for in the solicitation? Are they at an automatic disadvantage in the competition? We have previously seen that an offeror lacking experience of its own can rely on the experience of its affiliates, and that a joint venture can rely on the experience of its partners. But can an offeror rely on the experience of its subcontractors? GAO answered this question in the affirmative in a recent bid protest decision.

In SumCo Eco-Contracting LLC, the Army Corps of Engineers issued an invitation for bids (IFB) for beach erosion control at Prospect Beach in West New Haven, NJ. The IFB was a HUBZone set-aside, with the award to go to the lowest-priced, responsible bidder that was an SBA certified HUBZone small business. After determining that the lowest bidder was not a certified HUBZone small business, the agency moved on to the second-lowest bidder, who was a certified HUBZone small business.

Prior to making an award, the agency conducted an analysis as to the second-lowest bidder’s responsibility, specifically inquiring as to whether it had the relevant experience to perform the work called for by the IFB. The second-lowest bidder provided information to the agency that a portion of the work called for by the IFB would be performed by its subcontractor, which had the requisite experience. The agency ultimately decided that the second-lowest bidder was responsible, and moved forward with an award.

The protester challenged the agency’s affirmative responsibility determination, arguing that the agency improperly considered the experience of the non-HUBZone subcontractor in determining the awardee to be responsible. The protester argued that because the awardee, on its own, did not have the requisite experience to perform the work called for by the IFB, its offer should be rejected.

GAO rejected the protester’s argument, noting that contracting officers have broad discretion to determine whether a contractor is responsible. Here, GAO found nothing improper about the contracting officer considering the past experience of the awardee’s subcontractor. In fact, GAO pointed out several FAR clauses (FAR §§ 9.104-1 & 9.104-3) that allow for a contractor to obtain sufficient resources through subcontracting in order to be deemed responsible. As a result, GAO denied the protest.

This decision puts a spotlight on the importance of building a good team when tracking a procurement opportunity. Contractors, particularly small business contractors, cannot always check every necessary box required by a solicitation on their own. By building a team of contractors with diverse knowledge, skills and experience, contractors can raise their game and be more competitive in their pursuit of contract awards.

http://www.icontact-archive.com/ErAYS8VeYd9gNwibGp0L1cOmIHamTV7I?w=4

Section 508 Compliance (Lawsuit Says GSA Discriminates Against Blind Contractors ) !

eTRANSERVICES is a provider of cost saving enterprise transformational services and products.  Our core competencies are Consulting Services, Enterprise Information Technology (IT) Services, Application and Web Services, and Program and Acquisition Support Services.  

We provide one of the only solutions that enables public facing websites to be 99% compliant will ALL aspect of the Section 508 (handicap accessibility) requirements.  Our solution is the only solution sold as Software As A Service (SaasS) and is hosted on the FedRAMP (moderate) approved Amazon cloud.  It is called AudioEye and eTRANSERVICES is the only SDVOSB and HUBZone certified capable of selling the product as of this blog's published date for government clients.

See AudioEye’s Press release: http://www.audioeye.com/audioeye-partners-with-strategic-small-business-etranservices/

The Audioeye Audio Internet Platform was built to accommodate a large range of disabilities. The AudioEye solution provides tools unique to each impairment, creating an all-encompassing accessibility solution wrapped up into a single platform. From users with complete vision loss to those with low sight or users that are hard of hearing or just learning to read, the AudioEye accessibility solution provides the tools to enhance the web access experience.

 

Lawsuit Says GSA Discriminates Against Blind Contractors

A group of blind federal contractors filed a lawsuit against the General Services Administration this week over a contractor website they say shuts out the visually impaired.

The System for Award Management website, SAM.gov, contains numerous buttons, checkboxes, drop-down menus and “mouseovers” that federal contractors must navigate each year in order to keep their contractor status current. Those bells and whistles make it difficult or impossible for screen reading software that blind people use to navigate the Internet to decode the site, the suit claims.

GSA phone-in help desk employees are also not sufficiently trained in disability issues, the suit claims, making it even more difficult for blind contractors to complete their registrations.

The suit was filed as a class action by the American Council for the Blind and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs in the U.S. District Court for the District of Columbia. The groups claim GSA violated Section 504 of the Rehabilitation Act, which, among other things, bars discrimination against federal contractors and grantees based solely on a disability.

There are three named plaintiffs who are helping to pursue the lawsuit. They’re all contractors who had difficulty registering or re-registering on SAM.gov. Eventually two of the three had to reveal personal information, such as usernames and Social Security numbers, to either friends or GSA help desk employees in order to complete their registrations.

“It would be one thing if [the Environmental Protection Agency’s] website wasn’t compliant with screen reader software,” Matthew Handley, an attorney for the plaintiffs, told Nextgov. “But this is all the more troubling because this is the agency that’s supposed to be policing all the other agency websites and it doesn’t appear to be policing its own websites.”

GSA had not responded by 5 p.m. Thursday to Nextgov emails and phone calls seeking comment.

GSA manages a large portion of civilian federal contracting for other government agencies and publishes best practices guides for federal digital technology. The American Council for the Blind spent about a year urging GSA to make SAM.gov accessible, Handley said. When those changes weren’t sufficient, he said, they filed suit.  

“We’d just sort of reached a dead end with them and decided we didn’t have any way to push this along without resorting to the court system,” he said.

The council hasn’t done a full investigation but suspects there may be accessibility issues with other federal contracting websites such as the Federal Business Opportunities site, FBO.gov, Handley said. The organizations hope that drawing attention to SAM.gov’s accessibility issues will press GSA and other agencies to fix other websites, he said.

The groups are asking a federal judge to order GSA to make SAM.gov accessible and to reimburse their attorneys’ fees. The plaintiffs cannot seek damages under the statute.

GSA has 60 days to formally respond to the lawsuit.

If you would like to learn more about AudioEye and setup a presentation please contact us immediately. AudioEye benefits organization significantly and requires almost no changes to existing website and code.  Please visit a few AudioEye enable sites to see the capability of this product for yourself at the sites below:

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eTRANSERVICES is a Center for Veterans Enterprises certified Service Disabled Veteran Owned Small Business (SDVOSB), Historically Underutilized Business Zone (HUBZone), and Department of Transportation (DOT) certified Disadvantaged Business Enterprise (DBE) firm.  Contracting officer(s) may award contracts to HUBZone small business concerns on a sole source basis without considering small business set-asides (see Subpart 19.5).   

 

2013 - Defense Authorization Act - Small Business Contracting Reform Signed Into Law

Notable Contracting Provisions In The NDAA:
• Enforces existing small business contracting goals by requiring that meeting the goals be a part of senior agency employee reviews and bonus discussions. The federal government has missed the 23% small business goal for six consecutive years.
• Changes limitations on subcontracting from cost to price, which will make it easier for small businesses to comply with procurement rules, while also allowing them to team together to pursue larger contracts.
• Prevents contracting fraud by placing penalties on violating limitations on subcontracting, and makes it easier to suspend and debar companies intentionally defrauding the government.
• Helps woman-owned small contractors by removing the set-aside caps on the women’s contracting program.
• Requires the SBA to develop size standards that accurately define what is a small business for each of the over 1100 industries where small firms operate, instead of allowing SBA to continue taking short cuts for its own administrative convenience.  
• Gives small business a “safe harbor” if they acted on a written advisory opinion from either a Small Business Development Center or Procurement Technical Assistance Center and violated a rule by mistake. 
• Brings transparency to insourcing decisions by requiring OMB and agencies to publish procedures, methodologies, and guidance documents associated with the decisions.
• Fights contract bundling, the practice of grouping several contracts together for bidding, thereby making it difficult for small businesses to compete. The law requires additional oversight and a report that will analyze whether contract bundlings are justified.

The Cold Harsh Reality - Veterans Unemployment

I wanted to take the time to share this information with you about Veteran unemployment from the Department of Labor & VA. As of August 2, 2013, the Bureau of Labor Statistics release the below unemployment data.  The "cheat sheet" was released by the Deputy Under Secretary for Economic Opportunity at the VA and the following are key data points:

National:    7.4% (down .2%)

All Vets:     6.4% (up .1%)

Post- 9/11: 7.7% (up .5%)

The cold harsh reality is that Veteran unemployment will be increasing over the next few years because of another reduction of forces.  Many Veterans do not have the skills, education, and certifications to qualify for the jobs they are presently performing on Active Duty or in the Reserves today.  As government contractors or as commercial employees, their skills need to transform from military to civilian.  There are many outstanding companies offering training and educational opportunities for Veterans (e.g. CISCO, Google, NetAPP, Amazon, Solar Industry, and many more). 

In my line of work "government contracting", I try to hire Veterans because I'm a Service Disabled Veteran (SDV) who owns a Service Disabled Veteran Owned Small Business (SDVOSB) but the Department of Defense (DoD) makes it difficult.  My company tries to hire veterans but another cold hard reality is that DoD and some other Federal agencies have been telling industry (indirectly) NOT to hire veterans based on the educational and certification requirements being placed in solicitations (e.g. RFQ, RFPs) documents.  When contracting officers & Program Manager (PMs) state that certain educational requirements and mandatory certification requirements are required on day 1 of a contract for contractor personnel (although some directives may give up to a year in some cases), Veterans (e.g. Retired, Separated, Service Disabled, Wounded Warriors, etc.), are negatively impacted because Small Businesses may not immediately and cannot immediately invest in Veterans training and certification until they are hired and on the payroll. 

The cold harsh reality is that many of the companies mentioned above provide training but the Veterans completing these programs may  not have the formal education or experience in many cases to even qualify for the jobs they were doing while on active duty.  Many are trained, few can find employment and even fewer can qualify for may positions described in many solicitation documents.

Please take a look at this cold harsh reality below on the Top 10 Federal Agencies for FY2012. The DoD does not have a "Veterans First" contracting strategy nor are there any incentives available for companies supporting the DoD to hire Veterans and especially "wounded warriors" or "service disabled Veterans." Hiring Veterans could be a requirement in contracting strategies or sub-contracting plans but it seem it is easier to increase Veterans TRICARE (Healthcare) cost and reduce benefits than to hire Vets.  Between congressional actions and DoD leadership, this can be fixed if we want it fixed.  The cold harsh reality is that it takes congressional action and DoD to create Veterans, Service Disabled Veterans, and Wounded Warriors. 

Top Ten Federal Agencies (SBA)             Rank/Agency                                                          FY’12 Dollars 1. Department of Defense                                              $274,625,161,617 2. Department of Energy                                               $24,562,882,765 3. Department of Health and Human Services              $18,461,515,353 4. Department of Veterans Affairs                                $17,335,860,700 5. National Aeronautics and Space Administration      $13,418,655,917 6. Department of Homeland Security                           $12,700,335,305 7. Department of Justice                                                $5,847,014,555 8. Department of Agriculture                                        $5,332,720,225 9. Department of Commerce                                         $3,261,832,708 10. Department of State                                                 $3,166,122,178   Percent of Small Business Prime Contracts FY 2012 (SBA) 1.   Department of Agriculture                                     52.9% 2.   Department of State                                                  39.1% 3.   Department of  Commerce                                        36.8% 4.   Department of  Veteran Affairs                                35.1% 5.   Department of Homeland Security                           31.0% 6.   Department of Justice                                               29.7% 7.   Department of Health and Human Services             22.4% 8.   Department of Defense                                             20.4% 9.   National Aeronautics and Space Administration      19.3% 10. Department of Energy                                                5.1%

Veterans don't want hand-outs, they want to continue to support this "Republic" with dignity, honor, and respect.  They also deserve more than ribbons and badges for serving their country.

I do not know of any company that want to provide substandard personnel to support any government contract but the Veterans or Wounded Warriors currently doing job that are now being filled by contractors should be provide hiring preference and companies should be provided incentives for hiring Veterans and especially Wounded Warriors.  My goal is to reduce veteran unemployment and also help to educate everyone on this cold harsh reality.  I commend those Generals and Senior Executives who would advocate on behalf of Veterans (including wounded warriors); however, when Post 9/11 Veteran unemployment goes up by .5% the reality is that there is not enough being done to transition Veterans to be contributing citizens.  Actions matter more than words.  It is a cold harsh reality when Senior DoD leaders chooses to cut military personnel tuition assistance programs instead of fixing or terminating underperforming projects and programs.  

The cold harsh reality is that supporting Wounded Warriors at retreats, baseball games, or entertainment event is a noble gesture; however, changing existing policies (e.g. Federal Agencies should have a  Veteran First Policy for "certified" SDVOSBs, Incentives should be provided for companies that hire Service Disabled Veterans or Wounded Warriors, Government should not be raising the qualification bar higher that those expected of the personnel currently doing the work being contracted out if there are no performance issues) to enable Veterans to continue to contribute to society and GET A JOB after leaving the military is the ultimate OUTCOME expected as we give back our defenders to our society. 

The cold harsh reality is that many Veterans don’t plan proactively and the transition organizations and services available are not adequate.  As an employer, trying to hire more Veterans, I would like to have access to an online repository of Veterans and their resumes.  DoD can setup something like www.indeed.com for transitioning Veterans where employers can search and find qualified veterans based on their capabilities but will only be able to contact the Veteran if they (the Veteran) respond to the employer with their contact information.  This is simple and it works.

This e-mail is in no way meant to harm any agencies efforts but the cold harsh reality is that Veteran unemployment is going up.  As a small business owner, I spend about 5 hrs each week helping Marines re-write their resumes to make it attractive to employers in order to qualify them for employment and while I enjoy supporting ANY veteran, we should afford veterans the ability to attend transition classes at least 3 years before retirement and 2 years before separation because the transition process is not always easy.

As the President of the Defense Acquisition University Alumni Association for the National Capital Region, I’m seeing that senior military leaders and civilians are also leaving government service and realizing the challenges of getting a job in today’s environment and I hope they realize that their subordinates also need to prepare for their transition.   

 

July-13
Unemployment
Cohort (% of total)	Rate		Change	Level		Change
National	7.4%		-0.2%	11.5M		-300,000
>27 Weeks		4.2M			-100,000
All Veterans (100%)	6.4%		0.1%	702,000		15,000
Male	6.4%		0.3%	610,000		31,000
Female	6.6%		-1.0%	92,000		-15,000
Post-9/11 Veterans (24%)	7.7%		0.5%	166,000		6,000
Male	7.7%		0.9%	138,000		13,000
Female	7.7%		-1.2%	27,000		-9,000
18-24 Veterans* (4%)	17.4%		-3.1%	28,000		-6,000
Male	20.4%		-4.9%	24,000		-6,000
Female**	8.3%		-	3,000		-
25-34 Veterans (13%)	6.8%		1.2%	93,000		17,000
Male	6.6%		1.8%	74,000		20,000
Female	7.8%		-1.4%	18,000		-4,000
35-44 Veterans (19%)	6.4%		1.0%	133,000		21,000
Male	6.1%		1.4%	104,000		24,000
Female	7.8%		-0.5%	30,000		-2,000
45-54 Veterans (23%)	5.7%		-0.6%	162,000		-12,000
Male	5.4%		-0.7%	131,000		-13,000
Female	7.5%		0.1%	31,000		1,000
55+ Veterans (41%)	6.4%		0.1%	287,000		-4,000
Male	6.7%		0.3%	277,000		5,000
Female	3.0%		-2.4%	10,000		-9,000
* 9,000 enrolled in school (32% of all unemployed 18-24)

 

Semper Fidelis,

Should be government be in the cloud broker business?

NO; however, it must play a significant role now in order to gain later.

 

I’m convinced that in order for the Shared Services “aka Cloud” Broker to be effective and efficient along with providing cost savings to the consumer, the brokered service(s) must be a commodity or treated as a commodity.  Providers of current commodities do not have a vested interest in this strategy; however, if the government can define business objectives that can be supported by industry defined standards, interface specifications, and Government Service Level Agreements (w/ industry partners)  then we will see progress in cloud computing and realization of true cost savings.  I also believe that the cloud broker will be limited by the procurement and acquisition systems that the government has in place.  Most procurement and acquisition systems, in government, lack the agility to keep up with the pace of IT transformation or provide a franchisable methodology for leveraging the rapid acquisition of “scale-able” aka “pay by the drink” share IT services across government.

Case Study:  http://www.nextgov.com/cloud-computing/2013/02/defense-and-intelligence-community-pursue-conflicting-cloud-plans/61249/?oref=nextgov_today_nl#disqus_thread

The Defense Department's "joint information environment" and the intelligence arena's "intelligence community information technology environment" share the same goal of decreasing costs and increasing security by shifting work to applications accessible on any device.  The two setups, however, are being constructed separately and differently.  "To date, implementation of their respective IT and telecommunications visions has consumed significant personnel and financial resources. This has limited the ability of both to coordinate their respective efforts to ensure complementary, mutually supportive efforts,"

The government should not be in broker business; although, I understand temporarily that it has a leadership role until it is able to more clearly define its business requirements and objectives to the industry at large.  Industry will drive the innovations yet to come based on the defined business objectives, priorities, and measures articulated by government leaders.  The government cannot afford to remain focused on "blinking lights" but should be focused on business objectives and defining its requirements.

The "Chief Information Officer must evolve into the Chief Innovation Officer" who is focused on leveraging technologies “ for business value.  The broker’s role will be significant in the next few years of IT evolution.

 

If you are interested in learning more about how industry and support the business objectives of the government, contact me and we can discuss.

 

Chris Beckford

www.etranservices.com