As federal contract dollars become more and more scarce, contractors must aggressively posture themselves to win contracts. Since past performance often plays a key role in source selection, a poor past performance rating can have far-reaching impacts. Fortunately, the Contractor Performance Assessment Reporting System (CPARS) process allows contractors to be actively engaged in ensuring that future source selection officials have a fair and accurate assessment of their past performance. Contractors must be aware of their rights and responsibilities in this regard — and should, whenever possible, take full advantage of any opportunity to help shape their CPARS ratings. Of course, contractors sometimes have to fight for the right to be heard. In the recent case of Colonna’s Shipyard, Inc., ASBCA Nos. 59987, 60104, and 60105, the Armed Services Board of Contract Appeals (ASBCA) clarified the boundaries of its jurisdiction over disputes concerning such ratings.
Although Congress failed to pass a federal budget for Fiscal Year 2017 (FY17), which began on October 1, both the House and Senate passed a Continuing Resolution (CR) that will continue to fund government agencies through December 9, at fiscal year 2016 spending rates, thereby avoiding a federal government shutdown. Operating under a CR creates significant uncertainties for federal agencies, as well as the contractors who support them. Among the legislation that has not yet been passed for FY17 is the National Defense Authorization Act (NDAA). This legislation funds the Department of Defense, and includes provisions impacting other federal agencies, as well. The House and Senate have not yet reconciled their respective proposed versions.
On September 2, 2016, Defense Procurement and Acquisition Policy (DPAP) Director, Claire M. Grady, issued a guidance memo concerning commercial item determinations and the determination of price reasonableness for commercial items. The memo begins by noting the proposed rule issued August 11, 2016 under DFARS Case 2016-D006 implementing Sections 851-853 and 855-857 of the FY 2016 National Defense Authorization Act (NDAA) and, among other things, providing guidance to contracting officers concerning price reasonableness and commercial item determinations. That DFARS Case is currently making its way through the rulemaking process. In the meantime, this DPAP guidance is intended to address the underlying tenets of that legislation to improve consistency and timeliness.
On March 11, 2016, the Office of Management and Budget (OMB) published a Federal Register notice seeking public comment on a draft memorandum entitled, “Federal Source Code Policy — Achieving Efficiency, Transparency, and Innovation through Reusable and Open Source Software.’’ The notice explains that the Administration’s Second Open Government National Action Plan committed to adopting a Government-wide Open Source Software policy that ‘‘will support improved access to custom software code developed for the Federal Government.’’ The idea is that using and contributing back to Open Source Software (OSS) will fuel innovation, lower costs, and benefit the public. Unfortunately, the proposed policy threatens to strip government-funded software developers of the rights they have historically retained in the fruits of their labor – something that could ultimately prevent the government form achieving its stated goals.
Reassess Your Size Status, Update Your DSBS and SAM Listings, Check Your Past Performance Ratings, and Update Your Employment Policies, Handbooks and Postings
Happy New Year! The start of a new year is a time for New Year’s Resolutions. Here are several we strongly urge you to follow-through on early in 2016.