PTAC Government Contracting Conference 2019 - LLC Presenter: Christine V. Williams | Outlook Law, PTAC Alaska
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
PTAC Government Contracting
Conference 2019
Presenter: Christine V. Williams | Outlook Law,
LLC
Your Presenter: Christine V. Williams
Managing Partner and Founder Outlook Law, LLC
Former Partner at Two International Law Firms
Adjunct Law Professor
SBA Board for the 10th Region
SBA Award for Excellence in Advocacy
Nationally Recognized as a Best Lawyer for 2018 and
2019
Outlook Law, LLC
Slide 2
PROPRIETARY AND CONFIDENTIAL
Senator Dan Sullivan‐ Military Spending Military Spending Since Senator Sullivan was elected approximately $1.3 Billion has been allocated to MILCON (Military Construction) Military Leaders Visiting Alaska During the end of June and early August 2018, Senator Sullivan hosted U.S. Secretary of Defense James Mattis, Secretary of the U.S. Army Mark Esper, Secretary of the U.S. Air Force Heather Wilson, and Secretary of the Navy Richard Spencer in Alaska. This satisfied their nomination commitment to the Senator to accompany him around Alaska. Overall these visits generated over 20 press mentions in both national papers and local news outlets across Alaska.
The Last Years Broken Down • Total: $1.29596B or ~$1.3B • FY16: $79.2M • FY17: $561.06M • FY18: $168.9 • FY18 (ATR/BA): $200M • FY19: $286.8M • USAF MILCON Totals (Last 4 Years): $648.7 million • Eielson AFB MILCON Totals (Last 4 Years): $599.7 million
Alaska MILCON (Bill Language‐‐Conference Report): The FY19 NDAA authorizes $286.8 million for Alaska military construction.
MILCON 2019‐ Broken Down
The Government designed the Category
Management (CM) system in an attempt to
eliminate redundancies, increase efficiency,
and deliver more value and savings from
acquisition programs
Purpose of
Category Started out in 2005 as a method for managing
contracts procured by the Government
Management
Has become a procurement policy with
unintended negative consequences on both
small and other‐than‐small business
In 2014, CM was introduced to strengthen
federal acquisition practice and leverage
federal agencies' buying power and
GSA and the Office of Federal Procurement
collectively manage commonly purchased
Policy (OFPP) spearheaded the last
goods and services by allowing the
administration's initial push to manage
Government to act as a single buyer with
spending through the Super 10 categories
certain contract vehicles managed by such
agencies as the General Services Agency
(GSA).
CM is Fully Introduced
Negative Consequences • Lessening of competition by sidelining eligible businesses who would otherwise compete • Competition is restricted to contractors cleared for the CM vehicle • Long‐term increases in procurement costs • Hammering small businesses' opportunities • Removing small business contracts from SBA programs and control.
• In 2005, Federal Strategic Sourcing, what would later
become a subcategory of CM, was introduced.
• This was a contract management tool with limited reach.
It was not a procurement policy dictating the
considerations given for Government procurement.
• Strategic Sourcing grew in popularity and the Strategic
The History Sourcing Leadership Council (SSLC) was formed.
• The SSLC would later become the Category Management
Leadership Council (CMLC), in which SBA would have no
vote or clear influence; effectively negating an entire
agency that oversees an economic driver of the
American economy.Small Business Administration (SBA) 1 2 The U.S. Small Business During this process from 2005 until the Administration's (SBA) vote was present, SBA small business contracts removed from the Category were designated as “not a mandatory.” Management Leadership Council CM /vehicles are considered (CMLC) and the SBA is no longer listed “mandatory” by the agencies in as a key agency in any decision‐making implementing the policies. process for CM vehicles.
Agencies are internally setting up policies and objectives that focus on
strategic sourcing through CM vehicles; in effect establishing an internal
CM focus and management council within each key agency.
Governmental This internal council sends a representative to the CMLC.
Category
Management The CMLC Principals, which play an important role in shaping the
direction of the effort, consists of representatives from the DoD, DoE,
Leadership HHS, DHS, VA, GSA, and NASA.
Council The Category Managers for the Super 10 represent the following
(CMLC) agencies: (OMB); (GSA), (DHS); (OPM); DoD, and the VA.
The head of each of the 24 Chief Financial Officer Act departments and
agencies have designated a CMLC Lead, who coordinates their agency's
participation in governmentwide category management efforts.10 Super Categories, or buckets
Common vs. Defense There is a distinction between fiscal spending for common goods (items all agencies need) and defense‐centric spending (only items needed by DoD). DoD engages in the Government‐wide Category Management structure via five representatives on the CMLC. These representatives, from the Army, Air Force, Navy, Defense Logistics Agency, and Office of the Secretary of Defense, oversee DoD Category Management.
Major CM Vehicles
Being Used by the
Government
Schedules GWACs MACs Best‐in‐Class Solutions Justified ExceptionsExempt SBA set‐asides from CM Super categories‐proposed legislation is in play
Exempt in the House of Representatives;
Make mandatory consideration of small businesses for contracts part of any
Make contract procurement analysis, including changing the FAR to incorporate that
analysis;
Potential
Solutions Allow SBA to have a voice and a vote on the procurement governing council for
Allow CM; and/or
Request SBA to evaluate the current large contracting vehicles with the goals of
Request the Government in mind when it comes to small business opportunities and
competition and make recommendations based on its findings.Super Categories
Separate buckets and
often times contracts
that are easily combined If a business is not
and maintain "small" accepted on the vehicle
As a result, the
status are being taken during its limited on‐
Government is left with
from the competition ramp period for a
fewer contractors to bid
between small business, specific category, it
on a project, small or
with each category being remains idling by –
otherwise, thereby
placed on a large vehicle unable to compete for
restricting competition.
that has restricted the contracts placed on
competition according to the vehicle.
the respective
category/bucketFor Example:
• In the small business arena a
thousand contractors may be eligible
and consider bidding on the work, on
the vehicle maybe 10 percent or less
compete for the same work.
• Desperate to get on the vehicles to
compete for contracts in what should
be a fairly straight‐forward bid
process, some contractors try to buy
other contractors just because the
second contractor may be on the CM
vehicle.
The Government has developed no matrix to accounts for these differences.General Services Agency (GSA)
GSA, who handles the large vehicles
For instance, an SBA small business
with limited on‐ramp periods, is Prior to CM, the competition for the
contractor may become ineligible for
notorious for not adhering to standard contract, and the bid protest process
small contracts because it has become
SBA regulations that determine would have kept the size issue in
other than small during the time it
(continuing) eligibility for small check.
was on the schedule/CM vehicle.
business.
With the CM vehicle being managed
by GSA, the competition is lessened,
the protests do not naturally occur as
This creates a situation where a small
much, and GSA does not have the
business contract can easily be taken
reputation checking the status of the
by an other than small business.
business for a procurement once it has
been determined it is eligible for the
vehicle.Size Certifications
For instance, if a blanket
Vehicles/schedules do not
purchase agreement (BPA) is
require certain size
placed on a vehicle, the
certifications for SBA set‐
contractor may not have to
aside contracts that would
re‐certify that it is
normally be required.
eligible/small for the contract.Size Certifications • A recent decision found a BPA is not a “contract,” an “option,” or an “order.” Accordingly, “SBA regulations . . . do not contemplate size protests involving such instruments.” • Rather, “a size protest on a BPA issued against a Schedule contract is treated as a size protest on the GSA Schedule contract” itself. • Simply put, the contract is not subject to a size protest for qualifying for an SBA contract when size is normally the threshold question for qualification under any category of an SBA set‐aside. • Thus, a contractor who may not be considered small may receive a small business set‐aside contract on one of the vehicles/schedules.
Threat to Small Business • Beth Strum, who testified on behalf of the U.S. Women's Chamber of Commerce stated that the Chamber has "never encountered a threat to small businesses' full and fair access to federal contracts like what is confronting us now."
Threat to Small Business • The threat is only increasing. Using FY 2016 procurement spend as a base, CMLC is calling on agencies to hit 40 percent more dollars by 2020. • CM management is scheduled to become the vehicle for restricting competition by delivering short‐term results while dimming the lights on the future unless measures are put in place to restrict its usage. • Small business, a driving force in the American economy, is particularly vulnerable and the negative effects of the inefficiency and lack of competition of Contract Management will only grow in its impact.
Questions?
You can also read
