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    Procurement (Federal)

 

  • Compliance with Office of Federal Contract Compliance Programs (OFCCP) guidelines regarding affirmative action in general (such as may involve: discrimination on the basis of color, disability, gender identity, national origin, race, religion, sex, sexual orientation, or status as a protected veteran; or, wrongful discharge or discrimination against applicants or employees of Federal contractors or subcontractors who inquire about, discuss, disclose or even inquire about their compensation or the compensation of other similarly-situated employees), affirmative action review processes, conciliation agreements (negotiation and drafting), complaint investigations, community linkage agreements, compliance audits, compliance evaluations, compliance monitoring, consent decrees, corporate policies, debarment hearings, negotiations with the Labor Department Solicitor and staff.

 

  • Compliance with procurement-related Federal regulations, rules, statutes, treaties and international agreements, such as the: United States Code (U.S.C.) Titles 10 and 41; Competition in Contracting Act (CICA) (which provides for increased competition in federal procurement practices, and created new acquisition procedures, including competitive negotiation); Defense Contract Audit Agency (DCAA); Defense Federal Acquisition Regulation (DFAR) – supplemented with guidance published by the Principal Director, Defense Pricing and Contracting; Department of Defense (DoD) – Federal Acquisition Reform Act (FARA); Federal Acquisition Regulation (FAR) – Code of Federal Regulations (C.F.R.) Title 48 – and Supplements; Federal Acquisition Streamlining Act (FASA); World Trade Organization (WTO) Government Procurement Agreement (GPA) (WTO GPA) – as explained in WTO Document No. S/WPGR/W/11/Add.6 to the WTO Working Party on GATS Rules (October 21, 1996); WTO Document No. GPA/23 (July 15, 1998); WTO Document No. GPA/50 (June 15, 2001).

 

  • Legal support for various types of costs and expenses analysis compliance, such as: fringe; general and administrative (G&A); incurred costs; monthly; provisional rates; rates; selling, general and administrative (SG&A); spend.

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  • Compliance with FAR Part 8 (Federal agencies must first use what they have in their own inventories and then must attempt to satisfy their requirements for supplies and services through a number of government sources, if possible, and may use Schedule Contracts and commercial sources, including educational and non-profit sources, to fulfill their commercial items requirements), FAR Part 12 (for commercial items), FAR Part 13 (rules that allow federal agencies to buy products or services under a certain dollar acquisition threshold more quickly, and also covering framework-like “blanket purchase agreements”), FAR Part 14 (for guidelines about sealed bidding), FAR Part 15 (for guidelines about competitive bidding through proposals), Part FAR Part 19 (contracts under a certain dollar acquisition threshold are generally required to be set aside for small businesses), FAR Part 25 (for acquisitions of foreign supplies, services, and construction materials, although in certain situations, mainly pertaining to defense and secrecy, domestic sources may receive preference over foreign sources), FAR Part 34 (for major system acquisitions), FAR Part 35 (for research and development contracting), FAR Part 36 (for construction contracting), FAR Part 37 (for service contracting), FAR Part 39 (for information technology), FAR Part 43 (governing post-award contract modifications).

 

  • Compliance with FAR Subpart 2.101, governing specialized government-wide acquisition contracts (GWACs) – infinite delivery infinite duration (IDIQ) contracts awarded to multiple bidders under which agencies issue task order solicitations subject to competitive bidding among the awardees – for procuring information technology requirements through individualized task orders. 

 

  • Compliance with FAR Subpart 3.11, generally prohibiting contractor employee conflicts of interest.

 

  • Compliance with FAR Subpart 6.2, which allows a federal procuring agency to exclude a particular source of items to be included in procurement from a contract action, in order to maintain alternative sources of supply.

 

  • Compliance with FAR Subpart 7.5, Office of Management and Budget (OMB) Circular A-76, (Performance of Commercial Activities) and 76 Federal Register 56,227 (September 12, 2011), prohibiting agencies from proposing contracts involving inherently governmental functions that must only be performed by authorized government employees, such as commanding military forces, conducting criminal investigations, or conducting foreign relations.

 

  • Compliance with FAR Subpart 8.4, governing Federal Supply Schedule Contracts (Schedule Contracts), which is managed by the U.S. General Services Administration (“GSA”), for the purpose of purchasing certain goods or services.

 

  • Compliance with FAR Subpart 8.405-2(d), allowing an agency to provide only a brief explanation when debriefing bidders for Schedule Contracts.

 

  • Compliance with FAR Subpart 9.1, providing the requirements for considering the bidder of an offer to purchase as being “presently responsible” as of the date of the award.

 

  • Compliance with FAR Subpart 9.4 providing that bidders who are suspended, debarred, or proposed for debarment, may be excluded from bidding on Federal contracts for some specified civil or criminal offences, or for non-compliance with contract requirements, and further providing that such excluded bidders may not be awarded any Federal contract or subcontract absent some compelling reason, which is to be determined solely at the exclusive discretion of the relevant Federal procuring agency head.

 

  • Compliance with FAR Subpart 9.5, generally prohibiting organizational and consultant conflicts of interest.

 

  • Compliance with FAR Subpart 9.505, allowing agencies to seek general input from the market in developing a solicitation, but prohibiting agencies from being influenced to give unfair competitive advantages to potential bidders from whom such agencies seek advice, by then creating specifications that could only be fulfilled by products that are provided exclusively by such advising bidders.

 

  • Compliance with FAR Subpart 12.602, regarding rules for commercial items or services acquisitions.

 

  • Compliance with FAR Subpart 13.1, providing particular rules for simplified acquisitions.

 

  • Compliance with FAR Subpart 13.106-3(d), allowing an agency to provide only a brief explanation when debriefing bidders for simplified acquisitions.

 

  • Compliance with FAR Subpart 14.4, providing particular rules covering sealed bidding.

 

  • Compliance with FAR Subpart 15.202 regarding pre-solicitation notices issued by the agency proposing the acquisition, to provide a generalized description of the scope of the acquisition and that allow the agency to advise potential bidder s regarding their proposal should be structured in order to be considered as a viable competitor.

 

  • Compliance with FAR Subpart 15.203(a)(2) and Subpart 15.209(a)(2), which allow an agency that intends to award a contract without first engaging bidder s in discussions regarding their proposals, to allow bidders to submit proposals that deviate from the agency’s stated requirements, providing that such bidders provide explanations as to why such bidders believe that the deviation would result in an advantage to the government.

 

  • Compliance with FAR 15.206, which allows a Federal procuring agency to change their requirements or the terms and conditions of the proposed procurement prior to award, whether before or after receipt of proposals, and also in negotiated procurements, providing that such procuring agency must amend the bid solicitation to include such revisions. 

 

  • Compliance with FAR Subpart 15.305, regarding specific evaluation rules for negotiated procurements.

 

  • Compliance with FAR Subpart 15.305(a), allowing small business participation in a bidder’s subcontracting plan to be used as an evaluation factor in awarding the contract.

 

  • Compliance with FAR Subpart 15.306(e)(1), prohibiting any individual bidder to be given preference over other bidders in negotiated procurements, and mandating that all bidders must be given the opportunity to submit revised proposals, if one bidder is allowed to do so.

 

  • Compliance with FAR Subpart 15.307, governing the submission of revised proposals for negotiated procurements.

 

  • Compliance with FAR Subpart 15.308, for competitive procurements, in which a designated agency official decides which bidder or bidders should be awarded a contract based upon an evaluation of cost, price, technical ability, past performance, and any other source selection criteria set forth in the agency’s solicitation, providing that the decision is fully documented by such agency official and must include the agency’s rationale for any trade-offs as determined by such agency official.

 

  • Compliance with FAR Subpart 15.306, allowing an agency to limit the number of proposals eligible for award by establishing a competitive short-listing for proposals from only the most highly-qualified bidders, after an initial evaluation of all proposals received.

 

  • Compliance with FAR Subpart 15.5, providing rules for debriefing unsuccessful bidders for negotiated acquisitions.

 

  • Compliance with FAR Subpart 16.5 (governing framework agreements), otherwise known as indefinite-delivery/indefinite-quantity (IDIQ) contracts, allowing Federal procurement agencies to use framework-like blanket purchase agreements.

 

  • Compliance with FAR Subpart 15.404-1, under which agencies may consider performance risk in evaluating abnormally-low tenders, and allows the solicitation to contain provisions for an evaluation of whether a bidder’s offer is realistic in relation to the scope of the acquisition.

 

  • Compliance with FAR 16.505(a)(10), 10 U.S.C. § 2304c(e)(1) and 41 U.S.C. § 4106(f)(1), under which aggrieved bidders may file a bid protest with the GAO or the particular Federal procuring agency, or may file an action in the Court of Federal Claims (depending on the type of contract, the dollar value, and the particular Federal procuring agency involved).

 

  • Compliance with FAR Subpart 16.505(b), requiring Federal procurement agencies to provide fair notice of the intent to make a purchase and then to provide a fair opportunity to submit an offer.

 

  • Compliance with FAR Subpart 16.505(b)(6), under which the rules in FAR Subpart 15.5 apply to individual task and delivery order competitions under multiple award IDIQ contracts over a certain dollar amount.

 

  • Compliance with FAR Subpart 17.5 and the Economy Act (EA), governing interagency acquisitions in which one Federal agency acquires supplies or services through another Federal agency.

 

  • Compliance with FAR Subpart 19.201, encouraging Federal agencies to conduct procurement operations in such a manner as to maximize small business participation.

 

  • Compliance with FAR Subpart 25.4 concerning “Trade Agreements”, providing rules for applying the WTO GPA to federal procurement, with certain exceptions, and certain specific rules for exclusion – such as under FAR 25.402, the value of the acquisition is factor that determines the applicability of the WTO GPA to Federal procurement contracts, however, under the anti-avoidance provisions of FAR 25.403(b)(3), agencies may not partition any acquisition for the purpose of reducing the estimated value of the acquisition below the threshold outlined in the WTO GPA.

 

  • Compliance with FAR Subpart 25.403(a), allowing particular eligible products from WTO GPA countries, and countries with trade agreements with the United States, to receive non-discriminatory treatment.

 

  • Compliance with FAR 31.103(g), requiring procuring agencies to use their best efforts to resolve bid protests within 35 days of filing (the GAO must issue a decision on a bid protest within 100 days of filing). 

 

  • Compliance with FAR Subpart 33.103 and 28 U.S.C. § 1491, generally allowing a 10-day period for bid protests, to be filed not only with the GAO, but also with the procuring agency which proposed the FAR solicitation, seeking an independent review at an administrative level above the contracting officer responsible for the FAR solicitation. 

 

  • Compliance with FAR Subpart 33. 104, allowing only a 10-day period to file bid protests related to FAR solicitations.

 

  • Compliance with FAR Subpart 33. 104(c)(2), for situations in which the procuring agency has been required to suspend performance of an awarded contract due to a bid protest, the procuring agency may override such suspension upon a finding of either the best interests of the United States or urgent and compelling circumstances which significantly affect the interests of the United States.

 

  • Compliance with FAR Subpart 33.2, for disputes concerning post-award contract changes after award are primarily governed by procedures such as in the Contract Disputes Act (CDA), which provides both an administrative remedy and a judicial process for the resolution of all claims (by both contractor and government) relating to an existing contract. 

 

  • Compliance with FAR Subpart 33.214, which encourages the use of Alternative Dispute Resolution (ADR) to resolve disputes related to FAR solicitations. 

 

  • Compliance with FAR Subpart 43.103, governing post-award contract modifications that may be made either unilaterally by the contracting officer or may be negotiated between the parties.

 

  • Compliance with FAR Subpart 52.212-1(e), for procurements for commercial items, in which bidders are encouraged to submit alternate proposals, with the purpose of possible cost savings.

 

  • Compliance with 2 C.F.R 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards) §§ 200.317 – 200.326.

 

  • Compliance with 4 C.F.R. § 21.8, allowing the Court of Federal Claims, the GAO, and procuring agencies to have much discretion in structuring remedies in response to protests of awarded contracts, although the procuring agency responsible for the FAR solicitation under protest is not obligated to follow any such recommended remedies. 

 

  • Compliance with 21 C.F.R. Part 4, governing the GAO protest procedures, which is available only to actual or prospective bidders whose direct economic interest would be affected by the award of the proposed contract. 

 

  • Compliance with 36 C.F.R. § 51.3 governing concession contracts issued by the Department of the Interior (DOI).

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  • Compliance with exemptions regarding information about certain types of Federal contracts pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

 

  • Familiarity with tax issues regarding Federal contracts pursuant to 26 U.S.C. § 5000C and the related Internal Revenue Service (IRS) regulations.

 

  • Compliance with 10 U.S.C. § 2371 and 51 U.S.C. § 20113(e), allowing the DoD and the National Aeronautics and Space Administration (NASA) to enter into other transaction agreements that are not subject to the full set of Federal procurement regulations.

 

  • Compliance with OMB regulations relating to FAR and DFAR solicitations.

 

  • Compliance with 31 U.S.C. § 3552, under which the GAO has authority to resolve protests filed by aggrieved bidders relating to FAR solicitations.

 

  • Compliance with 41 U.S.C. § 6305 – the Assignment of Contracts Act (ACA) – which prohibits the transfer of a government contract to another entity unless the government expressly consents to such transfer or the transfer occurs by operation of law, such as through a merger. 

 

  • Compliance under the FAR for executive agencies, but the Federal Aviation Administration (FAA), U.S. Postal Service (USPS), various government-sponsored enterprises – Federal National Mortgage Association (FNMA or “Fannie Mae”) and Federal Home Loan Mortgage Corporation (FHLMC or “Freddie Mac”) – and certain federal corporations – such as the Federal Deposit Insurance Corporation (FDIC) – are not subject to the FAR and issue their own acquisition rules.

 

  • Compliance for acquisitions by Federal agencies subject to the WTO GPA, listed in the GPA Appendix I, United States Annex 1 (updated by WT/LET/950, June 7, 2014).

 

  • Compliance with the GSA Acquisition Manual for cooperative purchasing (joint procurement) acquisitions.

 

  • Compliance with 83 Fed. Reg. 13,817 (April 2, 2018), for electronic filing (e-filing) bid protests on FAR solicitations.

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    Last updated 22-321_0811

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