Recent Developments In Federal Procurement Ed Kinberg Fellow, NCMA Kinberg & Associates, LLC Melbourne, Florida

9/9/09 2 Today ’ s Discussion  Good Sources  Upcoming Challenges  Suspension and Debarment  Bid Protests  False Claims Act

9/9/09 3 Good Sources  Where in Federal Contracting (Wifcon.com)  The FAIR Institute (  Defense Acquisition University – Federal Acquisiton Institute(learn.dau.mil)  OMB Watch (ombwatch.org)  Rumbaugh Regulatory Update (rumbaugh.net)

Upcoming Challenges  Increased pressure on price  Increased Oversight  Rapidly Changing Regulations  Independent Program Oversight 9/9/09 4

Suspension & Debarment The Clean Contracting Act (CCA) (Going Beyond Suspension and Debarment) This act “mandates” the addition of the following to the Suspension and Debarment Database -Information relating to civil, criminal and administrative proceedings -Information relating to terminations for default - Administrative agreements to resolve suspension and debarment actions - Contracting Officer nonresponsibility findings 9/9/09 5

6 Bid Protests The Numbers

GAO Bid Protest The Boeing Protest: The shotgun still works or large procurements will always have errors. Agency attempted to limit GAO jurisdiction over task orders to a procedural review of whether the process for issuing the delivery order was sufficient. GAO found it has its review of such delivery orders is identical to its review of RFP’s and IFB’s 9/9/09 7

GAO Bid Protests RFP that required offerors to establish a requirement for equipment certification at time of submitting offer was unduly restrictive. Smartnet, Inc. B The GAO cannot consider an allegation of a procurement integrity violation unless the protestor had reported the alleged violation to the Agency within 14 days of discovery. Honeywell Technology Solutions, Inc. B /9/09 8

The False Claims Act The Fraud Enforcement & Recovery Act 2009 Expands the scope to clearly include subcontractors and suppliers No longer required to submit claim with intent “to get” claims paid or approved by Govt. Material is defined as “having a natural tendency to influence or be capable of influencing the payment or receipt of money. Eliminates the need for a false claim to be paid or approved. 9/9/09 9

6/11/ Conclusion  Lots of big changes coming  Courts & Boards seem to be more accepting of unique issues  IDIQ’s Orders will be contested.