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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


May 2016
Vol. XVII, No. 5
[pdf version]

CONTENTS


GAO Proposes Electronic Protest System, $350 Filing Fee
DOD Takes It Easy in April
SBA Proposes Joining SBIR and STTR Policies
SBA Issues WOSB Review Procedures for Migration
NASA Proposes to Clarify Award Fee Process
DOE Requires Strategic Sourcing Consideration



GAO Proposes Electronic Protest System,
$350 Filing Fee

The Government Accountability Office (GAO) is proposing to amend its bid protest procedures to establish and operate an electronic filing and document dissemination system for the filing of bid protests with GAO. This system is required by Section 1501 of the Consolidated Appropriations Act for Fiscal Year (FY) 2014 (Public Law 113-76). The system, to be called the Electronic Protest Docketing System (EPDS), will be the sole means for filing a bid protest at GAO (with the exception of protests containing classified information), and will enable parties to a bid protest and GAO to file and receive documents. In addition, GAO is proposing to charge a $350 bid protest filing fee for using the system.

Section 1501 directs GAO to “establish and operate an electronic filing and document dissemination system under which...(A) a person filing a protest...may file the protest through electronic means; and (B) all documents and information required with respect to the protest may be disseminated and made available to the parties to the protest through electronic means.” In addition, Section 1501 authorizes GAO to “require each person who files a protest…to pay a fee to support the establishment and operation of the electronic system...”

GAO is currently developing the EPDS, which GAO characterizes as “a secure and easy-to-use web-based electronic bid protest filing and dissemination system. EPDS will also provide automatic notice of a protest to the agency. Once it is live, all protesters will be required to use the system to file new protests, and there will be a $350.00 filing fee.”

The introduction to the proposed changes to GAO’s protest procedures explains the derivation of the $350 fee: “GAO derived the fee using actual costs GAO has incurred to develop the system, estimates of future costs for hosting and maintaining the system (adjusted for inflation), estimates of future annual bid protest filings as determined by considering historical filings of the past five fiscal years, and a recovery period for development costs of approximately six years. System establishment costs include payments made by GAO under an interagency agreement for development of the system, as well as GAO’s internal costs incurred for system development. Costs to maintain the system include estimated payments for post-development hosting and support of the electronic protest filing system, as well as estimates of GAO’s internal costs associated with maintaining the system after it has been deployed. All fees collected will be maintained in a separate account established by GAO. The fee will be reviewed every two years to ensure that it is properly calibrated to recover the costs of establishing and maintaining the system.”

GAO is proposing to amend its protest procedures, which are in Title 4 of the Code of Federal Regulations, Part 21, Bid Protest Procedures (4 CFR part 21) to recognize the EPDS, to reflect how the bid protest procedures will be revised to reflect the mandatory nature of the EPDS, to make certain administrative changes to reflect current practice, and to streamline the bid protest process. A website where additional guidance for the use of EPDS and the payment of protest filing fees will be provided in the final rule.

Comments on this proposed rule must be submitted no later than May 16, 2016, by either email to bidprotestregs@gao.gov, or by mail to Jonathan L. Kang, Senior Attorney, Government Accountability Office, 441 G Street NW, Washington, DC 20548.



DOD Takes It Easy in April

The Department of Defense (DOD) decided to take April off, issuing no final, interim, or proposed rules changing the Defense Federal Acquisition Regulation Supplement (DFARS). Instead, all DOD did was issue a request for comments on a proposed memorandum of understanding with Latvia, two guidance documents, and a report on contract cost growth.



SBA Proposes Joining SBIR and STTR Policies

The Small Business Administration (SBA) is proposing to revise the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) program policy directives. Specifically, the SBA proposes to combine the two directives into one document, clarify the data rights and Phase III preference afforded to SBIR and STTR small business awardees, add definitions relating to data rights, and clarify the benchmarks for progress towards commercialization.

The purpose of the SBIR program is to stimulate innovation in the U.S. economy by engaging innovative small businesses in federally funded research and research and development (R/R&D). Similarly, the purpose of the STTR program is to foster partnerships of ideas and technologies between innovative small businesses and research institutions through federally-funded R/R&D. Federal awards to small businesses under the SBIR and STTR programs assist the small business and research communities by commercializing innovative technologies.

Both programs use a phased process to solicit proposals and award funding agreements for R/R&D to meet stated agency needs or missions. To stimulate and foster scientific and technological innovation, including increasing commercialization of federal R/R&D, the programs follow a competitive process of three phases: Phase I, Phase II, and Phase III.

The Small Business Act requires that the SBA issue a policy directive establishing guidance to the federal agencies participating in the SBIR and STTR programs. SBA is proposing to amend both the SBIR and STTR policy directives by combining the two directives into one because the general structure of both programs is the same. In addition, SBA is proposing to clarify the important issues relating to both programs, particularly concerning data rights, Phase III awards, and benchmarks to commercialization achievement. Although the policy directives are intended for use by the participating agencies, SBA believes that public input on the proposed provisions from all parties involved in the program is invaluable. Therefore, SBA is soliciting public comments on these proposed amendments, particularly on the following:

Comments on the proposed SBIR/STTR directive must be submitted no later than June 6, 2016, identified by “RIN: 3245–AG64,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail, hand delivery, or courier: Edsel Brown, Assistant Director, Office of Innovation, U.S. Small Business Administration, 409 Third Street SW, Washington, DC 20416.



SBA Issues WOSB Review Procedures for Migration

To improve the women-owned small business (WOSB) program, SBA is conducting a system-wide migration of files from the original women’s repository to an improved system. Since contracting officers are required to validate the eligibility of firms selected as apparent awardees under the WOSB program, access to the women’s repository will be temporarily unavailable during the system migration, which is expect to last for several weeks.

To enable agencies to continue support of the WOSB program during this time, SBA will review the repository on behalf of a contracting officer. To accomplish this, SBA has implemented the following procedures:

Questions may be referred to the WOSB Program Director, Office of Government Contracting, at wosb@sba.gov, or (202) 205-6822. SBA will notify all agencies when the system migration is completed and access to the women’s repository is reestablished.



NASA Proposes to Clarify Award Fee Process

The National Aeronautics and Space Administration (NASA) is proposing to amend NASA FAR Supplement (NFS) subpart 1816.4, Incentive Contracts, and NFS 1852.216-77, Award Fee for End Item Contracts, to clarify NASA’s award fee process by incorporating: terms used in award fee contracting; guidance relative to final award fee evaluations; the release of source selection information; and the calculation of the provisional award fee payment percentage in NASA end-item award fee contracts.

The following are the changes being proposed:

Finally, since Federal Acquisition Circular (FAC) 2005-17 rewrote FAR part 45, Government Property, and removed FAR 52.216-13, Allowable Cost and Payment – Facilities, in the process, references to FAR 52.216-13 would be removed from NFS 1816.307, Contract Clauses, NFS 1816.307-70, NASA Contract Clauses, and NFS 1852.216-89, Assignment and Release Forms. (For more on FAC 2005-17, see the June 2007 Federal Contracts Perspective article “FAR Coverage on Government Property Simplified, Clarified, Trimmed.”)

Comments on the proposed rule must be submitted no later than June 21, 2016, identified by “NFS Case 2016-N008,” by any of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; (2) email: william.roets-1@nasa.gov; (3) fax: 202-358-3082; or (4) mail: NASA Headquarters (HQ), Office of Procurement, Contract and Grant Policy Division, Attn: Mr. William Roets, Suite 5M18, 300 E Street SW, Washington, DC 20546-0001.



DOE Requires Strategic Sourcing Consideration

The Department of Energy (DOE) acting senior procurement executive, Berta Scheiber, and the National Nuclear Security Administration (NNSA) senior procurement executive, Joseph Waddell, issued a joint memorandum to their contracting officers on the requirement to consider using existing strategic sourcing agreements prior to issuing a new contract.

“When an existing strategic sourcing agreement is not used, the contracting officer must include in the contract file a brief analysis of the comparative value, including price and non-price factors, between the services and supplies offered under the source or sources used for the purchase and the strategic sourcing agreement,” state Scheiber and Waddell. “The general process for facilitating the use of strategic sourcing agreements is:





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