The Department of Defense Office of Inspector General (“OIG”) recently announced that it was initiating an audit to determine whether agencies within DoD awarded Service-Disabled Veteran-Owned Small Business (“SDVOSB”) set-aside and sole-source contracts to eligible companies. The audit is set to begin this month, and likely will evaluate the number and value of contracts awarded to SDVOSBs under set-asides and sole-source procurements, as well as whether and how agencies confirm that awardees qualify as SDVOSBs at the time of award. The audit, which comes six years after the OIG previously determined that DoD did not have adequate controls in place to ensure the integrity of the SDVOSB set-aside program, signals that SDVOSB eligibility issues are likely to become a greater point of emphasis in future enforcement proceedings.

Continue Reading DoD OIG Audit: What SDVOSBs Need to Know

In a case of first impression, a Court of Appeals has held that a government subcontractor’s claim for reimbursement of its actual indirect costs was time-barred. Fluor Fed’l Solns. LLC v. PAE Applied Techs, LLC, No. 17-1468, 2018 WL 1768233 (4th Cir. Apr. 12, 2018) (per curiam) (unpublished). It is the first case to directly address the interplay between the Allowable Cost and Payment Clause of the Federal Acquisition Regulation (“FAR”), 48 C.F.R. § 52.216-7, and a statute of limitations. It highlights the risks government subcontractors face when they choose to wait for a Government audit rather than litigate promptly after a payment dispute arises.

Continue Reading Waiting For the Final Government Audit May Be Too Late

The Inspector General (“IG”) of the Department of Defense issued a report on October 1, 2015, sharply criticizing the performance of Defense Contract Management Agency (“DCMA”) contracting officers.  In a sample of 21 business system deficiency reports (collected from the 164 reports filed between July 2012 and June 2013) the IG investigation found none that fully complied with DCMA’s obligations under the Defense Federal Acquisition Regulation Supplement.  The overwhelming majority of the reports were deficient in multiple respects, and many of them were severely untimely.

Should government contractors celebrate this public admonishment from the IG?  Probably not.

Although the investigation alleges serious lapses in the timeliness and sufficiency of DCMA’s reports, it rests on the presumption that DCMA needs to be more aggressive in identifying and correcting deficiencies.  The report does not suggest, for example, that the DCMA’s delays result from overzealous investigations or excessive focus on insignificant concerns.  Instead, the report calls for reforms that would increase the incentives for DCMA contracting officers and Defense Contract Audit Agency (“DCAA”) auditors to take swift, aggressive action.    
Continue Reading Defense IG’s Criticism of DCMA Is Cold Comfort for Government Contractors

On April 30, 2015, the House Armed Services Committee passed H.R. 1735, the National Defense Authorization Act for Fiscal Year (“FY”) 2016, with an amendment (Log #325rl) that could shape how the Department of Defense (“DoD”) acquires audit and audit readiness services for its Financial Improvement and Audit Readiness (“FIAR”) Plan. Under the FIAR Plan, DoD must validate the audit readiness of its financial statements by September 30, 2017, and it must submit to Congress an audit of its FY 2018 financial books by March 31, 2019. The amendment states that, for DoD to meet these deadlines, “it is imperative that [DoD] not sacrifice contracts with firms who have the proper credentials and expertise” to provide DoD with audit and audit readiness services. Hence, the amendment bars the use of a lowest-price, technically-acceptable (“LPTA”) evaluation method to procure such services unless DoD (1) establishes “the values and metrics for the services being procured, including domain expertise and experience, size and scope of [an] offeror’s team, personnel qualifications and certifications, technology, and tools”; and (2) considers offerors’ past performance history.
Continue Reading An Acceptable Proposal: Set Appropriately High, Clear Standards for DoD’s Auditors and LPTA Competitions