Jennifer Schaus & Associates SERVICES FOR US FEDERAL GOVERNMENT CONTRACTORS
WEBINAR WEDNESDAYS – 2018 WASHINGTON, DC OFFICE PHONE: 2 0 2 – 3 6 5 – 0 5 9 8
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Join Us for Our 2018 Series of Complimentary Webinars on various US Federal Government Contracting Topics. Presenters are industry experts sharing knowledge about the competitive government contracting sector. Find all of our Govt Contracting webinars (free download) at www.JenniferSchaus.com
Contact Us @ 2 0 2 – 3 6 5 – 0 5 9 8
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
REMINDERS: All webinars are complimentary. All webinars are recorded. They are found on our website and on YouTube. Please send your questions to the speaker directly. Thank you for participating.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
ABOUT JENNIFER SCHAUS & ASSOCIATES: - Based in downtown Washington, DC; -
A la carte services for Federal Contractors;
Proposal Writing to GSA Schedules, 8a Cert and Contract Administration, etc.; Educational webinars; -
Networking events and seminars;
WEBSITE: http://www.JenniferSchaus.com
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
ABOUT OUR SPEAKER: Marc I. Snyderman, Esq. - 20 Years In GOV CON: -
Education: B.A. Dickinson College, J.D. Rutgers School of Law, Executive Business Certificate University of Notre Dame - Founder, Snyderman Law Group, PC -
www.snydermanlawgroup.com
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
Procurement Integrity Act: What do you have and why? Wednesday, June, 20, 2018
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Procurement Integrity Act (FAR 3.104) • Law that embodies the concepts of: • Authority/Contracting Officer Authority • Fairness/Fair Opportunity to Compete • Competition/Full and Open • Governs behavior of both government and contractors.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Procurement Integrity Act (FAR 3.104) • Imposes civil and criminal penalties for violations • • • •
Up to $50,000 and 5 years in prison for Government employees Up to $500,000 and 5 years in prison for contractor personnel Suspension/debarment of company Cancellation of the procurement
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Procurement Integrity Act (FAR 3.104) • Two main components to PIA: 1. Ban on disclosing procurement information 2. Hiring rules for government employees
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Ban on Disclosing Procurement Information • PIA prohibits disclosure of “contractor bid or proposal information” and “source selection information” • Ban applies to: • • • •
Current federal employees Former federal employees Contractor employees advising the gov’t on a procurement Contractor employees who have advised gov’t on a procurement but no longer doing so
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
Com p
etit or 1 Com pa n in a y A ha dva s nce SSP
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Ban on Disclosing Procurement Information • Individuals are prohibited from “knowingly” obtaining or disclosing “contractor bid or proposal information” or “source selection information” BEFORE a contract is awarded, to a person other than a person authorized to receive such information. • This means if you have CBPI or SSI – ask yourself what do I have and why?
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
What is CBPI & SSI? • CBPI • Cost or pricing data • Indirect costs and direct labor rates • Proprietary information • Information marked by contractor as “CPBI”
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What is CBPI & SSI? • SSI • Bid prices • Proposed costs • Source Selection plans • Technical Evaluation Plans • Evaluation of proposals • Proposal rankings • “Other information” marked as “SSI” under FAR 3.104
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What is Prohibited? • Paying or promising any thing of value to a government official to obtain CPBI/SSI or to obtain favorable treatment in an award. • Intentionally viewing, hearing, or taking confidential government information without proper authorization. • Offering or promising employment or a business opportunity to a government official, or his/her family members to obtain restricted government information or favorable treatment in an award. • Obtaining information about a competitor’s price, costs, or bidding plans during a procurement period from any nonpublic source.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What is Prohibited? • Inducing a competitor not to bid on a particular procurement • Any action that the Company cannot do directly cannot be done indirectly through the use of a consultant, agent, or other party.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
• • • •
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PIA Does Not Apply: To the disclosure or receipt of information by authorized personnel When a contractor discloses its own information When a procurement has been canceled before award (unless plan to resume) To meetings between agency official and potential offeror, provided no unauthorized disclosure
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
PIA Does Not Apply: • To restrict sharing information with Congress, GAO, a Federal agency or an IG • To limit a requirement, sanction, contract penalty or remedy established under another law or regulation • To non-competitive procurements
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? Ray is a DOD employee and a member of the team writing the SOW for a sole source contract. Believing he can shorten the process, he sends the sole source contractor an advance copy of the SOW for back-channel comments. Has Ray violated the PIA?
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not?
No, because a sole source contract is not competitive and therefore PIA does not apply.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? • Subcontractor helps prepare a proposal with a prime contractor under a Teaming Agreement. Subcontractor then submits its own proposal for follow-on contract, using identical passages from previous proposal that contains Prime’s proprietary info. Violation?
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? • No PIA violation. Prime contractor voluntarily shared info with subcontractor. • Could be a violation of the TA but that’s a private dispute between subcontractor and prime. • DynCorp International, LLC, B-408516, et al.,Oct. 29, 2013, 2013 CPD ¶ 243
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? • The DoD inadvertently disclosed proprietary information from the incumbent contractor in the RFP documents and on DoD webpages. The disclosures contained the incumbent’s historical contract information. It immediately removed the proprietary info. Violation?
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? • No violation because the information release did not relate to the agency procurement. • Also, protestor couldn’t show that the release was done “knowingly.” • S&K Aerospace, LLC, B-411648, Sept. 18, 2015, 2015 CPD ¶ 336.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? • Air Force Contracting Officer inadvertently sent Contractor’s point of contact an e-mail with source selection sensitive attachments relating to the evaluation of a competitor and information about that competitor’s proposal • The Contractor’s POC forwarded it to employees without realizing what it was • Air Force attempted to recall the email 10 minutes later
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? • Contractor took 2 days to fully quarantine the email • Recipients of the e-mail continued to work on the proposal
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? • Air Force Suspension and Debarment concluded that the contractor’s conduct was in violation of the PIA • The contractor was suspended for its conduct after the disclosure. • The suspension was only lifted after the contractor could show that it had implemented an ethics program and better procedures.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Hiring Rules • Gov’t employee who is “personally and substantially” participating in a “Federal agency procurement” in excess of the simplified acquisition threshold ($150,000) and who: • contacts; or • is contacted by a bidder or offeror in that procurement regarding possible non-Federal employment
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Hiring Rules MUST • Report the contact promptly to the Gov’t ethics office; and • Reject the employment opportunity or disqualify him/herself from further participation in the procurement (offeror is no longer bidder or all discussions about employment have terminated)
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Restrictions after leaving Gov’t employment • 1 year ban on a gov’t official accepting compensation from a prime contractor that has been awarded a competitive or sole source contract, as an employee, officer, director or consultant, after the official: • Served as the procuring contracting officer, source selection authority, a member of a source selection evaluation board, or chief of financial or technical evaluation team;
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Restrictions after leaving Gov’t employment (con’t) • Served as program manager, deputy program manager, or admin contracting officer • Official who personally made decisions on: awarding contracts, subcontracts, mods, task or delivery orders; establish overhead or other rates; pay or settle claims • Only applies to contracts in excess of $10 million
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? Linda is the deputy program manager over a major technical engineering services project. The project relied on a sole source contract to XYZ Company for technical engineering services which was in excess of $10 million. Two months after assuming this position, Linda leaves the government and is offered a job working for XYZ Company in the same general area. Does PIA prevent Guy from taking the job?
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? Linda is barred from accepting compensation from XYZ Company due to the 1 year ban.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? A $12 million competitive award is made to ABC Company on January 10, 2017. The week before the award, Sharon becomes a member of the source selection board on the procurement. After award to ABC Company, Sharon becomes the contracts administrator and made the decision to award several task orders to ABC Company. After a dispute with her boss, Sharon leaves federal service and joins ABC Company on June 5, 2017. Violation?
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Violation or Not? Yes! Sharon cannot accept compensation from ABC Company after awarding task orders to the company.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
If a violation occurs • If you think that information has been improperly disclosed to you and you want to know if others have the same information, ask! • People around you may not know the rules so it’s up to you to ask questions. • Be aware if the source of information does not want to be revealed.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
If a violation occurs • If you do receive sensitive information, stop reading or listening. • Contact your supervisor or legal counsel • Quarantine the information and don’t share with anyone • May have to think about mandatory disclosure to the government • Mark your information as proprietary
THANK YOU FOR ATTENDING!!
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QUESTIONS? CONTACT OUR SPEAKER Marc I. Snyderman AT 856-324-8267 AND AT
SERVICES FOR US FEDERAL CONTRACTORS
marc@snydermanlawgroup.com
OFFICE: 2 0 2 – 3 6 5 – 0 5 9 8