Redstone Government Consulting Blog | Michael Steen (7)

Loss of Memory or In-Denial?

As most contractors (subject to DCAA incurred cost audits) are aware, DCAA and DCMA were soundly “defeated” in terms of ASBCA rejections of DCAA FAR 31.205-6(b) compensation reasonableness challenges (Reference to J.F. Taylor, ASBCA Cases 56105, 56322 and Metron, ASBCA Cases 56624, 56751, 56752).

Recently the House of Representative unanimously passed a bill prohibiting new federal contracts with companies with seriously delinquent federal tax debts. However, the House failed to pass a similar measure, Federal Employee Tax Accountability Act (FETAA), which could have resulted in terminating government employees with seriously delinquent tax debts. It seems to us that retaining government employees with serious tax debt is equivalent to retaining employees who steal from their employer, but apparently in the view of Democratic Congress-persons (critics of the FETAA), it would be unfair to single out federal workers whose tax compliance is better than the general public. The last we checked, the general public does not work for the federal government and in any case, the specific federal employees who are seriously tax delinquent are not tax compliant so who cares if federal employees collectively are more tax compliant than the general public. 

As one more indication that DCAA is the puppeteer and the DAR Council are the puppets, the DFARS Final Rule (DFARS Case 2011-D042) requiring a proposal checklist was issued on March 28, 2013.  The proposed checklist and the substance of the final checklist were eerily similar to DCAA’s proposal checklist, which “was” an unconstrained embellishment of anything actually required in the regulations.  The checklist is form over substance and just one more unnecessary document solely to make life easy for DCAA (although not quite as bad as FAR requirements for contractors to provide DCAA with SEC filings as if DCAA auditors are incapable of retrieving these from the readily accessible internet).  The absurdity of the DFARS proposal adequacy checklist rule is self-evident in one public comment and the DAR Council response:

In 2012, DCAA reported to Congress that its 2011 average elapsed days for completing 349 Incurred Cost Proposal audits was 965 days.  As it relates to incurred cost proposal audits, DCAA’s FY2012 audit plan acknowledged its increasing backlog of unaudited incurred costs and also its use of dedicated audit resources (“virtual FAOs”) to reduce the unaudited incurred costs.

DCAA recently published its 2012 Year in Review which highlighted the fact that DCAA’s net savings was $4.2 billion (the highest in Agency history) and representing a ROI of $6.70 for every dollar “invested”.  The terminology and the 30 page report are written as if taxpayers are stockholders and DCAA is reporting to those stockholders.   For the record, DCAA’s net savings are unaudited as are every other statistic included in the report.

DPAP (Defense Procurement and Acquisition Policy) recently issued a class deviation—Prohibition on the Use of Cost-Type Contracts for Production of Major Defense Acquisition Programs.  The “prohibition” actually provides for exceptions including certifications (provided to congressional defense committees) of the need which justifies a cost-type contract and steps to limit cost type pricing to portions of the contract which require this contract type.  The class deviation, by reference to a DOD Instruction, defines certain key terms including a major defense acquisition.

As 2013 begins, the most significant challenge for all government contractors is sequestration (or major government agency budget reductions). We do know that there will be fewer procurement dollars and in doing its part to reduce government spending, DCAA (Defense Contract Audit Agency) has one clear self-declared mission, “Protecting the Taxpayer” even when such protection is inconsistent with applicable regulations as well as published decisions related to contract disputes.  Although there are ultimately more than four challenges, we believe the following categories top the list where DCAA assertions are  ”out on a regulatory limb” in challenges for government contractors.