Redstone Government Consulting Blog (31)

Wage Determination Clauses Can Bite You

What is the spookiest and scariest story for a government contractor? How about a story where the government imposes an expense on a contractor, but doesn’t allow for consideration of this expense in the contract value? So, in layman’s terms, losing money (profit) on government contracts. In a recent ASBCA decision, this is exactly what happened.

Overview

• The deadline of December 8, 2021 requiring Federal contractor employees to be fully vaccinated against COVID-19 is quickly approaching.
• The proposed OSHA vaccine mandate for private employers is NOT YET in effect.
• The EEOC recently updated their Technical Assistance Questions and Answers that address questions about religious objections to employer COVID-19 vaccine requirements and how they interact with federal equal employment opportunity (EEO) laws.

On June 24, 2021, the Armed Services Board of Contract Appeals (ASBCA) opinioned that Intellicheck, Inc., a subcontractor, did not have privity of contract or even an implied-in-fact contract with the Government to allow for the recovery of costs incurred by Intellicheck, Inc. to maintain and store Government property after the completion of a Task Order for the Navy. A tale as old as time, the Government lets years go by before taking action to dispose of its property being held by a subcontractor. Then finds a legal out for not paying the costs the Government caused to be incurred.

Source: Deltek blog

A full DCAA Business System Audit can be the longest and one of the most difficult audits a government contractor can experience. To provide some perspective, at a recent audit of one of our clients, DCAA sent 15 auditors to perform the audit. In general, our experience is that these audits take 12 months to over 18 months for DCAA to perform.

In 2017 Congress directed through the National Defense Authorization Act (NDAA) that changes be made to the treatment of independent research and development (IR&D) costs and required the Defense Contract Audit Agency to provide as part of its annual report to Congress both independent research and development and bid and proposal (B&P) costs expended by DoD contractors. Congress intended this change to apply to indirect costs incurred on or after October 1, 2017. The Defense Acquisition Regulation (DAR) Council must have read over that part.

Deltek Costpoint Planning provides access to up-to-date, accurate information for developing, adjusting, auditing, approving, and re-forecasting project budgets and annual operating plans. We usually see three types of users in the Planning module: Business Development, Project Managers, and Project Control/Financial Analysts. Business Development users have access to develop new business budgets. Project Managers can create project budgets and run meaningful reports allowing them to make real time decisions and properly manage their programs. Project control/financial analysts can develop organization budgets and reconcile corporate and project budgets more accurately to better forecast their indirect rates.

DCMA updated the Contractor Purchasing System Review (CPSR) Handbook on September 10, 2021.

Recently, our office has become aware of a few instances of auditors misunderstanding the DCAA Headquarters’ guidance pertaining to the treatment of credits associated with PPP Loan Forgiveness.

In our last newsletter, we focused on some of the unnecessary obstacles small businesses face in the regulatory environment and areas where, in our opinion, Government auditors, particularly DCAA, misinterpret regulatory guidance in their efforts to question costs.

This is the second of a two-part blog series where we tackle small business joint ventures and the SBA Mentor-Protégé Program. In this blog, we will discuss small business joint ventures and how a government contractor can get involved in one.