Redstone Government Consulting Blog (40)

A commercial item determination should define the item or service, document market research, identify the FAR 2.101 Commercial Item definition, and include a “determination” that the item is commercial. Sounds easy right!

What is CUI, CDI and CTI?

CUI is Controlled Unclassified Information and encompasses all Covered Defense Information (CDI) and Controlled Technical Information (CTI). CUI requires the safeguarding or dissemination of controls pursuant to applicable laws, regulations, and government-wide policies.

• Covered Defense Information (CDI) is unclassified controlled technical information or other information described in the Controlled Unclassified Information (CUI) Registry found here.
• Controlled Technical Information (CTI) is technical information with military or space application that is subject to controls on the access, use, reproduction, modification, performance, display, release, disclosure, or dissemination. It does not include information that is lawfully publicly available without restrictions.

What are the circumstances necessitating the use of a letter contract which is also referred to as an undefinitized contract? The main circumstance is the government’s interests demand that the contractor immediately begin work and negotiating the final contract price (definitized) isn’t possible in order to meet the needs of the buying activity. Letter contracts should only be used when the work needs to immediately begin and there isn’t sufficient time to agree on the final terms and conditions. The government and prime contractors use letter contracts to immediately start work and then set a schedule to work towards negotiating to the finish line.

Whistleblower claims are on the rise with alleged violations of health and safety laws as well as fraud and abuse under the CARES Act due to the pandemic. Employers need to ensure they are familiar with the whistleblower laws and their responsibilities under government contracts.

Overview:

• Biden Administration signs Executive Order to Increase Minimum Wage for Federal Contractors to $15/hour
• I-9 Physical Inspection eased again until May 31, 2021
• OFCCP – Focused Reviews canceled
• OFCCP updated the 2021 Annual Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) hiring benchmark
• Annual AAP Certification – Will OFCCP require this soon?
• Biden’s American Rescue Plan includes new COBRA subsidy requirement for most employers
• On April 15, 2021, the House passed the Paycheck Fairness Act (H.R. 7)

DoD-IG Goes After DCMA for not Supporting DCAA Findings

On February 26, 2021, the DoD-IG issued an audit report raising significant concern about the actions taken by DCMA Administrative Contracting Officers (ACOs) in relation to DCAA audit findings. The Finding section of the DoD-IG report found that out of 30 DCAA audit reports at two of the largest DoD contractors, 14 were not properly addressed per Federal Acquisition Regulation requirements by the cognizant ACO. Our guess and POGO believes the large DoD contractors are Lockheed Martin and Boeing – but this is only our guess. The DoD-IG report goes on to state that: “As a result, DCMA contracting officer actions on the eight audit reports may have resulted in improperly reimbursing DoD contractors up to $97 million in unallowable costs on Government contracts. In addition, because DCMA contracting officers did not take timely action on six audit reports, they delayed the correction of CAS noncompliances and the recovery of any increased costs due to the Government.” The report goes on to state that: “The Defense Contract Management Agency Director agreed with all five recommendations,” including reviewing ACO decisions to “Disallow and recoup any unallowable costs not previously disallowed.” (Evaluation of Defense Contract Management Agency Actions Taken on Defense Contract Audit Agency Report Findings Involving Two of the Largest Department of Defense Contractors – DoD-IG-2021-056, Dated February 26, 2021)

The DFARS requires contractors to maintain compliant systems for Material Management and Accounting System (MMAS). This video and article will help you understand the requirements of a compliant Material Management and Accounting System.

What is FAR 52.204-10 – Reporting Executive Compensation and First-Tier Subcontract Awards?

FAR 52.204-10 requires the contractor to report executive compensation of first-tier subcontracts with a value of $30,000 unless an exemption applies. Contracting Officers are required to include the FAR clause 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards, in all solicitations and contracts of $30,000 or more. A first-tier subcontract is a subcontract awarded directly by the contractor for the purpose of acquiring supplies or services for performance of a prime contract. This does not include long term arrangements between the prime and first-tier subcontractors for material or supplies that benefit multiple contracts.

Where does DCAA’s View of the Contractor and their Role in Acquisition Come From?

DCAA Auditor Training

DCAA website provides that new auditors receive in-depth professional training from DCAA’s Defense Contract Audit Institute (DCAI), along with on-the-job training at their assigned field audit office. DCAI is located in Atlanta, GA and provides auditors with an excellent basis on which to start their careers in contract audit. Many at Redstone GCI can speak from personal experience that, once you get past the exciting MARTA ride from the airport, the instructors at DCAI provide a good hands-on learning environment. However, we are not sure if it is a subliminal message piped into the classroom or local indoctrination at assigned field offices, but the auditors are coming away with the impression that no contractors can be trusted, and a good audit opinion has to include questioned cost.

Let’s Set the Stage

So as a contractor you have received several cost-based contracts (i.e., subject to FAR Part 31), however they have all been less than $7.5M. You are flying under the Cost Accounting Standards (CAS) radar. You get a $9M cost-based contract that does not meet any of the exceptions to CAS covered listed at 9903.201-1(b) – categories of contracts and subcontracts exempt from all CAS requirements. The dreaded “trigger contract.”