Redstone Government Consulting Blog (54)

Whether you are new to government contracting or have been “in the game” forever, it’s not unusual for employees to get caught up in the events of the day and overlook the importance of obtaining and maintaining adequate supporting documentation in the support of pricing proposals (pre-contract award) and actual costs – both direct and indirect (post-contract award).  In a perfect world, employees are properly trained on adequate supporting documentation and documenting the appropriate files accordingly. But we aren’t living in a perfect world, and we even debate over what adequate supporting documentation entails.

It’s a busy time of year for us and many of our clients, but I wanted to take this opportunity to remind all of our readers of a few upcoming things to keep in mind. For most of our clients, January was a whirlwind of closing 2016 and getting all W-2s and 1099s completed. February will be spent ramping up for financial statement audits and the corporate tax deadline, but for government contractors there’s also a few extra things to do this time of year.

Contractors subject to FAR 52.216-7, “Allowable Cost and Payment” clause are required to submit, to the cognizant contracting officer and DCAA auditor, an electronic final indirect cost rate proposal in accordance with FAR 42.705-1(b)(1) within six months after the end of the contractor’s fiscal period. This final indirect cost rate submission will primarily be used to establish final indirect rates; however, it has evolved to also serve the purpose of establishing total allowable (direct and indirect) contract costs. DCAA has recently released a new version of the ICE Model, which is the electronic version of the “Model Incurred Cost Proposal” which provides contractors with a standard ICE submission for preparing adequate incurred cost proposals in accordance with FAR 52.216-7, “Allowable Cost and Payment.” This version, 2.0.1f (released in October 2016), may be downloaded from the DCAA website. There were no computational changes to the newly released version; only minor changes to headings and abbreviations. The following are the changes:

Although Redstone Government Consulting. Inc., makes every attempt to avoid blogs which are overtly political, we’ve taken note of a DHS OIG (Department of Homeland Security Office of Inspector General) “Management Alert” which coincidentally provides some indirect validation to the Executive Order which suspends US refugee intake for 120 days, and places a 90-day moratorium on citizens of seven countries (entering the United States).   As we all endure the divisive rhetoric directed at the Executive Order, it may or may not be coincidental that there has been no media mention of the DHS OIG Management Alert, dated January 19, 2017.

In the recently published ASBCA Nos 59508 and 59509, the ASBCA agreed with the contractor and dismissed the government claim (final decision) which had disallowed $116,789,631 (subcontractor costs as components of direct costs claimed by the prime contractor).   The premise for the (failed) final decision was DCAA’s assertion that the prime contractor had breached its contractual duty to “manage” the prime contractor’s subcontracts and subcontractors.   The reference is FAR 42.202(e)(2) which states that the prime contractor is responsible for managing its subcontracts. In context, that clause makes it clear that the government (Contracting Officer) is only responsible for administering the prime contract. In contrast, and only by implication and a legal theory created by a DCAA auditor, the prime contractor assumes certain FAR Part 42 responsibilities for subcontracts.

Understanding the requirements and/or selection criteria before preparing a fully responsive bid to a government solicitation cannot be understated. In a recent decision (B-413559.2; B-413559.8) by the Government Accountability Office (GAO), two separate government contractors’ protests questioned the government’s evaluation scheme. Specifically, the protesters argued that certain terms contained in the request for proposal (RFP) were unduly restrictive. The protestors were ultimately challenging their respective elimination from competition based on the fact that they did not score high enough to be included in the top 60 technically rated offerors.

Adhering to the requirements of a government solicitation is paramount when submitting a proposal. In a recent decision (B-413104.5; B-413104.6) by the Government Accountability Office (GAO), two separate government contractors’ protests were denied for failure to meet the explicit requirements of a solicitation for the Department of Health and Human Services, National Institutes of Health (NIH). The protestors were ultimately challenging their respective elimination from competition based on the fact that the non-responsibility determination should have been referred to the Small Business Administration (SBA) under SBA’s certificate of competency (COC) procedures.

In 1897, a famous newspaper editorial contained a response to an 8-year old girl who raised the question of the validity of Santa Clause (Is there a Santa Clause).   The response and the editorial is considered the most famous newspaper editorial ever published, not only protecting the eight year old, but causing adults to re-think their own beliefs.   In the spirit of accepting that there just might be a Santa Clause, we’ve identified some of the most mythological statements extracted from the Federal Register (regulatory reporting burden) or the Office of Management and Budget (OMB) regarding the annual benefits and costs of Federal Rules and paperwork. No one reconciles the OMB summary with the individual estimates in the Federal Register, which is probably a good thing because believing in government assertions of regulatory benefits or regulatory burdens is analogous to believing in Santa Clause. As illustrated herein, “Yes, Virginia, there is a Santa Clause and he lives in the minds of those providing estimates for regulatory burdens and/or benefits”.

The question of when and how DCAA will again perform audits for non-DoD agencies remains open, irrespective of that agency’s proposed reauthorization by the FY 2017 National Defense Authorization Act (NDAA). When, because among other things we have not yet seen final passage of the FY 2017 NDAA. And how, because we wonder if non-DoD agencies will allow DCAA to follow their own internal guidance for selection of annual incurred cost submissions for audit (or more controversial, those deemed low-risk and not audited). Of course, selection of submissions to be audited is not entirely at DCAA’s discretion since non-DoD audits are requested and funded by the non-DOD agency. However, once requested, DCAA may or may not reject requests based upon factors to include risk and dollar thresholds. From a budgetary and funding standpoint, since all non-DoD audits are subject to reimbursable funding to DCAA, it doesn’t make sense to reject any non-DOD requests for audit(s). But, for discussion purposes, let’s assume DCAA honors all requests without any limitations.

On September 30, 2016, DCAA issued the following MRD (Memorandum for Regional Directors): Update – Audit Guidance on the Impact of the National Defense Authorization Act on DCAA’s Audit Support to Non-Defense Agencies.   For the record, there isn’t anything captioned “the” National Defense Authorization Act; in this case, it happened to be referring to the 2016 Act, which was presumably “the” Act (to DCAA) because it included Section 893, which prohibits DCAA from providing audit support to non-defense agencies.