Myth of Self-Deleting FAR Clauses
Have you ever heard of the SELF-DELETING clause? Sounds magical. Mystical. Mysterious. There is no such thing as a self-deleting clause Did you notice how I said some dirty tricks come about from ignorance or incompetence? The infamous myth of the “self-deleting clause” is a prominent example. There is no such thing as a self-deleting clause. Be very careful with any “professionals” who talk about self-deleting clauses. The erroneous theory behind this canard is that if any c
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Requests for Equitable Adjustment, Change Orders, and Constructive Changes
What is a constructive change? A constructive change is a doctrine of law invented by judges that protects your company from getting “ripped off.” If the contracting officer’s words, writings, communications, acts, or failure to act causes your company to make changes under the contract—even though there was no formal change order—the doctrine of constructive changes may entitle your company to an equitable adjustment. In other words, if the contracting officer’s action or inactio
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What is the difference between past performance and experience in government contracts?
The difference between past performance and experience is simple. Experience evaluates whether your company in the past did something relevant to the upcoming government contract. Past performance evaluates how well your company performed, not just whether it did something. If experience is a record of your attendance at school, past performance is the report card. If experience is your diploma, past performance is your actual grade point average. What if I have no past performance? The
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Government Contracts Expert Witness Christoph Mlinarchik of Christoph LLC
Government Contracts Expert Witness Christoph Mlinarchik of Christoph LLC shares his path to success! Millions plan, yet few succeed. The difference might be intermediate planning—i.e., the steps that come between your life as you know it and your future goals. Have you ever thought of being an expert witness in government contracting, hired by attorneys and their clients to opine on specific topics during litigation? I did. It was one of my career goals. But let me tell you, it wasn’t
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When Does This Law Take Effect in Government Contracting? Laws, Regulations, and the FAR
This perennial problem puzzles our profession every time it presents itself: Congress passes a new law affecting government contracting; The law does not specify when the changes take effect; The Federal Acquisition Regulation (FAR) has not been updated with the changes prescribed by this new law—therefore, there are no FAR clauses that reflect the new law. How do we proceed? When does this law take effect? If you have questions about changes in the law and how they affect
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Big Changes to Small Business Size Rules for Government Contract Set-Asides
The new year (specifically, January 6, 2020) will bring new rules for small businesses in government contracting. Even if you're a large business, this is important because it affects your supply chain. In fact, you might actually qualify as a small business now! Here's the deal: To qualify for government contract set-asides, small businesses can calculate their revenue based on the average of the last five years, instead of the last three years. There's also a two-year "grace period" that al
Read MoreNo, the FAR Does Not Apply to Government Contractors (Gasp!)
Is the door closed? I’m going to share one of the biggest secrets in government contracts. Everyone in the government contracting industry has heard of the Federal Acquisition Regulation (FAR). Some call it “the Bible” for government contracts. Are you sitting down? Take a deep breath, because I’ve got some shocking news for you. The FAR does not apply to government contractors. Of the thousands of contracting officers, proposal managers, attorneys, business executives, and sale
Read MoreHow to Ask for More Money on Your Government Contract: Request for Equitable Adjustment or Claim
Strangely enough, the Contract Disputes Act of 1978 (CDA) does not define its most important term—“claim.” As a result, courts look to the Federal Acquisition Regulation (FAR) for guidance. FAR 2.101 defines a claim as a “written demand or written assertion by one of the contracting parties, seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to a contract.” Superficial
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Bid Protests of Government Contracts: Good for Business or Relationship Killers?
Are bid protests good for business, or are they relationship killers? How many bid protests is too many? That was the title of my award-winning article, which covered the unprecedented "ban" by the Government Accountability Office (GAO) of an extremely enthusiastic contractor who volley-fired more than two-thousand bid protests (yes, you read that correctly). GAO lost patience and decided to “ban” the contractor, twice! My full-length article covers all the gory details, including why GAO
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Understand Debriefings to Win More Government Contracts
Did you just lose a government contract competition? You need to ask for a debriefing! That's your chance to learn why you lost and how you can win next time! This article is from the government's perspective, but contact Christoph@ChristophLLC.com for expert advice for your situation. Source selections always carry the risk of litigation. The bad news is there is no way to eliminate the possibility of a protest. The good news is there are ways to conduct source selections to minimize the
Read MoreSecrets of Superstar Government Contractors
Superstar government contractors have a few things in common. Read more to find out the secrets of how to be successful in federal contracting. The contracting profession is staring down a demographic cliff-- much of the experienced acquisition workforce will soon retire. To fill this leadership void, the next generation must stand and deliver. This article explores the attributes, motivations, and talents of superior contracting professionals. Within 10 years, 63 percent of the U.S. feder
Read MoreResearch Resources for Government Contract Proposal Managers
There are four sources of authority which every federal proposal professional must understand and be able to explain to clients. These market research resources for government contract proposal managers are statute, regulation, policy, and court decisions. You need to know these concepts because they affect the request for proposal (RFP) or solicitation format, offer and negotiation process, and the client’s behavior in selecting or not selecting your proposal. Millions of dollars are at st
Read MoreOther Transaction Authority: Flexible Government Contracting for Innovative Technology
Other Transaction Authority is a flexible technique to acquire innovative technology and avoid many problems of government contracts. We all know government acquisitions are slow. New fighter planes, tanks, and battleships can take ten to fifteen years to develop and field. By then, the technology is no longer state-of-the-art. We all know government contracts are cumbersome. Regulations upon regulations upon regulations! Special accounting rules. Downright predatory intellectual property
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Other Transaction Authority in Government Contracting
Do you have questions about Other Transactions (OTs) or Other Transaction Authority (OTA)? Contact Christoph@ChristophLLC.com to get expert advice in this field. Christoph is heavily involved in Other Transactions, tracks the latest changes, and knows where to go for innovative research and development (R&D) contracts, grants, cooperative agreements, and Other Transactions. Keep in mind this article was published in 2016, and the laws change frequently. Other Transaction Authority: Acqu
Read MorePay Attention to Important Terms and Definitions in Government Contracts
Sticks and Stones: How Words and Terms of Art Can Hurt the Contracting Profession. Pay attention to important terms and definitions in government contracts. The misuse of words and terms in the contracting profession can be detrimental, as contract interpretation turns on minute differences in terminology and definitions. Thus, it is important to know how to use important terms of art properly, as well as how they can be flagrantly abused—especially regarding justifications and the sco
Read MoreHow to Write a Contracting Officer Final Decision for Government Contract Claims
Include all the required elements of a Final Decision of a Government Contract Claim The Contracting Officer’s Final Decision (hereafter “Final Decision”) is an incredibly important document because it is the Government’s initial response to a contractor’s claim under the Contract Disputes Act. It serves as the Government’s opening move in the claim process and sets the stage for future litigation. The Final Decision is binding and conclusive unless the contractor appeals i
Read MoreHow to Research Government Contracts and the FAR or DFARS
The FAR reference book on your table was outdated the moment it rolled off the printing press. The DPAP memorandum you saved to your computer may have been superseded weeks ago. Statutes, regulations, and policies change rapidly, but it’s your responsibility to be informed and knowledgeable. How can a contracting professional stay abreast of current developments? How should you research government contracts, or the FAR, or the DFARS? The key is to (a) find relevant sources and (b) fil
Read MoreHow to Interpret a Government Contract
Learning how to interpret a government contract is extremely important for the success of your federal contracting business. Government contractors need to know the rules of government contracting interpretation! The paramount goal of contract interpretation is to find a single interpretation that accurately reflects the intent of the parties. Once that intent is determined, courts will generally hold the parties to it. See Firestone Tire & Rubber Co. v. United States, 444 F.2d 547 (C
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Government Contracting Reform, Pentagon Reorganization, and the Section 809 Panel
Government contracting reform is on the table, along with the Pentagon reorganization, and the acquisition reform recommendations of the Section 809 Panel! Congress wants federal contracting reform. That's why they created the Section 809 Acquisition Reform Panel in the National Defense Authorization Act (NDAA) for fiscal year 2016. Congress is also frustrated with the way the Pentagon does business. That’s why they demanded a total reorganization of the (former) Office of the Undersecretar
Read MoreDoes the FAR Apply to Government Contractors? No!
Dispelling Myths in FAR Applicability and Clause Selection in Government Contracts BY CHRISTOPH MLINARCHIK, JD, CFCM, PMP As contracting professionals, our mandate is to educate, inform, advance, and improve the contracting profession.[1] Fundamental concepts lay the foundation for achievement, mastery, and professionalism, but minor misunderstandings can morph into major misconceptions. For these reasons, this article hammers home a critical concept that affects all federal contracts
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Amazon Headquarters Arrives on the East Coast Ready for Government Contracts
There goes the neighborhood! Technology and online commerce giant Amazon has chosen new headquarters—plural. Amazon will have two new headquarters in Long Island City, New York, and in Northern Virginia. The motive is unmistakable. By moving to New York City and Northern Virginia, Amazon will cozy up to the financial and federal power centers of America. Long Island City is close enough to Wall Street. Amazon’s move to the Arlington and Alexandria area of Northern Virginia is an obvious p
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How Many GAO Bid Protests of Government Contracts is Too Many?
GAO's Recent One-Year Ban of a Frequent Protestor Spurs Debate over the GAO Bid Protest Forum and Its Authority After a remarkable decision rendered by the Government Accountability Office (GAO),[i] there’s a buzz in the air about bid protests—and it’s at a fever pitch. For the first time ever, GAO chose to ban a protestor from filing any bid protests with GAO for a period of one year. But was GAO’s sanction against this protestor justified? Will it withstand scrutiny? Does GAO act
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