Postal Service contractors frequently employ their own language.  For example, to a postal contractor, a “highway contract” is not a contract to build a road but rather a contract to transport mail on a road. A new example of this postal-only language is something called a “disagreement.”  This is the word used to describe what the rest of the government contract world would call a “protest.”  The Postal Service’s internal bid protest (“disagreement”) procedures have been around now for several years, but have recently been revised, so this would be a good time to review them. 

Organizational Conflicts of Interest arise when a contractor’s work on one government contract gives it an unfair advantage in competing for a second contract or when it impairs the contractor’s ability to give impartial advice to the government.  Although FAR 9.5 offers general guidance on OCIs, GAO guidance on the issue is not currently reflected there.  In April 2010, the Defense Department proposed sweeping revisions to the DOD FAR Supplement to incorporate GAO caselaw addressing OCIs and to make it clear that the new OCI rules would apply to all DOD procurements. 75 Fed. Reg. 20954 (Apr. 22, 2010).  Final regulations were published December 29.  75 Fed. Reg. 81908 (Dec. 29, 2010).

Is a contractor entitled to be paid for performing additional work if that work can be accomplished within the contract’s delivery schedule?  The answer is a resounding yes.  There is no such thing as non-compensable “extra time” under a Postal Service HCR contract.  While some officials may believe a contractor is not entitled to additional pay for service changes that do not extend the delivery schedule, this is a dangerous misunderstanding of HCR contracts, as established by a recent case decided by the U.S. Court of Federal Claims.

Fascinating details about how top Postal Service officials make decisions and interact with each another are contained in a June 21, 2010 report by USPS Office of Inspector General (OIG). The OIG report examines 11 allegations made against Robert Bernstock, the former President of Mailing and Shipping Services. The allegations ranged from serious (steering sole source contracts to former colleagues) to trivial (using his official position to obtain a restaurant reservation). The OIG terminated its 12-month investigation when Bernstock’s employment contract ended in June 2010 and the Department of Justice declined to bring potential criminal violations against him.

On February 4, 2011, the U.S. Small Business Administration is set to launch its Women-Owned Small Business Program, which is intended to create a set-aside structure for WOSBs similar to the existing 8(a) platform.  The overall goal of the new program is to expand federal contracting opportunities for women-owned businesses within 83 different industries (identified by NAICS code) where WOSBs have traditionally been underrepresented.  Some of the eligibility requirements for participation in the WOSB program include: (1) the company must be “small” in its primary industry in accordance with SBA size standards; (2) the company must be at least 51 percent directly and unconditionally owned by one or more women; and (3) control and day-to-day management of the company must be in the hands of one or more women.

Even a dog knows the difference between being accidentally stepped on and intentionally kicked.  Having your contract terminated by the government is similar. If it happens because circumstances have changed, it’s like being accidentally stepped on. You don’t like it, but you know it wasn’t intentionally done to harm you. But if your contract is terminated solely because the agency seeks a better price—that is an intentional kick to the gut. Does the law recognize the difference between these two scenarios? Read on.

Congress recently passed legislation (Section 893 0f the National Defense Authorization Act of 2011) requiring the Secretary of Defense to develop a program ensuring that “contractor business systems” provide timely, reliable information for the management of Department of Defense programs.  “Contractor business systems” include accounting systems, estimating systems, earned value management systems, material management and accounting systems, and property management systems. 

The program required by this legislation will set requirements for contractor business systems, establish a process for reviewing contractor business systems, and provide for disapproval of any contractor business system that has a significant deficiency.  If a contractor business system is disapproved, DoD will work with the contractor to develop a corrective action plan.  Until the system is approved, DoD may withhold up to 10 percent of progress and other payments on cost type contracts with contractors that are covered by the Cost Accounting Standards.