B Baker Tilly Beers & Cutler - A Guide to GSA Contractual Requirements

Transcription

1 GSA Option Extensions Are Your Commercial Sales Practices Current, Accurate and Complete? Baker Tilly Beers & Cutler, PLLC, is a wholly-owned subsidiary of Baker Tilly Virchow Krause, LLP Baker Tilly Beers & Cutler, PLLC

2 Agenda GSA Schedules Overview > GSA Schedule Basics > Pricing > Price Reductions Clause (PRC) > Basis of Award (BOA) Option Extensions > OPEN > Prepare for the OPEN Letter > Best Practices/Risks > Responding to the OPEN Letter Audits > Overview > Pre-Award Audits > Best Practices Questions 2

3 Introductions Jeff Clayton, Director Julia Ewart, Manager 3

4 GSA Schedules Overview What are GSA Schedules? > Indefinite Delivery Indefinite Quantity (IDIQ) contracts which provide for streamlined government-wide acquisition > Standing solicitations contractors may respond at any time > Over 11 million commercial products /services sold on Schedule; organized into 40+ Schedules > Ordering agencies can issue orders directly to Schedule holders after reviewing price lists or responses to an RFQ depending on the complexity of the procurement > Eligible Buyers: Executive agencies; mixed ownership Government corporations; District of Columbia; The Senate, House of Representatives and activities under the direction of the Architect of the Capitol; Authorized Contractors (Pursuant to FAR 51); State & Local Governments (for select Schedules and SINs) > Multiple Award Schedule (MAS) contracts with a five year base and three, five year options > Lists the maximum prices the federal government has agreed to pay for commercial products and services 4

5 GSA Schedules Overview How is Pricing Determined? > Prices determined using Commercial Sales Practices (CSP) Format disclosures Contractors required to submit CSP disclosures that are current, accurate and complete based on commercial sales for a recent twelve month period Negotiations occur at initial contract award, as well as at each option extension, and are predicated upon the Contractor s full disclosure of its standard and non-standard pricing/discounting practices, including concessions to all customers or categories of customers GSA s goal: Negotiate pricing which is equal to or better than that which is extended to the Most Favored Customer (MFC) 5

6 GSA Schedules Overview What is the Price Reductions Clause? > The Price Reductions Clause (GSAM ), or PRC, is GSA s mechanism for ensuring it receives fair and reasonable pricing throughout the life of its contract with a vendor What is the Basis of Award? > The Basis of Award, or BOA, is a customer (or category of customers) agreed upon by the Government and the Contractor prior to the award of a GSA Schedule contract for the purposes of monitoring the PRC > The price/discount relationship between a Contractor s GSA Schedule rates and the rates offered to its BOA customer(s) must be maintained to avoid triggering the PRC The Contractor s GSA Schedule rates are tied to the prices that it offers to its BOA customer(s) for the life of the contract, or until the relationship is modified If the PRC is triggered the Contractor must notify the CO within 15 calendar days Unreported price reductions discovered after the fact may expose Contractors to PRC liability that extends through the full contract term 6

7 GSA Schedules Overview How does the price/discount relationship work? > The price offered to a BOA customer can be higher than the GSA price and still trigger the PRC. It is the proportional relationship that counts Discount relationship maintained Discount relationship broken GSA to be notified and given equal opportunity to take advantage of price reduction Sales Price Discount relationship broken in GSA s favor no PRC risk BOA Price 75 GSA Price Month 7

8 Polling Question In which of the following ways does your company ensure compliance with price reduction clause obligations? a. System based controls b. Periodic review of sales c. Standard policies and practices d. Other 8

9 Option Extensions OPEN Option Extensions Under OPEN Process > As of September 24th, 2011 all contracts must be extended/updated via OPEN (Option Process Ensuring integrity) Goal: to streamline the option process and meet the timeliness goal of exercising options 60 days prior to contract expiration. Requires that authorized negotiator(s) have a digital certificate prior to ANY modification being exercised May limit a contractor s ability to make changes during the option process Contracting Officers (COs), Contract Specialists (CSs) and Administrative Contracting Officers (ACOs) are notified 250 days prior to a contract s expiration > Contractors for whom the government has decided NOT to exercise the option period will receive an from the CO describing this decision in detail, on or about days prior to expiration of the contract > Contractors for whom the government has decided TO exercise the option period will receive an from the CO about 210 days prior to the expiration of the contract 9

10 Option Extensions OPEN 10

11 Option Extensions OPEN Next Steps for Contractors Eligible to Exercise the Option > Contractor must do one of the following: Notify the CO in writing, via emod that they do not wish to continue with their contract, or Respond to the Option Letter in writing also via emod, within 45 days with the data requirements outlined in the Option Letter > Should the contractor decide to respond to the Option Letter, the CO will review the provided information and in some cases, require additional clarification and/or supporting documentation > All document exchange MUST take place via the emod system; requested documentation typically includes: Submission of current Subcontracting Plan Confirmation of general administrative items including terms and conditions The MOST CRITICAL part of your response: Affirmation of CSP or updated CSP and PRC discount relationship 11

12 Polling Question How does your company prepare commercial sales practice disclosures? a. Discussion with internal resources b. Disclosure of standard policies c. Data driven historical pricing analysis d. Other 12

13 Option Extensions Preparing for OPEN Letter 13

14 Option Extension Best Practices 12-month data review Review 12-months of sales data to ensure accurate and complete disclosures May lead to more difficult and time consuming negotiations, but full disclosure is an absolute must. Only findings captured in writing will protect you. Recommended Practices Policies, Procedures and Practice Review policies, procedures and practices with key personnel. Thorough understanding of practices can result in a contract with terms and conditions that reduce the administrative burdens associated with contract management. Disclosure Narrative Prepare written disclosures, including information on customers, concessions, BOA, pricing, PRC, etc. A written narrative allows for full disclosure and can be used to reduce any ambiguity around pricing practices. Standard forms do not allow most companies to fully disclosure their commercial sales practices. 14

15 Option Extensions Response to OPEN Letter 15

16 Option Extensions Response to OPEN Letter Price/Discount Relationship > Opportunity exists at this time to renegotiate PRC/BOA > Rely on data analysis and other work performed to prepare disclosures to identify price or discount relationship that does not put your company in a position where compliance will be very difficult or impossible, while still providing adequate price protection for the government Response Package > Notification of any changes to terms and conditions > If necessary, provide an updated pricelist > Determine business size, and submit updated Subcontracting Plan if necessary > Update SAM 16

17 Option Extensions Negotiations and Issuance of Option Exercise Modification 17

18 Audits Overview Introduction to GSA OIG: Audit Authority > Two clauses in the GSA Schedule contract provide audit authority Pre-award audit authority Post-award audit authority > FAR By submission of an offer in response to this solicitation, the Offeror grants the Contracting Officer or an authorized representative the right to examine, at any time before initial award, books, records, documents, papers, and other directly pertinent records to verify the pricing, sales and other data related to the supplies or services proposed in order to determine the reasonableness of price(s). > EXAMINATION OF RECORDS BY GSA (GSAR ) The Contractor agrees that the Administrator of General Services or any duly authorized representative shall have access to and the right to examine any books, documents, papers and records of the Contractor involving transactions related to this contract for over billings, billing errors, compliance with the Price Reduction clause and compliance with the Industrial Funding Fee and Sales Reporting clause of this contract. This authority shall expire 3 years after final payment. The basic contract and each option shall be treated as separate contracts for purposes of applying this clause. 18

19 Audits Overview Overview > Contractor Assistance Visit (CAV) Cursory compliance assessment intended to identify potential administrative and compliance issues (NOT considered an audit) > Pre-award Audit Intended to verify that the contractor s pricing disclosures are current, accurate and complete and that controls are sufficient to ensure compliance May occur prior to initial contract award or at option extension > Post-Award Audit Designed to help contracting officials administer contracts and ensure that the Government gets what it pays for Reviews for compliance in several key areas including Price Reductions Clause, 72A sales reporting and Industrial Funding Fee remittance, labor category mapping, contract scope, others 19

20 OIG Audit Timeline Pre-Award Audits 20

21 Audits Pre-Award OIG Audits What to Expect > Notification letter or from GSA OIG > Broad initial data requests, including submission of CSP s, organization charts, financial statements, policies and procedures, sales data, copies of commercial, state and local government, GSA and other Federal contracts, and invoices > Inconsistent interpretations of the PRC, price/discount relationships, and definitions of commerciality > Push for broader BOA customer group Benefits from Preparing Data-Driven CSP-1 Disclosures > Data driven disclosure will be based on the same data being requested by the auditors, allowing a contractor to respond to the auditors without delay > No surprises, as a contractor who has completed a thorough data analysis will understand and be ready to explain all likely audit findings > Current, Accurate and Complete CSP-1 = fewer audit findings and questions 21

22 Audits Best Practices After the Audit > The Government may not present you with a draft audit report (particularly for pre-award audits) if not, request to receive a copy > Respond to findings in a timely fashion > Work with CO to complete negotiations > Going forward, perform periodic (semi-annual / annual) internal reviews to mitigate future compliance risk Large GSA Settlements > 2011 Oracle - $199.5 million > 2011 Oracle (Sun) - $46 million > 2011 Fastenal $6.25 million > 2010 Cisco and Westcon - $48 million > 2010 EMC - $87.5 million > 2009 NetApp - $128 million > 2009 Tifco Industries - $1.6 million 22

23 Questions? Jeff Clayton, Director specializes in assisting contractors with all aspects of Federal Supply Schedule contracting. He works with clients to complete complex data mining and analysis efforts in support of proposals and option extensions, to assist with audit preparation and provide audit support, and to prepare economic damages analyses. Jeff has extensive experience working with contractors and their counsel during OIG audits and DOJ investigations. Jeff also works with his clients to identify and mitigate compliance risks, prepare cost impact analyses, and perform financial due diligence in connection with mergers and acquisitions. Tel: (703) , Julia Ewart, Manager specializes in managing FSS proposal preparation, contract modifications and option extensions. She has over 5 years of experience working with a wide range of clients in the information technology services, computer software and hardware, healthcare, staffing, engineering, manufacturing and professional services industries. Her efforts require complex historical pricing analyses, Basis of Award and pricing strategy development, preparation of commercial sales practices disclosures, contract negotiations, and compliance program development. Tel: (703) , julia.ewart@bakertilly.com 23

24 Disclosure Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose. No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan, or arrangement to any other party. Baker Tilly refers to Baker Tilly Virchow Krause, LLP, an independently owned and managed member of Baker Tilly International. The information provided here is of a general nature and is not intended to address specific circumstances of any individual or entity. In specific circumstances, the services of a professional should be sought Baker Tilly Virchow Krause, LLP 24