FED GOV CON - Procurement Integrity Act: What Info Can You Have and When?

Jennifer Schaus & Associates
SERVICES FOR US FEDERAL GOVERNMENT CONTRACTORS
WEBINAR WEDNESDAYS – 2018

WASHINGTON, DC
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ABOUT JENNIFER SCHAUS & ASSOCIATES:

- Based in downtown Washington, DC;
- A la carte services for Federal Contractors;
- Proposal Writing to GSA Schedules, 8a Cert and Contract
Administration, etc.;
- Educational webinars;
- Networking events and seminars;
WEBSITE: http://www.JenniferSchaus.com
ABOUT OUR SPEAKER:

Marc I. Snyderman, Esq.
- 20 Years In GOV CON:

- Education: B.A. Dickinson College, J.D. Rutgers School of Law,
Executive Business Certificate University of Notre Dame
- Founder, Snyderman Law Group, PC
- www.snydermanlawgroup.com
Procurement Integrity Act:

What do you have and why?
Wednesday, June, 20, 2018

Procurement Integrity Act (FAR 3.104)
• Law that embodies the concepts of:

• Authority/Contracting Officer Authority
• Fairness/Fair Opportunity to Compete
• Competition/Full and Open
• Governs behavior of both government and contractors.

• Imposes civil and criminal penalties for violations

• Up to $50,000 and 5 years in prison for Government employees
• Up to $500,000 and 5 years in prison for contractor personnel
• Suspension/debarment of company
• Cancellation of the procurement

• Two main components to PIA:
1. Ban on disclosing procurement
information
2. Hiring rules for government
employees
Ban on Disclosing Procurement Information

• PIA prohibits disclosure of “contractor bid or proposal
information” and “source selection information”
• Ban applies to:
• Current federal employees
• Former federal employees
• Contractor employees advising the gov’t on a procurement
• Contractor employees who have advised gov’t on a procurement but
no longer doing so
Ban on Disclosing Procurement Information

• Individuals are prohibited from “knowingly” obtaining or
disclosing “contractor bid or proposal information” or “source
selection information” BEFORE a contract is awarded, to a
person other than a person authorized to receive such
information.
• This means if you have CBPI or SSI – ask yourself what do I have
and why?
What is CBPI & SSI?

• CBPI
• Cost or pricing data
• Indirect costs and direct labor rates
• Proprietary information
• Information marked by contractor as “CPBI”
What is CBPI & SSI?

• SSI
• Bid prices
• Proposed costs
• Source Selection plans
• Technical Evaluation Plans
• Evaluation of proposals
• Proposal rankings
• “Other information” marked as “SSI” under FAR 3.104
What is Prohibited?
• Paying or promising any thing of value to a government official
to obtain CPBI/SSI or to obtain favorable treatment in an award.
• Intentionally viewing, hearing, or taking confidential government
information without proper authorization.
• Offering or promising employment or a business opportunity to
a government official, or his/her family members to obtain
restricted government information or favorable treatment in an
award.
• Obtaining information about a competitor’s price, costs, or
bidding plans during a procurement period from any nonpublic
source.
What is Prohibited?
• Inducing a competitor not to bid on a particular procurement
• Any action that the Company cannot do directly cannot be done
indirectly through the use of a consultant, agent, or other party.
PIA Does Not Apply:

• To the disclosure or receipt of information by authorized
personnel
• When a contractor discloses its own information
• When a procurement has been canceled before award
(unless plan to resume)
• To meetings between agency official and potential offeror,
provided no unauthorized disclosure
PIA Does Not Apply:

• To restrict sharing information with Congress, GAO, a Federal
agency or an IG
• To limit a requirement, sanction, contract penalty or remedy
established under another law or regulation
• To non-competitive procurements
Violation or Not?
Ray is a DOD employee and a member of the team writing the SOW
for a sole source contract. Believing he can shorten the process, he
sends the sole source contractor an advance copy of the SOW for
back-channel comments. Has Ray violated the PIA?
Violation or Not?
No, because a sole source contract is not competitive and therefore

PIA does not apply.
Violation or Not?
• Subcontractor helps prepare a proposal with a prime contractor
under a Teaming Agreement. Subcontractor then submits its
own proposal for follow-on contract, using identical passages
from previous proposal that contains Prime’s proprietary info.
Violation?
Violation or Not?
• No PIA violation. Prime contractor voluntarily shared info with
subcontractor.
• Could be a violation of the TA but that’s a private dispute
between subcontractor and prime.
• DynCorp International, LLC, B-408516, et al.,Oct. 29, 2013, 2013
CPD ¶ 243
Violation or Not?
• The DoD inadvertently disclosed proprietary information from
the incumbent contractor in the RFP documents and on DoD
webpages. The disclosures contained the incumbent’s historical
contract information. It immediately removed the proprietary
info. Violation?
Violation or Not?
• No violation because the information release did not relate to
the agency procurement.
• Also, protestor couldn’t show that the release was done
“knowingly.”
• S&K Aerospace, LLC, B-411648, Sept. 18, 2015, 2015 CPD ¶

336.
Violation or Not?
• Air Force Contracting Officer inadvertently sent Contractor’s
point of contact an e‐mail with source selection sensitive
attachments relating to the evaluation of a competitor and
information about that competitor’s proposal
• The Contractor’s POC forwarded it to employees without
realizing what it was
• Air Force attempted to recall the email 10 minutes later
Violation or Not?
• Contractor took 2 days to fully quarantine the email
• Recipients of the e-mail continued to work on the proposal
Violation or Not?
• Air Force Suspension and Debarment concluded that the
contractor’s conduct was in violation of the PIA
• The contractor was suspended for its conduct after the
disclosure.
• The suspension was only lifted after the contractor could show
that it had implemented an ethics program and better
procedures.
Hiring Rules
• Gov’t employee who is “personally and substantially”
participating in a “Federal agency procurement” in excess of the
simplified acquisition threshold ($150,000) and who:
• contacts; or
• is contacted by a bidder or offeror in that procurement
regarding possible non-Federal employment
Hiring Rules
MUST
• Report the contact promptly to the Gov’t ethics office; and
• Reject the employment opportunity or disqualify him/herself
from further participation in the procurement (offeror is no
longer bidder or all discussions about employment have
terminated)
Restrictions after leaving Gov’t employment

• 1 year ban on a gov’t official accepting compensation from a
prime contractor that has been awarded a competitive or sole
source contract, as an employee, officer, director or consultant,
after the official:
• Served as the procuring contracting officer, source selection
authority, a member of a source selection evaluation board,
or chief of financial or technical evaluation team;
Restrictions after leaving Gov’t employment (con’t)

• Served as program manager, deputy program manager, or
admin contracting officer
• Official who personally made decisions on: awarding
contracts, subcontracts, mods, task or delivery orders;
establish overhead or other rates; pay or settle claims
• Only applies to contracts in excess of $10 million
Violation or Not?
Linda is the deputy program manager over a major technical
engineering services project. The project relied on a sole source
contract to XYZ Company for technical engineering services which
was in excess of $10 million. Two months after assuming this
position, Linda leaves the government and is offered a job working
for XYZ Company in the same general area. Does PIA prevent Guy
from taking the job?
Violation or Not?
Linda is barred from accepting compensation from XYZ Company

due to the 1 year ban.
Violation or Not?
A $12 million competitive award is made to ABC Company on
January 10, 2017. The week before the award, Sharon becomes a
member of the source selection board on the procurement. After
award to ABC Company, Sharon becomes the contracts
administrator and made the decision to award several task orders
to ABC Company. After a dispute with her boss, Sharon leaves
federal service and joins ABC Company on June 5, 2017. Violation?
Violation or Not?
Yes! Sharon cannot accept compensation from ABC Company after

awarding task orders to the company.
If a violation occurs
• If you think that information has been improperly disclosed to
you and you want to know if others have the same information,
ask!
• People around you may not know the rules so it’s up to you to
ask questions.
• Be aware if the source of information does not want to be
revealed.
If a violation occurs
• If you do receive sensitive information, stop reading or listening.
• Contact your supervisor or legal counsel
• Quarantine the information and don’t share with anyone
• May have to think about mandatory disclosure to the
government
• Mark your information as proprietary
THANK YOU FOR ATTENDING!! WWW.JENNIFERSCHAUS.COM
QUESTIONS?
CONTACT OUR SPEAKER Marc I. Snyderman AT 856-324-8267 AND AT marc@snydermanlawgroup.com
SERVICES FOR US FEDERAL CONTRACTORS OFFICE: 2 0 2 – 3 6 5 – 0 5 9 8

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Jennifer Schaus & Associates

SERVICES FOR US FEDERAL GOVERNMENT CONTRACTORS

WEBINAR WEDNESDAYS – 2018

Join Us for Our 2018 Series of Complimentary Webinars

Presenters are industry experts

Find all of our Govt Contracting webinars (free download) at www.JenniferSchaus.com

All webinars are complimentary.

ABOUT JENNIFER SCHAUS & ASSOCIATES:

ABOUT OUR SPEAKER:

- 20 Years In GOV CON:

Procurement Integrity Act:

Wednesday, June, 20, 2018

Procurement Integrity Act (FAR 3.104)

• Law that embodies the concepts of:

• Governs behavior of both government and contractors.

Procurement Integrity Act (FAR 3.104)

• Imposes civil and criminal penalties for violations

Procurement Integrity Act (FAR 3.104)

Ban on Disclosing Procurement Information

Ban on Disclosing Procurement Information

What is CBPI & SSI?

What is CBPI & SSI?

PIA Does Not Apply:

PIA Does Not Apply:

No, because a sole source contract is not competitive and therefore

• S&K Aerospace, LLC, B-411648, Sept. 18, 2015, 2015 CPD ¶

Restrictions after leaving Gov’t employment

Restrictions after leaving Gov’t employment (con’t)

Linda is barred from accepting compensation from XYZ Company

Yes! Sharon cannot accept compensation from ABC Company after

SERVICES FOR US FEDERAL CONTRACTORS OFFICE: 2 0 2 – 3 6 5 – 0 5 9 8

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