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Apogee Consulting Inc

Obama Administration: Tax Scofflaws Cannot Receive Government Contracts

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Since at least 2004, the Government Accountability Office (GAO) has issued reports finding that “thousands of federal contractors, tax exempt entities, and Medicare providers” receive funds from the Federal government while owing overdue Federal taxes.  According to the various GAO reports, the primary area of delinquency was in the timely remittance of payroll taxes.  (For example, see this GAO report.)  And according to this GAO report

Our analysis of data provided by CMS and IRS indicates that over 27,000 health care providers (i.e., about 6 percent of all such providers) paid under Medicare during calendar year 2006 had payroll and other agreed-to federal tax debts totaling over $2 billion. The $2 billion in unpaid tax debts only includes those debts reported on a tax return or assessed by IRS through its enforcement programs. This $2 billion figure is understated because some of these Medicare providers owed taxes under separate tax identification numbers (TIN) from the TINs that received the Medicare payments or they did not file their tax returns.

In another report, GAO asserted that “Eighty-three of the 100 largest publicly traded U.S. corporations in terms of 2007 revenue reported having subsidiaries in jurisdictions listed as tax havens or financial privacy jurisdictions. Sixty-three of the 100 largest publicly traded U.S. federal contractors in terms of fiscal year 2007 federal contract obligations reported having subsidiaries in such jurisdictions.”  GAO estimated that “more than $5 billion in unpaid taxes” are owed the government from its contractors.

Needless to say, Congress was not pleased to learn that Executive Branch agencies were paying contractors good money while, at the same time, those contractors were scheming to illegally avoid, delay, or underpay required taxes.  In response to the series of GAO reports, the FAR was revised in 2008 to address tax delinquency as a matter of contractor responsibility as well as a cause for suspension/debarment.  (See the solicitation provision at 52.209-5 for non-commercial acquisitions and at 52.212-3 for commercial item acquisitions.)  Effective with that FAR revision, a contractor can be suspended or debarred for “delinquent taxes” in amounts as little as $3,000.  (The definition of “delinquent taxes” is found in the regulations.)

In addition to the action above, in 2006 the Tax Increase Prevention and Reconciliation Act (P.L. 109-222) required Federal, State, and local government entities to withhold 3 percent when making payments to contractors, to cover the delinquent income taxes owed by them.  (Note that the delinquent area was payroll taxes, not income taxes, but apparently that was too hard for Congress to deal with.)  See the proposed rule for more details.  As currently amended, the rule is scheduled to go into effect January 1, 2012, negatively impacting prime contractors’ cash flow.  (Note the rule does not affect prime contractors’ payments to their subcontractors.)

Critics of the tax withhold point out that the 3 percent decrement would be applied to the bottom line of the invoice amount, not to profit, which means that—in some circumstances—contractors would not be receiving sufficient payments to cover incurred costs.  For construction contractors, the impact to cash flow may lead to higher bonding costs.

However onerous they may appear to be, the foregoing actions did not satisfy the Obama Administration.  On January 20, 2010 a Presidential Memorandum was issued to the heads of all Executive Branch departments and agencies, directing the Commission of Internal Revenue “to conduct a review of certifications of non-delinquency in taxes” and to report on the accuracy of those certifications.  In addition, the Memorandum directed the Office of Management and Budget (OMB), in conjunction with other Cabinet officials, to “evaluate practices of contracting officers and debarring officials” and to recommend process improvements designed to ensure that contractors owing taxes “are not awarded new contracts.”

Among the improvement ideas is the intention to “make contractor certifications available in a Government-wide database”—though it is not immediately clear how creating such a database will help to ensure that contracting officers don’t award contracts to entities that are delinquent in paying their tax bills.

If we are forced to opine on this issue, we would say that the problem here is a lack of training and/or discipline by the Government contracting officers.  They need to review the certifications executed by contractors, and make sure that the FAR is followed with respect to the information disclosed on the certs.  Moreover, there are already plenty of teeth in the law, which could be applied to any entity that knowingly falsifies a certification.  For example, a violation of the False Statements Act (18 U.S.C. 1001) can lead to a fine and up to 5 years in prison.

So it’s a bit of a mystery why the Obama Administration thinks the Memo is going to do what the FAR rules cannot.  In any case, this is an area that continues to be a sore spot with Congress and, about two years from now, is going to be a sore spot with contractors, when they see their cash flow decremented by 3 percent.


 

The Post-1998 Defense Spending Surge: Can We Do More with More?

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On January 18, 2010, Defense-Aerospace.com carried an interesting story, which was really a lead into an analysis of Defense spending over the past decade by the organization, Project on Defense Alternatives (PDA), which is policy think-tank associated with The Commonwealth Institute.  The PDA report, entitled “An Undisciplined Defense Understanding the $2 Trillion Surge in US Defense Spending,” is a copyrighted report.  Because it’s copyrighted, we’ll avoid too much cut-and-pasting, and stay within “fair use” limits—even though the entire report can be downloaded from here.

Why consider an analysis from some policy wonk that may well have a political axe to grind?  Well, for starters, every forecast of near-term defense spending seems to point to a flat—or even declining—budget, which has obvious implications for Defense contractors.  We’ve posted a number of articles on the tightening budgetary environment (for example, here), but this report struck us as exceedingly (almost painfully) detailed.  Detail is good.  Detail creates credibility.  So even if the author is biased—and we have no reason to suspect he is—the detail in the report is worth examining.

The Defense-Aerospace.com story notes that, in 1998, DOD’s budget was $361.5 billion(Note:  all values in this article are 2010 equivalent US Dollars—i.e., adjusted for inflation.  We’ll omit references to 2010 equivalency in our quotes.)  As the article reports, “If we treat the 1998 budget level as a “baseline” and project it forward to 2010 (adjusting for inflation), we find that the total amount of funds that have been given to DoD above this level during the years 1999-2010 is $2.15 trillion.”  The article continues—

The rebound in annual defense spending reached its recent peak in 2008: $696.5 billion – which is 92.7% above the 1998 level. The portion unrelated to contingency operations (the so-called base budget) was $503 billion that year – which is 41% higher in real terms than in 1998. Total DoD budget authority receded slightly in 2009 and 2010. But it now seems likely that 2011 will set a new high – somewhat over $700 billion in DoD’s authority to spend.

In other words, current Defense budget levels are nearly double what they were a decade ago, even after adjusting for inflation.  Ignore the reasons why that is for a moment, and dwell on the fact that the Pentagon is currently spending at twice the rate it was ten years ago.  And for giggles, remember that it is spending at these levels while having cut back significantly on DCMA contracting officers, Contracting Officer Technical Representatives, Quality Assurance Specialists, and DCAA auditors.  It is any wonder DOD program execution is under fire?

The article (and the PDA report) uses that historical perspective to assess the near term Defense budget horizon.  As the article reports—

Looking forward, the Obama administration’s 2010 budget plan allocates an average of $545 billion per year to the DoD base budget for 2011-2017. In addition, it set aside a “place keeper” sum of $50 billion per year for military operations, recognizing that actual war costs will vary. (And, indeed, the Pentagon already is expected to request at least $163 billion for contingency operations in 2011.) … All told, the Obama administration plans to spend at least $5 trillion (2010 USD) on defense during 2010-2017, which is 5% more in real terms than the Bush administration authorized for 2002-2009.

If Obama Defense spending is reaching a plateau, that plateau is at least 5 percent higher than recent history in inflation-adjusted dollars.  So where is the budget squeeze coming from?  The PDA report suggests that one source is the sheer expense of the current war.  As Aerospace-Defense.com reports, “Measured in 2010 dollars, the Korean conflict cost $393,000 per person/year invested; the Vietnam conflict cost $256,000; and the Iraq and Afghanistan commitments, $792,000 so far.”

Another metric reported in the PDA analysis is DOD spending per uniformed service member.  According to the analysis, “For 2007-2010, [DOD budget authority] averaged $459,000 per full-time person in uniform. This is 78% higher than the Reagan peak, 95% higher than in 1989, and nearly three times the inflation-adjusted peak during the Vietnam era.”  In addition, “During the 20-year period 1981-2000, budget authority for personnel varied by only a few percent around an average of $73,200 (2010 USD) per person. It then rose by 46% between 2000 and 2010. The increase was enough to bring total personnel expenditures back up to Cold War levels – for a military only 69% as large.”

The report discusses a number of other factors that drive Defense budgetary spending, from the all-volunteer force to the increasing reliance on contractors to support operations.  As the report notes, “between 1989 and 2005, the pool of DoD contract labor has grown more than the pool of uniform and civilian employees has declined.”

To conclude, this seems to us to be a worthwhile analysis that provides good insight into how the Defense budget got to where it is today, and also provides some clues regarding where it may be going in the future.  We encourage interested readers to read it in detail.



 

Pentagon Examines “Points of Failure” in Defense Industrial Base

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The January 2010 edition of National Defense magazine carried an interesting article discussing the Pentagon’s Industrial Policy Directorate, and its new emphasis on anticipating financial failures by critical suppliers in its supply base.  According to the article, which related an interview with Director of Industrial Policy (IP) Brett Lambert, the IP team “does not plan to be an advocate for industry but rather to engage in a closer dialogue with the private sector so the Pentagon is better informed about the financial health of critical suppliers.”  The article reported that Lambert said the new emphasis “will help the Defense Department anticipate ‘points of failure’ in the supplier base and save taxpayer dollars by avoiding costly rescues of failing companies.”

The article reports that, unlike the prior focus on the health of the largest prime contractors, today the Pentagon is concerned about the financial standing of “smaller companies in the lower echelon of the supply chain.”  According to Lambert, “What we are seeing increasingly is that all primes rely on a single source, or point of failure, that is down in the second, third or fourth tier … I believe we don’t have adequate insight into those critical subcomponents.”  The article notes that “The Pentagon’s own contracting databases only capture information about the top-tier industrial base….”

Welcome to the club Mr. Lambert.  At Apogee Consulting, Inc., we have been preaching this philosophy for quite some time.  Let’s restate the issue and our point of view for clarity:

1. In today’s aerospace/defense environment, where up to 80 or 90 percent of program execution has been outsourced to external suppliers, program execution risk is found in the supply chain and managing that risk is inextricably tied to managing supplier performance.  In other words, 21st century program management is not significantly different from supply chain management.

2. Most primes delegate supply chain management, and supply chain risk management, to a separate silo—the same silo that sources, evaluates, and awards subcontracts.  That’s a recipe for failure.  The skill set in acquisition management is not the same as that necessary for program management.  At a minimum, the priorities are different and the technical emphasis is different.

3. Most primes hold their 1st tier subcontractors responsible for lower tier supplier execution.  Most 1st tier contractors hold their 2nd tier suppliers responsible for lower tier supplier execution.  And so on ad infinitumThis is again a recipe for failure, because execution risk cannot be transferred and always resides, ultimately, with the prime contractor—who is responsible for program execution regardless of what some lawyer thinks.

4. Despite the foregoing, most companies engaged in program management fail to devote sufficient resources and budgets and management attention towards supply chain management.  Most companies don’t know their program supply chain and, if challenged, cannot produce any written or graphic description of a single program supply chain—let alone map multiple program supply chains to identify where a common supplier exists between programs.  Those common suppliers are both opportunities (in terms of establishing long-term alliances) and risks (in terms of single points of failure for multiple programs), yet companies almost invariably have made no effort to identify them.

5. Those critical few suppliers that support multiple programs must be identified, because they represent risk to multiple (and now interdependent) programs.  Once identified, they must be evaluated for financial health, and contingency plans must be created so that, if one of those suppliers ends defense production or enters bankruptcy, impacts on the multiple programs will be minimized or mitigated completely.  We know of no single company that is making this effort in a rigorous manner that befits the true risk to program execution.

The National Defense article also notes that the Defense IP Directorate is concerned about loss of critical skills during the upcoming defense spending downturn.  (About which we’ve also written about many times.)  Lambert is quoted as saying, “we are focused on preserving skills necessary to support our war fighters in the near term and long term.”  However, he cautions that skills are not jobs, and (according to the article) suggests that “debates about critical skills are biased toward white-collar positions.” 

As if in evidence of the Defense Department’s awareness of the need to preserve critical skills, we noted that on January 15, 2010 a $93.4 million contract was awarded by the Defense Logistics Agency to AM General LLC.  The contract was a fixed-price, sole-source award made without competition, and it was awarded to AM General “in support of HMMWV industrial base requirements.”  In other words, the award was made so that AM General’s suppliers would be able to keep their Humvee production lines open and to delay layoffs associated with the declining need for new vehicles. 

As the National Defense article reports, “When military orders go down and it becomes unprofitable to make defense-unique components … firms may decide to end production of those items.  Other subcontractors may go out of business altogether because of declining orders.”  Lambert is quoted as saying, “When we terminate programs, the cascading effects on the lower tiers can be catastrophic.”  And, we would add, because certain lower-tier suppliers supply multiple programs, ending one program may create unintended consequences for many others. 

The DOD finally appears to be recognizing some of the risks embedded in its industrial base, and the article reports that “Lambert’s office will be reaching out to CFOs of prime contractors to gain access to their subcontractor data.”  Little does he know that the primes will have little, if any, data to provide his office.

And that fact should frighten many people in the Defense Industrial Policy Directorate.



 

Praise the Lord, and Pass the Ammunition

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It’s no secret that some companies put “hidden” biblical messages on the products they sell.  Alaska Airlines places a Bible scripture card under every meal tray it serves to passengers. 


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Forever 21 reportedly puts “John 3:16” on its bags.  Perhaps better known is the tradition of In-N-Out Burgers, who put several bible verses on their wrappers.  The authoritative snopes.com states that—

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· Soda cups bear the notation John 3:16

· Milkshake cups list Proverbs 3:5

· Hamburger/cheeseburger wrappers show Revelation 3:20

· The “Double-Double” wrappers list Nahum 1:17

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More recently, news outlets reported that a Michigan-based defense contractor has been including similar biblical “codes” on high-powered rifle sights that it sells to the Defense Department.  According to ABC News, Trijicon has a $660 million multi-year contract to provide Advanced Combat Optical Guides (ACOG) to the Marine Corps. and U.S. Army.  ABC News reports—

One of the citations on the gun sights, 2COR4:6, is an apparent reference to Second Corinthians 4:6 of the New Testament, which reads: "For God, who commanded the light to shine out of darkness, hath shined in our hearts, to give the light of the knowledge of the glory of God in the face of Jesus Christ."   Other references include citations from the books of Revelation, Matthew and John dealing with Jesus as "the light of the world." John 8:12, referred to on the gun sights as JN8:12, reads, "Whoever follows me will never walk in darkness, but will have the light of life."

The company spokesman noted that the biblical citations “have always been there” and said there was nothing wrong or illegal about them.  Others aren’t so sure.  The story reports Mikey Weinstein of the Military Religious Freedom Foundation as saying, “It's wrong, it violates the Constitution, it violates a number of federal laws."  In addition, Weinstein noted, “It allows the Mujahedeen, the Taliban, al Qaeda and the insurrectionists and jihadists to claim they're being shot by Jesus rifles."  He added, “This is probably the best example of violation of the separation of church and state in this country."

Putting aside Mr. Weinstein’s hyperbole, it is not clear if there is anything that the DOD can do about the situation, at least retroactively.  Once the ACOGs have been inspected and accepted, only a “latent” defect can allow the sights to be returned.  A “latent” defect is a “defect that existed at the time of acceptance but would not have been discovered by a reasonable inspection.”  In order to show a latent defect, the Government must prove that the defect existed at the time of final acceptance, it was hidden from knowledge as well as sight, and could not be discovered by the exercise of reasonable care.  If the defect was discoverable by a reasonable inspection, it is “patent” and not “latent” and thus the Government is bound by its inspection and acceptance of the goods.

Given that the biblical “codes” were in plain sight and had “always been there” we think the Government would have difficulty proving they were a latent defect.  On the other hand, there is nothing that would prevent the DOD from revising the ACOG specifications to eliminate unnecessary markings.  Were the Government to take that action, then Trijicon would have to change its tooling and machining operations to eliminate the step of creating the markings—and it would be able to pass on any increased costs that resulted from the change back to the Government pursuant to the Changes clause in its contract.

There is also the question as to whether these sights are uniquely designed for military use, or are simply commercially produced sights that could be used for star-gazing, bird-watching, or what-have-you.  If the DOD acquired these sights under a FAR Part 12 “commercial item acquisition,” then it may have little or no recourse whatsoever.


 

DOD Proposes Changes to Contractor “Business Systems” Administration and Oversight

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On January 15, 2010 the DOD published a proposed rule in the Federal Register that announced several significant changes to the way it intends to exercise oversight over contractor “business systems.”  Readers of this site will likely experience some feelings of déjà vu as they scan the proposed DFARS rule changes.

The linkage of the proposed rule to the activities of the Commission on Wartime Contracting in Iraq and Afghanistan is obvious.  We’ve posted several articles on the CWC, notably here and here.  It was the CWC that used the phrase “contractor business system” instead of the term of art “contractor internal control system.”  Apparently, the DAR Council has decided to adopt that phrase.

Moreover, the first sentences of the background of the proposed rule come directly, word for word, from the CWC’s first Special Report, which can be found here(“Contractor business systems and internal controls are the first line of defense against waste, fraud, and abuse.  Weak control systems increase the risk of unallowable and unreasonable costs on Government contracts.”)  Obviously, the proposed rule needs to be understood in the context of the past months’ drama that has played out in that forum.

There are some positive aspects of the proposed rule.

· Reduces the number of “business systems” subject to oversight by the DOD, from ten to six.  The six business systems are: (1) Accounting, (2) Earned Value Management, (3) Estimating, (4) Material Management and Accounting (MMAS), (5) Property Control, and (6) Purchasing.

· Establishes in the regulatory framework system adequacy standards, thus moving control of system adequacy determinations from DCAA to DCMA contracting officers.

· Requires DCAA to issue audit reports to the DCMA contracting officers “in sufficient detail to allow the contracting officer to understand what the contractor would need to correct to comply with the applicable standard or system requirement, and the potential magnitude of the risk to the Government posed by the deficiency.

There are some less-than-positive aspects of the proposed rule.

· The rule notes the cooperation necessary between DCAA auditor and DCMA contracting officer, yet it provides essentially no details regarding how that cooperation is to work.  For example, the proposed rule says “The ACO, in consultation with the auditor, shall (1) approve the [estimating] system …” but does not describe how that consultation is to work in actual practice.

· The rule provides for payment withholds for system deficiencies, up to 50 percent of the contract value—which we would consider to be punitive in nature.  Moreover, if the ACO determines “that there are one or more system deficiencies that are highly likely to lead to improper contract payments being made,” then “the ACO will withhold up to one-hundred percent of payments….”

· Payment withholds can be made against performance-based payments.  PBPs are, by Congressional intent and DOD implementation, not supposed to be tied to business system adequacy.

The proposed rule affects numerous parts of the DFARS and implements several new contract clauses.  Readers are encouraged to review the proposed rule in detail.  It can be found here.

DOD is seeking comments on this proposed rule.  In addition, DOD is seeking comments on the information collection requirements associated with it.  The promulgating comments state—

DoD invites comments on the following aspects of the proposed rule: (a) Whether the collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.

Comments must be submitted before March 16, 2010.  Comments may be submitted via email or USPS; details are found in the proposed rule.

This rule, if implemented as written, will likely have a significant impact on how contractors approach compliance and how they implement governance and control systems.  Because of this potential impact, we encourage all Federal contractors to submit comments to the DAR Council.



 


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Newsflash

Effective January 1, 2019, Nick Sanders has been named as Editor of two reference books published by LexisNexis. The first book is Matthew Bender’s Accounting for Government Contracts: The Federal Acquisition Regulation. The second book is Matthew Bender’s Accounting for Government Contracts: The Cost Accounting Standards. Nick replaces Darrell Oyer, who has edited those books for many years.