For this huge task, FEMA tapped Tiffany Brown, an Atlanta entrepreneur with no experience in large-scale disaster relief and at least five canceled government contracts in her past. FEMA awarded her $156 million for the job, and Ms. Brown, who is the sole owner and employee of her company, Tribute Contracting LLC, set out to find some help.
Ms. Brown, who is adept at navigating the federal contracting system, hired a wedding caterer in Atlanta with a staff of 11 to freeze-dry wild mushrooms and rice, chicken and rice, and vegetable soup. She found a nonprofit in Texas that had shipped food aid overseas and domestically, including to a Houston food bank after Hurricane Harvey.
By the time 18.5 million meals were due, Tribute had delivered only 50,000. And FEMA inspectors discovered a problem: The food had been packaged separately from the pouches used to heat them. FEMA’s solicitation required “self-heating meals.” “Do not ship another meal. Your contract is terminated,” Carolyn Ward, the FEMA contracting officer who handled Tribute’s agreement, wrote to Ms. Brown in an email dated Oct. 19 that Ms. Brown provided to The New York Times. “This is a logistical nightmare.”
Ms. Brown described herself in an interview as a government contractor — “almost like a broker,” she said — who does not keep employees or specialize in any field but is able to procure subcontracted work as needed, and get a cut of the money along the way. She claims a fashion line and has several self-published books, and describes herself on Twitter as “A Diva, Mogul, Author, Idealist with scars to prove it.”
After Tribute’s failure to provide the meals became clear, FEMA formally terminated the contract for cause, citing Tribute’s late delivery of approved meals. Ms. Brown is disputing the termination. On Dec. 22, she filed an appeal, arguing that the real reason FEMA canceled her contract was because the meals were packed separately from the heating pouches, not because of their late delivery. Ms. Brown claims the agency did not specify that the meals and heaters had to be together.
Tribute has been awarded dozens of government contracts since 2013, including one in 2015 for $1.2 million in mattresses for the Defense Logistics Agency, which supports military combat troops, federal spending databases show. Tribute delivered the mattresses, according to the agency. The databases offer only a fragmented picture of federal contracts. The government has also canceled Tribute contracts on at least five occasions.
Four cancellations involved the Federal Prison System, which found that Tribute failed to deliver meat, bakery, cereal and other food products to various correctional institutions. A fifth termination involved the Government Publishing Office, which terminated a contract for 3,000 tote bags after Tribute failed to print the Marine Corps logo on both sides of the bags.
An investigation by the office’s inspector general found that Tribute “altered and submitted a false shipping document and subcontracted the predominant production function on two contracts without proper authorization,” according to a 2015 report submitted to Congress. The report did not name Tribute, but a Government Publishing Office spokesman confirmed that it was the Georgia company mentioned in the document. The office awarded Tribute 14 contracts totaling more than $80,000 from 2014-15, and the company “routinely delivered late,” the report said.
As a result of the botched tote-bag job, the Government Publishing Office prohibited the award of any contracts over $35,000 to Tribute until January 2019. But that exclusion applied only to that office, not to any other federal agency.
Tribute has had three indefinite contracts with FEMA for hygiene kits since 2013, but none of them have been activated.
Asked about the cancellations, Ms. Brown offered explanations for each case, including that she had supplier trouble with the prison meals. She could have fought the Government Publishing Office on the tote bags contract, she said, but could not afford to at the time.
The bid protest could slow down the Pentagon’s cloud acquisition effort.
A $7 million sole-source cloud support contract awarded by the Defense Department to a company with one employee in January has come under bid protest.How can these contracts possibly be justified? Bid contracts are awarded (or meant to be) to the lowest priced responsive bid of a responsible bidder. A bidder who offers a product or service conforming materially to all solicitation requirements can, with a low bid, be considered to have presented a responsive bid.
Interoperability Clearinghouse filed the protest with the Government Accountability Office on Feb. 5, and contends the Defense Department failed to conduct a reasonable responsibility determination of Eagle Harbor Solutions LLC’s capabilities and resources. Eagle Harbor Solutions is an Alaska Native-owned 8(a) small disadvantaged business that federal contracting database records indicate has an annual revenue of $91,005, a single employee and few past government contracts.
The protest also alleges a conflict of interest due to Eagle Harbor Solutions being a subsidiary of Koniag Government Services and its parent company, Koniag Inc., which provides cloud services to the Defense Department through the Army’s ACCENT contract. A $7 million sole-source cloud support contract awarded by the Defense Department to a company with one employee in January has come under bid protest.
Interoperability Clearinghouse filed the protest with the Government Accountability Office on Feb. 5, and contends the Defense Department failed to conduct a reasonable responsibility determination of Eagle Harbor Solutions LLC’s capabilities and resources. Eagle Harbor Solutions is an Alaska Native-owned 8(a) small disadvantaged business that federal contracting database records indicate has an annual revenue of $91,005, a single employee and few past government contracts.
The protest also alleges a conflict of interest due to Eagle Harbor Solutions being a subsidiary of Koniag Government Services and its parent company, Koniag Inc., which provides cloud services to the Defense Department through the Army’s ACCENT contract.
The Defense Department previously said the contract “is for program office support services,” and that Eagle Harbor Solutions “is serving in a support capacity only by providing a small team of highly skilled individuals.” In a press release, Eagle Harbor Solutions said it would provide the Defense Department “a full range of infrastructure engineering, software engineering, acquisition, strategic communications, business operations, cost estimation, and budgetary expertise.”
The Defense Department previously said the contract “is for program office support services,” and that Eagle Harbor Solutions “is serving in a support capacity only by providing a small team of highly skilled individuals.” In a press release, Eagle Harbor Solutions said it would provide the Defense Department “a full range of infrastructure engineering, software engineering, acquisition, strategic communications, business operations, cost estimation, and budgetary expertise.”
But that is only half the story. The bidder must also be responsible. Responsibility and responsive are not at all the same thing. They are often, wrongly, conflated. See, Responsivebility.
How can a small shop win a contract for a complex job?
Responsibility is a matter of judgment, involving the weighed consideration of several factors, which the ABA Model Procurement Code calls "Standards of Responsibility". A bidder's responsibility is to be determined before award, and is most often not considered until after bids are opened.
The standards include, a satisfactory record of performance. That is only useful if governments keep such records and share them amongst its various arms. The record can include non-government contract, particularly important for new entrants to the field of competition. Similarly a satisfactory record of integrity is a factor.
And this is where it gets a bit non-intuitive to the uninitiated. Although a bidder is required to have "available the appropriate financial, material, equipment, facility, and personnel resources and expertise" to indicate its capability to meet all contractual requirements, it is also deemed responsible if the bidder has "the ability to obtain them". There are some organizations who have become very adept at understanding a new opportunity and marshaling the stuff necessary to perform the job. These bidders can also win a government contract.
Another example of such a case is provided by the Hawaiian case, BROWNING-FERRIS INDUSTRIES OF HAWAll, INC. It was an administrative hearing before the Department of Commerce and Consumer Affairs of the State of Hawaii. It involved an award to provide rubbish collection services at the Honolulu airport. It did not have trucks, containers, personnel, drivers, collection facility or practically anything else, but did show, to the satisfaction of the Procurement Officer, that it had the ability to obtain all of it.
Note that, in the Eagle Harbor situation, there was an additional element: whether the bidder was a bona fide, qualified Alaska Native-owned 8(a) small disadvantaged business, or whether it was a front for its much larger owner, which provided the resources it lacked.
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