The American Recovery and Reinvestment Act of 2009 (P.L. 111-5) provides billions of dollars for new government programs over the next 18 months. These funds will be spent by a broad range of agencies from NASA to the GSA and include substantial sums for green technology.

To the maximum extent possible, contracts funded by the Recovery Act will be awarded as fixed-price contracts using competitive procedures. However, agencies have been directed to use authorized acquisition flexibilities to accelerate awards and avoid undue delay.

While the Federal Acquisition Regulations (FAR) and procurement statutes generally govern the management and award of contracts using Recovery Act funds, heightened transparency requirements, significant new oversight and enforcement mechanisms, and certain special contracting procedures require careful attention by contractors. These measures include:

  • Heightened Transparency Requirements
    • www.recovery.gov - the government will have a central clearinghouse where contracting agencies must post an expanded range of information related to the Recovery Act.
    • Presolicitation notices - for orders under existing task and delivery order contracts, including GSA Federal Supply Contracts, presolicitation notices must be posted on the FedBizOpps Web site (www.fedbizopps.gov) and include the word “Recovery” as the first word in the Title field.
    • Contract award notices on FBO- all notices of contract award, including award of task and delivery orders, must be posted at FBO and must be identified as “Recovery” contracts.
    • Contract Award Notices on Recovery.gov - for contracts or orders (or modifications to contracts or orders) exceeding $500,000, the agency must provide a description of the products or services being procured and linked to Recovery.gov.
    • Notices of Contracts that are not Competitively Awarded/Fixed-price - for any contract awarded that is not a competitively awarded fixed price contract, the agency must post a summary of the contract in Recovery.gov.
  • Heightened Scrutiny
    • Contractor Responsibility - agencies will be placing special emphasis on responsibility determinations and pre-award surveys to determine whether a prospective contractor has:
      • adequate financial ability to perform the contract;
      • the ability to meet the delivery schedule;
      • a satisfactory record of past performance, integrity and business ethics; and
      • the necessary skills and assets to perform the contract.
    • Contract Oversight by Contracting Agency - agencies will be providing for oversight of contracts to ensure outcomes that are consistent with and measurable against agency plans and goals under the Recovery Act, including actively monitoring contracts to ensure that performance, cost, and schedule goals are being met.
    • Recovery Accountability and Transparency Board - inspectors general from across the executive branch will form a semi-permanent oversight and investigative body with subpoena power to prevent waste, fraud, and abuse.
    • Expanded OIG Access - the inspector general is authorized to examine the records of contractors and subcontractors receiving contracts using Recovery Act funds, and also is authorized to interview any of the contractor’s officers or employees.
  • Special Contracting Practices
    • Contract Financing - while contract financing is not a normal practice in commercial item fixed-price contracting, the government will consider providing financing or structuring contract line items to allow interim invoicing and payment.
    • Buy American Act - consistent with U.S. obligations under international agreements and subject to certain exceptions, and unless the agency obtains a waiver, Recovery Act funds may not be used for public buildings or public work, unless all of the iron, steel, and manufactured goods used are produced in the U.S.