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SmallGovCon Week In Review April 15 – April 19, 2019

It’s Friday, which means it’s time for the SmallGovCon Week In Review. In this edition, we’ll look at a potential impact to the change to DUNS numbers, cybersecurity requirements, and increased opportunities with the Corps of Engineers. Have a great weekend, everyone! Army Corps of Engineers turns to private sector in face of budget cuts. [FederalNewsNetwork] How DUNS Number Changes Could Affect Your Business. [Nav.com] Keeping up with DoD cybersecurity compliance demands. [GTPAC.

Koprince Law LLC

Koprince Law LLC


VA CVE, Under New Rules, Closely Examining Franchise and Similar Agreements

Government contractors seeking to be certified through the Vets First Verification Program under the VA’s Center for Verification and Evaluation have to submit a number of documents. We’ve recently been hearing that CVE is taking a closer look at some of these documents, and this is in line with VA’s recent rule change expanding its list of required documents for verification. Specifically, CVE will examine franchise agreements and similar documents like distributor agreements. Depending on

Koprince Law LLC

Koprince Law LLC


GAO Declines Jurisdiction Over the “Other Transactional Agreement” Evaluation and Award Process

Evaluation and selection of an offeror for award of an “Other Transactional Agreement,” or “OTA,” are significantly more flexible than a traditional procurement under the FAR. This was at issue recently in GAO case MD Helicopters Inc., B-417379 (Comp. Gen. Apr. 4, 2019), where GAO clarified that it does not have jurisdiction to hear protests regarding OTA award decisions. Generally, OTAs, are utilized by the Department of Defense for research and development and prototype related pro

SmallGovCon Week In Review April 8 – April 12, 2019

Happy Friday, everyone! It’s a beautiful day in Lawrence, as we seemed to have dodged the bullet with the massive mid-April winter storm that’s affected our friends up north. No matter where you’re located, we hope you’ve had a great week, too. Before we head out for the weekend, it’s time for the Week In Review. In this week’s edition, we’ll take a look at the nominee to head the SBA, VA contracting goals, a new DoD rule to implement the nonmanufacturer rule to 8(a) contracts, and more.

CBCA Rules that Claims Discovered During Appeal Were Not Time-Barred

The Contract Disputes Act requires a contractor to present a claim to the contracting officer “within 6 years after the accrual of the claim.” 41 U.S.C. 7103(a)(4)(A). But a claim doesn’t typically accrue until the contractor should have known that it was damaged by the Government. As discussed below, some legal claims might not arise until a contractor takes discovery in an appeal already before the Civilian Board of Contract Appeals. The contract at issue in Amec Foster Wheeler En

Runway Extension Act Update: SBA Says Three-Year Reporting Period Still Applies

In late 2018, Congress passed the Small Business Runway Extension Act, which had a single purpose: change the three-year average annual receipts calculation period (for determining small business eligibility) to a five-year calculation period. Small businesses, for the most part, have been watching with bated breath for the SBA to comply with the Runway Extension Act. But as we’ve previously written, the SBA has thus far refused to do so (albeit under shifting rationale). Now, the SBA h

GAO: Agencies Must Consider Information Gathered by Reverse Auction Providers

What are federal contractors supposed to do when FedBid (now Unison) requests additional information related to a proposal and the awarding agency ignores that information in its awarding decision? GAO recently held that the agency must consider all information gathered by reverse auction providers. In BCW Group, LLC, B-417209, 2019 WL 1398813 (Comp. Gen. Mar. 27, 2019), BCW protested the Department of Interior, Bureau of Indian Affairs’ award to another offeror. The award was the re

GAO: Past Performance Should Relate to Solicited Services

Past performance is an important evaluation factor in many solicitations. Essentially, it allows an agency to guess as to the likelihood of an offeror’s successful performance under a solicitation by looking to its history of performance on similar projects in the past. GAO recently confirmed it is “axiomatic” that past performance examples should align with the solicitation’s requirements. If an offeror submits unrelated examples, it risks a downgraded past performance score. The

SmallGovCon Week In Review April 1 – April 5,2019

Happy Friday, everyone! With what seemed like the longest winter ever now officially behind us, it’s getting to be the time of year stuffed with weekend activities. At least that’s the case in my house: this weekend, my son has his first soccer game (and his dad has his first game coaching). We hope that you’re gearing up for a weekend, too. Before we punch out, though, let’s review the news of the week. In this edition of the Week In Review, we’ll look at proposed improvements to DoD’s p

OHA Confirms: SDVOSBs Owed Notice and Opportunity to Respond Before Verification Cancellation

For service-disabled veteran owned small businesses, or SDVOSBs, contracting with the VA, verification by the VA’s Center for Verification and Evaluation, or CVE, is essential. CVE verification is mandatory to compete for VA SDVOSB set-asides and listing on the VA’s Vendor Information Pages (VIP). The SBA Office of Hearings and Appeals recently confirmed that notice and opportunity to respond to allegations is required before a business’ verification is cancelled. In Tactical Offic

Losing Key Owners of SBA Set-Aside Businesses – Now Out in Contract Management Magazine

Clients who own businesses under one of SBA’s socioeconomic designations have often asked us, what happens after I’m gone? Meaning, if the key owner becomes incapacitated or dies, what happens to the set-aside designation for future contracts and ongoing contracts, and are there restrictions on transferring the ownership interest? While we can’t answer all their questions, my recent article in the March 2019 issue of of Contract Management Magazine (the monthly publication of the National C

Breaking: Administrator McMahon Taps Out

This afternoon, news broke that Linda McMahon, the SBA’s Administrator, is expected to resign.   Though people might quibble about specific, individual decisions by the SBA, we believe that Ms. McMahon’s tenure as SBA Administrator has been positive for small businesses. Ms. McMahon has appointed competent and capable individuals within the SBA who genuinely care about advancing the interests of small businesses. The SBA, moreover, has continued to try to make access to federal contracti

SmallGovCon Week In Review March 25 – March 29, 2019

It’s a rainy Friday here in Lawrence—the perfect type of weather to either take a nap or read something interesting. Because we can’t do the former, we’ll settle on the latter. In this edition of the Week In Review, we’ll look at a list of the largest government contractors, a new secure cloud, and more examples of #govcon personnel behaving badly. Have a great weekend! DoD testing secure cloud to help small contractors protect data. [FederalNewsNetwork] Ex-Army colonel pleads gui

DOE Expands Pool of Eligible Protégés under DOE Mentor-Protege Program

The Department of Energy has joined the ranks of government agencies aligning part of its respective small business regulations with the SBA. The DOE has issued a class deviation expanding the pool of companies eligible to be proteges under the DOE mentor-protege program. This deviation comes almost 20 years after DOE first published guidelines for its formal DOE mentor-protégé program and almost three years after SBA formally established a government-wide mentor-protégé program. DO

Court of Federal Claims Decision Lends Support to VA’s SDVOSB Tiered Evaluation Scheme

In late 2017, we wrote that the VA was considering using tiered evaluations to simultaneously 1) comply with the VA’s statutory Rule of Two (and Kingdomware), and 2) address situations in which SDVOSBs and VOSBs might not offer “fair and reasonable” pricing. Since then, the VA has instituted the tiered evaluation process for certain solicitations, using one of three approaches: Tiered Evaluation for SDVOSBs and VOSBs only: Offers made by SDVOSBs are first evaluated. If no SDVOSB s

SCOTUS to Hear Arguments on Agency Power

Oral arguments are to be held today (March 27, 2019) on a U.S. Supreme Court case that may dramatically reduce federal agency power. The case, Kisor v. Wilkie, asks the Supreme Court to overturn longstanding precedent which established that an agency’s interpretation of its own regulation deserves deference so long as it is reasonable. If the Supreme Court overturns this precedent, it could change the balance of power—in favor of government contractors—in certain disputes with agencies.

SmallGovCon Week In Review March 11 – March 15, 2019

Happy Friday, everyone! If you’re a college basketball fan (who isn’t?), this is one of the best times of the year. Things stay pretty interesting around our office in March and April, between our assortment of KU, Duke, and North Carolina fans. We hope you enjoy the games this weekend! Before tipoff, let’s rundown the latest government contracting news. In this week’s edition of the Week In Review, we’ll discuss DoD’s ongoing cloud computing legal battle, GAO’s report on health and safety o

Don’t Forget the Email Attachment—Protest Denied

A protester recently lost an effort to get an agency to consider a late proposal arguing that it was emailed to the agency on the due date. Even though the quote would have been less expensive than the awardee’s and this was a lowest-price technically-acceptable procurement, GAO denied the protest finding that the email was a few hours late and did not include the attached quotation. In Utech Products Inc. d.b.a EndoSoft LLC, B-416915 (Dec. 27, 2018), EndoSoft LLC, a Schenectady, N

Asking Too Much? GAO Grants Only 1% of Protester’s Claimed Costs

While GAO regulations allow GAO to recommend an agency reimburse a protester’s costs if the agency takes corrective action, recouping costs can still be an uphill battle. In AeroSage, LLC, B-416381.6 (Comp. Gen. Mar. 13, 2019, decided before GAO last week, a protester requested $26,450 in costs, but was only reimbursed its initial filing fee, approximately 1 % of that amount. In the underlying case, AeroSage, LLC, B-416381 (Comp. Gen. Aug. 23, 2018), AeroSage’s protest was partial

SmallGovCon Week In Review March 18 – March 22, 2019

It’s the first Friday of spring; I hope it’s as nice in your neighborhood as it is here in Lawrence. Before we all sneak out of work, let’s get caught up on the latest GovCon news. In this edition of the Week In Review, we’ll consider the upcoming DUNS replacement, a celebration of women entrepreneurs, and much more. Have a great weekend! GSA picks Ernst and Young to phase out the DUNS number. [FedScoop] We salute women entrepreneurs during Women’s History Month. [RocketMiner]

SBA OHA: Common Investment Affiliation Analysis Not Tied to Entity Treatment on Tax Returns

Common investment affiliation can arise when SBA believes that two individuals’ common investments in multiple entities may make the individuals in question act with a common purpose. As few as two common investments can form the basis for affiliation. A recent SBA Office of Hearings and Appeals opinion examines the argument that the number of common investments should be counted the same way the number of entities is treated for tax purposes. OHA’s answer: Nope. In Eagle Support Ser

FCC Seeks Comments From Small Businesses on Proposed Satellite Regulations

There are more than 170 million pieces of debris in space. This debris has accumulated over years and years of launching hundreds of satellites into orbit; the same satellites that allow us to rely on GPS, Instagram all our travel photos, or even make this blog available to the masses. While there is almost a 0% chance any of this space debris will land in your front yard, or on your shoulder, it still poses a significant risk to other satellites in various orbits around earth. To stem the

GAO Won’t Let Agencies Sweep Solicitation Non-Compliance Under the Rug

An agency can’t award an offeror a contract if its proposal doesn’t conform with a material solicitation requirement. So if, for example, the solicitation requires certain types of documentation showing an offeror’s right to use property, but the awardee offers something different, GAO will likely sustain a protest. Put differently, GAO won’t let an agency relax key solicitation requirements even though the agency might, during evaluation, accept the non-complying proposal. This sc

Life Moves Pretty Fast: Thank You, SmallGovCon Readers

As many clients and friends of Koprince Law LLC already know, I announced last week that I will be retiring from the active practice of law, effective May 10. As that date draws closer, I will also step down from my role as editor of SmallGovCon, where I’ve written over 1,100(!) posts. But fear not! Koprince Law and SmallGovCon will continue on, good as ever (albeit with slightly fewer references to things like boneless chicken wings). My colleague Matt Schoonover, a current Partner at th

Debriefings and Bid Protests: Our New Handbook is Available

There’s no doubt about it: being involved in a bid protest can be very intimidating for any government contractor. For that reason, the third volume of our Koprince Law Government Contracting Handbooks discusses debriefings and bid protests in detail. Written in plain English and packed with examples, this GovCon Handbook aims at demystifying bid protests, in case you’re ever faced with attacking a competitor’s award (or defending your own). Beyond that, we explain more about debriefings
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