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COFC Says Agency Must Consider Rule of Two Before Using Multiple-Award IDIQ Contract Vehicle

The United States Court of Federal Claims (COFC) has ruled that an agency has to conduct a small business Rule of Two analysis before it can use an existing multiple-award indefinite delivery indefinite quantity (MAIDIQ) contract vehicle to procure services.  This is a landmark decision, given that GSA Schedule contracts are exempt from the Rule of Two.   The COFC’s decision in Tolliver Grp., Inc. v. United States, No. 20-1108C, 2020 WL 7022493 (Fed. Cl. Nov. 30, 2020), arose out of the

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week in Review: Jan. 11 – Jan. 15, 2021

Happy Friday to our SmallGovCon readers! This weekend, I’ll be watching my hometown Chiefs as they begin their journey towards repeating as Super Bowl Champions. Hope you all have have a nice weekend. But before the weekend, be sure to check out some important federal contracting updates. This week saw a number of key updates for government contractors, including a commentary on GSA bid protest success, a number of GSA acquisitions, and a GSA supply chain security measure. When it c

Koprince Law LLC

Koprince Law LLC

2020 Rewind: The Year’s Biggest Government Contracting News Affecting Small Businesses

Let’s face it: most people won’t look back on 2020 with anything remotely approaching nostalgia.  Here at Koprince Law LLC, we are eager to turn the page and move on with 2021, too.  But small businesses shouldn’t forget 2020 completely.  The year brought many important developments, including major changes to some key government contracting rules that our readers should remember.  So here, in a nutshell, are the most important 2020 government contracting changes and legal developments for s

Koprince Law LLC

Koprince Law LLC

Update: SBA Issues 8(a) Program Term Extension Rule

SBA has issued its rule allowing for an extension of 8(a) program terms by one year, as directed by Congress. The rule will be effective immediately on January 13, (barring some publication delay). Read on for the key terms from the new rule. Here are the key highlights from the extension rule: Eligibility. All firms that were in the 8(a) program on March 13, 2020 through September 9, 2020 are eligible for the extension. Firms that were terminated, early graduated, or voluntarily w

No Ostensible Subcontractor Rule for Manufactured Product Procurements, SBA OHA Confirms

The SBA’s ostensible subcontractor rule can be a minefield for small prime contractors, who must be careful to avoid risk factors for affiliation with their large subcontractors. But not every small prime need worry about ostensible subcontractor affiliation. As a recent SBA Office of Hearings and Appeals decision confirms, the ostensible subcontractor rule does not apply to procurements for manufactured products. OHA’s decision in Size Appeal of Invisio Communications, Inc., SBA N

SmallGovCon Week in Review: Dec. 28, 2020 – Jan. 8, 2021

I was going to wish a Happy New Year to our readers, and I still hope people are having a nice start to the New Year. But the recent violence in the Capital has cast a pall over the start to this year. As citizens of this fine country and people striving to improve federal government services, I think we can agree it was an event that should never be repeated. But, as federal contractors know, the government continues to function and we bring you these recent federal contracting updates, in

Reverse Auctions: Proposed Rule Poised to Strengthen Regulatory Framework

The DoD, NASA, and GSA have proposed new rules aimed at providing transparency for reverse auctions after GAO reports in 2013 and 2018 signaled the need for guidance on reverse auctions to achieve cost savings and reduce fees.   As context, the FAR was amended in 1997 to allow for the use of reverse auctions. Six agencies conducted approximately 15,000 reverse auctions in 2016 alone. Reverse auctions, despite their wide use, are not without controversy. Application of fees, and inability to

Solicitation Ambiguities: Speak Now, or Forever Hold Your Peace

When a federal solicitation is vague, ambiguous or internally contradictory, it is common for offerors to hold their tongues. Instead of challenging the solicitation’s defects before proposals are due, many offerors decide to submit proposals and “see how it plays out.” Later, if the award goes to a competitor, these offerors may try to protest the solicitation’s defects. It’s unsurprising that offerors can be reticent to rock the boat before an award is made. But a recent GAO bid protest

8(a) Term Extension Questions and Details

Since the COVID-19 Relief Bill passed was enacted on December 27 (including the 8(a) term extension that we discussed earlier), the 15-day window for SBA’s rules on the extension falls on January 11. Here are some thoughts on how we think SBA may fill in the gaps for this important 8(a) term extension, based on our interpretation of the statute and feedback from SBA. Will the 1-year extension option be effective on January 11 (or within a few days of that date) or some later date? We th

Happy New Year from SmallGovCon!

While it’s always exciting to look to a new year, moving on from 2020 will be especially meaningful. However, there were a number of important updates to federal contracting rules in 2020 that we were excited to share with our readers. We wish our readers a happy and healthy start to 2021! We’ll continue to keep you up to date on all matters federal contracting. The post Happy New Year from SmallGovCon! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Koprince Law LLC

Koprince Law LLC

OHA and the Ostensible Subcontractor Rule: A Two-Prong Test You Can’t Fix After the Fact

In a recent decision, OHA ruled that the ostensible subcontractor rule requires a two-prong evaluation before SBA can find affiliation. The SBA Area Office took a look at only one prong, which resulted in a remand from OHA. Ultimately, OHA found affiliation, reversed the SBA Area Office and found the concern ineligible. As OHA made clear, entities can’t fix deficiencies after the fact. Think of the ostensible subcontractor rule like the preferred go-to move (other than line dancing) at a Cou

Koprince Law LLC

Koprince Law LLC

Proposal Points of Contact: Don’t Rely on Automatic Email Response, GAO Decision Warns

Agencies commonly ask offerors to designate a point of contact for communications about the proposal. But what happens if the person the offeror identifies is unavailable when the agency reaches out? A recent GAO bid protest decision is a cautionary tale and suggests some best practices for offerors. The GAO’s decision in Ortho-Clinical Diagnostics, Inc., B-418946 (Oct. 23, 2020) involved a Navy RFQ seeking two clinical chemistry/immunoassay laboratory analyzer systems and one labo

Koprince Law LLC

Koprince Law LLC

GAO Annual Bid Protest Report Shows 51% Effectiveness Rate

In 2020, the GAO Bid Protest effectiveness rate crossed the 50% threshold, higher than we’ve seen it in any recent year.  Overall, cases filed went down a mere 2% year over year. GAO issues its yearly report as a requirement under statute. Congress is particularly concerned with knowing 1) which federal agencies didn’t follow GAO’s recommendations in bid protests and 2) if GAO did not issue a decision in 100 days. As like most years, GAO was “pleased” to report that all agencies followed its

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week in Review: Dec. 21 – Dec. 24, 2020

Merry Christmas and Happy Holidays to all our SmallGovCon readers! Hope you have a happy and healthy time over the holidays. But in case you need some reading to tide you over, here are some of the top government contracting updates from this week. These included insights on a potential government shutdown, updates on passage of the NDAA passage and COVID-19 relief bills, and more on the SolarWinds breach. What’s At Stake With Trump’s Threat: COVID-19 Relief And A Government Shutdo

Koprince Law LLC

Koprince Law LLC

Congress Requires Large Primes to Provide Past Performance Reviews to Small Subcontractors–And Agencies to Consider Them

Breaking into the federal government contracting marketplace can be challenging, and many small businesses choose to start as subcontractors. But when those companies later bid on prime contracts, they sometimes find that they cannot get past performance reviews for their subcontract work, or that the government won’t consider such reviews. Now, Congress has stepped in. A provision in the 2021 National Defense Authorization Act will require large prime contractors to provide small busine

Koprince Law LLC

Koprince Law LLC

Event: Small Business Contracting at Pub K’s Annual Review

As you make your plans for 2021, be sure to mark down Pub K’s Annual Year In Review. I’m excited to be part of a panel on small business contracting! There are other helpful panels on items ranging from claims to cybersecurity from January 25 through 28, so take a look at the entire schedule. I’ll be speaking at 3 pm eastern on January 27. The event is free to the public. Check the site for details on how to register. The post Event: Small Business Contracting at Pub K’s Annual Review first

Koprince Law LLC

Koprince Law LLC

8(a) Participants to Receive One-Year Extension Through COVID-19 Bill

Congress has included in the new COVID-19 relief bill a one-year extension of the term for participation in the 8(a) Program. Under the provision, any small business concern participating in the 8(a) program on or before September 9, 2020 may “elect to extend such participation by a period of 1 year”.  This is good news, especially for those concerns in their last year of viability in the 8(a) program who may have felt shortchanged from COVID’s effects on the economy. This provision is f

Koprince Law LLC

Koprince Law LLC

New DoD Rule Requires Formal Certification for WOSB and EDWOSB Contracts

The DoD has issued a new class deviation, effective immediately, which implements the SBA’s requirement that women-owned small businesses be formally certified to receive WOSB set-aside contracts.  The class deviation contains a “priority review” procedure to allow companies with pending WOSB or EDWOSB certification applications to be considered for award.  Effective immediately, when a DoD contracting officer wishes to award a WOSB set-aside or sole source contract, the DoD contracting

Koprince Law LLC

Koprince Law LLC

Exceeding Solicitation’s Page Limit Renders Offer Technically Unacceptable, Even if It’s the Cover Page

In a recent decision, the GAO laid down a stark reminder of its unwavering demand that offers be meticulously compliant with the instructions of a solicitation.  In the decision, GAO denied a protest challenging the agency’s evaluation of a proposal as technically unacceptable where certain required proposal information was in pages that exceeded the solicitation’s page limits. The agency’s decision to ignore that information was reasonable and consistent with the solicitation’s terms. T

Koprince Law LLC

Koprince Law LLC

Event: SDVOSB Programs Webinar, Hosted by Govology

The federal government spends more than $20 billion annually on contracts with service-disabled veteran-owned small businesses. But the rules governing SDVOSB eligibility can be complex and confusing – starting with the fact that the government runs not one, but two SDVOSB programs. On January 14, join me for a webinar, hosted by our friends at Govology, covering the ins-and-outs of Uncle Sam’s SDVOSB programs. In this session, I will demystify the key SDVOSB eligibility requirements in pl

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week in Review: Dec. 14 – Dec. 18, 2020

Monday December 21 will be the shortest day of the year in United States. But guess what–that means we’ll be seeing more daylight starting Tuesday! While you are burning the midnight oil and preparing for the holidays, check out some of these recent federal contracting updates. These include the federal government averting a shut down, details on a cyber attack involving multiple federal agencies, and a GAO report that agencies must enhance supply chain risk management. SolarWinds’

Koprince Law LLC

Koprince Law LLC

IHS (Finally) Proposes Stronger Rules for Buy Indian Act

The Indian Health Service has released a proposed rule that will strengthen requirements for IHS to set aside contracts for businesses owned by tribal companies. The new rule should result in increased opportunities for native-owned businesses by bringing Buy Indian Act purchasing preferences in line with other purchasing policies such as the small business Rule of Two, and it’s about time, as this purchasing preference has been law for 110 years with little clarity on how agencies would enforce

Koprince Law LLC

Koprince Law LLC

Check Your Joint Venture Agreements: Under-the-Radar SBA Change Could Cause Problems

Joint ventures operating under the SBA’s All Small Mentor-Protege Program may need to adjust their joint venture agreements because of a little-noticed change to SBA’s joint venture rules. In its recent final rule, effective November 16, SBA amended two of the mandatory requirements for mentor-protege joint ventures pursuing small business set-aside contracts. SBA did not make corresponding changes to the joint venture rules for SBA’s four major socioeconomic programs–meaning that a joint v

Koprince Law LLC

Koprince Law LLC

SBIR Program: Agencies Have Broad Discretion Over Phase III Awards, GAO Confirms

A federal agency has broad discretion to make a sole source award under Phase III of the Small Business Innovation Research program. In a recent bid protest decision, the GAO confirmed that an agency may make a Phase III award when the contract “derives from, extends, or completes efforts made under prior funding agreements under the SBIR program.” What’s more, an agency has “relatively limited requirements to justify a phase III award,” and considerable discretion when it comes to determin

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week in Review: Dec. 7 – Dec. 11, 2020

Hope your holiday season is going well. I’m enjoying the start of college basketball–finally getting to watch the hometown Jayhawks, who ended last season at number 1 in the polls! This week saw some key updates, including timing for STARS III awards and other small business GWACs, a report on mismanagement related to the AbilityOne program, and a new DOD directive to improve acquisition reform. Persistent Deficiencies and Mismanagement of Agency Programs Hamper Ability One’s Future

Koprince Law LLC

Koprince Law LLC

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