It’s a sad day here at Koprince Law. Molly Schemm, who has been my fantastic legal executive assistant since before the firm’s doors even opened, is leaving to pursue new adventures in Alabama. All of us here at the firm will miss Molly dearly–and we won’t be the only ones. Molly’s warmth and professionalism have earned her many friends among our clients, too. We wish Molly the very best.
Before the weekend begins (and Molly begins her drive South), it’s time for your weekly dose of SmallGovCon Week In Review. In this edition, a provision commonly known as the “Amazon” amendment is garnering renewed attention, an Alabama contractor is sentenced for defrauding the government, SAM is getting a makeover, and much more.
A recent DoD memo provides guidance regarding the implementation of DFARS Clause 252.204-7012, which governs safeguarding covered defense information and cyber incident reporting. [Office of Under Secretary of Defense]
Some in the House of Representatives want to make federal procurement less complex and more competitive. But is the so-called “Amazon Amendment” the way forward? [Federal News Radio]
A contractor was ordered to repay the full amount of contracts awarded after he was found guilty on criminal charges of falsely obtaining Small Business Innovation Research contracts with the DoD and NASA. [United States Department of Justice]
The GAO released a length report regarding agencies’ compliance with OSDBU requirements. [GAO]
The GSA is working on a new look for SAM. You can now check out the beta version of the website and provide your feedback on what will eventually become the permanent site. [fedscoop]
Recent studies show that the percentage of overall research and development spending sponsored by the government has dropped sharply over the last 50 years. [National Defense]
Check out the four changes in the 2018 NDAA that contractors need to know about. [Federal News Radio]
With a great deal of uncertainty about the 2018 federal budget, Edge 360 takes a look at what October will hold for federal IT contractors. [Edge 360]
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I recall sitting in a mediation one day when the mediator, a judge, told me and my client that we all have lightning in our fingers. He went on to explain that this means, once you sign a contract, it’s like magic in the sense that you can’t get out of the contract and are bound by it, absent certain exceptional circumstances.
I was reminded of this concept while reading a recent opinion from the Armed Services Board of Contract Appeals that dealt with the effect of a contractor signing a release with the government and then trying to back out of that release by refusing payment from the government.
In Central Texas Express Metalwork LLC d/b/a Express Contracting, ASBCA No. 61109, (Sept. 7, 2017), the ASBCA reviewed an appeal of contractor CTEM, which had contracted to repair and replace certain HVAC systems at an Air Force base for $2,457,237. After partial performance, CTEM submitted a request for equitable adjustment for $643,841.88 in increased costs due to the Air Force’s purported delays and changes, including $345,691.07 sought on behalf of a subcontractor called IMS.
In settlement of the dispute, the Air Force agreed to pay the outstanding contract balance of $395,727.99. This resulted in, among other things, CTEM waiving its REA and the Air Force waiving a credit it should have received from reducing the scope of the contract. CTEM and the subcontractor agreed to provide a final invoice and a release of claims, and the release included no exceptions. The pertinent language of the release was “the Contractor, upon payment of the sum by the United States of America (Herein after called Government), does remise, release, and discharge the Government, its officers, agents, and employees, of and from all liabilities, obligations, claims, and demands, whatsoever, under or arising from the said contract.”
CTEM then contacted IMS to inform IMS of what amount it would receive as part of the settlement, and IMS refused the offer. When the government sent the final payment to CTEM, CTEM had frozen its account and informed the government that CTEM was working on submitting a corrected invoice. CTEM then submitted a certified claim to the CO for $643,841.88 for the delays by the Air Force, including the $345,691.07 sought by the subcontractor IMS.
CTEM argued that, because it did not accept the final payment from the government, the release was not binding. The ASBCA, referring to case-law dating back to 1860, wrote that “[o]nce an offer has been accepted, there is a binding contract.” Thereafter, “neither the offer nor the acceptance generally can be revoked or withdrawn.”
In this case, the government made a binding offer for settlement, and CTEM accepted it, so CTEM “cannot avoid its obligations under the release by refusing to accept payment.” What’s more, because CTEM entered into the settlement agreement with the government, CTEM had a duty of good faith to not interfere with the government’s performance in tendering the final payment. Rather, “ecause CTEM cannot withdraw its offer at this point, it is bound to accept $395,727.99 for its claims, and release the remainder of the claims.”
This decision is a good reminder of the power we all hold in our hands when we are signing a contract. This power holds sway in government contracts as equally as it does in other areas of contract law. The government often asks contractors to sign waivers and releases, and like CTEM, other contractors sometimes have second thoughts after they sign. Contractors would do well to think very carefully when they are signing a release with the government that covers all claims, because, barring relatively rare exceptions, those releases are binding.
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A dissatisfied U.S. Postal Service customer filed an appeal with the Postal Service Board of Contract Appeals, seeking $50,000 in damages resulting from the Postal Service’s failure to deliver a Priority Mail package.
The appellant contended that it had a contract with the Postal Service, which was breached when the Postal Service failed to deliver the package. But the appellant’s cleverness wasn’t enough to prevail: the Board held that it lacked jurisdiction over the appeal.
The case of Triumph Donnelly Studios LLC v. United States Postal Service, PSBCA No. 6683 (2017) began in August 2016, when Triumph Donnelly mailed a package from South Carolina to California using Priority Mail. The package was never delivered, and the Postal Service admitted that the package was lost.
The Postal Service automatically insures most Priority Mail packages in the amount of $50. Triumph filed a claim for this amount, and was reimbursed by the Postal Service.
But Triumph wasn’t satisfied with a mere $50. Triumph filed a claim with the Postal Service’s National Tort Center seeking $50,000. The National Tort Center denied Triumph’s claim and a subsequent request for reconsideration. The National Tort Center advised Triumph that its decision was final, and that Triumph’s next legal option would be to file suit in federal district court.
Instead, Triumph filed an appeal with the Board, arguing that the Postal Service breached a contract when it lost the Priority Mail package. The Postal Service asked the Board to dismiss the appeal for lack of jurisdiction.
The Board held that the Contract Disputes Act applies to the Postal Service. Under the CDA, a Board of Contract Appeals has jurisdiction over “any express or implied contract . . . made by an executive agency for (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or (4) the disposal of personal property.”
The Board wrote that its jurisdiction is limited “to the four contract types” identified in the CDA. More specifically, the CDA “does not apply to a contract under which the government provides a service.”
Here, the Board determined, “ecause the alleged contractual relationship between the Postal Service and Triumph Donnelly would be just such a contract for the government to provide a service, we hold that it is not covered by the CDA.” The Board concluded: “imply put, we do not have jurisdiction to decide disputes between the Postal Service and its customers involving delivery of the mail.”
The Board dismissed the appeal.
Sadly, the PSBCA’s decision doesn’t answer an obvious question: what the heck was in that Priority Mail package, anyway? Cold cash? Ultra-rare Nintendo games? The possibilities are endless, and perhaps raw speculation is more fun than an answer.
The Triumph Donnelly case is interesting because of its facts, but it also demonstrates an important point of law: the jurisdiction of a Board of Contract Appeals is limited by the CDA to specific matters–and excludes cases in which the government provides a service.
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I am back in Lawrence after a great trip late last week to Omaha, where I gave a half-day seminar on joint venturing, teaming and subcontracting for federal government small business contracts.
Thank you very much to Veronica Doga and her team at the Nebraska PTAC for organizing the event and making sure everything ran smoothly. Thanks also to the other sponsors for contributing their time, expertise and meals (like many things in life, in-depth seminars on government contracts always go over better on a full stomach). And of course, thank you to all of the attendees who spent a sunny Friday morning talking about mentor-protege agreements, teaming agreements, and similar topics. It was great to meet so many new people.
I’ll be sticking around for the next couple weeks before catching a flight to Salt Lake City for the 2017 Utah PTAC Procurement Symposium on October 11. If you’ll be at the Symposium, please stop by the Koprince Law LLC booth to say hello. Hope to see you there!
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Small government contractors lost an important ally last week–and many of us lost a great friend.
Becky Peterson, the longtime Interim Executive Director of the Association of Procurement Technical Centers, passed away on Thursday. Her legacy lives on in the amazing network of PTACs across the country.
I first met Becky a number of years ago, when she and the APTAC leadership team took a chance, and invited a little-known government contracts associate to give a breakout session at the APTAC national conference. Many conferences later, Becky’s amazing blend of professionalism and kindness always stood out. “You’re family here,” she would tell me, giving me a hug. Then she’d pivot into a nuanced issue affecting small contractors, discussing how her PTAC counselors could best make a difference.
Becky strongly believed in the mission of PTACs: to provide government contractors (mostly small businesses) with individualized counseling services, training and assistance in pursuing, winning and successfully performing government contracts. Working with a network of nearly 650 procurement counselors nationwide, Becky sought to arm her team with the information they needed to best counsel their clients. But more than that: she and the APTAC leadership team always emphasized the importance of ethics and compliance, helping make sure that PTAC clients were counseled on much more than just the nuts and bolts of the contracting process.
She fought hard for her organization, working to raise its profile on Capitol Hill and ensure that it continues to receive much-needed political support (and funding). And she didn’t stop fighting: just a few weeks ago, even while she battled illness, she was in Oklahoma helping organize the Indian Country Business Summit. I am heartbroken to know that was the last time I’ll see her.
You shouldn’t feel bad if you didn’t know Becky’s name. She wasn’t one to seek the spotlight for herself. Her focus was on PTACs, and all the wonderful things they do for contractors around the country. In fact, if she could read this post, she’d probably say something like, “that’s very sweet, but enough about me–please remind your readers of the free PTAC counseling they can get right in their own backyards.”
If you haven’t connected with your PTAC, there’s no time like now. Visit the APTAC website to find your local PTAC and schedule an appointment. I think you’ll be impressed with the organization Becky helped build and run.
Those of us who knew Becky will miss her dearly. And those who didn’t will feel the positive effects of her hard work for years to come.
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Greetings from Omaha, where I’ve just wrapped up a great half-day training session sponsored by the Nebraska PTAC. If you haven’t been to Omaha, you’re missing out: I’m enjoying exploring the Old Market District, and keep wondering when I’ll run into Warren Buffett.
Of course, I’m not about to let a little road trip get in the way of our weekly roundup of government contracts news. In this edition of the SmallGovCon Week In Review, we have an update on an SDVOSB fraud case that we have been following for awhile, a push to close loopholes in the Buy American Act, some promising changes for the SBA Surety Bond Guarantee program, and more.
After jurors became deadlocked, a retrial was scheduled in the case of an Arkansas businessman accused of falsely claiming to operate a SDVOSB. [Arkansas Online]
Senator Chris Murphy is pushing hard to change federal rules regarding the government buying products from American companies, trying to close loopholes in the Buy American Act. [New Haven Register]
FEMA is seeking contractors to provide meals in the wake of Hurricane Maria, and will begin awarding contracts as soon as possible. [Markets Insider]
Congressman Will Hurd is one step closer to making his dream of overhauling federal government information technology procurement a reality. [San Antonio Business Journal]
The SBA is considering granting a request for a class waiver of the Nonmanufacturer Rule for Positive Airway Pressure Devices and Supplies Manufacturing. [Federal Register]
The SBA has finalized two important changes to its Surety Bond Guarantee Program that will increase contract opportunities for small construction contractors. [SBA]
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In late 2016, the SBA rolled out a fantastic tool to help small business grow in the marketplace.
Here are five things you should know about the SBA All Small Mentor-Protégé Program:
It’s a business development program.
I’m often asked by small business owners, What is the new mentor-protégé program? My answer is simple: it’s a business development program aimed at increasing small business capabilities. Under the All Small Mentor-Protege Program, a mentor provides its protégé with various types of business development assistance.
What type of assistance can be given?
The All Small Mentor-Protege Program is designed to help protégés improve their ability to compete for government contracts. As a result, mentors can provide virtually any type of assistance that would help protégés do so. This assistance might qualify as technical or management assistance, financial assistance (including taking a minority equity stake in the protégé to help raise capital), subcontracts or subcontracting assistance, trade education, or any other general or administrative assistance. Mentors and protégés can also—but don’t have to—form a joint venture relationship to pursue one or more contracts.
Who’s eligible to participate?
The Program’s rules are broad enough that really any business can participate. To qualify as a protégé, a company simply has to be a small business under its primary NAICS code or under a secondary NAICS code under which it is seeking business development assistance. (To qualify as a protege in a secondary code, however, the company must have done business in that code). Any business (large or small) can act as a mentor, so long as it has the capabilities to offer the pledged assistance and is of good character.
The benefits of participation.
For a protégé, the benefits to participation are obvious: so long as the mentor lives up to its end of the bargain, the protege should gain increased capabilities and become more competitive in the federal marketplace. A protégé, moreover, will not be considered to be affiliated with its mentor simply because of the assistance provided by the mentor (but a word of caution: affiliation might still be found for other reasons).
But what’s in it for a mentor? Aside from the good karma promised by helping develop a small business, a large business mentor may also have increased access to federal contracts. If a mentor and protégé choose to form a joint venture to pursue a federal contract, the joint venture will qualify as a small business if the protégé alone qualifies as a small business. This is a great benefit—for joint ventures between companies that aren’t in a mentor-protégé relationship, both companies would separately have to qualify as small. By entering into a mentor-protégé joint venture relationship, a large business will increase its access to small business contracts.
The affiliation exception can also be appealing to mentors, as it may allow a mentor to have a closer working relationship with a small business than might otherwise be advisable under the SBA’s affiliation rules.
How can your business apply?
To form an All-Small Mentor-Protégé relationship, the parties must complete a written application that details the type of assistance needed by the protégé and explains (complete with timetables and progress benchmarks) how the mentor will provide that assistance. The application must be approved by the SBA. The benefits of the All Small Mentor-Protege Program don’t kick in until the SBA’s approval and only last while the mentor-protege agreement is in effect. Additional details about the application process can be found on the SBA’s All Small Mentor-Protege website.
Though still in its infancy, the All Small Mentor-Protégé Program has already been a tremendous benefit to its participants. If you’d like to learn more, or if you want help applying, please give me a call.
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Although a lease may be a “contract” in common parlance, does a lease qualify as a contract under the Contract Disputes Act?
The answer is important, because the Contract Disputes Act provides jurisdiction for the Court of Federal Claims and Board of Contract Appeals to decide challenges to contracting officers’ final decisions. If a lease isn’t a contract under the Contract Disputes Act, government lessors could be in a bind.
The United States Court of Federal Claims recently decided the issue–and came down on the side of lessors, at least under the facts at hand.
In Lee’s Ford Dock, Inc. v. Secretary of the Army, 865 F.3d 1361 (Fed. Cir. 2017), the Court of Appeals for the Federal Circuit was called on to resolve a dispute between the United States Army Corps of Engineers and Lee’s Ford Dock, a marina operator on Lake Cumberland, Kentucky.
Lake Cumberland is a man-made lake resulting from the damming of the Cumberland River. The dam was constructed in 1951 by the Corps and has been in continuous operation ever since.
In 2000, Lee’s Ford Dock, Inc. entered into a lease with the Corps for roughly 166 acres of land and water real-estate on Lake Cumberland. The lease was for a 25 year term, with an option to extend for an additional 25 years. Importantly, under the lease, the Corps reserved the right to manipulate the water levels of Lake Cumberland.
In 2007, seven years into the lease, the Corps determined the dam was at a high risk of failure and initiated risk reduction measures, including lowering the water level. It was not until 2014 that remedial work on the dam was completed and the water level returned to its pre-2007 levels.
The drawdown of Lake Cumberland had significant ramifications for Lee’s Ford Dock, which was dependent on the higher water-levels for its marina operations. It filed a claim with the contracting officer for damages associated with the depressed water levels and reduced marina revenues. Lee’s Ford Dock alleged these damages totaled at least $4 million dollars.
The Contracting Officer denied the claim, and Lee’s Ford Dock appealed to the Armed Services Board of Contract Appeals. After the ASBCA ruled in the Corps’ favor, Lee’s Ford Dock appealed yet again, this time to the Federal Circuit.
The Corps argued that the Federal Circuit lacked jurisdiction because the case did not arise under the Contract Disputes Act. That forced the Federal Circuit to address a threshold question, is a lease a “contract” subject to the Contract Disputes Act?
Pursuant to Section 7102(a), the Contract Disputes Act generally applies to “any express or implied contract . . . made by an executive agency for” the following:
(1) the procurement of property, other than real property in being;
(2) the procurement of services;
(3) the procurement of construction, alteration, repair, or maintenance of real property; or
(4) the disposal of personal property.
Of the available options, the best chance for jurisdiction would be if the lease was considered personal property that the Corps disposed–the fourth item on the list above.
The Federal Circuit found the lease to constitute a contract for personal property. As the Court explained, “t is well settled that leasehold interests are items of personal property unless a statute commands otherwise.” As the Corps could point to no statute commanding otherwise, the Federal Circuit concluded that Lee’s Ford Dock’s right to operate a marina on the leased premises was personal property.
Next, the Federal Circuit considered whether the Corps “disposed” of property when it entered into the lease. The Court concluded the Corps did dispose of property through the lease and explained its reasoning accordingly:
“Dispose” is a broad term meaning “to exercise control over; to direct or assign for a use; to pass over into the control of some one else; to alienate, bestow, or part with.” By entering into the Lease with [Lee’s Ford Dock], the Corps “bestowed,” “directed,” and “assigned”—and therefore disposed of—a personal property right to [Lee’s Ford Dock] to operate a marina on the leased premises. The Lease therefore embodies a contract for “the disposal of personal property” within the purview of the [Contract Disputes Act].
Finding the lease was personal property that was disposed of by the government, the Federal Circuit concluded it had jurisdiction to decide the case on the merits. But unfortunately for Lee’s Ford Dock, it won the battle but lost the war: the Federal Circuit dismissed a portion of the appeal on different jurisdictional grounds, and affirmed the ASBCA’s ruling as to the remainder of the appeal.
Although Lee’s Ford Dock didn’t win its appeal, the Federal Circuit’s decision establishes an important precedent for those who engage in lease transactions with the government. While the Lee’s Ford Dock decision was specific to the facts at hand and won’t necessarily apply to every lease, the Court’s broad reading of the Contract Disputes Act is a good thing for contractors.
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Provisions in a company’s Shareholders Agreement, requiring the service-disabled veteran to sell his shares back to the company in the event of the veteran’s death or incapacity, were contrary to the SBA’s SDVOSB regulations.
According to a recent SBA Office of Hearings and Appeals decision, these provisions prevented the veteran from having unconditional ownership over the company, because he could not dispose of his shares as he chose. In reaching its conclusion, SBA OHA wrote that Court of Federal Claims decisions allowing such provisions under the VA’s SDVOSB program didn’t apply to SBA–meaning that SDVOSBs verified by the VA might be ineligible for non-VA SDVOSB contracts.
What a mess.
OHA’s decision in Veterans Contracting Group, Inc., SBA No. VET-265 (2017) involved a Corps of Engineers IFB for the removal of hazardous materials and demolition of buildings at the St. Albans Community Living Center in New York. The Corps set aside the procurement for SDVOSBs under NAICS code 238910 (Site Preparation Contractors).
After opening bids, the Corps announced that Veterans Contracting Group, Inc. was the lowest bidder. An unsuccessful competitor subsequently filed a protest challenging VCG’s SDVOSB eligibility.
DoD procurements fall under the SBA’s SDVOSB regulations, not the VA’s separate rules. (As I’ve discussed various times on this blog, the government currently runs two separate SDVOSB programs: one by SBA; the other by VA). The protest was referred to the SBA’s Director of Government Contracting for resolution.
The SBA determined that Ronald Montano, a service-disabled veteran, owned a 51% interest in VCG. A non-SDV owned the remaining 49%.
The SBA then evaluated VCG’s Shareholder’s Agreement. The Shareholders Agreement provided that upon Mr. Montano’s death, incapacity, or insolvency, all of his shares would be purchased by VCG at a predetermined price. The SBA determined that these provisions “deprived [Mr. Montano] of his ability to dispose of his shares as he sees fit, and at the full value of his ownership interest.” The SBA found that these “significant restrictions” on Mr. Montano’s ability to transfer his shares undermined the SBA’s requirement that an SDVOSB be at least 51% “unconditionally owned” by service-disabled veterans. The SBA issued a decision finding VCG to be ineligible for the Corps contract.
VCG appealed the decision to SBA OHA. VCG argued, among other things, that a 2013 Court of Federal Claims decision characterized a right of first refusal as “a standard provision used in normal commercial dealings,” which “does not burden the veteran’s ownership interest unless he or she chooses to sell some of his or her stake.” That case, which arose under the VA’s SDVOSB regulations, caused the VA to reverse its previous guidance and allow right of first refusal provisions–something VA has now permitted for more than four years.
OHA wrote that the Shareholders Agreement “places conditions on Mr. Montano’s ownership interest.” OHA explained that, “in [the] event of Mr. Montano’s death, he is not able to dispose of his stock as he pleases, but rather, his estate must sell it to the corporation at the corporation’s price.” Similarly, if Mr. Montano were to be deemed incapacitated, his “shares are deemed to have been offered to the corporation at Certificate Value, and the corporation shall purchase the shares.”
OHA wrote that the Court of Federal Claims decision dealt with “DVA’s Service Disabled Veteran-Owned Small Business Program, the Vets First Contracting.” The Court “considered the issue of ownership under DVA’s regulation, 38 C.F.R. 74.3” This “is a different program from SBA’s Service-Disabled Veteran-Owned Small Business Concern program.” SBA’s program, OHA wrote, “requires that the SDV’s ownership be unconditional, without condition or limitation upon the individual’s right to exercise full ownership and control of the concern.”
OHA denied VCG’s appeal, and upheld the SBA’s determination finding VCG ineligible.
OHA’s opinion is consistent with its prior decisions, and not surprising in that respect. OHA’s job in cases like these is to interpret the SBA’s rules–nothing more. But for SDVOSBs, Veterans Contracting Group confirms that the government’s SDVOSB system is (to use official law school terminology), a hot mess.
In my experience, many SDVOSBs don’t even realize that the government runs two separate SDVOSB programs, much less that the two programs have separate eligibility rules. When a company is verified by the VA as an SDVOSB, many veterans assume that the company is eligible for SDVOSB contracts government-wide.
But since 2013, the VA accepts right of first refusal provisions like those at issue in Veterans Contracting Group. These provisions are commonplace in standard corporate documentation, and undoubtedly many companies with such provisions in their governing documents have been verified by the VA. As Veterans Contracting Group confirms, these same provisions may make these verified SDVOSBs ineligible for non-VA SDVOSB contracts.
Fortunately, changes are on the way. Thanks to the 2017 National Defense Authorization Act, the SBA and VA are working together on regulations to consolidate the SDVOSB eligibility requirements. Once these new rules are finalized, SDVOSBs will finally be able to play under one set of rules instead of two.
Of course, the consolidated regulations have yet to be proposed, much less enacted. For now, SDVOSBs should strongly consider taking a fresh look at their governing documents. As Veterans Contracting Group demonstrates, just because those documents might be VA-approved doesn’t mean that they’ll pass muster for non-VA procurements.
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An agency isn’t required to cancel a small business set-aside solicitation if the agency learns that one of the small businesses upon whom the set-aside decision rested is no longer small.
In a recent bid protest decision, the GAO confirmed that an agency need not redo its “rule of two” determination when a potential small business competitor outgrows its size standard–even if it could effectively convert a particular solicitation into a “rule of one.”
The GAO’s decision in Synchrogenix Information Strategies, LLC, B-414068.4 (Sept. 8, 2017) involved an FDA acquisition for software licenses, maintenance and support and related services. Before issuing the solicitation, the agency issued a request for information on FedBizOpps, seeking information from businesses regarding their interest in the procurement.
The FDA received three responses to the RFI from small businesses. After evaluating those responses, the FDA concluded that it was reasonably likely to receive at least two or more offers from responsible small businesses. Accordingly, the FDA issued the solicitation as a total small business set-aside.
The agency received two proposals by the original closing date, August 10, 2016. After evaluating those proposals, the FDA awarded the contract to Lorenz International. The unsuccessful offeror, GlobalSummit, then filed a GAO bid protest challenging the award.
In response, the agency took voluntary corrective action. It asked both offerors to submit “a new full proposal.” New proposals were due on May 15, 2017. The new proposals were to include “all certifications, technical and business information” required by the solicitation.
In March 2017, Synchrongenix Information Strategies, LLC “purchased substantially all of GlobalSummit’s assets.” The purchase created an affiliation between GlobalSummit and Synchrogenix, a large business. As a result, GlobalSummit was no longer small.
GlobalSummit asked that the FDA remove the certification requirement. It explained that, at the time of its original proposal in August 2016, it had qualified as a small business. However, because of the affiliation with Synchrogenix, it would no longer qualify as small if forced to re-certify in May 2017.
The FDA declined to remove the requirement.
Synchrogenix (presumably acting as successor-in-interest to GlobalSummit) filed a GAO bid protest. Synchrogenix argued that the FDA was required to cancel the small business set-aside and reissue the solicitation as unrestricted because there was no longer a reasonable expectation of receiving two or more offers from small businesses. Instead, Synchrogenix contended, the agency could only expect to receive one offer–from Lorenz. Synchrogenix argued that proceeding with the acquisition would be tantamount to a de facto sole source award to Lorenz.
The GAO sought the SBA’s opinion. The SBA weighed in on the FDA’s side, stating:
There is no requirement in the Small Business Act, the FAR, or SBA regulations, that an agency must redo its market research regarding the “rule of two” prior to requesting revised or newly submitted proposals during the course of a procurement or altogether cancel the solicitation if it becomes aware that only one responsible small business offer will be received in response to an amended solicitation.
The SBA further explained “it is not uncommon that an agency becomes aware, over the course of a procurement, that it will receive only one revised offer from a small business concern.” The SBA pointed out that small businesses “may drop out of a competition for a variety of reasons . . . such that there is only one responsible small business offeror remaining.” In such a case, “the agency may make award to that firm, provided award will be made at a fair market price.”
The GAO found the SBA’s reasoning persuasive. “As SBA advised in response to this protest,” GAO wrote, “there is no requirement in law or regulation that an agency must revisit” its rule of two determination when it becomes aware that it will only receive one offer from an eligible small business. GAO concluded: [t]he fact that, during the course of the procurement, one of the two small business offerors is no longer capable of submitting a revised proposal, does not mean the procurement should be viewed as a de facto sole source procurement.”
The GAO denied the protest.
The Synchrogenix case makes the point that if an agency’s market research is sufficient to justify a set-aside, the agency need not adjust its determination if it later comes to realize that it will only receive one offer from a qualified small business. In other words, it can be permissible for a “rule of two” set-aside to effectively turn into a “rule of one” as the acquisition proceeds.
Interestingly, it’s not clear to me that Synchrogenix was ineligible for the FDA solicitation in the first place. Under the SBA’s regulations, size ordinarily is determined as of the date of an initial offer; GlobalSummit met that requirement in August 2016. While there used to be a provision in the regulations allowing contracting officers to require recertifications in connection with certain amendments, that rule was eliminated a few years ago. And although SBA’s regulations do call for a company to recertify its size if it is acquired by another entity, the SBA Office of Hearings and Appeals held, in Size Appeal of W.I.N.N. Group, Inc., SBA No. SIZ-5360 (2012), that “[t]his provision does not deal with the date for determining size for contract award,” but instead merely addresses whether the agency can count the award toward its small business goals.
It’s a complex area of law, but Sychrogenix might have had better luck if it had protested the FDA’s authority to require a size recertification–or if Synchrogenix had simply submitted an offer and forced the Contracting Officer to go through the SBA size protest process to determine whether Synchrogenix was eligible.
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As we get closer to the end of the fiscal year, things can get a little crazy in the world of government contracts. This week is no exception, with plenty of news and commentary in our SmallGovCon Week In Review.
In this mid-September edition, court documents reveal a bribery scheme centered on a former VA OSDBU official, the GSA has relaxed certain contracting rules to speed efforts to rebuild after Hurricane Harvey, the OFPP is planning a third in its series of highly-regarded “mythbusters” memos, and much more.
Newly released court documents have revealed an elaborate scheme with a former VA OSDBU official, who was accepting bribes for lucrative government contracts. [CBS Denver]
In the wake of Hurricane Harvey, the GSA is relaxing certain contracting rules to encourage speed and local awards. [Government Executive]
Contractors are playing a major role in assisting with disaster relief in the wake of Hurricanes Harvey and Irma. [Federal News Radio]
A former Department of Commerce official has found himself with a four year prison sentence and ordered to forfeit approximately a quarter of a million dollars for conspiracy to pay and receive bribes. [United States Department of Justice]
A contractor who was debarred from entering into contracts with the DoD in 2013, but continued to provide airplane parts to the government, has been sentenced to 26 months imprisonment and ordered to pay $420,000 in restitution. [United States Department of Justice]
109 startup companies, venture capital firms and angel investors were interviewed to come up with a report titled “Why Startups Don’t Bid on Government Contracts.” [fedscoop]
The Office of Federal Procurement Policy is planning a third mythbusters memo as part of its continuing effort to improve communication around acquisition. [Federal News Radio]
The Senate will be voting on the 2018 NDAA soon, and Federal News Radio put together a list of four important amendments for contractors to watch. [Federal News Radio]
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Contracting officers have wide discretion to determine that a business can perform the work in question—even if the business is about to enter bankruptcy.
In a recent GAO protest, an unsuccessful offeror challenged just such a determination, saying that there is no way the awarded business could perform because it was nearly bankrupt. But according to the GAO, so long as the agency considered the pending bankruptcy, it was not improper to make an award.
The case, SaxmanOne, LLC, B-414748 (Aug. 22, 2017), involved a motorcycle safety and training contract for the U.S. Marine Corps. The USMC wanted not only motorcycle training, but also dirt bike, all-terrain, recreational off-highway, and driver improvement training at 15 Marine Corps installations across the United States.
After evaluating competitive proposals, the USMC gave the award to Information Science Consulting, Inc., a Manassas, Virginia, company. SaxmanOne, LLC, also a Manassas company, protested.
SaxmanOne took issue with the technical evaluation, the past performance, and the price evaluation, all of which GAO considered and ultimately rejected. But for our purposes, it is the challenge to the contracting officer’s responsibility determination that was the key part of the protest. In finding the awardee responsible, SaxmanOne argued that the USMC ignored the awardee’s debts and pending bankruptcy.
In the decision, GAO noted that, in general, it does not review affirmative responsibility determinations. But, it will when it the agency ignored information that “by its nature, would be expected to have a strong bearing on whether or not the awardee should be found responsible.”
Pending bankruptcy almost certainly satisfies the definition of information that would be expected to have a strong bearing on whether or not the awardee is responsible. Looking good for the protestor, right?
Ah, but here’s the rub: the question is not whether or not such information exists, nor is the fact alone enough for GAO to sustain the protest. The question is whether the agency considered this information or ignored it.
Here, GAO said: “The record demonstrates that the contracting officer considered the awardee’s alleged debts and pending bankruptcy litigation.”
According to GAO, the contracting officer thoroughly investigated the awardee’s financial resources, contacted the awardee’s current clients to see whether debt or pending bankruptcy would have any effect on performance, and reviewed the Federal Awardee Performance and Integrity Information System, which confirmed the awardee had no history of failing to pay subcontractors.
GAO said that was enough: “Given this level of detail, we do not find that the agency ignored either the awardee’s alleged debts or any pending bankruptcy litigation.” The GAO denied the protest.
So, in summation, because the USMC knew about the bankruptcy, and it factored into the responsibility decision, GAO did not see it as an abuse of discretion. Given the relatively thorough investigation the contracting officer undertook, it sounds as though the USMC truly was not worried about this particular contractor performing.
As SaxmanOne shows, agencies have tremendous discretion in making responsibility determinations. When it comes to a financial responsibility matter, the key question is not whether relevant information exists, but whether the contracting officer considered (or ignored) that information.
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What goes around, comes around.
The government sometimes refuses to pay a contractor for a modification when the government official requesting the modification lacks appropriate authority. But contractual authority isn’t a one-way street benefiting only the government. A recent decision by the Armed Services Board of Contract Appeals demonstrates that a contractor may not be bound by a final waiver and release of claims if the individual signing on the contractor’s behalf lacked authority.
The ASBCA’s decision in Horton Construction Co., SBA No. 61085 (2017) involved a contract between the Army and Horton Construction Co., Inc. Under the contract, Horton Construction was to perform work associated with erosion control at Fort Polk, Louisiana. The contract was awarded at a firm, fixed-price of approximately $1.94 million.
After the work was completed, Horton Construction submitted a document entitled “Certification of Final Payment, Contractors Release of Claims.” The document was signed on Horton Construction’s behalf by Chauncy Horton.
More than three years later, Horton Construction submitted a certified claim for an additional $274,599. The certified claim was signed by Dominique Horton Washington, the company’s Vice President.
The Contracting Officer denied the claim, and Horton Construction filed an appeal with the ASBCA. In response, the Army argued that the appeal should be dismissed because the claim arose after a final release was executed.
Horton Construction opposed the Army’s motion for summary judgment. Horton Construction contended that “Mr. Chauncy Horton did not have the requisite authority or the intent to release a claim.”
The ASBCA noted that, when a party moves for summary judgment, it must demonstrate “that there are no disputed material facts, and the moving party is entitled to judgment as a matter of law.” In this case, the information in the record did “not demonstrate the extent to which Mr. Chauncy Horton was authorized to enter agreements between Horton and the Army.” The ASBCA concluded that “the Army failed to submit sufficient evidence to meet its initial burden, specifically whether Mr. Chauncy Horton was authorized to sign the final payment and final release for appellant.”
The ASBCA denied the government’s motion for summary judgment.
When issues of contractual authority arise, they usually seem to benefit the government. But, as the Horton Construction case shows, the government cannot have it both ways. Like the government, a contractor may not be bound by the signature of someone who lacks appropriate authority.
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A communication to a contracting officer taking issue with an awardee’s size can be treated as a size protest–even if the offeror making the communication didn’t intend to file a size protest.
That’s what happened in Sea Box, Inc., SBA No. SIZ-5846 (Aug. 7, 2017), when an offeror accidentally initiated a size protest after losing an award.
Sea Box involved a procurement by the GSA for temporary shelters. The procurement was set-aside for small businesses under NAICS code 332311, Prefabricated Metal Building and Component Manufacturing, and carried a 750 employee size standard.
Sea Box was eliminated during GSA’s evaluation because it did not satisfy one of the pass/fail technical evaluation criteria. Tribalco, LLC was subsequently identified as an apparent successful offeror.
After learning that Tribalco had been named the awardee, Sea Box sent a letter to the contracting officer stating that it had “significant evidence” that Tribalco was not small under the procurement and could not satisfy the nonmanufacturer rule. Sea Box’s letter contained specific information regarding Tribalco’s size, including relevant exhibits. Sea Box concluded by requesting that the contracting officer initiate a size protest. In other words, Sea Box didn’t intend to file its own size protest, but rather to convince the contracting officer to file one.
At this point, it’s important to note what is required to initiate a size protest. Under the 13 C.F.R. § 121.1007, a size protest is merely required to identify the basis for the size allegations; there is no particular form the protest must take. The SBA’s website summarizes the size protest requirements as follows:
There is no format for a protest. If submitting a size protest, one must identify the business and its operators and provide additional information to supplement the claim. In addition, a protest should be filed as soon as possible and include the procurement and specific facts that relate to the size of the business.
With this in mind, the contracting officer reasonably interpreted Sea Box’s letter to be a size protest in and of itself. Accordingly, the Contracting Officer forwarded Sea Box’s letter to the SBA for resolution.
The SBA also interpreted Sea Box’s letter as a size protest. Unfortunately, since Sea Box was previously eliminated from the procurement due to technical issues, it was not an interested party, and the SBA subsequently dismissed its protest. The contracting officer, however, adopted the protest and requested the SBA conduct a size determination.
At this point, the case gets a little odd. Sea Box subsequently appealed the dismissal of its size protest to the SBA Office of Hearings and Appeals. Sea Box argued that it never intended to initiate a size protest against Tribalco; therefore, there should be no size protest dismissal attributed to Sea Box.
Given that the size protest had moved forward at the contracting officer’s request, OHA was unsure what Sea Box was requesting in its appeal. As OHA stated, “[t]he [SBA] Area Office did [Sea Box] a favor by treating its letter as a protest.” OHA further explained that “there are no adverse consequences from simply being on record as having filed an unsuccessful size protest. Many protestors have had their size protests dismissed without any lasting prejudice to them.” Because there was no harm to Sea Box in having its letter dismissed as a size protest and that it objectively lacked standing to protest, OHA upheld the Area Office’s decision to dismiss Sea Box’s protest letter.
The somewhat convoluted procedure involved in Sea Box highlights its lesson—when a contractor submits something that looks like a size protest to a contracting officer, it may be treated as such. This is by design. The SBA’s regulations want to allow contractors with relevant size information to be able to file protests without specific formatting constraints. As Sea Box learned, however, the wide net the SBA’s protest regulations cast can result in letters unintentionally being treated as full-blown protests.
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Sometimes you may find yourself running late. It happens to the best of us for a multitude of reasons. But what happens to federal contractors when they are running late in performing under a contract and there is “no reasonable likelihood” of timely performance?
Unfortunately for contractors in this position, as illustrated by a recent Civilian Board of Contract Appeals (CBCA) decision, the result may be a default termination.
In Affiliated Western, Inc. v. Department of Veterans Affairs, CBCA No. 4078 (2017), the VA awarded AWI a contract to renovate the surgical unit at a VA Medical Center in Iron Mountain, Michigan. Following mounting issues in contractual performance, the Contracting Officer issued a default termination.
The contractual issues giving rise to the default termination began early on in contract performance. Specifically, the Solicitation “warned potential bidders, that the schedule for the project ‘is very aggressive’ and involves ‘a very important department to the facility.’” AWI, as the awardee, was to provide renovations in five phases within a 400-day deadline. Contract performance started off strained due to architecture and engineering errors and omissions in the contract specifications for which the VA required AWI to perform several changes. All the while the VA and AWI continued debate over schedule submissions, which the VA found inadequate and refused to approve.
The relationship between the parties became further strained. Six months into contract performance, the VA issued its first cure notice. After, AWI failed to complete phase 1 on time, and the VA denied AWI’s requests for contract modification for compensation and time extensions.
Performance issues came to a head when AWI’s subcontractor, one of only two contractors in the remote area of contract performance that held the medical gas certification necessary to perform the project, reported AWI’s failure to make prompt payment despite AWI receiving payment from the VA. Afterwards, the subcontractor walked off the job. Then, less than a year into contract performance, the contracting officer issued a show cause notice citing AWI’s failure to complete phases 1 and 2 within the time required by the modified contract and ultimately issued a default termination in accordance with FAR 52.249-10, Default (Fixed-Price Construction).
AWI appealed the VA’s default termination to the CBCA and sought conversion to a termination for convenience. The CBCA sustained the VA’s default termination finding and denied AWI’s appeal.
In making its decision, the CBCA noted that default termination is “a drastic sanction which should be imposed (or sustained) only for good grounds and on solid evidence.” When a default is based on the contractor’s failure to prosecute the work, the contracting officer must have a reasonable belief that there was “no reasonable likelihood” that the contractor could perform the entire contract effort within the time remaining for contract performance. A termination for failure to make progress “usually occurs where the contractor has fallen so far behind schedule that timely completion becomes unlikely.”
In this case, since the VA established reasonable grounds to believe that AWI may not be able to perform the contract on a timely basis in issuing a cure notice as a precursor to possible default termination, and since AWI had failed to respond to the cure notice with adequate assurances, the VA had met its initial burden of proving that there were good grounds and solid evidence to support the termination.
The burden then shifted to AWI to prove that “there were excusable delays under the terms of the default provision of the contract that render[ed] the termination inappropriate, or that it was making sufficient progress on the contract such that timely contract completion was not endangered.” To recover under this theory of excusable delay, AWI also needed to show: “(1) the delay is of an ‘unreasonable length of time,’ (2) the delay was proximately caused by the Government’s actions, and (3) the delay resulted in some injury to the contractor.”
Applying a critical path schedule analysis to these requirements, the CBCA rejected AWI’s argument that extension of time for part of the project should automatically extend the total performance date. Thus, AWI could not rely on the VA contract modifications to excuse its delay where AWI could not prove it affected AWI’s critical path schedule. Accordingly, the CBCA found that “AWI failed to provide any evidence that it had fulfilled the contract requirement to provide the contracting officer with a schedule identifying the critical path and demonstrating how the schedule would be impacted by the VA’s alleged actions.” The CBCA concluded the VA to have properly terminated AWI for default, and denied AWI’s appeal.
Undoubtedly, federal contractors seek to perform contracts on time and within budget. However, the facts present in AWI demonstrate that when there is “no reasonable likelihood” that the contractor could perform the entire contract effort within the time remaining for contract performance, the end result may be a default termination.
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I am pleased to announce that Shane McCall has joined our team of government contracts attorney-authors here at SmallGovCon. Shane is an associate attorney with Koprince Law LLC, where his practice focuses on federal government contracts law.
Before joining our team, Shane was an attorney with Lentz Clark Deines PA, where he advised individuals and small businesses alike on complex legal matters. Check out Shane’s full biography to learn more about our newest author, and don’t miss his first SmallGovCon post on how “fair and reasonable pricing” is evaluated under solicitations requiring line-item prices.
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When I went out for pizza with my family the other night, the only number that mattered to me when I got the check was the bottom-line price. It didn’t matter to me what the price for each pizza or each lemonade was, as long as the total price was within my budget.
For an agency evaluating a proposal for reasonableness in a fixed-price setting, the same holds true: it is the bottom-line price that matters, not the individual items that add up to the bottom-line price. The GAO recently had the opportunity to review this concept in a bid protest decision.
The question of whether a contractor’s price is “fair and reasonable” (that is, not too high) is a cornerstone of federal contracting. This holds true for simplified acquisitions under FAR Part 13, for which FAR 13.106-3(a) requires the contracting officer to determine that the prospective awardee’s price is fair and reasonable.
But when an agency requests prospective offerors to provide pricing for multiple line items, does the price for each line item have to meet the “fair and reasonable” standard? The GAO’s recent decision in David Jones, CPA PC, B-414701 (August 25, 2017) provides some answers.
The David Jones case concerned an RFQ issued by the VA under FAR Part 13. The VA sought a contractor to provide investigations into Equal Employment Opportunity claims for the VA. Each of the bidders was required to submit prices for conducting EEO claims investigations for five different line items, corresponding to five different types of EEO cases for five different years, for a total of 25 line items.
David Jones, CPA PC submitted a bid. In its evaluation, the VA determined that the price for one of DJCPA’s 25 line items was not fair and reasonable. The VA excluded DJCPA from the competition.
DJCPA protested, arguing that the VA’s price reasonableness determination was improper. DJCPA contended that the VA failed to consider “the relationship between CLINs” and “the fact that DJCPA’s prices for all but one CLIN were lower than the agency’s benchmarks.”
The GAO agreed with DJCPA. It found that the VA was required to consider whether the high price on one of the 25 line items in the proposal “would result in an unreasonably high price overall.” Because the VA “engaged in no analysis whatsoever to assess whether there was a risk that the the protester’s h igh price on the single line item in question would result in the government paying an unreasonably high price” overall, the GAO sustained the protest.
Getting back to my pizza example, if I complained to my family that one item (say, the cheese pizza) on the receipt was too expensive, but that I was fine with the overall cost, they would think I was being silly. It is the overall price that I have to pay for, so that is the price that truly matters. The same holds true for a contract evaluated under price reasonableness. If the bottom-line price is reasonable, it may not matter whether one of the individual line items is priced too high.
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Football season is back, and the Chiefs certainly gave those in our neck of the woods something to cheer for last night. I wish I could say I felt sorry for our SmallGovCon Patriots fans, but those five Super Bowl Rings ought to take the sting out of an opening-week loss.
I’ll be watching my share of football on Sunday, but before the weekend starts, it’s time for the SmallGovCon Week In Review. In this edition, two Arkansas men are headed to trial on procurement fraud charges, GSA awarded a $700 billion contract, a company vying for a piece of the border wall contract was previously investigated for alleged mentor-protege improprieties, and much more.
Despite what many said was an unfriendly environment for federal contractors, fiscal 2016 was a pretty darn good year for vendors. [Federal News Radio]
A Pennsylvania husband and wife have been charged with making bribes in an attempt to expedite their DOT DBE application. [Department of Justice]
Two Arkansas men are headed to trial to face accusations of defrauding the federal government out of millions of dollars worth of contracts. [Arkansas Online]
One of the four companies picked to provide border wall prototypes has paid more than $3 million to settle a Justice Department criminal investigation into whether it defrauded the U.S. government through the mentor-protege program aimed at helping disadvantaged small business contractors. [Politico]
Two American banks have been announced as winners of a $700 billion federal charge card program contract through the GSA. [Government Executive]
The pick to lead the General Services Administration is popular but she is going to face some tough questions from Congress before she moves on to the challenges of running a large and complex agency. [FCW]
Guy Timberlake suggests that “NAICS Code Amnesia” could be a good thing for federal contractors. [LinkedIn]
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The VA has officially withdrawn its November 2015 proposal to overhaul its SDVOSB and VOSB regulations.
The VA’s action isn’t surprising, given that the 2017 National Defense Authorization Act requires the VA to work with the SBA to prepare a consolidated set of SDVOSB regulations, which will then apply to both VA and non-VA procurements. What’s interesting, though, is that the VA doesn’t say that it’s withdrawing the 2015 proposal because of the 2017 NDAA, but rather because of numerous objections to the proposal–including objections from the SBA.
By way of quick background, the VA’s 2015 proposal would have significantly overhauled its SDVOSB and VOSB regulations with the goal of finding “an appropriate balance between preventing fraud in the Veterans First Contracting Program and providing a process that would make it easier for more VOSBs to become verified.” The VA accepted comments on the proposal until January 2016.
As it turns out, those comments were largely negative. According to the notice of withdrawal published in the September 1, 2017 Federal Register, of the 203 comments received, “134 of these comments were adverse to the proposed rule and VA’s verification program in general.”
Several of the adverse comments came from the SBA. The SBA wrote, among other things, that the VA did “not provide any indication of the number of small businesses that may be impacted by the proposed change,” and that the proposed rule “failed to provide statutory or other legal authority following each cited substantive provision.”
Not all of the SBA’s objections concerned the rulemaking process. SBA also objected to the VA’s proposal to remove an SDVOSB or VOSB from the database if the veteran in question was formally accused of a crime involving business integrity. SBA (correctly, I think), said that this proposal “would seem to deny an applicant due process of law” because an accusation is not the same as a finding of guilt.
Other commentators also objected to various portions of the rule, including the VA’s proposal to make a firm wait 12 months, instead of six, to reapply after an application is denied.
After summarizing the reaction to its proposal, VA simply states: “ecause of the adverse comments received during the comment period, VA is withdrawing the proposed rule.”
What comes next for the SDVOSB and VOSB regulations? Well, the 2017 NDAA directed the SBA and VA to issue a joint proposal within 180 days of the final enactment of the statute. Former President Obama signed the bill into law on December 23, 2016, so the joint proposal is overdue–although I understand that the two agencies are working on it.
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In May 2017, SDVOSBs and VOSBs lodged another big win in their battle to enforce the statutory preferences for veteran-owned companies: the Court of Federal Claims held that the VA cannot buy products or services using the AbilityOne list without first applying the “rule of two” and determining whether qualified SDVOSBs or VOSBs are likely to bid.
But the AbilityOne vendor in question isn’t going down without a fight. It’s taking the case to the United States Court of Appeals for the Federal Circuit–and the Court of Federal Claims just issued a ruling staying its May decision pending the results of the appeal.
The COFC’s decision in PDS Consultants, Inc. v. United States, No. 16-1063C (2017) was a major victory for SDVOSBs and VOSBs. In that case, the COFC resolved an apparent conflict between the statutes underlying the AbilityOne program and the VA’s SDVOSB/VOSB preference program. The COFC held that “the preference for veterans is the VA’s first priority” and trumps the requirement to use AbilityOne as a mandatory source.
But Winston Salem Industries for the Blind Inc., known as IFB Solutions, has appealed the COFC’s decision to the Federal Circuit. And in a ruling issued on September 1, the COFC held that its original decision would be suspended pending the resolution of IFB’s appeal.
The COFC wrote that there are four factors it will consider when deciding whether to suspend a ruling pending an appeal: “(1) whether the movant has made a strong showing that it is likely to succeed on the merits; (2) whether the movant will be irreparably injured absent an injunction; (3) whether the issuance of the injunction will substantially injure the other interested parties; and (4) where the public interest lies.” These factors are “not necessarily entitled to equal weight,” and the court may be “flexible” in its application of the factors.
Here, all parties agreed that “whether the court properly interpreted the interplay between [the two statutes] is a question of first impression” that “has not been decided by any prior court.” Thus, “while the court rejected IFB’s argument, it is not possible to determine the likelihood of success on appeal.”
Turning to the second factor, irreparable harm, IFB argued that, if the COFC decision stood, it would lose “62% of its revenue from optical services or 15.5% of its total revenue” by January 1, 2018. The COFC wrote that “the loss of these contracts would have a severe impact on not only IFB’s optical business but also IFB’s mission as a nonprofit to provide employment, training, and services to persons who are blind.” Therefore, the COFC found that IFB had established irreparable harm.
Under the third factor, balancing of the harms, PDS argued that a stay would substantially injure PDS and other SDVOSBs because they would not be able to compete for the contracts in question during the pendency of the appeal. The COFC wasn’t persuaded, writing that the harm PDS identified “is hypothetical” because “t is based on the hope that it would be able to compete for the subject work . . ..” The COFC “weighed the concrete harm IFB has identified against the hypothetical harm PDS has identified” and found that IFB’s harm outweighed PDS’s.
Finally, with respect to the public interest factor, the COFC wrote that both statutes (AbilityOne and the VA’s veteran preference rules) “serve important public purposes.” But because IFB had identified concrete harm under the third factor, “the public interest tips in favor of allowing IFB to continue its work of employing blind and severely handicapped individuals under its contracts for VISNs 2 and 7 until the appeal is resolved.”
For these reasons, the COFC granted IFB’s motion for a stay pending appeal. Under the stay, the VA will be permitted to continue procuring the products in question from IFB until the appeal is resolved.
Interestingly, the VA didn’t take a position on whether the COFC’s ruling should be stayed. It’s not clear from the public documents why the VA stayed out of the fight, but perhaps the VA is having second thoughts about getting into another long-running legal (and P.R.) battle with veterans.
In any event, the COFC’s ruling is a big disappointment for SDVOSBs and VOSBs, many of whom hoped that the COFC’s May decision would put an end to the question about how the “rule of two” intersects with the AbilityOne program. Stay tuned.
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Debriefings are a fundamental part of many government competitions. So it’s important for government contractors to understand what debriefings are, what they are not, and why they’re important. Here are five things you should know about debriefings:
Debriefings are sometimes required (but sometimes not).
After spending a lot of time (and money) on a bid, it’s only natural that a contractor would want to know why its proposal was evaluated the way it was. But agencies aren’t always required to give a debriefing—they’re only required under competitive procurements (FAR Part 15) and for the award of task or delivery orders valued at more than $5.5 million (FAR 16.505(b)(6)). Debriefings aren’t required for any other type of acquisition.
But just because a debriefing is required doesn’t mean it’s automatic. You have to ask for one. When you receive the notice of award, it’s important to immediately ask (in writing) for a debriefing. If a debriefing isn’t requested within three days, you may be out of luck.
A debriefing can be provided pre-award or post-award.
There are two types of debriefings: pre-award and post-award. Pre-award debriefings are for offerors eliminated from competition before an award is made, while a post-award debriefing explains the agency’s award decision.
A debriefing will give you basic information about the evaluation.
The FAR tells contracting officers and offerors the information that should be included in a debriefing. Naturally, the information provided in a pre-award debriefing will be less than that under a post-award debriefing. But in general, the debriefing must provide a summary of the evaluation of your proposal (and, for post-award debriefings, basic information about the awardee).
You can (and should) ask questions.
A debriefing is, at its core, an opportunity to learn more about the evaluation process. An important goal is to allow offerors to strengthen their offers under future procurements. In addition to the basic information required to be provided, the contracting officer must give you the opportunity to ask relevant questions about the evaluation.
Before your debriefing, give serious thought as to the type of information that would be helpful to know under future solicitations. Re-familiarize yourself with the solicitation’s statement of work, instructions, and evaluation criteria; if you have any questions as to whether the selection criteria was followed, the debriefing is your time to ask.
A debriefing might affect your protest deadline.
The Government Accountability Office has strict deadlines to file bid protests. For pre-award protests, the protest must be filed before the proposal submission deadline. But be careful: following a competitive range exclusion, agencies will sometimes allow offerors to defer their pre-award debriefing until after the award is made. Doing so might inadvertently waive protest arguments. Instead, it’s usually best to request a pre-award debriefing if you were excluded from competition.
Post-award protests can be due as soon as ten days from when you first learned (or should have learned) of the basis of protest. But if a debriefing is required and timely requested, the post-award protest deadline is extended until ten days after you received the debriefing, regardless of when the protest ground was learned.
(Note that this is a discussion of timeliness deadlines; a different standard applies to obtain the automatic stay under the Competition in Contracting Act).
So what’s the gist? If you’re given the chance to request a debriefing, do so! And be an active participant in the process: the information learned may help you win the next solicitation (or even successfully challenge the award).
If you have any questions about debriefings—or if you’d like to know 5 things about a different topic of interest—please contact me at firstname.lastname@example.org.
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I am back from a great trip to Sooner Country (Norman, Oklahoma), where it was an honor to be part of the annual Indian Country Business Summit. I gave two talks at ICBS: one on recent developments in government contracting, and another on crafting effective and compliant teaming agreements and subcontracts.
It was great to see so many familiar faces, including my longtime friend Guy Timberlake, who gave a fantastic presentation on competitive market intelligence. A big thank you to the Tribal Government Institute and Oklahoma Bid Assistance Network for sponsoring this wonderful event, and Victoria Armstrong and everyone who worked with her to organize it. And, of course, thank you to all of the clients, old friends, and new faces I met and spoke with at the conference.
I’ve been a road warrior recently, but will be sticking around town for the next few weeks. Next up on my travel schedule: a half-day, in-depth session on teaming agreements, joint venturing, and mentor-protege programs, sponsored by the Nebraska PTAC. Hope to see you in Omaha on September 22!
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I have just returned from Indian Country Business Summit in Norman, Oklahoma, where I enjoyed catching up some old friends and making some new ones. This conference continues to grow every year–if you haven’t been yet, get it on your calendar for next year. You won’t regret it.
Of course, like all of us, my thoughts this week have been with the citizens of Houston and elsewhere in Texas as they battle the horrible effects of Harvey. While Harvey dominated the news this week, there was still plenty happening in the world of government contracts. This edition of SmallGovCon Week In Review brings articles on the end-of-the-year rush to nab contracting dollars, pending legislation to encourage agencies to “Buy American,” a look at the top 10 acquisition trends of FY 2017 and more.
Enjoy the Labor Day weekend and stay safe, Houston.
As the clock ticks down on FY 2017, an estimated $98 billion in federal agency contract obligations remains unspent. [Bloomberg Government]
A family-owned paper manufacturer might have had the best government contract of all time that has lasted over 240 years, but could it be coming to an end? [Energy & Capital]
A U.S. Senator has hopes of making it easier for domestic manufacturers to find out when federal agencies pick a foreign company to make a part that they say isn’t available domestically. [theday]
The GAO has upheld a bid protest finding that the Labor Department had given an unfair advantage to one of the companies bidding on their nearly $100 million contract. [Federal News Radio]
Federal Times takes a step back and assesses the contracting environmental trends that have emerged over the past year. [Federal Times]
DHS is adding more rigor to vendor supply chains for a governmentwide cybersecurity initiative. [Federal News Radio]
Bloomberg Government is reporting an 8% increase in total contract spending in FY2016 from FY2015. [Bloomberg Government]
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When my nephew started kindergarten, his vocabulary expanded to include a new phrase: “Rules are rules, and you have to follow the rules!” For my nephew (who, if I’m being honest, can be a bit mischievous), this newfound respect for following rules was adorable.
Government contractors should commit this lesson to heart: you have to follow the rules! As one government contractor recently learned, this includes GAO’s bid protest filing rules. Where a protester doesn’t follow the rules, its protest is likely to be dismissed.
By way of background, GAO’s regulations include strict deadlines relating to protest filings: after a disappointed offeror files its protest, an agency has 30 days to file its response to the protest (called an “agency report”). The protester then must file its reply (or “comments”) to the protest within 10 days from the date it receives the agency report. The importance of complying with this deadline is unambiguous: “The protest shall be dismissed unless the protester files comments within the 10-day period, except where GAO has granted an extension or established a shorter period” for doing so.
That takes us to the case in question, PennaGroup, LLC, B-414840.2, B-414841.2 (Aug. 25, 2017). PennaGroup submitted a bid on the two-phase border wall solicitation and was excluded for not acknowledging several amendments to the solicitation (as required by the agency).
PennaGroup protested at the GAO, and the agency filed its agency report on July 26. PennaGroup’s comments were due by August 7. PennaGroup failed, however, to submit its comments by the deadline.
On August 8, GAO asked PennaGroup to confirm whether it filed comments. It responded by saying that it didn’t think comments were necessary, as its “legal team has reviewed the [agency’s] response and finds no new or factual arguments not fully set forth in length in our Bid Protest.” Essentially, because PennaGroup didn’t think there was anything worth responding to, it just didn’t respond.
The agency then moved to dismiss PennaGroup’s protest. Agreeing with the agency, GAO wrote that its bid protest deadlines are designed to facilitate the expeditious resolution of protests:
To avoid delay in the resolution of protests, our Bid Protest Regulations provide that a protester’s failure to file comments within 10 calendar days “shall” result in dismissal of the protest except where GAO has granted an extension or established a shorter period. But for this provision, a protester could idly await receipt of the report for an indefinite time, to the detriment of the protest system and our ability to resolve the protest expeditiously.
GAO dismissed the protest.
GAO’s logic makes sense—given the short deadline to resolve protests and the potential disruption to the procurement system, parties should abide by the deadlines. PennaGroup’s excuse for not doing so, however, highlights a tension in this requirement (especially from the perspective of protesters wanting to keep legal costs low): should a protester be required to comment on a protest just for the sake of doing so, even if its comments won’t necessarily add any new facts or legal justification? GAO’s decision in PennaGroup confirms that, notwithstanding this tension, protesters must abide by all applicable filing deadlines–including by filing comments within the appropriate time frame.
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Generally speaking, government contractors know that part of the cost of doing business with the federal government is some loss of autonomy. The government writes the rules. It is the 500 lb. gorilla. What it says usually goes.
When contractors try to do things their own way–even in an relatively informal medium such as email–they can sometimes get into trouble, as evidenced by a recent GAO protest decision: Bluehorse Corp., B-414809 (Aug. 18, 2017).
The protest involved a procurement for diesel fuel as part of a highway construction project near Polacca, Arizona, by the Department of Interior, Bureau of Indian Affairs.
The solicitation said that the fuel would be delivered as needed by the construction project. During a question-and-answer session, the contracting officer said that BIA had two 5,000 gallon tanks for storage, and that the agency “typically” orders 4,000 gallons at a time.
Bluehorse Corp., a Reno, Nevada, Indian Small Business Economic Enterprise, provided a quotation that said it had the ability to supply 7,500 gallons per delivery.
The contracting officer selected Bluehorse for award. On June 13, it sent it a purchase order which specified that each delivery would be 4,000 gallons. The purchase order incorrectly stated that the capacity of the tanks was 4,000 gallons each.
In response, Bluehorse and the contracting officer spent the day emailing each other back and forth about the parameters of the deal. Bluehorse was insistent that it should be allowed to deliver 7,500 gallons at a time. The emails escalated in fervor from a polite request that the government clarify the capacity of its tanks to a threat that “f you don’t amend we will simply protest.” Importantly, in one of the emails, Bluehorse said “our offer was made on the ability to make a 7500 [gallon] drop . . . .”
The contracting officer responded that Bluehorse was attempting to provide its own terms by “determining the amount you want to deliver and not what the government is requesting[.]”
When Bluehorse did not respond, the contracting officer rescinded the offer. In the span of a day, the deal had completely fallen apart. Bluehorse protested, saying that the agency relied on unstated evaluation criteria and “inexplicably” limited deliveries to 4,000 gallons.
GAO sided with the 500 lb. gorilla. It said that although the offer initially conformed to the terms of the solicitation (because the initial reference to 7,500 gallon deliveries was a “statement of capability”) when Bluehorse told the contracting officer in its email that the offer was dependent on the ability to deliver 7,500 gallons at a time, Bluehorse had placed a condition on the acceptance of its quotation.
GAO said, “the record supports the agency’s conclusion the protester subsequently conditioned its quotation upon the ability to deliver a minimum of 7,500 gallons of fuel at a time.”
In other words, the contractor tried to change the rules. It did not matter whether the government had the capacity to hold the amount Bluehorse wanted to provide. All that mattered was that the government wanted one thing, and Bluehorse insisted on providing another.
GAO denied the protest.
The government may have been throwing its weight around. But it can. Whether it is diesel fuel, destroyers, or donuts, when the government says it wants X, the contractor typically has to provide X.
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