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Supreme Court Declines to Hear Case: 8(a) Program Survives Constitutional Challenge

In a big victory for proponents of the 8(a) program, the Supreme Court of the United States has denied the Petition for Certiorari filed by Rothe Development, Inc. Consequently, the decision of the Court of Appeals for the D.C. Circuit finding the statutes establishing 8(a) program to be constitutional will be allowed to stand. For those of you who are new to the Rothe Development case, it is a long-running constitutional challenge to the SBA’s 8(a) Business Development program. Rothe argued that the statutes implementing the 8(a) program establish a racial classification in violation of the equal protect rights afforded by the Due Process clause of the Fifth Amendment. Rothe contended the statute should be struck down as unconstitutional, which would mean the end of the 8(a) program–or at least the 8(a) program as we know it. Rothe Development has been making its way through the federal court system since 2015. In an earlier decision, the District Court for the District of Columbia upheld the 8(a) program despite subjecting the statutes to the Supreme Court’s most intense level of legal scrutiny. Rothe subsequently appealed the decision of the Court of Appeals for the D.C. Circuit. As we covered, the D.C. Circuit concluded that a less demanding level of scrutiny applied, which the 8(a) statutes comfortably passed. Accordingly, the 8(a) statutes were allowed to stand. After its loss at the D.C. Circuit, Rothe development filed a petition for Certiorari, which we also covered. A Petition for Certiorari is the formal process by which a party not entitled to an appeal as a matter of right may nevertheless request the Supreme Court decide its case. The Supreme Court, however, grants a very limited number of petitions each year. Rothe Development’s Petition for Certiorari was not granted by the Supreme Court. As a result, the decision reached by the D.C. Circuit finding the 8(a) program to be constitutional will stand. While Rothe Development ends with the 8(a) program’s survival, the decisions do leave the program open to further legal challenge. Most notably, the difference in legal scrutiny applied between the District Court and the Court of Appeals indicates that there may be more than one reasonable interpretation of the 8(a) programs statutes, which could result in further litigation down the road. Additionally, Rothe (apparently for strategic reasons), challenged only the underlying statutes–not the SBA’s regulations implementing them. A separate constitutional challenge to the regulations remains a possibility. For now, however, the 8(a) program stands unscathed–and 8(a) supporters can breathe a big sigh of relief.
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Koprince Law LLC

Koprince Law LLC

 

Successful NAICS Code Appeal Dramatically Alters Size Standard

NAICS code appeals, while little known, can be an extraordinarily powerful tool when it comes to affecting the competitive landscape of government acquisitions. Case in point: in a recent NAICS code appeal decision issued by the SBA Office of Hearings and Appeals, the appellant prevailed–and obtained an order requiring the contracting officer to change the solicitation’s size standard from 500 employees to $15 million. OHA’s decision in NAICS Appeal of Hendall Inc., SBA No. NAICS-5762 (2016) involved an HHS solicitation for support for its public engineering platform.  HHS issued the solicitation as a small business set-aside under NAICS code 511199 (All Other Publishers), with a corresponding 500 employee size standard. Here’s where many small businesses would throw in the towel: “500 employees?  I can’t compete with that.  I’m moving on to the next solicitation.” But Hendall Inc. understood that a prospective small business offeror has the right to file a NAICS code appeal directly with OHA.  So Hendall filed a NAICS code appeal, arguing that the HHS had assigned an incorrect NAICS code.  Hendall made the case that the appropriate NAICS code was 561422 (Telemarketing Bureaus and Other Contact Centers), with a corresponding $15 million size standard. The incumbent contractor–which presumably was small under the 500-employee size standard, but not under the $15 million size standard–intervened in the case.  The incumbent argued that HHS’s original NAICS code designation was correct. OHA evaluates NAICS code appeals primarily by comparing the solicitation’s statement of work to the NAICS code definitions in the Census Bureau’s NAICS Manual.  In this case, OHA noted that the NAICS Manual defines NAICS code 511199 as establishments “generally known as publishers,” who “may publish works in print or electronic form.”  NAICS code 561422, in contrast, comprises “establishments engaged in operating call centers that initiate or receive communications for others via telephone, facsimile, email, or other communication modes . . ..” After examining the statement of work, OHA wrote that “the Contractor will not be writing, editing, or in any other way producing publications for [HHS].”  Because “the Contractor will not be engaged in activities which constitute publishing . . . the CO’s designation of a publishing NAICS code for this procurement is clear error.” Having found the original NAICS code to be erroneous, OHA then turned to the question of what NAICS code was appropriate.  This second part of the analysis is as important as the first; OHA is under no obligation to accept the appellant’s proffered NAICS code even when OHA agrees that the original NAICS code was incorrect.  In many cases, OHA has assigned a third code–one that neither the appellant nor the agency wanted. In this case, however, OHA wrote that “the operating of the Contact Center appears to be the major part of this procurement.”  The Contact Center, in turn, “responds to inquiries by telephone, email, fax and postal mail.”  Thus, while Hendall’s suggested NAICS code might not be the “perfect fit,” OHA concluded that NAICS code 561422 “best describes the principal purpose of the instant acquisition . . ..” OHA granted Hendall’s NAICS code appeal.  OHA issued an order requiring HHS to “amend the solicitation to change the NAICS code designation from 511199 to 561422.”  And just like that, the solicitation’s size standard changed from 500 employees to $15 million. The Hendall NAICS code appeal, on its surface, is a fact-specific case about a particular HHS solicitation.  But beyond that, the Hendall case is an example of the potential power of a NAICS code appeal.  By successfully appealing the solicitation’s NAICS code, Hendall dramatically affected the competitive pool for the solicitation–including, potentially, excluding the incumbent as an eligible offeror.
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Koprince Law LLC

Koprince Law LLC

 

Strict GAO Timeliness Rules Apply to Supplemental Protests

GAO interprets its bid protest timeliness rules very strictly, as readers of this blog will know. These timeliness rules typically pertain to the initial protest, but are equally important when a protester files a supplemental protest. Often, supplemental protests are filed after the protester receives the agency’s response and comes to learn new information that wasn’t previously available. If a supplemental protest raises allegations independent of those set forth in the initial protest, the supplemental protest must independently satisfy GAO’s strict timeliness rules. A recent GAO decision shows how easy it can be to slip up on these deadlines when considering a supplemental protest. In Medical Staffing Solutions USA, B-415571 (Dec. 13, 2017), the protester (MSS) objected to the award of a contract to WJM Professional Services, LLC for emergency physician services at an Army fort.  MSS timely filed its initial protest on October 16, 2017. The four initial protest grounds were: Failure to evaluate WJM’s lack of past performance. That if WJM had been assigned a neutral past performance rating, it would not have been eligible for award. Improper evaluation of WJM’s technical proposal. An “unreasonable best-value tradeoff evaluation because MSS’s better past performance rating and lower price should have outweighed WJM’s superior technical rating and lack of past performance.” In a GAO bid protest, when an agency intends to respond to a protest on its merits, the agency is required to submit an agency report, which contains the agency’s legal opposition and all relevant documentation. On November 3, the Army submitted a partial agency report containing all relevant documents except for the legal memorandum and contracting officer’s statement of facts. The partial agency report included a Price Negotiation Memorandum, a technical evaluation document, and the relevant portions of WJM’s proposal. On November 15, the due date, the Army submitted the remainder of its agency report. After an agency report is filed, the ball is back in the protester’s court. If the protester wants to continue the process and obtain a GAO decision, the protester must file comments on the agency report within 10 days of receipt. On November 27, MSS filed its comments on the agency report. The comments were filed within the 10-day deadline after receipt of the complete agency report, that is, 10 days after November 15. (If you’re scratching your head wondering how November 27 can be 10 days after November 15, don’t worry, you’re not going crazy. Under GAO’s rules, if the 10th day falls on a weekend or federal holiday, the protester has until the next working day to file its comments. November 25, 2017, was a Saturday). In its comments, MSS seemed to make new allegations based on the information MSS had learned in the November 3 partial agency report. For example, MSS contended that the agency had not properly evaluated the realism of WJM’s price. GAO wrote that any independent protest grounds raised by MSS in its comments on the agency report were untimely. Under the GAO’s timeliness rules, a protest ordinarily must be filed within 10 days of the date the protester knew or should have known of the basis of protest. There’s no exception when the protester learns of the basis of protest as part of a partial agency report. Here, the submission of the partial agency report on November 3 triggered the knew-or-should-have-known date, and the supplemental protest grounds were raised on November 27, well after the 10-day period had ended on November 13. While the calendar math is pretty easy, deciding what constitutes an “independent” protest ground seems much more difficult. GAO does not provide a definition for what makes for an independent protest ground, but it did a comparison of the initial and supplemental protest grounds that sheds a little light on the definition. In MSS’s case, GAO wrote: GAO dismissed the protest. The price realism distinction seems clear to me. The protestor did not attack the price-realism evaluation in the initial protest but raised it in the supplemental protest. In contrast, the distinction between (a) WJM lacking “relevant past performance” (raised in the initial protest) versus (b) the agency “should have rated WJM’s past performance less favorably” (supplemental protest) is a pretty fine one. It’s hard to think MSS argued in its initial protest that the awardee had no past performance without also arguing that the evaluation of the past performance was flawed. But that was what GAO held. Agencies often produce the entire agency report at the same time, meaning that the comments deadline and supplemental protest deadline are the same. But not always. My take home lesson is: get a supplemental protest on file within 10 days of the first documents received from the agency, rather than having to rely on a comparison of the allegations raised in the initial and supplemental protest to determine if the supplemental grounds are “independent.” And if there’s any doubt as to whether a particular allegation is new, err on the side of caution and consider it a supplemental protest. That way, you potentially avoid losing a protest on such fine distinctions.
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SSA vs. SSEB: Protest Sustained Where Ratings Changes Weren’t Reasonable

In a best value acquisition, the final decision is typically made by a Source Selection Authority. But what happens when the SSA disagrees with the ratings assigned by the evaluators, such as a Source Selection Evaluation Board? The SSA has a good deal of discretion, but that discretion isn’t unlimited. In a recent decision, GAO sustained a protest where the SSA’s disagreements with the SSEB didn’t appear to be reasonable.  Immersion Consulting, LLC, B-415155 et al. (Dec. 4, 2017) involved the procurement of program management support services by the Department of Defense’s Defense Human Resources Activity. Proposals were to be evaluated on three factors: technical, past performance, and price. Technical approach was the most important factor, followed by past performance, then price. Award was to be made on a best value basis. Immersion and NetImpact Strategies, Inc. were the only offerors to timely submit proposals in response to the Solicitation. In accordance with the Solicitation’s evaluation plan, each company’s proposal was first evaluated by an SSEB. The SSEB awarded Immersion’s proposal three strengths, resulting in an overall technical score of Outstanding. NetImpact’s proposal received two strengths and one weakness, resulting in an overall rating of Acceptable under the technical factor. Immersion and NetImpact’s proposals were evaluated as equal under the past performance factor, and NetImpact offered a lower price. The SSEB’s report was then passed off to the SSA, who was to make the final award decision. After reviewing the SSEB’s findings, the SSA determined strengths and weaknesses should be allocated differently. With respect to Immersion’s Proposal, the SSA agreed with only one of the SSEB’s three assessed strengths. He removed the other two. Similarly, with regard to NetImpact’s proposal, the SSA did not agree with one of the strengths or the weakness identified by the SSEB. These scores were also eliminated. After the SSA’s reevalation, both proposals were scored as Acceptable under the technical factor. Since both Immersion and NetImpact’s proposals were determined to be equal with regard to the technical and past performance factors, price became the determining factor. Because NetImpact proposed a lower price, it was named the awardee. Following the award announcement, Immersion filed a protest with GAO, arguing that the SSA’s independent analysis was flawed. The DoD countered that the SSA had properly documented his revaluation and that the award was proper. In resolving the protest, GAO noted that “[a]lthough source selection officials may reasonably disagree with the ratings and recommendations of lower-level evaluators, they are nonetheless bound by the fundamental requirement that their independent judgments must be reasonable, consistent with the provisions of the solicitation, and adequately documented.” According to GAO, the SSA did not meet that burden. GAO first concluded that the record didn’t support the SSA’s removal of the weakness from NetImpact’s evaluation. The SSA removed the weakness because he “was not convinced” the errors in the NetImpact’s proposal would negatively impact its performance. GAO was unable to determine what the SSA relied on in making this determination. Indeed, GAO found “[t]here is nothing in the contemporaneous record or the agency’s filings documenting what, if anything, the SSA reviewed to support the SSA’s conclusion[.]” Further, there was no evidence that “the SSA discussed the SSEB’s concern with the SSEB.” Without any contemporaneous justification, it was unreasonable for the SSA to remove the weakness. GAO similarly found the SSA’s removal of one of Immersion’s strengths to be unreasonable. According to the SSA, it felt the SSEB’s comments awarding the strength to Immersion were “too general and did not specify how the approach exceeded the [solicitation] requirements.” In GAO’s opinion, however, “the SSEB’s comments were specific and identified the impact of the approach on the quotation, as well as how the approach benefited the government.” As such, GAO found the removal of the strength from Immersion’s proposal to be unreasonable. Finally, since the SSA’s changes to each company’s technical ratings had technically leveled proposals leaving only price to be the determining factor, GAO concluded that the underlying best value source selection decision was flawed. Accordingly, GAO recommended the agency reevaluate proposals and make a new award decision. As GAO’s decision in Immersion Consulting demonstrates, SSA officials may not unilaterally take it upon themselves to rewrite evaluations without appropriate justification. While GAO’s decision does not alter the fact that SSAs enjoy considerable discretion, it does demonstrate that the SSA’s discretion isn’t unlimited.
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Sorry: No GAO Protests of U.S. Mint Procurements

As a branch of the Treasury Department, the United States Mint would usually be subject to federal procurement laws, like bid protests. As one contractor recently discovered, however, certain activities at the Mint have been exempted from many federal procurement laws, including GAO protest review. Simply put, the GAO can’t decide a bid protest of Mint procurements. A-Z Cleaning Solutions, B-415228 (Nov. 6, 2017), involved a procurement for janitorial services at the Mint facility in San Francisco, California. A-Z Cleaning was named an unsuccessful offeror. Following notification, A-Z Cleaning filed a protest before GAO, challenging the Mint’s best-value trade-off decision. The Mint moved to dismiss the protest, arguing that GAO lacked jurisdiction to hear the case. The Mint’s argument was based on the interaction between the Competition in Contracting Act (the “CICA”) and specific statutes addressing Mint activities. Under the CICA, GAO has the authority to decide “a protest submitted . . . by an interested party.” See 31 U.S.C. § 3553(a). Protests are a “written objection by an interested party to . . . [a] solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services.” 31 U.S.C. § 3551(1)(A). Federal agency is defined as “an executive agency[.]” 40 U.S.C. § 102(5). What this collection of statutes means is that GAO generally has jurisdiction to decide protests of procurements conducted by executive branch agencies. The Mint, as a branch of the Treasury Department, is an executive agency. Accordingly, its procurement decisions should be subject to protest before GAO. A separate statute, however, complicates matters. In 1996, Congress expressly exempted Mint procurements for operations and programs from the CICA. Pursuant to 31 U.S.C. § 5136, “provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out Mint programs and operations.” The statute also defined Mint operations and programs as follows: (1) [T]he activities concerning, and assets utilized in, the production, administration, distribution, marketing, purchase, sale, and management of coinage, numismatic items, the protection and safeguarding of Mint assets and those non-Mint assets in the custody of the Mint, and the [Mint Public Enterprise Fund]; and (2) includes capital, personnel salaries and compensation, functions relating to operations, marketing, distribution, promotion, advertising, official reception and representation, the acquisition or replacement of equipment, the renovation or modernization of facilities, and the construction or acquisition of new buildings[.] In A-Z Cleaning, the Mint argued that the janitorial services it ordered were “functions relating to operations” of the Mint; therefore, the procurement of such services was excepted from procurement laws—including the CICA—and thus outside of GAO’s jurisdiction. GAO agreed with the Mint’s argument. After walking through the statutes laid out above, GAO said: Because the establishing legislation provides that federal procurement laws and regulations do not apply to the procurement of goods or services necessary for carrying out the Mint’s operations and programs, and those operations and programs are defined broadly enough to encompass substantially all of the Mint’s activities, we conclude that the Mint is not subject to the terms of CICA. Furthermore, because the bid protest jurisdiction of our Office derives from CICA, we must conclude that the Mint is not subject to that jurisdiction. GAO further explained that its conclusion regarding the Mint was consistent with prior decisions regarding the Presidio Trust and United States Postal Service, which are subject to similar exemptions. Accordingly, GAO dismissed the protest. What does GAO’s decision in A-Z Cleaning mean for Mint bidders? Clearly, GAO believes that it lacks authority to decide pretty much any bid protest of a Mint procurement. (As noted above, while the statutes may not be 100% clear on the extent of the prohibition, the GAO believes that the jurisdictional ban applies to “substantially all” of the Mint’s activities).  The Court of Federal Claims may still be an option; however, not all contractors are interested in full-blown courtroom litigation against the government. Simply put, for contractors bidding on Mint jobs, the potential protest options are considerably narrower than normal.
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Koprince Law LLC

Koprince Law LLC

 

SmallGovCon’s 2017 NDAA Government Contracting Roundup

President Obama signed the 2017 National Defense Authorization Act into law on December 23, 2016.  As is often the case, the NDAA included many changes affecting government contractors. Here at SmallGovCon, my colleagues and I have been following the 2017 NDAA closely.  Here’s a roundup of all 16 posts we’ve written about the government contracting provisions of the 2017 NDAA. SDVOSB Programs: 2017 NDAA Sharply Curtails VA’s Authority. (Dec. 5, 2016). 2017 NDAA Restricts DoD’s Use of LPTA Procedures. (Dec. 7, 2016). 2017 NDAA Extends SBIR & STTR Programs For Five Years. (Dec. 8, 2016). 2017 NDAA Authorizes $250 Million For New Small Business Prototyping Program. (Dec. 8, 2016). 2017 NDAA Increases DoD’s Micro-Purchase Threshold To $5,000. (Dec. 9, 2016). SDVOSB Programs: 2017 NDAA Modifies Ownership & Control Criteria. (Dec. 12, 2016). 2017 NDAA Strengthens Subcontracting Plan Enforcement. (Dec. 13, 2016). 2017 NDAA Requires GAO Report On Minority And WOSB Contract Awards. (Dec. 13, 2016). 2017 NDAA Requires Report On Bid Protest Impact At DoD. (Dec. 14, 2016). 2017 NDAA Restores GAO’s Task Order Jurisdiction – But Ups DoD Threshold. (Dec. 14, 2016). 2017 NDAA Requires “Brand Name Or Equivalent” Justifications. (Dec. 19, 2016). 2017 NDAA Establishes Preference For DoD Fixed-Price Contracts. (Dec. 21, 2016). 2017 NDAA Creates Pilot Program For Subcontractors To Receive Past Performance Ratings. (Dec. 21, 2016). 2017 NDAA Reiterates GAO Bid Protest Reporting Requirements. (Dec. 30, 2016). 2017 NDAA Requires Report on Indefinite Delivery Contracts. (Jan. 4, 2017). That’s a wrap of our coverage for now, but we’ll keep you posted as various provisions of the 2017 NDAA begin to be implemented.  And of course, it won’t be long until we start covering the upcoming 2018 NDAA. Happy New Year!
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Koprince Law LLC

Koprince Law LLC

 

SmallGovCon’s 1000th Post Is Coming Soon – Help Us Celebrate

When I started writing SmallGovCon back in 2012, I worried that there might not be enough happening in government contracts law to support a robust blog.  Needless to say, I’m not worried anymore. We’re rapidly approaching SmallGovCon‘s 1000th post (this one is No. 990).  To celebrate, we’re offering one lucky reader the chance to win a free webinar on the government contracting legal topic of your choice.  For details (and to enter) just click here. What do you like about SmallGovCon?  We want to hear from you!  Contact us and let us know, and check back here regularly in the coming weeks for much more on the SmallGovCon 1000th post celebration.
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Koprince Law LLC

Koprince Law LLC

 

SmallGovCon: Proud To Be Part Of WIFCON.com

I am pleased to announce that SmallGovCon is now being republished on what I think is the nation’s best and most venerable government contracting legal website: WIFCON.com.  You can find us on WIFCON.com’s blogs page from now on (and, of course, right here at SmallGovCon.com). I was probably less than a month into my first government contracts job (summer associate at a law firm based in Tysons Corner) when a more senior attorney recommended that I check out WIFCON.com. I’ve been following it religiously ever since. Packed with information about statutes, regulations, bid protests, audits, enforcement actions, and more, WIFCON.com is a government contracting lawyer’s dream come true.  And best of all, it’s updated almost daily, so the information is always up-to-date. It’s an honor to be able to contribute to such an incredible resource.  If you’re not familiar with WIFCON.com, I encourage you to check it out.  And of course, keep checking back here at SmallGovCon for more legal news and notes for small government contractors.
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Koprince Law LLC

Koprince Law LLC

 

SmallGovCon Welcomes Stephen Skepnek

I am very pleased to announce that Stephen Skepnek has joined our team of attorney-authors here at SmallGovCon.  Stephen is an associate attorney with Koprince Law LLC, where his practice focuses on federal government contracts law. Before joining our team, Stephen practiced civil litigation and administrative law with the Kansas Corporation Commission.  Check out Stephen’s full biography to learn more about our newest author, and don’t miss his first SmallGovCon post on the GAO’s tricky timeliness rules.
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Koprince Law LLC

Koprince Law LLC

 

SmallGovCon Welcomes Shane McCall

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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Koprince Law LLC

Koprince Law LLC

 

SmallGovCon Welcomes Nicole Pottroff

I am pleased to announce that Nicole Pottroff  has joined our team of government contracts attorney-authors here at SmallGovCon.  Nicole is an associate attorney with Koprince Law LLC, where her practice focuses on federal government contracts law. Before joining our team, Nicole practiced law in the Kansas City area, where she worked on a variety of complex civil litigation matters.  Check out Nicole’s full biography to learn more about our newest author, and don’t miss her first SmallGovCon post on when the government must include a company in a limited simplified acquisition procurement.
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SmallGovCon Welcomes Jennifer Tucker

I am very pleased to announce that Jennifer Tucker has joined our team of authors here at SmallGovCon.  Jennifer is an associate attorney at Koprince Law LLC, where her practice focuses on federal government contracts law.  Before joining Koprince Law LLC, Jennifer practiced contracts law with the Kansas Department of Transportation and the University of Kansas.  Jennifer also had the fortune (or is that misfortune?) of being classmates with a certain other government contracts attorney in the 2015 Leadership Lawrence program. You can check out Jennifer’s biography on the Koprince Law LLC website, and her first SmallGovCon post (about the GAO’s very strict rules for electronic proposals) right here.  Be sure to check back regularly for more legal news and notes from Jennifer and our other great SmallGovCon authors.
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Koprince Law LLC

Koprince Law LLC

 

SmallGovCon Welcomes Ian Patterson

If you’ve been reading SmallGovCon regularly (and I certainly hope that you have!), the name Ian Patterson may ring a bell.  Ian has been a law clerk at Koprince Law LLC since May 2015, and has been credited as the primary author of many SmallGovCon blog posts during that time, including an important recent post on the Rothe Development 8(a) case. I am pleased to announce that Ian has been admitted to the Bar and is now an Associate Attorney at Koprince Law.  Please feel free to browse Ian’s biography for more information about the latest addition to our growing team, and check back here soon for more of Ian’s writings on government contracts law.
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Koprince Law LLC

Koprince Law LLC

 

SmallGovCon Welcomes Candace Shields

I am very pleased to announce that Candace Shields is joining our team of government contracts bloggers here at SmallGovCon. Candace comes to us from the Social Security Administration, where she was an Attorney Advisor for several years.  As an associate attorney at Koprince Law LLC, Candace’s practice focuses on federal government contracts law. Please check out Candace’s online biography and great first blog post, and be sure to visit SmallGovCon regularly for the latest legal news and notes for small government contractors.
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Koprince Law LLC

Koprince Law LLC

 

SmallGovCon Weeks In Review: November 21-December 2, 2016

I hope that all of our readers had a happy Thanksgiving.  The holiday season is in full swing here at Koprince Law LLC, where we have a festive tree in our lobby and holiday cookies in the kitchen. But between holiday shopping and snacking, there is still plenty happening in the world of federal government contracts.  Today, we have a special SmallGovCon “Weeks” in Review, beginning with stories from November 21.  The latest news and commentary includes two different cases in which business owners were convicted procurement fraud, a potential end to the Fair Pay and Safe Workplaces regulations, and much more. DBE fraud: an Illinois contractor pleaded guilty to conspiring to commit wire fraud after allegedly acting as a disadvantaged business for another company, resulting in fines over $200,000. [Construction Dive] President Obama’s “Fair Pay and Safe Workplaces” rule for federal contractors appears to be headed for the chopping block once President-elect Trump takes office. [Government Executive] A proposed rule by the FAR Council would amend the FAR to implement a section of the NDAA that will clarify that agency personnel are permitted and encouraged to engage in responsible constructive exchanges with industry. [Federal Register] The GSA’s SAM database is under fire for the accuracy of its data and Members of Congress are questioning how GSA ensures tax delinquent vendors do not win federal contracts or grants. [Committee on Oversight and Government Reform] The owner of a sham “veteran-owned” company has been ordered to forfeit $6.7 million for his part in recruiting veterans as figurehead owners of  a construction company in order to receive specialized government contracts. [The United States Attorney’s Office District of Massachusetts] Court documents show that a former employee with the U.S. Department of State was guilty of steering sole-sourcing contracts worth $2 million to a company in which his son was a 50 percent interest. [KTVH] The election of Donald Trump had a surprise impact on the November House-Senate conference meetings on the fiscal 2017 National Defense Authorization Act. [Government Executive] Bloomberg Government data shows that federal information technology spending on government-wide acquisition contracts, or GWACs, topped $10 billion for the first time in fiscal 2016. [Bloomberg Government]
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Koprince Law LLC

Koprince Law LLC

 

SmallGovCon Weeks In Review: November 20-December 1, 2017

As we step into December, I am looking forward the 2017 National Veterans Small Business Engagement conference next week. The NVSBE is one of my favorite annual government contracting events.  If you’ll be in St. Louis next week, please stop by the Koprince Law LLC booth to say hello. SmallGovCon Week in Review took a break last week for the Thanksgiving holiday, so today’s edition covers government contracting news and notes from the past two weeks.  In this edition, several companies have protested the GSA’s recent Alliant 2 awards, two whistleblowers receive a big payout after uncovering procurement fraud, GAO bid protests declined in 2017 (while the effectiveness rate of protests went up), and much more. Illegal kickbacks totaling $300,000 from an Afghan subcontractor have resulted in a 21-month prison sentence. [Stars and Stripes] Two whistleblowers get a big payout after they uncovered substantial fraud being committed by a Japanese company against the U.S. military. [Pacific Daily News] According to one commentator, a low-ball bid on a military support contract has led to wage cuts and mass resignations that are devastating National Guard employees. [The Salt Lake Tribune] The number of GAO bid protests declined in Fiscal Year 2017, while the effectiveness rate of protests rose. [Nextgov] (and see my take here). An Army Reserve officer has been sentenced to 4 years in prison and ordered to forfeit $4.4 million for fraudulently supplying hundreds of thousands of Chinese produced baseball caps and backpacks and passing them off as American-made. [Stars and Stripes] Several companies are protesting the Alliant 2 contract awards made earlier this month by the GSA. [Nextgov] Four men have been charged for defrauding the federal government of millions of dollars for falsely presenting themselves as a minority-owned small business over a five-year period. [AlbuquerqueJornal]
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Koprince Law LLC

Koprince Law LLC

 

SmallGovCon Weeks In Review: December 26, 2017 – January 5, 2018

Happy New Year!  For those currently being impacted by the “bomb cyclone” I hope you are safe and warm and that there is sunshine in your near future.  While we haven’t had much snow here in Kansas, we have seen some below-zero temperatures.  I’m staying warm and cozy in the office with a “venti” cup of hot coffee, my Koprince Law LLC fleece and the new RAND Corporation report on bid protests (more on that report later today!) It’s Friday, which means that it’s time for the SmallGovCon Week In Review.  This week, we take a look at why a government shutdown could be bad for WOSBs, tips for contractors attempting to comply with the DoD’s new cybersecurity mandates, the RAND Corporation releases that major bid protest study, and much more. A look at the financial strain a government shutdown could cause WOSBs. [Bustle] The battle over the $50 billion Alliant 2 IT contract is moving to the judicial arena, as those who missed out evidently are trying another avenue to gain a place on this key vehicle. [Washington Technology] The Department of Defense issued a final rule amending the DFARS to incorporate revised thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements. [Federal Register] ‘That’s the Worst!’: Acquisition regulations we love to hate. [Federal Times] Here are “five golden rules” for contractors to meet the DoD’s new cybersecurity requirements. [Federal News Radio] A major new independent report appears to validate what some of us (ahem) have been saying for awhile: protests are not an excessive burden on the Defense procurement system. [Federal News Radio] Speaking of new reports, here’s one that may fly under the radar: the GAO has released an important study about how contracting officers assign NAICS codes–and how often those assignments are challenged. [U.S. Government Accountability Office]
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SmallGovCon Weeks In Review: December 26, 2016 – January 6, 2017

Happy New Year and welcome back to the SmallGovCon Week In Review. I hope that everyone had an enjoyable holiday season and is jumping full force into 2017. We bring you a double edition today, as we took a little time off from delivering you our weekly publication last week. It may have been the holiday season, but it was still a busy two weeks of developments in the world of federal government contracting. In this week’s edition, the President has signed the 2017 National Defense Authorization Act (click here for SmallGovCon‘s complete 2017 NDAA coverage), alleged procurement fraud results in a whopping $4.5 million settlement, President-elect Trump’s administration may prioritize Buy American policies, Guy Timberlake takes a look at how FY 2016 contracting dollars were obligated, and much more. Guy Timberlake takes a look at how fiscal year 2016 obligated dollars got to small business concerns based on solicitation type and the award instruments used to help small businesses minimize lost dollars and lost time. [GovConChannel] Frustrations with security clearance waiting times are growing, but the latest report from Performance.gov shows the administration spent the year putting several key building blocks in place to implement future security clearance reforms and insider threat programs. [Federal News Radio] A Florida-based company will shell out $4.5 million to settle allegations that it submitted inflated invoices to the government for work performed at the Joint Base Andrews. [United States Department of Justice] President-elect Trump said that his administration will follow two simple rules: Buy American and Hire American–will the Buy American Act be more strictly applied? [MarketWatch] President Obama signed the 2017 NDAA–loaded with government contracting provisions—into law. [Military Times] Small business contractors breathed a sigh of relief after the final version of the 2017 NDAA omitted a proposed provision that would have gutted the DoD’s small business goaling program. [Forbes] Several dozen companies earned $1 billion or more from federal contracts in Fiscal Year 2015, and 34 of those are publicly traded companies. CNBC has compiled a list of the top earners. [CNBC] How well do you understand how agencies classify the goods and services you want them to buy from you? Guy Timberlake encourages contractors to look beyond NAICS codes. [GovConChannel] U.S. Cyber Command will soon be hiring an acquisition expert to handle the $75 million Congress afforded the command in last year’s defense authorization act. [Federal News Radio] A recent report to Congress ties lower contract costs, reduced costs overruns and arrested cost growth on major programs with the DoD’s “should cost” initiative. [Federal News Radio] The 2017 NDAA reorganizes the Department of Defense acquisition but splitting up the AT&L office isn’t the only organizational change spelled out in the 2017 NDAA. [Washington Technology] Too big to debar? The Department of Labor is trying to bar Google from doing business with the federal government unless Google turns over confidential information about thousands of employees. [CBS News] A December 29th audit substantiated allegations that Bonneville Power’s administration of 1,921 active service contracts “created prohibited personal services contracts by establishing improper employer/employee relationships with supplemental labor workers.” [Government Executive]
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SmallGovCon Weeks in Review: April 9 – 20, 2018

I was enjoying a day off last Friday, so we have a lot of catching up to do on government contracting news and notes.  It’s time for a special two-week super-sized edition of the SmallGovCon Week in Review. In this edition, the GAO looks at NASA’s investigations of contractor whistleblowing complaints, the SBA announces nine new Women’s Business Centers, the Coast Guard sinks $60 million into an electronic health record system procurement with nothing to show for it,  70,000 contractors must provide notarized letters in the wake of a “SAM scam” and much more. NASA contractor employees are legally protected for whistleblowing, but is the agency timely investigating reprisal complaints? [www.gao.gov] The SBA announced the addition of nine new Women’s Business Centers to help women entrepreneurs. [parsippanyfocus.com]  (Great news, but when is that elusive WOSB certification program coming?  Anyone?  Anyone?  Bueller?) The Coast Guard will adopt the same commercial Electronic Health Records system as DoD. [fcw.com] HUD invites comments on a proposed rule to amend HUD Acquisition Regulation. [federalregister.gov] The owner of transportation company that contracted with State Department sentenced to 14 months for stealing federal funds. [justice.gov] After a “SAM scam” resulted in some contractors’ bank information being changed, 70,000 contractors must get notarized letters to continue working for the government. [federalnewsradio.com] The DOJ has announced nine companies as the apparent winners of the SDVOSB track of the major ITSS-5 contract. [washingtontechnology.com] The owner of a private school has pleaded guilty in a VA bribery and kickback scheme. [justice.gov] In a final rule, VA amends six VAAR clauses and removes one duplicate clause. [federalregister.gov] SDVOSB and SDB fraud: three defendants have pleaded guilty to a long-term scheme. [justice.gov] NAICS is just part of it: Guy Timberlake breaks down how the government uses PSC codes–and why it matters to contractors. [govconchannel.com] One commentator offers tops on how contractors can take proactive steps now to benefit from $1.2 trillion fiscal 2018 funding package. [washingtontechnology.com] The Chairman of the House Armed Services Committee is pushing to implement many of the Section 809 Panel’s acquisition reform recommendations. [Federal News Radio]
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SmallGovCon Week In Review: September 6-9, 2016

Happy Friday! Here at Koprince Law, we’ve been busy posing for pictures for our new firm website (coming soon) and enjoying our annual trip to the Taste of Lawrence event last night, where we were able to enjoy food from local restaurants, hear live music and interact with the community. Even with all that fun we have managed to bring you this edition (albeit a little later in the day) of SmallGovCon Week In Review. In this week’s edition, we bring you the latest on the ENCORE III bid protest, a look at the how a continuing resolution will affect contractors, underfunding of efforts to investigate whistleblower claims, and more. A $5 billion, ten-year agreement with a subsidiary of Lockheed Martin was rescinded due to concerns over the sale of the subsidiary to Leidos. [Defense News] The Government Accountability Office detailed its rationale in the ENCORE III bid protest, saying that the reason for the “sustain” decision wasn’t that the Defense Information Systems Agency wanted to award spots on the ten-year contract on a lowest-price technically acceptable basis. [Federal News Radio] Federal contracting companies have come to terms with the fact that the new fiscal year will begin next month with a congressional stopgap budget measure. [Washington Business Journal] A memorandum entitled Commercial Items and the Determination of Reasonableness of Price for Commercial items has been rescinded and new guidelines have been issued in its place. [Office of the Under Secretary of Defense] The Pentagon’s acting inspector general told Congress this week a chronic underfunding of his office played a major role in the extensive delays surrounding its investigations into whistleblower reprisal claims. [Federal News Radio] The GSA has issued a proposed regulation to incorporate Other Direct Costs into the Multiple Award Schedule program. [GSA] Intelligence agencies are increasingly turning to contractors for talented information specialists and scientists as the in-house talent pool wanes. [Federal News Radio]
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SmallGovCon Week In Review: September 5-8, 2017

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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SmallGovCon Week In Review: September 26-30, 2016

Fall is officially here, and that means that the leaves are turning color, it’s apple-picking season, and football is a big part of my typical weekend (both on TV, and chasing around my three-year-old son as he scores touchdown after touchdown in our living room). But for those of us involved in federal government contracts, it’s hard to think of the fall without also thinking of the end of the government’s fiscal year, and all that it entails.  In this, the final SmallGovCon Week in Review of the 2016 Fiscal Year, we have stories on a large software vendor pulling out of the GSA schedule, Guy Timberlake’s unvarnished–and very important–commentary on a terrible change being proposed to small business goaling, and more. One of the largest software vendors in the world is telling the General Services Administration, thanks, but we can live without you. [Federal News Radio] An Army procurement initiative is pursuing a strategy of “ruthless prioritization.” [Federal News Radio] The General Services Administration gave the go-ahead to 109 vendors who won spots on the Human Capital and Training Solutions unrestricted and small business contracts to begin promoting and selling against the governmentwide acquisition contract. [Federal News Radio] The SBA seeks comments on a proposed amendment to its regulations governing the small business timber set-aside program so that appraisals on small business set-aside sales be made to the nearest small business mill. [Federal Register] Guy Timberlake takes a look at rule changes that are being implemented that he feels will kill small business participation in federal contracting. [GovConChannel] A commentator offers a warning about “one size fits all” procurement solutions. [Washington Technology] Six industry associations are asking the government to delay the implementation of new rules around safe workplaces and fair pay for at least a year. [Federal News Radio]
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SmallGovCon Week In Review: September 25-29, 2017

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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SmallGovCon Week In Review: September 19-23, 2016

I am wrapping up a great trip to Huntsville, Alabama, where I gave a presentation yesterday the Redstone Edge conference. As I make my way back home, it’s time for our weekly roundup of government contracting news and notes. In this week’s SmallGovCon Week In Review, fourth quarter spending is actually down this year, Congress takes aim at the “Fair Pay and Safe Workplaces” executive order, and much more. The federal equivalent of Black Friday isn’t what it used to be: a new analysis of federal contracting data shows that Q4 spending is declining after years of elevated levels, with more agencies spending earlier in the year. [Government Executive] Supporters of President Obama’s “Fair Pay and Safe Workplaces” order are now fighting a tough new obstacle–a Congressional proposal to severely curtail the order’s scope. [Forbes] The Defense Department spending on research and development has suffered historic declines during the budget drawdown that has been in progress since 2009. [Federal News Radio] The General Services Administration is trying to ease industry concerns about its new transactional data requirement. [Federal News Radio] A VA Inspector General audit has discovered flaws in the way the VA awarded its major PC3 contracts. [VA OIG]
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SmallGovCon Week In Review: September 18-22, 2017

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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