The Armed Services Board of Contract Appeals can order an agency to “speed up” its decision on a certified claim if the contracting officer’s anticipated time frame is unreasonably slow.
In a recent case, the ASBCA ordered a contracting officer to issue a decision approximately eight weeks earlier than the contracting officer planned to do so. The ASBCA’s decision highlights a little-known provision of the Contract Disputes Act, which entitles a contractor to request that an appropriate tribuna
The 2017 National Defense Authorization Act, if signed into law, includes a few changes designed to help small business subcontractors. Among those changes, the bill, which has recently been approved by both the House and Senate, includes language designed to help ensure that large prime contractors comply with the Small Business Act’s “good faith” requirement to meet their small business subcontracting goals.
Section 1821 of the 2017 NDAA is called “Good Faith in Subcontracting,” and is anot
The 2017 National Defense Authorization Act will require the GAO to issue a report about the number and types of contracts the Department of Defense awarded to minority-owned and women-owned businesses during fiscal years 2010 to 2015.
If the 2017 NDAA is signed into law, the GAO would be required to submit its report within one year of the statute’s enactment.
The 2017 NDAA requires the GAO to identify minority-owned and women-owned businesses using the categories identified in the Federal
We’ve been covering many of the important changes to federal contracting promised as a result of the 2017 National Defense Authorization Act. But among the most consequential might be a provision that requires DoD to compile a report that analyzes the impacts of the current bid protest system on DoD acquistions. This report could ultimately form the basis for potential significant changes to the protest system in future years.
As it was originally working through Congress, some versions of th
The 2017 National Defense Authorization Act restores the GAO’s recently-expired jurisdiction to hear protests of civilian task and delivery orders valued in excess of $10 million.
The 2017 NDAA also continues to allow the GAO to hear protests of DoD task and delivery orders–but raises the jurisdictional threshold to $25 million.
As we blogged about in November, the GAO’s authority to hear bid protests in connection with civilian task and delivery orders expired on September 30, 2016. Even th
An offeror with a “relatively weak proposal” can nonetheless file a size protest challenging the small business eligibility of the prospective awardee, provided that the protester was not found technically unacceptable or otherwise incapable of being selected for award.
In a recent size appeal decision, the SBA Office of Hearings and Appeals held that the mere fact that the protester was evaluated as “less than satisfactory” on four out of five non-price factors did not justify dismissing the p
The GAO sustained 22.56% of protests decided on the merits in Fiscal Year 2016–nearly double the 12% sustain rate reported in FY 2015.
According to the GAO’s FY 2016 Bid Protest Annual Report, the GAO sustained 139 of the 616 protests decided on the merits (that is, cases where GAO actually reached a “sustain” or “deny” decision). The overall effectiveness rate for protesters–a combination of “sustain” decisions, plus the many cases in which agencies took corrective action in response to prote
A NAICS code appeal can be a powerful tool for altering the competitive landscape of a bid by changing what size of business is allowed to submit a bid and thereby either increasing or decreasing the potential competitor pool. This post explores some of the important reasons for considering filing a NAICS code appeal. While NAICS codes appeals are not that common, they have a fairly high rate of success.
What is a NAICS Code?
A NAICS code is a six-digit code that is assigned to vari
This winter’s first polar vortex is upon us, and although much of the country has been getting hit with snow, Kansas has managed to stay mostly snow free with temperatures centered around a balmy 30 degrees. As the vortex sweeps its way out, we are looking to get our first dose of really cold weather with lows in the teens this weekend. Weekends like this are perfect to spend time with family and daydream about being on a beach–or anyplace that does not require 10+ minutes of preparation just to
GAO’s jurisdiction to hear protests of certain civilian task and delivery orders has been restored.
On December 15, 2016, the President signed the 2016 GAO Civilian Task and Delivery Order Protest Authority Act (the “ 2016 Act”) into law. The 2016 Act restores GAO’s recently-expired jurisdiction to hear protests of civilian task and delivery orders valued in excess of $10 million.
As we recently blogged about here at SmallGovCon, the 2017 National Defense Authorization Act also restores GAO
A small but interesting change in the 2017 National Defense Authorization Act will require the DoD to obtain an appropriate justification and approval (“J&A”) before restricting any competition to a particular brand name, or imposing similar restrictions.
In adopting this change, Congress doesn’t mince words, using the term “Anti-competitive Specifications” to refer to instances in which competitions are restricted to particular brand names without appropriate justification.
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An agency acted improperly by excluding an offeror from the competitive range simply because the offeror received a “neutral” past performance score.
In a recent bid protest decision, the GAO wrote that the FAR precludes evaluating an offeror unfavorably because of a “neutral” or “unknown” past performance rating–and that the prohibition on unfavorable treatment prevents an agency from excluding an offeror from the competitive range on the basis of a neutral rating.
The GAO’s decision in Xtr
The 2017 National Defense Authorization Act gives certain small subcontractors a new tool to request past performance ratings from the government,
If the pilot program works as intended, it may ultimately improve those subcontractors’ competitiveness for prime contract bids, for which a documented history of past performance is often critical.
For small contractors looking to break into the federal marketplace, a lack of past performance ratings can be a major problem. Without government pas
The 2017 National Defense Authorization Act establishes a preference for the DoD to use fixed-price contracts, and will require executive approval of cost reimbursement procedures for certain high-dollar procurements.
Section 829 of the 2017 NDAA is titled, quite simply, “Preference for Fixed-Price Contracts.” Section 829 specifies that, within 180 days after the 2017 NDAA is enacted, the DFARS are to be revised to establish a preference for fixed-price contracts (including fixed-price incent
The FAR Council has published a final rule to require that certain contractor employees complete privacy training.
The final rule requires privacy training for contractor employees who handle personally identifiable information, have access to a system of records, or design, maintain, or operate a system of records.
The final rule has been more than five years in the making: the FAR Council issued a proposed rule regarding privacy training way back on October 14, 2011. The final rule respon
Earlier this year, we wrote about an interesting issue brewing in federal contracting: whether the logic behind the Supreme Court’s June 2016 decision in Kingdomware Technologies means that the Small Business Act’s rule of two is mandatory for acquisitions under Federal Supply Schedules. In other words, does the Small Business Act require agencies to set aside orders under the FSS when two or more small business are likely to submit competitive offers?
The SBA believes that the rule of two (see
With Christmas just two days away, it is time for many of us to focus on family and friends and enjoy a few days off. I hope that you have an enjoyable holiday season and are able to surround yourself with those that mean the most to you. Before we take a little break for the holidays we are happy to bring you this final 2016 edition of SmallGovCon Week In Review. (We won’t be publishing a Week in Review next week, but will be back with more in 2017).
As we head into the final week of 2016, we
The SBA has corrected a flaw in the profit-splitting provisions of its new joint venture regulations.
Under the corrected regulations, which became effective on December 27, all of the SBA’s joint venture regulations–those for small businesses, SDVOSBs, HUBZones, 8(a)s, and WOSBs–will require that each joint venturer receive profits commensurate with the work it performs. The SBA’s revisions clear up an inconsistency between the 8(a) joint venture regulations and the regulations for the SBA’s
Under the Competition in Contracting Act, the Government Accountability Office is required to issue an annual report to Congress that summarizes the “most prevalent grounds” of sustained protests, identifies the instances in which GAO was not able to decide a protest within its 100-day deadline, and list any protest where the agency did not follow GAO’s recommendations.
The 2017 National Defense Authorization Act doubles down on this first requirement: it mandates that GAO provide Congress with
An offeror’s proposal was properly rejected as late because the proposal exceeded the agency’s email file size limit.
In a recent bid protest decision highlighting, the GAO held that a small business’s proposal was late because the emails transmitting the proposal exceeded 10 MB–even though the solicitation didn’t mention a file size limit.
The GAO’s decision in Washington Coach Corporation, B-413809 (Dec. 28, 2016) involved a VA solicitation for executive driver transportation
Congress is taking a hard look at how to promote increased competition in federal contracting.
Among the provisions in the 2017 National Defense Authorization Act is a requirement for the GAO to prepare a report on how the DoD enters into and uses indefinite delivery contracts–and recommendations for changes to promote competition with respect to indefinite delivery contracts.
Section 886 of the 2017 NDAA calls for the GAO to study indefinite delivery contracts entered into by the DoD in Fisca
Under the 2017 National Defense Authorization Act, the DoD has the discretion to forego a price or cost evaluation in connection with the award of certain multiple-award contracts.
The 2017 NDAA includes some important changes that are sure to impact federal procurements. Section 825 of the NDAA, which allows DoD contracting officers to forego price or cost evaluations in certain circumstances, is one of these changes.
By way of background, 10 U.S.C. § 2305(3)(A) previously required that DoD
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 Authorizatio
Debriefings play a vital role in the procurement process. When conducted fully and fairly, a debriefing provides an offeror with valuable insight into the strengths and shortcomings of its proposal, thus enabling the offeror to improve its offering under future solicitations. But when an agency provides only a perfunctory debriefing, the process can be virtually worthless–and may actually encourage an unsuccessful offeror to file a bid protest.
With this in mind, the Office of Federal Procureme
An agency’s decision to award a contract as an 8(a) sole source is a “business decision” for which the agency has broad discretion–and a potential protester challenging the agency’s use of that discretion will have an uphill battle.
In a recent bid protest decision, the GAO confirmed that government officials are presumed to act in good faith, and that the presumption extends to the decision to award an 8(a) sole source contract instead of competing the work in question.
The GAO’s decision i
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