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GovCon Voices: The Good, the Bad and the Just Plain Ugly Changes That Almost Were! (Part 2)

Having started my journey in the federal contracting community close to 30 years ago, I’ve seen quite a few changes in policy and process that have both improved and degraded the ability of small business concerns to participate as contractors and subcontractors. I’m not referring solely to changes where the language targeted small business, I’m also including those intending to change how business is done based on a specific commodity, contract cost type, procurement method, agency mission or g

Koprince Law LLC

Koprince Law LLC

Why File: A GAO Pre-Award Protest

For our third entry in our “Why File” series, we will be covering one of the two big bid protest routes, a “pre-award” Government Accountability Office (GAO) bid protest. Most contractors are fairly familiar with GAO bid protests that occur after an agency makes their award decision (more on this in a later “Why File” post. But contractors may be less familiar with pre-award bid protests at GAO. We will cover some of the most common reasons pre-award protests are filed at GAO, based primarily o

Familial Relationship Affiliation: SBA Treats Spouses As “One Party”

One common way that contractors attempt to avoid affiliation is by limiting a particular individual to a minority ownership interest (often 49%). But as a recent SBA Office of Hearings and Appeals case demonstrates, when a company’s owners are spouses (or other close family members), the SBA may disregard the legal ownership split, and treat the family members as one person for purposes of the affiliation rules. OHA’s decision in Size Appeal of Gregory Landscape Services, Inc., SBA No. SIZ-5

Koprince Law LLC

Koprince Law LLC

GAO: Brand Name or Equal RFQ Must Explicitly State All Salient Characteristics

Solicitations for brand name or equal products are commonly used by contracting officers to ensure that the products procured via the contract meet minimum requirements. However, as one agency found, the salient characteristics required to meet the minimum requirements must be explicitly stated in the solicitation. And, evaluating the product on any characteristics that are not included in the solicitation, even if incorporated by reference to the name brand item, can lead to an improper exclusi

SmallGovCon Week In Review: May 15-19, 2017

It’s been a whirlwind of a week here in Kansas. I was fortunate enough to speak yesterday at the 16th Annual DOE Small Business Forum & Expo just up the road in Kansas City. My presentation focused on recent legal updates in federal contracting. It was a wonderful event put on by the Department of Energy and I was glad to be a part of it. Before we sail off into the weekend, it’s time for the SmallGovCon Week In Review. This edition looks at a plan to make the Transactional Data Reporting r

Koprince Law LLC

Koprince Law LLC

Government Misses HUBZone, WOSB Goals–But Gets “A” Grade Anyway

The government missed its Fiscal Year 2016 HUBZone goal by a country mile, and didn’t hit the 5% WOSB goal, either.  But according to the SBA, the government deserves an “A” for its FY 2016 small business achievements. That’s some rather generous scoring, wouldn’t you say? On May 18 ,the SBA issued a press release announcing that the government had exceeded its 23% small business goal for the fourth straight year.  The SBA’s report card gave the government an overall “A” grade for its achiev

Koprince Law LLC

Koprince Law LLC

The VA’s SDVOSB JV Verification Assistance Brief Is Wrong

The VA’s Verification Assistance Brief for SDVOSB and VOSB joint ventures flat-out misstates the law regarding the manner in which joint venture profits must be split. SDVOSBs and VOSBs often rely on Verification Assistance Briefs to guide them through the CVE verification process, and CVE analysts sometimes use Verification Assistance Briefs, too.  Which begs the question: how many CVE-verified joint ventures are legally invalid? The VAAR provides that a joint venture can be eligible for a

Koprince Law LLC

Koprince Law LLC

GAO: WOSB Set-Asides and Sole Sources are Discretionary, not Mandatory

Historically, Uncle Sam has struggled to meet its WOSB contracting goals. It wasn’t until 2015, in fact, that the government first met its WOSB contracting goal and, since then, has continued to struggle to meet it. Thankfully, agencies are authorized to use set-asides and sole-source awards to increase WOSB participation. But as a recent GAO decision shows, an agency isn’t required to use either procedure. At issue in EDWOSB Transformer Services, B-416683 (Oct. 15, 2018), was a solicitation

Koprince Law LLC

Koprince Law LLC

GAO: Competition Alone Doesn’t Mean Prices are Reasonable

When the federal government awards a contract, the government must ensure that the price it pays is “fair and reasonable.”  In other words, the government cannot pay a price that is too high. If a contract is awarded on the basis of competitive proposals, an agency may be able to establish price reasonableness by comparing the prices proposed by competing offerors.  But as demonstrated in a recent GAO bid protest decision, competition alone doesn’t mean that the prices received are reasonable–t

Koprince Law LLC

Koprince Law LLC

GSA Schedule BPA Award Does not Allow for Size Protest

Generally, a size protest must be filed within five business days of when the protester receives notice of the identity of the awardee.  But there are some nuances to this rule, such as whether a corrective action will extend the deadline and whether the clock starts running upon notice of the prospective awardee or the actual contract award date (Hint: notice of awardee). But when does the 5-day protest period start to run in the context of a Blanket Purchase Agreement issued under a GSA Sched

Koprince Law LLC

Koprince Law LLC

GAO: SBA’s Class Waiver Supported VA SDVOSB Set-Aside Decision

Last month, Steve wrote about a new Class Deviation rule adopted by the VA that, in effect, would limit the VA’s use of class waivers as part of its decision to restrict competition to SDVOSBs (or otherwise issue solicitations as sole source awards). But in an apparent contradiction to this Class Deviation rule, GAO recently denied a challenge to an SDVOSB set-aside decision for a manufacturing solicitation, based in large part on SBA’s adoption of a class waiver for the particular NAICS code.

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review: May 22-26, 2017

Memorial Day weekend is almost here, which means the unofficial start to summer! Whether you are hitting the beach or relaxing at home (my plans include BBQ ribs and chicken wings courtesy of the family Big Green Egg), I hope you have an enjoyable long weekend while remembering those that have given their lives to protect our country. Of course, a relaxing weekend isn’t complete without some good reading material, and we’ve got you covered.  In the final May edition of the SmallGovCon Week In R

Koprince Law LLC

Koprince Law LLC

NAICS Codes & Task Orders: Underlying Contract Controls

When an agency competes a task order under a multiple-award contract, the agency must assign the task solicitation a NAICS code set forth in the underlying MAC. As demonstrated in a recent SBA Office of Hearings and Appeals decision, when the MAC is assigned a single NAICS code, all task orders competed under that MAC will also be assigned that NAICS code–even if a prospective offeror believes that a different NAICS code will best describe the principal purpose of the task order acquisition.

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review: May 29 – June 2, 2017

June is here which means we are nearing the official start of summer–and it already feels like summer here in Lawrence with temperatures in the mid-80s. Before I head off to enjoy the warm weather and sunshine it’s time for our weekly look at the latest and greatest in government contracting. In this edition of the SmallGovCon Week In Review, a food contractor has agreed to pay a whopping $95 million as part of a major procurement fraud settlement, the GSA Inspector General issues a semi-annual

Koprince Law LLC

Koprince Law LLC

Government Liable For Negligent Estimate, Court Rules

The government’s use of specifications within a contract carries an implied warranty that the specifications are free from errors. When a contractor is misled by the erroneous specifications, the contractor may seek recovery through an equitable adjustment to the contract. But what happens when the government seeks services through a requirements contract and is simply negligent in estimating its needs? A recent Federal Circuit decision, Agility Defense & Government Services, Inc., v. Unite

Koprince Law LLC

Koprince Law LLC

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 2

Koprince Law LLC

Koprince Law LLC

Small Business Goaling: Army Evaluation Offers Lesson For SBA

Last month, I wrote that the SBA shouldn’t have awarded the government an “A” for its FY 2016 small business goaling achievement.  Even though the government exceeded the 23% small business goal, it missed the WOSB and HUBZone goals (the latter by a lot). In a different context, a recent U.S. Army Corps of Engineers proposal evaluation offers a grading lesson for the SBA.  In that case, the Corps assigned a large prime offeror a middling “Acceptable” score for small business participation where

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review: June 5-9, 2017

I’m not sure what the weather is going to be like in your neck of the woods, but we are ready for a few 90+ degree days here in Lawrence. It’s a great weekend for sitting in the shade with a cold lemonade and some good reading material. And if you need something to read, we’ve got you covered with the latest in government contracting news. In this week’s SmallGovCon Week in Review, a Texas contractor has made nearly $2.5 million to settle procurement fraud allegations, the SBA’s administrative

Koprince Law LLC

Koprince Law LLC

Hiring Incumbent Employees At Low Labor Rates–What Could Go Wrong?

A company bidding to replace an incumbent service contractor cannot presume incumbent workers will take major pay cuts without setting itself up for a potentially successful protest. FAR 22.12 generally requires successor service contractors to give a right of first refusal to qualified employees under the previous contract. And even when these nondisplacement rules don’t apply, many offerors’ proposals tout their efforts to retain incumbent employees. But asking incumbent employees to take sig

Koprince Law LLC

Koprince Law LLC

Agency Creates Fake Source Selection Documents

An agency has been caught creating fake source selection documents to pad its file in response to several GAO bid protests. A recent GAO bid protest decision shows that, after award, the agency created new source selection documents and revised others, then pretended those documents had been part of the contemporaneous source selection file.  And although the agency’s conduct resulted in the cancellation of a major procurement, it’s not clear whether the agency employees who created the fake do

Koprince Law LLC

Koprince Law LLC

Limitations On Subcontracting: FAR Change In The Works

It’s been more than a year since the SBA issued a final rule overhauling the limitations on subcontracting for small business contracts.  The SBA’s rule, now codified at 13 C.F.R. 125.6, changes the formulas for calculating compliance with the limitations on subcontracting, and allows small businesses to take credit for work performed by similarly situated subcontractors. But the FAR’s corresponding clauses have yet to be changed, and this has led to a lot of confusion about which rule applies–

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week in Review: Jan. 28-Feb. 2, 2024

Happy February! Our Kansas City Chiefs have once again managed to make it back into the Super Bowl and we couldn’t be happier about it! Whether you’re a Chiefs fan, a 49ers fan or a Swiftie, it’s sure to be a good one! Start gathering those favorite snack recipes and get out the lucky sports gear, folks! This week in federal government contracting news had some important updates, including a new GSA schedule catalog platform, a report on savings in software purchases, and a revamped SBA tra

SmallGovCon Week In Review: June 12-16, 2017

This Sunday we celebrate Father’s Day.  I’m looking forward to celebrating with my kids, my father, and my brother (himself the father of three). Happy Father’s Day to all the other dads out there! In this mid-June edition of SmallGovCon Week In Review, about 500 new small business partners were added to the GSA 8(a) STARS II vehicle , a USAID Deputy Director pleads guilty to procurement fraud charges, new SBA Administrator Linda McMahon wants to implement more efficient processes for contracto

Koprince Law LLC

Koprince Law LLC

Tax Extensions Don’t Impact Small Business Size, SBA OHA Confirms

Contrary to common misconception, a contractor’s small business status under a receipts-based size standard ordinarily is based on the contractor’s last three completed fiscal years–not the last three completed fiscal years for which the contractor has filed a tax return. In a recent size appeal decision, the SBA Office of Hearings and Appeals confirmed that a contractor cannot change the relevant three-year period by delaying filing a tax return for the most recently completed fiscal year.

Koprince Law LLC

Koprince Law LLC

Contractor’s Lackadaisical Proposal Preparation Sinks Its Claim for Costs

To federal construction contractors, the true legwork may seem to begin only after the government has accepted a proposal and performance has begun. However, a recent Armed Services Board of Contract Appeals decision reinforces that federal construction contractors’ work often should begin long before contract award. In Zafer Construction Company, ASBCA No. 56769 (2017), the ASBCA rejected a construction contractor’s allegations of unilateral mistake, unconscionability, and differing site condi

Koprince Law LLC

Koprince Law LLC

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