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“In Scope” vs. “Out of Scope” Modifications: GAO Explains The Difference

An agency may modify a contract without running afoul of the Competition in Contracting Act, so long as the the modification is deemed “in scope.” An “out of scope” modification, on the other hand, is improper–and may be protested at GAO. In a recent bid protest decision, GAO denied a protest challenging an agency’s modification of a contract where the modification was within scope and of a nature that competitors could have reasonably anticipated at the time of award. In its decision, GAO expl

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Koprince Law LLC

2018 NDAA Increases Civilian Micro-Purchase Threshold to $10,000

The 2018 National Defense Authorization Act (NDAA) has generated lots of headlines regarding the so-called “Amazon amendment” and the Act’s prohibition on the Russian IT company Kaspersky Labs products. But gone under reported is a huge change to how the government makes small purchases. The 2018 NDAA, signed by President Donald Trump on December 12, increases the standard micro-purchase threshold applicable to civilian agencies from $3,000 to $10,000. Last year, the NDAA increased the Departme

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Koprince Law LLC

GAO: Awardee Not Required To List Specified NAICS Code In SAM

A common misconception in government contracting is that to be eligible under a particular solicitation, a small business must have the solicitation’s assigned NAICS code listed under its SBA System for Award Management (“SAM”) profile. Not so. GAO, in a recent decision, affirmed this misconception to be false—it found that an awardee’s failure to list the assigned NAICS code under its SAM profile did not make its proposal technically unacceptable. Veterans Electric, LLC, B-413198 (Aug. 26,

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Koprince Law LLC

GAO Confirms: DoD Task Order Protest Threshold Is $25 Million

The GAO ordinarily lacks jurisdiction to consider a protest of a task or delivery order under a DoD multiple-award contract unless the value of the order exceeds $25 million. In a recent bid protest decision, the DoD confirmed that the 2017 National Defense Authorization Act upped the jurisdictional threshold for DoD task orders from $10 million to $25 million. The GAO’s decision in Erickson Helicopters, Inc., B-415176.3, B-415176.5 (Dec. 11, 2017) involved a solicitation under the U.S. Tran

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Koprince Law LLC

2017 NDAA Increases DoD’s Micro-Purchase Threshold To $5,000

The 2017 National Defense Authorization Act will increase the DoD’s micro-purchase threshold to $5,000. Under the conference bill recently approved by both House and Senate, the DoD’s micro-purchase threshold will be $1,500 greater than the standard micro-purchase threshold applicable to civilian agencies. A micro-purchase is an acquisition by the government of supplies or services that, because the aggregate is below a certain price, allows the government to use simplified acquisition proce

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Koprince Law LLC

Breaking: Kingdomware Wins Unanimously!

SDVOSBs, rejoice! Kingdomware Technologies has unanimously won its Supreme Court battle against the VA.  The Court has held that the VA’s “rule of two” is mandatory and applies to all of the VA’s contracting determinations. I’ll have much more analysis up on SmallGovCon in the coming hours.  For now, congratulations to Kingdomware–and all SDVOSBs and VOSBs! View the full article

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Koprince Law LLC

2018 NDAA Bans Some LPTA Procurements

In 2017, Congress placed limits on the utilization of Lowest-Price Technically-Acceptable procurement procedures in Department of Defense acquisitions. The 2018 National Defense Authorization Act continues this trend by completely prohibiting the use of LPTA procedures for certain major defense acquisition programs. As we covered last year, the 2017 NDAA included a presumption against the use of LPTA procedures for DoD procurements unless certain criteria were met. The 2017 NDAA also cautioned

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Koprince Law LLC

Termination For Default: The “No Reasonable Likelihood” Standard

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, C

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Koprince Law LLC

Victory! SDVOSBs Win In Kingdomware Supreme Court Decision

SDVOSBs and VOSBs are big winners today, as the Supreme Court unanimously ruled that the VA’s “rule of two” is mandatory, and applies to all VA procurements–including GSA Schedule orders. The Supreme Court’s decision in Kingdomware Technologies, Inc. v. United States, No. 14-916 (2016) means that the VA will be required to truly put “Veterans First” in all of its procurement actions–which is what Kingdomware, and many veterans’ advocates, have fought for all along. History of the Kingd

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Koprince Law LLC

SBA, Can a Foreign-Owned Entity Receive a PPP Loan or What?

Well, we thought we had this figured out. Yet here we are a week later and we keep hearing conflicting reports. The question remains, can a foreign-owned company receive a Paycheck Protection Program loan or not? Let’s try to figure it out. Last week, on the eve of the program going live, we wrote that the form being circulated seemed to disqualify companies who are 20 percent or more owned by foreign nationals or entities. At some point, either that night or early the next morning

Koprince Law LLC

Koprince Law LLC

2018 NDAA: Congress Enacts Changes to DoD Debriefings

Almost a year ago, we wrote of a memorandum from the Office of Federal Procurement Policy urging agencies to strengthen the debriefing process. OFPP’s rationale was simple: because effective debriefings tend to reduce the number of protests, agencies should be inclined to enhance the debriefing process. Congress seems to have taken note: the 2018 National Defense Authorization Act requires the Department of Defense to make significant improvements to the debriefing process.  That said, those im

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Koprince Law LLC

SmallGovCon Week In Review: August 1-5, 2016

It’s hard to believe that August is already here. Before we know it, the end of the government fiscal year will be here–and if tradition holds, a slew of bid protests related to those inevitable last-minute contract awards. In our first SmallGovCon Week In Review for August, two big-wig executives who previously plead guilty to charges of conspiracy now face civil claims, some helpful tips on how to prepare for the year-end contracting frenzy, Schedule 70 looks to be improved, a major roadblock

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Koprince Law LLC

GAO: “Brand Name Only” Restrictions Must Be Justified

Competition is the touchstone of federal contracting. Except in limited circumstances, agencies are required to procure goods and services through full and open competition. In this regard, an agency’s decision to limit competition to only brand name items must be adequately justified. GAO recently affirmed this principle in Phoenix Environmental Design, Inc., B-413373 (Oct. 14, 2016), when it sustained a protest challenging the Department of the Interior, Bureau of Land Management’s decision t

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Koprince Law LLC

Agency’s Reliance on Unstated Evaluation Criteria Leads to Sustained Protest

A solicitation’s evaluation criteria are tremendously important. Not only must offerors understand and comply with those criteria in order to have a chance at being awarded the contract, but the agency must abide by them too. Where an agency does not, it risks that a protest challenging the application of an unstated evaluation criteria will be sustained. So it was in Phoenix Air Group, Inc., B-412796.2 et al. (Sept. 26, 2016), a recent GAO decision sustaining a protest where the protester’s pr

Koprince Law LLC

Koprince Law LLC

GAO: “Minimal” Solicitation Changes Justified Cancellation

An agency was entitled to cancel a solicitation when its needs changed–even though the anticipated changes in its needs “might be characterized as minimal.” In a recent bid protest decision, the GAO confirmed that a procuring agency has broad discretion to cancel a solicitation when the agency’s anticipated needs change, and that discretion extends to cases in which the agency’s changed needs could be addressed by amending the existing solicitation. The GAO’s decision in Social Impact, Inc.,

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Koprince Law LLC

GAO Recommends Improvements For Comments on Proposed Federal Agency Rules

Have you ever felt like you were screaming into the void when submitting your comments to a proposed rule in the Federal Register? That your well thought out comments were being drowned out by a mass of other comments on a proposed rule or attributed to someone else? Have you wondered what agencies do with all that information you send them when you submit a comment on a proposed rule? Well, GAO seems to have the same questions and concerns regarding the proposed rule comments process and has ta

Koprince Law LLC

Koprince Law LLC

GAO: Evaluation of Affiliate’s Past Performance is Optional

In its past performance evaluation, an agency typically can consider the past performance of an offeror’s affiliate, so long as the offeror’s proposal demonstrates that the resources of the affiliate will affect contract performance. But, as demonstrated in a recent GAO decision involving an Alaska Native Corporation subsidiary, ordinarily there is no requirement that an agency consider an affiliate’s past performance.  In other words, unless the solicitation speaks to the issue, the agency’s c

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Koprince Law LLC

Release of Claims Can’t Be Undone by Refusing Government Payment

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 relea

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review April 15 – April 19, 2019

It’s Friday, which means it’s time for the SmallGovCon Week In Review. In this edition, we’ll look at a potential impact to the change to DUNS numbers, cybersecurity requirements, and increased opportunities with the Corps of Engineers. Have a great weekend, everyone! Army Corps of Engineers turns to private sector in face of budget cuts. [FederalNewsNetwork] How DUNS Number Changes Could Affect Your Business. [Nav.com] Keeping up with DoD cybersecurity compliance demands. [GTPAC.

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Koprince Law LLC

VA Will “Immediately Comply” With Kingdomware Decision

The VA will “immediately comply with the Court’s decision” in Kingdomware Technologies, Inc. v. United States, according to a top VA official. In written testimony offered in advance of a Senate committee hearing tomorrow, the Executive Director of the VA’s Office of Small and Disadvantaged Business Utilization tells Congress that the VA will work to implement the Kingdomware decision, including by improving its market research processes. In his testimony, Executive Director Thomas J. Leney

Koprince Law LLC

Koprince Law LLC

Price Realism: Agency Didn’t Compare Proposed Rates To Incumbent Rates

An incumbent contractor won a protest at GAO recently where it argued that the awardee’s labor rates were too low, because they were lower than the rates the incumbent itself was paying the same people. GAO faulted the agency for concluding that the awardee’s price was realistic without checking the proposed rates against the incumbent rates. In other words, GAO told the agency to start at the obvious place—the compensation of the current employees. The decision in SURVICE Engineering Compan

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Koprince Law LLC

GAO: Late Is Late–Even If Agency Server Malfunctions

You’ve hit send on that electronic proposal, hours before the deadline and now you can sit back and feel confident that you’ve done everything in your power – at least it won’t be rejected as untimely – right? Not so fast. If an electronically submitted proposal gets delayed, the proposal may be rejected–even if the delay could have been caused by malfunctioning government equipment. In a recent bid protest decision, the GAO continued a recent pattern of ruling against protesters whose electron

Koprince Law LLC

Koprince Law LLC

SBA Finalizes “Universal” Small Business Mentor-Protege Program

The SBA has finalized its “universal” mentor-protege program for all small businesses. In a final rule scheduled to be published in the Federal Register on July 25, 2016, the SBA provides the framework for what may be one of the most important small business programs of the last decade–one that will allow all small businesses to obtain developmental assistance from larger mentors, and form joint ventures with those mentors to pursue set-aside contracts. First things first: while I’ve b

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Koprince Law LLC

Under FAR Part 16 Task Order Solicitation, Agency Can Establish Competitive Range Without Notification

Under FAR Part 15 negotiated procurements, an agency must give notice and an opportunity to request a debriefing to offerors eliminated from the competitive range. But the notice requirement does not apply for task and delivery order procurements under FAR Part 16 where FAR Part 15 is inapplicable. A recent GAO decision highlights this distinction. The Department of Education issued multiple solicitations to meet IT requirements. One RFQ, the PIVOT H solicitation, was for hosting of applicat

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Koprince Law LLC

GAO’s Task Order Protest Jurisdiction Ends September 30, 2016

After September 30, 2016, unsuccessful offerors will lose the ability to challenge some task order awards issued by civilian agencies. With the House of Representatives and Senate at odds over the extent to which task orders should be subject to bid protests in the first place, it’s unclear whether that protest right will be restored. Under the Competition in Contracting Act, a protest challenging a task order award issued by a civilian agency is not permitted unless it falls under either of

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Koprince Law LLC

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