The VA has released an Acquisition Policy Flash providing guidance to VA Contracting Officers on implementing the U.S. Supreme Court’s decision in Kingdomware Technologies, Inc. v. United States.
The Policy Flash suggests that the VA is, in fact, moving quickly to implement the Kingdomware decision–and if that’s the case, it is good news for SDVOSBs and VOSBs.
The Policy Flash begins by reiterating the Supreme Court’s major holdings: namely, that the Rule of Two applies to orders placed unde
It’s no secret that the VA has tried to find ways around the statutorily-mandated rule of two–i.e. VA must set aside procurements for VOSBS if it has a reasonable expectation that it will receive fair and reasonable offers from two or more veteran-owned small businesses. Although the U.S. Supreme Court has already told VA, in Kingdomware, that it cannot circumvent the rule of two, VA apparently is still seeking ways to avoid it.
Recently, VA tried to go around the rule of two by using G
Ordinarily, whether an offeror’s proposed personnel actually perform under a contract is a non-protestable matter of contract administration. But GAO will consider the issue when an offeror proposes personnel that it did not have a reasonable basis to expect to provide during contract performance in order to obtain a more favorable evaluation. Such a “bait and switch” amounts to a material misrepresentation that undermines the integrity of the procurement and evaluation.
That’s exactly what hap
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
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
On Friday, July 12, 2019, the U.S. House of Representatives passed its version of the 2020 National Defense Authorization Act.
While this passage may lead to an uncharacteristic political fight over appropriations, contractors will be watching whether the U.S. Senate and House bills ultimately agree upon the less politically-charged sections likely to impact their businesses.
The House and Senate bills both include a lot of the same provisions, including some that we’ve written abo
As agencies look for ways to streamline acquisitions, task and delivery order procurements are becoming increasingly popular. But an agency doesn’t have unfettered discretion to award work under a multiple-award contract; each task or delivery order must be within the scope of the awarded IDIQ.
A recent GAO opinion considers what happens when an agency issues task orders that are outside the scope of the underlying multiple-award contract.
In Western Pilot Service, B-415732 (March 6, 2018),
When an agency reevaluates proposals in response to a protest, the reevaluation must be thorough and reasonable.
In a recent GAO bid protest decision, GAO sustained a protest because the agency’s reevaluation of proposals, undertaken after a protest was sustained, did not reasonably address “widespread discrepancies” in the awardee’s proposal.
Earlier this year, we blogged on GAO’s decision in Immersion Consulting, LLC, B-415155 et al. (Dec. 4, 2017) where the SSA had unilaterally revised th
A Maryland contractor nearly lost a contract with $20 billion ceiling because of a password protected encrypted document.
After much back and forth, and for somewhat obscure reasons, GAO said that it was unreasonable for the agency to ask for the password and then not use it.
Chags Health Information Technology, LLC, of Columbia, Maryland, protested the decision of the Department of Health and Human Services, National Institutes of Health, to eliminate its proposal from the competi
Under the VA’s Rule of Two, the VA is required to set aside solicitations for veteran-owned businesses if there is a reasonable expectation of receiving offers from two or more such businesses capable of performing the required work at a fair and reasonable price. But how reasonable does the VA’s expectation have to be in a given procurement? GAO recently reviewed the reasonableness of VA’s efforts and found them lacking.
In Academy Medical, LLC, B-418223 (Jan. 31, 2020), GAO considered
Federal construction contracts incorporate the FAR’s payment and performance bonding requirements as a matter of law, even if the solicitation omits these bonding provisions.
In a recent Armed Services Board of Contract Appeals decision, K-Con, Inc., ASBCA Nos. 60686, 60687, a contractor ran headlong into construction bonding issues when the Army demanded payment and performance bonding for two of its construction contracts despite there being no bonding requirements in either of the contracts.
It’s Friday, which means it’s time for another weekend of college football. Here in Lawrence, there is some renewed interest in the Jayhawks after last week’s surprise Friday night upset over Boston College. Let’s hope the Hawks can keep the intensity up tomorrow.
It also means it’s time for another roundup of some of the more interesting updates from the federal government contracting world. This week, we look at stories including that Federal, state, and local authorities are intensifying
Sole-source awards can make many contractors feel left out of the loop of the procurement process. GAO in the past has upheld that sole-source contracts are allowable so long as the agency has a reasonable justification for the sole-source contract. Recently GAO re-examined what constitutes a reasonable “justification and award” for a sole-source contract.
In Wamore, Inc., B-417450 et al. (July 9, 2019), GAO examined a sole source contract issued by the Army requesting precision aeri
It’s Friday, which means it’s time for another weekend of college football. Here in Lawrence, there is some renewed interest in the Jayhawks after last week’s surprise Friday night upset over Boston College. Let’s hope the Hawks can keep the intensity up tomorrow.
It also means it’s time for another roundup of some of the more interesting updates from the federal government contracting world. This week, we look at stories including that Federal, state, and local authorities are intensifying
For Fiscal Year 2017, SBA’s small business goaling scorecard awarded 21 agencies grades of “A+” or “A” for their small business contracting and subcontracting. Two agencies received a “B” and a single, lonely agency brought up the rear with a “C.” Not one agency received a grade below “C,” even agencies that missed most of their small business goals.
It was a “record breaking” performance, to hear SBA tell it. But these inflated grades do a disservice to the public and government alike. So
When pursuing a bid protest before the Government Accountability Office, it is never a good idea to presume that you’ll get your attorneys’ fees paid by the agency.
If you are fortunate enough to recover attorneys’ fees , GAO’s general standard is to recommend paying the fees associated with all the protest grounds being pursued, whether or not they were meritorious. But although this is the general posture, it is not always the case.
For example, in CSRA LLC-Costs, B-415171.3 (Aug. 27, 2018
In these cold winter months, gloves with touchscreen capabilities are all but essential. Recently, the Army sought to procure touchscreen-compatible combat gloves, but required that all goatskin leather used for the gloves be “100% Domestic” in accordance with the Berry Amendment.
In Mechanix Wear, Inc., B-416704 (Nov. 19, 2018), however, GAO sustained a protest against this requirement because the item being procured was subject to a Berry Amendment exception.
In its initial RFP,
It has been a busy week across the country as we get close to wrapping up the first month of 2017. Here in Lawrence, we’re gearing up for Saturday’s blue blood match-up between Kansas and Kentucky. Both teams are coming off losses and Kentucky is looking to avenge its loss to KU last year. It should be a great game.
Before we get to Saturday basketball, it’s time for our weekly Friday look at government contracting news. In this week’s SmallGovCon Week In Review, articles about what contractors
The VA is considering using so-called “tiered evaluations” to address concerns that SDVOSBs and VOSBs may not always offer “fair and reasonable” pricing, even when two or more veteran-owned companies compete for a contract.
In a session yesterday at the National Veterans Small Business Engagement, a panel of VA acquisition leaders described the potential tiered evaluation process. It’s hard to argue that the VA isn’t entitled to fair and reasonable pricing, but judging from the reaction in the
The COVID-19
pandemic threatens to stretch Americans’ medical resources incredibly thin.
From disposable face masks to respirators, there is real concern that current
supplies will be insufficient to treat the anticipated influx of COVID-19
patients. To address this problem, many have pointed to the Defense Production
Act as a way to increase production of this essential equipment. This is
largely because the Defense Production Act substantially modifies some of the
core government contracting p
Over the last few years, SmallGovCon has covered the Congressionally-mandated march away from use of lowest-price technically-acceptable procurements at the Department of Defense. But although Congress has restricted when DOD might use LPTA criteria, the Department has not followed this mandate.
A recent GAO report highlights DOD’s struggle. As of September 2018, DOD has not yet revised its regulations to reflect certain statutory restrictions against LPTA awards and, as a result, DOD contracti
Your newly awarded government contract requires you to move significant amounts of equipment prior to receiving a Notice to Proceed (NTP). You spend thousands of dollars moving equipment and people into place so you are ready to perform once the NTP is issued. But what if instead of issuing the NTP the agency cancels your contract? Are you out all of the costs incurred to prepare for the NTP?
Not necessarily. The Armed Services Board of Contract Appeals recently reviewed just this situation
There will be a new definition for commercial items under the FAR, via a final rule effective December 6, 2021. The rule divides the definition into two separate categories: “commercial item” and “commercial product.” Below, we’ll summarize these changes to an important definition in federal contracting.
The new definition stems from a change in the 2019 NDAA that split the definition the definition of “commercial item” at 41 U.S.C. 103 into the definitions of “commercial product” and “c
Earlier this year, GAO unveiled its new Electronic Protest Docketing System (“EPDS”) for bid protests. EPDS serves as the central filing system for all bid protests pursued before GAO. As a courtesy, EPDS will automatically generate a courtesy email notice anytime a new document is filed with GAO.
In a recent Request for Reconsideration, however, GAO was asked to reconsider its dismissal of a protest after the protester failed to receive the automatically-generated EPDS notice that the Agency R
Joint venture agreements continue to be a hot topic among small business federal contractors. For good reason: if the agreement is properly prepared, a joint venture allows two companies (including, in the case of an approved mentor and protégé, a large business) to augment their capabilities and jointly bid on a federal project.
But to avail themselves of this benefit, the venturers must first prepare a joint venture agreement that complies with the SBA’s requirements. Sometimes, this task
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