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Koprince Law LLC

With what is being deemed “The Great American Eclipse” ready to hit the skies on Monday, there is a lot of excitement in the air here in Lawrence. We are just off the path of totality and are expecting 99.3% coverage. My colleagues and family will be outside (with protective eyewear of course) and witness this amazing moment. As for me, I’ll be in San Diego, speaking at the 2017 Department of the Navy Gold Coast Conference which will drop my near total eclipse view down to a partial eclipse of about 58% coverage–but it’s well worth it to be part of this great event.

Before I take off for the West Coast, it’s time for the latest SmallGovCon Week In Review. This week, two Senators have filed an amendment to the 2018 National Defense Authorization Act called the Modernizing Government Technology Act, an “Amazon-like” procurement system might not be too far off, a company is forced to repay millions of dollars amid allegations of overcharging the government, and much more.

  • The bipartisan Modernizing Government Technology Act is being attached as an amendment to the 2018 National Defense Authorization Act in hopes of improving its chances of being approved. [Federal News Radio]
  • With six weeks left in FY 2017, budget experts are warning federal contractors to begin planning for a possible government shutdown. [Federal News Radio]
  • A provision in the House version of the annual National Defense Authorization Act may soon make ordering office supplies, equipment, or even contract services as easy as placing an order on Amazon. [Government Executive]
  • A contractor will pay $9.2 million dollars to settle allegations of overbilling the U.S. Navy and Coast Guard for labor charges. [WLOX]
  • Government contracts sales guru Eileen Kent provides some pointers for businesses interested in cashing in on opportunities available at the end of the federal fiscal year. [Government Product News]
  • A lawsuit by the American Small Business League, heading for trial, alleges that some large defense contractors manipulate data to falsely claim they are meeting their small business subcontracting targets. [Forbes]

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Koprince Law LLC

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

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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Koprince Law LLC

Ah, joint ventures.  Few topics in government contracting these days seem to cause as much confusion.  And that’s due, in large part, to some common misunderstandings I hear repeated over and over.

Recently, I joined host Michael LeJeune on the “Game Changers” podcast to talk about some of the most common areas of confusion regarding joint ventures.  What is the relationship between joint ventures and the SBA’s new All-Small Mentor-Protege Program?  How do the rules for joint venture work share operate?  What are some frequent mistakes companies make when they draft joint venture agreements?  And so on.

My podcast is available now on the Federal Access website.  Click here to give it a listen, and while you’re there, check out the many other great podcasts featuring a range of government contracts thought leaders.


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Koprince Law LLC

My heart rate has finally come down after the exciting finish to Game Five of the Cubs-Nationals playoff series last night.  I caught the first few innings waiting for my flight in Salt Lake City, and the game (which clocked in at more than 4 1/2 hours) was still going when I landed in Kansas City a couple hours later.  Thanks in part to the magic of instant replay, my Cubs were victorious, and will continue their World Series title defense against the Dodgers this weekend.

Clearly, my mind is on sports–but I’m also closely watching developments in government contracts.  In this week’s SmallGovCon Week In Review, the GAO reminds agencies that they have the power to override the automatic stay, the SBA updates the WOSB/EDWOSB NAICS codes, a bill to improve the SBIR and STTR programs passes the House unanimously, and much more.

  • Can one contract change the way the government buys IT? How EIS will spur federal IT modernization. [FedTech]
  • The Centers for Medicare and Medicaid Services signed a memorandum of understanding to use the GSA’s OASIS vehicle. [fedscoop]
  • The government may soon buy based more on best value considerations, and less often using lowest price as its main, or sometimes only, focus. [Bloomberg Government]
  • An Ohio senator has asked the Treasury Department to review whether the Equifax breach could constitute grounds for debarment, which would prevent the company from winning or renewing contracts with the government. [Washington Examiner]
  • The GAO released a statement rebuking comments by the IRS, which had stated that it was forced award a bridge contract to Equifax during the course of a bid protest. The GAO noted that agencies have the power to override the automatic stay in appropriate circumstances. [Nextgov]
  • The SBA has updated the NAICS codes authorized for use in the WOSB program; the updates apply to all solicitations issued on or after October 1, 2017. [Federal Register]
  • Language in the 2018 NDAA would make it more difficult for companies to protest contract awards, particularly those made by defense and military agencies. [Nextgov]  (And click here for my take on why this is a really bad idea).
  • It was with unanimous support this week that H.R. 2763, The Small Business Innovation Research and Small Business Technology Transfer Improvement Act of 2017, passed the House of Representatives. [scvtv]

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Koprince Law LLC

Ahh, fall. A time for football, hay rides, and returning to campus. Being in a college town, we are always reminded that students are back on campus due to the increased traffic, the homecoming parade, and the increased buzz (no pun intended) around the town. The onset of fall sometimes dredges up unwanted memories about turning in term papers and meeting all the inane requirements insisted upon by the professor.

A recent GAO opinion also brought me back to my college days. Specifically, what happens when the government (kind of like a college professor) sets a requirement for a certain type of file format for a solicitation, but the offeror submits a proposal in a different file format?  A recent GAO opinion answers that question in the contractor’s favor–although GAO’s ruling isn’t a blanket permission slip for contractors to ignore file format requirements.

In McCann-Erickson USA, Inc., B-414787 (Comp. Gen. Sept. 18, 2017), McCann-Erickson USA, Inc. had submitted a proposal to provide advertising services to the Army on an IDIQ basis for a potential 10-year contract worth up to $4 billion. The Army would evaluate proposals “on a best-value basis, considering cost/price, along with several non-cost/price evaluation criteria.”

The solicitation set up a two-phase evaluation process. Phase one would be based on written proposals while phase two would involve an oral presentation for all proposals that were deemed acceptable. Phase one involved “a substantive evaluation of written proposals considering cost/price and the non-cost/price evaluation factors with a focus on the adequacy of the offerors’ response–and the feasibility of their approach–to fulfilling the requirements of the RFP.” But instead of following the two-phase review process, the Army conducted what it termed a “compliance review” of proposals, consisting of reviewing and eliminating proposals based on “informational deficiencies” in what GAO described as a “superficial, perfunctory review of the ME proposal to identify instances where ME allegedly did not fully comply with the instructions for proposal preparation.”

What were these “information deficiencies” identified by GAO?  The wrong file format was one of them. The Army rejected ME’s proposal, in part, “for submitting its cost/price proposal as a portable document file (pdf) rather than as a Microsoft Excel spreadsheet.” Per the GAO, “[t]he record shows that the agency did not substantively evaluate the ME cost/price proposal, choosing not to calculate the firm’s total evaluated cost/price; performing no meaningful cost realism evaluation; and not evaluating the proposal for balance, fairness or reasonableness, as specifically contemplated by the solicitation’s cost/price evaluation factor. The agency also did not afford ME an opportunity to submit its cost proposal as a Microsoft Excel file.”

GAO rejected the Army’s interpretation of its submission requirements because

the solicitation’s evaluation criteria did not place offerors on notice that the agency simply would reject proposals without first performing a substantive evaluation. In addition, the record does not establish why the Army is unable to evaluate ME’s cost/price proposal using the pdf version of the proposal that it submitted, as opposed to a Microsoft Excel version of the cost/price proposal. Although a Microsoft Excel version of the proposal would include the underlying formulae used to arrive at the cost/price proposed by ME, the agency has not explained how the lack of such information would necessarily lead to its inability to evaluate the MS cost/price proposal.

In addition, GAO held that allowing ME to submit an Excel version of its cost/price proposal would be prudent, as long as no changes were made in the pricing, because this would amount to a mere clarification of the proposal. In the end, GAO sustained the protest and advised the Army to reevaluate ME’s proposal and awarded costs to ME.

It’s important to note that the GAO’s decision was based on the specific circumstances of the case. GAO did not hold that it is always okay for an offeror to submit its proposal in the wrong electronic file format. In fact, in a case decided a few years back, the GAO reached the opposite conclusion–holding that an offeror was properly excluded from award when it submitted its proposal in PDF instead of Excel.  The difference?  In the prior case, the agency argued that it needed to manipulate offerors’ cost data to complete the price evaluation, and the GAO agreed that doing so would be “unduly burdensome” without an Excel file.

Perhaps a college student may come across this blog after turning in a paper in the wrong format and be able to argue that, if it’s good enough for the GAO, it should be good enough for you, professor. Regardless, this decision is noteworthy because it points to limits on an agency’s discretion in rejecting a proposal based on the file format of the submission.


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Koprince Law LLC

Like many, I enjoy a good meal out on the town. I tend to order strictly from the menu without any additions or substitutions. Perhaps, it is from all my years of waitressing prior to attending law school. In a recent GAO decision, however, the Navy attempted to order items not on the vendor’s menu only to have GAO determine that the order was beyond the scope of that menu.

In Bluewater Management Group, LLC, B-414785, Bluewater protested the Navy’s award of lodging and transportation services to DMC Management Services, LLC, alleging the award was improper because DMC’s GSA Schedule contract did not include transportation services.

By way of background, the Department of Navy, Military Sealift Command, issued an RFQ to small business holders of GSA Schedule 48 for lodging and transportation services. The RFQ was issued pursuant to FAR Subpart 8.4, Federal Supply Schedules, whereby GSA directs and manages the FSS program and federal agencies can utilize a simplified process for obtaining commercial supplies and services at bulk prices.

Key to the RFQ’s scope of work, offerors were to not only provide an average of 120 extended-stay hotel rooms within 25 miles of the naval base, but daily round trip transportation to the naval base. The RFQ identified the lodging and transportation services as separate CLINs and instructed vendors that all products and services were to be included in their current GSA Schedule contract.

While DMC was a holder of a Schedule 48 contract, its contract only listed pricing for lodging and housekeeping services. It did not disclose transportation or corresponding pricing for transportation as an additional service. Nevertheless, the Navy awarded DMC the task order for an evaluated price of $38,009,781.

Bluewater protested, arguing that the award was improper because the Navy was procuring transportation services from DMC that were outside the scope of its Schedule 48 contract. The Navy counter-argued that the transportation services were ancillary to complete the task order lodging requirement.

In rejecting the Navy’s argument, GAO wrote, “[t]he Navy provides no legal authority for this assertion, nor does it provide any evidence that DMC’s schedule contract listed these services or otherwise explain why the transportation services are not required to be listed and priced on the FSS contractor’s schedule.” Similarly, GAO found unavailing the Navy’s argument that the transportation services were “other direct costs,” because DMC did not offer a description or established price for transportation services.

GAO explained that “[n]on-FSS products and services may not be purchased using FSS procedures; instead, their purchase requires compliance with the applicable procurement laws and regulations, including those requiring the use of competitive procedures. GAO sustained the protest, affirming that “[w]here an agency orders from an existing FSS, all items quoted and ordered are required to be on the vendor’s schedule contract as a precondition to receiving an order.”

Bluewater is a good reminder that for Schedule contracts, the government is not permitted to order items not listed or priced on the vendor’s menu. Doing so could result in not obtaining any of the items on the menu.


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Koprince Law LLC

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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Koprince Law LLC

The baseball playoffs are back, and tonight I’ll be watching my Cubs begin their quest for back-to-back titles.  (If you’re not a lifelong Cubs fan, you may not realize how strange it feels to write that previous sentence).

Before the games begin, it’s time for our weekly dose of government contracting news.  In this week’s edition of the SmallGovCon Week in Review, the DOJ charges four men with participating in a bribery and kickback conspiracy, the GAO publishes a report finding that many contracts weren’t closed on time, a court reverses a contractor’s debarment, and more.

  • You don’t see this every day: four men are charged in a bribery and kickback conspiracy scheme–involving a DoD Office of Inspector General contract.  If true, that’s pretty brazen.  [U.S. Department of Justice]
  • The SBA has adopted the 2017 NAICS code revision as the basis of its small business size standards. [Federal Register]
  • The GAO published a report showing that contracts were not closed on time at several agencies. [U.S. Government Accountability Office]
  • A federal court ruled the GSA unfairly debarred a government contractor because GSA did not give the contractor notice of all grounds prior to the agency’s final debarment determination. [Federal News Radio]
  • Several defendants in a New York SDVOSB False Claims Act case have agreed to pay $3 million to resolve allegations that they improperly obtained SDVOSB contracts. [U.S. Department of Justice]
  • A retired Army colonel whose business company reportedly was used to commit bribery to obtain more than $20 million in government contracts has been charged with conspiracy. [The Augusta Chronicle]
  • A new website consolidates federal Inspector General reports in one place. [Oversight.gov]
  • Reverse auction provider FedBid has been acquired but will continue to operate under its own brand. [Compusearch]

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Koprince Law LLC

Thank You, Utah!

I am back from a great trip to Salt Lake City, where I spoke at the Utah PTAC Symposium.  My talk at the symposium centered on prime/subcontractor teams and joint ventures–topics of ever-increasing interest for small and large contractors alike.

It was wonderful to see so many clients and old friends at the Symposium and meet so many new people, too.  A big “thank you” to Chuck Spence and his team at the Utah PTAC for organizing this event and inviting me to speak.  And thank you, also, to everyone who attended my seminar and stopped by the Koprince Law LLC booth to talk about government contracts.

I’ll be sticking around Kansas for a few weeks, although I’ll be making a short trip down to Wichita on Tuesday to give a half-day session on the SBA’s All Small Mentor-Protege Program, sponsored by the Kansas PTAC.  If you’re a Kansas contractor, I hope to see you there.


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