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Court Upholds “Draconian and Perverse” SBA SDVOSB Ownership Rules

The SBA’s strict SDVOSB ownership rules can produce “draconian and perverse” results, but are nonetheless legal, according to a federal judge. In a recent decision, the U.S. Court of Federal Claims condemned the SBA’s SDVOSB unconditional ownership requirements, while holding that the SBA was within its legal rights to impose those requirements on the company in question. The Court’s decision emphasizes the important differences between the SBA and VA SDVOSB programs, because the Court held th

Koprince Law LLC

Koprince Law LLC

COFC Clarifies When Agency Must Seek Clarification

Agencies have some discretion to seek clarification of a question after reviewing a proposal. But when must the agency do so? GAO allows agencies substantial discretion in choosing whether or not to seek proposal clarifications. But the Court of Federal Claims has a dramatically different standard than GAO for reviewing when an agency must seek clarification for a proposal. A recent Court of Federal Claims decision confirms (as in a 2016 decision) that agencies should seek clarification fo

Koprince Law LLC

Koprince Law LLC

SBIR Program: Agencies Have Broad Discretion Over Phase III Awards, GAO Confirms

A federal agency has broad discretion to make a sole source award under Phase III of the Small Business Innovation Research program. In a recent bid protest decision, the GAO confirmed that an agency may make a Phase III award when the contract “derives from, extends, or completes efforts made under prior funding agreements under the SBIR program.” What’s more, an agency has “relatively limited requirements to justify a phase III award,” and considerable discretion when it comes to determin

Koprince Law LLC

Koprince Law LLC

Contractors Must Prove Increased Costs Caused by a New Wage Determination

Under some federal government contracts, the contractor is required to pay its workers a wage dictated by a wage determination issued by DOL. But what if, during contract performance, DOL raises the applicable wages? Under the FAR, contractors can recover their increased costs. Naturally, however, contractors have to prove them. Before discussing a recent CBCA decision, let’s look at the relevant FAR provision: FAR 52.222-43. Under that provision, the Government will adjust the contract

Koprince Law LLC

Koprince Law LLC

Postal Service Customer Files $50,000 PSBCA Appeal Over Lost Mail

A dissatisfied U.S. Postal Service customer filed an appeal with the Postal Service Board of Contract Appeals, seeking $50,000 in damages resulting from the Postal Service’s failure to deliver a Priority Mail package. The appellant contended that it had a contract with the Postal Service, which was breached when the Postal Service failed to deliver the package.  But the appellant’s cleverness wasn’t enough to prevail: the Board held that it lacked jurisdiction over the appeal. The case of Tr

Koprince Law LLC

Koprince Law LLC

Does Kingdomware Apply To Non-VA FSS Orders?

Earlier this year, the United States Supreme Court issued its decision in Kingdomware Technologies v. United States. As we’ve noted, this case was a monumental win for veteran-owned small businesses—it requires the Department of Veterans Affairs to set-aside solicitations for SDVOSBs or VOSBs where two or more such offerors will submit a proposal at a fair and reasonable price, even if that solicitation is issued under the Federal Supply Schedule. A recent GAO decision suggests, however, that K

Koprince Law LLC

Koprince Law LLC

Ostensible Subcontractor Affiliation Can’t Be “Fixed” After Final Proposals

Affiliation under the ostensible subcontractor rule is determined at the time of proposal submission–and can’t be “fixed” by later changes. In a recent size appeal decision, the SBA Office of Hearing and Appeals confirmed that a contractor’s affiliation with its proposed subcontractor could not be mitigated by changes in subcontracting relationships after final proposals were submitted. In Greener Construction Services, Inc., SBA No. SIZ-5782 (Oct. 12, 2016), the U.S. Army Contracting Comman

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review: April 27 – May 1, 2020

The federal government and federal contractors continue to deal with the fallout from COVID-19, while still providing the many functions of government. Because the work of government keeps on keepin’ on, there were a number of interesting updates in the federal contracting world this week. These included news about how COVID-19 is affecting small business contractors, the Air Force’s investment in flying cars (!) using a new acquisition model, and DoD’s desire for first-tier suppliers to mee

Koprince Law LLC

Koprince Law LLC

A Successful Bid Protest Doesn’t Mean a Second Bite at the Apple

So, the GAO sustained your bid protest? Perhaps surprisingly, a sustained protest doesn’t necessary mean GAO will recommend that the agency cancel the award and re-open the solicitation.  You may just walk away with your bid preparation and protest costs. In Savannah Cleaning Systems, Inc., B 415817.2 (Comp. Gen. Apr. 23, 2018), GAO addressed whether it must recommend a fairly standard remedy—such as, cancelling the award and reissuing the solicitation—when it sustains a bid protest.  Under c

Koprince Law LLC

Koprince Law LLC

The DFARS Approach to Data Rights

We have discussed data rights in the general federal government context, now it is finally time to look at the DFARS’ approach to this area of intellectual property. One thing: The DFARS (Defense Acquisition Regulation Systems) does not replace the FAR. It is a supplement, not a completely different set of rules. That said, there are certain nuances that the contractor needs to be aware of in order to navigate the DoD’s requirements. In General As the DFARS is simply a supplement to

Koprince Law LLC

Koprince Law LLC

PPQs Submitted Late? “No Problem,” Says GAO–At Least In One Case

While being fashionably late to a party may give the impression that one is a busy and popular person that was held up with other business, being fashionably late in federal contracting will typically have dire consequences. However, a recent GAO bid protest decision demonstrates that when providing completed past performance questionnaires, or PPQs, being fashionably late may be acceptable – at least when the references were submitted directly by government officials, rather than the offeror.

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review: February 12-16, 2018

Love was in the air this week with Valentine’s Day falling on Wednesday.  If all the chocolate and flowers distracted you from the latest and greatest in government contracting news, you’re in luck.  It’s time for our weekly roundup, the SmallGovCon Week in Review. In today’s edition, a California father-and-son team pleaded guilty to using false financial statements and other lies in order to win more than $4 million in federal contracts, one commentator says the Department of Homeland Securit

Koprince Law LLC

Koprince Law LLC

Plan Ahead to Prevent Proposal Submission Issues, Says GAO

When submitting bids, contractors should always double check their proposal submission methods, whether it be a designated portal, email, or any other method, and do so well before the deadline. GAO recently had the opportunity to examine proposal submission issues related to a US Navy procurement, and did not show sympathy for the contractor who experienced proposal submission issues right at the deadline. GAO addressed late filing exceptions and issues with submission portals in the pr

Koprince Law LLC

Koprince Law LLC

OHA: Sold Corporate Division Isn’t a Former Affiliate

Affiliation is a dirty word to small business federal government contractors. For good reason: it can turn a small business into a large one and destroy its eligibility for socioeconomic programs and set-aside contracts. Proactive small business contractors, therefore, routinely audit their affiliation risks and, if necessary, take actions to fracture that affiliation. One of the ways a company might try to fracture affiliation is to sell a division or business line to a third party. Because

Koprince Law LLC

Koprince Law LLC

SBA’s SDVOSB “Normal Business Hours” Rule Needs Fixing–Here’s How

SBA’s regulations for service-disabled veteran-owned small businesses create a rebuttable presumption that a service-disabled veteran doesn’t control the company if the veteran is unable to work normal business hours in the company’s industry. The rule sounds reasonable at first blush, but as a recent SBA Office of Hearings and Appeals case demonstrates, the SBA may apply the presumption even to a one-person start-up with no contracts. Not many people can afford to quit their day jobs bef

Koprince Law LLC

Koprince Law LLC

DoD Mentor-Protege Program: Major Changes Proposed

The Department of Defense is proposing a major overhaul of the regulations governing its “pilot” mentor-protege program for small businesses. The proposed rule, which was published in the Federal Register on September 23, 2016, makes a number of important changes, including adding new eligibility criteria, placing limits on the amount of time a protege can participate in the program, adding new required elements to mentor-protege agreements, and much more. The DoD’s proposed rule responds to

Koprince Law LLC

Koprince Law LLC

GAO Protest Attorneys’ Fees And Costs: Read Our “Procurement Lawyer” Article

Successful GAO bid protesters can sometimes recover their attorneys’ fees and costs.  But when are fees and costs recoverable?  How must a claim be supported?  When is a claim for costs and attorneys’ fees due? In the Summer 2017 edition of The Procurement Lawyer (the quarterly publication of the American Bar Association’s Public Contract Law Section), my Koprince Law LLC colleagues Candace Shields and Ian Patterson take an in-depth look at the recovery of costs and attorneys’ fees in GAO bid p

Koprince Law LLC

Koprince Law LLC

SBA’s 2018 Small Business Procurement Scorecard: Over $120 Billion Awarded to Small Businesses

Earning federal contracts is a powerful tool to help small companies grow their business. To help make sure that small businesses have a seat at the table, the Small Business Act sets prime contracting goals for small businesses (along with each socio-economic category). 15 U.S.C. § 644(g). And each year, the SBA issues a scorecard grading the government’s compliance with those goals. Just a couple days ago, the SBA released its scorecard for the 2018 fiscal year. All told, the scorecard pai

Koprince Law LLC

Koprince Law LLC

HUBZone Program: SBA Final Rule Allows NHO Ownership

Native Hawaiian Organizations soon will be able to own HUBZone companies under a new SBA direct final rule published yesterday in the Federal Register. The new rule implements provisions of the 2016 National Defense Authorization Act, in which Congress instructed the SBA to open the HUBZone program to NHOs. Under current law, NHOs are unable to majority-own HUBZone companies, even though Indian tribes and Alaska Native Corporations can be HUBZone owners.  The new rule, which will amend the S

Koprince Law LLC

Koprince Law LLC

5 Things You Should Know: 8(a) Program Eligibility

In a recent post, I discussed the basics about SBA’s 8(a) Business Development Program. This follow-up posts discusses 8(a) eligibility requirements in greater detail. To qualify for the 8(a) Program, a firm must be a small business that is unconditionally owned and controlled by one or more socially- and economically-disadvantaged individuals who are of good character and citizens of the United States and that demonstrates a potential for success. What does this really mean? Here are five thi

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review: December 9 – December 13, 2019

It’s an exciting time in the federal contracting world. The House and Senate negotiators have resolved their differences on the 2020 NDAA and it should be passed soon. In addition to the article below, you can review our coverage on some of the major provisions that would affect contractors and we’ll also provide updates with any major changes coming out of the final version. But that’s not the only news. There are are also updates on the flurry of recent SBA rule changes and a new SBA admin

Koprince Law LLC

Koprince Law LLC

FAR Final Rule: Increased Micro-Purchase and Simplified Acquisition Thresholds

The Federal Acquisition Regulation has officially been updated to increase the micro-purchase threshold and the simplified acquisition threshold, effective August 31, 2020. Various federal agencies had already increased the thresholds through deviations, but this rule makes it official across the board. A few additional thresholds will increase due to inflation. Read on for the details on how this could impact federal procurement. The proposed rule to increase the acquisition thresholds

Koprince Law LLC

Koprince Law LLC

Five Things You Should Know: NAICS Code Appeals

NAICS codes are limited in what they can challenge, but can have a powerful effect on a procurement. A NAICS code appeal can challenge the size limit attached to a specific government procurement. This can level the playing field by limiting to smaller businesses, or expand the size of businesses that are able to compete. So, it’s good to know a NAICS code appeal works. 1. What is a NAICS Code? A NAICS code is a six digit code assigned to various industries under the North American I

Koprince Law LLC

Koprince Law LLC

SBA Corrects Profit-Splitting Flaw In New Joint Venture Regulations

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

Koprince Law LLC

Koprince Law LLC

Email Isn’t Instant: GAO Dismisses Case Where Proposal was Four Minutes Late

By 2020, most of us have gotten used to almost immediate means of digital communication. We expect emails to reach their destination at lightning-fast speeds—but this isn’t always the case. Relying on this expectation can have devastating effects, as it did for a protester in one recent GAO case. In Spanish Solutions Language Services, LLC, B-418191 (Comp. Gen. Jan. 2, 2020), the Protester sought to submit a proposal for providing Arabic, French, and Russian translation services for a De

Koprince Law LLC

Koprince Law LLC

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