Federal contractors frequently find themselves in the position of needing to establish their past performance credentials to secure future contracts – the government’s form of a reference check. The government often performs these reference checks by requesting completed past performance questionnaires, or PPQs, which the government uses as an indicator of the offeror’s ability to perform a future contract.
But what happens when a contractor’s government point of contact fails to return a compl
An offeror’s apparent attempt to engage in a little proposal gamesmanship has resulted in a sustained GAO bid protest.
In a recent case, an offeror attempted to evade a solicitation requirement that proposals be no more than 10 single-spaced pages, by cramming its proposal into less than single-spacing. The GAO wasn’t having it, sustaining a competitor’s protest and holding that the “spacing gamesmanship” had given the offeror an unfair advantage.
The GAO’s decision in DKW Communications, I
On Friday, Steven wrote about the framework of the new SBA small business mentor-protégé program. As part of this significant program addition, SBA’s final rule includes details about the requirements a small business joint venture must satisfy in order to be qualified to perform a small business set-aside. This post will briefly discuss those requirements.
A quick disclaimer: as we have detailed previously on SmallGovCon, the SBA will closely evaluate a joint venture agreement in the case of
Contrary to a common misconception, an offeror is not automatically entitled to “use” the past performance of parent companies, sister companies or other corporate affiliates. So when can an offeror rely on the past performance of an affiliate in submitting a proposal?
A recent GAO opinion sheds some light on that question. Not meeting the GAO’s guidelines for describing the detailed involvement of the affiliate can have a harsh result—a sustained protest if award was made based on the affiliat
The 2017 NDAA is full of important changes that will affect federal contracting going forward. As Steve wrote about earlier this week, some of these changes relate to government contracting programs (like the SDVOSB program). Still others relate to how the government actually procures goods and services.
One of these important changes severely limits the use of lowest-price technically-acceptable (“LPTA”) evaluations in Department of Defense procurements. Following the change, “best value” trad
A small but interesting change in the 2017 National Defense Authorization Act will require the DoD to obtain an appropriate justification and approval (“J&A”) before restricting any competition to a particular brand name, or imposing similar restrictions.
In adopting this change, Congress doesn’t mince words, using the term “Anti-competitive Specifications” to refer to instances in which competitions are restricted to particular brand names without appropriate justification.
Section 888
An agency’s attempt to order under a Federal Supply Schedule blanket purchase agreement was improper because the order exceeded the scope of the underlying BPA.
In a recent bid protest decision, GAO held that the agency had erred by attempting to issue a sole-source delivery order for cloud-based email service when the underlying BPA did not envision cloud services.
The bid protest, Tempus Nova, Inc., B-412821, 2016 CPD ¶ 161 (Comp. Gen. June 14, 2016), pitted a Microsoft-authorized dealer a
Generally, agencies are required to maximize competition for procurements. But there are exceptions to this rule, such as for simplified acquisitions. Another exception is for sole source bridge contracts awarded between the end of an incumbent contract and the start of a new contract.
A recent GAO case explains the rationale for why a sole-source award is usually acceptable in that situation.
In Trailboss Enterprises, Inc., B-415970.2, (Comp. Gen. May 7, 2018), Trailboss protested the terms
The Armed Services Board of Contract Appeals recently dismissed a government claim that Lockheed Martin Integrated Systems, Inc. (LMIS), failed to comply with its prime contract terms by not adequately managing its subcontractors and therefore all subcontract costs (more than $100MM) were unallowable.
Although the government claim was directed at a large contractor, some of the amount in question, presumably, included invoiced amounts by small business subcontractors. At least by implication,
In last week’s edition of the SmallGovCon Week In Review, we referenced a FAR update that has important ramifications for prospective small business government contractors. This rule is potentially important enough that we figured it deserved its own stand-alone SmallGovCon post.
So what’s so important about this new rule? In a nutshell, it clarifies that offerors must be registered in SAM at the time of bid submission to be considered for an award.
We’re sometimes asked “when does a company
Debriefings are a fundamental part of many government competitions. So it’s important for government contractors to understand what debriefings are, what they are not, and why they’re important. Here are five things you should know about debriefings:
Debriefings are sometimes required (but sometimes not).
After spending a lot of time (and money) on a bid, it’s only natural that a contractor would want to know why its proposal was evaluated the way it was. But agencies aren’t always requir
As we said in this space a few days ago, the SBA has put in place a safe harbor until May 14 for companies to return Paycheck Protection Program loan money if they find they don’t need it. No harm, no foul.
So, what happens if they don’t need it, but don’t return it? Maybe Clubber Lang said it best.
This safe harbor provision comes on the heels of several seemingly large and successful businesses, including the Los Angeles Lakers, for example, voluntarily returning their PPP loans
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
As a contractor, you strive to do the best job for the fairest price and to develop a good working relationship with the government. But in government contracts—like in any other—disputes sometimes arise. So what’s the best way to protect your interests under the contract?
Here are five things you should know about the basics of claims:
What is a claim?
A claim is a written demand to the agency requesting some type of relief under a contract. Unlike other means of resolving disputes, the
They say that two things in life are guaranteed – death and taxes – and status as a federal contractor may not exempt one from the latter, according to a recent Armed Services Board of Contract Appeals decision.
In Presentation Products, Inc. dba Spinitar, ASBCA No. 61066 (2017), the ASBCA held the contractor was liable to pay a state tax, and the government had no duty to reimburse the contractor. The problem arose from the fact that the contractor did not incorporate state tax costs into its
Based on the text of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the fact that a company has foreign owners shouldn’t necessarily disqualify it from participating in the Paycheck Protection Program (PPP).
But the form used to apply says otherwise.
A company seeking to participate in the program must fill out an application designated as Small Business Administration Form 2483. It requires the applicant to answer several questions, one of which is whether it is a
You’ve submitted a great proposal, but then you get the bad news – you lost. As most seasoned contractors know, an unsuccessful offeror often can ask for a debriefing from the agency and in doing so, hopefully get some valuable insight into its decision-making process. Many also understand that the benefits of asking for a debriefing may include extending the timeline for filing a GAO bid protest.
But not all solicitations are subject to the same debriefing regulations, and depending on how the
What goes around, comes around.
The government sometimes refuses to pay a contractor for a modification when the government official requesting the modification lacks appropriate authority. But contractual authority isn’t a one-way street benefiting only the government. A recent decision by the Armed Services Board of Contract Appeals demonstrates that a contractor may not be bound by a final waiver and release of claims if the individual signing on the contractor’s behalf lacked authority.
Federal contractors not so infrequently find themselves in a position where they are unable to complete performance of a contract by the agreed-upon deadline. So, what happens when the delay is neither party’s fault, but the government denies extension of the period of performance or provides inadequate extensions?
In IAP Worldwide Services, Inc. (ASBCA Nos. 59397, 59398, and 59399), the Armed Services Board of Contract Appeals found under the legal theory of “constructive acceleration” that th
A newly released Government Accountability Office report provides a rare peek behind the curtain of how contracting officers assign North American Industry Classification System codes.
Contracting officers are required by 13 C.F.R. § 121.402(b) to designate the NAICS code that “best describes” the work to be performed. It sounds simple enough, but the report reveals that it can be tricky.
The contracting officers interviewed by GAO as part of its December 2017 Report to the Committee on Smal
The period of performance under a government contract, measured in “days,” meant calendar days–not business days, as the contractor contended.
In a recent decision, the Armed Services Board of Contract Appeals applied the FAR’s general definition of “days” in holding that a contractor had not met the contract’s performance schedule.
The ASBCA’s decision in Family Entertainment Services, Inc., ASBCA No. 61157 (2017) involved an Army contract for grounds maintenance services at Fort Campbell,
To qualify as a small business under most set-aside or sole source contracts seeking manufactured products or supplies, SBA’s regulations require an offeror to be the item’s manufacturer or, alternatively, comply with the nonmanufacturer rule.
In a prior post, we discussed 5 Things You Should Know about being the item’s manufacturer; in this post, we’ll discuss qualifying under the nonmanufacturer rule.
1.Do I need to qualify under the nonmanufacturer rule?
That depends on the
To encourage joint venturing, the SBA’s size regulations provide a limited exception from affiliation for certain joint venturers: a joint venture qualifies for award of a set-aside contract so long as each venturer, individually, is below the size standard associated with the contract (or one venturer is below the size standard and the other is an SBA-approved mentor, and they have a compliant joint venture agreement). In other words, the SBA ordinarily won’t “affiliate” the joint venturers—tha
In evaluating a WOSB joint venture’s past performance, the procuring agency considered each joint venture member’s contemplated percentage of effort for the solicitation’s scope of work, and assigned the joint venture past performance ratings based on which member was responsible for particular past performance.
The GAO held that the agency had the discretion to evaluate joint venture past performance in this manner–although it is unclear whether a relatively new SBA regulation (which apparentl
GAO’s bid protest regulations provide strict timelines for filing a protest.
Typically, a protest challenging an award must be filed within 10 days after the basis of the protest is known or should have been known. There is an exception to this rule for protests filed after a debriefing, but only when a debriefing was required by the FAR. As one contractor recently discovered, where a debriefing is not required, GAO’s bid protest regulations are not nearly as forgiving.
ITility, LLC, B-41527
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