The government can terminate a contract when the Department of Labor has made a preliminary finding of non-compliance with the Service Contract Act, even if the contractor has not exhausted its remedies fighting or appealing the finding.
The 3-0 (unanimous) decision by the Armed Services Board of Contract Appeals in Puget Sound Environmental Corp., ASBCA No. 58828 (July 12, 2016) is troubling because it could result in other contractors losing their contracts based on preliminary DOL findings–p
An offeror’s proposal to hire incumbent personnel–but pay those personnel less than they are earning under the incumbent contract–presents an “obvious” price realism concern that an agency must address when price realism is a component of the evaluation.
In a bid protest decision, the GAO held that an agency’s price realism evaluation was inadequate where the agency failed to address the awardee’s proposal to hire incumbent personnel at discounted rates.
GAO’s decision Valor Healthcare, Inc.
Does 8(a) status remain in place for the duration of GSA Schedule contracts? GAO says no.
In MIRACORP, Inc., B-416917 (Comp. Gen. Jan. 2, 2019), the incumbent contractor for administrative support services sought by the Department of Energy, protested the Department’s evaluation and award of a delivery order to RiVidium, Inc., an 8(a) small business. GAO dismissed the protest, saying that the protester–which had graduated from the 8(a) program–lacked standing because it wasn’t eligible for
The Service Contract Act requires contractors to pay certain provide no less than certain prevailing wages and fringe benefits (including vacation) to its service employees. The amount of vacation ordinarily is based on an employee’s years of service—and service with a predecessor contractor counts. The FAR’s Nondisplacement of Qualified Workers provision, in turn, requires follow-on contractors to offer a “right of first refusal” to many of those same incumbent employees.
A follow-on contracto
A contractor’s performance of extra work outside the scope of the contract may go uncompensated if a contractor does not receive appropriate authorization in accordance with the contractual terms.
A Court of Federal Claims decision reinforced that a contractor should only perform work required under the terms of the federal contract or directed by an authorized government agent in accordance with the contractual terms. And importantly, a Contracting Officer’s Representative isn’t always authori
A company bidding to replace an incumbent service contractor cannot presume incumbent workers will take major pay cuts without setting itself up for a potentially successful protest.
FAR 22.12 generally requires successor service contractors to give a right of first refusal to qualified employees under the previous contract. And even when these nondisplacement rules don’t apply, many offerors’ proposals tout their efforts to retain incumbent employees. But asking incumbent employees to take sig
GAO sustained a protest recently where a contractor misrepresented
to the agency that it had negotiated offers with incumbent workers when in fact
it had not.
In Sev1Tech, Inc., B-416811 et al., (Dec. 18, 2018), the U.S. Coast Guard sought to award a task order contract for project management, technical support, and logistics services to a member of the General Services Administration’s One Acquisition Solution for Integrated Services (“OASIS”) Small Business Pool.
The solicitation
The government’s use of specifications within a contract carries an implied warranty that the specifications are free from errors. When a contractor is misled by the erroneous specifications, the contractor may seek recovery through an equitable adjustment to the contract. But what happens when the government seeks services through a requirements contract and is simply negligent in estimating its needs?
A recent Federal Circuit decision, Agility Defense & Government Services, Inc., v. Unite
The FAR generally favors the Government clients’ entitlement to data and software rights in federal procurements. This has commonly—and understandably—led to disgruntled contractors who didn’t realize what they were truly giving up when they opted to use their own software in performance of contracts without including regulation-compliant markings and protections.
But recently—thanks to a first-of-its-kind decision by the ASBCA—it seems the tide may have turned in favor of protecting these
There are many questions facing contractors during this time of upheaval from the coronavirus and the impact on the federal government’s role buying from federal contractors. We’ll try to address as many of them as we can through our COVID-19 Contractors’ Toolkit. One of the biggest questions is what can be done if the government modifies a contract, cancels work, or reschedules the performance of work. In that situation, it’s important to understand both the impacts on the prime contractor and
So you’ve teamed with an ineligible incumbent contractor to bid on some government work and, to try and maintain continuity, the incumbent would like to retain project management functions. “No big deal,” you think, “I’ll just create a management position to oversee the project manager.”
Actually, it could be a big deal if you’re trying to avoid ostensible subcontractor affiliation. Among the four key factors for determining ostensible subcontractor affiliation is whether the management previou
Under the so-called “once 8(a), always 8(a)” rule set forth in the FAR and SBA regulations, when a procurement has been accepted by the SBA for inclusion in the 8(a) Program, any follow-on contract generally must remain in the 8(a) Program, unless the SBA agrees to release it for non-8(a) competition.
Now, the Section 809 Panel has proposed a modest, but potentially important change to the “once 8(a), always 8(a)” rule–a change that would allow for acquisitions to be removed from the 8(a) Pr
It’s a basic tenet of government contracting that a contractor must comply with the requirements of an agency solicitation. Those are the rules of the game. But in practice, there can be some tricky calls. For instance, what if a solicitation includes a requirement that appears to conflict with the FAR? Does an offeror still have to comply? A recent GAO decision explored this situation in the context of a solicitation’s requirement for subcontracting plans.
The decision in Land Shark Shreddin
The FAR mandates that agencies use the AbilityOne program to award contracts for items on the AbilityOne procurement list to qualified nonprofits. The purpose of the program is to increase employment and training opportunities for persons who are blind or have other severe disabilities.
With rare exceptions, when an item is on the AbilityOne procurement list, an agency has no choice–it must purchase through AbilityOne, even where the AbilityOne items are included in the procurement of larger se
A “similarly situated entity” cannot be an ostensible subcontractor under the SBA’s affiliation rules.
In a recent size appeal decision, the SBA Office of Hearings and Appeals confirmed that changes made to the SBA’s size regulations in 2016 exempt similarly situated entities from ostensible subcontractor affiliation.
OHA’s decision in Size Appeal of The Frontline Group, SBA No. SIZ-5860 (2017) involved an Air Force solicitation for the alteration and fitting of uniforms. The solicitation w
It’s relatively rare for the United States Court of Appeals for the Federal Circuit (an intermediate federal appeals court immediately below the Supreme Court) to weigh in on the Trade Agreements Act, as it applies to federal government contracts. So, when we saw the Federal Circuit’s recent decision on the issue, we had just one thought: this has to make the blog. So, here it is.
Before launching into the case, a little background on the Trade Agreements Act (TAA). Generally, if the TAA
The Small Business Runway Extension Act continues to be a hot topic of conversation among small businesses. For good reason: it revised the receipts calculation period for revenue-based size standards from three years to five.
In late 2018, the SBA opined that the Runway Extension Act wasn’t yet applicable because the SBA had not yet updated its regulations. Following industry pushback, the SBA’s position seems to have evolved. During a panel discussion at this year’s National 8(a) Confere
Happy Friday, everyone! It’s a beautiful day in Lawrence, as we seemed to have dodged the bullet with the massive mid-April winter storm that’s affected our friends up north. No matter where you’re located, we hope you’ve had a great week, too.
Before we head out for the weekend, it’s time for the Week In Review. In this week’s edition, we’ll take a look at the nominee to head the SBA, VA contracting goals, a new DoD rule to implement the nonmanufacturer rule to 8(a) contracts, and more.
This story is about a glider, a balloon, the planet Venus, and Titan, the largest moon of Saturn. This subject matter is the fabric of the universe, but the lesson it teaches is as mundane as linen sheets.
A NASA Small Business Innovation Research offeror cannot always wait for a debriefing to file a GAO bid protest, because if it does, it may run the risk of the protest grounds being untimely.
In general, it often may be good practice for an unsuccessful offeror to wait to file a GAO bid pr
In its evaluation of past performance, an agency was permitted to disregard a past performance reference prepared by an offeror’s sister company–which also happened to be in line for a subcontracting role.
In a recent bid protest decision, the GAO upheld the agency’s determination that the sister company’s reference was “inherently biased” and need not be considered in the agency’s past performance evaluation.
The GAO’s decision in PacArctic, LLC, B-413914.3; B-413914.4 (May 30, 2017) involv
To federal construction contractors, the true legwork may seem to begin only after the government has accepted a proposal and performance has begun. However, a recent Armed Services Board of Contract Appeals decision reinforces that federal construction contractors’ work often should begin long before contract award.
In Zafer Construction Company, ASBCA No. 56769 (2017), the ASBCA rejected a construction contractor’s allegations of unilateral mistake, unconscionability, and differing site condi
Under the 2017 National Defense Authorization Act, the DoD has the discretion to forego a price or cost evaluation in connection with the award of certain multiple-award contracts.
The 2017 NDAA includes some important changes that are sure to impact federal procurements. Section 825 of the NDAA, which allows DoD contracting officers to forego price or cost evaluations in certain circumstances, is one of these changes.
By way of background, 10 U.S.C. § 2305(3)(A) previously required that DoD
We’ve been getting a lot of the dreaded “Excessive Heat Warnings” this week. If you’re in the same boat, please stay cool out there. An alternative to going outside could be staying in the air conditioning and reading up on some interesting government contracting news.
This week in federal government contracting news, please check out noteworthy updates on cyber provisions in the NDAA, securing the supply chain, and possible changes to Buy-American rules for steel, as well as many other stor
Over the years, SBA size regulations have included the general rule that the size status of a business generally relates back the time of initial offer on a contract. Therefore, a small business generally stays small for the duration of a federal contract, with some exceptions. However, there was also language in the rule that required small businesses to recertify their size status after being acquired or going through similar transactions. The effect of this recertification requirement was alw
The Section 809 Panel has recommended that Congress eliminate most small business set-asides for DoD acquisitions. The Panel would replace the longstanding set-aside system with a meager five percent small business price preference.
For small government contractors, this recommendation is the policy equivalent of a five-alarm fire. Small contractors may need to fight hard to save the set-aside system.
Get ready for a battle.
The Government’s Longstanding Small Business Policy
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