I was enjoying a day off last Friday, so we have a lot of catching up to do on government contracting news and notes. It’s time for a special two-week super-sized edition of the SmallGovCon Week in Review.
In this edition, the GAO looks at NASA’s investigations of contractor whistleblowing complaints, the SBA announces nine new Women’s Business Centers, the Coast Guard sinks $60 million into an electronic health record system procurement with nothing to show for it, 70,000 contractors must pr
In a strongly-worded opinion, a federal judge decried a “labyrinth of legal and regulatory hoops and hurdles” imposed on the VA as a result of the famous Kingdomware Supreme Court decision–and suggested that Congress could exercise a “kill switch” to curtail or even eliminate the SDVOSB and VOSB contracting preferences the Supreme Court unanimously affirmed.
While I have no reason to suspect that Kingdomware is in any danger of being overturned or curtailed by Congress, its certainly not great
In its recent decision, the Court of Federal Claims decided whether and when an agency can cancel a FAR part 15 procurement and start from scratch. Agencies have historically been afforded extremely broad discretion in cancelling solicitations. But in this case, the court agreed with the protester that cancellation was wrongful. It also laid out the details of a proper versus improper solicitation cancellation quite nicely. Thus, this landmark decision provides crucial guidance on the subject fo
An 8(a) joint venture failed to obtain SBA’s approval of an addendum to its joint venture agreement—and the lack of SBA approval cost the joint venture an 8(a) contract.
In Alutiiq-Banner Joint Venture, B-412952 et al. (July 15, 2016), GAO sustained a protest challenging an 8(a) joint venture’s eligibility for award where that joint venture had not previously sought (or received) SBA’s approval for an addendum to its joint venture agreement.
At the big picture level, SBA’s 8(a) Business Deve
President Obama signed the 2017 National Defense Authorization Act into law on December 23, 2016. As is often the case, the NDAA included many changes affecting government contractors.
Here at SmallGovCon, my colleagues and I have been following the 2017 NDAA closely. Here’s a roundup of all 16 posts we’ve written about the government contracting provisions of the 2017 NDAA.
SDVOSB Programs: 2017 NDAA Sharply Curtails VA’s Authority. (Dec. 5, 2016).
2017 NDAA Restricts DoD’s Use of LPT
The DoD has issued a class deviation to immediately implement part of the the enhanced debriefing requirements mandated by the 2018 National Defense Authorization Act.
In a class deviation issued on March 22, 2018, the DoD says that, effective immediately, contracting officers must comply with new requirements allowing unsuccessful offerors to submit questions–and postponing the ticking of the “protest clock” until after answers are received. But the class deviation doesn’t fully implement the
One of the first things a prospective government contractor (including a joint venture) must do to be eligible for an award is to create a business profile in the System for Award Management (or “SAM”). Before making an award, in fact, the contracting officer is obligated to verify the prospective contractor is registered in SAM.
Not only must a business be registered in SAM, but its registration should be up-to-date. It’s an enduring myth of government contracting that a business’s SAM profile
GAO bid protests succeeded almost half the time in Fiscal Year 2017.
According to the GAO’s latest Bid Protest Annual Report, the effectiveness rate of GAO bid protests was 47% in the recently-completed fiscal year. The statistics are striking, because they come just as Congress is finalizing the 2018 National Defense Authorization Act, which includes measures aimed at reducing bid protests. But with bid protests succeeding at a nearly 50% clip, why does the protest “reform” debate seem to ce
Contracting officers have wide discretion to determine that a business can perform the work in question—even if the business is about to enter bankruptcy.
In a recent GAO protest, an unsuccessful offeror challenged just such a determination, saying that there is no way the awarded business could perform because it was nearly bankrupt. But according to the GAO, so long as the agency considered the pending bankruptcy, it was not improper to make an award.
The case, SaxmanOne, LLC, B-414748 (Au
The Government improperly threatened to terminate a contractor for default, because there was no good reason to believe the contractor had actually defaulted.
In a fascinating new decision by the Armed Services Board of Contract Appeals, the Government’s threat–made to a contractor with cash-flow issues–amounted to coercion, and invalidated a settlement agreement that awarded the contractor much less than it probably should have received.
The ASBCA’s decision in North American Landscaping, C
Many of our readers are familiar with a number of the nuances of joint ventures. In fact, in the past few years, many of you have utilized this nifty little concept! That said, for those of you newer to the government contracting business (and as a refresher for those who have been in this for a while), here is a short rundown of the basics of joint ventures in government contracting.
What is a joint venture?
Generally, it is an association between two or more businesses to act in co
It’s the day after you submitted an offer for a big government contract, when one of your key personnel walks into your office. “Thanks for everything you’ve done for me,” she says, “but I’ve decided to take an opportunity elsewhere.”
Employee turnover is a part of doing business. But for prospective government contractors, it can be a nightmare. As highlighted in a recent GAO bid protest, a offeror was excluded from the award simply because one of its proposed key personnel resigned after the
Resolving a protest challenging a past performance evaluation, GAO is deferential to the agency’s determinations. It is primarily concerned with whether the evaluation was conducted fairly and in accordance with the solicitation’s evaluation criteria; if so, GAO will not second-guess the agency’s assessment of the relevance or merit of an offeror’s performance history.
For protesters, therefore, challenging an agency’s past performance evaluation can be difficult. But a recent decision makes cl
SmallGovCon readers may recall that, in 2016, the Government Accountability Office proposed an electronic filing system for bid protests. GAO released a pilot version of its new system earlier this year, and Koprince Law LLC has had the opportunity to test it on several occasions through our bid protest work.
Here are some first impressions on GAO’s Electronic Protest Docketing System.
EPDS is very functional and easy to use. If you’ve ever clicked a link, selected an option from a drop-down
SBA’s regulations say that in order to qualify as a small business under a set-aside or sole-source contract seeking manufactured products or supply items, an offeror ordinarily must either be the manufacturer of the end item or qualify under the nonmanufacturer rule.
This post will discuss five things your small business should know about qualifying as a manufacturer under the SBA’s rules; in a future post, I’ll walk through the nonmanufacturer rule.
Let’s get to it: here are 5 Things You Sho
Pop quiz: Your company is the only technically acceptable offeror in an lowest-priced, technically acceptable procurement. You win, right? Not when the agency cancels the solicitation, hoping that a cheaper offeror who was not technically acceptable will submit a bid if given another chance. GAO recently considered this very scenario.
In AvKARE, Inc., B-417250 (2019), GAO considered a solicitation to supply a certain prescription drug to VA and other agencies. The objective of the contr
An agency backdated a market research memorandum to justify its set-aside decision–and when the backdating came to light, the Court of Federal Claims was none too pleased.
In a recent decision, the Court held that the backdated memorandum resulted in a “corrupted record,” which undermined a “fair and equitable procurement process,” and agreed that the agency’s self-imposed sanctions were appropriate.
I’ve said it many times before, and I’ll say it again: in my experience, the vast majority o
As we have previously noted on the blog, a substantial number of protests filed before GAO end in voluntary corrective action taken by the protested agency. In recent decision, GAO addressed just how much discretion agencies have in designing corrective actions.
Spoiler alert: it’s a lot.
RTW Management, B-416786.2 (Comp. Gen. Dec. 17, 2018) involved a VA procurement for shuttle transportation services around its healthcare facilities in Maryland. As relevant here, the solicitation
Much like schoolyard basketball, bid protests feature a “no
harm, no foul” rule: unless an offeror can credibly allege that it was
prejudiced by a flawed evaluation, GAO won’t sustain a protest.
Establishing prejudice can be tricky, depending on the type
of evaluation at issue. Under a lowest-price technically acceptable award, a
protester generally must show that it was next-in-line for the award (that is, it
was technically acceptable and had the next-lowest price, after the awardee).
Bes
Civilian agencies may issue class deviations to quickly implement provisions of the 2018 National Defense Authorization Act increasing the micro-purchase threshold to $10,000 and the simplified acquisition threshold to $250,000.
In a memorandum for civilian agencies issued on February 16, the Civilian Agency Acquisition Council says that agencies may elect to adopt interim authority allowing their Contracting Officers to take advantage of these higher thresholds, even as the FAR Council goes th
When an incumbent contractor’s general manager got sick and had to quit, the contractor promptly found a replacement, which the agency approved. But there was still one problem: the incumbent had already proposed to use the same general manager for the next contract.
According to GAO, the agency was right to eliminate the contractor from the competition, even though the agency knew that the contractor had a new general manager and had, in fact, approved the replacement.
In Chenega Healthcare
The Department of Defense has issued a class deviation raising the micro-purchase threshold to $10,000, effective immediately.
The increase implements Section 821 of the 2019 National Defense Authorization Act, which was signed into law last month.
The memo explains that there are a few exceptions to the standard $10,000 threshold. The class deviation “does not change the micro-purchase threshold exceptions of $2,000 for acquisitions of construction subject to [the Davis-Bacon Act] and $2,5
Inflation. A word no one likes, but it is something that is currently impacting nearly every facet of our lives. Gas prices continue to rise, grocery costs are through the roof, and everyday living expenses are taking more hard-earned money from our country’s workers than ever before. However, consumers are not the only ones feeling the effects. Costs and expenses of running a business have increased dramatically as well, and those in the federal contracting world are no exception. Questions fro
Yesterday was a huge victory for SDVOSBs and VOSBs, as the Supreme Court unanimously ruled that the VA’s “rule of two” is mandatory, and applies to all VA procurements – including GSA Schedule orders.
The Kingdomware decision has drawn news coverage and discussion from across the country. This special Kingdomware edition of the SmallGovCon Week In Review collects some of the many articles on this important precedent. Enjoy!
SmallGovCon – Victory! SDVOSBs Win In Kingdomware Supreme Court De
Because of a recent cyber attack on the System for Award Management, the Federal Service Desk is requiring new contractors to submit a signed notarized letter in order to be registered. Later this month, existing registrants seeking to update or renew profiles will have to do the same.
This move comes after the General Services Administration acknowledged on March 22 that the inspector general is looking into a hack of the SAM.gov database, in which the hackers changed the banking information f
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