When GAO lacks jurisdiction to hear a protest over a task or delivery order, contractors have the right to complain to an ombudsman. Implementation of the ombudsman right, however, has been haphazard at best.
Last week, the DoD, GSA, and NASA–the entities comprising the FAR Council–proposed a rule to help alleviate this issue for IDIQ contracts.
Generally, 10 U.S.C. § 2304c and 41 U.S.C. § 4106 require each head of an agency that awards MATOC or delivery order contracts to appoint “a senior ag
I always knew my legal career would some day overlap with my love of terrible movies, before-they-were-stars trivia, and naval warfare. Today is that day.
When I saw that GAO had dismissed a “killer tomato” protest, several things came to mind. First, I thought, wait, are they talking about “Attack of the Killer Tomatoes“? Then I though, wait, wasn’t George Clooney in that—and didn’t he have a terrible 80’s mullet? Naturally, my curiosity got the best of me. I clicked.
The protest in questio
Last week, the SBA released a proposal to overhaul the HUBZone Program. The proposed rule will make major changes to almost all aspects of the HUBZone Program, and my colleague Ian Patterson is covering those changes in a series of two posts on SmallGovCon.
But while the proposed HUBZone Program rule changes will garner most of the headlines, the SBA also has used the proposed rule as an opportunity to clear up a few very common HUBZone Program misconceptions–such as the notion that so-called
The big government contracting news of the week was certainly the SBA’s proposed changes to the HUBZone regulations. But that wasn’t the only news. So let’s recap in this week’s edition of the SmallGovCon Week In Review!
Below, we’ll look at the DOD’s plan to audit registered SDVOSBs, an update on the CloudSmart strategy, and more.
Have a great weekend (and enjoy that leftover Halloween candy)!
DOD announces it will audit registered SDVOSB contractors for set-aside and sole-source contract
The SBA’s Historically Underutilized Business Zone (“HUBZone”) program intends well—by directing awards to contractors in regions that have been passed by economically, the federal government has tried to lift these areas up. But the HUBZone program has exacting regulations, which (ironically) have helped cause it to be an underutilized tool for contracting officers. This could soon change.
On October 31, the SBA published a proposed rule that, if adopted, would bring clarity to the HUBZone reg
Recently, the GAO issued a report discussing the VA’s Veterans First Program, made at the request of several members of Congress. The report focused on addressing ongoing implementation challenges regarding compliance with the Rule of Two following the Kingdomware decision.
One of the key challenges facing the VA is ensuring that SDVOSBs comply with the limitations on subcontracting. According to the GAO, the VA’s oversight needs improvement.
Many of our readers are familiar with the VA’s Ve
The SBA’s All Small Mentor-Protégé program offers a tremendous opportunity for participants to pursue set-aside contracts as joint venture partners. But misunderstandings and misconceptions about how SBA mentor-protégé joint ventures work are pervasive.
One very common misconception is that the SBA must pre-approve a mentor-protégé joint venture. In most cases, that’s not so. In a recent bid protest decision, even the GAO appeared a little confused, repeatedly mentioning SBA approval of a jo
I was unexpectedly out of the office Friday afternoon, so I didn’t get a chance to post our weekly look at the latest and greatest in government contracting. But better late than never! It’s time for a slightly-delayed version.
In last week’s edition of SmallGovCon Week In Review, we have articles about House representatives requesting investigation of the JEDI contract, a report that suggests the 8(a) program is full of ineligible participants (with commentary by Koprince Law LLC partner Mat
Generally, a size protest must be filed within five business days of when the protester receives notice of the identity of the awardee. But there are some nuances to this rule, such as whether a corrective action will extend the deadline and whether the clock starts running upon notice of the prospective awardee or the actual contract award date (Hint: notice of awardee).
But when does the 5-day protest period start to run in the context of a Blanket Purchase Agreement issued under a GSA Sched
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
Historically, Uncle Sam has struggled to meet its WOSB contracting goals. It wasn’t until 2015, in fact, that the government first met its WOSB contracting goal and, since then, has continued to struggle to meet it.
Thankfully, agencies are authorized to use set-asides and sole-source awards to increase WOSB participation. But as a recent GAO decision shows, an agency isn’t required to use either procedure.
At issue in EDWOSB Transformer Services, B-416683 (Oct. 15, 2018), was a solicitation
Multiple-award task-order contracts are becoming an increasingly common feature of government contracting, and many carry very high ceiling values. This places participation in MATOC awards at a premium.
Unsurprisingly, base MATOC awards are being protested with some frequency before GAO. In a recent decision, GAO provided a unique solution for sustaining MATOC protests without causing substantial disruptions: simply adding the successful protester to the pool.
Millennium Corp., Inc., B-4164
The 2018 Hurricane Season is now in full swing and the damage cost totals continue to rise for our friends on the East Coast. Disasters, like hurricanes, often arise quickly and without much warning, requiring quick responses from the Government and government contractors.
If your small business has been impacted by a natural disaster, or is interested in participating in the rebuilding and relief efforts that follow cataclysmic events by acquiring government contracts, here are five things you
As those familiar with government contracts are undoubtedly aware, ensuring a bid protest is timely filed with GAO is a paramount consideration. GAO takes a particularly dim view of protests not filed in accordance with its timeliness regulations, which can encourage parties to file a protest as quickly as possible. As GAO recently explained, however, in the context of extended debriefings, there is such a thing as filing too soon.
Celeris Systems, Inc., B-416890 (Comp. Gen. Oct. 11, 2018), i
Beyond set-aside procurements, the government bolsters small businesses by encouraging their participation in federally-funded research. Two key programs exist: the Small Business Innovation Research (SBIR) Program and the Small Business Technology Transfer (STTR) Program. Ultimately, the government hopes that participating small businesses will commercialize technologies developed with federal research dollars. While the two programs are similar, a key feature distinguishes them: the STTR Progr
When preparing a proposal for a Government solicitation, ensuring that your product or service meets all of the requirements specified by the Government’s solicitation is essential. Simple enough, right?
Not necessarily. One of the most frequent pitfalls in proposal preparation is assuming the Government understands your products and industry as well as you do, which may not be the case. A recent GAO bid protest demonstrates that a “well-written proposal” sometimes must include information tha
I had a great time last week at the National HUBZone Conference in Chantilly, Virginia. If you were there, please reach out to say hi!
In this week’s edition of SmallGovCon Week In Review, we’ll look at GSA’s new eBuy pilot program, insight into the SBA OIG’s 8(a) eligibility findings, new WHD-compliance tools from the U.S. Department of Labor, the impact of debriefings on bid protests, and much more.
Have a great weekend!
GSA announces it will run a year-long “eBuy Open GSA First” pilot p
When pursuing a bid protest before the Government Accountability Office, it is never a good idea to presume that you’ll get your attorneys’ fees paid by the agency.
If you are fortunate enough to recover attorneys’ fees , GAO’s general standard is to recommend paying the fees associated with all the protest grounds being pursued, whether or not they were meritorious. But although this is the general posture, it is not always the case.
For example, in CSRA LLC-Costs, B-415171.3 (Aug. 27, 2018
Ever since the Supreme Court’s Kingdomware decision was handed down in 2016, an important question has remained: who has priority at the VA for items on the AbilityOne List?
Yesterday, the Federal Circuit Court of Appeals provided the answer. The VA is required to prioritize service-disabled veteran-owned or veteran-owned small businesses when the Rule of Two is met, even when it buys items on the AbilityOne List.
The issue in PDS Consultants, Inc. v. United States was the conflict between t
The Air Force’s large NETCENTS-2 IDIQ vehicle did not require orders to be set-aside under the small business pool, except for orders valued between the micro-purchase threshold and simplified acquisition threshold.
In a recent decision, the GAO held that although the NETCENTS-2 contract in question says that Contracting Officers “should” perform a “rule of two” small business set-aside analysis for orders valued over the simplified acquisition threshold, it does not require that such an analys
In order to protest a procurement at GAO, the protester must be an “interested party.” An interested party is an “actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by the failure to award the contract.”
But does the identity of the protester have to be the same as the offeror under the procurement? GAO recently offered some guidance on that question.
In Intermarkets Global USA, LLC, B-415969.2,B-415969.4, (2018), Intermar
The Buy American Act generally requires construction contractors to use domestically-made materials, unless an exception applies. One important exception allows contractors to use foreign-produced materials when the cost of domestic material is six percent more expensive. To quality under this exception, however, a contractor must provide certain information outlined by the FAR with its bid.
But what if a contractor doesn’t provide every piece of required information? Is its proposal automatica
As the workweek comes to a close, our thoughts are with everyone who has been affected by Hurricane Michael.
In government contracts news, there was plenty happening this week. In the latest SmallGovCon Week in Review, three people have been indicted on charges relating to procurement fraud, a new study creates a “sweetheart index” to analyze whether political donations affect government contract awards, IBM is the second company to file a pre-award protest against the Pentagon’s cloud contrac
I am back in Kansas after a whirlwind trip to Washington, DC where I was part of a fantastic governing contracting event sponsored by Live Oak Bank and George Mason University. My panel focused on the legal and practical issues that companies face when they grow out of their small business size standards–an important topic that doesn’t get nearly as much attention as it should.
Many thanks to Jackie Robinson-Burnette, Erin Andrew, Tess Mackey, Jerry McGinn and everyone else who planned and co
As readers of this blog might know, the government contracts claims process is set by statute and includes a number of requirements, such as being certified if the dollar amount is over $100,000.
But a possibly lesser-known requirement is that, in order to be valid, a claim must request that the contracting officer issue a “final decision” on the claim. In a recent decision, the Armed Services Board of Contract Appeals opined on this requirement.
The ASBCA reviewed the claim requirement in H
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