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  1. Koprince Law LLC

    SmallGovCon Week in Review: August 13-17, 2018

    It’s mid-August, which means school is back in session! If you have little ones, we hope they had a nice first few days back. But before we head out to enjoy the weekend, let’s take a look at the SmallGovCon Week in Review. In this week’s edition, the Pentagon’s procurement process is criticized, contractors are reminded how to prep for a government shutdown (let’s hope one doesn’t happen), and more. Have a great weekend! Michael Griffin, Undersecretary of Defense for Research and Engineering, lashed out at the Pentagon’s oppressive procurement process. [Space News] How contractors can plan for a government shutdown. [Federal News Radio] GSA adds web page that lists Pentagon contractors that have received waivers for new contracts despite having been barred from government work because of fraud-related charges. [Bloomberg Government] Oracle protests the DoD’s decision to make JEDI a single source. [Federal News Radio] Kaspersky Lab argues that the ban on its products is unreasonable. [NextGov] View the full article
  2. The Department of Defense’s micro-purchase threshold will double, from $5,000 to $10,000, under the 2019 National Defense Authorization Act. The increase in the DoD micro-purchase threshold will put the DoD on par with civilian agencies after Congress increased the civilian micro-purchase threshold to $10,000 in last year’s NDAA. For several years, the standard micro-purchase threshold for both DoD and civilian agencies was $3,500. There are some very limited exceptions, such as in certain contingency operations, where significantly larger micro-purchases are permitted. In the 2017 NDAA, Congress increased the DoD’s micro-purchase threshold to $5,000. Civilian agencies did not get a boost that year. The DoD acted quickly to implement its new micro-purchase authority. The next year, Congress increased the civilian micro-purchase threshold all the way to $10,000. Now, it was DoD with the smaller micro-purchase threshold–only half that of its civilian counterparts. The 2019 NDAA restores parity in micro-purchases by increasing DoD’s micro-purchase threshold from $5,000 to $10,000. Section 821 of the 2019 NDAA simply strikes the portion of the United States Code establishing a $5,000 threshold and replaces it with a sentence reading “The micro-purchase threshold for the Department of Defense is $10,000.” President Trump signed the 2019 NDAA into law earlier this week. If the 2017 NDAA is any guide, the DoD will implement the new increase quickly, giving its Contracting Officers considerably more flexibility when it comes to lower-dollar acquisitions. View the full article
  3. We’re halfway through the government’s fourth quarter, and experienced contractors know what that means–lots of awards on the horizon. According to a fascinating new analysis from USASpending.gov, the fourth quarter spike in contract awards is quite real, and quite significant: the value of average weekly contract spending in the final week of the fiscal year is more than double that of the next-highest weekly average. The USASpending analysis looked at ten years’ worth of government contract spending data. Unsurprisingly, total contract spending was at its highest in the recovery from the Great Recession, when legislation pushed spending in FY 2010 to a record-high $560 billion. In FY 2017, the total spent was $510 billion. Regardless of overall spending levels, the analysts “observed seasonal trends in contract spending occurring within a single year.” They found that “spending tended to rise and fall on a monthly cadence, with roughly one small peak and one small drop per month.” But September was an exception to the trend of small peaks and drops. Each year over the decade, there was a massive spike in spending in September. The spike was most pronounced in the last week of September, where the government averaged $18 billion in contract spending. For comparison, the week with the next-highest average, in the spring, was $7.8 billion. The lowest-spending week fell over the winter holidays, where the government averaged a mere $340 million in awards. In other words, the Government awarded about 53 times more in contracts during the last week of September then it did over the winter holidays. Contractors have long known that the Government can be like many of us–it tends to wait until the last minute to do things. When it comes to contract awards, that means lots of action in the fourth quarter, especially in the last week of the fourth quarter. The fact that the Government spends a lot in the last week of September doesn’t come as much of a surprise, but the numbers are still rather striking. View the full article
  4. GAO has the authority to oversee bid protests involving many different government agencies. But its jurisdiction has limits, such as that it won’t consider protests of certain activities at the U.S. Mint. One other limitation is that, when a federal agency provides funding to a non-federal entity and that non-federal entity procures services through competitive award, GAO will not consider a protest of that award. A recent GAO decision confirmed the lack of jurisdiction in a situation involving a competitive procurement by a federally recognized tribe using FEMA grant money. In Kimo Constructors Inc., B-416162 (April 23, 2018), Santo Domingo Pueblo, a federally recognized tribe, received grant funding from FEMA to procure public work projects, including sediment removal. The RFP included a number of references to FEMA. The RFPs were identified as, for example, FEMA-4152-PW506, and the RFP noted that “The Santo Domingo Pueblo requests proposals with the intent of awarding a contract for FEMA Projects Group 1.” Kimo Constructors, Inc., a company headed by a veteran and Native American, submitted proposals but was not selected for award. Kimo protested to GAO. Kimo acknowledged that the tribe was a “non-federal entity” pursuant to 2 C.F.R part 200. Under this regulation dealing with federal “awards” (as opposed to contracts), a non-federal entity is defined as “a state, local government, Indian tribe, institution of higher education (IHE), or nonprofit organization that carries out a Federal award as a recipient or subrecipient.” Kimo argued that, even though Santo Domingo Pueblo was a non-federal entity, GAO should consider its dispute because GAO may consider “matters that are primarily of federal concern including allegations of violations of binding procurement standards, impropriety, waste, and abuse.” Because Santo Domingo Pueblo, as a federal reward recipient, must adhere to various federal regulations under 2 C.F.R part 200, Kimo alleged that this dispute is a matter of federal concern. GAO responded that its authority over bid protests stems from the Competition in Contracting Act. Under CICA, GAO can hear procurement protests questioning a “solicitation or other request by a federal agency,” not based on the mere use of federal funds. Under CICA, a federal agency is, with some exceptions, “an executive agency or an establishment in the legislative or judicial branch of the Government.” Because Santo Domingo Pueblo is not a federal agency, and it issued the RFPs, GAO did not have jurisdiction. GAO dismissed the protest. This decision reminds us that, even when a contractor is competing for an award of funds from a federal agency that mentions the federal agency in the solicitation, what matters for GAO jurisdictional purposes is the identity of the entity issuing the solicitation. If it is not a federal agency, GAO will not hear the dispute. View the full article
  5. Despite a longstanding and very common misconception, the VA’s SDVOSB verification requirement doesn’t apply to non-VA SDVOSB contracts. As the SBA Office of Hearings and Appeals recently reiterated, it was “simply not correct” to believe that a company was required to be verified in VetBiz to be awarded a non-VA SDVOSB contract. Confusingly, the federal government currently runs two SDVOSB programs: one under the VA’s rules and the other under the SBA’s. The SBA’s program (which is the “original” SDVOSB set-aside program) is authorized by the Small Business Act, which is codified in Title 15 of the U.S. Code and implemented by the SBA in its regulations in Title 13 of the Code of Federal Regulations. The VA’s separate program is codified in Title 38 of the U.S. Code and implemented by the VA in Title 38 of the Code of Federal Regulations. There are some important differences between the two programs. For example, the VA requires that the service-disabled veteran holding the highest officer position manage the company on a full-time basis; the SBA’s regulations do not. Following a 2013 Court of Federal Claims decision, the VA allows certain restrictions of a veteran’s ability to transfer his or her ownership, but that decision doesn’t necessarily apply to the SBA, which has held that “unconditional means unconditional,” as applied to transfer restrictions. Following a change in the 2017 National Defense Authorization Act, many of the substantive differences between the two programs are going to be resolved. But one important difference will remain for the indefinite future: the VA’s program, as implemented in VAAR 852.219-11, requires that a company be formally verified to be awarded a VA SDVOSB contract. The SBA’s program, implemented in FAR 52.219-27, allows for self-certification of SDVOSB status. That brings us to OHA’s recent decision in XtremeConcepts Systems, SBA No. VET-273 (2018). The XtremeConcepts case involved a Navy solicitation for program management support services. The solicitation was issued as a small business set-aside, but provided that certain task order under the resulting IDIQ contract could be restricted to SDVOSBs. After evaluating competitive proposals, the Navy announced that award would be made to several companies. XtremeConcepts, a VA-verified SDVOSB, filed a protest against three of the awardees, including Ironclad Technology Services, LLC. XtremeConcepts contended that Ironclad and the two other companies were not SDVOSBs because they were not verified in the VA’s VetBiz database. The SBA’s Office of Government Contracting noted that Ironclad had self-certified as an SDVOSB in SAM, and wrote that “a firm is not required to be registered in VetBiz” to pursue a non-VA SDVOSB contract.” The SBA dismissed the protest, and XtremeConcepts appealed to OHA. OHA wrote that “only firms competing for VA contracts must be registered in the [VetBiz] database.” For non-VA procurements, “registration in the database, or receipt of any VA certification, is not required.” Here, “VA did not conduct the instant procurement, so [XtremeConcept’s] protest in effect offered no reason at all to believe Ironclad is not an eligible [SDVOSB].” XtremeConcept “simply is not correct” to believe the “false premise Ironclad was required to have obtained VA certification in order to participate in the subject procurement.” OHA denied the appeal. For long-time SmallGovCon readers, this post may seem a little familiar. I wrote about a similar OHA decision way back in 2012, and have been highlighting the “two SDVOSB programs” ever since. But despite my best efforts, this misunderstanding remains very, very common. I doubt a week passes when I don’t speak to someone who believes that VA verification is required for non-VA SDVOSB contracts. As the XtremeConcepts Systems case reiterates, it just isn’t. View the full article
  6. Koprince Law LLC

    SmallGovCon Week in Review: August 6-10, 2018

    Happy Friday, everybody! It’s that time of year: federal contractors are rushing to submit bids, with the hope of awards before the end of the fiscal year. So we hope that you’re all gearing up for a relaxing weekend. Let’s get the weekend started off right with the SmallGovCon Week in Review. This week’s edition discusses the rush of contract awards at the end of the fiscal year, DOL’s renewed focus on disability hiring practices, federal contractors behaving badly, and more. Have a great weekend! As we near the end of the fiscal year, analysts believe the federal market will see a monumental effort among procurement officials to spend as much on contracts as possible. [NextGov] Focused reviews of contractors to ensure they are attempting to meet 7 percent employment disability hiring to begin in early 2019. [Bloomberg BNA] Other Transaction Authorities (OTAs) have recently surged in use, but also criticized. [Washington Technology] A recent study has shown that DoD waivers are allowing banned contractors to obtain defense contracts. [Bloomberg Government] GAO audit reveals NNSA field offices are not using a key Energy Department IT system and warns could cost NNSA millions. [FCW] Two marine maintenance companies will pay the government more than $2.8 million to settle claims they improperly billed the Navy for rental equipment. [U.S. Department of Justice] Small business advocate wins agreement to have his legal fees paid for litigation forcing the government to release confidential contracting data. [Government Executive] A contractor’s president and CEO was recently sentenced to serve 41 months in federal prison for his role in a wire fraud conspiracy. [U.S. Department of Justice] View the full article
  7. Koprince Law LLC

    Thank You, Navy Gold Coast!

    I am back in the Midwest after a great trip to San Diego for the 2018 Department of the Navy Gold Coast Small Business Procurement Event. I was part of a PTAC-sponsored legal panel on small business issues, and enjoyed speaking with contractors, government representatives, and others on the trade show floor. Thank you very much to the San Diego chapter of the National Defense Industrial Association for sponsoring this fantastic event and inviting me to speak. And a big thank you to the many contractors who attended the session and asked great questions. If you haven’t had the pleasure of attending Gold Coast, I strongly encourage you to put it on your radar screen for 2019. It’s hard to beat a great conference in a great city. As for me, I’ll be hitting the road again soon: I will be in Norman, Oklahoma on August 21 and 22 for the annual Indian Country Business Summit. Hope to see you there! View the full article
  8. Koprince Law LLC

    GAO Denies Protest Challenging SAM Registration

    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 only has to be updated annually. But as FAR 4.1201(b)(1) instructs, an offeror’s SAM profile has to be updated as necessary to ensure that it is “kept current, accurate, and complete.” What happens if a prospective awardee fails to update its SAM profile? Can a disappointed bidder challenge the basis of the award? The answer, according to GAO, is “it depends.” GAO recently considered the question of an outdated SAM profile in Cyber Protection Technologies, LLC, B-416297.2 et al. (July 30, 2018). That protest involved an Air Force procurement for cyber realization, integration, and operational support services. After conducting a best value tradeoff, the Air Force named Cyber Systems & Services Solutions (“CS3”)—a joint venture—as the awardee. Cyber Protection Technologies protested the award determination. According to Cyber Protection, CS3 should have been found ineligible for award because its SAM profile did not disclose its status as a joint venture or otherwise identify its corporate parents. Because joint ventures are required to disclose this information in their SAM registrations, Cyber Protection argued that this deficient registration should have kept CS3 from being named the awardee. Analyzing this argument, GAO noted that it “has generally recognized that minor informalities related to SAM (or its predecessor systems) registration generally do not undermine the validity of the award and are waivable by the agency without prejudice to the other offerors.” GAO will often not find competitive prejudice from an awardee’s deficient SAM registration because the registration status does not implicate the terms of its proposal “and there is nothing to suggest that another offeror would have altered its proposal to its competitive advantage in response to a relaxed SAM registration requirement.” Under this standard, GAO denied Cyber Protection’s protest. Doing so, it noted that Cyber Protection did not establish any prejudice from CS3’s deficient registration: Cyber Protection “has not, for example, demonstrated that CS3’s SAM registration provided the intervenor with any competitive advantage, or explained how CPT would have amended its proposal had it known that the agency would not strictly enforce the SAM registration requirements.” In a nutshell, because Cyber Protection didn’t show any prejudice from CS3’s deficient registration, its protest was denied. As Cyber Protection demonstrates, it is difficult for a protester to argue that a SAM registration problem should upend an evaluation decision. But don’t read GAO’s decision as giving contractors a free pass at having an outdated SAM profile—offerors are still required to keep their SAM profile current, accurate and complete. If a profile isn’t updated, a contracting officer might rely on the outdated profile to find an offeror ineligible for award. In my opinion, the best practice is to simply do what the FAR requires: keep your SAM profile “current, accurate, and complete.” View the full article
  9. Happy Friday! We hope your August is off to a great start. Before we head out for the weekend, let’s review the week that was in government contracting. In this week’s edition of SmallGovCon Week In Review, we’ll consider federal contract procurement reforms, USDA modernization efforts, and more. Have a great weekend! Federal acquisition reforms offer new opportunities for small businesses. [National Defense] Fiscal Year 2019 NDAA provisions continue to reform the federal procurement process. [Federal News Radio] Provisions in this year’s Defense Authorization Bill could make an impact on changes to federal procurement. [Federal News Radio] GSA moves forward with pilot SBIR program, encouraging research and development between small businesses and government contractors. [Federal Times] GAO suggests DoD improve its information sharing system in order to more quickly determine whether products are commercial and reasonably priced. [GAO] USDA seeks to further IT updates by issuing RFQs for phase II of its IT Modernization Centers of Excellence initiative. [FedScoop] Federal Acquisition Supply Chain Security Act of 2018 seeks to boost IoT security through the procurement process. [AEIdeas] View the full article
  10. A small business “can have no more than two [SBA] mentors over the life of the business,” according to the SBA’s All Small Mentor-Protege Program website. The SBA’s clarification of the lifetime limit provides important guidance for proteges, especially because the SBA’s mentor-protege regulations aren’t exactly crystal clear when it comes to this point. The SBA’s limit ensures that small businesses don’t become permanent proteges–but is “two per lifetime” the best way to carry out that policy? The SBA’s All Small Mentor-Protege Program regulations are rather ambiguous when it comes to the number of mentors a protege may have in its lifetime. Here’s what the regulations say: (2) A protégé firm may generally have only one mentor at a time. SBA may approve a second mentor for a particular protégé firm where the second relationship will not compete or otherwise conflict with the assistance set forth in the first mentor-protégé relationship and: (i) The second relationship pertains to an unrelated NAICS code; or (ii) The protégé firm is seeking to acquire a specific expertise that the first mentor does not possess. From this text, one might believe that the only restriction is on having more than one mentor “at a time,” and that the SBA permits a small business to have an indefinite number of mentors in the small business’s lifetime. Instead, the SBA has consistently interpreted its regulations as permitting only two mentors over the protege’s lifetime, regardless of whether those mentor-protege agreements run concurrently or consecutively. The SBA’s All Small Mentor-Protege Program website now informs readers of the lifetime limit: A protégé may have two mentors at the same time — as long at those relationships don’t conflict or compete with each other. However, a protégé can have no more than two mentors over the life of the businesses. No doubt, that’s a lot clearer than the regulations when it comes to this important restriction. I understand SBA’s interest in limiting the amount of time a small business can spend as a protege. The purpose of the All Small Mentor-Protege Program is to enhance the capabilities of protege firms through business development assistance. Allowing a company to spend an indefinite amount of time as a protege could undermine this purpose by encouraging companies to become permanent proteges, offering their size and socioeconomic statuses to benefit a revolving cast of mentors. But is the “two per lifetime” limit the best way to achieve this goal? I don’t think so. A mentor-protege relationship can fail for any number of reasons–many of which are beyond the protege’s sole control. The mentor might fail to provide the assistance it promised. The companies’ leadership teams might have personality differences. The companies’ respective lines of business may diverge over time. The mentor’s leadership may change its mind about participating in the All Small Mentor-Protege Program. And so on. The SBA’s regulations and template All Small Mentor-Protege agreement permit each party–mentor and protege–to terminate a mentor-protege agreement, with or without cause, upon 30 days’ notice to the other party and the SBA. If the mentor wants out of the relationship, it can get out. Easily. Now think how these policies, combined with the lifetime limit, could negatively impact a protege. Let’s say a small business–“Protege A”–enters a mentor-protege agreement with a large company, “Mentor X.” Four months into the agreement, Mentor X’s CEO unexpectedly dies, and a new CEO is appointed. The new CEO wants to move Mentor X in a different direction, focusing on commercial contracts instead of federal government business. So, she notifies Protege A and the SBA that Mentor X is terminating the mentor-protege agreement. In this scenario, Protege A is now down to one potential mentor–even though Protege A received only four months of mentoring from Mentor X. Because the SBA’s regulations allow a single mentor-protege agreement to last up to six years, Protege A, through no fault of its own, has lost up to 68 months of mentoring. Situations like Protege A’s aren’t limited to unusual events like the death of a CEO. Mentor X could have terminated the agreement for any reason, or no reason at all, leaving Protege A with very little to show for one of its two lifetime mentor-protege opportunities. In my view, there’s a better way to meet the SBA’s policy goal while preventing unfair results like these. Instead of limiting a protege by the number of mentors, the SBA should limit a protege by the number of years spent in as a protege in the All Small Mentor-Protege Program. As I mentioned above, the SBA allows each mentor-protege agreement to last up to six years, so long as everyone (mentor, protege, and SBA) agrees. And each protege is entitled to two mentors. Hence, a protege can receive up to 12 years of mentoring under the All Small Mentor-Protege Program. So why not make that the limit? Each protege could participate in the All Small Mentor-Protege Program for up to 12 years, but those 12 years could be divided in different ways. Some proteges might have two mentors for six years each. Others, three mentors for four years each. And so on. Limiting participation by years, instead of by number of mentors, would solve the inherent unfairness of situations like Protege A’s, while still achieving SBA’s goal of ensuring that small businesses don’t serve as proteges indefinitely. SBA, if you’re reading (and I know a few of you SBA types do read SmallGovCon–it’s okay to admit it!), I hope you give it some thought. In the meantime, though, proteges and prospective proteges ought to take note of the lifetime limit. The SBA’s approval of your first mentor-protege agreement effectively uses up 50% of your lifetime opportunity to participate in the All Small Mentor-Protege Program, no matter how long the mentor-protege agreement lasts. Choose your mentor wisely. And cross your fingers. View the full article
  11. Koprince Law LLC

    SmallGovCon Week in Review: July 23-27, 2018

    Big news broke this week as the Department of Defense released its massive (and somewhat controversial) JEDI cloud computing solicitation. But there were plenty of other developments affecting government contractors, too. Let’s take a look at some of these developments, in this week’s SmallGovCon Week in Review. This edition highlights opportunities for small businesses under OASIS, potential changes to the acquisition process, and more. Have a great weekend! Federal contracting method, OASIS, could present an increase in opportunities for small businesses to land government contracts. [The Telegraph] NASA’s SBIR and STTR programs award 43 new small innovation and technology research proposals [CISION PR Newswire] National Defense Authorization Act seeks to streamline Pentagon contract acquisition process. [Government Executive] Acquisition Policy Survey shows improvements to the federal acquisition process, despite recurring challenges. [Nextgov] DoD notes 51% of its contract dollars in fiscal year 2017 went toward goods verses services. [Clearance Jobs] DoD turns to OTAs to help quicken the pace for cyber-technology contracts. [Fifth Domain] DoD, GSA, and NASA seek input from government contractors to assess the potential benefits of voluntary feedback surveys. [Federal Register] GSA looks to move toward performance based contracting. [Federal News Radio] Pentagon integrates the Coast Guard and increases its Health Records contract ceiling $1 billion. [Nextgov] View the full article
  12. A contractor has many requirements when submitting a claim against the federal government. But the government must also abide by some of the same rules. Case in point, a recent Civilian Board of Contractor Appeals case affirms that the government is bound by the same six-year time limit to file a claim against a contractor that a contractor has to file a claim against the government. The case is JBG/Federal Center, L.L.C. v. GSA, 18-1 B.C.A. ¶ 37019 (2018). To understand how the government became time-barred on its claim against the JBG, a little background is necessary. The dispute arose out of a lease under which JBG rented out space to GSA to house the Department of Transportation headquarters. The property included the building and a parking garage. As a part of the lease, JBG would provide 145 parking spaces to DOT. DOT was also permitted to use an additional 1060 spaces on the property for its employees, pursuant to a follow-on parking management services agreement (PMSA) between JBG and DOT. GSA would reimburse JBG for all of the real estate taxes on the property. The lease language provided that GSA would reimburse JBG for real estate taxes “applicable to the Leased Premises.” It also stated that GSA would not reimburse for real estate taxes on any “parking areas or structures, except for the 145 parking spaces directly leased by the Government.” The fixed-price PMSA contained the Commercial Items clause, FAR 52.212-4, which provides in part that “[t]he contract price includes all applicable Federal, State, and local taxes and duties.” This full reimbursement of property taxes by GSA to JSB went on for eight years. In 2015, GSA began to withhold a portion of the tax reimbursement because it realized a provision in the lease designated GSA was only responsible for property taxes assessed against the 145 parking spaces in the lease, not the remaining parking spaces DOT used as part of the PMSA. JBG did not appreciate this change of course, and made a claim. In response, GSA demanded repayment of the excess property taxes for which it had been reimbursing JBG for all those years. In March 2016, JBG submitted a claim to GSA asserting its entitlement to reimbursement of 100% of the real estate taxes and other taxes since the inception of the lease. In September 2016, GSA denied JBG’s claim and demanded $3,506,456.03 from JBG for the overpayment of taxes. JBG then appealed this decision to the CBCA. In February 2017, JBG submitted a claim to DOT asserting that DOT should pay the amounts demanded by GSA because, if GSA “overpaid for real estate taxes under the lease, JBG is entitled to receive those same amounts under the PMSA because of DOT’s breach of the duty of good faith and fair dealing and superior knowledge in the negotiation of the PMSA.” DOT denied this claim, stating that it was JBG’s error, not DOT’s error, and JBG appealed this denial to the CBCA as well. CBCA interpreted the lease to mean that “GSA would reimburse JBG for the real estate taxes assessed against the 145 spaces, but not for any other real estate taxes assessed on the parking garage.” CBCA went on to note that “t is the parties’ failure or decision not to include the cost of the real estate taxes in the PMSA price, not the execution of the agreement itself, that limits JBG’s recoupment of these taxes.” However, important for purposes of this blog post, the CBCA went on to consider JBG’s argument that GSA’s claim for reimbursement is barred by the statute of limitations because it arose in 2007. Under the Contracts Disputes Act (CDA), “[e]ach claim by a contractor against the Federal Government relating to a contract . . . shall be submitted within 6 years after accrual of the claim.” 41 U.S.C. § 7103(a)(4) (2012). These “time limits are equally applicable to claims by the Government against a contractor.” In order to determine when the six-year period is up, the CBCA will look at the date the claim accrued– that is, “the date when all events that fix the alleged liability on either the Government or the contractor and permit assertion of the claim, were known or should have been known.” Applying this rule, GSA’s claim accrued in 2007, when it began reimbursing JBG for 100% of the real estate taxes for the property, in spite of the lease provision that property tax reimbursements should only cover the 145 parking spaces mentioned in the lease. CBCA held that GSA knew or should have known it was paying for more than its required share of the real estate taxes at that time, because JBG sent over the property tax bills for the entire property, including the whole parking garage, not just the 145 spaces. There is one additional wrinkle on the six-year claim limit in this case. GSA did not have just one claim for overpayment of taxes, stretching from 2007 up to when the error was discovered. Rather, each overpayment was a new claim for purposes of the six-year limit, because it was “susceptible to being broken down into a series of independent and distinct events or wrongs, each having its own associated damages.” The end result of the six-year limitation? GSA could not claim for overpaid amounts before September 2010, but it could claim for amounts after that date, because GSA had first demanded repayment, and thereby made a claim against JSB, in September 2016. This CBCA decision highlights that the government is sometimes bound by the same rules as any contractor. In particular, the government and contractor must both abide by the same six-year statute of limitations for asserting a claim. View the full article
  13. Koprince Law LLC

    Reminder: No NAICS Code Appeals of RFIs

    NAICS code appeals can be powerful tools. A change in a solicitation’s NAICS code–and corresponding change in the small business size standard–can significantly broaden or narrow the competitive playing field. And statistically speaking, NAICS code appeals are often successful. But NAICS code appeals are subject to strict rules. As a recent SBA Office of Hearings and Appeals case confirms, NAICS code appeals cannot be lodged against presolicitations. OHA’s decision in NAICS Appeal of Willowheart, LLC, SBA No. NAICS-5938 (2018) involved a National Geospatial-Intelligence Agency RFI for a forthcoming procurement. The RFI indicated that the pending solicitation would be assigned NAICS code 561210 (Facilities Support Services). Willowheart, LLC filed a NAICS code appeal with the SBA Office of Hearings and Appeals. Willowheart argued that the appropriate NAICS code was 561612 (Security Guards and Patrol Services). OHA wrote that “[a] presolicitation notice,” such as an RFI, “does not constitute a NAICS code designation within the meaning of” the SBA’s NAICS code appeal regulations. This is because “mere publication of a presolicitation notice does not guarantee that the procuring agency will issue a solicitation or that it will assign the NAICS code anticipated in the presolicitation notice.” Accordingly, “a NAICS code appeal based on a presolicitation notice is premature, and must be dismissed.” OHA dismissed Willowheart’s NAICS code appeal. Just because it is too early to file a NAICS code appeal during the presolicitation stage, that doesn’t mean a prospective offeror must wait until the solicitation is issued to take action. An RFI or other presolicitation notice offers an opportunity for a prospective offeror to lobby the Contracting Officer to change the NAICS code. My colleagues and I have been part of many of these lobbying efforts–and sometimes, those efforts work. But if the Contracting Officer refuses to budge, a formal NAICS code appeal can be filed once the solicitation is issued. View the full article
  14. I am excited to announce the publication of SBA Small Business Size and Affiliation Rules, the second volume in our series of new government contracting guides called “Koprince Law LLC GovCon Handbooks.” Written in plain English and packed with easy-to-understand examples, this GovCon Handbook demystifies the SBA’s rules regarding small business status for government contracts. Inside SBA Small Business Size and Affiliation Rules, you’ll find detailed chapters on: SBA Size Rules 101 Calculating Small Business Size The Affiliation Problem General Affiliation Ostensible Subcontractor Affiliation SBA Small Business Size and Affiliation Rules is available on Amazon for only $9.99 in paperback or $6.99 on Kindle. If you’re an active Koprince Law LLC client in good standing, please email us and we’ll send you a free copy. On behalf of my co-author Matthew Schoonover, and all of my colleagues here at Koprince Law, I hope you enjoy SBA Small Business Size and Affiliation Rules. And stay tuned–we’ll be publishing more GovCon Handbooks on other important government contracting topics in the months to come. View the full article
  15. Koprince Law LLC

    SmallGovCon Week in Review: July 16-20, 2018

    Happy Friday! Before we sign out for the weekend, let’s take a look at the government contracting highlights for the past week. In this edition of SmallGovCon Week in Review, we’ll check in with our friend Guy Timberlake for the latest on GSA FSS spending, consider GAO’s recommendations for DOD award time frames, look at NASA’s increases in small business spending, and more. Have a great weekend! Spending on GSA Federal Supply Schedules declines. [GovConChannel] Study by the Federal Treasury’s Data Lab finds that 6-8 percent of federal contract spending happens in the final week of the fiscal year. [Nextgov] DoD increases spending on OTA contracts in light of easing federal regulations. [Federal News Radio] NASA continues to increase its contracting with small businesses. [WOUB Digital] GAO recommends DoD begin developing a strategy for assessing contract award time frames. [GAO] Richard C. Davis, founder of Second Chance Body Armor, agrees to resolve False Claims Act regarding defective bullet proof vests. [US Department of Justice] Federal spending on advertising contract awards increases for small disadvantaged businesses, including WOSBs. [GAO] Congressman Will Hurd helps to explain the importance of federal IT procurement. [Nextgov] Former government contracting officer and owner of TCC Services, Unlimited, LLC plead guilty for bribery and conspiracy regarding government contracts. [US Department of Justice] OFPP clarifies the exemption for contracts or subcontracts for the acquisition of commercial items. [Federal Register] Study by PSC and Grant Thornton Public Sector suggests positive outlook for federal acquisition. [Professional Services Council] GAO study finds reverse auctions may save the federal government money on bidding process. [GAO] View the full article
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