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  1. We’re getting into the Halloween spirit early in these parts, including Lawrence’s annual Zombie Walk that took place last night. Government contractors should not feel left out, as the CDC has its own Zombie Preparedness emergency preparedness campaign that you can check out. We’ve also scared up some interesting (or potentially frightening) stories from the government contracting world this week. This week, look for updates about the National Background Investigations Bureau being transferred to Department of Defense, possibilities of the Section 8461 e-commerce effort; and new technology for FOIA reports. GSA’s Section 846 CPI: Accessing the possibilities. [FederalNewsNetwork] Tackling Both Sides of the Government Innovation Challenge. [GovExec] Putting IP Fears to Rest. [NextGov] New tool to help federal agencies complete annual FOIA reports. [Federal NewsNetwork] Florida Contractor Pleads Guilty to Procurement Fraud. [Justice.gov] Navy putting emphasis on faster, more productive SBIRs. [FederalNewsNetwork] Defense OIG to investigate Pentagon’s use of PFAS chemicals. [FederalNewsNetwork] View the full article
  2. Small businesses often search for ways to increase their competitiveness for federal government contracts. A sometimes overlooked method is to try to better define the procurement’s requirements in a manner that improves a firm’s chances of being awarded the contract, through a pre-award bid protest. Here are five things you should know about pre-award protests: 1. What is a pre-award protest? A pre-award protest is a protest that challenges the terms of a specific solicitation. For example, a protester might argue that the solicitation is improperly restricted (or not) for a particular socioeconomic designation, or that the technical requirements unfairly tilt the award to one offeror. The protester might also allege that the solicitation violates an applicable law or regulation, or that the agency has otherwise failed to consider an important aspect of the procurement. 2. How does a pre-award protest differ from a post-award protest? While a pre-award protest challenges the terms of a solicitation, a post-award protest challenges the agency’s evaluation of proposals. Here, it’s important to note that the terminology for these two types of protests is a bit imprecise. That is, it’s best to think of pre-award protests as instead being pre-bid protests (as we’ll see in item 4). Post-award protests might instead be thought of as post-evaluation protests. 3. Where can a pre-award protest be filed? A pre-award protest can be filed with the agency itself, GAO, or the Court of Federal Claims. Frankly, given the cost associated with such protests, it’s not often that pre-award protests are filed at the Court of Federal Claims. In my experience, pre-award protests tend to be filed with the agency or (more commonly) GAO. 4. What is the deadline to file a pre-award protest? No matter where a pre-award protest is filed, the deadline is essentially the same: pre-award protests must be filed before the proposal submission deadline. Importantly, arguments challenging defects in a solicitation are generally waived if not raised as part of a pre-award protest; in other words, once the deadline for proposals passes, the terms of the solicitation are “locked in,” and a disappointed offeror can’t later complain that those terms were unfair or unreasonable. So, if you believe that a solicitation’s terms might be unreasonable or its requirements unfair, it’s best to submit a pre-award protest before the deadline to submit proposals passes. 5. Why should a company consider filing a pre-award protest? A pre-award protest can be a useful tool for small business federal contractors to enhance their competitiveness under a particular solicitation. If successful, a pre-award protest might help reshape the foundation of that procurement to make it more likely that a business will win an award. Consider, for example, if an agency sets a procurement aside for small businesses based on incomplete market research. If a large business were to successfully protest that set-aside designation through a pre-award protest, it could lead the agency to reopening the procurement on an unrestricted basis. Thus, that large business might be eligible for a procurement it was once precluded from bidding on. Or consider if an agency were to release a solicitation for a piece of fire-fighting equipment but included an unreasonable limitation on the size of tank for the fire suppressant. If an otherwise eligible offeror might be excluded from competition based on their equipment’s larger tank size, that offeror might challenge the rationale for the size limitation. If successful, the offeror could be allowed to bid on the job. These are only two examples. Most, if not every, procurement could have terms that are vague, inconsistent, unreasonable, or downright unfair. Depending on the impact of those provisions, it could make sense to file a pre-award protest to help shape the competitive landscape. *** There you have it: a brief primer on pre-award bid protests, and their impact on the competitive landscape. If you have any questions, please give me a call. As with all our posts on SmallGovCon, this post is intended to be educational; this post (nor any of our others) should not be considered legal advice, and reading it does not create an attorney-client relationship with the author. View the full article
  3. NASA is going back to the moon and is looking for private companies to help get it there. In 2018, NASA awarded nine IDIQ Commercial Lunar Payload Service contracts for commercial payload delivery services between the Earth and the lunar surface. This is a sea-change for NASA as “no [United States] commercial company has ever attempted to launch, transit, and land” on the moon. Prior to award, NASA asked for task order proposals to include a description of risks and mitigation efforts. You might be asking–how can NASA effectively evaluate risk for something that has not been done before? A protester asked the same question, but GAO agreed with NASA’s risk analysis on the project and found the protester’s questions to be mere disagreement with the evaluation. The risk analysis at issue was discussed in Deep Space Systems, Inc., B-417714 (Comp. Gen. Sept. 26, 2019). The Task Order at issue was for “all activities necessary to safely integrate, transport, and operate NASA payloads using contractor provided assets, including launch vehicles, lunar landers, and associated resources.” Challenging a proposed launch vehicle and lunar lander solution is a highly technical effort. In this post, we’ll highlight a subset of the legal issues and provide links for some of the more technical aspects, if you are interested in more information. Back to the case at hand. NASA made a best value award to Intuitive Machines, LLC following a technical review of likelihood of successful payload delivery. In other words, NASA viewed Intuitive Machines as one of the less risky payload delivery proposals. Each offeror was “required to define the key elements associated with their mission and to describe top risks and the related mitigation plans necessary to meet the proposed landing date.” NASA would then assign each proposal a confidence rating based “on offerors’ assessments of their own risk, as well as the steps the offerors would take to mitigate such risk.” Interestingly, NASA admitted that “all proposed approaches received . . . are unproven at this point in time.” Meaning, NASA was supposed to measure risks of unproven technologies and procedures. This leads to the question of how NASA would evaluate risks of something that had never been done before? Turns out that NASA assessed risk based on the individual components of the payload delivery system and then aggregated these components into a cumulative score. GAO’s take on this? Deep Space Systems provided nothing to overturn NASA’s assigned risk scores, so the agency’s evaluation stands. The first challenged risk evaluation was of Intuitive Machines’ “plan to use a liquid oxygen and liquid methane (LOX/methane) propulsion approach.” NASA’s evaluation stated that using LOX/methane would “advance the state of the art” but was “unproven” for a full mission. In response, “NASA asserts that LOX/methane propulsion is a mature technology suitable for present use on space missions.” It is not only considered viable for an Artemis moon lander, but a similar LOX/methane propulsion system was used on NASA’s Morpheus lander. In fact, many from the Morpheus team now work for Intuitive Machines. Of note, the Morpheus lander only went through earth-based testing and was never tested in space; while Artemis is still a work in progress. NASA’s only caveat was that “using LOX Methane for a full mission is unproven[.]” In other words, the LOX/methane approach has been proven in theory and in testing, just not in a full orbital, lunar, or other, mission. NASA then stated that Intuitive Machines’ risk score reflects this fact. The second challenged risk evaluation, which is an underlying component of the first, is that Intuitive Machines allegedly did not “adequately explain how the firm would manage all aspects of thermal and cryogenic performance” which may result in “excessive fuel burn off” and increase risk of the mission. In response to this second challenged evaluation, “NASA disputes the severity of the risk posed by boil-off and [Intuitive Machines’] need to perform cryo-fluid management.” NASA countered that “maintaining sufficiently cold temepratures for LOX and methane storage to prevent boil-off is relatively straightforward” and just required proper insulation of the liquids. In other words, cryo-fluid management was a “manageable risk[.]” While NASA “noted that [Intuitive Machines’] proposal could have benefited from a more thorough discussion of how it would perform” liquid insulation over the mission, “the ease with which this risk could be mitigated did not warrant a lower confidence rating.” Deep Space Systems’ retorts to NASA’s stances were summarily dismissed as mere disagreement by GAO. GAO repeated its common refrain that “disagreement with [NASA]’s judgment, without more, does not render the evaluation reasonable.” A protest must establish that the evaluation was unreasonable and that it was outside the evaluation factors found in the solicitation. In support of its LOX/methane challenge, Deep Space Systems compared Intuitive Machines’ approach to most commercial space vehicles which “rely on a single fuel tank . . . that does not require an active ignition process[.]” This was not enough to overcome NASA’s evidence from its Morpheus testing and Artemis planning. In support of its fuel burn off challenge, Deep Space Systems’ argument that the “liquids are difficult to store and to transport” only showcased risks of which NASA was already aware and said were easily mitigable. In both the LOX/methane and fuel burn off aspects, GAO found that NASA reasonably explained its ratings approaches. Without sound evidence to show NASA’s years of LOX/methane testing and already recognized concerns were unreasonable, GAO found that Deep Space Systems’ position was just a “disagreement with NASA’s judgment . . . which is insufficient for [GAO] to sustain the protest.” Notably, GAO did not opine on NASA’s ability to holistically evaluate proposals for a project that is “unproven at this point in time.” NASA evaluated the risk of each component of Intuitive Machines’ proposal and GAO found this evaluation approach reasonable. Even though this type of project has never been performed, Deep Space Systems was unable to show NASA’s evaluation methodology was unreasonable, and GAO dismissed the protest arguments as mere disagreement with NASA’s evaluations. Disagreeing with an agency, with nothing more, will almost always end up with GAO siding with the agency. Let us know if you need help bolstering your arguments, whether the contract is to send supplies to the moon or just across town. View the full article
  4. With the ongoing rise of technology in the workplace, safe email practices are increasingly important. In particular, many in the cybersecurity community are concerned about email attachments and spam. Even so, in Information Unlimited, Inc., B-415716.40 (Oct. 4, 2019), GAO warned protesters not to delay in opening email attachments provided by the government. Information Unlimited Inc. (IUI) submitted a bid on an RFP for the Air Force’s Small Business Enterprise Application Solutions (SBEAS) IDIQ in 2018. Generally, the SBEAS IDIQ is dedicated to procuring IT services. After preliminary review of the proposals it received, the Air Force emailed IUI on December 21, 2018. Attached to the email was a notification, informing IUI that its proposal had been removed from the competition because it was deemed technically unacceptable. The attached notice also stated that the company could request a debriefing, as required under FAR Part 15. As we have discussed before on this blog, though debriefing under FAR Part 15 is mandatory, it is not automatic, and bidders must act quickly to ensure that they receive a debriefing. Here, the Air Force attachment informed IUI that it must request a debriefing in writing within three days of receiving the email, as explained in FAR 15.506. IUI read the notice attachment and did as required and requested its debriefing on the day it received the email. In response, the Air Force provided IUI’s debriefing as two attachments to another email less than three hours later. Unfortunately, the attachments were left unopened. A few months later, in February 2019, IUI informed the Air Force that it hadn’t yet received the debriefing and asked when the debriefing would be. Likely perplexed, the Air Force responded that it had sent the debriefing as email attachments back in December. IUI was silent for more than six months, but on August 23, sent the Air Force another email asking for its debriefing, indicating once again that it had never been received. While the decision doesn’t make clear exactly what had happened to the “missing” (or uponed) attachments, after much back and forth, an Air Force official called IUI to explain how to open the debriefing email attachments on August 30. On September 9, IUI filed a protest contesting the Air Force’s technical evaluation of its proposal. In particular, it argued that the protest was timely because it had not been able to access the debriefing until August 30. Unfortunately for IUI, GAO was not sympathetic to its argument. GAO scolded IUI for failing to contact the Air Force about its failure to receive, or inability to open, the emailed debrief attachments, within a reasonable period of time. “A protester may not passively await information providing a basis for protest,” explained GAO. Instead, “a protester has an obligation to diligently pursue such information.” Here, GAO summarized that “the protester waited over 7 months to receive its debriefing.” GAO noted that while “IUI responded promptly to the emails it did receive . . . the fact remains that a protester has an affirmative obligation to diligently pursue information providing a basis for its protest.” All in all, GAO dismissed the protest as untimely. There are two essential takeaways from this decision: First, it is incredibly important for potential protesters to stay on the ball when it comes to requesting, and receiving, their FAR Part 15 debriefings. Though it may feel annoying to continually pester contracting officers, its also important to confirm when you should expect your mandatory debriefing. Upon receipt, the 10-day protest timeclock starts ticking, so time is of the essence. Second, keep checking that spam folder, especially when you are expecting emails from an agency! While protesters may encounter issues opening or receiving email attachments, this is no defense at GAO. As we have previously discussed a number of times (here, here, here, here, and here, for example), GAO won’t give you a pass if an agency email gets trapped in email No Man’s Land or goes unopened. After opening Government emails, contact Koprince Law if you think you might have grounds to protest! We’re here to help. View the full article
  5. OHA recently confirmed that it lacked jurisdiction to decide a NAICS code appeal regarding a GPO procurement, even though that procurement was conducted on behalf on the VA. OHA’s dismissal was based on the fact that GPO, a legislative branch agency, is not subject to the same rules as the executive agencies. OHA’s decision in Veterans4you, Inc., SBA No. NAICS-6021, (Aug. 13, 2019), involved a U.S. Government Publishing Office (GPO) procurement of suicide prevention gunlocks with printed components. The initial Invitation for Bids (IFB) was issued on behalf of the VA on February 14, 2019. Prior to this NAICS appeal, the protester filed a GAO bid protest of the initial IFB, Veterans4You, Inc., B- 417340, (June 3, 2019). GAO sustained the protest on the grounds that the IFB improperly failed to give preference to SDVOSBs and VOSBs and recommended that “GPO coordinate its efforts with the VA to meet the VA’s requirement for suicide prevention gun locks so as to give effect to the requirements of the” Veterans Benefits, Health Care, and Information Technology Act of 2006. In a twist to the story, GPO’s renewed decision to not restrict the procurement to SDVOSBs and VOSBs was recently upheld by the Court of Federal Claims. After the initial GAO decision, GPO reissued the procurement on June 13 under NAICS code 323111, for Commercial Printing (except Screen and Books). On June 24, the protester appealed the NAICS code decision, arguing that the correct NAICS code was 332510, for Hardware Manufacturing, since it was “primarily for suicide prevention gun locks with only minor, incidental printing.” The protester asserted, “characterizing the procurement as ‘printing’ (and under NAICS subsector 323) facilitates the VA’s ability to conduct the procurement through GPO and not to set this opportunity aside for veteran-owned small businesses,” all of which, it said, adversely affected its business. Regarding the merits of this argument, OHA agreed with the protester’s position, explaining: Indeed, according to Appellant’s estimates, printing constitutes an inconsequential percentage of total contract value. As a result, NAICS code 323111 does not best describe the principal purpose of the procurement. Conversely, NAICS code 332510 covers metal hardware and locks, and thus squarely describes the items sought by the IFB. However, on July 22, GPO moved to dismiss the NAICS appeal. It argued that OHA lacks jurisdiction to review the procurement actions of legislative branch agencies, like GPO, because they are “excluded from the requirements of the Small Business Act and its implementing regulations.” It cited an appeals court decision, which recognized that “GPO is not subject to the Small Business Act, even if GPO conducts a procurement on behalf of an executive branch agency.” GPO added, “the requirements of FAR part 19 and Title 13 of the Code of Federal Regulations likewise do not apply to GPO.” According to GPO, it was “acting as the servicing agency for a procurement of printing goods and services on behalf of VA,” and “[a]ny challenge to the procurement in this case, then, would be a challenge to a procurement conducted by GPO.” GPO asserted that it was “immaterial that GPO is conducting the instant procurement on behalf of VA, an executive branch agency.” The protester argued that, because the VA “designated this procurement as involving ‘printing’ and therefore routed it through the GPO,” its appeal did “not involve solely the actions of the GPO,” but also “the actions of the VA, which designated this procurement as falling under [NAICS] Subsector 323.” GPO responded that the VA’s requisition form did “not specify, or recommend, any particular NAICS code for this procurement.” And under FAR subpart 8.8 and 44 U.S.C. §§ 501 et seq., the VA was “required to conduct the procurement through GPO,” since it “involves printing and will utilize appropriated funds.” OHA agreed “that legislative branch agencies such as GPO are not subject to the Small Business Act regardless of whether such agencies are contracting for executive agencies.” OHA explained: Similarly, it is undisputed that SBA regulations and part 19 of the FAR do not apply to GPO procurements. Accordingly, because the instant procurement is being conducted by GPO, a legislative branch agency, OHA lacks jurisdiction over this appeal. OHA found “no merit” to the protester’s argument that it was actually the VA which, “in effect chose the NAICS code for this procurement when VA determined that the procurement involved printing and requested that the procurement be processed by GPO.” OHA explained that a NAICS code designation occurs at the time a solicitation is issued, whereas VA’s decision to direct the procurement to GPO would have occurred far earlier in the process, as a matter of acquisition planning. Contrary to Appellant’s contentions, then, GPO made the NAICS code designation at the time it issued the IFB. OHA granted GPO’s motion to dismiss the appeal. GPO asserted that the VA was required to procure these goods through GPO, because they “involved printing,” although even OHA stated that printing was a minor part of this acquisition. What it really came down to was the fact that the VA left the NAICS designation up to the legislative agency and so OHA was powerless to question the NAICS designation. View the full article
  6. A quick update on a proposed FAR rule that will put in place restrictions on use of lowest-price, technically acceptable (LPTA) solicitations in non-DOD agencies, as mandated in the 2019 NDAA. There are a few differences from the similar rule that recently went into effect for DOD. The proposed rule implements the 2019 NDAA’s policy to avoid LPTA “in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process.” It applies only to civilian agencies, not the Department of Defense, which has its own LPTA rule. GSA will also implement its own rule for Federal Supply Schedules. Here are the key takeaways. The rule limits states that LPTA “shall only be used” in certain circumstances, pretty much taken directly from the language of the NDAA. For instance, the “agency would realize no, or minimal, value from a proposal that exceeds the minimum technical or performance requirements” and evaluation would require no “subjective judgment.” Another requirement is that the contracting officer provide a written justification for LPTA. Note that all of the circumstances must be present, not just a few. Interestingly, two requirements for DOD use of LPTA are not found in the civilian rule: No, or minimal, additional innovation or future technological advantage will be realized by using a different source selection process Goods to be procured are predominantly expendable in nature, are nontechnical, or have a short life expectancy or short shelf life Contracting officers should also avoid LPTA for certain types of acquisitions, at least “to the maximum extent practicable”: (1) Information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, health care services and records, telecommunications devices and services, or other knowledge-based professional services; (2) Personal protective equipment; or (3) Knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq. Again, there is a distinction with the DOD rule. For one, the civilian rule includes health care services and records, but the DOD rule does not. Under the new rule, contracting officers have less leeway to choose LPTA style procurements, and when they do choose them, the agency must include a detailed justification. But it will be interesting to see how much this new regulation affects how agencies use LPTA. One the one hand, it definitely discourages LPTA. On the other hand, it’s not definitive because it still allows some wiggle room. For instance, an agency could still use of LPTA, even for cybersecurity services, if the agency found it was not practicable to avoid the use of LPTA. Similarly, how can an agency determine if evaluation of a proposal would require “subjective judgment”? Presumably, the agency has to make a subjective judgment to determine whether evaluation would require subjective judgment . Another thing to keep in mind. These additional criteria and justification requirements may provide additional basis for asking questions in a debrief or potentially protesting LPTA solicitations. For instance, if an information technology services is done under LPTA, the agency should have an ironclad justification for that decision, and be able to articulate that justification. Remember though, if you want to protest a LPTA solicitation, you must file a protest prior to any offer due date. View the full article
  7. The end of the government’s fiscal year always brings a rash of government purchasing. We hope the government’s purchasing push has been good for all of our readers. As you recover from the busy last couple of weeks, enjoy this week’s updates in government contracting, which may help put some perspective on what just happened at the end of the last fiscal year and identify future trends for government acquisitions. This week’s updates include a recap of large defense deals, the future of the Federal Data Strategy, and a State Department contracting officer convicted of bribery. Surveillance contractor that violated rules by copying traveler images, license plates can continue to work with CBP. [WashingtonPost] GSA’s Schedule Consolidation Effort on Track to Streamline Acquisition. [GovernmentCIOMedia] CDC making big changes to management structure. [FederalNewsNetwork] How Women-Owned Businesses Can Secure More Federal Contracts. [lbbusionessjournal] Modifications to Cost or Pricing Data Reporting Requirements. [FederalRegister.gov] Where does the Federal Data Strategy go from here? Evidence panel members revisit ideas. [FederalNewsNetwork] 5 Massive Defense Deals You Have Might Missed in Last Week’s Pentagon Contracts Update. [fool.com] View the full article
  8. A few months ago, GAO confirmed that where VA uses GPO as it buying agent, it still must to comply with the Rule of Two in 38 U.S.C. 8127(d) (see our blog post on the case ). After VA took corrective action, however, another bid protest was again filed, but this time in the Court of Federal Claims. Surprisingly, there, the Court concluded differently, finding that GPO was not required to set aside the procurement for SDVOSBs or VOSBs, despite acting on VA’s behalf. In so doing, it has weakened the Rule of Two. Before we dive into the Court’s decision, let’s discuss the some background. For this acquisition, VA sent a requisition to GPO to procure suicide prevention gun locks. (VA justified using GPO because it wanted information, related to its Veterans Crisis Line, printed on the locks and on labels affixed to the locks; it also wanted wallet cards to accompany the locks.) Veterans4You protested (initially to GAO) the solicitation’s terms because VA had not given priority to veteran-owned small businesses–contrary to the Rule of Two statutory mandate in 38 U.S.C. 8127(d). GAO, stressing 38 U.S.C. 8128(a), sustained the protest and recommended corrective action. Only days after the GAO decision, VA submitted a new requisition to GPO for the imprinted gun locks, labels, and wallet cards. There, VA requested that GPO “to the maximum extent feasible” set aside the procurement for CVE verified SDVOSBs and VOSBs. GPO responded that it did not have authority to set aside the procurement, but it would “accommodate the spirit of VA’s request.” To that end, GPO included in its bid list verified SDVOSBs and VOSBs which were registered with GPO to ensure that they had a chance to submit a proposal. It also included other GPO vendors which had veteran affiliations. Yet, the new solicitation was issued on an unrestricted basis. Veterans4You again challenged the terms of GPO’s solicitation, this time at the Court of Federal Claims. It argued, among other things, that 1) the Veterans Benefits Act, which includes the statutory Rule of Two, requires the VA to conduct the solicitation if GPO is unable to adhere to the Rule of Two, and 2) GPO’s decision not to set aside the solicitation for SDVOSBs and VOSBs was arbitrary and capricious and conflicted with the Veteran Benefits Act (VBA). But the Court of Federal Claims, in Veterans4You, Inc. v. United States, No. 19-931 C (Fed. Cl. Sept. 27, 2019), disagreed. As to the first argument, the Court held that the “VBA makes clear that Congress has established a mandatory preference for VOSBs and SDVOSBs when the VA conducts a procurement” but “the text of the VBA also makes clear that this preference applies only when the VA Secretary and the VA Contracting Officer are conducting a procurement on behalf of the agency.” Citing 38 U.S.C. 8127(i)(1), the Court further noted that the VBA merely obligates VA to request that GPO employ a Rule of Two analysis “to the maximum extent feasible.” And the Court found that VA’s request to GPO complied with this requirement. As to the second argument, the Court held that the “record evidence also shows that the GPO reasonably determined that it could not set aside the Solicitation as requested by VA.” To support its conclusion, the Court cited the contracting officer who has represented that 1) “GPO’s printing regulations require that the GPO promote and provide for competition to the maximum extent practicable in soliciting bids and offers and awarding government contracts,” and 2) “GPO is obligated under its regulation to employ competitive bidding.” In addition, the Court highlighted that the protester “points to no requirement in the printing regulations or the VBA that mandates that the GPO conduct the Solicitation as a VOSB/SDVOSB set aside.” In the end, the Court held that neither “the VA or the GPO violated the VBA or any other law in connection with the Solicitation” and that “the VA reasonably determined that the GPO should conduct the Solicitation on its behalf and that the GPO reasonably determined that it could not set aside the Solicitation for VOSBs and SDVOSBs.” In all honesty, I believe there are problems with the Court’s analysis. The biggest flaw, to me, is the Court’s conclusion that GPO “reasonably determined that it could not set aside the Solicitation as requested by the VA.” In so concluding, the Court relied on the CO’s assertion about GPO’s procurement regulations and then noted that the protester pointed “to no requirement in the printing regulations or the VBA that mandates that GPO conduct the Solicitation as a VOSB/SDVOSB set aside.” What about 38 U.S.C. 8127(i) of the VBA? Although VA “requested” that GPO set aside the procurement for SDVOSBs and VOSBs, the statute effectively transformed that “request” into a requirement. And GPO was, therefore, required, “to the maximum extent feasible” to conduct a Rule of Two analysis and set aside the solicitation for SDVOSBs and VOSBs if the Rule of Two was met. From my reading of the opinion, GPO did not show any statutory, regulatory, or practical reason why it couldn’t conduct a Rule of Two analysis. Indeed, GPO’s contracting officer merely asserted that GPO “is obligated under its regulations to employ competitive bidding for the Solicitation.” But does this requirement–shared by essentially all federal agencies–preclude setting aside a solicitation, under VA’s Rule of Two, if conducting a procurement on VA’s behalf? And is GPO’s assertion enough to show it was not “feasible” to do a set-aside? Boiled down, it appears that GPO believed that it was not permitted to set aside the procurement for SDVOSBs/VOSBs. Instead of probing this belief as it should have–especially in light of 38 U.S.C. 8127(i)–the Court conducted no analysis of statutes or regulations governing GPO’s procurement authority to determine whether, by law, GPO could not set aside the procurement for SDVOSBs/VOSBS. Also, the decision generally conflicts with the Rule of Two’s overall policy goal of funneling VA’s procurements into the hands of VOSBs and SDVOSBs. Armed with this decision, VA could evade the Rule of Two (for at least some supply procurements) by requesting that GPO imprint a few words on procured goods–even in cases where the printing component constitutes only a small fraction of the procurement. For example, VA could start using GPO to acquire surgical instruments because VA decides it wants to print certain information (perhaps the name of the VA medical facility at which they’ll be used) directly on them. Don’t get me wrong, I don’t think that VA will start acquiring everything it needs through GPO. But it gives VA another way to maneuver around the Rule to Two–a loophole which, in my view, contradicts the statute’s requirements and the Supreme Court’s Kindgomware decision. View the full article
  9. As of September 2019, the VA has updated its Verification Assistance Brief on SDVOSB joint ventures. The old assistance brief was last revised in 2017 and contained some incorrect information. To its credit, this update removes the wrong info and it contains some additional guidance that could be helpful for SDVOSB joint venture members. The new assistance brief contains a lot of the same information as the old, but it has been updated in some key ways. First, the the incorrect guidance about how joint venture members split profits is gone. (The two and half year revision period, not so good). The old version of the document said that “the SDVO SBC must receive profits from the joint venture…commensurate with their ownership interests in the joint venture.” This has not been right since December 2016. Now, the the VA correctly states: 4. The Joint Venture agreement must contain a provision “tating that the SDVO SBC must receive profits from the joint venture commensurate with the work performed by the SDVO SBC….” 13 CFR § 125.18(b)(2)(iv) The updated brief also cites to the new SDVOSB rules that are found in the SBA’s regulations, rather than the VA’s rules. Furthermore, the brief now includes a few lessons learned from OHA SDVOSB protest decisions. These include: A joint venture need not meet the eligibility requirements of 13 CFR §§ 125.12 and 125.13 but must meet the specific requirements governing joint ventures found at 13 C.F.R. § 125.18 (b)(2). The regulations do not require the VOSB/SDVOSB members of the joint venture to possess the critical licenses needed for a joint venture to perform a contract. The joint venture regulations do not contain provisions for finding one joint venturer inordinately reliant upon another joint venturer. These bits of advice are helpful. Good on the VA for providing this guidance to veteran business owners. One last statement in the brief is a bit mysterious: When submitting a bid package on a setaside [sic] procurement, the joint venture should submit to the Contracting Officer an amendment to its joint venture agreement to conform to the specific requirements of the solicitation, including the requirements relating to 13 C.F.R. § 125.18 (b)(2). Frankly, I don’t know where this is coming from. There is no citation provided, and I could not locate it anywhere in the OHA decisions cited in the brief. I’m not aware of a requirement to submit SDVOSB joint venture amendments to a contracting officer. While it may be an individual solicitation requirement, it is not a VA rule as far as I can tell. The VA should clarify this point in the Assistance Brief to explain it more fully or simply remove this recommendation. Beyond that, the updated assistance brief should be helpful to those companies looking to establish or maintain SDVOSB joint ventures. The incorrect info about profit sharing has now been revised. But the advice about where to submit an amended joint venture could use additional revision. View the full article
  10. The first step in competing for a federal contract is knowing that an opportunity exists in the first place. In a recent protest, a contractor argued it was not able to find an opportunity despite routinely searching the appropriate federal procurement opportunity system, e-Buy. Thus, according to the protesting company, the procurement was not properly publicized and the award was improper. GAO did not agree. CC&C Management Services, LLC, B-417594 (Comp. Gen. Aug. 28, 2019), involved a VA procurement for furniture storage, moving, and installation services. The resulting contract would have a one-year base period with 3 one-year option periods. The solicitation was competed among GSA Federal Supply Schedule (FSS) contract holders. The FSS is a federal procurement program administered by the GSA that is designed to simplify acquisitions for common commercial items and services. Contractors are awarded contracts for specific schedules corresponding to specified types of goods and services. Federal executive agencies may compete orders among schedule contract holders for specified goods and services. Importantly, competitive FSS contact opportunities are posted to the e-Buy system, which is an online procurement opportunity tool much like FedBizOpps.gov. Unique opportunities are posted to the system, and offerors holding the required schedule and meeting any socioeconomic set-aside designation can submit bids. As relevant here, the VA issued the Solicitation on e-Buy to holders of Schedule 48 contracts. Shortly after issuing the Solicitation, however, a GSA representative notified the VA contracting officer that GSA Schedule 48 was slated to expire before the proposal submission deadline. In light of the expiration of Schedule 48, the VA cancelled the solicitation, and reissued it under two different FSS schedules: Schedule 71 II K, and Schedule 00CORP. The listing for both Schedule 71 II K and Schedule 00CORP were posted to e-Buy. The VA received two proposals in response to the Solicitation. CC&C submitted a proposal under the Schedule 00CORP listing. A competitor, B&M Construction, Inc., submitted a separate proposal under the Schedule 71 II K listing. The VA awarded the contract to B&M under its Schedule 71 II K contract. CC&C subsequently protested the award to B&M. While CC&C raised issues with the technical evaluation, its principal challenge was that the VA awarded the contract under an FSS schedule that it did not compete the work under. To support this allegation, a CC&C employee attested that “[d]uring the relevant time period in June-July 2018, CC&C had two managers monitoring the [e-Buy] portal for [Schedule 71 II K] daily, and the [RFQ] did not appear under that Schedule.” According to CC&C, the VA’s posting failed to comply with the material terms of FAR 8.405-2(c)(3)(iii)(A), which requires contracting officers to “[p]ost the RFQ on e-Buy to afford all schedule contractors offering the required services under the appropriate multiple-award schedule(s) an opportunity to submit a quote[.]” CC&C alleged the VA either didn’t post the Schedule 71 II K listing to e-Buy, or failed to ensure that eligible offerors like CC&C could view the listing. In either instance, argued CC&C, the VA’s actions (or inaction) posting the RFQ violated FAR FAR 8.405-2(c)(3)(iii)(A). In response, the VA produced screen captures of the Schedule 71 II K listing on e-Buy. It also provided sworn statements of the contracting officer describing the other efforts undertaken to distribute the Schedule 71 II K listing, which included sending a notification of the posting to all eligible offerors under the Schedule. Ultimately, GAO concluded that the VA had complied with the publication requirements of FAR 8.405-2(c)(3)(iii)(A). To reach this conclusion, GAO first dispensed with CC&C’s argument that the Schedule 71 II K listing was never posted to e-Buy: Notwithstanding the protester’s contention that after its Schedule 71 II K contract became effective on July 1, two of its employees monitored e-Buy for the RFQ posting and never saw it, we find that on June 20, the agency posted the RFQ on e-Buy under Schedule 71 II K. GAO then turned to the allegation that the VA was nevertheless responsible for ensuring CC&C had knowledge of the posting, and it was similarly unpersuaded. GAO began by noting that FAR 8.405-2(c)(3)(iii)(A) merely requires contracting officers to post opportunities. The web captures the VA provided confirmed such publication happened. GAO then explained that the VA had no duty to ensure CC&C was aware of the opportunity. The protester’s assertion that it was unable to view the RFQ via e-Buy under Schedule 71 II K does not change our conclusion regarding the propriety of the agency’s actions. The protester has not identified any authority for its contention that the agency was required under FAR § 8.405-2(c)(3)(iii)(A) to ensure that it was able to view the RFQ. Rather, FAR § 8.405-2(c)(3)(iii)(A) requires the agency to “post” the RFQ on e-Buy, not to “provide” the RFQ to any specific vendors. Consequently, GAO denied the protest. GAO’s decision in CC&C highlights that one of the biggest challenges facing government contractors is identifying opportunities in the first place. Unfortunately, GAO’s decision placed the onus of finding specific contract opportunities squarely on the shoulders of contractors. View the full article
  11. The DoD, GSA, and NASA are proposing increases to the Simplified Acquisition Threshold and Micro-Purchase Threshold. Although this may seem like a minor update, it will cause changes across the federal contracting landscape, will alter the FAR, and will result in more contracts being issued under the Micro-Purchase and Simplified Acquisition Thresholds. On October 2, the DoD, GSA, and NASA issued a proposed rule that would amend the FAR to increase the Micro-Purchase Threshold and Simplified Acquisition Threshold, as well as make certain changes to other portions of the FAR to align with these increases. These changes have been a long time coming. Both the 2017 Fiscal Year NDAA and 2018 Fiscal Year NDAA requested these threshold increases The proposed rule released by the DoD, GSA, and NASA would implement the following changes to the purchase thresholds: The Micro-Purchase Threshold would be increased from $3,500 to $10,000. The Simplified Acquisition Threshold would be increased from $150,000 to $250,000 To reflect this, multiple changes will be made to the FAR to replace the current threshold limits with the proposed limits, and ensure proper references are made to the new thresholds. The proposed rule will also replace any non-statutory, stated dollar thresholds that are intended to correspond with the Micro-Purchase and Simplified Acquisition Thresholds. These changes will have a big impact. The agencies found that from 2015 through 2018 there were $2,442,317 worth of small business contracts, and $1,359,916 worth of other than small contracts, that would fall under the proposed Micro-Purchase Threshold, but not apply to the current Micro-Purchase Threshold. Also, from 2015-2018 there were $300,073,039 worth of small business contracts, and $161,715,144 other than small contracts, that would fall under the proposed Simplified Acquisition Threshold, but not fall under the current Simplified Acquisition Threshold. As a side note, commercial item awards as well as orders placed through indefinite quantity contracts orders, and other large contracting schedule orders, were not included in these calculations. The agencies estimate that these changes would allow more contracts to be awarded under the Micro-Purchase and Simplified Acquisition Thresholds. This would mean more contracts would be awarded without burdensome regulations, creating faster, more streamlined acquisition opportunities for contractors. The proposed changes also apply to contracts for commercial items, including COTS items, but will not add any new solicitation provisions or contract clauses to procurements. The DoD, GSA, and NASA are inviting contractors to provide comments on the proposed rule changing the Micro-Purchase and Simplified Acquisition thresholds. The comments are due on or before December 2. Stay tuned to SmallGovCon for updates on these proposed changes. View the full article
  12. With little fanfare, the SBA has updated the template for agreements under the All Small Mentor-Protégé Program (ASMPP). The new template adds a series of check box-style questions, mainly about potential affiliation between the mentor and protege. Be sure to check out the new template if you are working on a mentor-protégé agreement. The SBA described the changes to the form this way in a federal register notice: Changes to Form 2459 include questions about other mentor protégé agreements and information that might lead to a finding of affiliation between the mentor and protege. The questions basically mirror the affiliation assumptions found in 13 C.F.R. 121.103, although some are specific to a mentor-protégé relationship. For instance, the question about whether a protégé “purchased assets from Mentor including but not limited to facilities or equipment” does not have an analogue in SBA’s affiliation rules–that one seems to be specific to the ASMPP. Here are the new questions: e. Mentor or one of Mentor’s owners does ( ) does not ( ) own any of the Protégé’s equity or have the right to own any of the Protégé’s equity, including stock options or convertible securities. f. Mentor and Protégé do ( ) do not ( ) have an agreement in principle to merge or sell stock to the other. g. Protégé ( ) has ( ) has not purchased assets from Mentor including but not limited to facilities or equipment. h. An officer, director, managing member, partner, principal stockholder or employee of the Protégé does ( ) does not ( ) hold a position with the Mentor and has ( ) has not ( ) previously held a position with the Mentor as an officer, director, managing member, partner, principal stockholder or employee of the protégé. i. An owner or manager of the Protégé is ( ) is not ( ) a family member of an owner or manager of the Mentor. (Family members are limited to married couples, parties to a civil union, parents, children, and siblings.) j. An owner or manager of the Protégé and owner or manager of the Mentor firm do ( ) do not ( ) have multiple investments in common. k. Over the previous three fiscal years, the Protégé has ( ) has not ( ) derived 70% or more of its receipts from the Mentor. l. The Protégé does ( ) does not ( ) have a franchise or license agreement with the mentor. m. The Mentor and Protégé have ( ) have not ( ) formed a joint venture that has received multiple contract awards more than two years apart or received more than three contract awards. n. Mentor has ( ) does not have ( ) good character and a favorable financial position. Be sure to take a close look at these new questions on the ASMPP template in advance of submitting your application. These questions seem to indicate that the ASMPP will be doing a little more investigation into the relationship between proposed mentor and protégé prior to approving a match. If you answer yes to any of these questions, the ASMPP office is likely to ask for more information, so it probably makes sense to anticipate this by sending in an explanation as part of the initial application. View the full article
  13. Hi there loyal readers! We’ve been getting some great cool fall weather here in Lawrence. Seems like summer is officially over. Hope you’re enjoying fall as well. We also hope you enjoy’s this week’s round-up of government contracting news, including stories about GSA’s new commercial e-Marketplace, issues impacting women veteran-owned businesses, and an update to LPTA procurements for non-DOD agencies (we recently blogged about the related LPTA update for DOD agencies). TRANSCOM says capable businesses are applying to manage military moves. [FederalNewsNetwork] GSA Opens Bids on Commercial e-Marketplace. [NextGov] Federal Acquisition Service commissioner resigns. [fedscoop] It’s Time to Turn Up the Volume on Women Veteran-Owned Businesses. [Military.com] Lowest Price Technically Acceptable Source Selection Process. [FederalRegister.gov] National Background Investigations Bureau Transferred to Department of Defense. [Defense.gov] Ex-Pentagon official says he was pushed out for saying defense companies were ripping off DoD. [taskandpurpose] View the full article
  14. Because I’m at least partially a North Carolina country boy, I like to promise I’ll finish a project by a certain date “god willing and the creek don’t rise.” I never give much thought to what I’ll do if the unexpected happens. I assume most people don’t. They expect things to go according to plan. As Meridian Engineering Company found out at the U.S. Court of Federal Claims recently, sorting it out when things don’t go to plan can be a long and arduous process. In what would appear to be the end of a saga dating back to 2007, the court ended up awarding Meridian almost $900,000 plus interest after ruling that Meridian had not released its claims when it signed two contract modifications back in 2008. In September 2007, the U.S. Army Corps of Engineers signed up Meridian to construct a $5.8 million flood-control project in Nogales, Arizona. The Corps drug its feet though and did not get Meridian key drawings and surveys until December of that year. The project was also stymied by subsurface flows and soft soil. The Corps issued several modifications, including one to add a new access ramp, followed shortly thereafter by a modification to delete the access ramp. The modification stated: “[T]his adjustment constitutes compensation in full on behalf of the Contractor . . . for all costs and markups directly or indirectly attributable for the change ordered, for all delays related thereto, for all extended overhead costs, and for performance of the change within the time frame stated.” Because of the delays, Meridian could not complete the work in time for monsoon season—side note: did you know Arizona has a monsoon season? It’s true! In June 2008, the site started flooding. From August to September of that year, the work site was flooded 47 out of 54 days. The Corps issued several modifications, each of which included the same language as above, but eventually just cancelled the project and terminated Meridian’s contract for convenience. A project of that size does not simply stop though. There are costs associated with stopping work too. Meridian and the Corps disputed the costs among themselves until eventually Meridian took its claims to the Court of Federal Claims. The court held two trials, in 2014 and 2016. During the first trial, the court ruled that Meridian had released its claims concerning the flooding by signing the modifications. Meridian appealed various counts to the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit vacated some counts, dismissed some, and remanded two. Meridian and the Corps worked out a settlement on one of the remaining two counts, so the only issue left for the Court of Federal Claims to decide was Count 4—the flood claim. The Corps continued to argue that Meridian had released its claim due to the modification’s language “this adjustment constitutes compensation in full on behalf of the Contractor[.]” The Court disagreed, noting that some of the modifications “pre-date a significant portion of the days when the site experienced flooding” and “the “releases do not explicitly cover flood damage that had not yet occurred and whose scope was not predicted.” The Court also noted that the parties continued to act as though these claims were active, arguing and negotiating over the amounts, so the releases could not have represented a “meeting of the minds.” The Corps had also argued that the contract assigned the risk of flooding to Meridian, which the Court could not have agreed less with. It said: This argument is attended by irony—in one sense, the government seeks to suggest that the flood-events damage directly resulted from the delays caused by modifications . . . (thus seeking to put them within the release language), and yet also suggests that the flood damage from monsoon season was the sheer result of poor planning on Meridian’s part. . . . Simply put, the government cannot escape liability for flood damages when the government is responsible for causing the contractor to be working during the flood-prone season. The court found the Corps responsible for $873,603.69 in damages, plus interest dating back to 2011 ($377,982.13 so far). While Meridian eventually came out ahead, its experience is a good reminder to all contractors to be careful when signing contract modifications so as not to later be barred from pursuing damages. View the full article
  15. It’s early October, which means that the federal government’s end-of-fiscal-year contracting binge has drawn to an end. With the spate of contract awards, this time of year typically sees an increase in the number of bid protests being filed, or at least contemplated. If you’re considering filing a bid protest, here are five (more) things to keep in mind: 1. Debriefings are helpful guides. The most useful piece of information when considering a bid protest is, unsurprisingly, the agency’s explanation of its evaluation. Sometimes, this will come through a formal debriefing; other times, only through a “brief explanation” of the award. Regardless, the agency must only provide this information if the offeror timely asks for it. It’s good practice, therefore, to immediately request this information from the contracting officer once she notifies you of the evaluation decision. A quick email to the effect of: “Thank you. We request a debriefing” is usually sufficient. Note that when the offeror gets the debriefing might affect the protest deadline. In the case where a debriefing is both required and timely requested, the disappointed offeror has ten days from the date of its debriefing to file a GAO protest. If a debriefing isn’t required (or if it’s not timely requested), the protest deadline is ten days from the date the protester knew or should have known of the basis for protest. If you’re not sure whether a debriefing is required under your solicitation, ask the contracting officer (or experienced bid protest counsel). 2. Which arguments are most often successful? Evaluation decisions are, at some level, subjective. And though GAO will give an agency discretion in making these evaluation decisions, that doesn’t mean that an agency can ignore the solicitation’s requirements or applicable laws or regulations. Understanding how to frame improprieties in the evaluation to cogent legal arguments can take some skill. Doing so, it’s helpful to understand the arguments upon which GAO most commonly sustains protests. Thankfully, GAO publishes this information annually. In 2018, GAO reported that arguments asserting unreasonable technical and/or price evaluations and flawed selection decisions most commonly led to sustained protest. In years past, arguments alleging misleading discussions and inadequate documentation of the record have also led to sustained protests. 3. Which arguments are least likely to lead to a sustained decision? Just like knowing the most commonly sustained protest arguments can be helpful, so too can knowing the arguments that are least likely to be sustained. For starters, GAO’s regulations say that it won’t consider arguments challenging issues relating to contract administration (like performance disputes) or small business-related issues, among others. Sometimes, a contractor might believe that the agency’s bias led to the contractor losing out on the award. Arguments alleging bias, however, are rarely successful—GAO presumes contracting officials to act in good faith, and the protester generally must present compelling evidence showing that such bias exists and impacted the award decision. In other words, bias arguments are very hard to prove. 4. Understand your goal. A successful bid protest might not lead to a contract award. A successful protest challenging a best value evaluation is likely to lead to the agency reevaluating proposals to correct the evaluation’s flaw. That reevaluation still might lead to the successful protester losing out on the award—but, in some cases, the reevaluation might instead lead to the protester being named the awardee. 5. Implement lessons learned. Like debriefings, bid protests are a unique opportunity to learn more about the evaluation. Though some of this information might be protected (that is, shielded from disclosure to the offerors), the public documents should nonetheless reveal information about the evaluation. Understanding how the agency reached its decisions will help an offeror better respond to the next opportunity down the road. Thus, it’s wise to implement a “lessons learned” program following any debriefing or bid protest. *** Bid protests can be quite complex. Understanding whether and how to file a bid protest can be a vital tool, as a successful protest might put you back into consideration for an award. As with everything else written on SmallGovCon, this post isn’t intended to be (and shouldn’t be considered as) legal advice; instead, discuss your bid protest options with an experienced government contracts lawyer to better understand the ins and outs of the protest process and whether filing a protest makes sense in your particular situation. View the full article
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