Koprince Law LLC

Hello, Readers. As we move into spring, we at SmallGovCon have been observing the optimism of nature as winter releases its grip. Small green plant shoots are pushing their way up towards the sunshine and the trees are preparing to bud as our temperatures warm up. The birds are getting involved as well. There’s no doubt that they are enjoying the warmer weather and looking forward to spring, too. Hope you are able to observe equally inspiring things in your neck of the woods. As usual there was a lot of news in federal government contracting, this week including articles on the future of federal government contracting, cybersecurity bills, and news on GSA multiple award contracts. Have a great weekend! The Pros And Cons of Being a Government Contractor [GovConWire]Defense contractor revenue is strong, so why is the state of the sector weakening? [FedNewsNet]Defense Federal Acquisition Regulation Supplement: Reauthorization and Improvement of Mentor-Protégé Program (DFARS Case 2020-D009) [FedReg]Clearview AI CEO says company focused on winning federal agency contracts this year [FedScoop]Defense Acquisitions Additional Actions Needed to Implement Proposed Improvements to Congressional Reporting [GAO]NASA Lunar Programs: Moon Landing Plans Are Advancing but Challenges Remain [GAO]Ernst bill to enhance government procurement process for small businesses becomes law [RiponAD]Looking at all the rules, no wonder small business contractors base is shrinking [FedNewsNet]Cybersecurity Bill Passes in Senate to Counter Russian Threats [Bloomberg]Procurement isn’t always just about procurement — a tale from Ukraine [FCW]Ensuring Compliance with the Davis-Bacon Act Under the Bipartisan Infrastructure Law [FoprConstPros]New COVID guidance for federal agencies to match CDC recommendations [FedNewsNet]Partnering with 8(a) Companies as a Large Contracting Firm [BloombergGov]The state of government contracting programs [FedNewsNet]GSA Releases Small Business Procurement Strategy for Services Multi-Agency Contract [GovConWire]Statement by SBA Administrator Guzman on President Biden’s State of the Union Address [SBA]Statement by SBA Administrator Guzman Observing Women’s History Month 2022 [SBA] The post SmallGovCon Week in Review: February 28- March 4, 2022 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The case of Superior Optical Labs, Inc. (Superior) v. United States focuses on the control of a Service-Disabled Veteran Owned Small Business (SDVOSB) and how that control, or more precisely, lack of control, can disqualify an SDVOSB with 69% service-disabled veteran ownership from a solicitation set aside for SDVOSBs. This particular Solicitation was set aside entirely for an SDVOSB to provide prescription eyeglasses and related services through the Veterans Integrated Services Network (VISN). Superior was awarded the contract, which was then protested by PDS Consultants, Inc. (PDS) challenged the SDVOSB eligibility of Superior. In the end, OHA held that Superior did not qualify as a SDVOSB for purposes of the procurement due to a lack of control as required by SBA rules. PDS then challenged OHA’s decision at the Court of Federal Claims. Because this is a case at the Court of Federal Claims, there is a substantial amount of background for those who need it. If you are already well-versed in SDVOSB requirements, the next two paragraphs will be easy reading for you. Background Under SDVOSB rules, 13 C.F.R. § 125.12 requires any small business claiming to be owned by a service-disabled veteran to meet specific criteria in order to be eligible for an award of an SDVOSB set aside contract. The SDVOSB must be “at least 51% unconditionally and directly owned by one or more service-disabled veterans.” The management and daily business operations of an SDVOSB must be controlled by one or more service-disabled veterans. 13 C.F.R. § 125.13(a). It’s not enough that a business be primarily owned by a service-disabled veteran, the service-disabled veteran must also control the business to qualify, and the Department of Veterans Affairs (VA) Center for Verification and Evaluation (CVE) looks beyond the primary relationships to determine that control. The management and daily business operations, including both long-term decisions and day-to-day management, must be controlled and conducted by one or more service-disabled veterans. 13 C.F.R. § 125.13(a). The service-disabled veteran will not be found to have control of the concern if the concern has a business relationship “with non-service-disabled veteran individuals or entities which cause such dependence that the applicant or concern cannot exercise independent business judgment without great economic risk,” 13 C.F.R. § 125.13(i)(7). Notably, this same general requirement applies to all of the various socio-economic statuses recognized by the SBA. Superior was 69% owned by a service-disabled veteran when it submitted its proposal for the solicitation. Superior’s President and CEO owned 51% of the company and two additional service-disabled veterans each owned a 9% interest in Superior. At all times relevant, Superior’s President owned and controlled more than 50% of the company. Superior was certified by the Department of Veterans Affairs (VA) Center for Verification and Evaluation (CVE) in April 2018. The VA issued this Solicitation in August 2020, Superior submitted its offer in September 2020, and the VA awarded it to Superior in October 2020. This all seems to be in line with the requirements, correct? Not so fast! PDS Consultants, Inc. (PDS) came along and filed a protest on the basis that Superior was controlled by, and shared resources with, Essilor of America, Inc. (Essilor). Additionally, PDS claimed Superior received “critical financial support from Essilor” and that Superior was required to use Essilor products. PDS alleged that this control came from a Services and Supply Agreement (the Agreement) between Superior and Essilor that was executed on November 1, 2017, when Superior’s current President and CEO obtained a controlling interest in the company. Under the Agreement, Superior was required to purchase from Essilor, in the course of contract performance, the majority of the volume of lenses, frames, contact lenses, and consumables if such products were offered by Essilor. Superior was required to submit monthly reports to Essilor to verify compliance. If a contract with VISN or another VA contract restricted purchasing from Essilor, Superior was required to purchase the maximum volume from Essilor without jeopardizing Superior’s SDVOSB status. Superior was required to use Essilor’s pricing, and Superior was required to notify Essilor in writing and receive Essilor’s approval prior to bidding if Superior planned to bid on a fixed-price government contract. The agreement further obligated Superior to obtain Essilor’s written approval to assign any part of the agreement or to make any change in control of the Superior. The agreement stated, with respect to change in control, that Essilor had to give written approval for a “(i) ‘change in possession, directly or indirectly, of the power to direct or cause the directing of the management or policies of Superior,’ (ii) any sale or transfer of 50 percent or more of Superior’s assets, (iii) any sale or transfer of 50 percent or more of Superior’s stock, (iv) any merger resulting in a change of ownership of 50 percent or more, and (v) any change of Superior’s SDVOSB status.” One could imagine a subcontractor potentially putting a similar type of provision in a subcontract. But OHA found, and the court agreed, that this “went beyond the five “extraordinary circumstances’ in which the SBA will not find that a lack of control exists even though a service-disabled veteran does not have unilateral power and authority to make decisions.” The agreement was effective from November 1, 2017, to October 31, 2027, unless shorted in accordance with the terms of the agreement. Superior and Essilor executed a Termination Agreement on October 20, 2020, with a retroactive effective date of January 29, 2018, the date upon which Superior and Essilor had made a verbal agreement to terminate the agreement (Oral Agreement). Superior’s response to the protest included the argument that Superior’s President and CEO (its President) had, at all times relevant, been both the majority shareholder and controlling director of Superior. Superior also claimed Essilor did not have a controlling interest in Superior since 2017 and that the business relationship between Superior and Essilor did not give Essilor any control of Superior. Further, Superior argued the agreement was not in effect because it had been terminated by the oral agreement in January 2018. Finally, Superior claimed “that the agreement was drafted so as not to jeopardize Superior’s status as a SDVOSB and had never been enforced.” Unfortunately for Superior, OHA found that Superior was not controlled by its President on the September 2020 date it submitted its offer for the solicitation, nor on the October date PDS filed its protest, the two relevant dates identified by OHA. Due to the terms of the agreement which required a written agreement for termination, the Termination Agreement was not found to take effect until the October 20, 2020, date. As such, the agreement was still in effect and the need for Superior to receive Essilor’s written approval prior to changes in control was found to “plainly interfere with [Superior’s President]’s ability to make all business decisions and exercise complete control over Superior” as required per SBA rules. The minimum purchase terms and conditions requiring Essilor’s approval prior to bidding further interfered. Following the finding by OHA, VA cancelled the VISN 8 contract with Superior in accordance with 13 C.F.R. § 134.1007(j)(2). The United States Court of Federal Claims, upon review of the case, determined OHA’s finding that Superior was not eligible for award at the time of the procurement was correct, and that VA acted rationally when it cancelled the VISN 8 contract. The court has a deferential ability to review, and will only disturb an SBA ruling when it didn’t consider key facts, ignored evidence or is just plain implausible. There are two important takeaways from this example. First, know all the terms of any contracts you enter into. It is likely Superior would have never been in this situation had it executed a written termination agreement, as required in its contract terms. And second, be wary of other entities where there is any possibility of finding the other party has control, and do not make bids at a time when control may be deemed in the hands of any entity that is not of a similar socio-economic status. These kind of “change in control” provisions are quite common in commercial agreements. So, for SDVOSB or other companies under SBA’s WOSB or 8(a) programs, it’s important to review any agreement for potential impact on control over the company. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Control Matters: For SDVOSB Companies, Pay Attention to Appearances as Well as Realities first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Without wanting to make the audience feel too old, I was not yet born when Transformers was a pop culture phenomenon. Still, it’s a simple but fun concept: robots that transform to and from cool vehicles. Regardless of what form they take, they are still the same character. The same cannot be said of government contractors submitting an initial bid for the first phase of a solicitation as a prime contractor and a bid as a member of a contractor teaming agreement (CTA) for the second phase of said solicitation. While the same company is involved, the bids are treated as being from different entities. Such was the case in the GAO matter of Softrams, LLC, B-419927.4 (Feb. 7, 2022). In this case, the Department of Health and Human Services (DHHS) issued the solicitation via the GSA’s federal supply schedule for operations and management of the agency’s identity management system. Award was to be made on a best-value tradeoff basis considering corporate experience, performance work statement response, a challenge exercise, and section 508 compliance. Evaluation of quotes was to be made in two phases. During the first phase, vendors were to submit quotations covering corporate experience only. During the second phase, the other factors and price would be considered. OmniFed LLC (Omni), a small business, submitted a quote for phase one. For this phase, Omni submitted its quote as the prime contractor quoting the use of a second vendor, Bana Solutions (Bana), as a subcontractor. However, for phase two, Omni asked if it could submit its quotation as a Contractor Team Arrangement (CTA) with Bana. Note, GSA CTAs are different than other CTAs, these CTAs are not a separate legal entity. See more information here. The agency approved, and so Omni and Bana (for clarity we will call the CTA OB) submitted their phase two quotation with Bana as the team leader and Omni as a team member. The agency based its evaluation of OB off the original Omni quote for phase one and the OB quote for phase two, and awarded OB. A protest followed in which the agency said it would take corrective action as Bana did not have a valid FSS contract at the time Omni submitted its phase one quotation. OB was excluded as was Omni. However, after another dispute, Omni was allowed to continue in the competition as the prime. Omni correctly noted to the agency that the original arrangement had Omni as prime, and primes can use subcontractors not on the FSS. The offerors again made their submissions. Curiously, in the subsequent evaluations, the agency evaluated Omni’s quote for three of the four factors and pricing but evaluated the old OB quote for the final factor. The agency then awarded Omni the contract, and this protest followed. The agency responded that because Omni “did not form a separate legal entity when entering into the GSA CTA with Bana, nothing under the GSA rules or the solicitation prohibited them from changing their formation under the same quotation.” GAO rejected this argument, noting: “In allowing the Omni-Prime vendor to submit a revised quotation to replace the phase two quotation submitted by the eliminated Bana-Omni CTA vendor, the agency failed to obtain a complete replacement quotation from Omni-Prime by not conducting or allowing for a new factor 3 oral presentation. In sum, the agency based its selection decision on a quotation that was composed of submissions from two different vendors. This…is squarely at odds with the agency’s contemporaneous finding in response to Omni’s agency-level protest challenging the elimination of the Bana‑Omni CTA vendor from the competition. There, the agency recognized that the two vendor configurations were separate respondents to the solicitation.” The protest was sustained as a result. This is an unusual case as the DHHS, even after excluding a quotation, nonetheless used information from that quotation as part of its evaluation. It sort of makes sense: In the original phase two solicitation, Omni and Bana were the companies working together. The same went for the evaluation that was protested in this matter. It goes to show that the form does matter, and that simply rearranging into a CTA after the fact can completely disrupt an offeror’s chances if they are not careful. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Transformers: Offerors in Disguise – GAO Sustains Protest Regarding Evaluation Based on Separate Offers from the same Offeror first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday, Readers. There were several announcements this week such as President Biden signing into law the Promoting Rigorous and Innovative Cost Efficiencies for Federal Procurement and Acquisitions (PRICE) Act of 2021, expanding the opportunities for small businesses to work with the Federal government. And several associations that represent federal contractors are highlighting operational and workforce challenges associated with continuing resolutions. You can read more about those topics as well as articles highlighting federal contracting opportunities and additional news below. Have a great weekend. Defense innovation bumps up against a Cold War budget system [FedNewsNet]Trade Groups Discuss Impact of Continuing Resolutions on Federal Contractors [ExGov]2022 Contracting Opportunities with IRS [HSToday]How Small Businesses Can Get in the Door with IRS Procurement [HSToday]VA Acquisition Regulation: Department of Veterans Affairs Acquisition Regulation System and Research and Development [FedReg]Wife of Maryland Nuclear Engineer Pleads Guilty to Espionage-Related Offense [DoJ]IRS plans pivot to Login.gov, lets users create online accounts without facial recognition [FedNewsNet]Time to reel in the growing number of supply chain risk management initiatives [FedNewsNet]Army CISO Easley departs for role at the Pentagon [FedScoop]FDIC innovation chief quits agency, blasts ‘hesitant and hostile’ attitude to tech change [FedScoop]Government Contractor Agrees to Pay Record $48.5 Million to Resolve Claims Related to Fraudulent Procurement of Small Business Contracts Intended for Service-Disabled Veterans [DoJ]Defense industrial base competitiveness report irked some services contractors [FedNewsNet]President Signs Bill to Help Federal Small Business Contracting [MeriTalk] The post SmallGovCon Week in Review, February 21-25, 2022 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Last week, the SBA’s Office of Inspector General (OIG) issued a report, entitled “SBA’s Business Development Assistance to 8(a) Program Participants.” The report detailed the OIG’s recent audit of the SBA’s 8(a) Business Development Program to “determine to what extent SBA measures and monitors an 8(a) firm’s progress toward achieving individual business development goals” and “to ensure 8(a) firms receive the help needed to meet their goals and if the program adapted during the Coronavirus Disease 2019 pandemic.” Let’s take a closer look at the details and findings. For those who don’t know, the Inspector General is a Presidentially-appointed and Senate-confirmed officer responsible for keeping the SBA Administrator and Congress briefed on any problems, recommending any corrective actions, and monitoring the progress in implementing any such actions. As the SBA explains, the OIG’s “mission is to provide independent, objective oversight to improve the integrity, accountability, and performance of the SBA.” Here, the OIG turned its eye to the SBA’s 8(a) Business Development Program to ensure the program is serving its intended purposes. As SBA’s 8(a) rules establish, the 8(a) Program serves “to assist eligible small disadvantaged business concerns [to] compete in the American economy through business development.” In the OIG’s words: The 8(a) Business Development Program helps small businesses owned by socially and economically disadvantaged individuals gain business skills and access to federal contracting opportunities so that they can better compete in the open marketplace. Congress authorized the 8(a) program for a business development purpose and approved special 8(a) contracting benefits limiting competition for this purpose. To determine whether the 8(a) Program is successfully furthering these goals, the OIG reviewed the details of the business development assistance the SBA provided to 8(a) Program participants from the years 2011 to 2020. This review included selecting a judgmental sample of 40 active 8(a) participant firms (assigned to five different SBA district offices) to test “how SBA monitored progress in achieving individual development goals outlined in their approved business plans.” The OIG also reviewed those five (of the 68) SBA district offices to determine what level of business development assistance the offices provided to the 8(a) participants. This review included interviews with various 8(a) Program officials and an examination of the applicable public laws, regulations, policies, and procedures. The OIG found that the “SBA did not have consistent practices in place to ensure program officials assessed the 8(a) firms’ development needs, counseled participants, or conducted field visits.” In the OIG’s words: SBA’s approach to monitoring 8(a) firms is more focused on reviewing for program eligibility rather than the progression of the 8(a) firm’s business development. Without processes in place to objectively monitor an 8(a) firm’s progress and measure program performance, stakeholders cannot determine success of the program. Specifically, the OIG found that 15 of the 40 firms it reviewed did not have approved business plans, making them ineligible for a whopping $93 million in 8(a) Program contract awards. The OIG also found SBA did not consistently document that its staff assessed the needs, counseled, or conducted field visits with 8(a) firms to ensure they received the assistance needed to be prepared to compete for contracts without further 8(a) assistance. But on a more positive note, the OIG did find that the SBA had adapted its business development assistance model in response to the COVID-19 global pandemic and had offered flexibility to all 40 of the 8(a) firms the OIG reviewed based on the impact of the pandemic. Based on its findings, the OIG made eight total recommendations for the SBA 8(a) Program officials “to measure, monitor, and better deliver training and other business development assistance to 8(a) firms.” First, the OIG recommended that the Administrator direct the Associate Administrator of the Office of Government Contracting and Business Development, in collaboration with the Associate Administrator of the Office of Field Operations, to carry out the following six recommendations: 1. Implement a standard process to approve initial business plans and monitor to ensure that business plans are reviewed annually, to include appropriate updates for specific targets, objectives, and goals for the business development of program participants, in accordance with 13 CFR 124.403(a) and section 7(j)(10)(D) of the Small Business Act. 2. Implement a standard process to capture, track, and recognize substantial achievement of the specific targets, objectives, and goals for the areas of finance, marketing, and management on 8(a) program participant business plans, in accordance with 13 CFR 124.112(f) and section 7(j)(10)(A) of the Small Business Act. 3. Establish outcome-based performance goals and measurements to assess whether the program achieved business development objectives, including the number of graduated 8(a) firms in accordance with the measure of success in section 101(b)(2) of the Business Opportunity Development Reform Act of 1988. 4. Implement a process that uses outcome-based performance goals for regular data-driven reviews and align program leaders’ personal performance plans with the goals so program office leaders are held accountable for improving program data quality, identifying effective practices, and validating promising initiatives, that aligns with OMB Circular A-11 Part 6 – The Federal Performance Framework for Improving Program and Service Delivery guidance. 5. Implement a process to ensure the systematic collection of accurate and complete data on program results and operations to make sure all program reporting requirements are met, in accordance with section 7(j)(16)(A) of the Small Business Act and Standards for Internal Control in the Federal Government Principles for Information and Communication. 6. Implement requirements for management to monitor that Business Opportunity Specialists consistently assess program participant’s development needs, counsel participants, conduct annual field visits, and maintain required documentation, as required by standard operating procedures. Of note is the need for BOS to “counsel participants” regarding business development issues. In our experience, we’ve heard of a wide range of levels of interaction and counseling between various BOS offices and it could be good for this to be more standard among different regions. Next, the OIG also recommended that the Administrator direct the Associate Administrator of the Office of Field Operations, in collaboration with the Associate Administrator of the Office of Government Contracting and Business Development, to carry out the final two recommendations, which follow: 7. Ensure all employees performing Business Opportunity Specialist duties maintain a current Federal Acquisition Certification in Contracting Level 1 Certification within a year of appointment in accordance with section 4(g) of the Small Business Act. 8. Use lessons learned from servicing 8(a) firms in an entirely virtual environment to coordinate district office resources and share best practices in order to equitably serve all 8(a) program participants. Align assigned Business Opportunity Specialist staffing levels accordingly to be consistent with ideal workload ratios as determined by the program office. When confronted with the OIG’s recommendations, SBA management fully agreed with five of them (#3 and #5-8), partially agreed with two of them (#1 and #2), and disagreed with one recommendation (#4). In the OIG’s opinion, the SBA Management’s planned actions in response to the recommendations successfully resolved three of the recommendations (#3, #7, and #8). Specifically, the OIG approved of the SBA’s “plans to identify program-level goals that align with the agency’s strategic plan[,]” and “plans to assess the staffing and resources allocated for SBA district offices to consistently provide business development assistance and improve 8(a) program participants’ customer experience.” But the OIG did not reach resolution with SBA Management on five of the recommendations (#1, #2, #4, #5, and #6). Even though the SBA Management agreed (or at least partially agreed) with four of these five recommendations, according to the OIG, SBA Management’s proposed did not fully address these five recommendations. Thus, the OIG report concluded that the OIG would “seek resolution of those recommendations in accordance with [its] audit resolution policies and procedures.” Only time will tell if and how the SBA’s 8(a) Program Management will address the OIG’s remaining concerns. But regardless, the OIG certainly provided some insightful considerations and suggestions for improving this incredibly valuable contracting program for small disadvantaged businesses. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post SBA’s Approach to Monitoring 8(a) Firms is Focused on Eligibility Rather than Business Development, Says SBA’s OIG first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The House recently passed Senate Bill 583, titled the “Promoting Rigorous and Innovative Cost Efficiencies for Federal Procurement and Acquisitions (PRICE) Act.” The Price Act would require the Department of Homeland Security (DHS) to report projects from its Procurement Innovation Lab (PIL) that have used innovative techniques to help modernize contracting procedures. The bill would also require the DHS to offer training to its personnel on how to use these techniques. In addition, the PRICE Act would require that these innovative best practices be made available to other federal agencies to improve procurement methods and training. The Price Act also supports the White House’s goals of providing new federal contracting opportunities to small disadvantaged businesses. A little background is helpful to understand the PRICE Act, and Congress nicely included some background in drafting the law. The act references the Business Opportunity Development Act of 1988, which established goals for federal contract awards to Veteran-owned Small Businesses (VOSBs), Service-Disabled Veteran-Owned Small Businesses (SDVOSBs), Women-Owned Small Businesses (WOSBs), Historically Underutilized Business Zones (HUBZones), and disadvantaged small businesses. Nevertheless, some agencies have been reluctant to utilize these contracting programs. The Price Act would provide a vehicle across agencies to identify and adopt best practices, procedures and strategies to improve procurement methods to increase small business participation in government contracting. Another impediment to the federal government achieving its procurement goals is that the current data systems in the federal procurement process are cumbersome and not user friendly for many small businesses; especially for those who are new to the system. A goal of the PRICE Act is to resolve these issues by requiring the Office of Management and Budget (OMB) to work with federal acquisition administrators to share innovative new contracting systems and procedures to modernize the application process. The PRICE Act seeks to address obstacles that small businesses face when trying to take advantage of federal contracting opportunities. Especially those small businesses owned by women, minorities and veterans. Senate Bill 583 specifically references the DHS as a leader in meeting small business contracting routinely earning the highest grade on SBA’s Annual Small Business Procurement Scorecard. SBA’s scorecard measures federal agencies’ success in meeting their overall small business contracting goals. DHS is the largest federal agency to achieve this record since the SBA began using the letter grade scorecard format in 2009. DHS attributes its success, in part, to its active internal collaboration. This collaboration is demonstrated in its Procurement Innovation Lab (PIL). The PIL is a DHS framework aimed at experimenting with innovative techniques for DHS acquisitions, evaluating those techniques and sharing the results and lessons learned. The PIL provides a safe space to test new ideas in the acquisition process, share lessons learned, and promote best practices. The Price Act aims to use the success from the DHS and its PIL to adopt modernized business practices across all federal agencies. The bill requires DHS to publish on its website an annual report of PIL projects that have successfully used innovative techniques. Senate Bill 583 also requires the Chief Acquisition Officers Council (CAOC) to convene to examine best practices from the PIL. The CAOAC will subsequently issue a report on the OMB website with the goal of promoting rapid adoption of the best practices determined by the CAOCs examination. In addition, the CAOC will encourage the head of each Federal agency to maintain a website dedicated to acquisition and innovation. The report mentions the following as things that should be reported: (A) innovative acquisition practices and applications of technologies that have worked well in achieving better procurement outcomes, including increased efficiency, improved program outcomes, better customer experience, and meeting or exceeding the goals under section 15(g) of the Small Business Act (15 U.S.C. 644(g)), and the reasons why those practices have succeeded; (B) steps to identify and adopt transformational commercial business practices, modernized data analytics, and advanced technologies that allow decision making to occur in a more friction-free buying environment and improve customer experience; and (C) any recommendations for statutory changes to accelerate the adoption of innovative acquisition practices. The Congressional Budget Office (CBO) in its cost estimate expressed that Senate Bill 583 would probably change some methods and activities in contracting processes across most federal agencies. CBO also expects that the bill would codify many of the methods and activities which would help to lock in best practices and provide consistent processes across agencies. The legislation is supported by a broad coalition of groups including Small Business Majority, Association of Procurement Technical Assistance Centers (APTAC), GovEvolve, HUBZone Contractors National Council, and the Women Veterans Business Coalition. Senate Bill 583 was submitted to the President for signing on February 14th. We’ll keep you updated on this and other matters related to small business federal contracting. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post House Passes Senate Bill to Modernize Processes to Increase Small Business Participation in Federal Contracting first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday, Readers! We hope you had a wonderful Valentine’s Day and a very productive week. Another winter storm blew in on Thursday and we received 7 inches of snow. But do you know what we say in Kansas? “If you don’t like the weather, wait a minute. ” By Monday we will reach a temperature of almost 70 degrees! The weather in Kansas can change on a dime. We put together some informative articles on federal government contracting news. Enjoy and stay warm or cool or anywhere in between in your part of the world. We’ll be doing the same here. I just wonder if I’ll need a heavy coat or a light jacket? Best to be prepared and keep both handy. Have a great weekend. Companies ask GSA to address inflation in government contracts [FedNewsNet]Pentagon: Contractor mergers hurt national security, economy [FedNewsNet]What full-year appropriations halfway through the year means to contracting [FedNewsNet]Can’t Pad Key Personnel Résumé, Says GAO [SmallGovCon]GAO sustains contract award challenge brought using evidence from LinkedIn [FedScoop]National Security Snapshot Challenges Facing DOD in Strategic Competition with China [GAO]Energy Department looks to build cyber threat detection platform for electric grid [FedNewsNet]CISA: Russian hackers have infiltrated defense contractors’ unclassified networks [FedNewsNet]Another Former Ft. Bragg Employee Pleads Guilty to Bribery [DoJ]How much of rulemaking is done by contractors? [Brookings]GSA to continue services on $50B EIS contract’s predecessor [FedScoop]Postal Regulatory Commission appoints first chief data officer [FedScoop]In-house expertise key to working with IT contractors, VA CIO says [FedScoop]Army needs to better use recent software authorities, new acquisition leader says [FedScoop] The post SmallGovCon Week in Review: February 14-18, 2022 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

SBA publishes its semiannual Regulatory Agenda to provide an update on the various rules it has in the pipeline and an estimate for when they will be published or become final. While SBA doesn’t have to meet these timeframes, it’s always good to check in on what SBA has been working on when the final rules will come out. This agenda includes an update on increased size standards, along with some other important rules. Read on for the highlights and be sure to comment on any rules that you have an opinion on. Here are the key rules, along with a summary and the next steps for that rule. Proposed Rules Small Business Size Standards: Manufacturing and Industries With Employee Based Size Standards in Other Sectors Except Wholesale Trade and Retail Trade. SBA is reviewing its size standards to consider adjustments to reflect market conditions for NAICS codes in Sector 31-33 (Manufacturing) and industries with employee-based size standards in other sectors. SBA anticipates a proposed rule in March 2022. Small Business Size Standards: Calculation of Number of Employees for All Programs and of Average Annual Receipts in Business Loan, Disaster Loan, and Small Business Investment Company Programs. SBA will be proposing rules to address the 2021 NDAA rule that changed the employee-based size standards lookback period from 12 months to 24 months. It will also propose rules for average annual receipts using a 5-year average for SBA loan programs. SBA did not include a timetable for the final rule, but comments on the initial rule ended December 2021 for the proposed rule issued in November 2021 that we discussed on the blog here, so it’s possible the final rule comes out in 2022.National Defense Authorization Act of 2020, Credit for Lower Tier Subcontracting and Other Amendments. The SBA will be issuing a proposed rule to address how the 2020 NDAA required “SBA to alter the method and means of accounting for lower tier small business subcontracting.” This is a fairly limited change for subcontracting plan credit and SBA expects the proposed rule to come out in May 2022. Final Rule Stage Small Business Size Standards: Educational Services; Health Care and Social Assistance; Arts, Entertainment and Recreation; Accommodation and Food Services; Other Services. SBA has reviewed and will adjust size standards for all industries in North American Industry Classification System (NAICS) Sector 61 (Educational Services), Sector 62 (Health Care and Social Assistance), Sector 71 (Arts, Entertainment and Recreation), Sector 72 (Accommodation and Food Services), and Sector 81 (Other Services). The proposed rule suggested size increases for 70 industries, including, for example, 621910 Ambulance Services increasing to $20 million from $16.5 million. SBA expects the final rule in June 2022. Small Business Size Standards: Agriculture, Forestry, Fishing and Hunting; Mining, Quarrying, and Oil and Gas Extraction; Utilities; Construction. This proposed rule would increase size standards for 68 industries in Sector 11 (Agriculture, Forestry, Fishing and Hunting), Sector 21 (Mining, Quarrying, and Oil and Gas Extraction), Sector 22 (Utilities), and Sector 23 (Construction). Only two construction size standards would increase. For instance, 238290 Other Building Equipment Contractors would go from $16.5 million to $19.5 million. SBA expects a final rule in July 2022. Small Business Size Standards: Transportation and Warehousing; Information; Finance and Insurance; Real Estate and Rental and Leasing. This proposed rule would increase size standards for 45 industries in Sector 48-49 (Transportation and Warehousing), Sector 51 (Information), Sector 52 (Finance and Insurance), and Sector 53 (Real Estate and Rental and Leasing). For example, 484122 General Freight Trucking, Long-Distance, Less Than Truckload would increase to $38.0 million from $30.0 million. SBA expects the final rule in August 2022. Small Business Size Standards: Professional, Scientific and Technical Services; Management of Companies and Enterprises; Administrative and Support and Waste Management and Remediation Services. This proposed rule would increase size standards for 46 industries in Sector 54 (Professional, Scientific and Technical Services), Sector 55 (Management of Companies and Enterprises), and Sector 56 (Administrative and Support, Waste Management and Remediation Services). For example, 541330 Engineering Services is increasing to $22.5 million from $16.5 million, while 541310 Architectural Services is increasing to $11.0 million from $8.0 million. SBA expects the final rule in June 2022. There are a number of important changes summarized here that are going to have proposed rules issued or scheduled to go into effect over the next few months. The size standards, for one, could allow companies to remain as small businesses for many more years. We’ll keep you updated on SmallGovCon once the final versions of these rules are released, so stay tuned. Questions about this post, or needing assistance with a GAO protest? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post What’s on SBA’s Regulatory Plate for 2022? A Hint: Increased Size Standards first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Koprince McCall Pottroff LLC presents a webinar hosted by EPHCC that covers important legal concepts in federal government contracting that are easy to get wrong. Federal contracting rules and laws are complicated, and the rules aren’t always intuitive. Many contractors make legal mistakes routinely, involving everything from completing SAM profiles to calculating small business size to communicating with government contracting officers. The attorneys from Koprince McCall Pottroff will discuss the top 21 most common legal mistakes that contractors make time and time again. You will learn what these common mistakes are and how to not make the same mistakes. On February 24, join me, Shane McCall, and Kevin Wickliffe as we go over these important topics in plain English in a single webinar. To register, just click here. The post Event: Top 21 Legal Mistakes in Federal Government Contracting, Hosted by EPHCC first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Hello Readers! In this webinar hosted by the Ohio PTAC, attorneys Nicole Pottroff and John Holtz will be pointing out and helping you avoid common legal mistakes in federal government contracting. Join us this Thursday (February 17) by registering here. The post Webinar Event: Ohio PTAC – Top 10 Legal Misconceptions in Federal Contracting and Pending Legal Changes first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

GAO recently sustained a protest to the evaluation of an awardee’s management approach based on a material misrepresentation in its proposed key personnel experience (that the protester found on Linkedin, no less). And GAO found the misrepresentation was material because the agency relied upon it, and it significantly impacted the agency’s evaluation. Let’s take a closer look. Insight Tech. Sols., Inc., B-420133.2 (Dec. 20, 2021) involves a task order issued by the Department of Homeland Security, U.S. Immigration and Customs Enforcement seeking information technology support services for the agency’s student and exchange visitor program. The agency issued the solicitation under the National Institutes of Health’s CIO-SP3 small business GWAC. The solicitation anticipated award of a task order on a best-value tradeoff basis. It said the agency would make its source selection decision based on a tradeoff analysis considering four evaluation factors (from most to least important): (1) technical approach; (2) experience; (3) management approach; and (4) price. The agency said it would not conduct discussions or request proposal revisions. As relevant here, for the management approach factor, the solicitation identified six key personnel, including a project operations manager, and listed their qualifications. The project operations manager needed “a minimum of five (5) years of experience in managing projects, with a focus on business process and re-engineering projects.” The solicitation did not require proposed key personnel résumés. But it did require offerors to “clearly identify” qualifications and identify any “unique qualifications or experience proposed that exceed the minimum qualifications.” It said that the agency would evaluate whether proposed “qualifications” were “reasonable for successfully and efficiently performing the work,” and that proposed “personnel that exceed the minimum requirements may be evaluated more favorably.” It also said the agency would evaluate offerors’ approaches to addressing vacancies. For this management approach factor, the agency was to assign each proposal one of three ratings: exceeds the requirements, meets the requirements, or fails to meet the requirements. The solicitation didn’t call for the assessment of strengths or weaknesses. But it said the agency would document any “noteworthy observations” in the offerors’ management approaches. The agency received seven proposals for this procurement. And the protester and awardee were among the four finalists. The agency evaluated both the protester’s and awardee’s technical approach and experience as exceeds the requirements. But it determined the protester’s management approach meets the requirements while the awardee’s exceeds the requirements. And the awardee’s price was $13,579,169, while the protester’s price was $11,658,272 (nearly $2 million lower). As relevant here, the awardee included a key personnel requirements table. For the proposed project operations manager, the proposal reiterated the solicitation’s five-year management experience requirement, and next to it, said: “9 years of relevant experience including 5 years support and quality oversight of the SEVP Contact Center.” In its management approach factor evaluation, the agency found that the awardee’s proposed key personnel had “experience that exceed[s] the minimum experience requirements identified by the PWS” and said that this added value and increased the likelihood of the awardee’s success. The agency’s report specifically noted the project operations manager’s listed qualifications, concluding that the “added experience causes the Government to have high confidence that [the awardee] can successfully perform the proposed requirements with enhanced expertise.” The agency provided a similar evaluation conclusion for the protester’s proposed key personnel experience. In the end, the agency found that the awardee’s proposal represented the best value to the government, as it was superior to the protester’s proposal under the management approach factor, making it worth the 16% percent price premium in the agency’s eyes. In the reported tradeoff analysis comparing the two offerors’ management approaches, the source selection authority specifically noted that the awardee had proposed “personnel with significantly more experience than the minimum requirements.” And the analysis did not mention the protester’s proposed key personnel. The protester filed protest at GAO, arguing that the evaluation and award were improper because the awardee had misrepresented its proposed project operations manager’s relevant experience, specifically, that he or she had nine years of relevant management experience. In fact, according to the protester, the proposed project operations manager not only lacked the purported nine years of experience, he or she actually failed to meet the solicitation’s five-year minimum experience requirement. Relying on its debriefing, the protester argued that the agency’s evaluation of the awardee’s technical acceptability and benefits of the the proposed project operations manager’s experience were largely based on that misrepresentation. Thus, the protester concluded that the evaluation was flawed and failed to provide a reasonable basis for the award. In reaching its decision on the protest, GAO stated its standards for material misrepresentations in proposals as follows: A material misrepresentation in a proposal can provide a basis for disqualifying a proposal and canceling a contract award based upon the proposal. A misrepresentation is material where the agency relied upon it and it likely had a significant impact upon the evaluation. GAO then explained that the protester had supported its material misrepresentation argument with a copy of the proposed project operations manager’s LinkedIn profile. And the profile listed fewer than five years work experience at the time proposals were submitted and three of the four positions listed in the profile did not demonstrate the required management experience. Neither the intervening-awardee nor the agency disputed the proposed operation manager’s employment information listed on the LinkedIn profile. The awardee maintained that its key personnel candidate “had the required experience” but did not explain or support that assertion. And the agency argued that its evaluation was reasonable because agencies are “generally entitled to rely on information provided by an offeror in its proposal, absent significant evidence, reasonably known to the evaluators, casting doubt on the accuracy of the information.” Thus, according to the agency, even if there were a material misrepresentation, it would not provide a basis to sustain, since the protester “has not shown that the [a]gency had any reason to believe a misrepresentation had occurred.” It even argued that “considering information not before it at the time of evaluation and award would be tantamount to creating a post hoc resume requirement and reevaluating proposals against it.” But GAO didn’t buy it. It said: The agency’s response misstates the issue before us. Here, we are not reviewing a straightforward protest of the agency’s evaluation; rather, the protester has claimed that the awardee’s proposal contains a material misrepresentation that had a significant impact upon the evaluation. When resolving allegations of material misrepresentation, our Office may consider information raised during the protest that was not reasonably known to the agency during the evaluation. In the instant protest, we find it not only appropriate, but necessary, to consider information not contained in [the awardee’s] proposal in order to determine whether it misrepresented its stated project operations manager’s experience. And with that, GAO relied on the new information to reach its decision. In doing so, GAO noted that the awardee had failed “to proactively demonstrate that the key personnel experience claimed in its proposal was accurate,” even upon GAO’s request that it submit the proposed personnel’s updated resume or other information to establish the relevant experience. The awardee did submit a declaration from the proposed key personnel, but it openly stated that at the time of proposal submissions, he or she “had worked on the predecessor SEVIS contracts for, at the most, 4 years and 7 months.” The declaration also discussed a help desk analyst position that contrasted with the proposal’s description of that position as relevant managerial experience. Thus, GAO concluded that awardee’s assertion that its proposed project operations manager had nine years of project management experience was, in fact, a misrepresentation. It then went on to analyze the effect of this misrepresentation on the procurement, finding that the agency “clearly relied” on the awardee’s misrepresentation in its evaluation. GAO said: The record demonstrates that, when evaluating [the awardee’s] management approach, the agency found that the proposed key personnel had “experience that exceed[s] the minimum experience requirements identified by the PWS.” The agency specifically based this finding in part on [the awardee’s] misrepresentation, noting in the evaluation report the project operations manager’s “9 years of relevant experience, including 5 [years] supporting the quality and oversight of the SEVP Contract Center.” GAO also noted that the agency had actually conceded its reliance on the misrepresentation when it argued during the protest proceedings “that its evaluation was reasonable precisely because it was exclusively based on information contained in [the awardee’s] proposal and not on any other outside information.” Next, GAO addressed the agency’s argument that the awardee’s misrepresentation “was not material to the source selection decision and therefore not prejudicial.” According to GAO, the agency claimed this proposed key personnel’s experience was not the only basis for the confidence-raising finding in the management approach evaluation. The agency also argued that “nothing would have changed if the experience at issue had not been evaluated as exceeding the minimum experience requirements.” But GAO was not persuaded. GAO cited to the solicitation’s PWS and its minimum qualifications for key personnel requiring the project operations manager to have five-years minimum management experience focused on business process and re-engineering projects. GAO did concede that the solicitation also said, under the management approach factor, that the agency would evaluate whether proposed “qualifications . . . are reasonable for successfully and efficiently performing the work” and “personnel that exceed the minimum requirements may be evaluated more favorably.” But it explained the following: Where a solicitation states that the qualifications of key personnel will be evaluated, and a proposal fails to demonstrate that key personnel hold qualifications that the solicitation requires them to possess, the proposal may be evaluated as unacceptable. Our Office will sustain a protest where the agency unreasonably concludes that a proposed key person meets minimum experience requirements. Applying that standard, GAO explained that the awardee here could not have accurately represented that its proposed project operations manager had nine, or even five, years of relevant experience. Because the agency had “relied exclusively” on the proposals’ contents in evaluating key personnel qualifications, the agency would not have been able to reach the same evaluation conclusion if the awardee had accurately represented the person’s relevant experience. Thus, GAO concluded that the awardee’s “misrepresentation had a material effect on the evaluation because it formed the basis for the agency conclusions that [the awardee’s] proposal both met and exceeded the proposed project manager key person minimum qualifications.” Finally, GAO found that this misrepresentation and the agency’s reliance on it during the evaluation prejudiced the awardee. GAO “will sustain a protest only when a protester demonstrates that, but for the agency’s improper action, it would have had a substantial chance of receiving the award.” Here, GAO noted that the protester had the lowest-priced proposal. It said, had the awardee’s proposal been eliminated from competition or had a less favorable evaluation for the management approach factor, the protester would have stood a substantial chance of award. Based on these findings and the prejudice to the protester, GAO sustained the protest. * * * There are takeaways on both sides of the fence here. For one, it is not wise to misrepresent qualifications, resources, personnel, or really, anything, in your proposal. Even if it is not something the offeror thinks is a “big deal,” it could be something the agency relies on in its evaluation, making it material and highly problematic. Additionally, if you are the unsuccessful offeror and something in your debriefing “doesn’t feel right,” it may be fruitful to do your research on the awardee and file a protest. Of course, misrepresentations like this may be difficult to catch, but it’s still worth it to try and even the playing field for government procurement. Questions about this post, or needing assistance with a GAO protest? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Can’t Pad Key Personnel Résumé, Says GAO first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday, Blog Readers! We are sad that our Kansas City Chiefs will not be playing in the Super Bowl, this Sunday, but nevertheless it should be a competitive game and fun to watch. If you are heading out to that Super Bowl Party or just staying in this weekend, we thought we would share a delicious dip recipe from one of our SmallGovCon team members to enjoy during the big game. 9 Layer Italian Dip 1lb. Italian Sausage (browned & drained)(2) Bricks of Cream Cheese(1) Package Zesty Italian Salad Dressing Mix(1) Package Shredded Mozzarella CheeseYour Favorite 6 Pizza Toppings (Pepperoni, Olives, Sun-Dried Tomatoes, Artichoke Hearts, etc.)Mix the cream cheese with the salad dressing mix and spread on bottom of baking dish. Layer your pizza toppings over the sausage with the mozzarella cheese. Bake for 40 minutes at 350 degrees. It’s great served with garlic bread. Enjoy! And here are a few articles concerning federal government contracting news to read while you wait for kick-off. Have a great weekend! Order Sets Standards for Federal Construction Projects, Training for Contracting Workforce [FedWeek]Anything can have DEIA if agencies look hard enough [FedNewsNet]With New White House Directives, Some Startups Could Compete for Government Contracts [Yahoo]Air Force Notifies Industry of $90M Systems Engineering, Tech Assistance Procurement Plan [ExecBiz]Legislation to Expand Federal Contracting Opportunities Reaches President’s Desk [NextGov]Why services contractors have a difficult landscape to cross [FedNewsNet]SBA Launches Journey 6 to Help Women Business Owners Compete for Federal Contracts [SmlBizTrends]United States Army Research Biologist and Contractor Charged in Bribery Scheme at Aberdeen Proving Ground [DoJ]Florida Man Sentenced for Paying Bribes and Kickbacks and Defrauding the United States [DoJ]New DOD Chief Digital Artificial Intelligence Office Launches [DoD]Executive Order on Use of Project Labor Agreements For Federal Construction Projects [WH]House sends contracting innovation bill to president’s desk for signing [FedScoop]Lawmakers urge cancellation of multibillion dollar VA logistics system [FedNewsNet]Minority Business Leaders Advocate for Elevated Access to Federal Infrastructure Contracts [BlkEnt]White House Unveils Updated Critical and Emerging Tech List [ExecGov] The post SmallGovCon Week in Review: February 7-11, 2022 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Hello Readers! If you work with the Air Force, you might find it helpful to get an overview of the supplement FAR provisions that the Air Force applies to its procurements. Attorneys Nicole Pottroff and Kevin Wickliffe break down the AFFARS for you in this complimentary webinar. Join us next Wednesday (February 16) by registering here. The post Webinar Event: FAR Supplement – AFFARS – Air Force first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

In response to an Executive Order, the FAR Council has recently proposed to amend the FAR in an effort to ensure that major federal procurements will minimize the risk of climate change. And DoD, GSA, and NASA sought the public’s input on the issue. Let’s take a closer look. The FAR Council issued an advance Notice of Proposed Rulemaking on October 15, 2021, which covers the second case (FAR Case No. 2021-016, Minimizing the Risk of Climate Change in Federal Acquisitions) the FAR Council has opened in response to President Biden’s May 20, 2021, Executive Order (E.O. 14030, Climate-Related Financial Risk). The E.O. addressed the increasing risks that climate change impacts are posing to financial assets, companies, communities, workers, and the Federal Government. It said: The failure of financial institutions to appropriately and adequately account for and measure these physical and transition risks threatens the competitiveness of U.S. companies and markets, the life savings and pensions of U.S. workers and families, and the ability of U.S. financial institutions to serve communities. To further the administration’s goals, section 5(b) of the E.O. required the following: (b) The Federal Acquisition Regulatory Council, in consultation with the Chair of the Council on Environmental Quality and the heads of other agencies as appropriate, shall consider amending the Federal Acquisition Regulation (FAR) to: (i) require major Federal suppliers to publicly disclose greenhouse gas emissions and climate-related financial risk and to set science-based reduction targets; and (ii) ensure that major Federal agency procurements minimize the risk of climate change, including requiring the social cost of greenhouse gas emissions to be considered in procurement decisions and, where appropriate and feasible, give preference to bids and proposals from suppliers with a lower social cost of greenhouse gas emissions. Currently, FAR subpart 23.8 (and the corresponding clauses in FAR part 52) provides some coverage of greenhouse gas emissions. And the first case the FAR Council opened in response to this E.O. (FAR Case No. 2021-015, Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk) implemented section 5(b)(i), directed at “major Federal suppliers,” requiring them to “publicly disclose greenhouse gas emissions and climate-related financial risk and to set science-based reduction targets.” The instant Proposed Rulemaking (FAR Case No. 2021-016), implements section 5(b)(ii), which is instead directed at Federal procuring agencies. In the FAR council’s own words: The E.O. states that the Federal Government should lead by example by appropriately prioritizing Federal investments and conducting prudent fiscal management. One critical lever is ensuring that the Federal Government manages climate-related financial risk within its own procurement activity, while also leveraging its scale as the Nation’s largest spender to speed the adoption of key assessment, disclosure, and mitigation measures across the private sector. Thus, DoD, GSA, and NASA sought public comment in response to the following questions: (a) How can greenhouse gas emissions, including the social cost of greenhouse gases, best be qualitatively and quantitatively considered in Federal procurement decisions, both domestic and overseas? How might this vary across different sectors? (b) What are usable and respected methodologies for measuring the greenhouse gases emissions over the lifecycle of the products procured or leased, or of the services performed? (c) How can procurement and program officials of major Federal agency procurements better incorporate and mitigate climate-related financial risk? How else might the Federal Government consider and minimize climate-related financial risks through procurement decisions, both domestic and overseas? (d) How would (or how does) your organization provide greenhouse gas emission data for proposals and/or contract performance? (e) How might the Federal Government best standardize greenhouse gas emission reporting methods? How might the Government verify greenhouse gas emissions reporting? (f) How might the Federal Government give preference to bids and proposals from suppliers, both domestic and overseas, to achieve reductions in greenhouse gas emissions or reduce the social cost of greenhouse gas emissions most effectively? (g) How might the Government consider commitments by suppliers to reduce or mitigate greenhouse gas emissions? (h) What impact would consideration of the social cost of greenhouse gases in procurement decisions have on small businesses, including small disadvantaged businesses, women-owned small businesses, service-disabled veteran-owned small businesses, and Historically Underutilized Business Zone (HUBZone) small businesses? How should the FAR Council best align this objective with efforts to ensure opportunity for small businesses? Though the public comment period ended December 14, 2021, you can still contact Ms. Jennifer Hawes, Procurement Analyst, at 202-969-7386 or by email at jennifer.hawes@gsa.gov, for clarification of the content of this Proposed Rulemaking. At this time, there have been no further updates on the outcome of this case or this Proposed Rulemaking. But be sure to keep an eye on the SmallGovCon blog for updates on this topic, as it could have a significant effect on the future of Federal procurements! Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post FAR Council Seeks to Address Climate Change in Federal Contracting first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Hello Readers! If you work with the army, you might find it helpful to get an overview of additional FAR regulations that the army has to abide by. Attorneys Nicole Pottroff and John Holtz break down the AFARS for you in this complimentary webinar. Join us tomorrow by registering here. The post Webinar Event: FAR Supplement – AFARS – Army first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Additional changes to the submission date and the self-scoring requirements for CIO-SP4 offers make up the latest batch of amendments published by the National Institutes of Health Information Technology Acquisition and Assessment Center, leaving offerors hopeful the latest changes will be the last in a long string of amendments. Amendment 15 pushes back the submission date for CIO-SP4 offers and addresses a change to offer modifications. Amendment 16 includes additional changes to submission requirements and removes the iNsight method of calculating Self Scores. Per Amendment 15, released on January 27, 2022, Submissions are now due by February 11, 2022. Additionally, this amendment (sort of) helps to clarify instructions related to submission requirements by removing language regarding submission of self-scoring data and proposal files. Prior to this change, offerors were permitted to modify their self-scoring data and proposal files up until submission. With Amendment 15, the language which permitted the modification was deleted. Presumably, this means that no additional modifications will be allowed once you’ve uploaded each part, regardless of whether you’ve officially submitted them or not, but offerors are left to figure that out on their own due to no further clarification beyond the deleted language. Amendment 16, released on February 3, 2022, makes additional changes to Self-Scoring methods and submission requirements, as well as addresses some of the uncertainty created by Amendment 15’s deleted language. First, iNsight, the method of calculating Self Scores added by Amendment 12, has been deleted and the Self-Scoring Sheet originally found in Attachment J.5 has returned. Next, Amendment 16 clarifies the ambiguities from Amendment 15’s deleted language regarding modifications by laying out new submission requirements which include an acknowledgement of all 16 amendments. If an offeror submitted their proposal by August 27, 2021 and did not make revisions due to changes in Sections L.5.2.1 through L.5.2.4 as advised in Amendment 12, the offeror must fill out Attachment J.9 “Amendments Acknowledgements” and submit that form alone via email. If an offer requires revisions due to amendments of Sections L.5.2.1 through L.5.2.4 (mainly dealing with experience examples required by both the mentor and protégé in a mentor protégé agreement), revised proposals along with a completed Attachment J.9 must be submitted via email. Detailed instructions for both situations can be found on page 139 of Amendment 16. Be sure to check these amendments closely. We continue to monitor this important solicitation to determine if NITAAC is getting close to closing the proposal submission period and starting the evaluation period. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Is the End Near? NITAAC Releases CIO-SP4 Amendments 15 and 16 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy February, Readers! We had some excitement this week when a winter snowstorm moved into our neck of the woods. I’m happy to report that all is well and the streets have been cleared by our vigilant city road crews whom we are very grateful for. It sure was a beautiful, snowy site. There was a lot going on in federal government contracting, this week, including an announcement from the DoD that John Sherman will be acting chief digital and AI officer as well as the deadline has arrived for paying federal contractors $15 per hour. Read these articles and more below. Have a great weekend! Performance Management and Assessment of Federally Funded Research and Development Centers [Rand]GSA meeting with industry about electric vehicle needs of US government [GovMatters]Statement by SBA Administrator Guzman Observing Black History Month 2022 [SBA]Addressing the Impact of Inflation on Government Contracts [CPG]Indictment and Guilty Plea Entered in Iranian Export Case [DoJ]U.S. Settles Dispute Over Disadvantaged Business Enterprise Fraud [DoJ]The Deadline is Here for Federal Contractors to Start Paying at least $15 an Hour [GovExec]How the boost in federal contracting with small and disadvantaged businesses will actually happen [FedNewsNet]A big governmentwide telecom contract just can’t seem to gain altitude [FedNewsNet]Crypto, Cybersecurity, Global Finance Leaders Talk Knowledge Gaps & Threat Landscape in Panel Discussion During POC’s Digital Currency and National Security Forum [GovConWire]John Sherman tapped to be acting chief digital and AI officer at DOD [FedScoop]Polaris solicitations for 2 small business pools coming in February [FedScoop]Federal appeals court strikes down FLRA decision setting higher bar for union negotiation [FedNewsNet]Top former DoD cyber official reaches settlement in bid to clear her name [FedNewsNet]BREAKING: Report Sends ‘Wake-Up Call’ for Health of Defense Industrial Base [NatDefMag] The post SmallGovCon Week In Review: January 31-February 4, 2022 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Federal contractors often ask: “It is better to team up for government work with a prime-sub arrangement or with a joint venture?” Well, (spoiler alert) the answer is: it depends. But I won’t leave you with just that. This three-part series will provide insight on some of the major differences between these two types of “teams” that offerors should consider when making the decision between a joint venture or prime/subcontractor team in competing for and performing federal contracts. While this series will not provide a comprehensive list of all the differences between these two types of teams, it will cover some of the big ones that seem to come up more frequently in this decision-making process. Our first article focused on workshare, and our second, on past performance. This final article of the three-part series will discuss the parties’ relationship with the government and with each other in both types of teams. Relationship with the Government In a joint venture relationship, the venturers are both parties to the government contract (although one of the parties must be designated as the managing venturer under the various joint venture regulations if it is a mentor-protégé joint venture or a joint venture with any kind of socioeconomic designation). In a joint venture, the parties are jointly liable for the obligations and requirements under the contract and also jointly entitled to the rights that arise thereunder. In a prime contractor/subcontractor team, the prime contractor is the only party in privity of contract with the government. Don’t worry, that is just a fancy way of saying that the prime contractor is the only one in a contractual relationship with the government and entitled to the obligations and rights that arise under it. In fact, a subcontractor actually has no rights or obligations under a federal government prime contract (although they do have rights and obligations under a subcontract). This is precisely why subcontract agreements for work performed under federal government prime contracts may often have a mandatory “pass-through claim” provision (requiring the prime to submit subcontractor claims to the contracting agency)–as well as a bevy of FAR flow-down clauses listing the subcontractor’s responsibilities and rules for performing work under the federal contract (since those terms don’t apply directly to the subcontractor through the prime contract). Now, you may be wondering why this matters. And it is potentially not a deciding factor for some contractors in picking their teams. But this factor may come into play sometimes, including, during the following circumstances: Where the “non-lead” contractor (which here, will simply refer to the potential non-managing venturer or subcontractor) is new to the federal contracting realm and is looking to establish a relationship with a specific government agency, it may be wiser to push for a joint venture so a working contractual relationship between the contractor and the agency can begin to develop; orWhere the non-lead contractor already has a long-standing working relationship with the contracting agency, it can be beneficial to name that contractor as part of the joint venture team, rather than as a subcontractor, in competing for the work. Additionally, while all contractors hope there will be no issues with the government during their performance of a team project, those issues can and certainly do arise sometimes. This may also be something to consider in making your teaming decisions–or at least, in drafting your various teaming agreements. With a joint venture relationship, the parties can jointly bring claims against the government based on performance issues. But with a prime-subcontractor team, only the prime can bring claims against the government for performance issues. This is why–as I briefly mentioned above–it is vital to a subcontractor that the subcontract agreement include a pass-through clause allowing the prime to submit any subcontractor claims to the contracting agency on its behalf. Now that we have discussed a few potential considerations regarding teaming partners’ relationship with the government, let’s take a quick look at the other important relationship to consider in picking your team–the teaming partners’ relationship with each other. Team Members’ Relationship Some aspects of the partners’ relationship with each other that should be considered in deciding between a joint venture team and a prime-subcontractor team are the anticipated longevity of the teaming relationship and frequency of the teaming projects to be pursued. This is due to SBA’s notorious affiliation regulations, and the potential for two contractors to be found affiliates if they work together too closely, too many times, or for too long. The affiliation rules do provide some protection from affiliation for joint ventures–so long as the joint ventures only bid within the prescribed time frame of two years from date of first award (per each joint venture) and follow the other regulatory requirements for joint venture performance. Regarding joint ventures, SBA’s affiliation rules say the following: Once a joint venture receives a contract, it may submit additional offers for a period of two years from the date of that first award. An individual joint venture may be awarded one or more contracts after that two-year period as long as it submitted an offer including price prior to the end of that two-year period. SBA will find joint venture partners to be affiliated, and thus will aggregate their receipts and/or employees in determining the size of the joint venture for all small business programs, where the joint venture submits an offer after two years from the date of the first award. The same two (or more) entities may create additional joint ventures, and each new joint venture entity may submit offers for a period of two years from the date of the first contract to the joint venture without the partners to the joint venture being deemed affiliates. At some point, however, such a longstanding inter-relationship or contractual dependence between the same joint venture partners will lead to a finding of general affiliation between and among them. So this means, two contractors can jointly bid on as much government work as their hearts desire, so long as they only bid within the two-year period following the first award (and also, follow SBA’s other rules). And even then, the venturers could execute a second or third joint venture after that two-year period to continue jointly bidding work. But as the rule ever-so-vaguely notes, too many of these joint venture agreements between two contractors can eventually lead to affiliation. So again, the protection is limited. The prime-subcontractor relationship does not provide this same protection from affiliation, however. Even if a prime and subcontractor perform contract work in accordance with the limitations on subcontracting, they could still be found affiliates if the subcontractor performs too much of a certain contract or if the subcontractor gets too much of its revenue from the prime contractor (the details of these specific affiliation rules are outside the scope of this article, but you can read more about them here). Although this is not to say there is automatic affiliation from working with a subcontractor repeatedly; that sort of affiliation depends on looking at the entirety of the relationship. For purposes of this article, the takeaway from this comparison is merely this: if the two contractors are looking to work together on several projects within the next few years, it may be wise to take advantage of the guaranteed affiliation protection that the joint venture relationship can provide. The final aspect of the partners’ relationship with each other that should be considered in deciding between a joint venture team and a prime-subcontractor team that we will discuss in this article is payment of the team members. Again, both contractors hope there will be no issues with payment for their part of the performance on behalf of the government–or the other team member. But these things do happen. And depending on the parties’ relationship with one another and prior dealings, that may be something to consider in picking your team as well. For a joint venture relationship, the rules say that the venturers will share in the profits in proportion to their workshare. They also require the establishment of a separate bank account which “must require the signature or consent of all parties to the joint venture for any payments made by the joint venture to its members for services performed.” But for a prime-subcontractor relationship, the government pays the prime–only–and then, the prime pays the subcontractor for their share of the work in accordance with the subcontract agreement. Prime-subcontractor teams should avoid any “profit-sharing” arrangements, as the SBA’s Office of Hearings and Appeals have found that it may be a factor giving rise to affiliation. This means, the subcontractor would need to ensure its payment terms are clearly expressed in the subcontract agreement. In the event the subcontractor was not paid, it would have to take that up directly with the prime–as it does not have access to a shared operating account or a direct share of the profits. *** As indicated at the beginning of this article, and further demonstrated herein, there is no clear-cut best choice for which type of team you should choose. But hopefully, you now have some big picture considerations to mull over in making your own decision under your specific circumstances. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Picking Your Team: Joint Ventures Versus Prime/Subcontractor Teams (Part Three, Relationships) first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Hello Readers! We have three events this month that we’d like to invite you to attend. All three events are complimentary, so we hope to see you there! First off, on February 9, we have a webinar about the FAR Supplement for 2022 that is specific to the Army – AFARS. The presenters for this event are Nicole Pottroff and John Holtz. Register here. Next, on February 16, we have a webinar about the FAR Supplement for 2022 that is specific to the Air Force – AFFARS. The presenters for this event are Nicole Pottroff and Kevin Wickliffe. Register here. Finally, on February 17, we have a webinar we are doing with the Ohio University PTAC about the Top 10 Legal Misconceptions in Federal Contracting and Pending Legal Changes. The presenters for this event are Nicole Pottroff and John Holtz. Register here. If you want to look even further into the future, you can check out our events page here. Come join us! The post Upcoming Koprince McCall Pottroff LLC Events – February 2022 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

On January 13, 2022 the Secretary of the Department of Health and Human Services (HHS) issued its Final Rule governing the implementation of the Buy Indian Act (Act). This rule clarifies the preference for Indian-owned and controlled businesses and removes barriers by alleviating unnecessary regulatory burdens. If you’re a frequent visitor to our blogs, you may be thinking, “wait what, didn’t you just blog about this last November?” Actually, the subject of the blog about the Buy Indian Act from November was the proposed rules governing the Buy Indian Act issued by the Department of Interior (DOI) covering procurements of the Bureau of Indian Affairs (BIA). HHS’s Final Rules issued on January 13th (Final Rule) supplement and amend regulations guiding implementation of the Buy Indian Act for procurements by the Indian Health Service (IHS). Given the long scattershot implementation of the Buy Indian Act, how the Act it is applied to different agencies, the multiple notices of proposed changes to the Buy Indian Act, along with the general decentralized structure of procurement regulations, it can all be a bit confusing. A bit of background may help to put it all in context. Application of the Buy Indian Act The Buy Indian Act Authority was passed into law in 1910. The Buy Indian Act provided the Secretary of the Interior, Bureau of Indian Affairs (BIA), the authority to set aside procurement contracts for Indian-owned and controlled businesses. The Buy Indian Act originally applied only to the DOI (which houses the BIA). In 1955 the Public Health Service under the Transfer Act of 1954 (Transfer Act) moved health care from BIA to the Department of Health Education & Welfare and established the IHS. The Transfer Act authorizes the Secretary of HHS to ‘‘make such other regulations as he deems desirable to carry out the provisions of the [Transfer Act]’’. The Secretary’s authority to carry out functions under the Transfer Act is vested with the Director of IHS. The BIA and IHS are the only agencies allowed to use the set-aside program under the Buy Indian Act. This differs from some other government set-aside programs. The 2020 Buy Indian Act Amendment In 2020 Congress passed the Indian Community Economic Enhancement Act of 2020 (ICEE) that sought to expand contracting opportunities under the Buy Indian Act. ICEE amended the Buy Indian Act to expand the scope of the authority of the DOI and HHS to make acquisitions subject to the set-aside preferences under the Buy Indian Act. To apply this authority, ICEE directs the Secretaries of DOI and HHS to create regulations to implement the objectives of ICEE and to “harmonize the procurement procedures of the Department of the Interior and the Department of Health and Human Services, to the maximum extent practicable.” Prior to ICEE, the Buy Indian Act provided very little detail as to how Indian set-aside procurements were to be conducted. The extent of the direction included in the Buy Indian Act is a provision which states to “[s]o far as may be practicable Indian labor shall be employed, and purchases of the products (including, but not limited to printing, notwithstanding any other law) of Indian industry may be made in open market in the discretion of the Secretary of the Interior.” 25 U.S.C. § 47. The provision proved to be much more aspirational than directive. DOI Rules In response to the ICEE directive, the DOI issued its proposed rules to revise and supplement Department of the Interior Acquisition Regulations (DIAR) and Federal Acquisition Regulation (FAR). As discussed in detail in the earlier blog, the rules addressed barriers identified as limiting Indian owned business from fully participating in DOI procurements. The DOI’s proposed rules are pending adoption and final comments on the proposed rules were due on December 27, 2021. IHS Rules Now we’re back where we started. The Final Rule is the IHS’s response to the ICEE directive from Congress. Since the IHS and BIA are the only two agencies authorized to utilize the Buy Indian Act, an overall objective of the Final Rule is to align IHS’ processes with those of the DOI. The goal being to ensure uniformity of the procurement process for offers submitted by Indian owned businesses under solicitations set-aside under the Buy Indian Act. The Final Rule revises and supplements the FAR and the HHS Acquisition Regulation (HHSAR) and has ten main components: 1) Alleviates unnecessary regulatory burden on Indian Economic Enterprises; 2) Expands application of the Buy Indian Act to all construction including the planning, design and construction of health care facilities, personnel quarters, and water supply and waste disposal facilities; 3) Conforms language of the Buy Indian Act in its acquisition policies and procedures to better align with the BIA to provide consistent implementation and transparency for Indian-owned and -controlled businesses. 4) Includes definitions to identify the requirements of the parties for eligibility for preferences under the Buy Indian Act. For example: Indian Economic Enterprise (IEE) means any business activity owned by one or more Indians or Indian Tribes that is established for the purpose of profit provided that: The combined Indian or Indian Tribe ownership must constitute not less than 51 percent of the enterprise; the Indians or Indian Tribes must, together, receive at least a majority of the earnings from the contract; and the management and daily business operations of an enterprise must be controlled by one or more individuals who are Indians. An “Indian Small Business Economic Enterprise (ISBEE) means an IEE that is also a small business concern established in accordance with the criteria and size standards of 13 CFR part 121.” 5) Strengthens oversight of the Buy Indian Act to reduce the potential for fraud and abuse; 6) Clarifies the preference for granting Indian Economic Enterprises Buy Indian Act set-aside awards ahead of other small businesses. 7) The Final Rule also provides for tiered priority for set-aside purchases by IHS, similar to the small business Rule of Two or VA Rule of Two. First, “[t]he CO will give priority to ISBEEs for all purchases, regardless of dollar value, by utilizing ISBEE set-aside to the maximum extent possible.” The CO may consider the ISBEE for either a set-aside or as sole source award. After market research, if the CO determines that “there is no reasonable expectation of obtaining offers from two or more ISBEEs that will be competitive in terms of market price, product quality, and delivery capability.” If not, then the CO may consider an IEE for either a set-aside or as sole source award. If, after market research, the CO determines that there is no reasonable expectation of obtaining two or more offers that will be competitive from ISBEEs and/or IEEs, then the CO follows the Deviation process included in the Final Rule. 8) The Final Rule provides for subcontracting limitations for ISBEE and IEE set-asides by incorporating FAR 52.219-14, Limitations on Subcontracting. Also, all awards to ISBEEs and IEEs will be subject to the Indian Economic Enterprise Subcontracting Limitations provided in the Final Rule. 9) The Final Rule applies the Buy Indian Act to “all acquisitions, including simplified acquisitions, made by IHS” and HHS purchases on behalf of IHS. However, the Buy Indian Act may not be used to obtain services through the Purchased/Referred Care program (healthcare services referred to providers in the private sector.) 10) The rule also requires the IHS to update its internal Indian Health Manual in support of the Buy Indian Act to provide for specific processes with respect to deviations, challenges and how IHS will report on the Buy Indian Act contract activities. There is no certification process under the Buy Indian Act regulations. An Indian-owned or tribal-owned firm self-certifies that it qualifies as an IEE in its response to set a-side procurements. The Final Rule becomes effective March 14, 2022. Summary The collective effect of the DOI and IHS supplements to the Buy Indian Act regulatory structure is the elimination of many bureaucratic impediments for Indian owned businesses. The changes should open doors to new opportunities for these businesses, encourage new partnerships, and generally make the process easier for all involved. The coordination of the rules will also bring the procurement process under the Buy Indian Act closer to the standards for other set-aside programs. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post IHS Issues Final Rules Implementing the Buy Indian Act first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday, Readers! We have a fresh batch of federal government contracting articles for you. Yes, we’re all tired of dealing with COVID-19, but it’s important to stay up-to-date, so we have the latest news about the vaccine mandates and how the pandemic has affected contracts for you. In fact, Shane McCall, Equity Partner of Koprince McCall Pottroff LLC, is quoted in the Construction Dive article about force majeure clauses losing their punch. We also have an interesting article about contrasting results from surveys about customer experience with federal agencies. Read about these topics and more below. Also, don’t forget to visit our blog for even more federal government contracting news. Task force tells agencies how to handle court injunction on vaccine mandate [FedNewsNet]Contractors mull the practical realities of the Supreme Court ruling against vaccine mandates [FedNewsNet]A new mechanism to help agencies avoid buying counterfeit products [FedNewsNet]Army working to deploy first OCONUS cloud system in the Indo-Pacific [FedScoop]Robin Carnahan on GSA’s role making ‘the damn websites work’ [FedScoop]White House Praises DOD Acquisition Professionals for COVID-19 Efforts Around the World [DoD]Women-Owned Small Business and Economically Disadvantaged Women-Owned Small Business Certification; Establishment of Effective Date [FedReg]The Dotted Line: COVID-19 force majeure clauses are losing their punch [ConDive]White House publishes final zero trust strategy for federal agencies [FedScoop]New DOD Chief Digital and AI Office to start work by Feb. 1 [FedScoop]Veterans Benefits Administration CFO Charles Tapp II; Supply chain impact on DOD readiness [FedScoop]GSA to replace federal IT Dashboard at next White House budget proposal [FedScoop]One survey says customer experience with federal agencies is on the decline, while another says the opposite [FedNewsNet] The post SmallGovCon Week in Review: January 24-28, 2022 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The White House has announced the launch of a Made in America Council, which will be the overarching group to “coordinate and advance the Made in America Office’s work across the entirety of the Federal Government.” This represents a new strategy for things like the Buy American Act and related policies, because it will try to centralize these efforts to some degree, instead of having them disbursed throughout the various federal agencies. Below are some of the highlights from this announcement. As we’ve written about, GAO has found in the past that agencies had disparate systems and interpretations for handling things like waivers and exceptions to the Buy American Act. To improve the way domestic preference policies work, the President also issued an executive order in January 2021 that outlined some changes to domestic preference policies and processes, including the appointment of a Made in America Director. Now, a year later, there are additional details on the Made in America Council. So, what is the Made in America Council? Per the post issued by Made in America Director Celeste Drake, it is a “a regular forum and community for agencies to collaborate as they work to strengthen the use of Federal procurement and Federal financial assistance to increase reliance on domestic supply chains and reduce the need for waivers over time.” Here are some of the goals of the council: Work to efficiently implement the Infrastructure Investment and Jobs ActShare data across agencies to promote use of domestic sourcesCome up with best practices and recommendations that all agencies can use “to help build and expand critical U.S. supply chains” The council is expected to start meeting this month, and have representatives from various agencies. The council, along with the Made in America Office, has four principles as outlined in an OMB memo: “achieving consistency across agencies” “gathering data to support decision-making to make U.S. supply chains more resilient”“bringing increased transparency to waivers in order to send clear demand signals to domestic producers”“concentrating efforts on changes that will have the greatest impact” The OMB memo sets out many of the policies to guide agencies in applying domestic preference rules, such as how to submit waivers to the Made in America Director and “management strategies to avoid and limit the need for waivers.” Clearly, the goal is to not become overly reliant on waivers. In addition, “beginning January 23, 2022, agencies must update their reports to address ongoing efforts to grow U.S. manufacturing and comply with Made in America Laws.” Aside from setting up the Made in America Office, and now the Council, the efforts of the administration have also created some tangible effects for contractors. One is a website that has guidance for contractors, but also a list of waivers and whether they have been approved by agencies. For instance, there is a waiver request for a T700 Turboshaft Engine based on “Mission failure due to inability to procure T700 Engine parts.” Kudos to the government for making the domestic preference policies more transparent and uniform across agencies. If these efforts succeed, it should be easier for contractors to compete and have a better handle on how to navigate domestic preference policies, including the waiver process. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post White House Releases New Details on Made in America Council to Make Domestic Preferences More Uniform first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The National Institutes of Health (NIH) NITAAC has been busy over the past month with three amendments to the CIO-SP4. Amendments 12, 13, and 14 primarily revise submission dates and make changes to the reporting of past experience examples. Below is a summary of the pertinent details from these amendments, as we know this is an important procurement for many contractors. Amendment 12, released December 16, 2021, requests proposal revisions from offerors who provided proposals by August 27, 2021. Proposals may be revised to reflect the changes in sections L.5.2.1 through L.5.2.4. However, no new proposals are being accepted. Amendment 12 limits the number of experience examples required by both the mentor and protégé in a mentor protégé agreement. Mentors may submit two experience examples of leading edge technology, two examples of federal multiple award experience, and two examples of Executive Order 13779 work. Protégés are only required to submit one experience example from one of the following categories: corporate experience, leading edge technology, federal multiple award, or Executive Order 13779 work. Executive Order 13779 work includes Information Technology projects that directly supported Historically Black Colleges and Universities (HBCUs). The Amendment stated proposal revisions were due January 21, 2022, but do not despair if this applies to you and you have not submitted revisions by January 21. Amendment 14 addresses the proposal date and pushes it back. We wrote about why NITAAC made this change in response to a protest decision in our post here. Amendment 13, released January 12, 2022, requires all offerors, regardless of whether they made revisions to their proposals per Amendment 12, to resubmit their proposals by January 21, 2022. Again, new proposals are not being accepted. Offerors must have previously submitted their initial proposal by August 27, 2021, to be eligible. The self-scoring sheet previously found in attachment J.5 has been removed and information on iNsight, the new method of calculating Self Scores, has been added. Further, the format of submissions has been updated, with notable changes requiring all documents to be in a searchable format and each individual file limited to 20MB. Amendment 14, released January 14, 2022, pushes the re-submission date back a week to January 28, 2022, updates the file naming conventions, and updates and clarifies requirements of submitting a J.6 for each experience example submitted. If an experience example is submitted due to changes imposed by Amendment 12, a new and executed Self-Scoring Sheet Experience Template J.6 is also required. Experience examples that were originally submitted and are not changing do not require new J.6 forms. All J.6 forms submitted by entities that advance to phase 2 of the selection process will require, within one week of advancing, the signature of the “contracting officer or private sector equivalent responsible for contractually binding their organization” or a Federal Procurement Data System (FPDS) record of the contract action. Overall, these changes are fairly minor. But as contractors know, if they don’t pay close attention to the changes in formatting, how proposals are submitted, and other changes, it could cost them an award. Need help with a government contracting legal matter? Email us or give us a call at 785-200-8919.  Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.  The post CIO-SP4 Amendments 12, 13, 14 Update Submission Date and Experience Reporting Method first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

After going over limited data rights in our last post on intellectual property in government contracts, it is only natural we discuss the similar but distinct concept of restricted computer software. As we noted in the limited data rights post, this only concerns contracts regulated by FAR, or, in other words, non-Department of Defense contracts. If you’re dealing with the Department of Defense, the Defense Acquisition Regulation Supplement (DFARS) applies. DFARS has similar provisions but also differs in meaningful ways. We’ll discuss DFARS at a later post. The phrases “limited data rights” and “restricted computer software” are very similar in meaning. The difference is that the latter concerns computer software developed at private expense and that is a trade secret, is commercial or financial and confidential or privileged, or is copyrighted computer software (along with minor modifications to such software). FAR 52.227-14. If you recall our discussion on limited rights, with the exception of copyrighted computer software, there is no difference here between restricted computer software and limited data rights except that the former covers computer software specifically. It is worth noting that “computer software” for FAR 52.227-14 only means the actual computer programs and any recordings that would let someone produce or otherwise create the computer program. Manuals, installation instructions, and operating instructions are not computer software. Computer databases (the data saved in the database) are not computer software. Think of it like this: You make a spreadsheet on Excel. The spreadsheet and the information on it are regular data subject to limited data rights if that applies. Excel *itself* is the computer program that can actually be restricted computer software. The information on the spreadsheet cannot be restricted computer software as it isn’t even computer software. Computer software developed at private expense that is a trade secret or is commercial/financial and confidential is easy to understand; it’s much like data that have limited data rights. But there remains the question of what makes computer software copyrighted, for copyright in a copyrightable work is established automatically when the work is made. 17 U.S.C. § 102. Does this mean that all computer software, when it is made, is restricted computer software? Not quite. Like limited data rights, whether the software was first produced in performance of a contract or not matters. If the software was made in performance of a contract, the contractor must get the contracting officer’s permission before asserting any rights in the software. See FAR 27.404-3 and 52.227-14. The contractor must then affix an applicable copyright notice (almost always you’ll use 17 U.S.C. § 401 and the famous “©” symbol) and acknowledge the government’s sponsorship (including contract number). Failure to affix this notice can result in the government getting unlimited rights to the software, so do not forget to do it! Even then, the Government still is granted “a paid-up, nonexclusive, irrevocable, worldwide license in such copyrighted computer software to reproduce, prepare derivative works, and perform publicly and display publicly” per FAR 52.227-14. However, the government may not distribute the work to the public, which is a major limitation on the government’s rights in the software. That all said, it should be noted with the above that the contracting officer is not required to grant such permission. FAR 27.404-3 provides that the contracting officer should generally grant permission, unless the data in question consists of an agency report, is intended primarily for internal use by the government, is data the agency itself distributes to the public, the “government determines that limitation on distribution of the data is in the national interest,” or the “government determines that the data should be disseminated without restriction.” Those last two reasons obviously grant the government wide berth in determining what to do, and so whether a contractor’s copyright is recognized for data made during and for a specific contract is basically at the contracting officer’s discretion. When the software wasn’t made specifically during performance of a contract, the contractor obviously has stronger rights. In most cases, if the normal 52.227-14 clause is present, the contractor is supposed to withhold the software from the contracting officer, that is, not even give the officer access. The contractor may also just identify the software with the above-mentioned notices and grant the government a license like it would for software made in performance of the contract. Granted, it is unclear why a contractor would do such voluntarily, but it is allowed. Of course, sometimes the government needs the software, but the contractor doesn’t want to grant that very broad license. In that case, the government may insert Alternate III of FAR 52.227-14. Under Alternate III, the contractor must still initially withhold the software from the CO. The CO then must make a written request for the software. The contractor then will affix a restricted rights notice, the language of which is provided in the clause. Use this language verbatim. With the restricted rights provision, the government may only: use or copy the software for use with the computers for which the software was required, use or copy for use with a backup computer, reproduced for backup purposes, modified (provided that such modified software is also subject to the same restricted rights), disclosed to and reproduced for use by support service subcontractors (so that way the government’s IT personnel can help if something goes haywire), and use the software with a replacement computer. Nothing more. Obviously, it is ideal for contractors to have this Alternate III clause apply to their contracts. You may have noticed this all is fairly similar to “limited data rights” and, to be sure, it is. But software gets a little extra protection that non-software data does not, primarily in that the government cannot distribute it to the public, provided one follows the above procedures. Next, we will look at how DFARS treats limited data rights and restricted computer software, as they approach it a bit differently. Questions about this post? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Data Rights and the Government Contractor: Restricted Computer Software first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

When an agency restricts a solicitation to a single brand-name, the agency must appropriately justify its decision, even where the solicitation is competed among holders of a governmentwide acquisition contract. In a recent case, the GAO sustained a protest, holding that an agency violated the FAR by failing to properly justify its brand-name restriction. The GAO’s decision in Westwind Computer Products, Inc., B-420119 (Dec. 8, 2021) involved a USDA solicitation seeking enterprise business solutions licenses and software assurance support. The solicitation was issued to holders of the NASA SEWP V GWAC. The solicitation specified that vendors were to propose only Microsoft products. In justification of the restriction, the solicitation stated that “USDA has standardized on Microsoft Office, email and cloud and has been using these tools for over 20 years.” The agency also stated that “Microsoft products are essential to the government’s need to provide software and security support necessary to meet operational, mission, Executive and Legislative requirements.” Westwind Computer Products, Inc. filed a protest challenging the terms of the solicitation. Westwind , which wished to offer Google Workspace software, argued that the USDA had failed to properly justify the brand-name restriction to Microsoft products. The GAO wrote that, under FAR 16.505(b)(1), “[a]gencies that issue orders under multiple-award indefinite-delivery, indefinite-quantity contracts must provide all contract holders a ‘fair opportunity to be considered’ for the issuance of all orders in excess of $3,500. In addition, the GAO continued: An agency ‘shall not’ use a brand-name justification unless two conditions are met: (1) “the particular brand-name, product, or feature is essential to the Government’s requirements”; and (2) “market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency’s needs.” A justification for a brand-name restriction must be in writing, set forth the basis for using the exception, and be approved by the appropriate agency official. In this case, although the USDA claimed that Microsoft products were essential to the government’s needs, the USDA did not provide any market research indicating that other companies’ similar products, or products lacking a particular feature essential to the government’s requirements, do not meet, or cannot be modified to meet, the agency’s needs. The GAO rejected the USDA’s implicit assertion that the “particular feature” of Microsoft is that “it is already in use by USDA.” The GAO wrote that this assertion was “unpersuasive, where the FAR requires that agencies demonstrate, through a comparison of ‘particular feature[s],’ why only one product can meet the agency’s needs.'” Further, nothing in the agency’s market research included a comparison of Microsoft to Google Workspace, the software Westwind wished to offer. The GAO sustained the protest, holding: In sum, USDA’s justification does not state that the product or services USDA requires are offered only by Microsoft or that other companies’ similar products, or products lacking a particular feature, do not meet, or cannot be modified to meet, the agency’s needs, the agency has not met the FAR section 16.505(a)(4)(i) requirements for justifying a brand-name restriction. The GAO recommended that the agency either go back to the drawing board and attempt to satisfy the FAR’s requirement (something the GAO seemed skeptical that the agency could accomplish in this case), or recompete the requirement without the brand-name restriction. The GAO also recommended that the USDA reimburse Westwind’s reasonable protests costs, including attorneys’ fees. The Westwind Computer Products decision is a good reminder that the FAR disfavors brand-name-only acquisitions and requires agencies to follow certain steps to justify them, even under a GWAC like SEWP V. As the decision demonstrates, even if an agency has been using a particular brand for a long time, this alone may not be enough to justify a restriction to only that brand. Questions about this post? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GAO Sustains Protest Where Agency Fails to Properly Justify “Brand Name Only” Requirement first appeared on SmallGovCon - Government Contracts Law Blog.View the full article