Koprince Law LLC

Happy December, All! Can you believe we are almost to the end of 2021? It seems this year has flown by! Hope everyone is recovering nicely from Thanksgiving. There was a lot of news this week about the vaccine mandate being temporarily halted in several states with the outcome yet to be decided. We have included a few articles addressing the current status of the mandate below. Also, the Whitehouse and SBA released an announcement concerning increased funding for small disadvantaged business with the goal of increasing the share of contracts by 50% by 2025, that is well worth noting. We hope you enjoy the articles we have included. Have a great weekend! Court orders halt to federal contractor vaccine mandate in 3 states [FedNewsNet]FACT SHEET: Biden-⁠Harris Administration Announces Reforms to Increase Equity and Level the Playing Field for Underserved Small Business Owners [Whitehouse]Senate passes stopgap funding bill, avoiding shutdown [FedNewsNet]Who ‘owns’ a services contractor’s workforce anyway? [FedNewsNet]Statement by Administrator Guzman on SBA-Proposed Reforms to Increase Equity in Federal Buying [SBA]Services contractors gear up for a battle with the Biden administration [FedNewsNet]Federal Judge Temporarily Blocks Contractor Vaccine Mandate in Three States [GovExec]An unresolved question: Can contractors contribute to candidates’ super PACs? [FedNewsNet]KPMG threatened with ban on government contracts in wake of scandals [FNLondon]White House says DOJ will defend government’s authority to promote vaccine requirement [Rueters]Trade group warns of contractor workforce shortfall over vaccine mandate [FCW]Small Business Size Standards: Termination of Nonmanufacturer Rule Class Waiver [FedReg]General Services Administration Acquisition Regulation (GSAR); Updating References to Commercial Items [FedReg]The NDAA Likely Won’t Become Law Until 2022. That’s ‘Not The End of the World’ [NextGov] The post SmallGovCon Week in Review: November 29 – December 3, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

When an offeror submits a certification that its products qualify as domestic for purposes of the Buy American Act, an agency ordinarily may rely on that certification without further investigation, unless the agency has reason to believe that the products will not be compliant. In a recent bid protest decision, the GAO held that an agency acted properly by relying on the offeror’s certification because the protester’s “unsupported allegations” were insufficient to trigger a requirement for further investigation. The GAO’s decision in Sea Box, Inc., B-420130, B-420130.2 (Nov. 18, 2021) involved a DLA solicitation seeking freight containers. The solicitation was issued as a small business set-aside and was subject to the Buy American Act. Price and past performance were the only evaluation criteria. W&K Containers, Inc. submitted the lowest-priced offer. W&K certified that its freight containers qualified as domestic for purposes of the BAA. After evaluating proposals, the DLA awarded the contract to W&K. Sea Box, Inc., an unsuccessful competitor, filed a bid protest with the GAO. Sea Box argued that W&K’s freight containers did not qualify as a domestic end product. Sea Box contended that the DLA should have applied the BAA’s 50% price evaluation penalty, which would have resulted in Sea Box’s freight containers being deemed the lowest-priced. The GAO wrote that, “[i]f, prior to award, an agency has reason to believe that a firm will not provide domestic products, the agency should go beyond a firm’s representation of compliance with the BAA.” However, where a contracting officer “has no information prior to award that would lead to the conclusion that the product to be furnished is not a domestic end product, the contracting officer may properly rely upon an offeror’s self-certification without further investigation.” In this case, the GAO found, Sea Box provided “no factual information” to demonstrate that W&K’s freight containers could not qualify as domestic products. “Simply put,” the GAO said, “unsupported allegations lodged by a competitor . . . does not impose an obligation on the contracting officer to conduct a detailed investigation” of the awardee’s BAA compliance. The GAO denied the protest. One final note: the GAO’s denial of the protest does not mean that W&K is now free to provide foreign products in violation of its BAA certification. After award, as the GAO said elsewhere in its decision, “whether an offeror does in fact furnish a foreign end product in violation of its certification is a matter of contract administration” and not a matter within the GAO’s bid protest jurisdiction. 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 Agencies May Rely on Offerors’ Buy American Act Certifications Unless “Reason to Believe” Non-Compliance first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Here at Koprince McCall Pottroff LLC, we’re ready to put a wrap on 2021. Join us and our friends at Govology on December 9 as we look back at federal government contracting from the past year. In this webinar, government contracts attorneys Shane McCall and Steven Koprince cover the most important legal developments for federal contractors in 2021, including new cybersecurity rules, enhanced domestic preferences under the Buy American Act, key provisions of the 2022 National Defense Authorization Act, and much more. Register here. See you on December 9! The post Event: 2021 Government Contracts Year-End Review Webinar, Hosted By Govology first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Koprince McCall Pottroff LLC presents a webinar hosted by EPHCC that covers two important topics in federal government contracting – Limitations on Subcontracting and the Nonmanufacturer Rule. For small businesses and their teammates, few topics in government contracting are as confusing as the limitations on subcontracting for set-aside and socioeconomic sole source contracts. And if that isn’t stressful enough, the “LoS” is an area of heavy enforcement: get it wrong, and a contractor can face major penalties. The nonmanufacturer rule is one that is commonly misunderstood in the federal government contracting realm. But it is also one we encounter quite often in our role assisting federal contractors. On December 8, join me, Shane McCall, as I go over both of these important topics in plain English in a single webinar. To register, just click here. The post Event: The Basics of Small Business Limitations on Subcontracting and Nonmanufacturer Rule Compliance Webinar, Hosted by EPHCC first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

A federal judge in Kentucky has enjoined the federal government from enforcing the federal contractor vaccine mandate in three states. As of November 30, 2021, a judged issued a preliminary injunction against the contractor mandate for Kentucky, Ohio, and Tennessee. The judge stated: This is not a case about whether vaccines are effective. They are. Nor is this a case about whether the government, at some level, and in some circumstances, can require citizens to obtain vaccines. It can. The question presented here is narrow. Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no. There were a few reasons to grant the injunction that the judge highlighted. First, under the Competition in Contracting Act’s goal of full and open competition, “contractors who ‘represent[] the best value to the government’ but choose not to follow the vaccine mandate would be precluded from effectively competing for government contracts.” Second, the judge viewed the mandate as overstepping bounds of powers delegated from Congress to the President, as the statute used as basis for the mandate (Federal Property and Administrative Services Act) has never been used to “used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors.” Third, the mandate “intrudes on an area that is traditionally reserved to the States,” namely this is noneconomic activity over which states usually have the right to make laws. This is a preliminary injunction, so any decision on a final injunction will come after further briefing and argument is heard by the court. We’ll stay tuned to see if the judge issues a permanent injunction after fully considering the issue. 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 Update: Federal Court Enjoins Contractor Vaccine Mandate in 3 States first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

If you missed it before, here’s your chance to attend one of Koprince McCall Pottroff LLC‘s most popular webinars. Please join me, Shane McCall, and Steven Koprince on December 1 for this informative webinar hosted by Catalyst on the vaccine mandate. We will cover which contractors and subcontractors must comply, which employees are covered, when employees must be vaccinated, how employers should confirm employee vaccination, and much more, including the latest guidance from the Safer Federal Workplace Task Force. It’s easy to register: just click here. See you on today! The post Event: What Government Contractors Should Know About the Vaccine Mandate Webinar, Hosted by Catalyst first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Key personnel are an important term in most proposals. Establishing the resume, experience, and availability of personnel that will perform major functions of a contract is a key (dad joke) aspect of a winning proposal. As one offeror found out, when key personnel become unavailable, the technical acceptability of the entire offer can be in jeopardy. In Ashlin Management Group, B-419472.3,B-419472.4, GAO sustained the second protest of an award to Booz Allen Hamilton. The protester, Ashlin Management Group, alleged that the awardee’s proposal should have been rated as technically unacceptable due to the unavailability of key personnel. On September 9, 2020, the agency issued the solicitation to federal supply schedule contract holders. The solicitation sought quotations for a vendor to assist the National Office of Job Corps in identifying, developing, and implementing career pathway programming with a “focus on transitioning Job Corps from a career technical training program to a career technical education program.” The solicitation envisioned a best-value trade-off analysis considering price and non-price factors. The second factor in the evaluation was, “key personnel, staff experience and qualifications (key personnel).” The agency received seven timely offers, and in December 2020, the agency selected Booz Allen Hamilton as the awardee. Ashlin protested the award decision to GAO. In response, the agency decided to take corrective action. The agency stated it would reconsider the quotations, and make a new award decision. GAO dismissed the first protest as academic. Following reconsideration, on August 13, 2021, the agency informed Ashlin that Booz Allen Hamilton was once again the awardee. The agency determined that the awardee’s proposal represented the best value to the government. On August 20, 2021, Ashlin again protested the award. Ashlin made numerous allegations, including arguing that the awardee’s quotation became technically unacceptable during the corrective action period due to the unavailability of one of the quoted key personnel. GAO dismissed or denied all of Ashlin’s grounds, except for the key personnel argument. GAO found that the awardee had actual knowledge of the unavailability of one of its quoted key personnel during the corrective action period, and failed to notify the agency. Specifically, the key person resigned from the awardee during the corrective action period. As part of the original proposal, the awardee stated it would utilize one of its current employees to fill the key personnel role of senior project specialist. In March 2021, that employee resigned, and subsequently left the awardee. GAO found that at that point, the agency was still re-evaluating the proposals under the corrective action. GAO utilized its prior decision in stating, “[o]ur Office has explained that vendors are obligated to advise agencies of material changes in proposed staffing, even after submission of proposals, or as here quotations.” MindPoint Group, LLC, B-418875.2, (Oct. 8, 2020). The turning point for GAO is whether the entity knew that key personnel had become unavailable. GAO reasoned, “An offeror or vendor generally is required to advise an agency when it knows that one or more key employees have become unavailable. The duty to notify does not arise, however, if an offeror or vendor does not have actual knowledge of the employee’s unavailability. This is a key distinction, actual knowledge is the operative language GAO utilized. We know that GAO sustained the protest due to the awardee’s failure to notify the agency of the departure of key personnel. Let’s say the awardee notified the agency of the departure, what then? GAO found that the agency can either evaluate the proposal as submitted, without considering the resume of the unavailable employee, or it can open discussions to permit the offeror to amend the proposal. The awardee stated it would substitute the key personnel, or even potentially re-hire the same person. GAO was not persuaded by these arguments. GAO, instead, found it was the awardee’s duty to notify the agency when the company had actual knowledge of the unavailability. Attempts to correct the error after the fact found no sympathy from GAO. Additionally, GAO found that, even in corrective action reevaluations, this duty remains. The takeaway here is for offerors to ensure that the representations in the submitted offer remain correct. Should an offeror obtain actual knowledge of a change in material aspects of its proposal, it must notify the agency. In this scenario, the offeror can remedy technical acceptability, but only when the offeror makes the agency aware of the intervening circumstances. Failure to do so may be met with the same fate as this awardee. Offerors should always take heed that, even in a corrective action, the requirements remain. While GAO will not penalize an awardee who did not have actual knowledge, that line is too thin to walk. Therefore, when in doubt, notify the agency and seek to remedy errors on the front-end. 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 Key Personnel Unavailability Leads to Sustained GAO Protest first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

It’s that time of year to gather with friends and family and feast on some wonderful comfort food. We have been polling our staff on their favorite holiday dish and the answers have ranged from pumpkin pie to turkey to the traditional green bean casserole. They all sound good to me! We have a lot to be thankful for and we are grateful for all of those readers who have been reading our blogs. We hope you have found them informative and we will continue to provide relevant content in regards to federal government contracting into the coming new year. Our office will be closed Thursday and Friday for our staff to recharge the batteries and connect with family and friends. Have a great holiday weekend! The post Happy Thanksgiving & Native American Heritage Day from SmallGovCon first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

As many readers know, I am retiring from private legal practice to focus on teaching, writing, and other interests. The wonderful team of government contracts professionals here at Koprince McCall Pottroff will continue assisting contractors with their legal needs. I couldn’t be prouder of our wonderful team of attorneys and staff! For my last SmallGovCon blog post, in the tradition of our “Five Things You Should Know” series, here are five big-picture things I’ve learned in my years as a government contracts attorney. Oh, and whether this is the first post of mine you’ve read or the 1,200th (yes, I’ve written that many here on SmallGovCon), thank you! 1. Most people–both in government and industry–are honest and well-meaning. Government and industry don’t always communicate well (see #2). A lack of good communication can lead people on both sides to believe the worst of each other. On the industry side, it’s unfortunately common to believe that many–even most–government acquisition officials are biased (often in favor of an incumbent) or otherwise dishonest. For their part, some government officials can see attempted fraud or wrongdoing around every corner, when in my experience, a compliance problem is due to a contractor’s failure to fully understand the myriad and complex rules, rather than an attempt to defraud the government. Of course, there are some bad actors both in government and in industry. Over on our LinkedIn page, we sometimes post about contractors and government officials accused of (or convicted of) fraud, bribery and the like. But my experience is that these people are the exception to the rule. The vast majority of government officials are not biased or dishonest, and the vast majority of contractors are honest, too–and trying their best to comply with the rules. I think government/industry relations might improve if everyone decided to assume the best about those on the other side–an “innocent until proven guilty” approach. 2. Government and industry often have a communication problem. In my experience, most government contracting officials have never owned a business or served as an officer in one. This can lead to a significant lack of understanding when it comes to dealing with commercial businesses. For example, when I have taught government contracting courses to government officials, many of them are flabbbergasted when I say that contractors often aren’t aware that only a warranted contracting officer can modify a contract. “But–everyone knows that!” they splutter. No, I say, everyone who received thorough formal training on the FAR knows that. But contractors don’t go to Defense Acquisition University. They often enter contracting from the commercial sector, with no formal FAR training whatsoever. Without formal training, it’s not surprising that many contractors assume that any government official–like a COR–can modify a contract. For their part, contractors sometimes incorrectly assume that government officials understand how their decisions will affect a business. “But, if they don’t pay me on time, that will create a cash flow crunch for me,” a small business owner might say. “How can the government not understand?” It’s because the government official in question has no frame of reference–he or she has never worked in the private sector. Contractors and government officials alike should remember that those on the other side may have vastly different backgrounds, knowledge, and expectations. Remembering that, alone, may help mitigate communication problems. 3. Government contracting is still, in significant part, a relationship game. “How do I find a mentor?” is one of the more common questions small business owners have asked me over the years. My response is typically something like, “well, who do you already know?” That’s because, in my experience, most mentors pick their proteges from a pool of companies they have already worked with, typically in a prime/subcontractor relationship. Earlier this year, I gave a webinar series on the 8(a) Program with Jackie Robinson-Burnette, the (amazing) former 8(a) Program Director. Jackie spoke at length about the power of relationships in 8(a) Program success, even recommending that 8(a) Program participants connect with relevant government officials on LinkedIn. It’s easy to think that because we’re in the internet age, with a pandemic-caused telework environment on top of it, that writing a strong proposal is the only thing that matters when it comes to winning government contracts. But, in my experience, the contractors who thrive the most do much more than write great proposals. They build relationships, within their industry and with the government. And they use tools like LinkedIn to further that relationship-building. 4. The savviest contractors don’t assume–they verify. The worst calls I received as a government contracts attorney were from clients (or potential clients) who had a legal problem that I could have solved earlier–but now it was too late. Small business size status is a good example. In my experience, it is very common for a contractor to simply assume that it qualifies as a small business, without investigating whether that’s actually true, particularly under the SBA’s affiliation rules–which are not always intuitive. Then, after the contractor has been named as the awardee of a set-aside contract, a competitor files a size protest, and only then does the contractor consider whether it might have an affiliation problem. If the contractor calls me after it’s been protested, and it actually does have a size problem, there is nothing that I, or any other attorney, can do to save the contract. It’s going bye-bye. Size ordinarily is determined as of the date of the initial proposal, so any changes you might make after that won’t affect eligibility for that contract. In contrast, my savviest clients asked our firm to take a look at their size status before they submitted the proposal! At this point, if we identified an affiliation issue, there was a pretty good chance we would be able to make some changes to mitigate it and protect the client’s eligibility. Size, of course, is only one common example. The savviest contractors due their internal due diligence on all aspects of compliance to make sure they’re in good shape before the government–or a protester–ever raises a question. 5. If you think you’ve found a way around the rules, you’re almost certainly wrong. When it comes to trying to evade the rules–legally, that is–I’ve heard almost every conceivable scheme. Problem is, so has the goverment. Here’s a very common example. A businessperson owns 100% of two companies. She learns that, under the SBA’s rules, her overlapping ownership causes affiliation. So she calls me and says, essentially, “I thought of a way around this. I’ll just put Company X in my spouse’s name, but continue to run it.” My response, of course, is “Wow! Pure genius! Literally nobody has ever thought of that before. We’ll surely circumvent the rules that way.” Okay, I don’t really say that. I let the client down easily. But my point is that whatever creative idea you’ve had to legally circumvent the rules, someone else (probably multiple someone elses) have already been there and done that–and if there ever was a loophole, the government has closed it. The SBA’s rules, for instance, establish that companies owned by spouses are presumed affiliated. By all means, keep those creative juices flowing. But they’re better used to develop strong proposals and relationships than trying to figure out how to dodge and weave around the rules. *** That’s a wrap! Thank you again for reading my musings on federal government contracting over the years. Please keep visiting my colleagues here at SmallGovCon to learn the latest and greatest (or not so greatest) government contracting news. 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 Five Things I’ve Learned as a Government Contracts Lawyer first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The SBA proposes to amend its regulations to implement new provisions of the National Defense Authorization Act (NDAA) for fiscal year 2021 that provides small business contractors with new tools to establish past performance when bidding on prime contracts for Government procurements. The proposed rules would add two new methods for small businesses to obtain qualifying past performance. One proposed rule would allow a small business with no relevant past performance of its own to use the past performance of a joint venture in which it took part. The second proposed rule would require prime contractors to provide, to small businesses that served as a first-tier subcontractor, a record of the business’s past performance for use by the small business in future proposals. The proposed rules are here. Past performance is not always required in order to win prime federal contracts, and its weighting and restrictions can vary greatly by procurement. Nonetheless, many small businesses find it difficult to do business with Government agencies when these small businesses have no record for the agencies to evaluate. The proposed rules are aimed at reducing obstacles faced by small businesses with respect to demonstrating past performance when seeking Government agency contracts. Joint Ventures The first proposed rule addresses past performance ratings of joint ventures for small businesses. This proposed rule creates a new 13 CFR § 125.11(a) (125.11 houses SDVOSB rules and will be moved to a different section) which addresses the circumstance upon which an agency is required to consider past performance of small businesses that have been members of certain joint venture or first-tier subcontractors. Under the rule, a small business would be able to include the past performance of the joint venture as part of its offer on a prime contract when bidding in its own name, when the small business was a member of the joint venture. The contracting officer is required to consider the joint venture’s past performance where the small business cannot independently demonstrate past performance necessary for award, and the small business elects to use the joint venture’s past performance, provided the small business identifies: “(i) the joint venture; (ii) the contract(s) of the joint venture that the small business elects to use; and (iii) describe to agency what duties or responsibilities the small business carried out as a joint venture member.” The small business cannot, however, claim past performance credit for work performed exclusively by other joint venture partners. This proposed rule also authorizes a small business to supplement its relevant past performance when the small business cannot independently demonstrate the past performance on its own. The SBA provides a helpful example of how the proposed rule works in practice. A solicitation might require three past performance examples. The proposed rule would authorize the small business offeror to submit two examples from performance in its own name and one example from performance of a joint venture of which it was a member if the small business cannot independently provide the third example of past performance on its own. Subcontractors The proposed rules also include provisions allowing small businesses to obtain past performance ratings for its performance as a first-tier subcontractor. The rule would require prime contractors, on contracts for which a small business served as a first-tier subcontractor, to provide the small business a past performance rating with respect to that prime contract. This proposed rule would modify 13 CFR § 125.3 to require prime subcontractors’ to provide a rating of a first-tier subcontractor’s past performance. Under the rule, the performance rating provided by the prime contractor “would be prepared to include, at a minimum, the following evaluation factors in the requested rating: (a) Technical (quality of product or service); (b) Cost control (not applicable for firm-fixed-price or fixed-price with economic price adjustment arrangements); (c) Schedule/timeliness; (d) Management or business relations; and (e) Other (as applicable).” The prime contractor would be required to provide the rating of the first-tier subcontractor’s past performance within 15 days of the first-tier subcontractor’s request. This is similar to CPARS ratings for prime contractors. If the small business elects to use the past performance rating the contracting officer, in turn, would be required to consider the past performance rating when evaluating its offer on a prime contract. Indeed, where the small business does not have a CPARS rating, “the agency shall consider the small business’s subcontractor past performance rating as being equivalent to a CPARS rating.” The proposed rule only applies to small businesses that performed as first-tier subcontractors on prime contracts that included subcontracting plans. This proposed rule also clarifies the use of performance by a joint venture composed of small businesses members. Under the proposed rule, the joint venture could use past performance for work that the joint venture performed as a first-tier subcontractor. In addition, a small business joint venture member subcontractor could request a past performance rating from the prime contractor for a contract for which the joint venture served as a subcontractor if the prime contract included a subcontracting plan. * * * If a joint venture or first-tier subcontractor meets the criteria provided in the proposed rule, the agency is required to consider the small businesses’ past performance; it is not discretionary. However, the proposed rule only requires consideration, so the agency would have some leeway in how it considers the past performance. Overall, these proposed rules would expand the opportunities for small businesses to establish past performance; and, if adopted, will prove beneficial to many small businesses by enabling them to be more competitive when bidding for prime contracts. Comments must be received on or before January 18, 2022 if you have concerns about the proposed rules. 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 The SBA Proposes New Rules to Help Small Businesses in Obtaining Past Performance first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

GAO has released its annual bid protest report. Along with mashed potatoes and stuffing, it’s one of our favorite holiday traditions at SmallGovCon. This report came over a month earlier than last year, making this more of a Thanksgiving treat than Christmas this year. A couple key takeaways are (1) the key effectiveness metric, showing numbers of sustains and corrective actions at GAO, was 48% for the 2021 fiscal year and (2) total bid protest numbers are down slightly, continuing a trend from the last few years. The annual bid protest is based on GAO’s statutory duty to report to Congress (1) each instance in which a federal agency did not fully implement a recommendation made by GAO (2) if any bid protest decision was “not rendered within 100 days after the date the protest is submitted,” and (3) “include a summary of the most prevalent grounds for sustaining protests.” It also summarizes the general statistics for bid protest decisions. One important point about the GAO bid protest process: GAO met its 100-day deadline to process a bid protest in all cases and the agencies followed all of GAO’s recommendations. This is good and shows the GAO bid protest system is efficient and respected by agencies. Numbers, Please Here are some key numbers from the report: 1,816 protests. This is down from 2,071 in 2019 and 2,052 protests in 2020. Compared to 2019, total protests are down about 12%. Overall, number of protests are definitely on a downward trend, but the decrease appears to be leveling off. 581 – Number of cases decided on the merits, rather than through dismissal.85 – Number of sustained protests15% – Percentage of sustained protests, the same as last year and fairly similar to the past few years.48% – Effectiveness rate (percentage sustained or where agency took corrective action). This is down a tiny bit from last year but shows about half of all protests result in a sustain or corrective action1% – Percentage of cases with hearings. Hearings are not common at GAO. Why Are Cases Sustained? The report summarizes the main grounds for sustaining protests at GAO. These are helpful to know what types of issues are most likely to get traction at GAO, although GAO is not too generous on detail. The four most common grounds (and an example of each) were: Unreasonable technical evaluation, such as “where the agency assessed a strength in the awardee’s proposal based on the agency’s flawed understanding of the awardee’s proposed staffing approach.”Flawed discussions, where “the agency engaged in unequal discussions when it conducted another round of discussions with the awardee, but not with the protester, which allowed the awardee to revise its proposal to provide information necessary for the agency to determine the acceptability of its proposal.”Unreasonable cost or price evaluation, where “the agency’s cost realism evaluation was unreasonable where the agency conceded that there was an error with its evaluation and where the record did not support the agency’s upward adjustment of the protester’s proposed costs and the agency’s failure to adjust some of the awardee’s proposed costs.”Unequal treatment, where “the agency evaluated quotations in a disparate manner when it assessed a strength in the awardee’s quotation, but not in the protester’s quotation, for substantively indistinguishable features of the vendors’ employee retention plans)”. We at SmallGovCon will be interested to see if protest numbers continue to go down, or if next year will show that the decrease has leveled off. We’ll keep you posted as we follow the trends on GAO protests. 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 2021 GAO Bid Protest Report Reveals Nearly Half of Protests are Successful first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday, Readers! Next week is Thanksgiving and we have a lot to be thankful for here at Koprince McCall Pottroff LLC, especially with everyone remaining healthy this year. It’s time to break out the stretchy pants and feast on the traditional turkey and pumpkin pie along with watching a few football games, a parade or two and, if we are lucky, we might just get in a nap, as well. There was a lot of news in federal government contracting, this week. Here are some articles we found particularly interesting, including updates on cybersecurity (including CMMC), some new GSA GWACs, and a potential Stopgap Spending Bill. Have a great weekend. GSA developing tool to analyze new GWAC data [FedScoop]Congressional Leaders Concede Another Stopgap Spending Bill ‘Likely’ as Negotiations Remain at Standstill [GovExec]GSA previews major upcoming GWACs, new Services MAC [FedNewsNet]GSA says vast majority of contractors agree to implement vaccine mandate [FedNewsNet]DoD picks Amazon, Microsoft, Google and Oracle for multibillion dollar project to replace JEDI Cloud [FedNewsNet]Report: 20% of Defense Contractors at Risk for Ransomware Attack [NextGov]Class Deviation—Requirements for Nonavailability Waiver Determinations Under the Buy American Statute [DoD]DHS chief information security officer wary of Pentagon’s changes to CMMC [FedNewsNet]NASA might need to change its name to the space and food agency [FedNewsNet]CISA issues cybersecurity incident, vulnerability response playbooks for federal agencies [FedScoop]GSA funds 14 digital projects with $150M from American Rescue Plan [FedScoop]Contractors seek clarification on government cyber standards [FedNewsNet]Texas Man Pleads Guilty to Selling Chinese-Made Military Helmets and Body Armor to Federal Agencies [DoJ]An Overview of Small Business Contracting [CRSReport]PF 2022-08 Reminder Regarding Effective Dates for Including the COVID Contract Clause in Federal Contracts [OoM]PSC Comments on Amendments to the FAR Buy American Act Requirements [PSC] The post SmallGovCon Week in Review: November 15-19, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

It’s a refrain that my colleagues and I have often heard: if you’re a franchisee, it can be really, really hard–perhaps almost impossible–to be verified as a service-disabled veteran-owned small business. A recent case demonstrates the difficulties in obtaining SDVOSB status as a franchisee. In the case, the SBA’s Office of Hearings and Appeals held that the Center for Verification and Eligibility had correctly denied a company’s SDVOSB application because, in the eyes of the CVE and SBA, the terms of the franchise agreement impeded the veteran’s control of the company. OHA’s decision in The Hope Cos, LLC, SBA No. CVE-204-A (2021) involved the SDVOSB application submitted by The Hope Cos, LLC, a professional and leadership coaching business. The company was run as a franchise under a ten-year franchise agreement between the Hope Cos, LLC and a franchisor, whose name was not released in OHA’s published decision. The CVE determined that the franchise agreement placed “numerous restrictions” on the franchisee’s veteran owner, John Hope. These restrictions included, but were not limited to: Management functions could be delegated only with the franchisor’s permission.The Hope Cos could not offer services and products that are not approved by the franchisor, and could not operate outside of a certain designated territory.The Hope Cos was required to comply with the franchisor’s operating manual, which the franchisor could unilaterally revise at any time.The franchisee was restricted in its ability to advertise.The franchisor had control over the franchisee’s website.The franchisor had to approve the hiring of key employees.The Hope Cos was required to use computer systems, equipment, furniture, fixtures and signs specified by the franchisor.The franchisor could inspect and audit the franchisee at any time. The CVE denied The Hope Cos’ SDVOSB application. The CVE noted that 13 C.F.R. 125.13 requires that a service-disabled veteran control the management and daily business operations of an SDVOSB. The CVE found that “Mr. Hope does not fully control the daily business operations of [The Hope Cos], due to provisions in the Franchise Agreement.” The CVE noted, for example, that because the franchisor’s permission was required for advertising, “Mr. Hope cannot fully control this aspect of daily business operations.” The CVE also wrote that the franchise agreement “allows [the franchisor], a non-SDVOSB, to exert actual control over” the Hope Cos, contrary to the “control” requirements for SDVOSBs. The Hope Cos appealed the CVE’s decision to OHA, arguing that the denial of the application was improper. OHA reiterated that an SDVOSB must be controlled by one or more serice-disabled veterans. It concluded: CVE identified numerous terms within the Franchise Agreement which restrict Mr. Hope’s ability to fully control the “daily business operations” of Appellant, including provisions related specifically to Appellant’s marketing, production, sales and administrative functions; to the supervision of Appellant’s executives; and to the implementation of business policies. These provisions within the Franchise Agreement improperly limit Mr. Hope’s ability to control various aspects of Appellant’s daily business operations. CVE thus did not err in denying Appellant’s application for verification as an SDVOSB. OHA denied the appeal and upheld the CVE’s determination. The Hope Cos case does not say, of course, that a franchisee can never be verified as an SDVOSB, nor do SBA’s SDVOSB regulations expressly prohibit it. The fact remains, however, that there is an inherent tension between ordinary franchise agreements, on the one hand, and the SDVOSB control requirements, on the other. Even assuming that the franchise agreement at issue in this case contained more restrictions than most, almost all franchise agreements that I’ve seen contain some restrictions on the franchisee. For example, this franchise agreement for Baskin-Robbins includes restrictions on the franchisee’s advertising, business hours, equipment, signage, supplies, hiring, and many other aspects of the business. These sorts of restrictions are–again in my experience–par for the course when it comes to franchises, and most of the restrictions look awfully similar to those at issue in The Hope Cos. The CVE seems to agree with my take. A few years ago, the CVE released a fact sheet on franchises. The fact sheet said that franchises are not per se banned from participating in the SDVOSB program, but then said this: To the extent the franchise agreement does not impose restrictions on the Veteran owner’s ability to manage and control the franchise, the franchisee may be found eligible. However, that is not usually the case. Most franchise agreements seek to maintain control of the company in a manner which prevents the Veteran from making decisions concerning day-to-day operations and the overall direction of the company. In other words, if you’re a typical franchisee–even one with a less restrictive agreement than the one at issue in The Hope Cos–good luck getting verified as an SDVOSB. But should the SBA and VA treat franchises this way, effectively excluding most (if not nearly all) franchises from the SDVOSB program? According to a government report, more than 10 percent of American businesses are franchises. And in some industries, franchises are dominant, comprising, for example, 100% of new car dealerships and 75% of fast food restaurants. That’s a lot of companies to effectively exclude from SDVOSB status. (Also, it seems a little unfair for the VA CVE to reject franchises for SDVOSB status while the same entity that operates CVE–the VA OSDBU–essentially promotes franchise opportunities to veterans). One potential way forward would be to adopt the more nuanced approach used by SBA in its small business affiliation regulations at 13 C.F.R. 121.103(i). That regulation says: (i) Affiliation based on franchise and license agreements. The restraints imposed on a franchisee or licensee by its franchise or license agreement relating to standardized quality, advertising, accounting format and other similar provisions, generally will not be considered in determining whether the franchisor or licensor is affiliated with the franchisee or licensee provided the franchisee or licensee has the right to profit from its efforts and bears the risk of loss commensurate with ownership. Affiliation may arise, however, through other means, such as common ownership, common management or excessive restrictions upon the sale of the franchise interest. Using this approach in the SDVOSB context would allow more veterans to access the SDVOSB program, while ensuring that only franchises with “ordinary” franchise restrictions would qualify. Adopting this approach would require a regulatory amendment, but I certainly think it is something the SBA should consider. 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 Franchise Agreement Terms Sink Company’s SDVOSB Application 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. The focus of the first article in this three-part series was work share considerations. This second article will focus on evaluations of a team’s past performance. 1. Past Performance in Competing for the Current Project: As an initial matter, if you are looking through the FAR for a rule requiring the procuring agency to consider the past performance of joint venture members and/or prime-sub team members, you are not going to find anything concrete. We will discuss a bit of guidance from the FAR in a minute, but the only real requirements imposed on agencies to this extent are actually found in SBA’s small business regulations. For more details on this topic, check out our prior blog, here. Joint Venturers Under SBA’s rules, the procuring agency is required to consider the past performance of each party to a joint venture, in addition to any work the joint venture itself has performed. Specifically, SBA’s regulation for small business set-asides, found at 13 C.F.R. 125.8(e) (with a corresponding rule found in the regulations for each of the four major socioeconomic programs), says: When evaluating the capabilities, past performance, experience, business systems and certifications of an entity submitting an offer for a contract set aside or reserved for small business as a joint venture established pursuant to this section, a procuring activity must consider work done and qualifications held individually by each partner to the joint venture as well as any work done by the joint venture itself previously. A procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally. The partners to the joint venture in the aggregate must demonstrate the past performance, experience, business systems and certifications necessary to perform the contract. Now, the rule here may seem pretty straightforward. But it is important to note that, in our experience, there has been some variation in exactly how each agency considers each venturers’ qualifications and experience, qualitatively, on each contract. Sure, this rule establishes that an agency cannot require a protégé venturer to individually meet the same criteria as other offerors. But it does not specify how the agency must count the work that each venturer (not in a mentor-protégé relationship) brings to the table. For instance, we have seen agencies give more evaluation credit to joint ventures where both venturers bring relevant experience and capabilities to the table. And in fact, with this regulation being newer and not part of the FAR, some agencies are not aware of it at all. So, if you run across an agency or solicitation stating that each venturers’ capabilities and experience will not be considered at all, it may be beneficial to address this rule with the agency directly or through a pre-award protest of the solicitation’s terms. Prime-Sub Teams The first place you will want to look for information on how a procuring agency plans to evaluate the past performance of subcontractors, generally, is the solicitation. We will discuss some of the rules and guidance from SBA’s regulations and the FAR here. But the solicitation you are pursuing will ultimately govern the evaluation criteria on this front. Now, if the solicitation doesn’t speak to the consideration of subcontractors’ past performance, the guidance and rules below may come into play (and may be leveraged, in some cases, in a protest of a past performance evaluation). Alternatively, where the solicitation appears to be overly restrictive of competition on this front (i.e. stating that the agency will not consider any subcontractor capabilities or past performance), the guidance and rules below may provide a basis for pushing back on those terms in some circumstances (again, either directly with the agency or through a pre-award protest). We will start with the FAR–although, as we already hinted, there is not much there to stand on. For negotiated procurements, FAR 15.305 says that an agency’s “evaluation should take into account past performance information regarding . . . subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition.” For starters, this provision uses the word “should,” which GAO has established is not an actual requirement and does not equate to “must.” This merely permits the agency to consider a subcontractor’s past performance where that subcontractor will perform “major or critical aspects” of the contract at issue and where such past performance information is determined “relevant to the instant acquisition”–and notably, this also allows the agency to establish its own criteria for determining whether these factors are met–which could be a pretty high bar (you can read about one example here). Now, in some very specific situations, SBA’s small business regulations may come into play–and if so, they do provide a concrete requirement. SBA’s rule, found at 13 C.F.R. 125.2 says: When an offer of a small business prime contractor includes a proposed team of small business subcontractors and specifically identifies the first-tier subcontractor(s) in the proposal, the head of the agency must consider the capabilities, past performance, and experience of each first tier subcontractor that is part of the team as the capabilities, past performance, and experience of the small business prime contractor if the capabilities, past performance, and experience of the small business prime does not independently demonstrate capabilities and past performance necessary for award. The requirement here only applies to small business prime contractors who don’t have the past performance “necessary for award,” and who are proposing small business first-tier subcontractors (specifically identified in the proposal). Only then, must the agency consider the capabilities and past performance of those specifically identified small business first-tier subcontractors “as the experience of the small business prime contractor” itself. But at least this one is a concrete requirement (rather than a recommendation)–where it applies. And keep in mind that some agencies may be unaware of this rule too. Now that we have (somewhat) answered the question of when and how an agency must consider the past performance of each team member (at least, to the best of our ability under the regulations), we will move on to the next, inevitable question: How will work the team does together count for each team member going forward? 2. Past Performance in Competing for Future Projects: Spoiler alert, the answers to this one are also not abundantly clear–and are also wholly absent from the FAR. But this time, the guidance (which will someday be implemented as regulations) comes directly from Congress on both counts. Joint Ventures There is currently nothing in SBA’s regulations or the FAR that requires a procuring agency to consider the past performance of a firm that was obtained as a joint venture member. And GAO has established that agencies have the discretion to decide whether to do so or not, which can usually be determined by looking at your solicitation or asking the agency directly. But the good news is, at some point, agencies will be required to consider this information (but again, only in some circumstances). Via the 2021 National Defense Authorization Act (NDAA), Congress has amended the underlying statute governing this topic, which now says: With respect to evaluating an offer for a prime contract made by a small business concern that previously participated in a joint venture with another business concern (whether or not such other business concern was a small business concern), the Administrator shall establish regulations— (A) allowing the small business concern to elect to use the past performance of the joint venture if the small business concern has no relevant past performance of its own; (B) requiring the small business concern, when making an election under subparagraph (A)— (i) to identify to the contracting officer the joint venture of which the small business concern was a member; and (ii) to inform the contracting officer what duties and responsibilities the small business concern carried out as part of the joint venture; and (C) requiring a contracting officer, if the small business concern makes an election under subparagraph (A), to consider the past performance of the joint venture when evaluating the past performance of the small business concern, giving due consideration to the information provided under subparagraph (B)(ii). Essentially, Congress directed the SBA Administrator to write regulations implementing this rule–although it is not yet an official rule. Given the direction from Congress, once SBA implements this rule, it will require agencies to consider any past performance gained as a joint venture member if the individual small businesses offeror does not have a record of relevant past performance of its own (though we will have to wait and see what SBA’s actual rule says for the specifics). Once implemented, this will certainly benefit many newer companies that began their federal contracting journey as a joint venture team. Prime-Sub Teams Similarly, there is currently nothing in SBA’s regulations or the FAR that directly requires a procuring agency to consider an offeror’s past performance that was obtained as a subcontractor. But in another section of the 2021 NDAA, Congress also included a section called, “Past Performance Ratings of First-Tier Small Business Subcontractors.” This section establishes that, for a first-tier subcontractor’s work performed under a “covered contract,” (one where the prime is required to develop a subcontracting plan), the subcontractor is entitled to request a past performance review from the prime–and the agency must consider it. Now, this too has its limitations, as the language Congress used in this 2021 NDAA provision only applies the requirement to large prime contractors with small subcontractors. Under the 2021 NDAA, where the prime on a prior contract is a large business, the small business subcontractor will be able to submit that past performance to the agency, which must consider it. The 2021 NDAA says the following: If a small business concern elects to use such record of past performance, a contracting officer shall consider such record of past performance when evaluating an offer for a prime contract made by such small business concern. This, like the other 2021 NDAA provision we discussed, is not yet an official rule. When it is implemented by SBA, it too will provide a benefit to many newer companies that started out in the federal contracting world as subcontractors but are now looking to make their way to prime. But this rule, like many we have discussed today, will be limited to specific circumstances. * * * To recap, there may not be a 100% certain answer as to whether you will get better treatment of each team members’ past performance when bidding as a joint venture or prime-sub team in every situation. But we do know a few things from SBA’s regulations and the FAR: An agency must consider each joint venturers’ past performance to some extent–both for joint ventures made up only of small businesses and for mentor-protégé joint ventures that include a large business venturer;An agency may consider the past performance information of any subcontractor (large or small). where the agency finds that it is relevant to the current contract and the subcontractor will perform “major or critical aspects” of the contract; andAn agency must consider a small business first-tier subcontractor’s past performance information if they are specifically identified in the proposal of a small business prime offeror that does not, on its own, have the past performance history “necessary for award.” Unfortunately, there is even less certainty (at this time) in the answer as to which is more valuable moving forward: experience gained as a joint venture member or as a subcontractor. But the 2021 NDAA does tell us that, at some point, we can expect some new SBA rules requiring: Agencies to consider any past performance gained as a joint venture member if the individual small businesses offeror does not have a record of relevant past performance of its own; and Agencies to consider any past performance gained as a small business subcontractor on a prior contract where the prime was a large business. Thus, even with this limited list of things we do know, there are some helpful takeaways. First, there are some requirements an agency must follow in certain teaming situations–and, if these situations apply to you, it may provide some crucial considerations in “choosing your team.” Second, it is important to read your solicitation, first and foremost, to determine what the agency’s specific evaluation plan is for you and your team. But even then, the items discussed herein may still provide you with a basis to push back on unfair terms in the solicitation or unfair evaluation findings–even if it is simply a policy argument about Congressional intent and the direction these policies are moving. And the final takeaway here is to keep an eye on these questions and topics moving forward, watching out for the new rules that are sure to come, as well as future SmallGovCon blogs on the subject that may provide relevant updates and more helpful information. If you have specific questions about past performance in regard to either type of team or under certain types of government contracts, or if you 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 Picking Your Team: Joint Ventures Versus Prime/Subcontractor Teams (Part Two, Past Performance) first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

In our last post on intellectual property and government contracts, we went over a basic discussion about data rights and then addressed the matter of unlimited data rights for the government. As discussed, unlimited data rights basically give the government free rein to do as they wish with the data. More importantly, the FAR provides that such unlimited data rights are the government’s default rights. But there is a way to limit the government’s rights: limited data rights. NOTE: This only concerns contracts regulated by FAR. If you’re dealing with the Department of Defense, DFARS data rights clauses will also apply. It has similar provisions, but they also differ in important ways. We’ll talk about limited rights under DFARS in a later post. While there are times where giving the government unlimited data rights is expected and unavoidable, contractors obviously don’t want to give the government the ability to sell, distribute, and disclose important company information such as trade secrets, business plans, software code, and the like. Fortunately, there is a means to limit the government’s rights to a contractor’s preexisting data, and those are “limited data rights” and “restricted computer software.” For this post, we’ll look at just limited data rights. Limited Data Rights It’s important to explain what sort of data this applies to first. FAR 27.401 provides: “Limited rights data means data, other than computer software, that embody trade secrets or are commercial or financial and confidential or privileged, to the extent that such data pertain to items, components, or processes developed at private expense, including minor modifications. (Agencies may, however, adopt the following alternate definition: Limited rights data means data (other than computer software) developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged.”) Basically, if the contractor produced the data on its own, completely outside of some government funded contract, and the data is something like trade secrets or is something a company would keep confidential, that data can be limited rights data. If it is made in the context of a government contract or the data isn’t trade secrets, customer lists, or something along those lines, limited rights can’t apply. Limited Rights So, what are limited rights exactly? FAR 27.401 states “[l]imited rights means the rights of the Government in limited rights data as set forth in a Limited Rights Notice.” Enlightening. A little digging, however, takes us to FAR 27.404-2, “Limited Rights Data and Restricted Computer Software.” Here, the regulation explains that, generally, limited rights means that the contractor may withhold the data from the government and provide form, fit, and function data instead. This rule applies when FAR 52.227-14 is included in the contract in its basic form. However, if the government nonetheless needs the data, an alternate version of FAR 52.227-14, “Rights in Data – General” named Alternate II will be used instead. With Alternate II, the government can require delivery of the limited rights data. However, government can’t reproduce or otherwise disclose or distribute the data in question without the contractor’s permission or if for purposes expressly permitted in the limited rights data notice (more on that in a bit) So, it is vital to check which version of FAR 52.227-14 is in your contract before you decide to withhold or deliver limited rights data to the government. If your contract involves the production or sharing of data, FAR 52.227-14 will be (or at least should be) in it. Getting Limited Rights Protections If your contract includes the basic form of FAR 52.227-14, you simply need to withhold the data you believe is limited rights data, identify which data you are withholding to the contracting officer, and provide applicable form, fit, and function data instead. If the contract includes the Alternate II version of FAR 52.227-14, your contract either requires you to deliver limited rights data, or the contracting officer might request you deliver limited rights data that you initially withhold (or both). If the contract itself is requiring delivery of the limited rights data, you cannot withhold it, you must send it. If the contract does not require you to deliver the limited rights data in question, you should withhold it, but if the contracting officer requests you deliver it, you must comply. Regardless whether the contract requires delivery or the officer requests delviery, there is an absolutely essential procedure you must follow. FAR 52.227-14, Alternate II, states that the contractor must deliver the data with a Limited Rights Notice, which is helpfully provided: (a) These data are submitted with limited rights under Government Contract No. _______ (and subcontract _______, if appropriate). These data may be reproduced and used by the Government with the express limitation that they will not, without written permission of the Contractor, be used for purposes of manufacture nor disclosed outside the Government; except that the Government may disclose these data outside the Government for the following purposes, if any; provided that the Government makes such disclosure subject to prohibition against further use and disclosure: [Agencies may list additional purposes as set forth in 27.404–2(c)(1) or if none, so state.] (b) This notice shall be marked on any reproduction of these data, in whole or in part. Omitted Notices and Incorrect Notices In whatever format you provide the data to the contracting officer on, this notice needs to be present in some way. Do not omit this notice. The clause notes that data without any restrictive markings will be treated as giving the government unlimited rights to it. While you can get that corrected if you make a request within six months after delivery, the government is not liable for anything that happens until that correction is actually made. Additionally, only use the wording from FAR 52.227-14, Alternate II, provided above. Simply including a statement or tag stating “These are limited rights data” will result in the marking being considered incorrect. While FAR 52.227-14 allows contracting officers to correct such markings or permit correction by you at your expense, the officer may also simply treat it as if the data omits markings all together. Furthermore, if the officer believes that the data in questions is not subject to limited rights, the officer may return the data or ignore the markings. If they perform the latter, they must make a written inquiry within 60 days to you to give you a chance to justify that the data is subject to limited rights, and the government may be liable in the meantime for any disclosures if it turns out the data that is subject to limited rights. As we’ve noted before, intellectual property law is tricky, and that is even more so the case in government contracts. In our next review of the intellectual property rights realm in government contracting, we’ll be looking at restricted computer software, a similar concept, but one with some important distinctions. 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: Limited Data Rights first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday! We hope you had a wonderful and reflective Veteran’s day. I just got back from speaking at the APTAC Fall Conference on the big changes that will be taking place in the SDVOSB certification program, along with other legal updates. Thanks to the many wonderful people at APTAC, including Allen Waldo, who helped make that conference a success. It was a great event. This week in federal government contracting saw important stories about CMMC 2.0 and other cyber initiatives, as well as the possibility of a year-long continuing resolution. Once bracing for a spike in demand, CMMC AB now worries about a shortage [FedScoop]Honor Veterans With Opportunity And Accommodation In The Workplace [Forbes]SBA’s “8(a) Program”: Overview, History, and Current Issues [CRSReport]CMMC 2.0 could take as long as two years to come online [FedNewsNet]SBA Women-Owned Small Business Federal Contracting Program[CRSReport]Former U.S. Army Employee Sentenced for Kickback Scheme to Steer U.S. Government Contracts [DoJ]Biden administration looking to axe another policy from the Trump era [FedNewsNet]For contractors, the unthinkable is on the table: A year-long continuing resolution [FedNewsNet]CIOs say they need more funding to implement cyber EO [FedScoop]Digital transformation a FedScoop Special Report [FedScoop]Beyond Biden cyber directive, government agencies need to manage their attack surface [FedScoop]How hybrid work will impact network needs for government agencies [FedScoop]AFGE asks White House to delay federal vaccine mandate deadline for employees [FedNewsNet]SSA eyes January date for reopening offices, new employee telework schedules [FedNewsNet]Could we soon see hybrid electric tanks? Pentagon says maybe [FedNewsNet]Nominee to be VA’s new CIO would inherit new cyber strategy [FedNewsNet] The post SmallGovCon Week in Review: November 8-12, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

A proposed rule from SBA will make changes to the SDVOSB rules. SBA has modified its rules allowing surviving spouses to continue owning Service-Disabled Veteran-Owned Small Businesses after the veteran owner has passed away. This should provide some help to spouses of disabled veterans. SBA has updated a few dollar thresholds as well. SDVOSB Surviving Spouse Rule The existing surviving spouse rule had provided some leeway for a surviving spouse to continue to own and operate the SDVOSB business for up to 10 years, but only if the veteran owner had a disability “rated as 100 percent disabling . . . or such veteran died as a result of a service-connected disability.” But those limitations made the rule applicable only in limited situations. The new rule adopts changes to the treatment of service-disabled veteran surviving spouses made by the National Defense Authorization Act of 2020. The main change is to now provide a three-year window for a surviving spouse to run the SDVOSB business where the veteran owner had “a service-connected disability rated as less than 100 percent disabling” and “who does not die as a result of a service-connected disability.” This is good news because it will apply to many more service-disabled veterans than the old rule, as many veterans do not have a 100% rated disability. This will allow the spouse of an SDVOSB owner to have a transition period to keep running the company as an SDVOSB for limited period of time. Threshold Changes The rule also updates a few dollar thresholds in SBA rules. Increases dollar thresholds for which a justification and approval is needed for 8(a) sole-source procurements to $25 million for civilian procurements and $100 million for DoD procurements. Note that this change doesn’t increase the sole-source maximum for 8(a) procurements for non-tribal, non-ANC 8(a) companies, as discussed here. Generally speaking, contracting officers can award a contract to an 8(a) business on a sole source basis if the estimated cost is $4.5 million or less ($7 million for manufacturing).Adjusts the 8(a) Program threshold above which procurements must be competed to $4.5 million in 13 CFR § 124.506. The rule will be effective on February 7, 2022, without further action, unless significant adverse comment is received by December 8, 2021, so be sure to comment if you have a concern with the proposed rule. 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 SBA Updates Veteran Surviving Spouse Rule first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Today, SmallGovCon salutes veterans and the families of veterans who have served our country. Veterans have given their time, resources, and lives for the protection of our country. We especially honor those sacrifices today, and the sacrifices of their families. On this Veterans Day, let us remember what the members of the armed services have done for our country. The post SmallGovCon Salutes Veterans first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The SBA has released a proposed rule to use a 24-month period to calculate a company’s number of employees for eligibility purposes in all of SBA’s programs. This change will affect any business seeking to qualify as small under an employee-based NAICS code, such as those applicable to manufactured products. The SBA’s proposed rule would amend 13 CF.R. 121.106. That regulation currently states that SBA calculates the size of a business by averaging the number of employees for each pay period in the preceding 12 months. Following the proposed revision, 13 C.F.R. 121.106(b)(1) would read: The average number of employees of the concern is used (including the employees of its foreign and domestic affiliates) based upon numbers of employees for each of the pay periods for the preceding completed 24 calendar months. The revised regulation would maintain a prorated formula if a company has not been in busines for 24 months. The SBA acknowledges that lengthening the period from 12 months to 24 months will help some businesses while harming others. Generally speaking, lengthening of a size evaluation period helps growing businesses by allowing them to base their average in part on older pay periods when they had fewer employees. On the flip side, lengthening a size evaluation period harms shrinking businesses by forcing them to use pay periods from longer ago, when they were larger. The SBA esimates that under the proposed rule “about 280 or 1.3 percent of currently large businesses would gain or regain small status and about 1,200 or 0.2 percent of total small businesses would see their small business status extended for a longer period.” On the other hand, based on the same data, SBA estimates that “763 firms would lose their small business status and 287 firms would see their size status shortened, which represent, respectively, 0.1 percent and 0.04 percent of total small firms subject to an employee-based size standard.” Understandably, businesses that are negatively impacted by this change are likely to oppose it, but their options are limited. The SBA did not develop this change on its own; the change is being made pursuant to a Congressional mandate from the 2021 National Defense Authorization Act. Barring further Congressional intervention, SBA’s hands are largely tied, except in some limited areas. (For example, the Congressional directive did not include nonmanufacturers, but SBA has proposed to lengthen the nonmanufacturer period to 24 months for the sake of consistency). My suspicion is that Congress did not really understand that this change would hurt almost as many businesses as it helps. I believe that Congress made this change in an effort to grow the pool of eligible small businesses, but did so with the overly-simplistic underlying notion that all businesses are always growing. Clearly that is not the case, especially in a pandemic. In my view, the best approach would be to allow companies to choose whether to use a 12-month or 24-month period. This would allow growing businesses to stay small longer but prevent shrinking businesses from being forced to count longer-ago pay periods. I wrote about this proposal at greater length earlier this year, and I still think it’s the right idea. But that’s just my two cents–unless Congress agrees (are you reading this, Congress?) it won’t be the law. Comments on the proposed rule are due by December 2. Follow this link for instructions on how to submit a comment. 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 SBA Proposes Rule to Use 24-Month Period to Calculate Number of Employees first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The Department of the Interior (DOI) proposes to revise regulations implementing the Buy Indian Act, which provides the Department with authority to set aside procurement contracts for Indian-owned and controlled businesses. The proposed rule is to revise current procurement regulations that have created barriers to Indian Economic Enterprises (IEEs) from full participation in the DOI’s procurement process. The proposed rule is here. The Buy Indian Act was signed into law in 1910 and was intended to require the Department of the Interior, Bureau of Indian Affairs to provide funding and procurement preference to Indian owned or operated businesses. The Buy Indian Act states that “[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” by the government. Indian Affairs (IA) first implemented the “Buy Indian” program in 1965, and over 100 years after the Buy Indian Act became law, the U.S. Department of the Interior adopted final rules to fully implement the law in 2013. Upon a review of the rules the DOI identified various aspects of Department of the Interior Acquisition Regulations (DIAR) that are barriers to equal opportunity for Indians and Indian Tribes in the DOI procurement process. The DOI found that these barriers inhibit job creation, are inefficient in promoting economic development, and limit Indian country from fully participating in procurements subject to the BIA. The proposed rule supplements the Federal Acquisition Regulation (FAR) and revises the DIAR to address those issues. The key provisions of the proposes rule would revise the DIAR in the following ways as explained below: eliminate the restriction on IEEs from competing on certain construction contracts, expand IEEs’ ability to subcontract work consistent with other socio-economic set-aside programs, simplifies regulations giving preference to IEEs, and gives greater preference to Indian Economic Enterprises when a deviation from the Buy Indian Act is necessary, and clarify applicability of the Act. Elimination of Restriction for “Covered” Construction Contracts The current language of the DIAR restricts IEE set-asides to construction for road facilities on or related to Indian-owned land as ”covered construction.” The proposed rules remove all references to covered construction throughout the regulation. Removal of this language will allow for the ability to set aside construction contracts to IEEs. Expansion of Indian Economic Enterprises’ Ability To Subcontract The proposed revisions removing references to covered construction and allow for set-asides of construction contracts to IEEs, as discussed above, exposed restrictions on IEEs with respect to subcontracting that exceed restrictions in other government socio-economic set-aside programs. Current regulations restrict IEEs from subcontracting more than 50% of the work to firms other than IEEs. This regulation is inconsistent with FAR regulations applicable to other socio-economic set-aside programs which have a higher threshold for limitation on subcontracting for construction awards. The change will allow IEEs to subcontract up to 75% for construction by special trade contractors and 85% for general construction. The proposed rule does not change the 50% subcontract limitation for supplies and services which is consistent with the subcontracting limitations in FAR. This rule ensures that the limitations on subcontracting applicable to IEEs are consistent with the limitations on subcontracting applicable to other socio-economic set-asides. Preference for Indian Small Business Economic Enterprises The proposed rule revises the regulations giving preference to IEEs to clarify and simplify these preferences under the Buy Indian Act. Under the current regulations, Contracting Officers are directed to solicit purchases as an unrestricted small business set-aside open to any Small Business Economic Enterprise firm when the Contracting Officer determines two or more Indian Small Business Economic Enterprises would not provide competitive offers and the relevant agency approves the particular solicitation as an exception to the requirement of using the Buy Indian Act (deviation). The proposed rule would delete existing language determined to not be fully compliant with the Buy Indian Act and add language requiring the Contracting Officer to give priority to Indian Small Business Economic Enterprise firms through set-asides for all purchases subject to the Buy Indian Act, including acquiring supplies, general services, architect and engineering services, and construction. Also, the language in current regulations only gives preference to Indian Small Business Economic Enterprises when the purchase is commercial or a simplified acquisition. The proposed revisions add language that requires the Contracting Officer to give priority to IEEs if the Contracting Officer determines that there is not a reasonable expectation of obtaining competitive offers. In addition, the updated language would allow sole source awards to an Indian Small Business Economic Enterprises or IEE authorized under FAR to be compliant with the Buy Indian Act. Updates to Thresholds and Process for Deviations In its review, the Department of Interior determined that the existing process for handling deviations are burdensome in implementation and not fully compliant with the Buy Indian Act. The proposed rule clarifies the deviation process by identifying acquisitions that do not require a deviation and streamlining the actions taken after a deviation is approved. Under the proposed rules, if a contract follows the requirements of FAR 6.3 or is subject to a previously approved deviation, the contract no longer requires an approved deviation. The proposed revisions simplify this process and provide that acquisitions made under an authorized deviation from the Buy Indian Act must follow the FAR and DIAR unless specified otherwise. Companies who are looking to go after these types of awards should review the proposed new rules and consider providing comments by the December 27, 2021 deadline. 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 Indian Affairs Proposes Rules to Remove Barriers in Buy Indian Act Contracting Opportunities first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Evaluation of offers is a crucial point in the procurement process. During this time period, an agency may, in certain procurements, reach out with discussion questions meant to bring clarity to the decision-making process. However, any such discussions must be meaningful. As one offeror recently found out, meaningful discussions even apply in so-called simplified acquisitions. GAO’s recent decision in Academy Leadership, LLC B-419705.2 is a cautionary tale for an agency’s conduct of discussions. On October 29, 2020, the Department of Homeland Security, United States Immigration and Customs Enforcement (ICE), issued the solicitation at issue for leadership-focused training. The solicitation was a single indefinite-delivery, indefinite-quantity (IDIQ) contract with a five-year ordering period. The original award decision was not planning to establish a competitive range or conduct discussions. However, the contracting officer reserved the right to conduct discussions if it was deemed necessary. The evaluation was envisioned as a two-phased evaluation. With only the highly qualified offerors making it to the second phase, providing sample training presentations. As a result, ICE received a total of six offers. On December 22, 2020, the agency proceeded to the second phase with three offerors. On March 16, ICE made the initial award. In response, on March 26, Academy filed protest. In response, the agency sent notice that it intended to take corrective action. ICE advised it would reevaluate the proposals and make a new award decision. After reevaluation, ICE again made the same award decision. ICE proposed to pay an approximately 53% premium over Academy. The reasoning given by ICE was that the awardee ranked significantly higher than Academy on the highest-weighted factors. Academy, once again, filed protest. Interestingly, during the procurement process, ICE reached out to each offeror and requested price reductions. This, in and of itself, did not make the discussions fair and equitable. GAO latched on to ICE’s notification that the awardee’s price was “significantly higher” than the other offerors. This, GAO found, directed the awardee to its proposal in order to make adjustments in order to make its proposal more appealing. GAO found that the communications with Academy were not on par with ICE’s communications with the awardee. ICE notified Academy that it had different aspects of its proposal that raised or lowered the expectations of success. GAO found that although ICE couched these “lower the expectations of success” as not identifying deficiencies or weaknesses, GAO did not bite. GAO found, “where an agency avails itself of negotiated procurement procedures, the agency should treat offerors fairly and reasonably in the conduct of those procedures.” The key for GAO, was ICE identifying the “significantly higher” price of the awardee, which led them to reevaluate, while not affording other offerors the same opportunity. Notably, this was ICE’s only concern with the awardee’s proposal. ICE, when evaluating Academy, noted items that lowered expectations of success. Despite not advising Academy it considered these weaknesses or deficiencies, when the agency asked the awardee to alter the one issue that lowered its evaluation, this rendered the discussions not meaningful. Given that GAO found these communications to be discussions, ICE was then required to notify each offeror of the significant weaknesses or deficiencies in its proposal. The bottom line here, is when an agency reaches out to request modification of aspects of proposals, it may be opening the door to conducting discussions. When discussions (even unintentionally) are undertaken, the discussions must be meaningful. GAO defines meaningful discussions to require that “an agency must point out significant weaknesses or deficiencies in a proposal that require correction or amplification in order for the offeror to have a reasonable chance for award.” Here, ICE pointed out the awardee’s pricing issue and allowed correction, without providing the same opportunity to all offerors. Each offeror should expect that any significant weaknesses or deficiencies be identified in discussions. I see no reason why an offeror cannot ask an agency, if the agency reaches out, if there are any weaknesses or deficiencies the offer must address. This can ensure an offeror is able to address any issues which would limit its chances of award. Meaningful discussions are a favorite sustaining ground of GAO, and one that offerors should memorialize in writing, even in procurements where discussions are not originally anticipated. 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 GAO Affirms any Discussions During Evaluations Must be Meaningful first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday, Readers. We hope you had a productive week. November 11 is Veteran’s Day. This holiday started as a day to honor the heroism of those who died in our country’s service and was originally called Armistice Day. It fell on Nov. 11 because that is the anniversary of the signing of the Armistice that ended World War I. However, in 1954, the holiday was changed to “Veterans Day” in order to recognize and honor all veterans of war. Koprince McCall Pottroff LLC would like to thank all veterans for your service. As usual, there was a lot happening in federal government contracting this week. Here are a few articles that may be of interest. Have a great weekend. Amid explosion in DoD’s use of OTAs, myths abound about how and whether to use them [FedNewsNet]Strategic Direction for Cybersecurity Maturity Model Certification (CMMC) Program [D0D]19 states sue Biden administration over COVID vaccine rule [FedNewsNet]Austin Construction Company and Owner Settle False Claims Act Allegations [DoJ]Contractors get new January deadline to comply with federal vaccine mandate [FedNewsNet]Want More Mega Women-Owned Businesses? Then Modify Supplier Diversity Requirements [Forbes]Veteran-owned small business week marks veterans contribution to the economy [KXNet]More DoD contracting dollars are going to shrinking pool of small businesses [FedNewsNet]DOD’s Logistics Agency Touches American Lives [DoD]‘Groundbreaking’ CISA directive to overhaul cyber vulnerability management process [FedNewsNet]GSA sets goals to shrink federal office space post-COVID, but needs to address maintenance backlog [FedNewsNet]Congress fears VA is ‘moving on’ amid persistent EHR challenges, low employee morale at initial go-live site [FedNewsNet]Federal Acquisition Regulation: Maximum Award Price for Certain Sole Source Manufacturing [FedReg]Federal Acquisition Regulation: Consolidation and Substantial Bundling [FedReg] The post SmallGovCon Week in Review: November 1-5, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

This morning, the White House released updated Covid-19 vaccination guidelines. This update includes a nearly month-long delay in the mandate implementation. Previously, all federal workers and contractors must have either been fully vaccinated or granted some form of extension or accommodation by December 8, 2022. Fully vaccinated means two weeks following the final dose, meaning the actual deadline was early November for employees to begin the two-shot cycle of Pfizer or Moderna. The new deadline also comes with updated recommendations from OSHA. Today, the White House released new vaccination policies from OSHA, Medicare and Medicaid, and the federal workforce. The policies now have one date for full vaccination: January 4, 2022. OSHA is extending the vaccination requirement to employers with 100 or more employees (this means if they are not federal contractors or subcontractors). Employees may either get vaccinated or submit to, at a minimum, weekly testing. Employers will also be required to provide paid time-off for employees to get vaccinated, and ensure all unvaccinated employees comply with masking requirements. When it comes to healthcare workers, the Centers for Medicare & Medicaid Services is bringing the requirement to healthcare facilities as well. Generally, facilities participating in Medicare and Medicaid will be required to follow the same vaccination and testing requirements. A major point of contention is how employers and contractors should comply with these requirements in states where their state laws are in opposition to these new requirements. The requirement unequivocally states, “And, both OSHA and CMS are making clear that their new rules to preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.” In short, this new guidance makes clear that federal vaccine rules outrank any state attempting to undercut or ban these requirements from taking effect. This new guidance seeks to broaden the requirement, while streamlining the implementation of the rules. The requirement to be fully vaccinated is now January 4 across the federal government. Employers and facilities should prepare now for this new reality. We’ll keep you updated on this issue here at SmallGovCon and our other social media outlets. 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 COVID-19 Federal Workforce Vaccination Deadline Extended to January 4, 2022 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The vaccine mandate remains the talk of the governing contracting community. Even as a new lawsuit seeks to block the mandate, many contractors are working feverishly in an effort to comply. Last week, I addressed responses to five common misconceptions I am hearing about the vaccine mandate. But I am seeing many more misconceptions, and updated guidance from the Safer Federal Workforce Task Force helps address some of them. So let’s take a look at five more common misconceptions about the contractor vaccine mandate. 1. Misconception: because an employee who previously had COVID-19 has developed natural immunities, the employee need not be vaccinated. Like many of the common misconceptions, this one has some logical appeal, but it is untrue. According to the Task Force, “covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated.” In a similar vein, the Task Force says that “[a] covered contractor cannot accept a recent antibody test from a covered contractor employee to prove vaccination status.” 2. Misconception: if my state or locality has banned vaccine mandates, this ban supersedes the federal vaccine mandate. It should come as no surprise that the federal government rejects this contention. The Task Force says, “[t]hese requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.” 3. Misconception: if an employee has requested an accommodation for disability/medical or religious reasons, the contractor must reach a decision by December 8. Many contractors will breathe a sigh of relief when they realize that they need not adjudicate all employees’ accommodation requests by December 8 (or whatever date the contractor is required to meet the vaccination requirements). The Task Force recently offered this new explanatory Q&A: Q: Do all requests for accommodation need to be resolved by the covered contractor by the time that covered contractor employees begin work on a covered contract or at a covered workplace? A: No. The covered contractor may still be reviewing requests for accommodation as of the time that covered contractor employees begin work on a covered contract or at a covered workplace. While accommodation requests are pending, the covered contractor must require a covered contractor employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors. This is good news for contractors, some of whom may be dealing with dozens or even hundreds of accommodation requests. While the Task Force does not directly address it, the response does seem to suggest that accommodation requests must be submitted by the appropriate date. My colleagues and I will keep our eyes peeled for any additional clarifications in this regard. 4. Misconception: If a contractor is temporarily unable to meet the vaccination requirement, the prime contract automatically will be terminated. Don’t get me wrong: termination absolutely is a risk if a contractor is unable to meet all requirements of the vaccine mandate. Fortunately, though, the latest guidance encourages Contracting Officers to take intermediate steps before terminating a contract for this reason: Q: What steps should an agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors? A: Covered contractors are expected to comply with all requirements set forth in their contract. Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken. As the guidance indicates, termination is not automatic if a contractor–acting in good faith–temporarily is unable to comply. 5. Misconception: a prime contractor must obtain vaccine cards or similar proofs of vaccination from employees of subcontractors. Prime contractors are responsible for flowing-down the implementing clause to covered subcontractors. But, contrary to a common misconception, that’s where the prime’s obligation vis-a-vis subcontractor compliance generally ends. The Task Force offers the following Q&A: Q: May the prime contractor assume the subcontractor is complying with the clause? A: Yes, unless the prime contractor has credible evidence otherwise. The prime is not required to gather vaccination cards or other proof of vaccination, as the prime must do for its own employees. *** The contractor vaccine mandate is a rapidly-evolving area of law. My colleagues and I will keep the contracting community posted of significant new developments. 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 Five (More) Things You Should Know: Common Vaccine Mandate Misconceptions first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Here at Koprince McCall Pottroff LLC, we’ve had a lot of contractors ask, “are you going to give a webinar on the contractor vaccine mandate?” I am pleased to say that the answer is yes. On November 17, please join me and Shane McCall for a special Govology webinar on the vaccine mandate. We will cover which contractors and subcontractors must comply, which employees are covered, when employees must be vaccinated, how employers should confirm employee vaccination, and much more, including the latest guidance from the Safer Federal Workplace Task Force. It’s easy to register: just click here. See you on November 17! The post Event: Contractor Vaccine Mandate Webinar, Hosted by Govology first appeared on SmallGovCon - Government Contracts Law Blog.View the full article