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  1. The final version of the 2022 National Defense Authorization Act, agreed upon by negotiators for both the House and Senate and signed by the president, will allow the SBA’s Office of Hearings and Appeals to hear appeals related to the SBA’s HUBZone status decisions. We here at Koprince McCall Pottroff LLC welcome the pending change, which will be a big step forward for the HUBZone program in terms of transparency and fairness. Among the SBA’s four major socioeconomic preference programs (8(a), WOSB/EDWOSB, SDVOSB and HUBZone), only the HUBZone Program does not allow for appeals to SBA’s administrative judges. Under current rules, if a certified HUBZone is found ineligible due to a HUBZone status protest, the applicant can appeal–but the appeal is decided by the SBA’s Associate Administrator, Office of Government Contracting & Business Development (known by the fun acronym AA/GC&BD) rather than by an independent judge. The current system is flawed, in at least two major respects. First, the lack of transparency prevents small businesses from understanding how the SBA interprets and applies its regulations. OHA’s decisions are published, giving all interested parties important insight into how the SBA’s small business, 8(a), WOSB/EDWOSB and SDVOSB regulations are applied in practice. That’s not true for the SBA’s current HUBZone decisions, meaning that HUBZone applicants and participants often have little or no guidance regarding gray areas in the law. Second, the absence of an independent appeal option can create the perception that HUBZone appeal decisions (when they are allowed) could be unfair. That’s not to say that the AA/GC&BD actually acts unfairly, but the person holding this position–and considering the appeal–is effectively the boss of the person who makes the original decision on a HUBZone protest. Some contractors are suspicious that the AA/GC&BD might–even subconsciously–circle the wagons instead of giving a truly independent review. That’s where the 2022 NDAA comes in. Section 864 of the NDAA says: Not later than 1 year after the date of enactment of this Act, the Administrator of the Small Business Administration shall issue a rule authorizing the Office of Hearings and Appeals of the Administration to decide all appeals from formal protest determinations in connection with the status of a concern as a qualified HUBZone small business concern[.] This change is very welcome news for HUBZone small businesses. That said, we wish that the NDAA had gone a little farther, and also allowed for appeals of denied initial applications to the HUBZone Program. Under the SBA’s regulation, when an applicant is denied, there is no formal way to appeal the decision. Instead, the applicant has the right to reapply after 90 days. This system works in many cases, but not if the declination decision is arguably wrong as a matter of law. If the SBA’s HUBZone Office misunderstands or misapplies its own regulations once, there is no reason to think it will reach a different outcome 90 days later. In such cases, an applicant’s only legal recourse is to file suit against the SBA–something most applicants don’t wish to do. Perhaps a future NDAA–or other legislation–will broaden the HUBZone appeal right. For now, though, the 2022 NDAA is a step in the right direction for HUBZone transparency and fairness. We will keep you posted on the SBA’s progress implementing this important change. 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 Final 2022 NDAA Draft Allows HUBZone Appeals first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  2. Happy Holidays, Readers! We hope you have been enjoying this holiday season with friends and family while staying safe and healthy. Since many of you (and folks in our office) are taking some time off this holiday season, we’re bringing you two weeks in review for the end the year. Thank you so much for your support of SmallGovCon and stay tuned for more informative blogs in 2022. The world of federal government contracting is continuing to be very active as we approach the end of 2021. Here are a few articles from the past two weeks with some notable news and announcements, including some roundups of what contractors faced this year and how the pandemic affected the industrial base. Enjoy and have a very happy new year! Contractors conclude a difficult year of funding uncertainty and a slew of executive orders [FedNewsNet]Government Contractor Indicted for Bribing Public Official [DoJ]State Dept expects long-awaited online passport renewal system to launch by fall 2022 [FedNewsNet]Air Force pushes automated data sharing under draft strategy [FedNewsNet]GAO: Navy should disqualify Booz Allen from $400M Navy win [WashTech]Military Air Support: DOD Has Increased Its Use of Contracts to Meet Training Requirements [GAO]Protests might be choking off the government’s most popular acquisition vehicles [FedNewsNet]Essex County Man Admits Conspiring with His Brother – a Federal Safety and Health Officer – to Extort Contractors [DoJ]Information Technology Contractor Agrees to Pay More Than $1.3 Million to Settle Federal False Claims Act Allegations of Overbilling [DoJ]Keeping the Defense Industrial Base Afloat During COVID-19 [RandCorp]Four Executives Sentenced for SBA Fraud Scheme Spanning 13 Years [DoJ]Balfour Beatty Communities to pay millions in fines after pleading guilty to defrauding military [FedNewsNet]2021 in review: Out with JEDI, in with JWCC [FedScoop]Cyber provisions, workforce initiatives take effect as Biden signs NDAA [FedScoop]Statement by the President on S. 1605, the National Defense Authorization Act for Fiscal Year 2022 [WH]US Department of Labor Recovers $33Kin Back Wages for Five Workers After Investigation Revealed APEX Company Violated Federal Wage Laws [DoL] The post SmallGovCon Week in Review: December 20-31, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  3. I am pleased to announce that Stephanie Ellis has joined our team of government contracts attorney-authors here at SmallGovCon. Stephanie is an associate attorney with Koprince McCall Pottroff LLC, where her practice focuses on federal government contracts law. Before joining our team, Stephanie worked for the Kansas Securities Commissioner, enforcing the Kansas Securities Act through civil, criminal, and administrative actions, and reviewing administrative compliance issues. She also worked at a Small Business and Nonprofit Transactional Clinic assisting small and non-profit businesses establish their businesses through formative documents. Check out Stephanie’s full biography to learn more about our newest author, and don’t miss her first SmallGovCon post on the importance of keeping SAM codes current for maintaining small business eligibility. The post SmallGovCon Welcomes Stephanie Ellis first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  4. We are so very happy to announce that Nicole Pottroff and husband, Kenny Flanders, along with big brother Robert have a new family member! Franklin Alan Flanders was born on Christmas Eve, weighing in at 7 lbs. 8 oz! Mom and baby are at home and doing well. What a wonderful gift for the holidays. Congratulations! The post A Very Joyful Announcement from Koprince McCall Pottroff LLC! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  5. The decision in Bravo Federal Consulting, LLC, SBA No. CVE-213 (Dec. 1, 2021) is both an important reminder of the importance of keeping all database information up to date and a cautionary tale of the unfortunate consequences that can happen when you don’t. In that decision, SBA’s Office of Hearings and Appeals (OHA) denied an appeal by Bravo Federal Consulting, LLC (Bravo). Bravo submitted a request to change its name, setting off a chain of events that ended in Bravo losing its verified status as a service-disabled veteran-owned small business (SDVOSB). On July 1, 2021, Bravo submitted to the Department of Veterans Affairs Center for Verification and Evaluation (CVE) a request to change its name from Pro Gov Solutions, LLC to Bravo Federal Consulting, LLC. Unfortunately, Bravo had not registered in the System for Award Management (SAM) as Bravo Federal Consulting, LLC, so CVE was unable to verify its status as an SDVOSB. All applicants for VIP Verification must be listed in SAM prior to application submission per 38 C.F.R. § 74.2. Additionally, because Bravo had not registered under the name Bravo Federal Consulting, LLC prior to the name change, it had failed to maintain eligibility as required under 38 C.F.R. § 74.15(b) which requires participants to inform CVE of any changes that would affect eligibility within 30 days of the change. On August 5, 2021, CVE issued a Notice of Proposed Cancellation (NOPC) to Bravo for failure to maintain its eligibility as an SDVOSB in SAM. CVE has authority to remove any participants from SAM for good cause upon formal notice, under 38 C.F.R. § 74.21(d)(2). Good cause includes failure to maintain eligibility for program participation. Though CVE could confirm Bravo’s owner’s veteran status via the VIP Verification Program, it could not conclude Bravo met the regulatory requirements for inclusion in SAM because Bravo had never registered under the name Bravo Federal Consulting, LLC in SAM. With the August 5th NOPC, CVE gave Bravo 30 days to provide evidence and explain why its verified status as an SDVOSB should not be cancelled. Bravo failed to respond to the NOPC, and on September 9, 2021, CVE issued a Notice of Verified Status Cancellation due to CVE being unable to conclude that Bravo satisfied the eligibility requirements. Following the cancellation, on September 13, 2021, Bravo appealed the cancellation to OHA, stating that, although the name change application was not submitted prior to SAM and the IRS being made aware of the name change, both entities were made aware as of September 1, 2021 and Bravo was then “ready to be verified.” Ultimately, Bravo did not include a statement of why the cancellation was in error. As such, OHA determined Bravo had failed to comply with the regulation and failed to respond to the NOPC leading to the appeal being denied. OHA concluded that Bravo was not listed in SAM, which is an SDVOSB requirement, and it was proper for CVE to remove Bravo as an SDVOSB. In the end, Bravo Federal Consulting, LLC should serve as a cautionary tale for all small businesses involved in federal government contracting. Ensure that your business has the most up to date information in SAM and remain in compliance by reporting any change that may affect eligibility within the required time. While this case involved an SDVOSB, keeping the SAM registration is important for all types of federal contractors. Need help with a government contracting legal matter? Email us or give us a call at 785-200-8919.  Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.  The post Keep Registrations in SAM Current to Avoid Loss of SDVOSB Verification first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  6. Small businesses are often seen as the backbone of the economy. Contained within the category of small businesses are what are known as Small Disadvantaged Businesses or SDBs. Currently, the federal government has a goal to award 5% of its contracting dollars to SDBs. The White House is seeking to triple this number by 2025. The White House recently released a Fact Sheet as to how it intends to meet this goal. So, let’s dive into some of the specifics. On June 1, 2021, the White House announced its plan to increase the share of contracts going to SDBs by 50 percent by 2025. This translates to the ambitious goal of awarding an additional $100 billion to SDBs over the next five years. While the goal is lofty, as they say “the devil is in the details.” Just how will agencies meet this new goal, and how will these dollars be tracked? We will hopefully see concrete terms soon in the form of regulations implementing these goals. Federal agencies have actually been overshooting the existing statutory requirement of 5% of contracts to SDBs by nearly double over the last five years. On average, 9.8% of federal contracting dollars currently go to SDBs. A planned 50% increase would mean a new goal of nearly 15% of federal contracting dollars going to SDBs by 2025. The White House took pains to note that while nearly 20% of small businesses are owned by women, less than 5% of federal contracting dollars go to women-owned small businesses. This is a trend the White House wants to reverse. Here are some of the ways the White House intends to make these changes. Disaggregated Data. The first reform is to disaggregate the top-level data. What this means is the data will no longer simply rely on just meeting the overall percentage goal, but will instead be broken down into sub-categories. This includes Black-owned, women-owned, Asian-owned, Hispanic-owned, etc. small businesses. The hope is this data will shed light into areas where entities are either over or under-served. Beginning with the 2020 fiscal year, this data will provided across agencies in order to target specific groups. Category Management Reform. The next reform is to increase credit given to agencies for making awards to SDBs. The White House noted that an unintended consequence of having agencies seek contracts under category management (meaning buying as an organized entity instead of many smaller buyers), is that “socioeconomic firms, a group that includes SDBs, women-owned, service disabled veteran-owned, and HUBZones, have received a proportionally lower share of contracts.” The purpose of this reform is to incentivize SDB buying by the federal government; agencies will receive automatic “credit” under category management for all awards made to socioeconomic small businesses, beginning FY 2022. Encourage agencies to use “decentralized contracts and other strategies that are necessary to increase diversity within agency supplier bases.” And SBA will now be a voting member of the Category Management Leadership Council, the interagency governing body for category management activities. Organizational Changes. As far as the back-end, the White House is also seeking to give these goals some teeth. Those in the Senior Executive Service will have compliance with these new goals inserted into their evaluation criteria. This means that those in leadership roles will have a direct incentive toward ensuring each agency meets these new goals. Plus, Federal Offices of Small and Disadvantaged Business Utilization (OSBDUs) will have direct access to senior leadership. The end-goal is to increase the number of new entrants into the federal marketplace. The recent trend has seen a 60% decline in new entrants, which these goals seek to reverse. Time will tell whether these goals will meet their overarching goals. One key from our prospective is to remove barriers to new firms wishing to gain entrance into the federal marketplace. All too often, much like the job market, agencies want established entities with long track records, over options for startups. Additionally, larger firms have the ability to squeeze out small businesses, by offering targeted solutions at rates smaller firms have a hard time competing with. For some firms, it can be difficult to meet all of the highly-specific requirements agencies seek, while having little to no experience. We at SmallGovCon think the goals are admirable. Simultaneously, our hope is the powers that be are looking at how to get more people interested in the marketplace by reevaluating what it takes to get there and be successful. Need help with a government contracting legal matter? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post White House Proposes Reforms to Increase Dollars to Underserved Small Businesses first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  7. Happy eve of Christmas Eve, readers! Here’s hoping the shopping is done and the presents are all wrapped and under the tree. Even though we are living in uncertain times, there is much to be grateful for this holiday season. Thank you for all of your support this past year and thanks for letting us bring you these helpful updates and analysis about federal contracting. With Christmas two days away and 2022 right around the corner, it’s time to enjoy the holidays, reflect on the year that was, and look forward to the challenges and opportunities ahead. We will post our usual Week in Review after the holidays. Until then, best wishes for a wonderful and joyous holiday season. Stay safe and well! The post Happy Holidays from SmallGovCon! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  8. If, as the result of a size protest or appeal, the SBA makes a final determination that a company is not a small business, the company will be required to update SAM within two days to reflect that it is no longer small. And if the company doesn’t recertify within two days, the SBA will do the honors and update the company’s SAM profile. This tough new requirement is part of the compromise version 2022 National Defense Authorization Act, which is likely to be signed into law in the coming weeks, although it is unclear when the SBA’s regulations will be revised to implement the change. Section 863 of the 2022 NDAA amends the Small Business Act to include the following language: (4) DETERMINATIONS REGARDING STATUS OF CONCERNS. – (A) IN GENERAL. – Not later than 2 days after the date on which a final determination that a business concern does not meet the requirements of the status such concern claims to hold is made, such concern or the the Administrator, as applicable, shall update the status of such concern in the System for Award Management (or any successor system). (B) ADMINISTRATOR UPDATES. – If such concern fails to update the status of such concern as described in subparagraph (A), not later than 2 days after such failure the Administrator shall make such update. This is a significant change from existing law, which merely states that “after an adverse size determination, a concern cannot self-certify as small under the same or lower size standard unless it is first recertified as small by SBA.” Under existing law, then, a small business need only change its SAM to reflect an adverse size determination when the company is using SAM to certify its size–such as with respect to a new bid, or potentially with a required annual SAM update. Section 863 also requires notification to contracting officers for pending proposals: (C) NOTIFICATION. – A concern requires to make an update described in subparagraph (A) shall notify a contracting officer for each contract with respect to which such concern has an offer or bid pending of the determination made under subparagraph (A), if the concern finds, in good faith, that such determination affects the eligibility of the concern to perform such contract. Unlike the two-day rule, the notification provision is not a major change from existing law. Current SBA regulations state that when a company receives an adverse size determination, “[i]f the concern has already certified itself as small on a pending procurement or on an application for SBA assistance, the concern must immediately inform the officials responsible for the pending procurement or requested assistance of the adverse size determination.” As mentioned previously, Section 863 has not yet become law, but that appears very likely to happen in the near future. However, Congress has not given the SBA a specific deadline for implementing this new requirement, so it is unclear when the SBA will begin to enforce it. As always, we will keep the government contracting community posted. Need help with a government contracting legal matter? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post 2022 NDAA Requires Prompt SAM Update If SBA Issues Adverse Size Determination first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  9. On Friday, a US Appeals Court overturned the temporary halt on the vaccine mandate for large businesses. This is interesting to note because some of the same analysis used in connection with whether the large business mandate is enforceable could apply to the contractor vaccine mandate. The OSHA mandate applied to employers with 100 or more employees. It required “employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace.” The appeals court looked closely at the authority of OSHA and determined: Longstanding precedent addressing the plain language of the Act, OSHA’s interpretations of the statute, and examples of direct Congressional authorization following the enactment of the OSH Act all show that OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace. The appeals court also noted that “employers may choose to comply with the standard by enforcing the mask-and-test component, which are entirely temporary in nature and do not create irreparable injuries.” This is separate from the federal contractor mandate that is currently on hold due to a Georgia federal judge ruling. It is also separate from the mandate for health care workers. For the health care mandate, a federal appeals court recently issued a ruling that the health care worker vaccine mandate can be enforced in about half of the country. The OSHA mandate allows testing OR a vaccine, so it is different in effect from the federal contractor mandate, which requires vaccination absent an accommodation or limited exceptions. It is also enforced by OSHA, which has a long history of enforcing workplace safety rules. These two facets of the OHSA mandate, and possibly more, make it a different animal than the federal contractor mandate, so it’s not certain how an appeals court will view the contractor mandate. We will keep you posted on how courts continue to interpret the federal contractor vaccine mandate, as well as other vaccine mandates. 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 Appeals Court Reinstates Large Business Vaccine Mandate first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  10. Hello, Readers! Can you believe we’re more than halfway through December already? The holidays are upon us! Houses are decorated with twinkling lights. There’s a chill in the air (a relief after the odd 70 degree and high winds that hit the Midwest recently). Items are flying off of store shelves. Hopefully despite all that hustle and bustle, you’re getting to enjoy quality time with your loved ones. The hot topics in government contracting this week include some new vaccine mandate lawsuit updates, cybersecurity measures, and a push for the federal government toward clean energy and sustainability. We also have one festive topic for you – ICE is on the hunt for holiday scams. Read about these topics and more below, and for even more information and news related to federal government contracting, check out our blog. Best of luck with those last minute holiday preparations this weekend! Federal contractors find, sometimes you just have to outwait a problem [FedNewsNet]Air Force Releases Draft RFP for Follow-On Mission Planning Support Contract [GovConWire]Lansing-Based Research And Development Firm Pays $500,000 To Resolve Federal Contract Fraud Allegations [DOJ]OMB offers new guidance on federal contractor vaccine mandate, as compliance ticks up for feds [FedNewsNet]While the elves prepare for Christmas, ICE is on the hunt for holiday scams [FedNewsNet]DISA is ending milCloud 2.0 in June [FedScoop]Congress passes defense policy bill with boosts to R&D and cybersecurity [FedScoop]Transforming Digital Services: A Fedscoop Special Report [FedScoop]Federal agencies have until Dec. 24 to apply fixes for Log4Shell vulnerability [FedScoop]PF 2022-14 Nationwide Preliminary Injunction on Vaccine Mandate for Federal Contractor Employees [DOE]Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability [Federal Regiser}A bill codifying FedRAMP finally makes it to the Senate floor [FedScoop]Changes to make federal procurement more equitable is missing key ingredients [FedNewsNet]Deputy Defense Secretary Lauds Achievements of DOD’s Acquisition Workforce [DOD]Coronavirus Roundup: Where the Biden Administration’s Vaccine Mandates Stand; Possible Mandatory Booster Shots for the Military [GovExec] The post SmallGovCon Week in Review: December 13-17, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  11. The Anti-Assignment Act (41 U.S.C. § 6305) prohibits the transfer of a government contract or interest in a government contract to a third party. However, government agencies recognized that contractors are on occasion bought, sold, merged, or simply encounter circumstances upon which it becomes desirable or necessary for them to assign a government contract to a third party. To address this issue, the Federal Acquisition Regulations (FAR) provide for a novation process to give contractors a method to transfer government contracts and not run afoul of the prohibitions in the Anti-Assignment Act. The ultimate goal of the novation process is to successfully transfer the contract and have the government recognize a new contractor as the successor-in-interest to the transferred contract. In practice however, contractors seeking novation of a government contract understand the uncertainty of the process. First, the government is not required to enter into a novation agreement when requested by a contractor, but may do so in the contracting officer’s discretion, if the government finds the novation to be in the government’s “best interest.” FAR 42.1204. Despite these uncertainties, contractors can successfully novate a government contract; if they follow the procedures and then communicate that process to an agency evaluating proposals. In a recent GAO decision, a contractor was successful in novating a contract and sustained a challenge to an agency recognizing the transferee as the successor-in-interest to that contract. The case is ICI Services Corporation, B-418255.5; B-418255.6 (October 13, 2021). The relevant facts of this case are as follows: The Department of the Navy originally issued an RFP to contractors holding contracts for the Navy’s SeaPort Next Generation (SeaPort-NxG). The RFP sought contractors to provide support to one of the Navy’s major program offices. Alion–specifically, its Naval Systems Business Unit (NSBU)–submitted a timely proposal responding to the RFP. Alion’s NSBU consisted of various business units, all of which supported its maritime-related customers. Prior to submitting its proposal, Alion entered into an agreement with Serco, Inc., another SeaPort-NxG contract holder, where Serco would acquire, among other things, Alion’s NSBU. In its proposal, Alion specifically informed the Navy about the agreement with Serco, that the corporate transaction contemplated by the agreement was expected to close later in the year, and that the resources identified in its proposal would remain the same after the transaction. Alion also notified the Navy that their proposal anticipated the transaction with Serco and was structured such that Serco’s acquisition of Alion’s NSBU would not impact the performance of the resulting task order. The proposal also provided that all assets and personnel of Alion’s NSBU, including all those required to perform the task order, would be transferred as part of the transaction. Upon completion of the Serco-Alion transaction, Serco did in fact acquire “all NSBU employees, including all SSBU employees proposed for the PMS 317 task order; all NSBU/SSBU facilities; other NSBU assets (e.g., proposals, leases, licenses); and other federal contracts awarded to Alion’s NSBU.” After the transaction, Alion remained in existence as a separate entity and retained its SeaPort-NxG contract. The Navy subsequently entered into discussions with all offerors regarding their PMS 317 proposals. Because the Alion NSBU was now a part of Serco, the agency’s discussions were held with Serco. In the discussions, the Navy sought, and Serco provided detailed information regarding the Serco-Alion transaction so the Navy could determine whether Serco was a complete successor-in-interest to Alion for purposes of the submitted proposal. Serco confirmed that, “with one minor exception, all assets and personnel initially proposed by Alion had been acquired by Serco and would continue to be used by Serco to perform the PMS 317 task order.” Serco also provided information showing that as a result of the Serco-Alion transaction, and contract novations, Serco “owns” or is solely performing the contracts and task orders included within the past performance section of its PMS 317 proposal. After assessing the information, the contracting officer determined that: “(1) Serco had acquired the entirety of the business entity that had submitted Alion’s proposal (including the PMS 317 proposal itself) which was proposed to perform under Alion’s proposal; and (2) Serco’s purchase of Alion’s NSBU resulted in all relevant PMS 317 proposal assets–i.e., employees, leases/subleases, ‘any and all’ other SSBU resources needed to perform the task order–being transferred from Alion to Serco.” “Based this information, the Navy concluded that Serco was not only the successor[-]in[-]interest to the Alion NSBU which was identified to perform under Alion’s initial proposal, but was also the successor[-]in[-]interest to the proposal previously submitted by Alion.” The Navy substituted Alion for Serco as an offeror under the RFP and ultimately awarded Serco the task order. After its debriefing, ICI filed a protest with the GAO raising several issues challenging the Navy’s award of the task order to Alion. Among the issues in the protest, ICI argued that the Navy failed to properly evaluate Serco’s eligibility for award as a corporate successor-in-interest to Alion. After reviewing ICI’s assertions, the GAO found no basis sustain ICI’s argument. In explaining the basis of its decision the GAO stated: As an initial matter, not only was Serco’s acquisition of that portion of Alion imminent and certain–in fact, the transaction was completed prior to the agency’s award decision–but the Navy was aware of the transaction and fully considered it as part of the agency’s evaluation. Further, the record reflects the Navy reasonably found Serco to be the complete successor-in-interest to Alion as a result of Serco’s acquisition of the entirety of the NSBU, which was the business entity that had submitted Alion’s proposal and which was (with the one noted exception) proposed to perform under the proposal. In its opinion, the GAO expressed that in reaching its decision it focused on whether or not “it was reasonable for an agency to reach conclusions that it did regarding the corporate transaction. The GAO determined that an agency’s decision on an award is not improper where an acquisition or restructuring transaction does not have a “significant impact on cost or technical impact on contract performance. In applying its analysis to this matter, GAO found that the transfer of the NSBU from Alion to Serco is the type of transaction for which GAO has permitted the assignment of proposals: “a sale that involves an ‘entire portion of a business embraced by the proposal.’” GAO also determined that once Serco was found to be the successor-in-interest to Alion’s NSBU and Alion’s proposal, the Navy’s decision to allow Serco as Alion’s substitute as an offeror under the RFP, and subsequently award of the task order to Serco, was reasonable. Key factors in the GAO’s decision was that 1) the Navy was aware of the particular transaction, 2) the Navy determined that the transaction was imminent and certain, and 3) that the transaction transferred the “entire portion of a business embraced by the proposal.” Basically, “ICI failed to demonstrate that Serco’s acquisition of the NSBU–completed before the submissions of offerors’ FPRs–would have resulted in the task order being performed in a manner materially different from what was proposed by Alion.” Also, as part of its argument ICI asserted that Serco was not a complete successor-in-interest to Alion’s proposal because Serco did not acquire Alion’s SeaPort-NxG contract, Alion did not transfer all of its assets included in its proposal. GAO disagreed with ICI on this point and stated that ICI in its argument “improperly conflates the standard required for a contract novation with the standard we have applied for determining a proper successor-in-interest to a business entity which submitted the initial proposal.” The standard for the government to novate a contract is that “the entire portion of the assets involved in performing the contract” must be transferred to a third party. [emphasis added]. With respect to determining a proper successor-in-interest to an entity submitting a proposal, GAO has found that the transfer of rights and obligations of the entity submitting the proposal is permissible in situations involving “the sale of an entire portion of a business embraced by the proposal.” In other words, GAO was not going to second-guess the decision to allow the novation. In this case, the GAO determined that the Navy was reasonable in assessment that Alion did, in fact, transfer to Serco the entire portion of assets that would be involved in performing the task order contemplated by the RFP for purposes of the novation. The GAO determined that the Navy was also reasonable in its decision that the Alion-Serco transaction resulted in a transfer of the entire portion of a business embraced by Alion’s proposal. There a couple of takeaways from this case. Although the ultimate goal of a novation is for the government to recognize a contractor as a successor-in-interest to a government contract, the FAR novation rules apply only to whether the government will allow a different contractor to perform. The government uses different criteria to then determine if a third-party buyer will be recognized as a successor-in-interest with respect to evaluating bid proposals. This case also demonstrates that, despite the difficulties in obtaining agency approval for novation of a government contract, if the procedure is performed correctly it can be successfully accomplished and withstand a bid protest. 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 GAO Confirms that Novations Work: Agency Properly Recognized Buyer of Contract as Awardee first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  12. Good day, Readers! The holidays are quickly approaching and everything is looking festive and bright here in Lawrence, Kansas. The annual tradition of Santa being recued from the roof of one of our local department stores occurred and you will be happy to know that he is safe to circle the globe once again this Christmas. You can see photos of this fun, annual tradition here. It’s always quite a spectacle! As always, there was a lot happening in the world of federal government contracting this week. The biggest news being that a federal judge has temporarily halted the vaccine mandate for federal government contractors. You can read more about this latest development and some interesting statistics that were issued on federal government contracting, along with other announcements in the articles below, as well as our blog post. Have a great weekend! Comptroller General Bid Protest Statistics – 25 Years of Fiscal Year Data [Wifcon]U.S. court temporarily halts Biden’s vaccine mandate for federal contractors nationwide [CNBC]US Government contractor trends in 2022 [EntTimes]The Federal Government Is Making a New Investment in Women-Owned Small Businesses [GovExec]Why Government Suppliers Will Struggle to Meet CMMC Requirements [NextGov]Government Ethics Czar to Feds: Remember to Be Wary of Gifts This Holiday Season [GovExec]Former Ft. Bragg Employee Pleads Guilty to Bribery [DoJ]Guidance Issued on Biden Contracting-Procurement Order [FedWeek]USAID putting new money towards making sure developing countries have enough COVID-19 vaccines [FedNewsNet]FACT SHEET: President Biden Signs Executive Order Catalyzing America’s Clean Energy Economy Through Federal Sustainability [WhiteHouse]Pentagon to reshuffle leadership roles for AI, data, digital services [FedNewsNet]Biden sets zero-emission goals for federal buildings, vehicles in executive order [FedNewsNet]Alliedbarton Security Services LLC Agrees to Pay More Than $1.1M to Resolve Gender, Race-based Pay Discrimination Allegations at New York Location [DoL]Defense Contractor Cybersecurity: Stakeholder Communication and Performance Goals Could Improve Certification Framework [GAO] The post SmallGovCon Week in in Review: December 6-10, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  13. Koprince McCall Pottroff LLC will be presenting a webinar hosted by the El Paso SBA that covers an important topic in federal government contracting – 8(a) Joint Ventures. In this webinar, government contracts attorneys Shane McCall and John Holtz cover the basics of joint ventures, the specifics of 8(a) joint ventures (including SBA requirements), and how the mentor-protégé program can benefit a joint venture arrangement. If you’d like to join us for the webinar, mark the date of December 16 on your calendar and here is the link for the event. The post Event: 8(a) Joint Ventures Webinar, Hosted by El Paso SBA first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  14. For practically the entire summer of 2021, we observed (and commented on) NIH’s numerous amendments to its long-awaited CIO-SP4 solicitation after it was finally issued in May 2021. By the time the deadline for proposals finally came, it had been amended eleven (!) times. Even with all those amendments, however, it appears that at least one offeror still had serious concerns about the final version. As it turns out, at least some of their concerns were warranted, per GAO, and has recommended the agency to amend the solicitation or revise its evaluation criteria. Computer World Services Corporation (CWS) filed a protest regarding CIO-SP4 arguing that the solicitation’s self-scoring evaluation is unduly restrictive concerning offerors who compete as a mentor-protégé joint venture where the mentor is a large business, among other contentions. Specifically, CWS noted the solicitation limited such joint ventures to using the experience of the large business mentor for no more than two of the three possible experience examples for each area of experience. When a protestor claims a provision is unduly restrictive of competition, the agency needs to show why “the provision is reasonably necessary to meet the agency’s needs,” GAO noted, “to ensure that it is rational and can withstand logical scrutiny.” Because NIH failed to provide a reasonable rationale for the limitation on using large business mentor experience, GAO agreed with CWS. GAO then explained its reasoning. “SBA’s small business mentor-protégé program allows small or large business firms to serve as mentors to small business protégé firms in order to provide ‘business development assistance’ to the protégé firms and to ‘improve the protégé firms’ ability to successfully compete for federal contracts.’” 13 C.F.R. § 125.9. After going through the various experience example requirements of CIO-SP4, GAO looked at 13 C.F.R. § 125.8(e), which prohibits agencies from requiring “the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.” In a similar case, Ekagra Partners, LLC, B‑408685.18, the RFP stated that the large business mentor could only submit one of two required examples for one experience category and two of three required examples for the other category, meaning the protégé had to submit at least one example in each category. However, the requirement “did not specify the relative amount of experience that the mentor and protégé were required to admit.” Therefore, GAO determined it did not violate 13 C.F.R. § 125.8. Still, GAO could have found that the requirement unreasonable. However, GAO “concluded that the agency reasonably explained that the limitation was needed to ensure that the protégé demonstrated its ability to perform the solicitation requirements.” Turning back to the CWS matter, GAO considered the changes to 13 C.F.R. § 125.8(e) since the Ekagra decision. Those changes added the language “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.” GAO decided that this did not change its reasoning since Ekagra, because the issue in this case is the relative consideration to be given to mentor and protégé members of a joint venture as opposed to the difference in requirements for the protégé versus other offerors. Yes, 13 C.F.R. § 125.8(e) means you can’t require a protégé to meet the same requirements of offerors who submit on their own or outside of a mentor-protégé agreement. But it says nothing about the balance of experience between the mentor and the protégé in the joint venture itself. However, GAO found one key difference between Ekagra and CWS’s protest. In Ekagra, the solicitation was found reasonable as the agency reasonably argued that limiting the amount of experience a large business mentor could use ensures the agency will be able to meaningfully consider the protégé’s experience. The protégé was required in Ekagra to submit at least one example for each of the two evaluation factors. For the CIO-SP4 solicitation, there were ten task areas. For each task area, the offeror must provide corporate experience examples relevant to those task areas. For all the task areas combined, the offeror must provide a minimum of three corporate task examples. The corporate experience example could be reused in multiple task areas for corporate experience, save for the minimum one required example for task area. No other task areas had a minimum. For leading edge technology experience and federal multiple award experience, offerors could submit up to three examples for each, with no minimum provided. This is confusing when looked at all together, but the key thing is this: the limit on the mentor’s experience submissions was on a per task area basis, not an overall basis. In other words, although three examples were required for corporate experience, that was for the entire corporate experience section, which had 10 different task areas. Only one experience was required per task area, but the mentor could submit up to two examples per task area. As such, the mentor could submit two examples for each task area, which means the mentor-protégé joint venture could submit 20 examples all from the mentor and still comply with the solicitation! As for the leading-edge technology and federal multiple award criteria, the issue is that while the mentor could only provide two examples, there was no minimum to the number of examples the joint venture had to submit, only a maximum of three. This results in a situation where the mentor is limited from providing a certain number of examples, but the protégé is not actually required to provide examples of its own. If the mentor that provided all 30 examples, three per task area, for corporate experience, the joint venture would violate the solicitation. But if it only submitted two per task area, resulting in a total of 20, even though the protégé still submits no examples, it would meet the requirements of the solicitation! So, the argument that the limitation made the protégé have to submit examples was simply not true and produces a result where a mentor-protégé joint venture that submitted 30 mentor examples and no protégé examples is rejected, but one that submits 20 mentor examples and no protégé examples gets evaluated. Whew! We know this is a bit confusing, but, basically, the way things shook out numerically, in Ekagra, the protégé would have to submit at least some example for each factor in order for the proposal to be acceptable, meaning the agency had a reasonable argument that the limitation would force the protégé to show at least some experience. In this case, the way things shook out, a protégé could submit nothing and still the joint venture’s proposal could be acceptable. This made the limitation on how many submissions the mentor could make completely pointless; it doesn’t actually require the protégé to show anything. As a result, the GAO sustained the protest, and has now recommended NIH go back and fix this issue. It is likely, then, that offerors will get another shot at this troublesome procurement. Need help with a government contracting legal matter? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GAO Finds CIO-SP4 Unduly Restrictive; Recommends Amendment first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  15. For government contractors, trying to predict how COVID-19 might affect a government project can be extraordinarily challenging task. One bidder recently attempted to provide some clarity by stating, in its bid, that COVID-19 was a “force majeure event” and that the bidder would be entitled to extra time if COVID-19 affected the project. Unfortunately for the bidder, its effort failed: the agency rejected the bid for improperly exceeding the scope of a relevant FAR clause. The GAO then confirmed that the agency had acted properly. The GAO’s decision in American Mine Services, LLC, B-420138 (Dec. 3, 2021) involved an Army Invitation for Bids seeking a contractor to furnish and install two new service gates at the Surry Mountain Dam in New Hampshire. The IFB was set aside for small businesses. Among other clauses, the IFB incorporated FAR 52.249-10 (Default – Rixed Price Construction). FAR 52.249-10 allows the government to terminate the contractor for default, but also specifies, in paragraph (b), that a contractor shall not be terminated for default due to a delay that arises from “unforeseeable causes beyond the control and without the fault or negligence of the Contractor.” The clause lists “Epidemics” and “Quarantine restrictions” as examples of such excusable delays, but does not directly address COVID-19. American Mine Services, LLC submitted a bid. In its bid, AMS made the following statement: For purposes of this bid, COVID-19 is considered a Force-Majeure Event along with any other similar disease, epidemic or pandemic event. If any of the aforementioned events occur and affect the project, AMS reserves its rights for additional time. The Army rejected the bid, deciding that AMS’s statement was a material change to the terms of FAR 52.249-10. AMS then filed a protest challenging the Army’s decision. AMS argued that its statement merely confirmed the pre-existing protections of FAR 52.249-10(b), rather than expanding upon or otherwise varying from those protections. The GAO wrote that all bids must be “responsive.” The GAO explained that “the test for responsiveness is whether a bid offers to perform the exact thing called for in an IFB, so that acceptance of the bid will bind a bidder to perform in accordance with all of the terms and conditions of a solicitation without exception.” If a bidder “attempts to impose conditions that would modify material requirements of an IRF, limit its liability to the government, or limit the rights of the government under any contract clause, then the bid must be rejected.” In this case, the GAO wrote, while FAR 52.249-10(b) “lists epidemics and quarantine restrictions as possible causes of excusable delay, the language of the provision inserted in the protester’s bid specifically lists “COVID-19” and “any other similar disease, epidemic, or pandemic event.” The GAO wrote that the FAR clause clearly does not include these specific terms as examples of an unforeseeable cause of delay. The GAO continued: Additionally, while the FAR clause lists epidemics and quarantine restrictions as examples, the clause, however, does not deem these events to be per se “unforeseeable causes beyond the control and without the fault or negligence of the [c]ontractor.” FAR 52.249-10(b)(1). That determination is left to the judgment of the contracting officer once the facts surrounding the delay are ascertained. FAR 52.249‑10(b)(2). In contrast, the provision added by AMS unilaterally declares, without qualification, that “COVID-19 . . . along with any other similar disease, epidemic, or pandemic event” is a “force-majeure event,” i.e., an uncontrollable and unexpected event that prevents the contractor from performing the contract. The GAO held that “because AMS’s added provision attempts to impose conditions that limits the rights of the government under FAR clause 52.249-10, on this record, we conclude that the agency reasonably found AMS’s bid to be nonresponsive and rejected it.” The GAO denied the protest. For contractors, operating in a pandemic environment–and trying to predict how future COVID variations or other diseases might affect their work–can be extraordinarily challenging. But as the American Mine Services case demonstrates, bidders must be careful when trying to guard against such risks in their bids so that those bids remain responsive. 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 Agency Properly Rejected Bidder for Listing COVID-19 as a “Force Majeure” Event first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  16. A federal judge in Georgia has recently imposed a nationwide injunction on the federal contractor vaccine mandate. This will likely be appealed, but for now, here are the key points from the decision. The judge looked at closely at what law allowed the president to impose this mandate. Specifically, the the Federal Property and Administrative Services Act (the Procurement Act). The judge concluded that this law does not give the president the authority to impose the vaccine mandate. The order states: “While the Procurement Act explicitly and unquestionably bestows some authority upon the President, the Court is unconvinced, at this stage of the litigation, that it authorized him to direct the type of actions by agencies that are contained in [the vaccine mandate].” The judge went further: Additionally, the direct impact of EO 14042 goes beyond the administration and management of procurement and contracting; in its practical application (requiring a significant number of individuals across the country working in a broad range of positions and in numerous different industries to be vaccinated or face a serious risk of losing their job), it operates as a regulation of public health. It will also have a major impact on the economy at large, as it limits contractors’ and members of the workforce’s ability to perform work on federal contracts. Accordingly, it appears to have vast economic and political significance. The judge noted that the vaccine mandate “goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.” The court noted that the plaintiffs include industry groups with nationwide membership, so a nationwide mandate is needed. We at SmallGovCon will stay tuned to see if this issue is revisited by higher courts on appeal. But for now, the injunction appears to bar the federal government from enforcing the mandate. 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 Breaking: Judge Imposes Nationwide Injunction on Vaccine Mandate first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  17. There will be a new definition for commercial items under the FAR, via a final rule effective December 6, 2021. The rule divides the definition into two separate categories: “commercial item” and “commercial product.” Below, we’ll summarize these changes to an important definition in federal contracting. The new definition stems from a change in the 2019 NDAA that split the definition the definition of “commercial item” at 41 U.S.C. 103 into the definitions of “commercial product” and “commercial service,” at 41 U.S.C. 103 and 103a. This change was suggested by the Section 809 Panel, a panel commissioned by Congress to come up with ways to streamline and improve defense contracting. While this recommendation was accepted by Congress, other Section 809 panel ideas, such as eliminating small business set-asides, were rejected by Congress. The Panel recommended the splitting of the commercial items definition in order to to better “reflect the significant roles services and commercial services play today in the DoD procurement budget.” However, this definition change is not supposed to change the substance of the rule, as it “does not expand or shrink the universe of products or services the Government may procure using FAR part 12, nor does it change the terms and conditions with which contractors must comply.” Commercial Product So, what is a commercial product? The main definition of commercial product now reads: (1) A product, other than real property, that is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes, and— (i) Has been sold, leased, or licensed to the general public; or (ii) Has been offered for sale, lease, or license to the general public; The definition also includes offshoots of the type of products defined above, including: A product “evolved” through technological advances from a product described above that will be ready “in the commercial marketplace in time to satisfy the delivery requirements under a Government solicitation”A product modified from the main definition in a customary way or a “minor modification” for the government, meaning it doesn’t change the purpose, function, or physical characteristics of an item A combination of products meeting the definition that is sold in combination to the publicThe last type of commercial product is quite specific and involved sale to state, local, or foreign governments: “A nondevelopmental item, if the procuring agency determines the product was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments.” Commercial Service A commercial service includes the following types: “Installation services, maintenance services, repair services, training services, and other services if” the services support a commercial product and the contractor provides similar services to the general public.“Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions.” This rule change should be helpful to contractors in determining what products and services count as commercial. It will also be important to agencies when determining if the commercial products and services rules of FAR Part 12 apply to certain procurements. 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 FAR Will Clarify Commercial Item Definition Into Services and Products first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  18. 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
  19. 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
  20. 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
  21. 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
  22. 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
  23. 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
  24. 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
  25. 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
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