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  1. 4 C.F.R. 21.2(b) states that, for GAO protests, GAO has the option to dismiss or not dismiss a protest that is filed late if there is good cause or it is an important issue. In other words, if there’s a good reason, GAO can accept an untimely protest. (Please note that this is not suggesting the filing deadline does not matter, GAO treats it very strictly most of the time and you should treat it as a “drop-dead” deadline). For this reason, some think this same discretion applies in other protests and appeals regarding government contracts. For the Civilian Board of Contract Appeals (CBCA), it very much does not. Cherokee 8A Group (“Cherokee”) was the awardee for a contract for construction services with the Department of Veterans Affairs (“VA”). Cherokee 8A Group, CBCA 7107. As sometimes is the case, a dispute arose over outstanding balances, time extensions, and additional costs. Cherokee submitted an uncertified claim to the contracting officer on September 12, 2018, and then certified that claim on September 25, 2018. The contracting officer approved the claim in part but denied the time extension and additional costs. Cherokee was notified of this decision via a May 2, 2019 letter. In this letter, it stated: “If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken.” FAR 6101.2(d)(1) states that, under the Contract Disputes Act (41 U.S.C. Chapter 71), “a notice of appeal must be filed within 90 calendar days after the date of receipt of a contracting officer’s decision on a claim.” As the letter was received on May 2, 2019, this gave Cherokee a deadline of July 31, 2019 to file an appeal. Cherokee decided instead on May 9, 2019 to send a letter to the VA asking for reconsideration of the contracting officer’s decision. The VA did not respond. Still, plenty of time, right? Cherokee, apparently confused as to where to file the appeal, sent the contracting officer and a VA official an email on July 11, 2019, asking if the VA’s Office of Construction and Facilities Management was the correct forum to appeal the contracting officer’s final decision. Cherokee sent another letter on July 22, an email on July 30, and then another email on July 31, all asking if the appeal had been sent to the proper address. After two more inquiries by Cherokee, the VA finally responded on March 16, 2021, stating that if the appeal had been filed properly, it would have been referred to their litigation department by that point, and it had not. The VA also provided contact information for CBCA. Cherokee filed its notice of appeal on April 21, 2021 with the CBCA. The VA responded with a motion to dismiss the next day for untimeliness, as the deadline for appeal was July 31, 2019. Cherokee argued that the VA misled it about the appropriate forum for appeal, and that the VA had been on notice of the appeal since May 2019. Noting the multiple requests for information from the VA about the appropriate forum, Cherokee asserted the VA’s omission of information was intentional or negligent; but for the VA’s lack of response, Cherokee would have timely and correctly filed the appeal. CBCA stated that 41 U.S.C. § 7104(a) gives a contractor 90 days from the date of the contracting officer’s decision on a claim to appeal it to the CBCA. Quoting Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982), it noted that “deadline is ‘part of a statute waiving sovereign immunity, which must be strictly construed.” “This deadline may not be waived by the Board.” Cherokee had the responsibility to properly file its appeal on time with the CBCA. Failure to do such is not excused by the contracting agency failing to respond to inquiries from the contractor. In fact, referring to FAR 33.211(a)(4)(v), CBCA noted, “[t]he Federal Acquisition Regulation (FAR) does not require the contracting officer to identify the CBCA in the final decision.” CBCA did recognize that exceptions exist where “an agency misleads the contractor and remains silent as to the appropriate forum for an appeal” as well as “if the agency fails to give notice to the contractor.” But, in this matter, the contracting officer provided the appropriate language from the FAR regarding appeal rights. Furthermore, that the VA may have known of the intention to appeal back in May 2019 was irrelevant. “CBCA does not view contracting officers as agents that may accept appeals on the Board’s behalf.” Furthermore, the information for what was needed to appeal was publicly available. Cherokee’s appeal was untimely, and CBCA dismissed it. The oft-repeated lesson is clear: deadlines are deadlines. The exceptions that will allow late filings are extremely narrow and should not be relied on. A good rule is to treat deadlines as having zero exceptions. Another great lesson: do not expect the agency to point out where you have to go to appeal. While agencies do try to be helpful, they aren’t generally required to guide you to where you need to file your protest. Even if you think you can do the protest yourself, consulting with an attorney as to the requirements can save you a lot of heartache. Planning on filing a protest or appeal? 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 CBCA Cannot Waive Its Own Filing Deadlines first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  2. Happy Friday, Readers. We have been in the midst of a heatwave here in Kansas with temperatures at 100 degrees and the humidity at 91%. Whew! We are very grateful for air conditioning during the dog days of summer. Here’s an interesting fact. The ancient Romans called the hottest, most humid days of summer “diēs caniculārēs” or “dog days.” The name came about because they associated the hottest days of summer with the star Sirius. Sirius was known as the “Dog Star” because it was the brightest star in the constellation Canis Major (Large Dog). There was a lot of news and announcements in Federal government contracting this week such as several executive orders and proposed rules impacting federal government contractors related to the Buy American Act and boosting federal competition, and the U.S. Small Business Administration has an update on successfully awarding over $7.5 billion in Shuttered Venue Operators Grants (SVOGs) as well as announcing the opening of the paycheck protection program direct forgiveness portal. Here’s hoping that the weather is cooler in your neck of the woods. Stay cool and have a great weekend! Agencies on the hook to meet new Buy American acquisition goals for most products [FedNewsNet]Covid-19 Contracting: Actions Needed to Enhance Transparency and Oversight of Selected Awards [GAO]Executive order contains 72 initiatives on boosting competition in federal contracting [FedNewsNet]FACT SHEET: Biden-⁠Harris Administration Issues Proposed Buy American Rule, Advancing the President’s Commitment to Ensuring the Future of America is Made in America by All of America’s Workers [Whitehouse]VA deputy secretary to oversee troubled EHR program [Fedscoop]SBA Reaches New Milestone Awarding $7.5 Billion in Shuttered Venue Operators Grants to over 10,000 Venues [SBA]SBA Announces Opening of Paycheck Protection Program Direct Forgiveness Portal [SBA]Federal Government Awards Record-Breaking $145.7 Billion in Contracting to Small Businesses [Bakerfield]Executive order contains 72 initiatives on boosting competition in federal contracting [FedNewsNet]FACT SHEET: Biden-⁠Harris Administration Issues Proposed Buy American Rule, Advancing the President’s Commitment to Ensuring the Future of America is Made in America by All of America’s Workers [Whitehouse]Biden administration eyes mandates under new effort to improve critical infrastructure cybersecurity [FedNewsNet]The High Cost of Leaving Key Federal Management Jobs Unfilled [GovExec]Agencies on the hook to meet new Buy American acquisition goals for most products [FedNewsNet] The post SmallGovCon Week in Review: July 26-30, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  3. The federal government contracting rulebook is notoriously complex and confusing–but not all confusion is created equally. As attorneys serving federal contractors (many of them small businesses), my colleagues and I often see contractors making the same common legal mistakes or holding the same common legal misconceptions. On August 12, please join me and Nicole Pottroff as we cover our top 21 legal mistakes in federal government contracting–with an emphasis on small business issues–and explain how to avoid them. This webinar is hosted by our friends at Govology and it is easy to register: just click here. See you on August 12! The post Event: Top 21 Legal Mistakes in Federal Government Contracting first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  4. From a recent GAO decision it appears that the ends can, in fact, justify the means; at least when it comes procurement set-asides for HUBZone companies. The decision is Foxhole Technology, Inc. B-419577 (May 12, 2021). In this matter, Foxhole Technology, Inc., a service-disabled veteran-owned small business, protested the Department of Education’s decision to set aside an RFQ to supply cybersecurity services for HUBZone businesses. In its protest, Foxhole argued that the agency’s decision to set aside the procurement for HUBZone small business concerns was based on inadequate market research and was therefore not justified. GAO denied the protest. The Department of Education was seeking contractors to provide highly adaptive cyber augmentation services and planned to issue a solicitation for those services under the Federal Service Supply (FSS) procedures. Before issuing its RFQ for the services, the agency conducted market research to determine if there were HUBZone small businesses capable of providing the services before issuing the RFQ as a set-aside. The agency first searched the GSA eLibrary website and found that there were 37 HUBZone small businesses registered under the appropriate GSA Special Item Number (SIN) for the procurement. The contracting officer then reviewed the contractor terms and conditions/pricelists of five randomly selected HUBZone small businesses identified in the search. Based on this review, the contracting officer concluded that there were at least five HUBZone businesses that would be able to meet the agency’s requirements for the procurement. The agency subsequently requested that the Office of Small and Disadvantaged Business Utilization (OSDBU) provide a small business participation review clearance to support the contracting officer’s decision to set aside the procurement for HUBZone small businesses. The OSDBU approved the set-aside, and the agency issued the RFQ to all HUBZone small businesses registered under the relevant SIN. Foxhole protested the agency’s decision to set aside the procurement for HUBZone small businesses. In its protest, Foxhole alleged that the agency failed to perform adequate market research to demonstrate that proposals would be received from at least three vendors that could meet the requirements provided in the RFQ. According to Foxhole, while the agency’s market research of five random vendors from the list was sufficient to identify the existence of HUBZone vendors with the relevant SIN, it was inadequate to determine if three or more vendors capable of meeting the agency’s requirements would respond to the RFQ. After submitting the RFQ, the agency ultimately received three quotations from HUBZone vendors and determined that all three vendors were capable of performing the requirements. In its review of Foxhole’s protest, GAO decided that even if it were to agree that the evidence before the contracting officer was not adequate to support the set-aside procurement for HUBZone small businesses, as a matter of policy, GAO would not disturb the agency’s decision to issue the RFQ as a HUBZone set-aside where subsequent events showed that sufficient HUBZone interest in the procurement did in fact exist. This matter reflected GAO’s policy of leaving an agency’s determination to set aside a procurement as a business decision, in the agency’s discretion, absent a clear showing that the decision was unreasonable. GAO found that the Department of Education’s receipt of proposals from multiple HUBZone business after issuing the RFQ essentially validated its set-aside determination. GAO’s decision in upholding the Department of Education’s determination furthered the agency’s goal in utilizing a HUBZone business without compromising the integrity of the procurement. The decision was also consistent with the SBA’s goal in creating HUBZones, which is to provide federal contracting assistance for qualified small businesses that operate and employ workers in historically underutilized business zones in an effort to increase employment opportunities, investment, and economic development. 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: Agency Has Discretion on Type of Socioeconomic Set-Aside for Procurement first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  5. On June 30, 2016, a major new SBA regulation took effect, overhauling the limitations on subcontracting. The SBA’s new regulation, codified at 13 C.F.R. 125.6, replaced the “old” formulas for calculating compliance–like “cost of the contract incurred for personnel,” for service contracts, with new, easier-to-use formulas based on the amount paid by the government. And, in a major boon for small businesses, the SBA’s new regulation allowed small primes to count work performed by “similarly situated entities” toward the prime’s own self-performance. But more than five years after the SBA regulation took effect, the FAR’s provisions governing the limitations on subcontracting still resemble Marty McFly: stuck in the past. The FAR Council still has not updated the FAR to conform with the SBA’s regulations and the underlying Congressional mandate, causing considerable confusion for contractors trying to figure out which rule to follow. Now, though, we may finally (hopefully!) be nearing the finish line for this important and long-delayed FAR change. June 30, 2016 was an important date in the ongoing limitations on subcontracting saga, but the story begins even longer ago, way back on January 3, 2013. That day, former President Obama signed the 2013 National Defense Authorization Act into law. The 2013 NDAA amended the Small Business Act, a series of statutes set forth in Part 15 of the United States Code. Through this amendment, Congress mandated that the formulas used to calculate compliance with the limitations on subcontracting be based on the amount paid by the government. Congress also directed that small primes be able to claim credit for work performed by similarly situated entities. Agency regulations, including the FAR, must comply with the underlying statutes. In this case, the statutory change affected two regulatory bodies: the SBA and the FAR Council (the entity responsible for drafting the FAR). The SBA has primary authority for interpreting and applying the Small Business Act, so the SBA took the lead in drafting regulations to comply with the 2013 NDAA. This work culminated in the June 30, 2016 overhaul of SBA’s regulations. I’m oversimplifying a bit (but only a bit), but at that point, all the FAR Council had to do, essentially, was copy-and-paste the SBA’s regulation into the FAR. Even knowing that the FAR Council isn’t exactly the Usain Bolt of regulation-writing, one might reasonably have guessed that the FAR change to the limitations on subcontracting would take effect in 2017. Instead, the FAR Council moved about as quickly as a tectonic plate, waiting until late 2018 to even propose a rule to align the FAR with the Small Business Act and 13 C.F.R. 125.6. The next two years came and went with no final rule. As the procurement world waited, some agencies, including the DoD, began adopting FAR deviations to temporarily stop using the outdated FAR provisions. But other agencies are still using the outdated FAR provisions in mid-2021. If you’re thinking that five years sounds like an awfully long time to import the SBA’s limitations on subcontracting rule into the FAR, I would have to agree. By way of historical comparison, U.S. involvement in World War II–from Pearl Harbor to V-J Day–was three years and eight months. The Civil War lasted a little longer, at about four years and one month, but still significantly shorter than it has taken the FAR Council to update the limitations on subcontracting. Five years is longer than a majority of Presidents have served, including Abraham Lincoln (four years and 42 days). If you’re more of a pop culture fan than a history buff, five years is longer than the first runs of The Brady Bunch, Star Trek and The Addams Family. I could do these examples all day (and I’m kind of tempted, because they’re fun), but the point is that the FAR Council has taken a rather absurd amount of time to make this change. After all, if America could plan, prosecute and win a global two-front war in under four years, it doesn’t seem unreasonable to expect that the FAR could be updated in under five. The FAR Council’s unnecessary delays have had real impacts on the procurement community: while the FAR Council dragged its feet, countless small businesses and their large teammates have been frustrated and confused trying to understand their compliance obligations. But now it seems that, maybe, hopefully, we are almost at the finish line. The FAR Open Case Report says that the final rule has been sent to the FAR Secretariat for preparation of a Federal Acquisition Circular publishing the rule. This means that the final rule is basically ready to go–we are just waiting for it to be published. This doesn’t mean that the revision will come tomorrow, of course. In fact, in looks like the FAR Secretariat may have been sitting on the rule for several months at this point, because, you know, what’s the rush? But I am cautiously optimistic that we won’t reach the six-year anniversary of the SBA’s 2016 rule change without a corresponding FAR revision. In case you’re wondering, six years is longer than World War II lasted in Europe, from Germany’s invasion of Poland to V-E Day. 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 Is the Revision to the FAR’s Limitations on Subcontracting Finally Nearing the Finish Line? first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  6. SBA requires that its 8(a) Business Development Program applicants demonstrate “reasonable prospects for success in competing in the private sector if admitted to the 8(a) BD program” by meeting a number of criteria. This aptly named potential for success rule is easily one of the most common reasons for 8(a) Program application denials. But even still, it seems to be one of the least understood 8(a) application requirements out there. Below, I dig into some of the most important features of this rule with the top five things you should know. 1. The applicant must meet the two-year requirement. The potential for success rule requires that the applicant “must be in business in its primary industry classification for at least two full years immediately prior to the date of its 8(a) BD application[.]” To demonstrate this, the applicant must submit its income tax returns for the prior two tax years, which must show “operating revenues in the primary industry in which the applicant is seeking 8(a) BD certification.” When a firm is denied 8(a) participation on the basis of potential for success, this requirement is often the culprit. But the silver lining there (where noncompliance with the two-year requirement is the sole basis for denial) is that the applicant can simply wait it out and reapply once it meets the two-year requirement–so long as the 90-day reapplication clock continues to run as well. 2. SBA can waive the two-year requirement (but doesn’t do so often). Many applicants see the word “waiver” and get overly optimistic that they should just apply right away–without waiting the two years. But oftentimes, that is not the case. This waiver contains five separate conditions that must be met to qualify, setting the bar pretty high. Those conditions are: (i) The individual or individuals upon whom eligibility is based have substantial business management experience; (ii) The applicant has demonstrated technical experience to carry out its business plan with a substantial likelihood for success if admitted to the 8(a) BD program; (iii) The applicant has adequate capital to sustain its operations and carry out its business plan as a Participant; (iv) The applicant has a record of successful performance on contracts from governmental or nongovernmental sources in its primary industry category; and (v) The applicant has, or can demonstrate its ability to timely obtain, the personnel, facilities, equipment, and any other requirements needed to perform contracts as a Participant. With this waiver, the applicant can’t simply check each of these boxes either. It must be able to provide evidence of current and completed “governmental and nongovernmental” contracts (including letters of reference or past performance reports) to establish its history of successful contract performance. It should also provide any additional information demonstrating performance of work in the industry in which it is seeking 8(a) certification. Generally, the more the better, as SBA will consider the “applicant’s performance on both government and private sector contracts in determining whether the firm has an overall successful performance record.” But the rule does clarify, if the applicant only has experience performing government contracts or only private sector contracts, that is not necessarily a deal-breaker for the waiver (assuming all other criteria are met). In those situations, the SBA will review the applicant’s “performance on those contracts alone to determine whether the applicant possesses a record of successful performance.” All in all, the waiver is a valid option for an applicant that hasn’t been in business in its primary industry for two full years if the applicant can still demonstrate that it has already has: the requisite technical experience and successful performance under multiple contracts in that industry; a disadvantaged owner/manager with substantial business management experience in that industry; and financial stability (including adequate capital to sustain operations and the ability to acquire and retain the requisite personnel, facilities, equipment, and resources needed to successfully perform contracts). But again, the applicant must also have the documentation to prove it. Otherwise, waiting for the two-year clock to run may be the only option. Additionally, and importantly, this is still only a waiver of the two-year requirement–not the entire potential for success rule. So even if an applicant receives the waiver, it must still demonstrate potential for success on the other bases set forth in the rule (as described below). 3. The applicant must demonstrate access to credit and capital. In addition to demonstrating compliance with the two-year requirement (or receiving SBA’s waiver of that requirement) the applicant is also required to demonstrate its “access to credit and capital, including, but not limited to, access to long-term financing, access to working capital financing, equipment trade credit, access to raw materials and supplier trade credit, and bonding capability.” SBA will consider those factors in making its ultimate determination on the applicant’s potential for success in the 8(a) Program. Essentially, SBA wants to ensure that the applicant has the ability to acquire and retain the necessary personnel, facilities, equipment, bonding, and any other resources needed to perform any contractual work it may be awarded. You might have noticed that this language is similar to conditions (iii) and (v) of the two-year requirement waiver. But it is still a distinct requirement the applicant must meet whether it was granted the waiver or not. 4. The applicant must demonstrate technical knowledge, management experience, and any requisite licenses. The final items listed in SBA’s potential for success rule requires that the applicant “as a whole must demonstrate both technical knowledge in its primary industry category and management experience sufficient to run its day-to-day operations.” In determining whether the firm meets these requirements, the SBA will consider the technical and managerial experience of the applicant concern’s managers, the operating history of the concern, the concern’s record of performance on previous Federal and private sector contracts in the primary industry in which the concern is seeking 8(a) BD certification, and its financial capacity. Additionally, the applicant or its employees “must hold all requisite licenses if the concern is engaged in an industry requiring professional licensing (e.g., public accountancy, law, professional engineering)[]” and must provide documentation of any such licensing with its application. These requirements primarily go to the applicant’s ability to carry out its day-to-day business operations, making sure it is licensed (if applicable) and has the technical expertise and qualified management to perform work in its industry. But it is important to note here that some of these items also touch on another 8(a) eligibility rule–one unrelated to potential for success. In applying to the 8(a) Program, you should certainly keep both rules in mind. As relevant here, SBA’s rule for disadvantaged individual control says that the disadvantaged owner and manager must “have managerial experience of the extent and complexity needed to run the concern[,]” and that they “need not have the technical expertise or possess a required license to be found to control an applicant” so long as they can demonstrate the “ultimate managerial and supervisory control over those who possess the required licenses or technical expertise.” Thus, the managerial experience of the applicant is crucial for compliance with both rules. But where the required managerial experience and/or any required license is held by someone other than the disadvantaged individual, the SBA may raise control issues even where the potential for success rule is met. 5. SBA can deny the applicant if 8(a) contract opportunities are not available (but doesn’t often do so). SBA’s potential for success rule ends with a provision establishing that SBA may deny “admission into the 8(a) BD program due solely to a determination that potential 8(a) contract opportunities are unavailable to assist in the development of the concern[]” but will not do so unless: (1) The Government has not previously procured and is unlikely to procure the types of products or services offered by the concern; or (2) The purchase of such products or services by the Federal Government will not be in quantities sufficient to support the developmental needs of the applicant and other Participants providing the same or similar items or services. Now this is not something we see very often in our line of work. But it is still worth noting for any 8(a) applicant in a unique or uncommon line of work that the government may not often procure through the 8(a) Program. Applying for 8(a) Program participation is a whole lot of work. So, this provision should definitely make its way into your initial eligibility analysis if you have any concerns to this effect. * * * Well, there you have it: the five things you should know about SBA’s 8(a) potential for success rule. But don’t forget, this is just one of SBA’s many 8(a) eligibility rules. There are rules for size, social disadvantage, economic disadvantage, ownership, control, and many more. Although potential for success is a big one, and one we see a lot of SBA denials under, compliance with it does not put you in the clear for 8(a) Program participation. Need help with applying to or navigating the SBA’s 8(a) Program or another 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 Five Things You Should Know: SBA 8(a) Program Potential for Success first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  7. CIO-SP4 Amendment 7, we barely knew you. Less than a week after Amendment 7 went live, we have another amendment to dig into. What is new in this amendment? We have major changes to Other Than Small Business (OTSB) and Emerging Large Business (ELB) certifications. For small businesses, NIH is digging in its heels on consideration of CTA members. While we are not sure how long this amendment will last, it puts small businesses behind the 8-ball. First things first, proposals are still due August 3, 2021. We suspect this date will be moved again, but this deadline holds for Amendment 8. Be sure to check out my previous post about Amendment 7 before we get started here. For OTSBs and ELBs, the playing field just became much more open. Prior to Amendment 8, OTSBs and ELBs were required to have at least level 2 CMMI appraisals, ISO 9001 certification, and ISO 20000 certification. Amendment 8 removes these requirements for OTSBs and ELBs. Now, ALL offerors who possess these will receive 300 points on the self-scoring worksheet. OTSB and ELB offerors who do not possess these items will no longer be disqualified. This is a huge change to CIO-SP4. Notably, this is also a 50% increase in points awarded to offerors who hold ISO 9001 and 20000 certifications. This will likely expand the playing field on the OTSB and ELB end, we will have to wait and see what it does to the small business awards. For small businesses too, possessing these licensures just became 50% more valuable. Unfortunately the cost/benefit analysis regarding whether to expend the resources to obtain these criteria just sky-rocketed less than two weeks before the due date for submission of proposals. There simply may not be enough time to obtain them. Also, all offerors seeking a small business award with a CTA are now required to submit Reps and Certs under Section K for each CTA member. This was previously not required, however, this is now an express requirement. No penalty for failure to submit these Reps and Certs is listed, however, it stands to reason failure to meet this qualification will likely result in exclusion from consideration. Another red tape hurdle has been identified (and it deals with the exciting, to some, world of dashes). Offerors should ONLY use small dashes like – and not large dashes. Apparently, the large dashes result in machine errors which will likely lead to exclusion of proposals. Amendment 8 clarifies that dashes are not required, and will deem proposals compliant without them. This is something to keep in mind when uploading your proposal. I, personally, am a fan of utilizing dashes, I find them to look cleaner. However, balanced against potentially missing out on $50 billion, dashes should be disfavored when uploading. In Amendment 7, we saw a major change to how NIH would consider CTA small business arrangements. Amendment 8 reiterates Amendment 7’s interpretation, and expands upon it. Experience of large businesses will only be considered in small business categories when the large business is the mentor to a small business protégé, a large business subcontractor that is not a mentor cannot be evaluated in small business award categories. This applies to all aspects of Phase 1 and is carried through in Phase 3 evaluations. While I understand the intention behind this is for small businesses to only compete against other small businesses, it is a misguided endeavor. Small businesses in an SBA-approved mentor-protégé arrangement are now at a huge competitive advantage. It is too late in the process for small businesses to apply for, and have the SBA approve, a mentor-protégé arrangement. Had small businesses understood this restrictive language was the intention from the outset, many small businesses would have likely made significantly different decisions. As we sit, Amendment 8 confirms that some small businesses will be left out in the cold with no ability to correct for this new interpretation. One small bright spot for offerors, is now only one CTA member must have the requisite accounting system. Additionally during Phase 3, for OTSBs and ELBs, only prime contractor will be considered for Factor 1 – Health IT, Factor 2 – Management Approach, Subfactor 1 – Program Management, and Subfactor 3 – Corporate Commitment. It appears the NIH has met significant pushback on Amendment 7. This was a fast and furious new amendment, along with a rather extensive addition to the M.1.1 explanation section. It appears the NIH is digging in its’ heels regarding small business evaluations, while eliminating threshold requirements OTSBs and ELBs. I hope NIH will soon remove the limitations that continue to disparately impact the small business categories. It seems with each passing amendment, CIO-SP4 is moving in separate directions for small businesses versus large. We will keep an eye out for the next amendment, until then, please reach out with your thoughts on CIO-SP4. Need help with a government contracting legal matter? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post CIO-SP4 Amendment 8 – NIH Puts Small Businesses Behind the 8-ball first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  8. Happy Friday, Readers. Can you believe we are heading into the home stretch of July already? We hope you are able to get in some R&R around this time of year. But it was also an important week in the Federal government contracting arena. Some of the big stories included more oversight from Labor, rules on increasing wages for workers, and increasing opportunities for veterans. You can read more about that and other contracting news in the articles below. Have a great weekend! Bill Would Require Federal Agencies and Contractors to Report Cyber Intrusions Within 24 Hours [NextGov]US Department of Labor Announces Proposed Rulemaking to Implement Executive Order, Increase Wages for Workers on Government Contracts [DoL]Manhattan Businessman Charged In Manhattan Federal Court For Fraudulently Obtaining Government Procurement Contract [DoJ]Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments; Correction [FedReg]Cline introduces bill to increase opportunities for veterans [AugustaFreePress]Labor Department brings new acquisition oversight amid OFPP limbo [FedNewsNet]Sage Consulting Group, Inc. Agrees to Pay $4.8 Million to Settle Civil False Claims Act and Anti-Kickback Act Allegations [DoJ] Agencies could have some extra cyber defenses by the end of the year [FedNewsNet]Under C2E, IC’s top challenge is turning cloud competitors into partners [FedScoop]Energy awards $28M to 5 supercomputing projects [FedScoop] The post SmallGovCon Week in Review: July 19-23 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  9. It seems like it should go without saying, but, just because an offeror with better evaluation ratings is preferred over one with neutral ratings does not mean the latter offeror was penalized for having neutral ratings, or that the neutral rating was a penalty. Nonetheless, in a recent bid protest a company creatively argued that it was penalized for having neutral ratings, and GAO unsurprisingly rejected it. Heartland Consulting, B-419228.4 (Comp. Gen. July 8, 2021) involved an award of an indefinite-delivery, indefinite-quantity contract for hospitality and concierge services at Walter Reed National Military Medical Center, among other locations, by the Department of Defense, Defense Health Agency (DHA). Evaluation was to be made on a “best-value” basis. The decision was made on four factors: price, past performance, compensation, and letter of credit. The solicitation stated that past performance was the most important factor. It further noted that offerors with no relevant past performance history would receive a neutral rating for that factor, with neither a favorable nor unfavorable evaluation. Heartland Consulting (Heartland”), the protester, submitted an offer, as did RWD Consulting, L.L.C. (RWD). Heartland’s proposal was priced at roughly $32 million, but the company had no past performance history to speak of in its submission. As a result, the DHA assigned them a rating of “neutral confidence” for the factor of past performance. RWD submitted a proposal with a price of approximately $35 million, but did have some past performance history, which it included in its proposal. The DHA gave RWD’s proposal a rating of “satisfactory confidence” for the past performance factor, a superior rating to “neutral confidence.” The DHA eventually decided that RWD’s proposal provided the best value to the government in light of its past performance record and awarded RWD the contract. Heartland filed a protest, arguing that the DHA treated Heartland unfavorably by assigning it a rating of “neutral confidence” for past performance because Heartland lacked a history of past performance. Heartland argued this violated FAR 15.305(a)(2)(iv), which states an offeror without a record of relevant past performance may not be evaluated favorably or unfavorably on past performance. By giving Heartland a “neutral” rating, the DHA necessarily evaluated Heartland’s lack of past performance unfavorably, considering RWD’s positive record was identified as the distinguishing feature between the two offers. At least, this was Heartland’s position. GAO noted that “price/past performance tradeoffs are permitted when they are reasonable and consistent with the solicitation.” “Additionally, while an agency may not evaluate an offeror’s lack of past performance unfavorably, an agency may in its tradeoff analysis determine that highly rated past performance is more beneficial than a neutral past performance rating.” Unsurprisingly, GAO denied the protest. The record showed that Heartland had not been evaluated unfavorably for lack of past performance, but that the DHA reasonably concluded RWD’s past performance history made RWD’s proposal preferable. GAO explained further that “our decisions explain that, in the context of a tradeoff analysis, an agency may reasonably give greater value to past performance ratings that are higher than neutral ratings.” Additionally, “the agency’s price/past performance tradeoff determination was consistent with the terms of the solicitation. The RFP provided that the past performance factor was more important than the price factor.” So the fact that Heartland’s proposal was priced lower than RWD doesn’t mean the DHA had to choose Heartland. This decision is not surprising, but does serve a couple purposes: First, agencies can say that an offeror that has a superior rating on one factor to another makes the former preferable if the solicitation says that factor is the most important. Just because an offer is rated neutral does not mean the agency must ignore the difference between that and a better rating on the same factor. Furthermore, a neutral rating isn’t a “bad” rating on an objective scale. Naturally, a rating of “neutral” is preferable to a rating of “poor” or something equivalent. So, government contractors with no prior experience can still submit offers for solicitations that make past performance the most important factor. Yes, the proposal will receive a “neutral” rating, but that may be superior to all the others if your competitors have experience but didn’t do a good job on those past projects. 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: A Higher Rating for One Offeror does Not Mean A Competitor was Penalized first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  10. CIO-SP4 proposals are now due August 3, 2021. Currently, seven bid protests have been filed with GAO. These amendments are now coming fast and furious. Amendment 6 went live on July 9, 2021, and 10 days later we have another new amendment. Below are some of the key changes in Amendment 7. Overall, it seems like CIO-SP4 amendment 7 shoots first, and then attempts to aim. Here are some of the areas where it appears to miss the mark. Section L.3.7.3. Section L.3.7.3, which is under the Instructions to Offerors section, has some major changes. Prime-sub teams under FAR 9.601(2) in the small business category previously did not need to submit any additional documentation. This most recent amendment now requires those seeking a small business award with CTAs formed under this section to submit a copy of the written agreement required per FAR 52.207-6–commonly known as a teaming agreement–along with its proposal. Section L.5.2. Moving to section L.5.2, the self-scoring worksheet has undergone an overhaul. The worksheet seemingly limits the use of prime-sub teams under FAR 9.601(2) to certain, cherry-picked sections. The limitations are not extended to joint venture arrangements under FAR 9.601(1). It does appear that small businesses may submit the experience, capabilities, business systems, and certifications from partners or members of both types of CTAs. Notably, small business awards have now swallowed all small business programs, I suspect in an effort to make the requirements more uniform. Section M.1.1. Section M.1.1 adds the following language, “For a small business award, the Government will only consider the members of a CTA defined under FAR 9.601(2) for evaluation purposes if the Offeror includes a proposed team of small business subcontractors as defined in provision 52.207-6(a).” Section M.1.1 also now requires prime-sub CTAs to submit full and complete copies of the agreement establishing their relationship (which would be a teaming agreement). This is a sea-change from previous amendments, which only required joint ventures to meet this requirement (by submitting the joint venture agreement). So what does this all mean? It’s like a classic sitcom narrative, where at the beginning of an episode we find the main character in a precarious position, and the narrator says, “I bet you’re wondering how I ended up here.” Interestingly, the new language allows for a small business to compete in other than small categories, noting the small business restrictions will not apply in that case. Plus, Amendment 7 now adds references to L.5.2 throughout the self-scoring worksheet directions alongside L.3.7. Seemingly, this is meant to incorporate both sections in determining whether the experience is applicable. Here is where things start to get frustrating. Previously, small businesses could form a prime-sub team under 9.601(2) and include a large business as a teaming partner. The latest amendment appears to limit consideration of CTA members under this section to small business subcontractors only, not large businesses. This pulls the rug out from under many proposed teams which include a large business. The amendments still allow for large businesses to be part of a joint-venture team, but not get credit as a subcontractor. This language is a GIGANTIC shift. Eliminating consideration of large business subcontractors at this late stage boggles the mind. Offerors that could have otherwise formed a mentor-protégé agreement with a large business mentor have now been tossed out in the cold. There is not enough time to get an approved mentor-protégé relationship prior to the new proposal deadline. I suspect we will have many bid protests on this section alone, as it seems to unreasonably limit competition. Additionally, large businesses do not escape the wrath of Amendment 7. Under M.4, the government will now only consider prime sub teams under FAR 9.601(2) CTAs with respect to Factors 2-4. Factor 1 now apparently only considers the prime contractor capabilities and will not evaluate subcontractor capabilities. For those who formed these arrangements with subcontractors to meet Factor 1, you are now out of luck. Glaringly, for small businesses, M.4 makes a critical omission in the evaluation factors. M.4 states, “The government will consider information from all CTAs members that is in compliance with 13 CFR 125 and L.3.7.” Notably, this does not include the major changes Amendment 7 made to L.5.7 and M.1.1. M.4 and M.1.1 now seemingly present conflicting information as to how proposals will be evaluated. As discussed above, the other language in the amendment appears to prohibit use of large subcontractor capabilities for evaluation. While I suspect another amendment is coming to fix this issue, until then, we are left with this glaring difference. We suspect this will not be the last we hear of amendments and postponements of CIO-SP4. The procurement has been highly anticipated, and for good reason. However, the pretzel logic seemingly fueling these amendments has put mustard (or nacho cheese, or your dip of choice) on the shirt of CIO-SP4. While we know the personnel behind the scenes are working hard, and these inconsistencies are almost certainly unintentional, the strain on the industry is growing. When major changes are made to evaluation criteria after release, it frustrates and harms the overall process. For large businesses, weathering a changing landscape may be a mere annoyance. For small businesses, clear guidelines and evaluation criteria to meet can mean the difference between success and failure. With protests pending, and we suspect more to come, perhaps the best course of action is for CIO-SP4 to take a step back. It is clear it was not ready for prime time, and with billions of dollars on the line, even the smallest imperfection will be picked apart. Re-engagement with the industry is necessary, and clear guidelines from the outset allows for businesses to adequately prepare for this life-changing business opportunity. Fingers crossed we get some additional guidance soon. Until then, small businesses are racking up additional time (and potentially legal fees) to unravel these changes, adding strain and uncertainty. Need help with a government contracting legal matter? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post CIO-SP4 Amendment 7 – Major Changes to Small Business Teaming Arrangements first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  11. I wrote earlier about the restriction on the number of experience examples a large business mentor can provide. Well, NITAAC has listened! OK, they probably weren’t listening directly to me, but let me have this one, alright. CIO-SP4 has been amended to allow large business mentors to contribute two examples of corporate experience per task area. The Chief Information Officer – Solutions and Partners 4 (CIO-SP4) Solicitation includes specific language relating to mentors that was recently amended in section L.5.2.1. Section L.5.2.1 used to state in relevant part that “for mentor-protégé arrangements, large business is limited to one example for each task area.” NITAAC has amended the language. It now states: “However, for mentor-protégé arrangements, large business is limited to two examples for each task area.” While this still limits the total experience a large-business mentor can provide, it doubles the total amount of examples from the prior version of the solicitation. Good on NITAAC for addressing this concern. It provides a much better benefit for those small businesses that are part of a mentor-protégé agreement with a large business. The post CIO-SP4: Large Mentors Now Get More Credit first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  12. Robert Jones of Left Brain Professionals is putting on the GovCon Accounting Summit this week. I’ll be involved in a Panel Discussion – The Need for GovCon Accounting Advisors, at 9:00 AM-10:30 AM ET on July 22, 2021. Hope to see you there. There are many other great topics at the event, so be sure to check it out! The post Event: 2021 GovCon Accounting Summit first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  13. Happy Friday, readers! We hope you are enjoying the beautiful summer days. We here at SmallGovCon have definitely been getting out for some much needed vacation time lately. But we still want to keep you up to date on what’s going on in the federal contracting realm. Here are a few noteworthy articles in the federal government contracting world this week, including looking back on the GAO and all the changes that have been made along the way as well as the DoD’s list of recent contract awards. Read on for all the details and have a great weekend. DoD moving forward with first financing study in decades [FedNewsNet]CMMC assessment requirements could be changing, potentially raising costs for some [FedScoop]Contracts For July 14, 2021 [DoD]Joint MOU targets fight against acquisition fraud, corruption [USAF]CIO-SP4 just gave contractors 50 billion reasons to consider the SBA Mentor-Protege program [FedNewsNet]Recounting how far GAO has come in 100 years [FedNewsNet]Mike Brown backs out of nomination for top Pentagon contracting job [FedScoop]Five Ways Agencies Can Become More Agile [GovExec]Manhattan U.S. Attorney Settles Fraud Suit Against Spectrum Painting For False Statements About Disadvantaged Business Participation On Federal Construction Projects [DoJ] The post SmallGovCon Week in Review: July 12-16 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  14. Government contracting officials receive detailed training on the FAR. So do employees of some large contractors. But for many others in government contracting, particularly small businesses, there is no formal FAR training. For them, the FAR can seem overwhelming, even scary. I’m not going to sugarcoat it: the FAR is massive. In print form, which is how I read the FAR early in my career, you’re looking at a veritable brick of a book. You’d undoubtedly get some very nice definition by using copies of the FAR for bicep curls. But, big as it is, the FAR isn’t quite as impenetrable as it might seem at first glance–especially if you know a few tricks. Here are my top five tips for understanding and using the FAR. What the heck is the FAR, anyway? This is a top-five list, not a legal treatise, so I’m going to oversimplify things just a bit, but federal laws generally fall into two categories: statutes and regulations. Statutes are the actual words written by Congress. Think Schoolhouse Rock. Statutes are collected in the United States Code. (When you see “U.S.C.” in connection with a government contracting matter, it means the U.S. Code, not the school from Southern California.) Regulations, on the other hand, are written by entities to whom Congress has delegated certain rulemaking authority–typically, Executive Branch agencies. Regulations are collected in the Code of Federal Regulations, or “C.F.R.” Regulations are subordinate to statutes: if a regulation conflicts with a statute, the statute wins. After all, the will of Congress must trump that of an unelected regulatory body. “FAR” stands for “Federal Acquisition Regulation.” The FAR is part of the Code of Federal Regulations: Title 48 of the C.F.R., to be precise. While many in government contracting like to use citations such as “FAR 1.105-1,” you can always substitute the word “FAR” with “48 C.F.R.” They mean the same thing! (That is, “48 C.F.R. 1.105-1” is the same thing as “FAR 1.105-1.”) This sometimes can come in pretty handy when you’re using a search engine to find a FAR provision. Unlike most regulations, the FAR is drafted not by a single agency, but by a body known as the Federal Acquisition Regulatory Council, or “FAR Council.” The FAR Council consists of representatives of the DoD, GSA, and NASA. The FAR Council writes and amends the FAR–sometimes in response to a Congressional directive, sometimes using the FAR Council’s own delegated authority. 2. How do I navigate the FAR? If you’re new to the FAR–or even a relatively seasoned contractor–you may be put off by the seemingly nonsensical use of numbers, periods and dashes. Why “FAR 1.105-1” and not just “FAR Rule 57?” Fortunately, the FAR comes with an instruction manual of sorts. FAR 1.105-2 explains how the FAR is organized and what all those numbers mean: a) General. The FAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, sections, and subsections. (b) Numbering. (1) The numbering system permits the discrete identification of every FAR paragraph. The digits to the left of the decimal point represent the part number. The numbers to the right of the decimal point and to the left of the dash represent, in order, the subpart (one or two digits), and the section (two digits). The number to the right of the dash represents the subsection. Subdivisions may be used at the section and subsection level to identify individual paragraphs. If you’re a visual learner, FAR 1.105-2 has you covered, too, with this handy-dandy graphic: FAR 1.105-2 has more information on the organization of the FAR. It’s well worth a read because understanding the FAR’s organization is the best way to learn to quickly find what you need. In fact, while I would never suggest that anyone read the entire FAR, there is a lot of very useful information in FAR Part 1–everything from understanding agency FAR supplements and deviations to recognizing the authority (and lack of authority!) of certain contracting officials. If you’re a government contractor, you’ll be well-served to read FAR Part 1. 3. What about navigating FAR clauses? FAR Part 1 provides a roadmap for using the FAR generally, but what about all those FAR clauses that appear in your contracts, like FAR 52.219-14 (Limitations on Subcontracting)? Is there a roadmap to navigating clauses, too? You bet! FAR 52.101(b) (also known as “48 C.F.R. 52.101(b)”) explains the numbering system for FAR clauses: (b) Numbering – (1) FAR provisions and clauses. Subpart 52.2 sets forth the text of all FAR provisions and clauses, each in its own separate subsection. The subpart is arranged by subject matter, in the same order as, and keyed to, the parts of the FAR. Each FAR provision or clause is uniquely identified. All FAR provision and clause numbers begin with “52.2,” since the text of all FAR provisions and clauses appear in subpart 52.2. The next two digits of the provision or clause number correspond to the number of the FAR subject part in which the provision or clause is prescribed. The FAR provision or clause number is then completed by a hyphen and a sequential number assigned within each section of subpart 52.2. Once again, the FAR’s drafters kindly include a visual aid: Just like FAR Part 1, understanding how to navigate FAR clauses will be worth your while. 4. Any tips for searching the FAR? The print edition of the FAR had one big advantage over electronic searches. (Well, two advantages, if you count that bicep toning). If you search for something in a massive book, it’s really helpful to know where in that book to look. Early in my career, if I wanted to find the rules for small business set-asides, I didn’t flip through the FAR randomly, but used the index to guide me to FAR Part 19. But in the 2020s, most people search the FAR the same way they find out what that long-ago ex-boyfriend is up to these days: internet search engines. Sometimes, this works pretty well: search for “FAR small business set-aside” in Google and FAR 19.5 is the first result. But other times, relying on search engines–without considering the context–can lead you down the wrong path. Let’s say you’re an IT contractor worried that you might have submitted a competitive proposal too late. What does the FAR say about that? So you Google “FAR late submission,” and the first result is FAR 52.214-7 (Late Submissions, Modifications and Withdrawals of Bids). Question answered, right? Nope: FAR 52.214-7 applies to FAR Part 14 sealed bids, not FAR Part 15 negotiated procurements. If you had been searching in the print FAR, instead of in Google, you would have ignored FAR Part 14 as irrelevant, and wouldn’t have been misled. In my experience, this is a very common problem: I often hear from clients who show me a FAR clause that they’ve uncovered through an internet search but that does not actually apply to the client’s situation. So how can you avoid this problem–other than being the last person on the planet to own the print FAR? Here are four suggestions: Instead of using your favorite search engine, begin your search on the aquisition.gov website. Here, you can scroll through the FAR index–just like you would in the print volume–to search only the relevant portions of the FAR. That numbering system you learned using FAR Part 1 and FAR 52.101 will come in really handy now, allowing you to quickly find what you need while ignoring the rest.If you do use a search engine, use the acquisition.gov index to help determine whether the results are relevant. For example, if you happen upon FAR 14.303, you know (thanks to the FAR Part 1 instruction manual!) that this is a regulation found in FAR Part 14. Cross-check that against the FAR index, and you’ll quickly see that FAR Part 14 covers sealed bidding. If you’re not involved in a sealed bid competition, this isn’t a relevant reference.Speaking of cross-checking, when your internet sleuthing uncovers a clause, be sure to compare it against the solicitation or contract. (Remember that FAR clauses always begin with “52.2”). Except in rare cases, a clause does not apply unless it is included in the solicitation or contract.If you are bidding on a commercial item solicitation or performing a commercial item contract, keep in mind that many–though not all–of the relevant rules are found in two clauses: FAR 52.212-1 (Instructions to Offerors–Commercial Items) and FAR 52.212-4 (Contract Terms and Conditions–Commercial Items). The answers you’re seeking may well be in one of these clauses. 5. How do I track pending FAR updates? Let’s end where we began, with our friends at the FAR Council. Contractors often hear about pending FAR updates, like those sometimes mandated by Congress in the annual National Defense Authorization Act. Often, these contractors will ask me what I know about the progress of a particular pending change to the FAR. I would love to pretend that I am part of some invitation-only Skull-and-Bones-style secret society that meets at remote locations on moonless nights to furtively share the latest FAR gossip. But the much-less-glamorous truth is that I use the FAR Open Case Report, which is available to anyone with an internet connection. The Open Case Report includes a status update on every pending FAR update. Very convenient! A Few Final Words Like many in industry, I never received extensive formal training on the FAR–and I was pretty darn intimidated when I began my career and realized that this enormous tome in front of me was the government contracting rulebook. But once I learned to effectively navigate the FAR, decipher the numbering system, and quickly find relevant information, it became a whole lot easier to use the FAR. I hope these tips will help you do the same. 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 Five Things You Should Know: Tips for Understanding and Using the FAR first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  15. My colleague Steven Koprince and I are pleased to be speaking at The Catalyst Center for Business & Entrepreneurship this Thursday. Please join us on July 15, 2021 from 3:00 PM – 5:00 PM (CDT) as we discuss the SBA’s affiliation rules in plain English, from rules governing common ownership and management to lesser-known bases of affiliation such as economic dependence and family relationships. The Catalyst always has a great group both organizing the events, and attending! We’re looking forward to seeing everyone at this event. For more information and to register, visit their site. The post Event: The SBA’s Small Business Affiliation Rules for Government Contractors, Hosted by The Catalyst first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  16. GSA Alerts GSA Interim Rule to Implement the Secure Federal Leases from Espionage and Suspicious Entanglements Act Share on facebook Share on twitter Share on linkedin The Secure Federal Leases from Espionage and Suspicious Entanglements Act is a bipartisan bill signed into law late last year. The bill was introduced by Sens. Gary Peters, D-Mich., and Rob Portman, R-Ohio, after the findings from a 2017 report. The GAO found the GSA had leased high-security spaces from foreign owners in 20 buildings, including six FBI field offices. Some of the spaces hosted classified operations, were used for evidence storage, and housed sensitive data. Most of the federal tenants were unaware of the foreign ownership of the physical space used for the operation of sensitive activities. Of the GSA active leases for high-security facilities, the GAO was unable to identify the ownership for one-third of the locations. The law requires the disclosure of immediate and highest-level foreign ownership of facilities leased to the government. It also mandates lease language that would restrict property owners’ physical access to high-security spaces. The bill requires the GSA to identify any foreign owners of “high-security spaces” — properties with a security level of three or higher — as well as any foreigners who benefit from partial ownership of the properties. To implement provisions of the Secure Federal Leases from Espionage and Suspicious Entanglements Act, the General Services Administration unveiled an interim rule (that went into effect on Wednesday June 30, 2021), requiring the “immediate owners” of high-security space rented to the federal government to disclose foreign ownership. According to the interim rule, the GSA holds approximately 1,263 leases for high-security spaces as of June 2021, that fall under the Secure Federal Leases from Espionage and Suspicious Entanglements Act. The interim rule does not address provisions of the Secure Federal Leases Act requiring the disclosure of foreign “beneficial owners,” that is, individuals who exercise direct or indirect control over, or have economic interests in high-security spaces through “any contract, arrangement, understanding, relationship, or otherwise.” The GSA has stated this will be addressed in the future, and that the GSA is seeking some form of electronic means to implement the Federal Secure Leases Act. The GSA seeks public comments on the potential impact of the Thursday rule on federal lessors. “Comments are welcome on foreign ownership, including beneficial ownership, with the understanding that such comments may help inform a future regulatory action,” the GSA said. Have questions about the Interim Rule? Don’t hesitate to contact Centre. Stay in the know. Get industry alerts from our GSA Consulting Team. See More GSA Alerts GSA Interim Rule to Implement the Secure Federal Leases from Espionage and Suspicious Entanglements Act General Services Administration unveiled an interim rule on June 30, 2021, requiring the “immediate owners” of high-security space rented to the federal government to disclose foreign ownership. Read More » July 12, 2021 GSA Extends Moratorium on $25k minimum sales criteria through 9/30/2021 GSA extends moratorium on the enforcement of the minimum sales requirements of FAS clause I-FSS-639, Contract Sales Criteria, to September 30, 2021 Read More » July 12, 2021 Verified Products Portal (VPP) Implementation GSA develops the Verified Products Portal (VPP), for manufacturers and wholesalers to provide product content for commercial off-the-shelf (COTS) products. Read More » July 12, 2021 Interested in Connecting with our GSA or Legal Practice? Contact US The post GSA Interim Rule to Implement the Secure Federal Leases from Espionage and Suspicious Entanglements Act appeared first on Centre Law & Consulting. View the full article
  17. GSA Alerts GSA Extends Moratorium on $25k Minimum Sales Criteria Through 9/30/2021 Share on facebook Share on twitter Share on linkedin On June 18, 2020, The GSA Office of Government-wide Policy, OFFICE OF ACQUISITION POLICY (MV), issued the Acquisition Letter MV-20-09 to provide a temporary moratorium on the enforcement of the minimum sales requirements of FAS clause I-FSS-639, Contract Sales Criteria in Response to COVID-19. This action was then extended in Supplement 1 from September 30, 2020 to March 31, 2021. Acquisition Letter MV-20-09, Supplement 2 was issued on March 5, 2021. This action will extend the temporary moratorium on the enforcement of the minimum sales requirements of FAS clause I-FSS-639, Contract Sales Criteria, to September 30, 2021 in order to continue support of America’s response to COVID-19. l-FSS-639, Contract Sales Criteria, stipulates that the Government may cancel a GSA schedule contract if reported sales do not exceed $25,000 in the first 24 months following contract award, and exceed $25,000 in each 12-month period thereafter. The Novel Coronavirus Disease 2019 (COVID-19) was declared a nationwide emergency by the President on March 13, 2020. This declaration was made pursuant to section 501 (b) of the Stafford Act. COVID-19 has also been declared a pandemic by the World Health Organization (WHO) on March 11, 2020 (see the WHO webpage), and public health emergency by the Secretary of Health and Human Services on January 31, 2020 (see the Public Health Emergency webpage). The economic impact of the COVID-19 pandemic continues to be felt by businesses throughout the country, to include GSA’s Federal Supply Schedule (FSS) Program industry partners. Executive Order 13924 directs agencies to “identify regulatory standards that may inhibit economic recovery” and to take actions such as recission or suspension. If you have any questions regarding the moratorium extension please do not hesitate to contact the Centre Consulting Team. Stay in the know. Get industry alerts from our GSA Consulting Team. See More GSA Alerts GSA Interim Rule to Implement the Secure Federal Leases from Espionage and Suspicious Entanglements Act General Services Administration unveiled an interim rule on June 30, 2021, requiring the “immediate owners” of high-security space rented to the federal government to disclose foreign ownership. Read More » July 12, 2021 GSA Extends Moratorium on $25k minimum sales criteria through 9/30/2021 GSA extends moratorium on the enforcement of the minimum sales requirements of FAS clause I-FSS-639, Contract Sales Criteria, to September 30, 2021 Read More » July 12, 2021 Verified Products Portal (VPP) Implementation GSA develops the Verified Products Portal (VPP), for manufacturers and wholesalers to provide product content for commercial off-the-shelf (COTS) products. Read More » July 12, 2021 Interested in Connecting with our GSA or Legal Practice? Contact US The post GSA Extends Moratorium on $25k minimum sales criteria through 9/30/2021 appeared first on Centre Law & Consulting. View the full article
  18. GSA Alerts Verified Products Portal (VPP) Implementation Share on facebook Share on twitter Share on linkedin GSA recently developed the Verified Products Portal (VPP), for manufacturers and wholesalers to provide product content for commercial off-the-shelf (COTS) products. This system collects and displays authorized supplier information directly from the participating manufacturers and wholesalers with source files of product images, product videos, and pdf documents and manuals, including standardized manufacturer names, part numbers, and product specifications. The product and supplier data provided will be used to identify prohibited products and standardize contractor catalogs, ensuring products with VPP coverage are accurately represented. This will allow participating manufacturers and wholesalers to control how their products appear in GSA e-commerce platforms, ensuring product accuracy from the source suppliers. The GSA acquisition workforce is required to review VPP data to determine vendor authorization status when making determinations about new offers, modifications, and contract options. When vendors seek to add products to their schedule, the acquisition workforce will check this system, and then notify vendors regarding products that require a Letter of Supply (LOS), because the VPP data does not exist. The VPP is completely voluntary, with no cost for manufacturers or wholesalers to participate. For assistance with the Verified Products Portal, please contact the Centre Consulting Team. Stay in the know. Get industry alerts from our GSA Consulting Team. See More GSA Alerts GSA Interim Rule to Implement the Secure Federal Leases from Espionage and Suspicious Entanglements Act General Services Administration unveiled an interim rule on June 30, 2021, requiring the “immediate owners” of high-security space rented to the federal government to disclose foreign ownership. Read More » July 12, 2021 GSA Extends Moratorium on $25k minimum sales criteria through 9/30/2021 GSA extends moratorium on the enforcement of the minimum sales requirements of FAS clause I-FSS-639, Contract Sales Criteria, to September 30, 2021 Read More » July 12, 2021 Verified Products Portal (VPP) Implementation GSA develops the Verified Products Portal (VPP), for manufacturers and wholesalers to provide product content for commercial off-the-shelf (COTS) products. Read More » July 12, 2021 Interested in Connecting with our GSA or Legal Practice? Contact US The post Verified Products Portal (VPP) Implementation appeared first on Centre Law & Consulting. View the full article
  19. GSA Alerts GSA Interim Rule to Implement the Secure Federal Leases from Espionage and Suspicious Entanglements Act Share on facebook Share on twitter Share on linkedin The Secure Federal Leases from Espionage and Suspicious Entanglements Act is a bipartisan bill signed into law late last year. The bill was introduced by Sens. Gary Peters, D-Mich., and Rob Portman, R-Ohio, after the findings from a 2017 report. The GAO found the GSA had leased high-security spaces from foreign owners in 20 buildings, including six FBI field offices. Some of the spaces hosted classified operations, were used for evidence storage, and housed sensitive data. Most of the federal tenants were unaware of the foreign ownership of the physical space used for the operation of sensitive activities. Of the GSA active leases for high-security facilities, the GAO was unable to identify the ownership for one-third of the locations. The law requires the disclosure of immediate and highest-level foreign ownership of facilities leased to the government. It also mandates lease language that would restrict property owners’ physical access to high-security spaces. The bill requires the GSA to identify any foreign owners of “high-security spaces” — properties with a security level of three or higher — as well as any foreigners who benefit from partial ownership of the properties. To implement provisions of the Secure Federal Leases from Espionage and Suspicious Entanglements Act, the General Services Administration unveiled an interim rule (that went into effect on Wednesday June 30, 2021), requiring the “immediate owners” of high-security space rented to the federal government to disclose foreign ownership. According to the interim rule, the GSA holds approximately 1,263 leases for high-security spaces as of June 2021, that fall under the Secure Federal Leases from Espionage and Suspicious Entanglements Act. The interim rule does not address provisions of the Secure Federal Leases Act requiring the disclosure of foreign “beneficial owners,” that is, individuals who exercise direct or indirect control over, or have economic interests in high-security spaces through “any contract, arrangement, understanding, relationship, or otherwise.” The GSA has stated this will be addressed in the future, and that the GSA is seeking some form of electronic means to implement the Federal Secure Leases Act. The GSA seeks public comments on the potential impact of the Thursday rule on federal lessors. “Comments are welcome on foreign ownership, including beneficial ownership, with the understanding that such comments may help inform a future regulatory action,” the GSA said. Have questions about the Interim Rule? Don’t hesitate to contact Centre. Stay in the know. Get industry alerts from our GSA Consulting Team. See More GSA Alerts GSA Interim Rule to Implement the Secure Federal Leases from Espionage and Suspicious Entanglements Act General Services Administration unveiled an interim rule on June 30, 2021, requiring the “immediate owners” of high-security space rented to the federal government to disclose foreign ownership. Read More » July 12, 2021 May 24th, 2021 SAM.gov Will Merge With beta.SAM.gov Changes SAM.gov users can expect after May 24 include but are not limited to the following. Read More » April 30, 2021 Unilateral GSA Schedule Modifications – Have You Seen a Change in Your CS/CO Assignment? With the GSA seeking to streamline Phase 3 processes, many schedule holders have received unilateral modifications with a new CS/CO assigned to their contract(s). Read More » April 30, 2021 Interested in Connecting with our GSA or Legal Practice? Contact US The post GSA Interim Rule to Implement the Secure Federal Leases from Espionage and Suspicious Entanglements Act appeared first on Centre Law & Consulting. View the full article
  20. The Court of Federal Claims recently reviewed the Small Business Runway Extension Act, particularly SBA’s contention that it was not bound by the 5-year lookback period that Congress enacted for size receipt calculations. Now, SBA has issued its own rule that it will use the 5-year lookback period, at least after a two-year transition period, as discussed in our earlier posts. But there were still some cases working their way through the courts that examined how Congress implemented the Runway Extension Act and whether it applied to SBA or not. To make a long story short, the court agreed with SBA. In Obsidian Solutions Group, LLC, No. 20-1602C (2021), the court considered a challenge that the SBA should have used a five-year lookback period for determining the size of Obsidian. The solicitation, by the Department of Energy, was for a $20.5 million size standard. SBA used a three-year lookback period and determined Obsidian was other than small. Obsidian argued that it would have been small under a five-year look back period as required under the Runway Extension Act. SBA argued that Congress’s change to the lookback period in the Runway Extension Act only applied to federal agencies other than the SBA. As we’ve discussed before, the Runway Extension Act and the five-year lookback period could cause companies with declining revenues to continue self-certifying as large considerably longer. SBA later implemented a rule applying the five-year period, but Obsidian’s date for determining size came out before the SBA rule went into effect. SBA argued that the Runway Extension Act only changed portions of the Small Business Act that applied to agencies other than SBA. The portion of the law that Congress changed–15 U.S.C. § 632(a)(2)(C) affects only “size standards proposed by other agencies.” In contrast, two other portions of the statute apply when the SBA is setting its own standards: 15 U.S.C. § 632(a)(2) subparagraphs (A) and (B). The court agreed with the SBA: The specific authority identified in subparagraph (A) and the criteria prescribed in subparagraph (B) of section 3(a)(2) of the Small Business Act provide the SBA with the authority to set size standards and guidelines for determining a business concern’s size. 15 U.S.C. § 632(a)(2)(A)-(B). Subparagraph (C), in contrast, refers to agencies that are not otherwise “specifically authorized by statute” to promulgate size standards—an authority that the SBA is specifically accorded in subparagraph (A). Subparagraph (C) imposes additional requirements on federal agencies other than the SBA, including the requirement that they seek and obtain “approv[al] by the Administrator” of their own proposed size standards. These additional requirements suggest that Congress imposed on the SBA authority to oversee agencies not otherwise statutorily vested with the authority to set size standards and provided a means of ensuring those size standards were in keeping with the goals of the SBA Administrator. While SBA has now adopted the five-year lookback period in the Runway Extension Act, this case confirms that SBA has greater powers than other agencies to set size standards. While it seems like Congress meant that all agencies, including SBA, use a five-year lookback period, Congress did not carefully draft its rule to apply to SBA. Nevertheless, even Congress must be careful when drafting these sorts of rules. Has your offer been denied for some pass/fail requirement? 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 Interpretation of Runway Extension Act Confirmed by Court first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  21. Happy Friday! We hope everyone had a wonderful and safe 4th of July holiday weekend. Despite the holiday, there has been a lot of news and announcements in Federal government contracting these past two weeks. Here are a few articles that we found interesting and informative including news about a new order to bolster cybersecurity, the Pentagon canceling the JEDI Cloud contract and an announcement that Soraya Correa, the Department of Homeland Security’s chief procurement officer, is retiring after more than 40 years of federal service. Have a great weekend! Pentagon cancels JEDI Cloud contract after years of contentious litigation [FedNewsNet]Small Business Innovation Research: Agencies Need to Fully Implement Requirements for Managing Fraud, Waste, and Abuse [GAO]AAR Corp. Settles False Claims Act Investigation by DOJ for $11 Million [DefDaily]Armed Forces Services Corporation Pays $4.3 Million to Resolve Anti-Kickback Act and False Claims Act Allegations [DOJ]GAO Facial Recognition Technology [GAO]DOD cancels $10B JEDI contract [FedScoop]FBI Cracking Down on Fraud in Federal Contracts [ClearanceJobs]Pentagon cancels JEDI Cloud contract after years of contentious litigation [FedNewsNet]Biden Signs Order to Bolster Cybersecurity [NatDefMag]DHS’s Correa to retire after 40 years in government [FedNewsNet] The post SmallGovCon Week In Review: June 28 -July 9, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  22. In my last blog post I wrote about a contractor’s unsuccessful attempt to convince the GAO that its solicitation was improperly dismissed as being untimely because the State Department didn’t recognize its automatic “out of office” email reply response. It appears that federal agencies in general are unforgiving when it comes to a contractor’s reliance on electronic communications without follow-up. In a recent case, the SBA Office of Hearing Appeals (OHA) rejected a contractor’s petition for reconsideration upholding the OHA’s appeal of a cancellation of the contractor’s verified status as a Service-Disabled Veteran-Owned Small Businesses because it could not access a cancelation letter through a link provided by the VA. The case is Optimum Low Voltage, LLC dba Optimum Fire & Security, SBA No. CVE-196 (2021). On May 17, 2021, Optimum Low Voltage, LLC dba Optimum Fire & Security (Optimum) filed a Petition for Reconsideration (PFR) of OHA’s decision in an earlier appeal of a Department of Veterans Affairs Center for Verification and Evaluation (CVE) decision. In that decision, OHA dismissed the appeal finding that Optimum’s petition failed to allege an error of law or fact for OHA to adjudicate. In its PFR, Optimum argued that OHA’s finding that its owner had received a Notice of Proposed Cancellation (NOPC) letter, when he only received an allegedly broken hyperlink to the letter, constitutes an error of fact that was material to OHA’s decision to dismiss in Optimum I. Optimum contends that its owner only received the automated notification that the NOPC could be viewed by logging into the VetBiz VIP portal. In support, Optimum’s PFR included an exhibit with an email from VetBiz Vendor Information Pages stating that a NOPC has been issued and that Optimum could view the notice by logging into the account portal. Optimum provided a sworn declaration of its owner stating that when he clicked on the link, he was unable to summon up the NOPC and it was only after retaining counsel and viewing the “Archive” section that he finally viewed the NOPC. Optimum maintains it never received the NOPC because when the owner clicked the hyperlink, he did not see it. Optimum argued that it was not afforded due process, that the CVE failed to give the company adequate notice of the NOPC, and that the owner should not have been required to search for it. On June 2, 2021, the CVE responded to Optimum’s PFR stating that the notification in the email was clear. The CVE referred to Optimum’s exhibit to the PFR which included the CVE’s March 19, 2021 email informing Optimum of the issuance of an NOPC. The email provided that Optimum may view the NOPC by logging into its account in the VetBiz VIP portal and provided the phone number for the VA Office of Small and Disadvantaged Business Utilization (OSDBU) HELP Desk if there were any questions. The CVE stated that the link in the email worked properly and if Optimum had trouble accessing the portal, one of its representatives should have called the HELP Desk, as referenced in the email. The CVE further asserted that Optimum was given sufficient notification and had ample opportunity to respond to the NOPC. OHA found no merit in Optimum’s argument and agreed with the CVE; that the CVE’s email clearly stated that the NOPC could be viewed by logging into the account portal and if Optimum had questions, it should have reach out to the CVE HELP Desk. OHA also found that nothing in Optimum’s owner’s declaration, or any other material, stated that he attempted to seek assistance as directed in the email. As the role of technology steadily grows, it’s increasingly important to be very careful when it comes to electronic notification. This case demonstrates that the expectation of diligence on the part of contractors in digital communications cuts across different tribunals. Has your offer been denied for some pass/fail requirement? 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 OHA: Broken Hyperlink Doesn’t Excuse Not Responding to CVE first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  23. When it comes to federal contracting, teaming is an invaluable strategy for many businesses–large and small alike. But the rules and processes surrounding teaming can be complex and confusing, even for experienced contractors. That’s why Koprince Law has teamed up ourselves–with the government contracts experts at The Pulse of Government Contracting to create special, in-depth Teaming Resource Guides for federal contractors and subcontractors. After an introduction to the basics of teaming, Part I of our series focuses on joint venturing, while Part 2 is a deep dive into prime/subcontracting teaming. You can check out our Teaming Resource Guides by clicking here. And while you’re there, don’t forget to check out the other services our friends at Pulse offer to federal contractors! The post Introducing Our GovCon Teaming Resource Guides! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  24. To be awarded a government contract, a company must do more than submit the winning proposal — it must be “responsible.” The concept of responsibility in government contracting is far-reaching and can include such things as having adequate financial resources, a satisfactory ethical record, acceptable past performance, and even required security clearances. On July 15, please join me and Chris Coleman as we discuss this cornerstone of government contracting in a session hosted by Govology. Chris and I will cover responsibility in-depth, including what is inclued in the FAR’s definition of responsibility, how the government evaluates responsibility, and how a small business can challenge a non-responsibility determination through the SBA’s Certificate of Competency process. It’s easy to register: just click here. See you on July 15! The post Event: Responsibility in Government Contracting, Hosted by Govology first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  25. You can’t believe it. You did everything right. The solicitation required that offerors have three distinct licenses. You have two, but one should cover for the license you don’t have. However, the agency says you have to have all three as distinct licenses, and denies your offer. Fortunately, you have a potential savior: The Certificate of Competency (“COC”) What is a Certificate of Competency? 13 C.F.R. § 125.5, helpfully titled “What is the Certificate of Competency Program”, establishes what a COC is and the procedures for when and how it may be obtained. The regulation notes: “A COC is a written instrument issued by SBA to a Government contracting officer, certifying that one or more named small business concerns possess the responsibility to perform a specific Government procurement (or sale) contract(.)” Great, but what does this mean in practice? The regulation goes on to explain that basis of responsibility is basically a decision on a non-comparative basis, such as a requirement that if you meet you pass, and if you don’t you fail. For example, let’s say the solicitation requires you have three distinct licenses of some kind. You have two licenses, however, one of these licenses is well-recognized as sufficing for the one you don’t have, so, you submit your proposal assuming the two licenses will suffice. The solicitating agency denies your offer because you only have the two licenses. The agency didn’t have to compare your offer to others to make this determination, it just said: “Here was the requirement. You did not meet the requirement. You are denied.” This is a finding of non-responsibility and is precisely the sort of matter the COC is meant for. Receiving a COC can be very powerful. If the SBA grants you a COC, it is an order to the soliciting agency that says, in effect, this offeror meets the requirement that you said it does not. Going from the above example, it would, in effect, mean that you met the three-license requirement, even though you only had the two (this is assuming the company does in fact meet the requirement). In fact, it goes even further. “Where SBA issues a COC on behalf of a small business with respect to a particular contract, contracting officers are required to award the contract without requiring the firm to meet any other requirement with respect to responsibility.” 13 C.F.R. § 125.5(m). In other words, even if the agency could otherwise deny a company on some other pass/fail matter, its hands are tied. It will solely be a question of whether your company is the best offer relative to the other eligible offers. How do I get a Certificate of Competency? The regulation actually mandates that contracting officers to refer a small business offeror to the SBA for a COC when the officer denies said offeror by finding it “non-responsible”. Under the rule, you shouldn’t have to do anything at all if the officer has made a finding of non-responsibility; the officer should make the referral on their own to the SBA. That said, this doesn’t always occur. Sometimes, the agency also may also reject an offer for different reasons and, in such a case, the agency doesn’t have to refer the offer to the SBA for a COC. Aeroplate Corp. v. United States, 67 Fed. Cl. 4, 7 (2005). Sometimes, the agency tries to argue that its decision wasn’t one of responsibility; determining this issue may require a bid protest arguing that the agency should have made a referral for a COC. Referrals to the SBA for a potential COC must follow § 125.5(c) and provide copies of the applicable solicitation, the offer, any applicable bid abstracts or negotiation memorandums, preaward surveys, the contracting officer’s written decision finding the offer ineligible, as well as any other necessary technical information or documentation that is relevant to the matter. The regulation also later notes the SBA may ask for further information and documentation. Any such request must also be met if you want to have a chance at a COC. Are there any caveats? Of course! The COC is powerful, but, as we noted earlier, it will not assure you of an award. Most importantly. If the agency rejects your bid on comparative factors, such as price or past performance as compared to other offerors, the COC will not change that result. Also, not every kind of contract allows for referrals for COCs or recognition of them: COCs are inapplicable for 8(a) sole source awards. The SBA may also reconsider and rescind a COC it already issued if you submit false information, omit materially adverse information, or new materially adverse information is discovered. Furthermore, if you’ve been convicted or had a civil judgment against you for a reason that would be grounds for debarment or suspension, there is a rebuttable presumption against awarding you a COC (Although the SBA can still award it!). Finally, it should go without saying that just because your offer has been referred to the SBA for a COC does not mean you will get the COC. Whether you are given a COC will depend entirely on the circumstances of your situation. Conclusion The COC isn’t some sort of automatic way to win an award, but it is extremely powerful nonetheless. Receiving a COC means you have been conclusively determined to have the responsibility to undertake the contract. If you receive a COC for your bid, it means that the agency cannot deny your bid on any pass/fail consideration, such as a license requirement. Small business contractors should always keep this powerful tool in mind when bidding, and should not be afraid to file a protest if the agency refuses to refer the matter for a COC from the SBA. Has your offer been denied for some pass/fail requirement? 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 Certificates of Competency: A Little-Known Friend of the Small-Business Contractor first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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