Jump to content

Search the Community

Showing results for tags '[]'.

  • Search By Tags

    Type tags separated by commas.
  • Search By Author

Content Type


Forums

  • Instructions and Terms of Use
    • Terms Of Use
    • Before You Register, Before You Post, Instructions for Writing Your Question
  • Contracting Forum
    • What Happened?
    • Polls
    • For Beginners Only
    • About The Regulations
    • COVID-19 And Its Effect on Contracting
    • Contracting Workforce
    • Recommended Reading
    • Contract Award Process
    • Contract Pricing Including CAS & Allowable Costs
    • Contract Administration
    • Schedules, GWACS, MACs, IDIQs
    • Subcontracts & Subcontract Management
    • Small Business, Socioeconomic Programs
    • Proposed Law & Regulations; Legal Decisions

Blogs

  • The Wifcon Blog
  • Don Mansfield's Blog
  • Government Contracts Blog
  • Government Contracts Insights
  • Emptor Cautus' Blog
  • SmallGovCon.com
  • The Contractor's Perspective
  • Government Contracts Legal Forum
  • NIH NITAAC Blog
  • NIH NITAAC Blog

Product Groups

There are no results to display.

Categories

  • Rules & Tools
  • Legal Opinions
  • News

Find results in...

Find results that contain...


Date Created

  • Start

    End


Last Updated

  • Start

    End


Filter by number of...

Joined

  • Start

    End


Group


AIM


MSN


Website URL


ICQ


Yahoo


Jabber


Skype


Location


Interests

  1. 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
  2. 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
  3. 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
  4. 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
  5. 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
  6. 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
  7. 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
  8. 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
  9. 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
  10. 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
  11. The Administration’s recent announcement that it plans to boost Small Disadvantaged Business contracting by 50% means that we may see increased interest by government agencies and large prime contractors alike in doing business with self-certified SDBs. But my guess is that the Administration’s push will come with additional oversight, too–after all, increasing the goal isn’t worth much if the government cannot be confident that the contracts it counts toward its SDB goals were awarded to eligible entities. In my experience, many contractors check the SDB box in SAM without fully understanding what it takes to be an eligible Small Disadvantaged Business under federal contracting laws. So before you click that box (or re-click it on your next SAM update) here are five things you should know about eligibility for self-certified SDB status. 1. A “Self-Certified 8(a)” It’s a slight oversimplification, but an SDB is essentially a self-certified 8(a) contractor. The SBA’s regulation at 13 C.F.R. 124.1002(a) establishes the general criteria to qualify as an SDB. That regulation states: (a) Reliance on 8(a) criteria. In determining whether a firm qualifies as an SDB, the criteria of social and economic disadvantage and other eligibility requirements established in subpart A of this part apply, including the requirements of ownership and control and disadvantaged status, unless otherwise provided in this subpart. Unlike the 8(a) Program, “potential for success” is not required for self-certified SDB status and the criteria set forth in 13 C.F.R. 124.108, such as good character, do not apply either. There also are a few other, more minor, differences set forth in 13 C.F.R. 124.1002. But, for the most part, the eligibility criteria for SDB status are the same as those for the 8(a) Program. By the way, if you are in the 8(a) Program, you automatically qualify as an SDB. As stated in 13 C.F.R. 124.1001, “[a]ll current Participants in the 8(a) BD Program qualify as SDBs.” 2. Social Disadvantage Requirement To qualify as a self-certified SDB, a company must be owned and controlled by socially disadvantaged individuals. But who is socially disadvantaged? The criteria are set forth in 13 C.F.R. 124.103, and are the same for SDB eligiblity as they are for the 8(a) Program. Members of certain designated groups, such as Black Americans and Hispanic Americans, are presumed socially disadvantaged. The full list of designated groups is found in 13 C.F.R. 124.103(b)(1). Individuals who are not members of these groups must establish their personal social disadvantage, as provided in 13 C.F.R. 124.103(c). Of course, for self-certification purposes, the SBA isn’t around to review a social disadvantage narrative, as it does for individuals trying to establish their personal social disadvantage for the 8(a) Program. But I think it is wise to carefully consider how you would explain your personal social disadvantage to the SBA in the event of an audit. You may even want to check out this post written by my colleague Nicole Pottroff, who explains what the SBA is looking for when it comes to establishing personal social disadvantage. 3. Economic Disadvantage Requirement In my experience, if there is one thing that trips up self-certified SDBs the most, it is the requirement that the SDB be owned and controlled by economically disadvantaged individuals. There seems to be a fairly widespread misconception that disadvantage, for SDB purposes, is limited only to social disadvantage. Not so. To qualify as disdvantaged, an individual must meet the economic disadvantage criteria established in 13 C.F.R. 124.104. These include, most notably, a requirement that the individual’s net worth be less than $750,000 (not including certain permitted exclusions) and that, in most cases, the individual’s three-year average adjusted gross income be less than $350,000 (again, less certain exclusions). Again, in my opinion, the best practice is to be prepared to show that you meet these criteria in the event of an audit. 4. Unconditonal Ownership Requirement An SDB must be at least 51 percent “unconditionally and directly” owned by disadvantaged individuals. These requirements are explained in 13 C.F.R. 124.105–but note that paragraphs (g) and (h) of the regulation do not apply to SDBs. Direct ownership means that the disadvantaged individual must own his or her shares personally, rather than through another entity like a holding company. (Though there is a very limited exception for certain trusts). Unconditional ownership is defined at 13 C.F.R. 124.3, as well as portions of 13 C.F.R. 124.105. Some relatively common corporate practices, such as the use of voting trusts and purchase options, can run afoul of the unconditional ownership requirement, so do your due diligence–and amend corporate documents as necessary–before self-certifying as an SDB. 5. Control Requirement An SDB must also be controlled by disadvantaged individuals. Control is explained in 13 C.F.R. 124.106, and is defined as “including both the strategic policy setting exercised by boards of directors and the day-to-day management and administration of business operations.” But the control requirements go well beyond this big-picture guidance, and include things like the disadvantaged individual serving as the highest officer, being the highest-compensated employee (usually), and working full-time for the company–although the full-time requirement is modified slightly in 13 C.F.R. 124.1002(h). Before self-certifying as an SDB, it is essential to understand, and comply with, the regulatory control requirements. A Few Final Words The items I’ve mentioned are he most common problems I see when it comes to SDB eligibility, but they aren’t the only eligibility criteria. For instance, the business must be small (of course!) and in most cases the owners must be U.S. citizens. It is also worth noting that the requirements can vary for joint ventures, as well as for companies owned by tribes, Alaska Native Corporations, Native Hawaiian Organizations, and Community Development Corporations. The potential penalties for misrepresenting SDB status are severe. Before clicking that box in SAM, it is important to do your due diligence and have a good faith, reasonable belief that you qualify. Finally, if you are looking for more detailed information about social disadvantage, economic disadvantage, unconditional ownership and control, please check out our 8(a) Program GovCon Handbook on Amazon. 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: Eligibility for Small Disadvantaged Business Self-Certification first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  12. The CIO-SP4 is a big deal for many small and large federal contractors. And lately it’s been a bit of a moving target as to how NITAAC will evaluate the experience of companies working together in prime-sub, mentor-protégé, and joint-venture relationships. We wrote about some of the issues with past performance and other recent changes. One change that caught my eye puts a restriction on the number of experience examples a large business mentor can provide. But should it? 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. This language limits the number of experience examples from a large business mentor, but the current language appears to violate SBA rules on joint venture past performance. Section L.5.2.1 states in relevant part that “for mentor-protégé arrangements, large business is limited to one example for each task area.” However, SBA rules that were enacted in 2020 require that “[a] procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.” 13 C.F.R. § 125.8(e). Here, the Solicitation language contradicts this SBA requirement by having the effect of requiring the protégé firm to meet the evaluation criteria in a different, more restrictive manner than other offerors. Here, the rule would require the protégé to have twice as many past performance examples as the mentor (2 for the protégé and 1 for the mentor). If only 1 can be submitted from the large business mentor, it severely limits the benefit of a mentor-protégé relationship. The protégé appears to be required to meet the experience requirements in the same manner as other offerors, without giving effect to the mentor-protégé relationship, in violation of SBA rules. In a recent GAO decision, an RFP required each member of a mentor-protégé joint venture to submit work examples. Innovate Now, LLC, B-419546 (Apr. 26, 2021). GAO found the RFP violated the SBA rule because “[a]ll offerors-including the protégé member of a mentor-protégé joint venture-must meet exactly the same evaluation requirements.” SBA’s commentary on its own rule stated: “it is unreasonable to require the protégé concern itself to have the same level of past performance and experience (either in dollar value or number of previous contracts performed, years of performance, or otherwise) as its large business mentor. The reason that any small business joint ventures with another business entity … is because it cannot meet all performance requirements by itself and seeks to gain experience through the help of its joint venture partner.” It’s possible that GAO would find the same flaw with the current mentor experience limit in section L.5.2.1 of CIO-SP4. Unfortunately, NITAAC has not addressed this concern. Here’s hoping that they do, and allow additional mentor experience examples. Otherwise, offerors may be left finding it necessary to protest the solicitation, or risk losing out on some of the benefits of the Mentor-Protégé relationship. 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: Is it Limiting Mentor Experience Too Much? first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  13. For disadvantaged small businesses, the SBA’s 8(a) Business Development Program can help level the playing field by providing powerful benefits, including access to sole source and set-aside contracts. And in the wake of the Administration’s announcement that it will attempt to boost SDB contracting by 50%, this could be the right time for many businesses to consider an 8(a) Program application. On Wednesday, June 30 at 1:30 p.m. Eastern, please join me as I discuss the 8(a) Program with Teresa Moon of Parabilis. As a back-and-forth conversation (not a webinar), this promises to be an informative and fun event. Click here to sign up. See you on June 30! The post Event: 8(a) Program Conversation with Teresa Moon of Parabilis first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  14. Protecting sensitive business information, especially pricing, is essential even in the GAO bid protest realm. As an agency found out, even an inadvertent release of such information could lead to a sustained protest. This slip up resulted in the cancellation of a nearly $1 billion contract. Needless to say, this was a big deal. How did this happen, and what should parties be looking for to protect their confidential data? The decision in the Matter of Inmarstat Government, Inc., B-419583, was a challenge to the terms of a solicitation, which was issued by DISA (Defense Information Systems Agency) to procure broadband satellite services for the Navy. Inmarstat was the incumbent contractor on the preceding DISA IDIQ awarded in 2016. As the incumbent contractor, Inmarstat was poised to submit a proposal for the newly issued solicitation. That is where things started to go off the rails. On September 21, 2020, DISA posted a pre-solicitation announcement, which included a draft of the solicitation. In the draft solicitation was a Microsoft Excel workbook for offerors to use to calculate their fixed prices. The workbook contained 16 visible tabs with many different items on each tab. The tabs contained lists of many of the data sources used by the government to develop pricing data, including Inmarstat’s incumbent contract. This obviously piqued the interest of both Inmarstat and its’ competitors. The Navy was seemingly unaware that in addition to the 16 visible tabs, 19 “invisible” tabs also came with the workbook. These “invisible” tabs could be made visible by right clicking on any visible tab, and clicking the unhide option. What was on these so-called “invisible tabs” you may ask? It was pricing data, including much of Inmarstat’s incumbent pricing data. Specifically in these tabs were pricing data for line items, including operational support, installation, recurring costs, and the like. Inmarstat clearly would not want its competitors to have such pricing data information. Inmarstat notified DISA of the release of the information, and DISA subsequently removed the draft solicitation from the web. Inmarstat requested that DISA investigate how and why its pricing data was included, albeit in hidden tabs, in the draft solicitation. DISA responded that effectively there was no way to unring the bell, short of removing the draft proposal from the website. DISA’s rationale was not to draw more attention to the data release. DISA responded later, asserting that no violations had occurred, this was just an inadvertent release, and there was no way a competitor could reverse-engineer the data. On January 26, 2021 a competitor notified DISA about locating the hidden pricing data. The competitor advised it had scrubbed the information from its servers, and firewalled the two employees who discovered the information from the proposal team out of an abundance of caution. These companies are seeking a nearly $1Billion procurement, so they did not want to take any chances. The competitor even asked DISA to cancel the award. Inmarstat protested, arguing that DISA “failed to mitigate the competitive harm caused by the accidental release” of its pricing data. GAO agreed with Inmarstat, finding the disclosure of source selection information to an unauthorized person during the course of a procurement was improper. Since the agency decided not to cancel the solicitation, Inmarstat needed to show the disclosure allowed an unauthorized recipient to gain an unfair advantage, or that Inmarstat was competitively prejudiced. An unfair competitive advantage is presumed when “competitively useful nonpublic information” is held by an unauthorized party. GAO found DISA’s mitigation efforts lacking. GAO found that DISA did nothing to try and restrict the further release of the information. The agency did change some line items, but nothing that rose to the level of fixing the underlying release of the information. The contracting officer, at a hearing on the matter, indicated the mitigation efforts consisted of a clause in the solicitation which said the information release was not competitively useful. The takeaway is two-fold from GAO’s decision. First, when receiving a solicitation, be sure to check and see if any of your proprietary data may be “hidden” in the document. The key there is to protect confidential information from competitors. Second, an agency must do more to mitigate the harm than just simply removing the solicitation from the website. As we all know, once it is on the web, it is forever. If DISA had proposed to scour the proposals for links to the data, or included clauses which required competitors to affirm they had not accessed the data, it may have survived this protest. Alas, a $1 billion procurement was canceled, and resulted in a cautionary tale for both competitors and agencies alike. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Inadvertent Release of Incumbent Pricing Data Leads to Sustained Protest first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  15. Last night, NITAAC released Amendment 4 to the CIO-SP4 RFP. The amendment removes the language expressly restricting the use of first-tier subcontractors past performance, capabilities, and experience, which was previously added by Amendment 3. Let’s take a closer look. We have been following NITAAC’s treatment of first-tier subcontractors’ past performance, capabilities, and experience under the CIO-SP4 RFP since day one. And it has been a wild ride! Check out our prior blogs on this topic here and here. According to NITAAC, Amendment 4 “addresses the concerns pertaining to Contractor Team Arrangements (CTA).” NITAAC’s Cover Letter for Amendment 4 reiterates that “it is not NITAACs intent to remove the ability of offerors to utilize first tier subcontractors that are part of a CTA as defined in FAR 9.601.” According to NITAAC, Amendment 4 “removes language in section L.3.7, L.5.2, M.1.1, and M.4.3 that may impede an offeror from utilizing first tier subcontractors.” Specifically, it completely removed from section L.3.7.1 (Instructions for CTAs, JVs, and Mentor-Protégé Agreements) the following language: “An offeror may enter into Prime/Subcontractor arrangements as defined under FAR 9.601(2); however, in this type of arrangement, only the prime will be considered in the evaluation for award of the GWAC except as specified under M.4.3 Contract Team Arrangements (CTAs).” NITAAC removed language from section L.5.2.1 on corporate experience, completely doing away with the prior relationship requirement altogether. Now, it reads as follows: All corporate experience examples must be from the last three years prior to the date the proposals are due for this solicitation. The examples may come from members of an offeror’s CTA / JV, and/or Mentor-Protégé as identified in section L.3.7. If provided, work done by each partner or member of the contractor teaming arrangement will be considered. If the examples come from any member other than the offeror submitting a proposal , a clear relationship must be established between the offeror, their team members (as identified in section L.3.7), and the resources each expended in accomplishing the project. Each offeror’s example shall convey the offeror’s specific role in their experience example. NITAAC’s intent to remove the prior relationship requirements is echoed in Amendment 4’s changes to section L.5.2.2 (Row 9 Leading Edge Technology Experience), section L.5.2.3 (Row 10 Federal Multiple Award Experience), and section L.5.2.4 (Row 11 Executive Order 13779). It removed the following language from each of those sections: If the examples come from any member other than the offeror submitting a proposal, a clear relationship must be established between the offeror, their team members (as identified in section L.3.7), and the resources each expended in accomplishing the project. Each offeror’s example shall convey the offeror’s specific role in their experience example. Under section M.1.1 on CTAs, Amendment 4 removed additional restricting language. Now, it reads as follows: As stated in paragraph L.3.7, the Government will consider all members of a FAR 9.601(1) CTA for purposes of evaluation under the contract, provided that the Offeror submits a full and complete copy of the document establishing the CTA relationship containing at least the minimum information required by the solicitation closing date. The Government will not consider the members of a “Contract Team Arrangement” defined under FAR 9.601(2) for evaluation purposes for the contract except in the limited context of evaluating an Offeror’s proposal under paragraph L.5.6.2, Resources.” Finally, in section M.4.3 on past performance, NITAAC actually replaced some of the language that it had previously removed (via Amendment 3). Amendment 4 revised that section as follows: The government will consider and evaluate the past performance experience of members of the offeror’s 9.601(1) CTA (if applicable), subcontractors of the prime’s 9.601(2) CTA, members of the offeror’s JV (if applicable), and all members of the offeror’s mentor- protégé arrangement (if applicable). In the end, Amendment 4 did not directly reverse all of the changes imposed by Amendment 3. For one, it appears that NITAAC does still intend to restrict the use of affiliates’ past performance, capabilities, and experience. But Amendment 4 does seem to effectively remove the restrictions on the use of a first-tier subcontractor’s past performance, capabilities, and experience that had been imposed via Amendment 3. So it looks like NITAAC was pretty true to its word on this one. However, there may still be some questions as to why NITAAC had so much back and forth on this one and as to how its evaluation will actually look in this respect (given that back and forth). There, only time will tell. Notably, Amendment 4 also confirms that the proposal due date is still July 8, 2021, at 2:00pm ET. Also, be sure to review the full amendment carefully if you do plan to bid, as it also changes some of the post-submission registration requirements (in section L.3.1) and submission format requirements (in section L.5) too. Need help with CIO-SP4 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 CIO-SP4 Amendment 4: Undoing Amendment 3? Sort Of first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  16. Happy Friday and welcome to this week’s addition of the week in review. I recently got back from a camping trip in 100 degree weather, so I know that staying cool is crucial. Hope you are all staying cool and enjoying the summer. There were several announcements such as Robin Carnahan‘s confirmation by the Senate as Administrator of the General Services Administration Wednesday afternoon and on Tuesday Kiran Ahuja was also confirmed to be the next director of the Office of Personnel Management. The General Services Administration made awards to 426 small businesses in an effort to provide agencies with more emerging technology options, completing the first phase of its $50 billion 8(a) STARS III contract Thursday. Read on for more details and have a great weekend! The underlying process for GWACs hasn’t changed since 1994 [FedNewsNet]Senate confirms Ahuja as first permanent OPM director in more than a year [FedNewsNet]Did DHS ‘go rogue’ with FirstSource III solicitation? [FedNewsNet]GSA makes 426 awards on $50B STARS III contract with more to come [FedScoop]Robin Carnahan confirmed to lead GSA [FedScoop]House lawmakers propose $50M for Technology Modernization Fund in 2022 [FedScoop]GSA creates $2.1B contract for NOAA’s IT [FedScoop]Owner and CEO of Government Contracting Firm Pleads Guilty to Bribery Scheme [DOJ]Bipartisan Bill Would Exempt FAA From Shutdowns, Preventing Furloughs and Missed Pay [GovExec]Navy Lab Continues Fight Against Age-Old Foe [NatDefMag] The post SmallGovCon Week In Review: June 21-25, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  17. We finally have NITAAC’s CIO-SP4 solicitation, complete with several amendments and a Q&A. So that means the anticipated offerors have the answers to all of their questions about this long-awaited GWAC procurement, right? Well, no. In fact, for anyone planning to team-up for CIO-SP4, there seems to be more confusion now than ever before. Specifically, the draft and final CIO-SP4 RFPs have taken us on a rollercoaster ride regarding whether offerors can utilize the past performance, experience, and capabilities of their first-tier subcontractors (a.k.a. subcontractors of a prime’s FAR 9.601(2) CTA). We first blogged on this topic a few weeks ago. As we explained, the draft RFP said that NITAAC would not consider the past performance of subcontractors at all. We raised concerns with this limitation under the guidance of FAR 15.305(a)(2)(iii), which says that agencies “should” consider the past performance of “subcontractors that will perform major or critical aspects of the requirement.” We also noted that, in some cases, this limitation could conflict with SBA’s rule at 13 C.F.R. 125.2(g), which states: When an offer of a small business prime contractor includes a proposed team of small business subcontractors and specifically identifies the first-tier subcontractor(s) in the proposal, the head of the agency must consider the capabilities, past performance, and experience of each first tier subcontractor that is part of the team as the capabilities, past performance, and experience of the small business prime contractor if the capabilities, past performance, and experience of the small business prime does not independently demonstrate capabilities and past performance necessary for award. But the final RFP (first released in late May) initially cleared up those concerns (albeit, it did raise some new concerns regarding the broad utilization of affiliates’ past performance as explained in the prior blog). Section M.4.3 of that RFP said: The government will consider and evaluate the past performance experience of affiliates, members of the offeror’s 9.601(1) CTA (if applicable), subcontractors of the prime’s 9.601(2) CTA, members of the offeror’s JV (if applicable), and all members of the offeror’s mentor protégé arrangement (if applicable). Section L.5.2.1 originally said: All corporate experience examples must be from the last three years from the date the proposals are due for this solicitation. The examples may come from affiliates or members of an offeror’s CTA / JV, provided the examples establish a clear relationship between the offeror, their affiliates / CTA / JV members, the project, and the resources that were expended by each in accomplishing the project. And section L.3.7.1 said: “Although the experience and abilities of the prime’s subcontractors may be used in the offeror’s proposal, only the prime contractor will receive a contract award.” So the first release of the final CIO-SP4 RFP clarified that a subcontractor’s past performance would be considered–and a subcontractor’s corporate experience could be considered. But interestingly, it still appeared to potentially require a prior relationship for the agency to consider the corporate experience of affiliates, subcontractors and joint venture members. Then, Amendment 2 to the RFP (released June 4) changed the corporate experience criteria in section L.5.2.1 to remove the prior relationship requirement for subcontractors and joint venture members (but keeping this requirement for affiliates), stating: All corporate experience examples must be from the last three years prior to the date the proposals are due for this solicitation. The examples may come from affiliates or members of an offeror’s CTA / JV. If the examples come from affiliates, a clear relationship must be established between the offeror, their affiliates, and the resources each expended in accomplishing the project. Each offeror’s example shall convey the offeror’s specific role in their experience example. Given this deliberate change in the language, it appeared that NITAAC had intended to broaden the ability to submit subcontractor corporate experience (which was more in line with section M.4.3’s allowance of subcontractor past performance examples). But the saga doesn’t end there! Earlier this week, NITAAC released Amendment 3 to the final RFP, which included the Q&A, and essentially scrapped everything we thought we knew about this evaluation criteria. For one, it amended section M.4.3 to remove the consideration of affiliates’ and subcontractors’ past performance (only retaining the consideration of joint venture and mentor-protégé members’ past performance), as follows: The government will consider and evaluate the past performance experience of affiliates, members of the offeror’s 9.601(1) CTA (if applicable), subcontractors of the prime’s 9.601(2) CTA, members of the offeror’s JV (if applicable), and all members of the offeror’s mentor-protégé arrangement (if applicable). It also amended section L.5.2.1 on corporate experience, which now states: All corporate experience examples must be from the last three years prior to the date the proposals are due for this solicitation. The examples may come from members of an offeror’s CTA / JV, and/or Mentor-Protégé as identified in section L.3.7. If provided, work done by each partner or member of the contractor teaming arrangement will be considered. However, for mentor-protégé arrangements, large business is limited to one example for each task area. If the examples come from any member other than the offeror submitting a proposal affiliates, a clear relationship must be established between the offeror, their affiliates team members (as identified in section L.3.7), and the resources each expended in accomplishing the project. Each offeror’s example shall convey the offeror’s specific role in their experience example. Finally, it completely replaced the language quoted above from section L.3.7.1 with the following provision: An offeror may enter into Prime/Subcontractor arrangements as defined under FAR 9.601(2); however, in this type of arrangement, only the prime will be considered in the evaluation for award of the GWAC except as specified under M.4.3 Contract Team Arrangements (CTAs). Making matters worse, NITAAC’s answers in the Q&A contained some blatant contradictions on this topic. Question 21 asks if the corporate experience and certifications of team members under both FAR 9.601(1) and 9.601(2) CTAs can be used by the offeror to meet the RFP requirements. To this, NITAAC answered: “No. The solicitation will be amended to clarify that the Government will not consider the members of a CTA defined under FAR 9.601(2) for evaluation purposes except in the limited context of evaluating an Offeror’s proposal under paragraph L.5.6.2, Resources.” To the contrary, Question 28 quotes the post-Amendment 3 final RFP, section L.3.7.1, asking whether the statement that “the experience and abilities of prime subcontractors may be used in the offerors proposal” applies “to all areas of Section L that requires corporate experience support?” And NITAAC simply says, “Yes.” If your head is spinning at this point, you are not the only one! So, is there any light at the end of this tunnel? Well, there may be a glimmer of hope for clarity. Just yesterday NITAAC released a Letter to Potential Offerors. Notably, this letter was only released on one of SAM.Gov’s CIO-SP4 Contract Opportunity pages (it can be found here). This letter says that NITAAC will release a “future amendment” to the CIO-SP4 RFP that will address issues with Interested Vendor List access and errors in the J.5 Self Scoring Sheet formulas and (you guessed it) promises to provide clarification regarding CTAs. Importantly, it says: “It is not NITAACs intent to remove the ability of offerors to utilize first tier subcontractors that are part of a CTA as defined in FAR 9.601 and the future amendment will remove anything that contradicts this intent in the solicitation.” So where are we now? Back in the waiting period it appears. It seems that many FAR 9.601(2) CTAs have already changed or considered changing their entire teaming structure in light of these potential limitations. But unfortunately, there may not be time for many to do this. As you are probably aware, joint ventures (or FAR 9.601(1) CTAs) have many additional requirements to submit an offer, including the drafting and execution of a compliant joint venture agreement, being separately registered in SAM.Gov, having a separate EIN number through the IRS, and having a separate CAGE code through DLA. That is a lot of steps in very little time (given that Amendment 3 established a proposal due date of July 8, 2021, at 2:00pm ET). Additionally, if the NITAAC does not “ease up” on these restrictions as it has promised, it is running some risk of noncompliance with SBA’s regulations, the guidance in the FAR, and potentially even the Competition in Contracting Act (CICA). You can read more about all of these potentially issues here. Let’s hope for the best! Otherwise, we can likely expect an abundance of pre-award protests from offerors affected by this competition restriction. Need help with CIO-SP4 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 Conflicting CIO-SP4 Updates For CTAs, And Now, A Promise to Clarify first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  18. Avoiding affiliation with other companies can be critical to qualifying as a small business under the SBA’s rules for government contractors. But not all SBA affiliation rules are intuitive, and in my career as a government contracts attorney I have seen the same misconceptions about the affiliation rules come up time and and time again. So without further ado, here are five common misconceptions about the SBA’s affiliation rules. An Affiliate Can be in an Unrelated Industry Business owners frequently assume that another company cannot be an affiliate if that company operates under a different primary NAICS code–particularly if the industries aren’t closely related. For example, an individual who owns 100% of an an IT services company and a real estate holding company might believe that two companies are not affiliated because they are in very different lines of work. At first blush, this assumption may have some logical appeal. But think about it: what if Google–which is on track for more than $200 billion in 2021 revenues–formed a wholly-owned subsidiary operating in, say, the general construction industry? It would hardly be fair to the mom-and-pop contractors of the world to say that this new entity is a “small business” even though it is backed by the full power and resources of one of the world’s dominant companies. The bottom line: other than the SBA’s “newly organized concern” rule, 13 C.F.R. 121.103(g), the fact that a potential affiliate operates in a different line of work or different primary NAICS code is not relevant to the SBA’s analysis. 2. Affiliation Doesn’t Require Common Ownership Two companies may be affiliates where they share common ownership–but contrary to another common misconception, affiliation may exist even if the companies have no shared owners. For example, let’s assume that Sally is the Chief Executive Officer (the highest officer position) in two companies: SmallCo and BigCo. Although Sally runs each company’s day-to-day operations, she does not own an equity interest in either company. So are the companies affiliates? Almost certainly, under SBA’s “common management” rule, 13 C.F.R. 121.103(e), which says that affiliation arises where a person who controls the management of one company also controls the management of another. Several other bases of affiliation may also exist without shared ownership, such as affiliation based on economic dependence, familial relationships, or the previously-mentioned newly organized concern rule. 3. Your Affiliate Might Not Know In my experience, the so-called “economic dependence” affiliation rule is often one of the most difficult for contractors to wrap their minds around. This rule, 13 C.F.R. 121.103(f)(2), says that the SBA may presume that one company is affiliated with another “if the concern in question derived 70% or more of its receipts from another concern over the previous fiscal years.” Let’s say that Bob owns 100% of BobCorp, which has been in business for six years. Over that time, BobCorp has generated 95% of its revenues from subcontracts with Google–which reported a whopping $55.31 billion in revenues for the first quarter of 2021. The SBA will presume that BobCorp is affiliated with Google, even though Bob is almost certain to say, “but Google has no idea that they’re my only major customer!” Perhaps Bob will be able to rebut the presumption of affiliation, though in my experience I’d say the odds are slim. The economic dependence presumption applies even if the entity responsible for 70% or more of a company’s revenues doesn’t know that they’re the company’s chief customer. 4. “Putting Your Spouse in Charge” May Not Prevent Affiliation Business owners who intuitively understand that affiliation may arise if the same person controls two companies often propose what undoubtedly seems like an elegant solution: “well, I’ll just put my spouse in charge of the other company!” Seriously, I have heard this one a lot over the years. I’m no marriage counselor, so I can’t comment on the fact that plenty of spouses appear ready, willing and able to be “put” in nominal control of various contractors. But the fact that I’ve heard this one a lot means that the SBA has too–and it has developed a rule to address affiliation between companies controlled by spouses or other close family members. Under the so-called “familial relationships” affiliation rule, 13 C.F.R. 121.103(f)(1), “firms owned or controlled by married couples, parties to a civil union, parents, children and siblings are presumed to be affiliated with each other if they conduct business with each other, such as subcontracts or joint ventures or share or provide loans, resources, equipment, locations or employees with one another.” The presumption doesn’t apply when the close relatives truly aren’t involved in one another’s businesses. But, in my experience, many business owners who float the notion of putting a spouse in charge are thinking of the spouse’s role as more of a figurehead to allow the business owner to evade the affiliation rules. That’s a tough sell when it comes to the SBA that there is no affiliation. 5. Ownership Below 50% Can Create Affiliation Many business owners intuitively understand that someone who owns 50% or more of a company may control it for purposes of the SBA’s affiliation rules. (Affiliation, at its heart, is the question of common control or the power to control). But those same business owners often believe that the opposite must also be true: that an ownership interest below 50% can never create affiliation. That, unfortunately, is a mistake. Let’s return to our fictional friend Bob, the 100% owner of BobCorp (and put aside Bob’s affiliation problem with Google for the time being). Assume that Bob also owns 49% of REPRos, a real estate investment company. Two other individuals own 25% and 24% of REPros, respectively. Does Bob’s 49% interest create an affiliation with BobCorp? Yes! Under the SBA’s “common ownership” rule, 13 C.F.R. 121.103(c)(1), a person who owns “a block of voting stock which is large compared to other outstanding blocks of voting stock, controls or has the power to control the concern.” And, of course, Bob’s 100% ownership of BobCorp means that Bob controls both companies. Presto, affiliation! Bob is probably saying, “but wait! Under REPros’ bylaws, unless one of the other two owners votes with me, I don’t have the power to make REPros do anything! How can I possibly be in control?” It’s a logical response, but SBA’s reply is, essentially, “we don’t care.” The SBA believes that someone must be in control of a company at all times, and because Bob’s ownership share is the highest, Bob is a better bet than either of the other owners. Control may also exist under 13 C.F.R. 121.103(c)(2) when multiple owners all own shares that are “equal or approximately equal” in size, such as four 25% interests. In fact, in one rather shocking case, an individual was found to control a company where he owned one share out of 120 because all the other owners also owned one share! *** So there you have it: five of the most common misconceptions I see regarding the SBA’s affiliation rules. While some of these rules are intuitive, others most certainly are not. For any company intending to qualify as a small business for federal government contracts, it is very wise to fully understand these rules and proactively take any necessary remedial steps before the SBA comes calling. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Five Things You Should Know: Common Misconceptions About SBA’s Affiliation Rules first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  19. In order to have a bid protest sustained, a protestor must have a reasonable chance of being awarded the contract if the protest succeeded. Often, this just means that the protestor’s own proposal must be acceptable to the awarding agency in the first place. What many contractors do not know, however, is that if intervening offerors would be in line for the award even if the protest was sustained, the protestor will not be considered an interested party by the GAO. The GAO came to the above conclusion in a June 10, 2021 decision, Gulf Civilization Gen. Trading & Contracting Co., B-419754 (June 10, 2021). In this case, the Defense Logistics Agency (DLA) had issued a request for proposals (RFP) for excess property management services, among other services, on December 15, 2020. Award for the RFP was to be on a best-value tradeoff basis, with factors of past performance and price. Past performance was “significantly more important than price” for this RFP. Gulf Civilization General Trading & Contracting Company (Gulf) submitted a proposal along with 25 others on the RFP. The DLA ranked the offers by price at first, ranking Gulf’s proposed price twelfth. Another company, Asahi, submitted the second lowest price. After evaluating the offerors for past performance, the DLA determined that Asahi had a substantial confidence past performance rating, the highest possible confidence rating. As Asahi had proposed the second-lowest price as well as having a top past performance rating, the DLA decided it was unnecessary to consider the past performance of the remaining offerors and awarded the contract to Asahi. Gulf filed a protest thereafter. Gulf’s protest argued the award was improper for multiple reasons. The GAO addressed two of them: That the DLA had failed to conduct a price realism evaluation, and that the DLA’s decision to evaluate the past performance of only the two lowest-priced proposals under the RFP was improper. The GAO rejected both arguments, finding them to contradict the express terms of the solicitation and to be untimely. The GAO then dismissed the remainder of Gulf’s arguments by stating that Gulf was not an interested party, and so even if its arguments were correct, it didn’t matter. Only interested parties may protest a federal procurement, and only protestors that are “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract” are interested parties. 4 C.F.R. § 21.0(a)(1). “Determining whether a party is interested involves consideration of a variety of factors, including the nature of the issues raised, the benefit or relief sought by the protester, and the party’s status in relation to the procurement.” “In a post-award context,” the GAO explained, “we have generally found that a protester is an interested party to challenge an agency’s evaluation of proposals only where there is a reasonable possibility that the protester would be next in line for award if its protest were sustained.” “In this regard, we have explained that where there are intervening offerors who would be in line for the award even if the protester’s challenge was sustained, the intervening offeror has a greater interest in the procurement than the protester, and we generally consider the protester’s interest to be too remote to qualify as an interested party,” the GAO continued, citing HCR Constr., Inc.; B-418070.4, May 8, 2020. In this case, the DLA had responded to Gulf’s protest arguing that two other proposals demonstrated the relevant experience for the RFP and had received favorable customer evaluations. Although the GAO normally would not consider such an argument as the agency hadn’t formally concluded those proposals would receiving the best rating, it still concluded Gulf “failed to reasonably establish that it would be next in line for award” if its protest was sustained. Recalling a then-recent Federal Circuit case , the GAO noted that “to succeed in showing that it has a direct economic interest to be an interested party, a protestor must make a sufficient showing that it had a ‘substantial chance’ of winning the contract.” To demonstrate this “substantial chance”, the protestor not only must sufficiently challenge the eligibility of the awardee, but also intervening offerors. Here, the GAO concluded that Gulf failed to show the nine other offerors with lower prices lacked proper standing for award. “Specifically, the agency provided the protester with sufficient information upon which it could–and should have–challenged its relevant standing with respect to the intervening offerors. Specifically, DLA’s agency report disclosed the identities of the nine intervening offerors, as well as produced the complete past performance proposal volumes and past performance questionnaires for at least two of the intervening offerors.” As Gulf knew there were other offerors with lower proposed prices and that two of them demonstrated substantial past performance, it failed to show it had a substantial chance at award by arguing any flaws with the evaluation of intervening offerors. While the rule held here isn’t necessarily new (A similar finding was made in Automated Power Sys., Inc., B-246795 (Feb. 20, 1992)), we do find the application of the rule a bit concerning. While Gulf wasn’t the lowest priced offeror, it wasn’t the highest priced offeror like in Automated, it was middle of the pack. Further, the GAO edged towards performing an evaluation of other offerors on the DLA’s behalf by saying the two other offerors that demonstrated relevant experience basically means they would be in line for award before Gulf. It is fair that a protest for an offeror that has no chance anyways can be dismissed, but this rule seems to suggest that a protestor must show with a high degree of confidence that it would win, not merely a reasonable possibility that it would win. This is an additional burden on protestors that could make it more difficult to challenge agency decisions, which already is quite difficult to begin with. Planning on submitting a bid protest and unsure what to do? 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: Protestors Must Show Intervening Offerors Would Not be in Line for Award to be Interested Party first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  20. Friday marked a new federal holiday for Juneteenth. Juneteenth commemorates the end of slavery by marking the day enslaved people in Texas learned they were free. This is the first new federal holiday since first holiday to be approved since Martin Luther King Jr. Day was established in 1983. Many government agencies were closed on Friday and so we bring this week in review a little later due to the holiday. As we recognize this new national holiday, here’s some other notable news in the federal government. Requests for Nominations: Council on Underserved Communities [FedReg] SBA Announces Funding Competition to Organizations Providing Federal Procurement Training to Veteran Entrepreneurs [SBA] Government’s Contract Spending Reached Record High in Fiscal 2020 [NextGov] Former CEO Sentenced for Defrauding Multiple Federal Agencies [DOJ] GSA set to alter cloud buying landscape with new policy [FedNewsNet] Scanning military records now will improve disability claims process later [FedNewsNet] DOD says goodbye to its temporary teleworking platform used by millions [FedScooop] Cyber EO response will involve leaders from every agency [FedScoop] The post SmallGovCon Week In Review: June 14-18, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  21. For SDVOSBs and VOSBs, June 16, 2016 was a monumental day. That morning, the U.S. Supreme Court issued its unanimous decision in Kingdomware Technologies, Inc. v. United States, holding that the VA must follow the law by putting “veterans first” in VA contracting. Koprince Law LLC was honored to submit an amicus brief to the Supreme Court supporting Kingdomware, and my colleagues and I were thrilled with the Court’s 8-0 decision. Click here to check out my post from June 16, 2016 proclaiming “Victory!” for SDVOSBs and VOSBs in this watershed case. The Kingdomware decision didn’t (and couldn’t) solve every problem that some SDVOSBs and VOSBs have had with VA’s contracting practices, but five years later there is no doubt in my mind that the Court’s decision has been the driving force behind a large increase in VA’s SDVOSB and VOSB contracting. Happy anniversary! The post Happy Anniversary, SDVOSBs: The Supreme Court’s Kingdomware Decision Was Five Years Ago Today first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  22. Intervening in a GAO bid protest can be an important way to protect a federal contractor’s award. But when can you and should you intervene? Here’s how this might come up. As a federal contractor, you work hard to submit the best proposal you can, and then find out you win the award. A few days after, you find out you’ve been protested as part of a GAO bid protest. What are your options for responding to such a protest? Below, I’ll discuss the five things you should know about intervening in a GAO bid protest. Intervene to monitor the bid protest and protect an award. When a protest is filed, an intervenor has the right to review all pleadings in the case, get admitted to a protective order (through an attorney), and file pleadings in the case. So, intervening is a way to monitor how the agency is defending its award to your company. In most cases, the agency will vigorously defend the award, but it can be helpful for the awardee to have its counsel involved as well. 2. Who can intervene? The awardee of a procurement has the right to intervene. The GAO rules state that an intervenor is “an awardee if the award has been made or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.” 4 CFR § 21.0. GAO will generally always allow the awardee to intervene. If you’re not the awardee, you generally cannot intervene. 3. An intervenor, through an attorney, can get access to agency documents and other protected information. Just like the protester, the intervenor can, through counsel, be admitted to the GAO protective order. Once admitted to the protective order, the intervenor’s counsel can view source selection information such as how the agency came to its evaluation and award decision and potentially to view proposal information from the protester. This allows the intervenor to submit arguments to rebut any allegations set forth in the protest. 4. An intervenor can file pleadings. An intervenor can file pleadings in the GAO bid protest. One common pleading is requesting dismissal of the protest. A request for dismissal, if granted by GAO, can result in the protest going away quickly without reaching a decision. A common ground for dismissal is that the protest is untimely, such as if the protest was filed more than 10 days after the time when the protester came to know about the basis for the arguments made in the protest. In some cases, the intervenor can file its own motion to dismiss, or join in with the agency’s motion to dismiss. In addition, the intervenor is allowed to file comments to highlight and bolster agency arguments made in the agency report. 5. The intervenor can work with agency counsel. In some cases, the intervenor can cooperate with the agency counsel to have a coordinated strategy against the protest. Even if the intervenor’s pleadings are relatively limited, the intervenor can highlight and enhance the arguments made by the agency. Working with agency counsel can also mean discussing strategy in responding to the bid protest and finding out what the agency counsel thinks about the protest. Intervening in a GAO bid protest is not required. The agency will defend the award against the protest (assuming it doesn’t take corrective action). But intervening gives the awardee a seat at the table and the ability to monitor and file pleadings in the case. If it’s an important award that is protested, seriously consider whether an intervention may be be beneficial. Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Five Things You Should Know: GAO Bid Protest Interventions first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  23. The Government Accountability Office (GAO) has offered participants in the U.S. Small Business Administration’s (SBA) 8(a) Business Development Program the opportunity to tell Congress about their views and experience in the program. Currently, GAO is working on its report regarding the 8(a) Program’s eligibility thresholds. In GAO’s own words, these reports and testimonies serve to provide “Congress, executive agencies, and the public timely, fact-based, non-partisan information that can be used to improve government and save taxpayers billions of dollars.” As such, GAO is actively seeking 8(a) business owners willing to participate in virtual discussion groups about the 8(a) Program. The National 8(a) Association‘s announcement of this opportunity says: “Understanding and reporting your perspectives on the program is essential to GAO’s ability to provide Congress with an accurate, complete and useful report.” The announcement further explains: GAO is seeking the perspectives of 8(a) business owners on the program’s eligibility thresholds. If you are an 8(a) small business owner, GAO is looking for business owners such as you to participate in virtual discussion groups to discuss your reasons for getting 8(a) certified, your experience with bidding for and winning federal contracts, your thoughts on the updated eligibility thresholds, and other concerns related to 8(a) eligibility you may have. We plan to hold these discussion groups between June 16 and July 2. The announcement also discusses the manner in which GAO will use this feedback–and assures 8(a) business owners it will be kept confidential, stating: The feedback you provide during the discussion group on your experience with the 8(a) program and lessons learned will be discussed in our report to Congress. Your feedback will be reported in aggregated form and no individual names or business names will be used. During the discussion group, we will not ask you to share any business strategies that you feel are proprietary or give your business a competitive edge. While the virtual discussion group event will be recorded, the recording will be used for transcription purposes only and will be deleted thereafter. In the unlikely event that it is requested, Congress or a court may compel GAO to provide information included in audit documentation such as the transcript. If you are an 8(a) business owner and are interested in participating in GAO’s virtual discussion group, which is currently scheduled to be held sometime between June 16 and July 2, GAO encourages you to reach out directly to 8adiscussiongroup@gao.gov or to call (202) 512-7975 to speak with Peter Kramer, a GAO Analyst assisting with this opportunity. Questions about this post? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GAO Seeking Feedback from 8(a) Firms first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  24. Happy Friday! It’s been a busy week in federal government contracting news. Among the notable announcements, Federal agencies are staffing up and a new IRS web app has been announced. The Treasury Department laid out its updated vision for its financial management shared services offerings and some companies are considering opting out of working with the Defense Department because of the cost of the Cybersecurity Maturity Model Certification program. Have a great weekend. As agencies rebuild staff capacity, OPM finalizes new rehiring tool for former employee [FedNewsNet] Memorandum for the Heads of Executive Departments and Agencies [Whitehouse] Some companies may choose not to work with DoD because of CMMC [FedNewsNet] IRS procurement shop develops web app to predict contract spending [FedNewsNet] Federal Acquisition Regulation: Application of Micro-Purchase Threshold to Task and Delivery Orders [FedReg] VIEWPOINT: The Pitfalls of Factoring in Security and CMMC Costs [NatDefMag] Biden administration details its vision for agency reopening, post-pandemic telework [FedNewsNet] GovExec Daily: Staffing at the IRS and the Biden Budget [GovExec] Former Managers at Major Property Management Firm Plead Guilty to Defrauding U.S. Air Force [DOJ] The post SmallGovCon Week in Review: June 7-June 11, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  25. Sometimes, task force meetings are held just for the sake of having meetings. However, on June 2nd and 3rd the Interagency Task Force on Veterans Small Business Development (IATF) and Advisory Committee on Veterans Business Affairs (ACVBA) met to discuss important issues facing small businesses. This shed much needed light on the issues fast approaching and what steps the SBA needs to take. The main topic of discussion was the pending CVE transfer. The transfer, as I soon found out, is deceptively complex. In a separate point, SBA noted that the Biden Administration announced it will use the purchase power of the federal government to make more awards to disadvantaged businesses, raising the target from 5% to 10%. The star of the show, however, was the CVE transfer. So, what does this mean for you? In 2020, we blogged about the plan to transfer CVE from the VA, to SBA. The 2021 National Defense Authorization Act (NDAA), whose Conference Report noted this seismic shift from the VA to the SBA. The change does make sense, as it will have the result of keeping all program certifications under one roof at the SBA. However, unlike the other SBA programs, the VA keeps extensive, confidential, and sensitive information on each of these Veterans. The NDAA mandated that the transfer occur two years after it was signed. That means the transfer will occur by January 2023. After the transfer is complete, CVE will be abolished. While seemingly a long way off, if the integration of beta.SAM is indication, there will be a lot to iron out between now and then. The main concern I found throughout both task force calls was figuring out who will be responsible for what. From payment, to oversight, to procedures, to access, task force groups are currently working through how and what responsibility to transfer. Breathing a sigh of relief for all people who confuse “certification” and “verification” between SBA and CVE, the “verification” term appears to be on the way out. Although the confusion will not be going away any time soon, as veterans will still need to verify their status with the VA until after the transfer. However, it is good to know that, when we are talking about small business programs, certification will be the operative term after transfer is finalized. The first topic of discussion is how will the SBA gain access to the information it needs to verify a veteran owns a business? What information will the SBA gain access to? Will the SBA have access to all the veterans information, including medical/mental health/service records? Veterans both in–and out of–service hand over countless amounts of sensitive information to the VA on a daily basis. Service, medical, mental health, and financial information is all held by the VA. In order for the SBA to certify a SDVOSB, the SBA needs access to relevant records for its review. The public comment section revealed keen interest in safeguarding veterans information. How will this be resolved? The VA informed the task force that it has groups running the pros and cons of each potential avenue right now. It does not appear there is a preferred method at this time. My guess is we will have direction by the end of the calendar year as to which way it intends to go. I am in the camp that the less information that is transferred, the better. That would mean allowing the SBA to request access to a specific veterans information, and then have the VA make that information available to the SBA through a login. This would limit blanket access or the risk of having veterans’ information contained on multiple servers. With all things, how the money flows is front-of-mind for those making decisions. Currently, CVE operates out of the Supply Fund authorized by 38 U.S. Code § 8121(a). Because verification is required for SDVOSB and VOSB participation in VA contracts, utilizing the supply fund is considered necessary. Once this shifts to the SBA, it is unclear whether the supply fund could still be utilized. I suspect that either a re-work of this statute, or a more expansive interpretation, including certification as a necessity, will be found. While this is a a small piece of the overall picture, it is unlikely the SBA will take on the cost without a source for the funds. The transfer specifically will not include transferring any employees, which makes funding even more critical for staff, training, and costs of certification. Suffice it to say, there are still major logistical gaps in the proposed change. Throw in a new administration and new leadership, and the project has only recently left the starting gates. We will stay tuned for additional updates and keep readers apprised. We appreciate the transparency of these agencies and SBA Administrator Guzman for taking the time to shed light on these issues. We look forward to future discussions, and will bring these to you when we receive additional details. Questions about this post? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Recent Task Force Meeting Underscores Challenges Facing SDVOSB Transfer from VA to SBA first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
×
×
  • Create New...