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Yet another beautiful Spring Friday for us at SmallGovCon! And you guessed it, it’s time for your week in review. As the flowers continue to blossom all around us, so do the partnerships between agencies (such as GSA and DHA). And as allergies are reaching an all-time high for many, so too is the government’s spending on AI and other technology solutions and innovation! We’ve included some fascinating articles on these topics, and many others we think you will enjoy. Have a wonderful weekend! Federal gov spending on AI hit $3.3B in fiscal 2022: study [FedScoop] RPA reducing the burden on DHS contracting officers [FedNewsNet] No, DOD didn’t contract for COVID research before pandemic [APNews] GSA and DHS formalize partnership to promote sustainability [GSA] General Dynamics, SAIC continue battle over $95M contract [WashTech] Construction Company Owner Sentenced to 78 Months in Prison and Ordered to Pay Nearly $1 Million in Restitution for Rigging Bids and Bribing a Public Official [DoJ] RPA reducing the burden on DHS contracting officers [FedNewsNet] Can you launch a govcon startup during a pandemic and thrive? Yes – just ask Iberia Advisory [FedNewsNet] Air Force Opens Solicitation for Geospatial Service Recompete [FedNewsNet] GSA Updates US Government Websites to Enhance Online Service Delivery; Robin Carnahan Quoted [ExecGov] The need for reform in federal procurement and acquisition [FedNewsNet] Two reports examine financial health of defense industrial base and speed to adopt innovative technologies [FedNewsNet] MyGovWatch Study Reveals 38% of NAICS Wrongly Assigned to Federal Bids [MyGovWatch] The post SmallGovCon Week in Review: April 17-21, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Here in Kansas, it is certainly starting to feel like thunderstorm season–and one of my favorite seasons, I might add. But over in D.C., some may say it is starting to feel like protest season! That said, anyone familiar with the protest process at D.C.’s Government Accountability Office (GAO) is probably also quite familiar with the strict timeliness rules GAO applies to such protests. And frankly, even for the seasoned GAO protesters, a refresher on the timeliness rules can be quite beneficial–especially given the answer to when a certain type of protest is due is not always an easy calculation. So, let’s take it back to the basics and run through some of those rules here. Indeed, GAO’s protest rules set forth strict filing deadlines, which are most appropriately split into the following two categories: protests to a solicitation’s terms and everything else. Notably, you might also have heard GAO protests discussed as either: pre-award protests or post-award protests (and there is another recent Back to Basics blog focused on pre-award protests here). While that is certainly a fair way to categorize GAO protests generally (i.e., you are either protesting something that happens before the final award/awards or after), it is not the schema I recommend relying on when it comes to GAO’s timeliness rules–as it is simply not the most accurate way to divide up GAO’s two main overarching timeliness rules (for reasons you will see as we dive into the rules below). So, for purposes of this blog and GAO’s timeliness rules, we will stick with the safer (albeit more vague) categorization of protests to a solicitation’s terms and everything else. The good news is, both categories of GAO’s timeliness rules can be found under the same time for filing regulation. GAO Protests to Solicitation’s Terms The first section of the regulation discusses the protest to a solicitation’s terms. Those are generally described by GAO as: “[p]rotests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals[.]” And GAO’s timeliness rules require that such protests “shall be filed prior to bid opening or the time set for receipt of initial proposals.” This protest timeliness rule does add, however: In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation. And if a protest to a solicitation’s terms doesn’t quite fit into either of those situations, the rule also provides for one more potential situation, as follows: If no closing time has been established, or if no further submissions are anticipated, any alleged solicitation improprieties must be protested within 10 days of when the alleged impropriety was known or should have been known. So, to sum up the timeliness rule for protests to a solicitation’s terms, there are really three situations with three different deadlines: Situation One: Protests of an issue apparent in the initial solicitation–due by the time of bid opening or proposal deadline. Situation Two: Protests of an issue that becomes apparent in a subsequent solicitation document (often an amendment, incorporated Q&A, etc.)–due by the next closing time for proposals. Situation Three: Protests of a solicitation issue where there is no established closing time for proposals or there won’t be any further proposal submissions–due within 10 days of when the issue became (or should have become) known to the protester. A quick note here, the term “should have known” might be one that stuck out in reading the rules above–and rightfully so. It is not easily defined, but is rather quite fact specific. And frankly, going into the details of GAO’s history of holdings regarding “should have known” is beyond the scope of this basics blog. So, for now, just think of “should have known” as meaning the protester had information available to them that a reasonable person would have used to identify the protestable issue at that time (here is past blog on one GAO case discussing the issue). GAO Protests to Everything Else The other category of GAO protest–everything else–does indeed cover post-award protests. But that is certainly not all it covers, as it may also include protests regarding pre-award eliminations, phase-based eliminations, established competitive ranges, and oh so many more. Also, this timeliness rule is expressly defined by GAO as a catch-all. Indeed, GAO’s timeliness rules merely call these: “[p]rotests other than those covered by” the section of the timeliness regulation for protest to the solicitation’s terms (discussed above). And GAO says this type of protest shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, and which does not involve an alleged solicitation impropriety covered by [the pre-award protest timeliness] section, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held. So, crystal clear right? Don’t worry, we will unpack this one a bit, just as we did in the first section, here in a minute. But first, another quick note here: if you are newer to the federal procurement world and currently asking yourself what on earth a “debriefing” is–or if you are asking the slightly more complex question of when a debriefing is required (and/or how to timely request one), you can read yet another Back to Basics blog all about debriefings here. [Spoiler alert for the latter questions, those answers will generally depend on what part of the Federal Acquisition Regulations (FAR) the procurement is being conducted under and what your solicitation and/or notice of award says in that regard.] So, to sum up the post-award/everything else protest timeliness rule: generally, such a protest would be due within 10 days of the day you knew/should have known of the protestable issue. But if the procurement is one where a debriefing is both required and timely requested, that may change things a bit. So why the vague language here–when I am supposed to be making the rule clearer for you? Well, that is because the timeliness rules for protests that fit into the latter category here are intensely fact specific, and we could (and probably will at some point) do an entire blog just on that topic. But in a nutshell, the question will usually come down to whether (and to what extent) the protestable issue was known/should have been known from any type of pre-debriefing notices of award/unsuccessful offeror/elimination/etc. And this analysis may often come down to a balancing of risks for the protester. On one hand, such a protest filed before the debriefing (where the issue is covered in the debriefing) runs the risk of being dismissed as premature–but generally, without prejudice (meaning you could simply file again after the debriefing if the issue isn’t resolved therein). On the other, such a protest filed within 10 days after the debriefing (where the issue was potentially identifiable earlier) runs the risk of being dismissed as untimely–meaning the right to protest that issue would be gone. Again, we could discuss this all day, and we won’t (but if you are debating this issue/balancing these risks for your own protest, promptly talking to an expert is certainly a good idea). So, those are the two main types of GAO protest timeliness rules. But for the sake of being thorough, I will briefly note three more items covered by GAO’s time for filing regulation–and a final note regarding stays of performance/award. Additional Items Covered in GAO’s Time for Filing Regulation First, the regulation separately addresses situations where an agency-level protest is timely filed, and the protester wishes to subsequently protest the issue at GAO. Those rules are a bit unique and I won’t cover them here, as they are outside the scope of this blog (but for some information on that scenario, check out these prior blogs, found here, here, and here). Second, the regulation expressly gives GAO the right to dismiss untimely protests, and it puts the burden on the protester to establish timeliness. It states: Protests untimely on their face may be dismissed. A protester shall include in its protest all information establishing the timeliness of the protest; a protester will not be permitted to introduce for the first time in a request for reconsideration information necessary to establish that the protest was timely. But I do want to note the use of the word “may” in this quote–as it brings me to the final item covered in GAO’s time for filing regulation. Though we rarely see GAO apply this exception, the regulation does conclude with the following: “GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest.” Again, this is not something wise to rely on when deciding when to file a GAO protest. But it is still important to note the existence of this exception, as it has the potential to save an untimely protest where GAO finds good cause or significant justification to do so. Stays of Performance Last but not least, GAO’s time for filing regulation does not speak to stays of performance or award (and I will not go into the details of that topic here either). But I would be remiss to not at least note in this blog that a separate rule found in the FAR covers the requirements for agencies to stay an award or performance of a contract in response to a timely-filed protest. Importantly, if a stay is something the protester hopes to impose, section (f) of this rule should be read very carefully–as it imposes a shorter, five-day filing deadline, on the protester in some situations. But the rule also explains that the right to request a stay of performance or award doesn’t always guarantee one will be imposed either. * * * If the length of this “basics” blog didn’t tip you off, let me tell you now: knowing when to file a GAO protest is not always a simple calculation of days (funny enough, even the word “days” is separately defined in another section of GAO’s bid protest regulations). And the ramifications of not knowing the timeliness rules can be pretty severe. So, knowing your timeliness rules is key. Questions about this blog? email us at info@koprince.com Need legal assistance? 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 Back to Basics: GAO’s Protest Timeliness Rules first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Typically, agencies will provide a handful of evaluation factors, sometime more, in a solicitation. Common evaluation factors are technical, past performance, and cost. A recent protest decision looked at a solicitation that contained separate factors for 1) offeror’s technical capability and 2) staffing and management approach. The question was, can an agency combine its evaluation for two different factors? If it does mix the two evaluation criteria, is that enough to sustain a protest? In Spectrum Healthcare Resources, Inc., B-421325 (Mar. 21, 2023), GAO reviewed a protest by Spectrum (or protester) of award to Dentrust Dental International (Dentrust or awardee) of a Federal Emergency Management Agency (FEMA) contract for medical and behavioral health services. The solicitation sought “medical professionals to provide Medical and Behavioral Health Services to FEMA employees” for services like “occupational health center services, medical employability and fitness for duty consultations, immunizations and travel medication.” There were four evaluation factors: (1) technical capability; (2) staffing and management approach; (3) past performance; and (4) price. FEMA rated Dentrust higher on technical capability and past performance than Spectrum and Dentrust was cheaper. Plus, “the strengths that Spectrum provides in [staffing and management approach] do not warrant or justify” Spectrum’s higher price. For Technical Capability, the Solicitation required information “detailing their EXPERIENCE by addressing” five topics, including “deploying hundreds of medical staff capable of safely providing medical and behavioral health services to dispersed locations within a 96-hour period”. Spectrum got two weaknesses: “The vendor did not adequately outline how they can deploy the medical personnel/labor categories (except nurses) within the 96-hour timeframe outlined in the PWS.” “While the vendor indicated on the chart on pg. ii that it can deploy behavioral health staff within 96 hours, the proposal does not illustrate how it plans to do that and how it has previously met that timeframe.” Under GAO precedent, an agency’s evaluation must be “consistent with the solicitation’s evaluation criteria,” and this makes common sense. Why even have criteria and a supposedly level playing field if an agency doesn’t have to follow them. To review evaluation criteria, GAO will look at “the solicitation as a whole and in a manner that gives effect to all of its provisions. “This decision rests on the specific evaluation language for the technical capability factor, on the one hand, versus the staffing and management approach, on the other. Here, as part of the technical capability factor, offers were to detail “their EXPERIENCE” and requiring offerors to use “specific examples that are verifiable” from up to five reference contracts in describing their technical capability. Additionally, FEMA ignores the solicitation’s explanation that “[m]ore weight may be given to experience serving as the prime contractor” when evaluating an offeror’s technical capability. Read together, the instructions and evaluation criteria indicate that offerors were limited to describing their technical capability through the lens of verifiable past experience. Thus, the agency’s argument that offerors “without experience in certain areas were not excepted from showing their capability” is inconsistent with the terms of the solicitation. GAO interpreted the Solicitation as requiring “that while an offeror’s technical capability was to be evaluated based on its verifiable experience, under the staffing and management approach the agency specifically would assess an offeror’s plan to achieve the objectives of the IDIQ SOW.’” So, experience for the first factor and a plan for the second factor. Under this interpretation, GAO found unreasonable the agency’s assessment of the two weaknesses under the technical capability factor for Spectrum’s failure to address how it would deploy personnel–i.e., its “plan to achieve the objectives” of the SOW, as the solicitation required the agency to assess offerors ability to meet the requirements of the SOW–or how offerors planned to perform–under the staffing and management approach factor. The agency also conflated the “the evaluation criteria under the technical capability and staffing and management approach factors” in responding to Spectrum’s challenge of 5 other weaknesses. For instance, the Spectrum’s proposal “notes that it provides FEMA with weekly reports under its current contract and that [Spectrum’s teaming partner] provides special reports within three business days of request, it does not address how it proposes to provide the daily reporting requested in the PWS.” GAO found this again mixed the experience portion of the technical factor with the planning portion of the management factor: “the evaluators did not understand that the evaluation of technical capability was to be in the context of an offeror’s past experience with the factor’s identified topic areas.” GAO recommended reevaluation of the proposal under the technical capability factor. This protest shows that agencies must keep their evaluation criteria straight. They cannot take aspects of one evaluation criteria, and apply them to evaluation for a distinct evaluation factor. Questions about this post? Email us. Need legal assistance? call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GAO: Agency Can’t Combine Evaluation Factors After the Fact first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

I hope you will join Nicole Pottroff and I as we discuss the benefits of the SBA’s Mentor-Protégé Program. We will be covering the program’s eligibility requirements, application process, options such as forming a special Mentor-Protégé Joint Venture and much more. Hope to see you there! Register here. The post Govology Webinar: Still A Game Changer: The SBA Mentor-Protégé Program (2023 Update), April 27, 2023, 1:00pm EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday, Readers! Time for your week in review. The spring trees are in full bloom here in Lawrence, Kansas this week and they couldn’t be more beautiful! Other than allergy sufferers, we certainly are enjoying the beauty of spring and hope you are as well. The federal government contracting world is also very active at this time. There was a lot of buzz this week surrounding the Defense Department and how it can immediately modernize acquisition in addition to a release of the department’s finance study showing how large versus small federal contractors are faring. We’ve included those articles, and a few others we hope you find of interest, below. Enjoy your weekend! Steps to take now for defense acquisition reform [FedNewsNet] CISA’s updated zero trust model aims to help agencies walk before they run [FedNewsNet] USDA plots departmentwide cloud move with STRATUS contract [FedScoop] Lawmakers demand VA fire substandard staff faster [FedTimes] Five scenarios for the FY24 defense budget [FedTimes] Software Acquisition: Additional Actions Needed to Help DOD Implement Future Modernization Efforts [GAO] Procurement trends in small business contracting [FedNewsNet] DoD Releases Defense Contract Finance Study [DoD] New Presidential Innovation Fellows will design lasting, impactful solutions for government services [GSA] A-76 has been dormant for 14 years; can it be, should it be revived? [FedNewsNet] DoD study finds big vendors flush with cash, but concerns in the supply chain [FedNewsNet] Who should staff the arsenal of democracy, feds or contractors? [FedNewsNet] How the approaching debt-ceiling crisis could hit contractors first [FedNewsNet] Government Contractors Indicted in San Antonio for Wire Fraud, Money Laundering [DoJ] The post SmallGovCon Week in Review: April 10-14, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Please consider joining me as I participate in a round table discussion with several APEX Accelerator (formerly PTAC) procurement specialists, hosted by Nick Bernardo, President & Founder of mygovwatch.com. We will be discussing resources available for federal government contractors and answering questions that you may have regarding federal government contracting matters. Please join us for this informative roundtable discussion. Register here. Hope to see you there! The post MyGovWatch Live: The B2G Roundtable Event: April 19, 2023, 1:00pm EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

A recent GAO case on protest costs looked at whether costs were reimbursable centered around whether a Buy American Act waiver was properly applied in the procurement process. As you likely know, the Buy American Act is something many contractors (especially supply and construction contractors) must deal with in their contracting process, and getting a waiver or an exception often may be critical to a proposal. This case arose from a protest seeking costs, but it is still a great opportunity for contractors to better understand the limits of a waiver or exception of the Buy American Act and GAO’s expectations surrounding such an action. In the events underlying Unico Mechanical Corporation – – Costs, B-420355.5, (Mar. 24, 2023), the Army initially awarded a contract to McMillen, LLC, but the award was protested by Unico Mechanical Corporation, alleging that the Army improperly waived the Buy American Act requirements, and improperly evaluated Unico’s proposal. After the filing of the Agency Report, Comments, and a Supplemental Protest, the Agency filed a Notice of Corrective Action, which led to the GAO case being dismissed, and Unico requesting costs related to the Bid Protest. The case being discussed here is basically the assessment of whether Unico is justified in receiving costs related to the bid protest that resulted in corrective action. GAO, when determining whether costs for a bid protest are reimbursable, must determine if an agency “unduly delayed taking corrective action in the face of a clearly meritorious protest.” Thus, GAO has to look at whether the protest grounds were so clearly correct or meritorious, that the Agency didn’t need to wait so long for corrective action. This leads to GAO often diving deep into the standards of the legal theories at issue, such as they did here with the Buy American Act. Thus, this case gives contractors and SmallGovCon readers a glimpse into what GAO expects of Buy American Act waivers and documentation. In the procurement process at issue in the underlying case, eventual awardee McMillen relied on the use of foreign materials for two 90 inch butterfly valves and one hydraulic power unit (“HPU”). McMillen asked for the Army to waive the Buy American Act for these specific items. Initially, the Agency denied McMillan’s request and, as expected, documented their rationale for the denial. Then during discussions, at the Agency’s request, McMillan submitted additional information in attempt to support its previously denied Buy American Act waiver request. However, the Agency did not document its analysis of this additional information, nor were there indications that such a waiver was granted to McMillen prior to their award of the contract. As GAO summarized it: “In short, the record demonstrates that the agency awarded a contract to McMillen knowing that McMillen’s proposal relied on foreign construction material, but without granting a Buy American Act waiver, and without documenting a determination that a Buy American Act exception applied.” Despite this, after McMillen was awarded the contract, the Agency issued a modification to the contract adding the butterfly valves and HPU to the list of material exempted from the Buy American Act requirements. GAO, when reviewing the record, noted that the procurement itself incorporated FAR 52.225-9, of the Buy American Act, which requires the use of domestic (i.e., American) construction material. But FAR 52.225-9 also contains certain exceptions that the contracting officer could apply if they determine that any of the specific exceptions listed could apply. In addition to these exceptions, contractors may request waivers of the Buy American Act prior to contract award, under FAR 52.225-10. McMillen, in its waiver request, argued that the cost of the domestic material was unreasonable, which under the waiver would mean that domestic manufacturer costs exceed the costs of acquiring those same materials from a foreign source by 20%. As part of this request for a waiver, contractors are expected to supply detailed information backing up their assertions, and for this specific waiver, include a “reasonable survey of the market.” There was at least one offeror who requested a waiver for butterfly valves stating that they were not available from domestic manufacturers at a reasonable cost. As such, the Agency conducted market research, contacting manufacturers, including the eventual protestor, Unico. The Agency discovered and documented that Unico and two other domestic manufacturers had indicated the ability to manufacture the butterfly valves in compliance with the Buy American Act. Accordingly, the CO documented that “there are sufficient resources existing to allow contractors to comply with the Buy American [Act] requirements” for the butterfly valves. Consequently, the solicitation did not list any Buy American Act waivers. McMillen, in its request for a waiver, only supplied a table discussing the lump sum price of the domestic material and foreign material, with no break down of the lump sum costs by supplier or item. Thus, the waiver was denied, and the CO documented the denial. The Agency then sent McMillen a negotiation memorandum requesting more information in support of its waiver request. McMillen responded with information about four additional foreign manufacturers of the butterfly valves and HPU, but no domestic manufacturers. Under the Buy American Act, if a contractor does not request, or does not receive, a waiver prior to submission of offers, then it must submit its request and supporting information with its offer, and if the CO does not grant a waiver, an agency can only evaluate offers based on the use of domestic material, only accepting offers based on foreign materials if the offer was revised during negotiations to meet domestic material requirements. There was no such record of the Agency granting McMillen’s waiver request prior to award, or that the CO determined a Buy American Act exception applied. Yet after award (surprisingly), there was a contract modification exempting the butterfly valves and HPU from Buy American Act requirements. GAO found that the Agency’s lack of documentation, as to the rationale for the eventual modification, the Agency’s documented knowledge of other domestic manufacturers that could meet Buy American Act requirements, and McMillen not looking at domestic manufacturers in its updated information, made it unreasonable for the Agency to waive the Buy American Act. As such, GAO granted Unico costs for this portion of their protest, as “a reasonable agency inquiry into Unico’s Buy American Act argument would have disclosed the lack of a defensible legal position” making Unico’s argument on these grounds “clearly meritorious.” As a note, the GAO did not find this standard met for the other aspects of Unico’s protest. While this case was technically focused on whether Unico’s reimbursement of costs was justified, upon review, it really is a roadmap for Buy American Act exceptions and waivers. If you find yourself competing for a procurement, and the Buy American Act is involved, then it may be fruitful to conduct methodical documented approaches for any sort of waiver, that takes into account the industry participants here in America. GAO has made it clear here that it expects agencies to scrutinize and document the rationale behind each waiver request. If contractors plan on arguing that there are no domestic manufacturers for an item at a reasonable cost, GAO has shown through this case that contractors must clearly show that industry participants in America cannot manufacture the item domestically, within the requirements of the Buy American Act. McMillen did not make this distinction clear in their documentation, while the Agency in their process did find some manufacturers that could possibly meet Buy American Act requirements. While the Agency here initially awarded McMillen, despite that they subsequently had to take corrective action, and GAO awarded the protestor fees for the protest. Also, contractors should keep in mind, that they are not the only ones looking at whether there are exceptions or possible waivers, Agencies themselves, through their COs, may be doing the same industry research looking for exceptions. If there are discrepancies between what the Agency finds, and what the contractor finds, there may be a waiver denial, or need for further documentation. Here, the protest process successfully shone a light on compliance with the Buy American Act. The Buy American Act and its different exceptions or waivers can be quite a thicket of regulations and hurdles for contractors. As such, waivers and exceptions often may be seen as one way to try to avoid these hurdles. But, any such waiver or exception request will require dedicated and determined analysis by contractors, as well as agencies, as GAO will expect extensive documentation and justification for any waiver or exception. If that is not present, a proposal or an award decision could be put in jeopardy. Questions about this post? Email us. Need legal assistance? 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 Buy American? Agencies Must Carefully Document Market Research for Domestic Preference Compliance, says GAO first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

SBA has released its proposed rule allowing for HUBZone appeals to go to the Office of Hearings and Appeals. Below are the key items from this proposed rule, and how it will affect potential and current HUBZone companies. SBA issued the final rule on April 10 and it will become effective on May 10. As we wrote about a few months back, the HUBZone appeals rule will allow appeals from adverse status determination protests for certified HUBZone small business concerns. The inclusion of HUBZone appeals was written into the National Defense Authorization Act for Fiscal Year 2022. Notably, there were no comments on the proposed rule, which we have additional details in our earlier post, but here are some key things to look out for. Be sure to check these rules closely if you are involved in a HUBZone protest and potential appeal. Timing: HUBZone “appeals must be filed within ten (10) business days after the appellant receives the protest determination.” Note that this is a different timeline than the 15-calendar day rule for size protest appeals found in 13 C.F.R. 134.304(a). Responses are due within 15 days after the appeal. Decisions should come within 45 days after close of record. Who may Appear? A protester may appear in the appeal and file a response. Effect of an Appeal. “[W]here an appeal is filed before contract award, the contracting officer must withhold award until the appellate decision is rendered, unless the contracting officer has determined that award and performance of the contract is in the best interests of the government.” For an appeal after contract award, a CO must merely “consider whether performance can be suspended.” Standard: Whether the protest “determination was based on clear error of fact or law.” This is the same standard as used in other OHA appeals, and can be tough to meet in some circumstances. Who decides the appeals? The judges at SBA Office of Hearings and Appeals will decide HUBZone appeals, rather than the Associate Administrator for Government Contracting and Business Development. OHA appeals for HUBZone status determinations will still not include an avenue for appealing a denial of a HUBZone certification application. It will be interesting to see if this appeal process has any substantive affect on the HUBZone program. Regardless, it will add transparency to the HUBZone protest process. Stay tuned for more updates as we start seeing HUBZone appeal decisions trickle in. Questions about this post? Email us. Need legal assistance? 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 Breaking: HUBZone Appeals Coming Soon! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday, Readers. We hope you have had a great week. It’s a beautiful day in Lawrence, Kansas and it should be a great weekend for Easter egg hunting if you are so inclined. We hope you can spend time with family and friends this weekend and enjoy the spring weather. There were some important announcements in federal government contracting this week including the continued saga of CIO-SP4 and anticipation over the Oasis+ contracts. You can read more about that and other federal government contracting news in the articles below. Enjoy the weekend. Does the military need a separate service for cyber? Some lawmakers think so; DoD isn’t sure [FedNewsNet] MAS pricing puzzles [FedNewsNet] Reforming federal procurement and acquisitions policies [Brookings] CIO-SP4: A tragedy, a comedy and a drama we couldn’t stop watching [FedNewsNet] Preliminary’ List for $50 Billion IT Contract Is 425 Companies [BlmLaw] Women’s History Month: Honoring Advancements In Entrepreneurship [Forbes] Maryland Woman Pleads Guilty to Conspiring to Defraud the Government [DoJ] Watchdog reprimands FDIC over management of AT&T telecom contract [FedScoop] Beyond lip service, these actions can help women secure federal contracts [TheHill] Will in-depth industry input stave off protests for GSA’s OASIS+ contract? [FedNewsNet] White House official touts digital training programs to bridge gap in AI procurement [FCW] Two Companies Agree to Pay $1.24 Million to Resolve Allegations of Fraud in Whittier Bridge/I-95 Improvement Project [DoJ] New rule could impose CMMC-like cyber requirements for civilian agency contractors [FedScoop] Tiffany Hixson: GSA Weeks Away From Issuing Final RFP for OASIS+ [ExecGov] NITAAC Faces New Round of Protest Amidst CIO-SP4 Award Announcement [MeriTalk] How to Obtain Surplus Property for Veteran-Owned Small Businesses [SBA] The post SmallGovCon Week in Review: April 3-7, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

In a recent size determination appeal, OHA confirmed that an offeror found technically unacceptable does not have standing to protest an awardee’s size under SBA’s regulations. As such, OHA denied the appeal and affirmed the Area Office’s size determination dismissing the size protest on such grounds. Ekagra Partners, LLC, SBA No. SIZ-6189, 2023 (Feb. 3, 2023), involved a Department of Commerce, Enterprise Services, solicitation for Commerce Acquisition for Transformational Technology Services (CATTS), 100% set aside for small business under North American Industry Classification System (NAICS) code 541519, Other Computer Related Services, with a corresponding size standard of $30 million. The solicitation anticipated multiple-award indefinite delivery, indefinite quantity (IDIQ) contracts with a 10-year period of performance. Upon receipt of the agency’s pre-award notice that Halvik (or Awardee) was the apparent successful offeror under the solicitation here, Ekagra filed a timely size protest with the contracting officer, alleging that the Awardee was other than small with annual revenues exceeding the $30 million size standard. As required by regulation, the contracting officer forwarded the size protest to the SBA’s Area Office. But the contracting officer also provided the Area Office with a “reference sheet” stating that “the protestor does not have an opportunity to be awarded as their proposal was Unsatisfactory.” Based on this information, the Area Office issued a size determination dismissing the protest based on lack of standing. In its dismissal, the Area Office cited the relevant SBA regulation, which states: For SBA’s Small Business Set-Aside Program, including the Property Sales Program, or any instance in which a procurement or order has been restricted to or reserved for small businesses or a particular group of small businesses (including a partial set-aside), the following entities may file a size protest in connection with a particular procurement, sale or order: (i) Any offeror that the contracting officer has not eliminated from consideration for any procurement-related reason, such as non-responsiveness, technical unacceptability or outside of the competitive range; The Appeal Ekagra (or Appellant) appealed the Area Office’s dismissal to SBA’s OHA, alleging that the Area Office had committed errors of fact and law in its determination that the Appellant lacked standing to protest the Awardee’s size. Specifically, the Appellant said the Area Office was required to suspend the size determination when five Government Accountability Office (GAO) and two Court of Federal Claims (COFC) bid protests challenging the same award were filed. The Appellant also claimed it was allowed to file its size protest because it was not notified that its proposal was found Unsatisfactory and that it was eliminated from competition until after the GAO and COFC protests were filed. According to the Appellant, SBA has a longstanding practice of requiring an Area Office to postpone any size protests once a bid protest challenging the solicitation is filed. The Appellant said, “SBA practice and OHA precedent is to stay size protest proceedings, when there is a pending GAO protest and when corrective action has the potential to alter the outcome of the source selection.” In support of its position, the Appellant cited to one of SBA’s proposed rules, which it felt demonstrated SBA’s intent to suspend a size protest once a bid protest is filed. The Appellant also cited OHA precedent for looking to a proposed SBA rule for clarity where the regulations were “ambiguous or silent” and where “the preamble and proposed regulation clarified known, pre-existing SBA policy.” So, the Appellant’s position was “based on OHA caselaw, SBA policy, and the proposed rule, the Area Office should have postponed the size protest the same day the bid protests were filed[]” because a decision in either the COFC or GAO protests could trigger a corrective action that could alter the pre-award list of apparent successful offerors. Additionally, the Appellant argued that the Area Office erred as a matter of law when it based its size determination on a mere assertion by the contracting officer rather than the entire record–citing the requirement that the Area Office’s decision must be based “upon the record, including reasonable inferences from the record” and must “state in writing the basis for its findings and conclusions.” As support, the Appellant relied on OHA precedent vacating an Area Office decision where OHA found the “area office based its decision solely on the CO’s vague statement.” The Appellant argued that the contracting officer’s statement in the instant case was “even more vague” than the cited precedent, and here, there was “no evidence to suggest the Area Office considered supporting documents[.]” The Awardee’s Response The Awardee maintained that the Area Office was correct in dismissing the size protest based on the evaluation conclusion that the Appellant’s proposal was technically unacceptable. The Awardee cited the same SBA regulation as the Area Office and OHA precedent for the assertion that “OHA’s interpretation of § 121.1001(a)(1)(i) has previously upheld area office determinations to dismiss protests for lack of standing when the concern was eliminated for technical unacceptability.” The Awardee said the Area Office was not required to postpone the size protest due to the pending bid protests, as OHA precedent on lack of standing did not require a stay pending resolution of the procurement related protest(s). Rather, the Awardee believed that the Appellant’s reliance on OHA precedent was misplaced, as OHA only requires a stay of the size protest where the agency initiates a corrective action–which was not the case here. The Awardee noted that, here, GAO had already dismissed all pending protests “leaving no possibility for corrective action before the GAO,” and the DOJ was currently defending the bid protests at COFC, with no indication of corrective action before the COFC either. According to the Awardee, the Appellant was merely overlooking the primary issue of whether it had standing to initiate its size protest. The Awardee said, “SBA regulations and OHA precedent do not provide for tolling of a size protest pending resolution of a procurement-related protest filed by a technically unacceptable protester based on a chance the agency may take corrective action.” Additionally, the Awardee argued that the Appellant was misguided when it relied on SBA’s rules for timing–rather than the rules for standing. According to the Awardee, the proposed rule the Appellant cited was meant to clarify the timelines of size protests, leaving SBA regulations on standing unaltered. Finally, the Awardee contested the Appellant’s assertion that the Area Office had made its size determination without evidence. According to the Awardee, the Area Office acted in good faith and properly relied upon the contracting officer’s representation of the underlying record–which was made “unequivocally” and without ” doubt or inconsistency.” The Awardee also raised OHA precedent arguing that an Area Office is allowed to dismiss a size protest based on lack of standing regardless of whether the protester was informed of its technical unacceptability. SBA’s Agency Comment During the appeal process, SBA filed an agency comment confirming that the proposed rule the Appellant cited was “an attempt to clarify when and how size protests are stayed in the SBA size protest process.” SBA’s explanation for the policy supported the Appellant’s stance, as SBA said, “if there is a pending parallel bid protest [,] the size protest should be stayed.” But because the GAO protests here had all been dismissed, SBA had to clarify whether the proposed rule extended to pending COFC bid protests. Again favoring the Appellant’s stance, SBA confirmed that “a COFC parallel bid protest is the functional equivalent [of] a GAO bid protest given the stated policy reasons by SBA for this type of stay.” Indeed, according to SBA, “a stay in a COFC protest and a GAO protest serve the same policy objective.” SBA did add that, to qualify for the mandated stay, “the parallel proceedings must be initiated prior to SBA issuing the size determination.” SBA added, “[f]or similar issues, SBA confirms that if the parallel litigation results in correcting the standing issue, then SBA will consider a future size protest and will start the clock for filing a new protest at the time the concern was notified of its standing.” OHA’s Decision OHA explained the rules at issue here, reiterating, “any offeror may initiate a size protest if the contracting officer has not eliminated [the offeror] from consideration for any procurement related reason, such as non-responsiveness, technical unacceptability or outside of the competitive range.” OHA also explained that it had “repeatedly held that offerors lack standing to initiate a size protest when it is eliminated from consideration for reasons unrelated to size (e.g., nonresponsiveness; technical unacceptability; outside the competitive range).” OHA said: Here, when asked whether Appellant was in the competitive range and considered technically acceptable, the CO informed the Area Office that Appellant did not have an opportunity to receive an award because Appellant’s proposal was unsatisfactory. Therefore, Appellant was eliminated from competition for reasons unrelated to size. The Area Office’s dismissal was supported by clear OHA precedent, which requires the dismissal for lack of standing for a protest filed by an offeror where the procuring agency has found the proposal to be technically unacceptable. Next, OHA addressed the Area Office’s reliance on the contracting officer’s statement. OHA distinguished the case the Appellant cited as one holding “that it was unclear whether that appellant’s proposal was technically unacceptable based on the CO’s statement.” But here, OHA found the contracting officer’s statement (that the Appellant’s proposal was technically unacceptable) was definitive, clear, and unequivocal. OHA added: Further, neither the Area Office nor OHA have jurisdiction over the conduct of the procurement and cannot entertain Appellant’s arguments over the finding that its proposal was technically unacceptable. I cannot say it was a clear error for the Area Office to accept and act upon that information, rather than to conduct its own investigation into the CO’s finding, an investigation the Area Office has no authority to conduct. Appellant’s argument the Area Office relied upon a conclusory statement is meritless. SBA does not evaluate proposals and make determinations as to whether a proposal is satisfactory. It is the CO’s job to draw those conclusions. As such, OHA found the Area Office did not err in relying upon the contracting officer’s statement here. OHA then considered the Appellant’s argument that OHA precedent and SBA policy required it to postpone the size determination until the resolution of all pending bid protests. OHA said, “SBA provided the Agency Comment and agreed that under the proposed rule, the Area Office may stay a size determination if the protestor provides proof of pending and concurrent COFC or GAO bid protest.” But OHA added: It is worth noting however, that SBA did not confess error on the part of the Area Office, and request a remand of the case, as it could, in order to conduct a new size determination. Further, SBA did not have the Area Director or any of the other SBA officials authorized to initiate a size protest do so. SBA thus does not appear to consider the Area Office in error in this case. OHA next addressed the Appellant’s reliance upon a proposed rule for the assertion that SBA was required to stay the size protest pending the outcome of any simultaneously filed GAO protests. OHA acknowledged SBA’s stance that “GAO protests are analogous to COFC protests because they both may require corrective action which could affect the apparent successful offeror.” But OHA said, “a proposed rule is not governing authority.” And OHA distinguished the case the Appellant cited as one that actually relied on the regulatory history of a final rule (rather than a proposed rule). OHA explained: Here, the Area Office is not mandated under any current authority to postpone size determinations pending GAO or COFC bid protests. It is the discretion of the Area Office to make that decision, and OHA lacks the jurisdiction to mandate a postponement. Appellant argues that SBA policy requires the stay it requests. But the Agency has not taken the opportunity afforded by this case to either request a remand or initiate a new size determination, in order to carry out such a policy. The Area Office, under the existing regulation, has the discretion to determine whether to stay the proceeding, and I cannot say that it was clear error for it to decline to do so. Thus, I cannot say it was a clear error for the Area Office to dismiss Appellant’s protest, rather than stay proceedings pending decisions in COFC and GAO. OHA also found the Appellant’s remaining arguments unavailing. Though the Appellant had maintained that the pending bid protests in COFC and GAO could lead to corrective action that could result in a new source selection decision–OHA explained that “a mere filing is no indication that these tribunals intend to order corrective action.” Finally, OHA said it did not matter whether an offeror was notified of its unacceptability, as “it is longstanding precedent that OHA does not confer standing upon those offerors who were found to be technically unacceptable, even if they had not received notice of that finding.” OHA concluded that the Appellant did not have standing to protest the Awardee’s size. OHA said the Appellant had not established that the size determination was “based upon any clear error of fact or law[,]” and therefore, OHA denied the appeal and affirmed the size determination. * * * OHA’s decision here exemplifies the deference OHA gives to the Area Offices and their size determinations. Even if the Area Office could have stayed the size determination pending the resolution of all bid protests (whether GAO or COFC), OHA was not about to require the Area Office to do so absent a final rule mandating it. Additionally, even where SBA issues an agency comment in a size appeal that seems to support the appellant’s position, OHA may still find ways around that. Here, for right or for wrong, OHA essentially said that SBA could have confessed error on behalf of the Area Office and requested a new size determination–but it didn’t. So SBA must not have believed the Area Office’s dismissal was improper. Questions about this post? Email us. Need legal assistance with a government contracting legal issue? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Technically Unacceptable Offeror Cannot Protest Awardee’s Size, Says OHA first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The Small Business Administration recently published a notice of an amendment to the Policy Directives for the Small Business Innovation Research (SBIR) Program and the Small Business Technology Transfer (STTR) Program on April 3, 2023. The intent of the amendment is to incorporate a template that federal agencies may use to request information from SBIR and STTR applicants that the applicants are statutorily required to disclose. The revisions will be effective May 3, 2023, unless the SBA receives significant adverse comments prior to the effective date. Not sure what the SBIR and STTR Programs are? I’ve provided a very brief overview below. Curious about the required disclosures? Read on to find out! Mile High View of SBIR and STTR SBIR and STTR share a mission, which is “to engage small business concerns to support scientific excellence and technological innovation through the investment of Federal research funds in critical American priorities to build a strong national economy.” Clear as mud, right? Thankfully, the goals clarify things a bit. The goals of SBIR and STTR are: Stimulate technological innovation; Meet federal research and development needs; Foster and encourage participation in innovation and entrepreneurship by women and socially or economically disadvantaged persons; Increase private-sector commercialization of innovations derived from Federal research and development funding; and Foster technology transfer through cooperative research and development between small businesses and research institutions. SBIR awards are made small businesses located in the United states, while STTR awards are made to small businesses partnering with nonprofit colleges, universities, and research organizations, or federally funded research and development centers. Since the focus here is on the changes to the SBIR and STTR regulations and not on the programs themselves, I won’t go into further detail. But if you are interested in learning more, SBA has a wealth of helpful information. Back to the Amendments Beginning in September 2022, all applicants for the SBIR or STTR Programs were required to disclose information about the applicants’ investments and foreign ties. Federal agencies were required to gather this information as part of its due diligence to assess security risks as required by the SBIR and STTR Extension Act of 2022. The agencies knew that the requirement was there, but there was a problem because there was no direction on how the agencies were meant to gather that information. Without a uniform way to acquire the information, SBA determined it would be more difficult to assess security risks posed by applicants. In response to that problem, the SBA set out to amend the SBIR and STTR Policy Directives to create a template to provide a uniform method of collecting the required information. The Notice includes details of a template that will be added to SBIR and STTR Policy Directives as Appendix III, which will provide agencies with a uniform method of assessing risky applicants based on foreign ties and investments. Appendix III includes definitions for covered individual, foreign affiliation, foreign country of concern, malign foreign talent recruitment program, and federally funded award. For example, the federal government is mainly concerned with what they call “foreign countries of concern,” which is defined as “the People’s Republic of China, the Democratic People’s Republic of Korea, the Russian Federation, the Islamic Republic of Iran, or any other country determined to be a country of concern by the Secretary of State.” And, because SBIR and STTR awards are federally funded, it is good to know what a federally funded award is defined as. “Federally funded award” is defined as “a Phase I, Phase II …, or Phase III SBIR or STTR award made using a funding agreement.” Appendix III also includes 8 questions that are aimed to determine whether an owner or covered individual of the applicant has a relationship with a foreign country or foreign country of concern, whether an applicant is party to a malign foreign talent recruitment program, and the nature of investments held by owners, officers, and covered individuals of the applicant. An example here is whether, during the previous 5-year period, the applicant or awardee had any technology licensing or intellectual property sales or transfers to a foreign country of concern. As mentioned briefly in the intro, there is a 30-day waiting period prior to these changes taking effect. If no “significant adverse comments” are received, the revisions to the Policy Directive will take effect on May 3, 2023. The Notice defined “significant adverse comments” as “comments that provide strong justification why the clarifying amendments to the Policy Directive should not be adopted as written or should be changed further.” Applicants for SBIR and STTR would do well to pay close attention to these new requirements, as they could affect future proposals. The US government, as in other areas, is looking closely at how foreign countries work with US small businesses. To view the Notice in its entirety, visit: Small Business Innovation Research Program and Small Business Technology Transfer Program Policy Directive, 88 Fed. Reg. 19704 (Apr. 3, 2023). Questions about this post? Email us. Need legal assistance with a government contracting legal issue? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post SBA Publishes Notice of SBIR and STTR Program Policy Directives Update first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Spring is upon us, and for many of us, it evokes thoughts of friendly weather, and new life. In the world of federal contracting, new life is often seen through the forming of new joint ventures. As most contractors and readers of this blog know, there are many requirements placed on a joint venture that intends to bid on set-asides, and most deal with the content of a joint venture agreement between the joint venture members. In a recent case, the SBA Office of Hearings and Appeals (OHA) reviewed a joint venture agreement and addendums. Through its decision, OHA sent a clear warning to the industry to complete and sign both the joint venture agreement and any addendums, and make sure to have all items completed and signed prior to proposal submission deadlines, at the latest, the date of final proposal revisions. In Focus Revision Partners, SBA No. SIZ-6188, 2023 (Jan. 31, 2023), a size appeal alleged that, among other arguments, an awardee didn’t complete its JVA and addendum on time, nor properly fill it out. As we discussed last year, joint venture regulations can be complicated, and often joint venture agreements may need project specific addendums to ensure compliance with each project specific requirement found in the regulations (all the more reason you should check out our handbook on Joint Ventures, released in fall 2022!). But what happens if you don’t fill out the addendum correctly, or even execute it correctly? OHA’s decision in Focus Revision addresses that very issue. In this case, FEMA released a 100% small business set-aside RFP for FEMA’s Risk Mapping, Assessment, and Planning program. A mentor-protégé joint venture, NWI&T Atkins SB JV, LLC, bid on and was initially awarded the contract. After award, a size protest was filed by Focus Revision Partners, claiming that the awardee’s MPA was not properly updated after a name change of one of the protégé making the MPA invalid, and that the JVA itself is deficient, as it likely has an employee of the mentor as the Responsible Manager and the mentor would do more work than is allowed under the regulations. After going through a typical reply and response cycle, as well as reviewing the JVA, the SBA Area Office disagreed with the protestor and held that the awardee was small for the size applied to the RFP. The protestor then filed an appeal, in which the OHA was able to lay out exactly what will be expected from a JVA and any addendum. In the Appeal the protestor once again argued that the awardee JV’s protégé member would not perform the required amount of work, and that the MPA was invalid due to the name change, but OHA’s focus seemed to turn to whether the JVA is deficient. The protestor’s initial argument on appeal related to the JVA was that the JVA did not properly itemize major equipment, facilities, and other resources, and didn’t properly name a protégé employee as the Responsible Manager. The protestor subsequently filed a supplemental appeal stating that the JVA addendum was submitted two weeks after the final proposal revisions were completed, and as such should not have been considered. Additionally, the protestor argued that the JVA required a signature of any addendum, and since the addendum was not signed, then it was not a valid addendum (regardless of how deficient its contents were). The awardee and SBA Area Office both submitted arguments against these allegations stating in numerous ways that the JVA was proper, the MPA did not need updating, and there were no clear errors of fact or law (which is the standard for OHA appeals). As alluded to earlier, OHA focused on the joint venture documents themselves. OHA stated that as an initial matter the JVA itself, without the addendum, was not sufficient to meet the level of contract specific detail required by 13 C.F.R. § 125.8(b). This regulation lays out very specific requirements for what must be included in a JVA for parties to a mentor-protégé joint venture, including: 1) “Itemizing all major equipment, facilities, and other resources to be furnished by each party to the joint venture, with a detailed schedule of cost or value of each, where practical”; 2) “specifying the responsibilities of the parties with regard to negotiation of the contract, source of labor, and contract performance, including ways that the parties to the joint venture will ensure that the joint venture and the small business partner(s) to the joint venture will meet the performance of work requirements”; and 3) “designating a named employee of the small business managing venturer as the manager with ultimate responsibility for performance of the contract (the “Responsible Manager”)” among a multitude of other requirements. Of course many contracts are indefinite in nature, and thus it would be hard to be extremely specific, but the regulations take that into account, requiring “general descriptions” of how JV members will address these requirements based on what is known about the contract. After review, OHA found that the JVA itself didn’t even meet these standards. The JVA was drafted years before the RFP at issue was published, so it stated generally that a “contract” will be pursued, did not name specifics of the current RFP, did not name a Responsible Manager, nor itemize items or duties. This was recognized by the joint venture members and as such within the JVA called for addendums to the JVA to be executed for each contract that would address these requirements. So, for this case, the JVA addendum would be the turning point on if the JVA itself was sufficient. Firstly, OHA determined that the JVA required any addendum or amendment to be signed. Upon review, the JVA addendum was not signed by either member of the awardee JV, nor were there indications that the addendum was jointly approved. On top of this OHA found that the the addendum should not have been considered because it was created after the date of the final proposal revisions, which is the relevant date for determining JV compliance under 13 C.F.R. § 121.404(d). FEMA requested final proposal revisions on Sept. 7, 2021, the awardee submitted the revised technical and business proposals on Sept. 10, 2021, and the JVA addendum was not provided until Sept. 24th, nine days after a pre-award notification was issued. Consequently, OHA held that the JVA addendum should not have been accepted, as allowing a protested business to change its proposal after an award has been announced, and after a size protest filing “could essentially render SBA’s size protest process” as null, with protested firms simply submitting unsolicited final proposal revisions to cure alleged defects. OHA did not stop there, and decided to review how the JVA addendum itself was still deficient, even if it would have been submitted on time. The addendum, like the JVA, continued to not reflect the required amount of detail required by regulation. The addendum simply affirmed that each JV member would “provide the needed equipment and facilities” required to perform the RFP, but does not seem to go into deeper detail. Similarly, the addendum also doesn’t describe sources of labor or performance, but rather just states that the protégé will do more than administrative or ministerial activities for the RFP. The awardee argued that the contract was indefinite in nature and much detail wasn’t needed, but OHA in citing the regulations discussed earlier in this blog, held that these broad statements in the addendum do not raise to the level of “general description” required. Therefore, with all this in mind, OHA found that the awardee did not provide sufficient detail to meet the requirements placed on Mentor-Protégé JVs found in 13 C.F.R. § 125.8(b), and therefore was not an eligible small business for the RFP. There is a lot for contractors to learn from this case, but likely the most important is to not forget to fill every little thing out in your JVA and addendums. It is very common for contractor’s to utilize JVAs that have contract specific addendums. Drafting the JVA in this manner will mean that the contract-specific items must be included in the addendum. However, that addendum will do no good unless it is detailed enough, executed properly, and completed prior to the bid. Another great tip for contractors from this case is that even when a contract feels pretty non-descript and indefinite, you need to do all you can to be as specific as possible when filling out equipment, facilities, sources of labor etc. on your JVA or addendum. While it may seem like you are, to some extent, guessing at future items that will be needed, simply contemplating the needs of the contract and anticipating what might be needed to achieve it, could go a long way for helping you determine what “general descriptions” could be utilized for the required items. Finally, as with most legal documents, make sure they are properly executed within the terms of the agreement, and done in time for any sort of proposal deadlines. Of course much of this can be avoided or talked through with solid legal counsel, so if you ever have questions about your JVA, or forming a JV for bidding on federal contracts, give us a call! Questions about this post? Email us. Need legal assistance? 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 The Dog Ate my Addendum: Don’t Neglect your Joint Venture Addendum, says OHA first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday, Readers! We hope you have had a productive week and are finishing out the month of March strong. There was, of course, lots of activity in the federal government contracting world this week including more buzz around federal cybersecurity issues and the SBA announced that they will be hosting a virtual summit for National Small Business Week. You can read more about these topics, and other federal government related news, in the articles below. Have a great weekend! Login.gov’s problems further break down confidence in TTS, and now GSA [FedNewsNet] Prevent Costly Procurement Disasters: 6 Science-Backed Techniques For Bias-Free Decision Making [Forbes] Government Contractor Pays $742,500 to Settle False Claims Act Allegations in Obtaining Contracts Reserved for Eligible Small Businesses [DAVirginia] Executive Order on Prohibition on Use by the United States Government of Commercial Spyware that Poses Risks to National Security [WH] DOD Increases Efforts to Bring Small Businesses Into Defense Industrial Base [DoD] How contractors can develop a better nose for where the money is [FedNewsNet] How Veterans Can Take Over a Retiring Entrepreneur’s Existing Business [Military.com] Senate committee advances open source software and digital identity bill [FCW] NASA plans to consolidate cloud contracts [FCW] Federal Acquisition Regulation: Credit for Lower-Tier Small Business Subcontracting [FAR] Military Contractors Convicted for $7 Million Procurement Fraud Scheme [DoJ] Former construction company president sentenced for attempting to monopolize highway construction, repair contracts [DoJ] Registration Open for National Small Business Week Virtual Summit Taking Place in May [SBA] The post SmallGovCon Week in Review: March 27-31, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Tuesday, March 29, Forbes.com published a fascinating article written by Dr. Gleb Tsipursky entitled, Prevent Costly Procurement Disasters: 6 Science-Backed Techniques For Bias-Free Decision Making. In the article, I weigh in on the subject of bias in the bid selection process for federal procurements. I discuss some of the ways the ever-developing science behind implicit bias could potentially be utilized in bid protests challenging source selection decisions as biased–which is currently one of the toughest protest challenges to win. As you can read more about in the article, government officials are presumed to act in good faith and the standards for proving otherwise are difficult to meet (essentially, you need a “smoking gun” to win a protest on bias alone). This article thoroughly discusses the current protest landscape for challenging bias, the ways procurement officials can work to mitigate or eliminate bias in the procurement process, and the potential interplay of the science behind bias in both the procurement and protest processes. The post Nicole Pottroff Weighs in on Bias in the Procurement World in Forbes Article first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

It is well established that, in order to be eligible for HUBZone certification or recertification, one of the requirements is that 35% of a company’s employees must reside in a HUBZone. That part is (relatively) straightforward. But, as we all know, employees might come and go at any time. This raises a few questions about what the requirement is when a company is preparing to bid on contracts as well as when performing them. We explore this question here. As we noted above, “[i]n order to be eligible for HUBZone certification, at least 35% of a concern’s employees must reside in a HUBZone.” 13 C.F.R. § 126.200(d)(1). But, of course, certification is only one part of the HUBZone program. What about everything afterwards, like bidding on or performing contracts? Bidding on Contracts Over ten years ago, the HUBZone rules were a fair bit stricter with regards to when a HUBZone business absolutely had to demonstrate that it met the 35% employee HUBZone residency requirement. We discussed this in a post from 2012 (Yes, 2012 was over ten years ago, no, I don’t like that fact any more than you). At that time, a HUBZone concern not only had to meet the 35% requirement when it applied for the program or recertified. It also had to meet the 35% requirement at the time it made any initial offers on a solicitation, as well as when it actually was issued an awarded contract. Things are different now, and a fair bit easier for HUBZone companies. When it comes to the 35% rule, the question turns to the certification–or, if the concern has recertified since its certification, the most recent recertification: “If at the time of its recertification the certified HUBZone small business concern is not currently performing a HUBZone contract, its representation means that at least 35% of its employees continue to reside in a HUBZone and the principal office of the concern continues to be located in a HUBZone.” 13 C.F.R. § 126.500(a)(1). In other words, if you met the 35% requirement at your certification/recertification, you are considered to continue to meet that requirement until your next recertification. If, in that time, you bid on a HUBZone set-aside or are awarded such a set-aside, you are considered to still meet that requirement at those times. This is true even if you have experienced some turnover and your employee makeup is such that you do not actually meet the 35% requirement at those times. Everything revolves around the date you were certified or, if you have recertified, your most recent recertification. As recertification happens once a year, you technically only have to meet the 35% rule once a year, assuming you are not performing contracts. As SBA puts it, a “concern will be treated as a certified HUBZone small business concern eligible for all HUBZone contracts for which the concern qualifies as small, for a period of one year from the date of its initial certification or recertification” absent an acquisition or performance of a HUBZone contract for which it “fails to attempt to maintain the minimum employee HUBZone residency requirement.” 13 C.F.R. § 126.501. Performing Contracts Now, some of you may now be wondering about the “attempt to maintain” requirement. After all, 13 C.F.R. § 126.200(e)(1) notes that “At the time of application, a concern must certify that it will ‘attempt to maintain’ having at least 35% of its employees reside in a HUBZone during the performance of any HUBZone contract it receives.” Doesn’t this mean that a HUBZone concern has to show it is meeting that 35% requirement throughout the performance of a HUBZone set aside contract? While SBA certainly wants HUBZone concerns to try, the answer appears to be no. First, the “attempt to maintain” requirement doesn’t mandate that HUBZone concerns be at that 35% requirement for the duration of the performance of a HUBZone contract. It really just asks that they try. For the HUBZone program, “Attempt to maintain means making substantive and documented efforts, such as written offers of employment, published advertisements seeking employees, and attendance at job fairs and applies only to concerns during the performance of any HUBZone contract. A certified HUBZone small business concern that has less than 20% of its total employees residing in a HUBZone during the performance of a HUBZone contract has failed to attempt to maintain the HUBZone residency requirement.“ 13 C.F.R. § 126.103. In other words, as long as a company is actually trying to meet or exceed the 35% requirement and at least 20% of its employees are HUBZone residents, it meets the “attempt to maintain” requirement and can continue performing. Note, though, this rule only can be used if the concern is currently performing a HUBZone contract. If it is not currently performing, it needs to meet the 35% requirement. You cannot rely on the “attempt to maintain” rule if you are not currently performing a HUBZone set-aside. It is unclear what SBA’s exact reasoning is, but it may be that SBA allows for variance down to 20% when performing because you are having to hire employees to perform the contract and this may result in situations where the percentage of HUBZone employees goes below 35%. Now, you may ask– well, what does the attempt to maintain requirement matter anyways, it all goes back to my most recent recertification, yes? If I met the requirements then, I meet them now. It would appear that one can indeed rely on this, although we would very much recommend not taking the requirements lightly even if one is in between recertifications. It is worth noting also that each certification period is only a year in length, and you will need to have evidence showing attempts to maintain if you are below that 35% figure at recertification if you are performing a HUBZone contract, and at least 20% of your employees need to be HUBZone residents regardless. Furthermore, if you aren’t performing a HUBZone contract, you need to meet that 35% requirement at time of recertification, and ramping up HUBZone employees solely at that time may not be feasible. Summary It appears, then, that when it comes to bids and issuing awards, an agency can rely on a HUBZone concern’s most recent certification/recertification as showing that the HUBZone concern is meeting the HUBZone eligibility requirements at the time it makes its offer or is awarded a contract. The HUBZone concern can further rely on this as it performs a contract, but it must be aware that recertification is an annual process and it must nonetheless show attempts to maintain at recertification if it is below 35% but above 20%. And, if at recertification the concern is not performing a HUBZone contract, it must meet the 35% requirement to be recertified. Questions about this post? Email us. Need legal assistance? 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 The HUBZone 35% Residency Requirement in Between Certifications first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Spring, Readers! I don’t know about you but I’m looking forward to warmer temperatures and a lot more sunshine in the coming months. We have had a lot of grey, gloomy weather here in Kansas lately and I feel that we are all ready for some fun, outside activities. Spring is a great time of transition and speaking of transition, I will now transition to some federal government contracting news this week. Have a great weekend and we hope you can enjoy spring in your neck of the woods. CIO-SP4 protests dismissed as NITAAC commits to further corrective action [FedScoop] This week in Congress: SecDef defends the White House budget [FedTimes] Federal Contracting Boasts Job Security and High Earnings for Skilled Professionals [EIN] US Department of Labor Will Open Online Portal For Federal Contractors, Subcontractors to Certify Affirmative Action Program Compliance [DoL] Commerce’s CATTS procurement exemplifies all that’s wrong with federal small business contracting [FedNewsNet] For contractors, the 2024 budget request doesn’t quite add up [FedNewsNet] GOP lawmakers want additional details on CMS subcontractor breach timeline [FedScoop] US Department of Labor Recovers $46K in Back Wages for Indiana Construction Workers on Federal Projects [DoL] House Dems introduce pair of bills to overhaul IT acquisition at Department of Veterans Affairs [FedScoop] DOD partners with GSA to get sustainable products to agencies [FCW] Another Appeals Court Rules against Challenge to Coronavirus Vaccine Mandate [FedWeek] The post SmallGovCon Week in Review: March 20-24, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Past performance is a key part of most government proposal evaluations. Generally, a federal agency gets a lot of discretion in evaluating past performance. But that discretion is not without limits. In a recent decision, GAO sustained a protest where the agency failed to properly evaluate past performance examples for being similar in size. In General Dynamics Information Technology, Inc., B-421290.2 (March 1, 2023), GDIT (or protester) protested a task order award to GovCIO, LLC (or awardee) under a VA procurement for electronic file conversion services. The evaluation looked at standard items like technical, staffing, and past performance, with technical being more important than past performance. The proposals were both low risk on past performance, but while protester had a higher technical rating than the awardee, the awardee had a much lower cost and there were “no significant advantages or disadvantages between the offers to justify the payment of the price difference associated with GDIT’s offer, given the level of technical competence available at GCIO’s lower price.” For past performance, protester argued that the “the awardee’s past performance references should not have been found relevant because they were smaller than the solicitation requirement, and did not involve all of the same requirements as the solicitation.” GAO will review an agency’s past performance evaluation to determine if it is unreasonable or undocumented. The solicitation required submission of up to two relevant projects, with relevancy defined below: Relevancy is defined as a contract that is similar in size and scope of the requirements in the solicitation. . . . Similar in size means the total price of the contract, the number of staff, the number of users served, the number of locations served, etc. Scope compares how well the requirements in the RFQ’s PWS align with those of the past performance referenced. Quality is defined as performance which is satisfactory or better and will be used to assess the risk associated with successful contract performance. GAO concluded that “neither the contemporaneous record nor the agency’s response to the protest reasonably explain why it found the awardee’s past performance references relevant.” In past cases, GAO had found that an agency’s relevancy determination was faulty where the example projects were 0.14 percent of the value of the solicitation requirement and less than 3 percent of the solicitation requirements. So GAO looked at the relationship here between sample projects and evaluation requirements. On that question, the agency admitted “that the value of the awardee’s PMCMS and EMMS contracts were smaller in size as compared to the awardee’s proposed price for the solicitation, and involved fewer FTEs, but states that they were sufficiently similar in terms of the overall value, personnel, and number of users and locations served.” GAO didn’t buy this, responding that the “agency’s response to the protest does not specifically explain how it found the size of the PMCMS reference relevant in light the smaller size of the reference ($101 million) as compared to the proposed price for this procurement ($241 million).” “Similarly, the agency does not specifically explain how it found the size of the EMMS reference relevant in light of the smaller size of the reference ($40 million) as compared to the proposed price for this procurement ($241 million).” The agency also didn’t address the discrepancies in number of FTEs between sample project and contract scope. (The actual FTE comparison was redacted) The VA also argued that it looked at “number of users [and] locations served,” to determine relevancy, but there were no specifics cited from the awardee’s proposal to back this up. Then, VA claimed it had familiarity with these past contracts, stating: “VA is uniquely positioned in regard to the Paper Mail task order as the same office oversaw the performance of this contract. Accordingly, VA found that based on the total price and the number of users, locations served, and staff, the Paper Mail task order is similar in size to the CS task order.” Finally, the record failed to “explain how the agency found the awardee’s references similar in scope.” For instance, the “agency acknowledges that C-files (VA disability benefit claim files) are different from OMPFs (armed service career files), but does not reasonably explain why it concluded that the proposal’s citation of C‑files demonstrated experience with OMPFs.” Over VA’s arguments, GAO concluded that “to the extent the agency relied on its understanding that GovCIO’s past performance reflected experience handling OMPFs [official military personnel files], the record does not support this conclusion.” As a result, GAO concluded the agency evaluation was unreasonable because the past performance evaluation was flawed. GAO recommended the agency reevaluate and make a new award decision. When it comes to past performance evaluation, an agency’s discretion has limits and it must be reasonable. Questions about this post? Email us. Need legal assistance? 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 Sustains Protest Based on Faulty Past Performance Evaluation first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Proving that an agency acted improperly in its source selection process can be a difficult task for any protester. In theory, for a best value tradeoff decision, the agency’s decision and the process to come to that decision seems easy: the agency does a tradeoff between cost and non-cost factors, and that which is most advantageous to the government is awarded. How hard could it be? And the decisions handed down by the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) seem to confirm that it isn’t that hard, seeing as many cases challenging a best value decision are denied. This is, in large part, due to the discretion agencies are afforded in their source selection decisions. Whether an agency conducts discussions during the source selection process is one of many procurement factors that is left up to the agency’s discretion. But, every so often, a decision comes along to prove that there are limits to an agency’s discretion, and in this case, the agency’s discretion overstepped its bounds with its price reasonableness decision and the unjustified decision to not perform discussions. In SLS Federal Services, LLC v. United States, No. 22-1215 (Fed. Cl. Jan. 10, 2023), the Naval Facilities Engineering Systems Command, or the Agency, issued a solicitation looking for indefinite delivery, indefinite quantity (IDIQ) contracts for global contingency construction. And what is global contingency construction? In this context, it means a construction contract that “can arise anytime and anywhere,” and, as you will soon see, knowing what it is becomes important a little bit down the road. Procurement Process Under this solicitation, awards would be made to contractors whose offers represented the best value to the government, as determined through performing a best value tradeoff analysis, with cost being the most important factor. The terms of the solicitation required offerors to submit cost data, including hourly labor rates and indirect ceiling rates, but did not anticipate profit or an overall price. The Agency planned to analyze cost proposals for both cost and price reasonableness. Once the initial group of awardees was determined, they would later compete for “cost-plus-award-fee or firm fixed price task orders,” with the Agency intending to use firm fixed price task orders as much as possible. The solicitation conveyed, and the Agency reaffirmed, that it intended to make awards without discussions, but it reserved the right to conduct discussions if needed. Offerors would be evaluated in three different phases. First, the Agency’s evaluation board would evaluate each factor independently. This included the cost factor as well as four non-cost factors: corporate experience, safety, small business utilization and participation, and past performance. The evaluation board would then make two reports; one report for cost factors, and, you guessed it, one for non-cost factors. The Agency’s advisory council then reviewed the board’s reports, consolidated that information into its own report, and then made recommendations to the source selection authority for offerors it believed should receive awards. The source selection authority then reviewed the recommendation. If the source selection authority agreed with the advisory council’s recommendations, and did not feel a need to conduct discussions, it would select the contractor or contractorss whose proposal was the best value to the government. Award and GAO Protests The Agency ended up making awards to six out of nine contractors who had submitted proposals. Following award, the protester, SLS, filed its protest to GAO based on the Agency’s decision to not conduct discussions and that the Agency had erroneously analyzed price reasonableness. As these things often go, the Agency opted to take corrective action “to address the evaluation of the proposals, including, but not limited to, price reasonableness.” Don’t we all love a happy ending? Yes? Well, I’m sorry to inform you that we don’t have one here…yet. Nearly a year after the Agency had filed its notice of corrective action, it once again made awards to the same six offerors. When reviewing the corrective action taken, for almost an entire year, the Agency removed an “inappropriate CPARS evaluation” and stated that “no additional amendments or requests for proposal revisions [were] made in the pursuance of th[e] corrective action.” SLS once again filed a protest with GAO. Due to disputes over document production in the second GAO protest, SLS then filed its protest with the Court of Federal Claims. COFC Protest In protests that are submitted to COFC, the judge is looking at the agency’s actions to determine whether they were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” And here, COFC ultimately determined that the agency’s actions were arbitrary and capricious. It’s also important to note that, had the Agency been firing on all cylinders, it would have pointed out that the protester was too late to challenge what was technically the terms of the solicitation, thus waiving its price reasonableness argument (remember the profits missing from the price proposals?). This was eventually pointed out by an intervenor, but because the Agency did not point out the protester’s waiver of a challenge to the terms of the solicitation by not filing a protest prior to the date offers were due, in neither GAO protest nor in the COFC protest, the Agency thereby waived any defense it had to the price reasonableness issue, at least as far as it was considered a term of the solicitation. Protester: 1; Agency: 0. Price Reasonableness Analysis It is here where the protester’s arguments really get some traction. SLS’s protests challenged the Agency’s purported inability to conduct a price reasonableness analysis on offeror’s proposals because the Agency never asked for pricing information. Now, you may be thinking, “Sure they did! You just said cost was the most important factor in the evaluation.” And you would be right, I did. But cost and price are two different things, with cost representing the cost to the contractor, and price being what the contractor will charge the government for its products and/or services. In many cases, price reasonableness is then determined when looking at the difference between costs and price in relation to other offerors’ price proposals. However, when the agency doesn’t require certified cost or pricing data, as here, “[the] agency ‘shall’ use price analysis” per FAR 15.404-1(a)(2). One way of doing this is comparing prices when adequate competition exists, which is permitted per FAR 15.404-1(b)(1). Because the Agency failed to address the missing price information as part of its corrective action, there was no way for it to evaluate price reasonableness. In response, the Agency claimed that it was impossible to evaluate firm fixed price proposals because of the nature of global contingency construction contracts (See? Here it is again!), and therefore conducted a price reasonable analysis in line with FAR 15.404-1(b), but that argument ultimately failed, with COFC finding that a price reasonableness evaluation cannot happen with no price information at all. Protester: 2; Agency: 0. Discussions SLS’s protest of the Agency’s price reasonableness evaluation was not the only issue protested. SLS also protested the Agency’s decision to not conduct discussions even though DFARS 215.306, which is applicable here, “’create[s] a presumption in favor of’ discussions.” While not applicable in all federal government acquisitions, the DFARS state that “’contracting officers should conduct discussions’ ‘[f]or [defense contract] acquisitions with an estimated value of $100 million or more.’” The decision on this issue came down to the meaning of “should” within the applicable DFARS. Both GAO and COFC decisions showed a history of a presumption in favor of discussions, with the requirement that the contracting officer document its reasoning for not conducting discussions. Although the Agency tried to defend its decision to not conduct discussions by its notice that it planned to make awards without discussions, that reason was not enough to satisfy the COFC because “agencies are ‘bound by the applicable procurement statutes and regulations,’” and DFARS 215.306 clearly required the Agency to either conduct discussions or justify its decision not to. Further, stating that the awardees were “clearly awardable” was not sufficient justification either because “an agency must ‘articulate a rational connection between the facts found and the choice made.’” Otherwise, the agency’s decision is arbitrary and capricious, which was exactly what COFC determined here. Protester: 3; Agency: 0. Conclusion and Relief In the end, the COFC determined that SLS was prejudiced by the Agency’s lack of pricing information that was required to conduct a price reasonableness decision and for the Agency’s decision to refrain from conducting discussions without proper justification. Correcting either one of those issues could have potentially left SLS in the competition, which is the very core of prejudice in federal contracting. Since SLS was determined to have been prejudiced by the Agency’s actions, COFC looked to determine whether the protester’s request of a permanent injunction was appropriate. In doing so, COFC must weigh the “competing claims of injury” and the “effect on each party of the granting or withholding of the requested relief.” To do so, the courts must consider the following four factors: (1) Whether the plaintiff succeeds on the merits; (2) Whether the plaintiff will suffer irreparable harm without injunctive relief; (3) Whether the “balance of hardships” favors the plaintiff; and (4) Whether the injunction is in the public’s interest. COFC’s final analysis determined each of these factors were in favor of SLS, and therefore enjoined the Agency from proceeding with performance of the contract. Game, set, match. You can read the entire decision here: SLS Federal Services, LLC v. United States, No. 22-1215 (Fed. Cl. Jan. 10, 2023). Questions about this post? Email us. Need legal assistance? 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 Third Time’s the Charm: Protest Sustained by COFC Due to Failure to Conduct Discussions and Flawed Price Reasonableness Evaluation first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy St. Patrick’s Day! Historical reports say the Irish have been celebrating St. Patrick’s Day for over 1,000 years. They would feast on the traditional meal of Irish bacon and cabbage–not quite sure when the green beer was added into the festivities! The first St. Patrick’s Day parade took place not in Ireland but in America on March 17, 1601 in St. Augustine, Florida. Although not as old as St. Augustine’s, our city of Lawrence, Kansas is also preparing for a St. Patrick’s Day Parade, which has been a tradition since 1988. It’s always a fun experience, with 100 floats, and has raised more than $1.2 million dollars for children’s charities. We’ve included a few articles from this week’s news in federal government contracting to peruse before you head out to your local St. Pat’s Day celebrations, including updates on government budges for the upcoming fiscal year and contractors leaving the federal space. Have a fun day, stay safe, and a have great weekend. Pentagon’s $842B budget boosts procurement, R&D as personnel levels shrink [FedNewsNet] Federal IT spending in 2024 request up by 13% in part thanks to cyber, CX plans [FedNewsNet] Federal arbitrator: VA didn’t bargain ‘in good faith’ with AFGE to update decade-old contract [FedNewsNet] Why do so many contractors leave the federal market each year? [FedNewsNet] GSA Aims to Double Down on Initiatives to Boost WOSB Participation in GovCon [ExecGov] CACI court filing alleges lack of transparency by the Army [WashTech] GSA announces the 2022 design award winners [GSA] NASA opens bidding for $1.3B IT services contract [WashTech] White House requests more than $500M to support CX offices and initiatives in 2024 budget [FedScoop] Federal arbitrator: VA didn’t bargain ‘in good faith’ with AFGE to update decade-old contract [FedNewsNet] FY24 Clock is Already Ticking: Congress and the Whitehouse Need to Mind the calendar and Get Moving on the Budget [PSC] General Services Administration Acquisition Regulation; Standardizing Federal Supply Schedule Clause and Provision Prescriptions [FedReg] Supporting Competition in the AbilityOne Program [FedReg] Pentagon’s $842B budget boosts procurement, R&D as personnel levels shrink [FedNewsNet] The post SmallGovCon Week in Review: March 13-16, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Debriefings are a crucial part of the complicated world of bidding on Government contracts. They can provide wonderful insight to contractors on where they can improve, where their proposals were strong, and in cases, may provide information that could indicate to a contractor that a bid protest may be warranted. Therefore, it is vitally important for contractors to understand what Debriefings are, what they can and can’t provide you, and why they matter. Previously, we here at SmallGovCon discussed 5 things you should know about Debriefings, but in this post we will do a more detailed dive into Debriefings based on the current regulations and contracting landscape. What is a Debriefing? In its most basic form, a Debrief is simply a way for a contractor to learn from the agency why they did or not receive an award, or why they were eliminated from competition. This could be provided in written form, or via video/conference. When do Debriefings occur? Naturally, many contractors believe a Debrief would only occur post-award, which is likely the most common form of a Debrief, but there are also situations in which a pre-award debrief could occur. What is the difference between a pre-award and post-award debrief? A pre-award Debrief is for offerors excluded from the competitive range “or otherwise excluded from the competition before award.” Those offerors can request a debriefing, if it is available to them (more on when Debriefs are allowed later) when they are excluded from award. So while there is no awardee yet, a contractor could still get from the agency a good idea of why they didn’t make it to the next step of a procurement. A post-award Debrief is somewhat self-explanatory. A notification is made to all offerors that an award has been made and then parties can request and receive Debriefs. Are Debriefings required for every procurement? Reading through this, you may be thinking to yourself that a Debrief would be pretty great to receive or allow for every procurement. It helps contractors learn how they did, and gives the Agency the ability to address or clarify contractor concerns outside of a bid protest. So, Debriefs should represent a net positive for all parties that is then placed on all procurements, right? Unfortunately, that is not the case. Agencies are only required to have debriefs on competitive procurements (FAR Part 15), and for awards of task or delivery orders with values exceeding $6 Million (FAR Part 16.505). So be careful when reading through a procurement, because if it is not a FAR Part 15 procurement, or a task order over $6 Million, the Agency will likely not be required to provide a debriefing, even if they say one is possible. How do you get a Debrief? Even though we just talked about Debriefings being “required” for FAR Part 15 and certain orders, it is more-so a requirement to make them available, not automatically give them. The language of FAR 15.505 and 15.506 makes it clear that a contractor must request the debrief to actually receive one (contractors “may request a debriefing before award“, and an offeror “upon its written request . . . shall be debriefed[.]” (emphasis added)). For orders above $6 Million, the FAR requires the Contracting Officer to notify unsuccessful awardees that the order exceeds $6 Million, and any debrief (post or pre-award) then follows the FAR Part 15 requirements, which as discussed, requires contractors to request the Debrief in order to receive it. The request for a Debrief has to be done in a certain period of time to receive it as well. For a post-award Debrief, the request for a Debrief must be written, and received by the Agency “within 3 days after the date on which that offeror has received notification of contract award[.]” If the request is received in time, the Debriefing should occur “within 5 days after the receipt of the written request.” For a pre-award Debrief the request must also be in writing to the Contracting Officer and “within 3 days after receipt of the notice of exclusion from the competition.” The contractor may request the Debrief be delayed until after award, but if not, the Contracting Officer will “make every effort to debrief the unsuccessful offeror as soon as practicable.” Please note, that if the Debrief is waived until after award, this may also waive certain protest grounds. If you miss these deadlines, the Agency is not required to provide a Debrief. What is in a Debrief? This is where the true value of a Debrief is found. Post-award Debriefings must at a minimum include the following: (1) The Government’s evaluation of the weaknesses or deficiencies in a proposal (if applicable); (2) the overall evaluated cost or price as well as technical rating of the successful offeror and debriefed contractor, and past performance information on the debriefed contractor (when applicable); (3) an overall ranking of all offerors if ranking was used during source selection; (4) summary of the award decision rationale; (5) in commercial product acquisitions, the make and model of the awardee’s product to be delivered; and (6) answers to reasonable questions about whether source selection procedures, regulations, and other requirements were followed. A pre-award debriefing only has to disclose: (1) the agency evaluation of significant elements of the debriefed contractor’s proposal; (2) a summary rationale for elimination of the debriefed offeror; and (3) answers to reasonable questions about whether source selection procedures, regulations, and other requirements were followed. Can you ask questions in a Debrief? As hinted by the required information for a Debrief, a contractor can certainly ask questions at the Debrief. A Debrief is the contractor’s opportunity to better understand an award decision, and how its proposal or capabilities are viewed by an agency. Hence, if a contractor is preparing for a Debrief, careful thought should be given to what questions to ask, and contractors should review the Solicitation for any possible areas of concern. In fact, the Department of Defense has something called an “enhanced debriefing” which has even more opportunities for questions and information. Why do Debriefs matter? As is clear, Debriefs give contractors the ability to proverbially “peek behind the curtain” that is Government contracting evaluations. Debriefs give contractors the ability to learn more about their proposals, past performance, capabilities, and price, as compared to successful offerors, and learn what an agency thought of them. While these type of reviews can be hard for anyone as you are re-hashing areas in which you may not have done well, they almost always should provide valuable information to contractors to build off of in future procurements. Also, Debriefs may bring to light information that indicates that a source selection decision or procurement was flawed, leading to a possible bid protest. Given the depth of information that agencies are required to disclose, there could be information provided that a contractor thinks hints at improper evaluations, not following solicitation requirements, or other indications that a bid protest may be warranted. In that situation, it is important to note that the date to file a Bid Protest at GAO may depend on if a debrief was required, if it was requested, and when it was received. GAO regulations state that bid protests must be filed no later than “10 days after the basis of protest is known or should have been known.” But then states, that when the bid protest would be related to a procurement that requires a debriefing, then the “protest shall not be filed before the debriefing date offered to the protester but shall be filed not later than 10 days after the date on which the debriefing is held.” So a Debrief may change the deadline for which a contractor can protest an award, and is just another reason contractors should always closely read the Solicitation for debriefing provisions. (NOTE: This is a discussion of timeliness deadlines, and different standards may apply to obtaining an automatic stay under the Competition in Contracting Act (“CICA”).) So, while Debriefs may not always be available to a contractor during the procurement process, if they are a part of a procurement they represent an invaluable resource for contractors. As always, contractors should be as active as possible in the procurement process, but the presence of a Debrief adds another layer of participation in a procurement that contractors may utilize. Debrief can help contractors learn more about themselves, refine their processes, and possibly even help with a bid protest. Questions about this post? Email us . Need legal assistance? 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 Back to Basics: Debriefings first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday Readers! If you are a college basketball fan, then I’m sure you are as excited about March Madness as we are here at SmallGovCon. With so many really great teams competing for that national championship trophy, it’s sure to be an exciting tournament. Before you move your attention to basketball, let’s take a look at the happenings in the federal government world this week, including some information on the new iteration of the GSA OASIS vehicle. Check out those articles, among others, that we have included below and have a great weekend! FOIA backlogs on the rise after record number of requests [FedNewsNet] White House $1.6B COVID fraud plan gives federal watchdogs increased staffing [FedNewsNet] Nation’s drinking-water systems need better cyber hygiene, EPA says [FedNewsNet] WT 360: All about GSA’s ‘MAS-sive’ contract consolidation [WashTech] GSA releases second draft for the next OASIS [WashTech] Maryland Defense Contractor Convicted for Procurement Fraud after Nine-Day Trial [DoJ] Study: Women Entrepreneurs Voice Government Business Certification, Contracting Concerns [ExecBiz] Federal infrastructure funds begin to flow, mostly to roadwork [ConstDive] Why federal contractors are poring over the new national cyber strategy [FedNewsNet] How 2 Key Government Innovators are Bridging the ‘Valley of Death’ [GovConWire] GSA Issues 2nd Draft RFP, Plans Presolicitation Industry Day for Follow-On OASIS Contract [GovConWIre] GSA Misled Customers on Login.gov’s Compliance with Digital Identity Standards [OIG] The post SmallGovCon Week in Review: March 6-10, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Teaming agreements are a great tool for establishing the prime-subcontractor relationship in order to jointly pursue government contracts. They can protect each party’s rights, set performance expectations, demonstrate regulatory compliance, and reduce the likelihood of disputes down the line. But no matter how common teaming agreements have become, many contractors still find them to be a bit of a mystery. This is probably due to the fact that neither SBA’s regulations nor the FAR speak to teaming agreements, other than cursory mentions. Indeed, teaming agreements are not defined nor required by regulation; and they have no regulatory-required content. But that doesn’t stop procuring agencies from requiring offerors to have and submit teaming agreements with their proposed teaming partners (especially where the offeror requests consideration of its proposed subcontractor’s past performance, experience, and/or capabilities). So, it is important to know some of the “basics” of teaming agreements: what they are, why you should have one, and what should be included. What is a teaming agreement? We will start with the very basics. What is a teaming agreement? Well, again, we don’t have a nice SBA or FAR citation to give you here. But we can discuss some common industry understandings regarding teaming agreements. Generally, “teaming agreement” is the term used to describe an agreement between the prime contractor offeror on a government contract and their proposed subcontractor. You can think of a teaming agreement as the “chasing the contract” document–which can be contrasted with the subcontract agreement or the “performing the contract” document. Typically, the teaming agreement comes first, governing the parties’ relationship as they pursue a government contract as a proposed prime-subcontractor team. Then, if the proposed prime is awarded the prime government contract, a subcontract agreement will replace the teaming agreement; and it will govern the parties’ relationship in performance of that contract. Now, as I mentioned earlier, just because government contracting regulations don’t require a teaming agreement or dictate its contents, doesn’t mean you should brush over the idea of having a teaming agreement. Indeed, the benefits of having a (well written) teaming agreement are vast. And some procuring agencies actually require them in certain situations. Let’s dig into some of the reasons why you should consider using a teaming agreement as a precursor to your subcontract agreement. Why should I have a teaming agreement and what should it include? As discussed briefly above, one reason you should have a teaming agreement while bidding on government contracts is that, more and more often, we are seeing procuring agencies requiring them. Many times, the agency will require submission of a teaming agreement with a proposed subcontractor where the proposal relies on that subcontractor’s capabilities, past performance, or experience. This could be a situation where the proposed subcontractor will be providing a specific administrative system, certain personnel, etc. (so long as the solicitation allows it). Or it could be one where the past performance examples are coming from both the proposed prime and proposed subcontractor (again, provided such is consistent with the solicitation). And sometimes, agencies will require submission of teaming agreements with all proposed subcontractors, regardless. Agencies are well aware of the impact subcontractors can have on contract performance–as well as the importance of subcontracting for small and disadvantaged businesses (that may not otherwise be able to meet government needs). In any event, agencies may use teaming agreements to evaluate the proposed prime-subcontractor relationship for several reasons, which may include (but are certainly not limited to): To make sure the parties’ proposed responsibilities meet all the solicitation’s requirements; To determine whether a proposed subcontractor will perform “major or critical aspects” of the solicitation where the proposal relies on such subcontractor’s past performance; For set-aside contracts, to check that the parties’ proposed division of work is consistent with any applicable limitations on subcontracting and/or performance of work requirements; For set-aside contracts, to ensure that the prime will be performing the “primary and vital” work under the solicitation and will not be “unduly reliant” on a subcontractor for performance (also known as an evaluation under the ostensible subcontractor rule); and To examine the level of commitment regarding the proposed subcontract (i.e., whether the prime guarantees award of a subcontract to the proposed subcontractor upon award of the prime contract). It follows naturally from the above list (the reasons why an agency may review a teaming agreement), that a well-written teaming agreement would likely include the following terms: A detailed list of the parties’ responsibilities for proposal preparation and submission. Having a well-defined explanation of each party’s proposal responsibilities can provide the agency with important information about the parties’ compliance with certain potentially applicable regulations (i.e., where the subcontractor takes the lead on proposal drafting and submission, it may raise red flags regarding the ostensible subcontractor rule or even the limitation on subcontracting). But it also benefits the parties to set concrete expectations at the outset of the prime-subcontractor relationship (for obvious reasons). As such, a well-written teaming agreement will detail each party’s specific responsibilities for the preparation and submission of proposals, making sure the solicitation and submission requirements are met. A detailed explanation of the proposed subcontractor’s scope of work. Indeed, a well-written teaming agreement will detail the subcontractor’s scope of work under the resulting contract, including: how much work the subcontractor will get; what specific portions of the work the subcontractor will be performing upon award; and (where possible) which equipment, resources, and labor each party will provide under the contract and what each party’s specific performance responsibilities will be (where the contract is undefined or indefinite, this should, at a minimum, include each party’s generally anticipated role in contract performance). Doing this can help demonstrate to the agency that all the contract’s requirements will be met–and who will be meeting them. Again, this allows the agency to determine whether the parties’ proposed division of work is consistent with SBA’s affiliation and subcontracting regulations (if applicable), as well as the significance of the proposed subcontractor’s role (where necessary to rely on subcontractor past performance in the proposal). But working out the details of the subcontractor’s scope of work in the teaming agreement does not just benefit the agency; it is also hugely beneficial to the parties themselves. It may help to reduce the likelihood of confusion and post-award disputes later on regarding who is supposed to do what. Where the parties don’t have a teaming agreement detailing their anticipated responsibilities and roles for contract performance, we more often see post-award conflicts, such as the proposed subcontractor feeling they were “supposed” to get a certain amount and/or type of work, and did not fairly get it in the end. A provision establishing the certainty of the subcontract agreement (or lack thereof). Again, some agencies will look at the teaming agreement to determine what level of certainty the parties have that the proposed subcontractor will be awarded a subcontract if the prime contractor is awarded the prime contract. But it is also very important for the parties themselves to establish an agreement up-front, in this regard. Sometimes, the teaming agreement will guarantee a subcontract award to the subcontractor if and when the prime contract is awarded to the prime contractor (i.e., “A subcontract shall be awarded to Teammate within five days of award of the Prime Contract.”). Other teaming agreements will be more flexible, sometimes giving the prime contractor the right to decide if award to the subcontractor is in its best interest. There isn’t a right or wrong answer here; but again, the parties should make sure everyone is on the same page, and including such a provision in the teaming agreement is a great way to do that. Again, the suggested provisions above address both most agencies’ primary reasons for teaming agreement reviews and some best practice considerations, as well. To round out our discussion of teaming agreements, we will cover a few more best practice provisions–this time–a bit more focused on the relationship between the parties. As such, a well-written teaming agreement may also include the following terms: Plan for Prospective Subcontractor’s Payment. One of the most common types of post-award dispute we see between prime contractors and subcontractors is in regard to payment. As such, where the parties can establish payment expectations up-front, in the teaming agreement, they can help minimize the risks of payment disputes later on. Wherever possible, a teaming agreement should include payment provisions that: cover the anticipated contract’s pricing structure (i.e., Firm Fixed Price, Time & Materials, etc.); set a specific pricing structure for the subcontract; and list all rates, product pricing, and any other relevant payment terms for the subcontract. Confidentiality/Non-Disclosure Terms. It is pretty standard in most contracts for various teaming arrangements to have some confidentiality or non-disclosure terms. And I probably don’t need to explain why such terms are important. But for teaming agreements, specifically, such terms should take into consideration the parties’ exchange of potentially confidential or proprietary pricing and past performance information, which is common in proposal preparations. Additionally, such terms should generally be fair–with equal protections for each party’s confidential or proprietary information. Finally, such terms should also include the exception for the FAR’s whistleblower requirements (at FAR 52.203-18 and FAR 52.203-19), allowing employees and subcontractors to lawfully report waste, fraud, and abuse related to any government contracting. Sometimes, the parties will chose to have a separate non-disclosure agreement (typically one which will govern their entire relationship and be incorporated by reference into both the teaming agreement and any resultant subcontract). And that is fine. But we still suggest it incorporate the considerations and terms discussed here. Exclusivity (or Non-Exclusivity) Provisions. Outside of a few restrictions in the improper business practice provisions of the FAR, it is really up to the parties how exclusive they want to be (in regard the solicitation, type of work, procuring agency, etc.). But one thing is certain, establishing the exclusivity expectations for the subject solicitation up front, in the teaming agreement, can help prevent disputes and heartbreak later on. Thus, the teaming agreement should cover (at a minimum): whether the subcontractor must bid exclusively with the prime (as opposed to being able to bid with other primes); and whether the prime may consider other potential subcontractors for the specific work the proposed subcontractor plans to perform (or for other, related work, under the contract). Termination Provisions. All good things must come to an end, right? For teaming agreements, it is important that the parties establish up front when the agreement will terminate and what events will trigger termination. This can be especially important where there are exclusivity provisions in the teaming agreement (discussed above). Some examples of events that may trigger termination of a teaming agreement are: (1) execution of the subcontract; (2) the parties can’t agree on a subcontract despite good faith negotiations (sometimes, within a specific time frame); (3) the government doesn’t approve of the subcontract/subcontractor; (4) the prime decides not to submit a proposal for the solicitation; (5) another prime is awarded the contract under the solicitation (sometimes, considering potential protests and extending termination to resolution of such); and (6) the default or material default of either party. Finally, it is wise for the parties to determine whether they want a termination for convenience clause and whether/what kind of notification is required for such termination. * * * Teaming up for government contracts can be extremely beneficial–for the team members and for the government client. Being able to utilize the experience and capabilities of multiple contractors instead of just one can open the door to many opportunities that may otherwise be off the table for some small and disadvantaged businesses–especially in the highly competitive world of government contracting. And the government client can certainly benefit from a qualified small business offeror with the ability to properly utilize the skills and know-how of its subcontractors. But it goes without saying, teaming can go very right or very wrong for government contractors. And one of the surest ways to encourage the former is to make sure the parties are on the same page with regard to expectations, responsibilities, rules, and obligations–up front. Having a thorough and well-written teaming agreement can do just that. If you have specific questions about teaming agreements, teaming in general, or if you need help with another government contracting legal issue? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Back to Basics: Teaming Agreements first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The Small Business Administration’s (SBA) Office of Inspector General (OIG) recently took a look at SBA’s recent small business size and status protests to determine “whether the SBA had effective controls in place to (1) ensure protest decisions were properly enforced and to (2) monitor the protest process.” Overall, the OIG had positive things to say about the the protest process. What’s interesting for small business federal contractors are some of the numbers from this report, detailed below. The SBA’s September 30, 2022 OIG Report found that the SBA did have effective controls in place to ensure proper enforcement of protest decisions but discovered that the SBA did not consistently document extensions, impacting management’s ability to monitor and assess timeliness. Note that this report apparently does not cover appeals of determinations made by SBA. The OIG recommended the SBA “strengthen controls to consistently document and monitor required protest information” so that the agency can ensure decisions are made in a timely manner. The SBA agreed with the recommendation and has already updated internal guidance to streamline tracking procedures for size and status protests. The SBA also plans to implement a new process for all size protest record logs to be maintained in a centralized location which management can view. Size determinations are made separately by each Area Office, so this centralized location for all size logs may have been lacking before. Additionally, officials will “reinforce guidance that any written documentation to support extensions must be retained in the protest file.” Also of interest, there were a total of 364 decisions reviewed for fiscal year 2021. That covers all sorts of protests handled by SBA, including HUBZone, size, and WOSB. However, the report doesn’t include SDVOSB protests, which are currently handled by SBA Office of Hearings and Appeals (OHA). Also, there are no 8(a) Program protests because those aren’t allowed under the rules. Even still, that number of 364, out of all the small business awards where a protest could be lodged, is a fairly small percentage of overall contract awards. Of that total of 364, there were 327 size protests and 37 status protests (again, not including OHA SDVOSB protests). Broken down, there were 18 SDVOSB protests (not including at OHA), 12 HUBZone, and 7 WOSB. But still, this is quite a low number for status protests involving HUBZone and WOSB. This shows that most small business awards are not protested, and status protests are particularly low. Federal contractors need to be aware of their protest rights in the HUBZone and WOSB world, as well as small business protests. Within this amount, about 50% of protests were dismissed, and in close to 20% of cases companies were found ineligible. This means, over a third of protests that were not dismissed resulted in a finding of ineligibility, which is a fairly high number. Of that amount, only 4 percent of the small businesses protested did not update their proper status in their company profile after SBA found they did not qualify for set-aside awards. All firms are required to represent their small business status on their company profile in the General Services Administration’s System for Award Management (SAM.gov) database. Since this is a self-certifying process, “contracting officers must review and accept a firm’s representation of its size status in the applicable database unless they have reason to question it, or unless the status is challenged by another offeror in a protest.” False or inaccurate status representations are a serious concern because if a contract recipient is determined ineligible by an adverse decision, “the contracting officer must then terminate the contract, resulting in significant delays in the agency’s ability to acquire goods and services.” The fact that only 4 percent of protests concerned an inaccurate status shows that enforcement of adverse decisions is building trust in the small business protest process and is preventing contract opportunities to ineligible offerors. The OIG also found program officials monitored most protests effectively. They decided 80 percent of small business protests within the required 15 business days, or within extension dates approved by the contracting officer. However, the SBA did not decide on a protest within required timeframes for 20 percent of the protests reviewed. The report revealed that the SBA did not have uniform guidelines for documenting extension decisions and so these decisions were not consistently documented. The SBA challenged this finding by explaining that tracking logs are not the only tool used to monitor the protest process, because some programs record extensions in emails or have routine meetings to track progress. The OIG felt the SBA did not provide documentation to support this conclusion and maintained their position that the process for documenting protest progress needed to improve. Questions about this post? Email us . Need legal assistance? 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 Turns Spotlight on its Size and Status Protest Process first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

The SBA revamped its HUBZone rules in the last few years, making several changes to the HUBZone program. However, we continue to see updates to how SBA interprets these rules as it puts out policy guidance frequently. In this webinar, government contracts attorneys Nicole Pottroff and John Holtz will discuss these changes and SBA’s related guidance. If you’re a HUBZone contractor trying to remain compliant or have thought about obtaining a HUBZone certification, please join us. Register here. The post Govology Webinar: Understanding & Obtaining HUBZone Certification (2023 Update), March 21, 2023, 1:00PM EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Happy Friday and Happy March Madness. The country sure has been getting some wacky weather this week as spring is set to arrive soon. Here in Kansas, we are starting to see the first green sprouts emerging from the ground and everyone is getting really excited about the NCAA basketball tournament. Time to prepare your bracket and cheer on your favorite team as they fight to advance to the next level. There were several announcements this week in federal government contracting, including implementation guidance from the Whitehouse on “No TikTok on Government Devices”. You can read about that and other related content in our articles list below. Have a great weekend. Navy Office of Small Business Programs hits the street to try and increase 8(a) awards [FedNewsNet] “No TikTok on Government Devices” Implementation Guidance [Whitehouse] White House gives federal agencies 30 days to ban TikTok from all government devices — report [FedScoop] Rep. Ken Buck: federal agencies should reconsider future Amazon contract awards [FedScoop] What will ChatGPT mean for the US defense-industrial base? [FedTimes] How not to ruin your chance to bid [WashTech] Treasury Announces Approval of Up to $353.4 Million to Support Small Business Success Across Four States [DoT] What the White House TikTok memo means for federal IT departments [FedScoop] State Dept must study ability of US allies to combat cybercrime: GAO [FedScoop] FAA awards 15 prime contracts as part of $2.3B systems engineering procurement [FedScoop] U.S. Marshals Service hacked in ‘major incident’ [FCW] Rights groups push ICE to end contract with LexisNexis [FCW] New White House cyber strategy looks to redistribute risks, responsibilities [FCW] Defense Federal Acquisition Regulation Supplement: Prompt Payment of Contractors (DFARS Case 2021-D008) [FedReg] Defense Federal Acquisition Regulation Supplement: Quick-Closeout Procedures Threshold (DFARS Case 2021-D001) [FedReg] Why contractors need to focus on the brass tacks. [FedNewsNet] Federal Public Official Sentenced for Accepting Bribes [DoJ] Sherwin-Williams to Pay $1 Million to Resolve Alleged False Claims Act Violations Arising from Bridge Painting Project [DoJ] The post SmallGovCon Week in Review: February 27-March 3, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article