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Blogs

SmallGovCon.com

SmallGovCon Week In Review: June 13-17, 2016

It’s been a wild week in the world of federal government contracting. Yesterday the Supreme Court issued two major decisions affecting contractors: Kingdomware Technologies, Inc. v. United States and Universal Health Services v. United States ex rel. Escobar.  If you’re a regular SmallGovCon reader, you know that I’ve been following Kingdomware closely for years, and we will have a separate post later today with reaction to Kingdomware from around the country.  But Escobar is an important decisi
SmallGovCon.com

Victory! SDVOSBs Win In Kingdomware Supreme Court Decision

SDVOSBs and VOSBs are big winners today, as the Supreme Court unanimously ruled that the VA’s “rule of two” is mandatory, and applies to all VA procurements–including GSA Schedule orders. The Supreme Court’s decision in Kingdomware Technologies, Inc. v. United States, No. 14-916 (2016) means that the VA will be required to truly put “Veterans First” in all of its procurement actions–which is what Kingdomware, and many veterans’ advocates, have fought for all along. History of the Kingd
SmallGovCon.com

Breaking: Kingdomware Wins Unanimously!

SDVOSBs, rejoice! Kingdomware Technologies has unanimously won its Supreme Court battle against the VA.  The Court has held that the VA’s “rule of two” is mandatory and applies to all of the VA’s contracting determinations. I’ll have much more analysis up on SmallGovCon in the coming hours.  For now, congratulations to Kingdomware–and all SDVOSBs and VOSBs! View the full article
SmallGovCon.com

Common Investments Affiliation: Shared Real Estate Can Count

So-called “common investments” affiliation under the SBA’s affiliation rules arises most frequently when individuals own common interests in at least two operating companies.  But common investments affiliation can also be based on common interests in real estate. In a recent decision, the SBA Office of Hearings and Appeals held that the SBA had performed an inadequate size determination because the SBA Area Office asked the protested company about common investments in companies–but didn’t
SmallGovCon.com

SmallGovCon: Proud To Be Part Of WIFCON.com

I am pleased to announce that SmallGovCon is now being republished on what I think is the nation’s best and most venerable government contracting legal website: WIFCON.com.  You can find us on WIFCON.com’s blogs page from now on (and, of course, right here at SmallGovCon.com). I was probably less than a month into my first government contracts job (summer associate at a law firm based in Tysons Corner) when a more senior attorney recommended that I check out WIFCON.com. I’ve been following it
SmallGovCon.com

Two Isn’t Greater Than Five, GAO Reminds Agency

GAO sustained a protest recently where an agency had given higher past performance scores to a proposal with two relevant examples of past performance than a proposal with five relevant examples. In Patricio Enterprises, Inc., B-412740 et al. (Comp. Gen. May 26, 2016), GAO said that an agency cannot mechanically apply an evaluation formula that produces an unreasonable result, such as allowing a proposal with fewer examples of relevant past performance to somehow earn a higher score than a prop
SmallGovCon.com

SmallGovCon Week In Review: June 6-10, 2016

While we patiently await the Supreme Court’s pending decision in Kingdowmware Technologies, Inc. v. United States, there is still plenty happening in the world of government contracting. This week’s edition of SmallGovCon Week In Review is packed with important news and commentary, including stories on the Army looking to end its ‘use it or lose it’ budgeting, the continued push for category management, a sneaker company looking to nix an exemption in the Berry Amendment, allegations of SDVOSB
SmallGovCon.com

Large DoD 8(a) Sole Source Contracts Have Dropped By 86.5%

The number of 8(a) sole source contracts over $20 million awarded by the DoD has been “steadily declining since 2011,” when a new requirement was adopted requiring agencies to prepare written justifications of such awards. According to a recent GAO report, such awards have dropped more than 86% compared to the period before the justification requirement took effect.  The report states that much of the work that was previously awarded on a sole source basis has now been competed. 8(a) Program
SmallGovCon.com

SBA Didn’t Properly Justify 8(a) Termination, Says Court

SBA’s regulations provide that an 8(a) program participant that no longer is owned or controlled by socially and economically disadvantaged person can be terminated from the 8(a) program. But the decision to terminate is not one to be made lightly: SBA must make sure that it not only has evidence in support of its termination decision, it must also explain how that evidence demonstrates its conclusions. This requirement was at issue in a recent court decision that found an SBA 8(a) program term
SmallGovCon.com

Offeror Attempts To “Evade” RFQ Page Limit; GAO Sustains Protest

An offeror’s apparent attempt to engage in a little proposal gamesmanship has resulted in a sustained GAO bid protest. In a recent case, an offeror attempted to evade a solicitation requirement that proposals be no more than 10 single-spaced pages, by cramming its proposal into less than single-spacing.  The GAO wasn’t having it, sustaining a competitor’s protest and holding that the “spacing gamesmanship” had given the offeror an unfair advantage. The GAO’s decision in DKW Communications, I
SmallGovCon.com

WOSB Third-Party Certification: Which Certifier To Use?

Women-owned small businesses are increasingly seeking to become certified through one of four SBA-approved third-party WOSB certifiers.  But which third-party certifier to use? There doesn’t seem to be any single resource summarizing the basics about the four SBA-approved certifiers, such as the application fees, processing time, and documents required by each certifier.  So here it is–a roundup of the key information for three of the four SBA-approved WOSB certifiers (as you’ll see, we’ve had
SmallGovCon.com

SmallGovCon Week In Review: May 30 – June 3, 2016

June seems to have crept up on us, but here we sit enjoying warm temperatures and sunshine. Hopefully you are making plans for some summer rest and relaxation. While you kick back this weekend by the pool, we are happy to bring to you some weekend reading material in this edition of SmallGovCon Week In Review.  This week’s top governing contracting stories include an inquiry on DoD Buy American Act waivers, the continued push to “dump the DUNS,”  False Claims Act allegations regarding pricing,
SmallGovCon.com

SBA Adopts New Exemption From Nonmanufacturer Rule

The nonmanufacturer rule will not apply to small business set-aside contracts valued between $3,000 and $150,000, according to the SBA. In its recent major rulemaking, the SBA exempts these small business set-aside contracts from the nonmanufacturer rule, meaning that small businesses will be able to supply the products of large manufacturers for these contracts without violating the limitations on subcontracting. In its rulemaking, the SBA explains its new exemption as a way to increase sma
SmallGovCon.com

GAO Won’t Evaluate Subcontractor’s Small Business Status

GAO ordinarily will not hear any argument that is based on a company’s small business status, even if the alleged large company is only a proposed subcontractor. In a recent decision, GAO declined to hear a protester’s argument that the awardee’s supposedly-small subcontractors were affiliated with other entities, holding that such a determination is reserved solely for the SBA. The case, URS Federal Services, Inc., B-412580 et al. (Mar. 31, 2016), involved an Army task order request seeking
SmallGovCon.com

SBA Expands Small Business Joint Venture Eligibility

Small businesses will be able to joint venture with one another more often under a new SBA rule. As part of a recent major rulemaking, the SBA will allow two or more small businesses to joint venture for any procurement without being affiliated with regard to the performance of that requirement. Under the current regulation, two or more small businesses may be affiliated with one another if they joint venture for a particular procurement, depending on that procurement’s value.  In fact, the
SmallGovCon.com

SBA Clarifies Family Relationship & Economic Dependence Affiliation Rules

The SBA has changed its affiliation regulations to clarify when a presumption of affiliation exists due to family relationships or economic dependence. In its major final rulemaking published today, the SBA clears up some longstanding confusion regarding affiliation based on a so-called “identity of interest.” The SBA’s current “identity of interest” affiliation rule states that businesses controlled by family members may be deemed affiliated–but does not explain how close the family relatio
SmallGovCon.com

SBA Size Protests: Protester Must Be In Competitive Range

A small business cannot file a viable SBA size protest if the small business has been excluded from the competitive range, or if its proposal has otherwise found to be non-responsive or technically unacceptable. In its recent final rule addressing the limitations on subcontracting, the SBA also clarifies when small businesses can–and cannot–file viable size protests. Under the SBA’s current regulation, a size protest may be filed by “[a]ny offeror whom the contracting officer has not elimina
Emptor Cautus' Blog

April Fools’ Day in Federal Acquisition

Had you ever speculated on why April Fools’ Day seems to be such an important day for federal acquisition? After all, consider some of the regulatory and policy issuances on that day: The Federal Acquisition Regulation (FAR) became effective on April Fools’ Day (1984). The Federal Aviation Administration became exempt from the FAR on April Fools’ Day (1996). The Office of Federal Procurement Policy (OFPP) memorandum on “Protests, Claims, and Alternative D
Don Mansfield's Blog

Consolidated FAR/DFARS/DFARS PGI/DoD Class Deviations

I'm looking for feedback on a tool that I'm creating for DoD. Basically, it would be a single document that would contain the FAR, DFARS, DFARS PGI, and DoD Class Deviations. The concept is similar to that used in the General Services Administration Acquisition Manual (GSAM), where both regulatory (GSAR) and nonregulatory information is integrated into one document and distinguished by shading. The main difference is the document that I envision also contains the FAR. I've attached a sample of w
Don Mansfield's Blog

Thinking Critically About Word Choice: Is "Tradecraft" the Right Word?

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.” --Lewis Carroll, Through the Looking Glass When Better Buying Power (BBP) 1.0 was first issued in September 2010, then Undersecretary of Defense for Acquisition, Technology, & Log
Don Mansfield's Blog

FAR 52.212-1 Tailored for SAP (Final Version)

In a earlier blog entry, I posted a draft version of the provision at FAR 52.212-1 tailored for simplified acquisition procedures and requested comments. First, I'd like to thank everyone who provided comments. I believe the final version (below) is an improvement over the draft. Second, Carl Culham suggested that I include instructions on how to incorporate a tailored version of FAR 52.212-1 into a solicitation. I thought that was a good idea, so I will include instructions in this entry. T
The Wifcon Blog

Could Lucy Ellen Find Happiness at DPSC?

On June 20, 2015, Vern Edwards introduced us to F & F Laboratories, Inc., ASBCA 33007, 89-1 BCA ¶ 21207 (Sept. 14, 1988). In early 1986, the Defense Personnel Support Center (DPSC) awarded a contract to F & F Laboratories, Inc. (F & F) for "starch jelly bars" as part of the military's abandon ship ration procurement. F & F offered its commercial jelly bar as part of its proposal and it was incorporated into the contract documents. Unfortunately, the commercial product didn't fit
Don Mansfield's Blog

Did the SBA Invalidate FAR 19.000(b)?

In Latvian Connection General Trading and Construction LLC, B-408633, September 18, 2013, the Comptroller General denied a protest of a solicitation issued by an Air Force unit in Oman for armored cable to be used at Thumrait Air Base, Oman. At issue was the Air Force’s decision to not automatically reserve the acquisition for small business concerns, which both the protester and the Small Business Administration (SBA) argued was required under the Small Business Act. The protester relied on 1

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