The SBA recently proposed regulatory changes for a number of small business rules. While my colleagues have addressed some of the other big changes, I’ll focus on changes to the nonmanufacturer rule and limitations on subcontracting. The SBA noted that these changes are meant to eliminate confusion and streamline both processes. Keep reading to see if you agree.
Nonmanufacturer Rule
First, some background on the nonmanufacturer rule. For procurements of manufactured products or supplies,
Forming a joint venture is an important tool to help small businesses increase their competitiveness under federal acquisitions. But for all the benefits, some headaches remain.
One common issue arises when a solicitation requires the prime contractor to hold a facility security clearance. Because a joint venture is an unpopulated legal entity formed for the purpose of bidding on a specific opportunity, the joint venture itself (as the prime contractor) often lacks the needed clearance—even
Despite technological advance, some (perhaps even you) still cling to the notion that a signature, written by a human hand, is the only official kind. In other words, if a person doesn’t personally affix her “John Hancock” in cursive script or some other creative form, then the document really isn’t signed. If this thought sounds familiar, I’m here to liberate you. You are no longer bound like a medieval prisoner to your tube filled with ink. You can use an electronic signature in your contract
It’s never a good idea to perform work without a written contract authorizing the work; handshake agreements between the Government and contractors aren’t reliable. This is particularly true when a dispute arises and the contractor wants compensation. Without a contract, the firm might be out of luck.
An example of this situation recently played out before the Court of Federal Claims in Panther Brands, LLC v. United States, No. 16-1157C (Fed. Cl. Dec. 17, 2019). There, IndyCar company Pa
Following up on its proposed waiver of the nonmanufacturer rule for laptops in December (which we covered here), the SBA (keeping its New Year’s Resolution?) is now proposing waivers for exercise equipment, sophisticated walkie-talkies, and more.
As a reminder, the nonmanufacturer rule generally applies to small businesses selling goods to the government through small business set-aside contracts. Under the rule, a small business must “be the manufacturer or producer of the end item be
If you are a Federal Supply Schedule contract holder competing for a BPA, then there’s an important principle that you should bear in mind: your underlying FSS contract should cover the entire anticipated duration of the blanket purchase agreement, including all option years. And don’t try to provide this coverage with two different FSS contracts. That will get you into trouble–as one unfortunate contractor recently found out.
In NCS Techs., B-417956 et al. (Comp. Gen. Dec. 13, 2019),
Like the rest of the nation and world, we at Koprince Law are closely watching and listening to the recommendations of our public health authorities on a local, regional, and national level. It’s times like these that remind us (not that we need it) of the importance of the government and government contractors in responding to crises. As Tom Hanks said, listen to what medical authorities recommend.
This week, there was plenty of news about the coronavirus and how it will impact federal cont
There are many questions facing contractors during this time of upheaval from the coronavirus and the impact on the federal government’s role buying from federal contractors. We’ll try to address as many of them as we can through our COVID-19 Contractors’ Toolkit. One of the biggest questions is what can be done if the government modifies a contract, cancels work, or reschedules the performance of work. In that situation, it’s important to understand both the impacts on the prime contractor and
Well, we thought we had this figured out. Yet here we are a week later and we keep hearing conflicting reports.
The question remains, can a foreign-owned company receive a Paycheck Protection Program loan or not? Let’s try to figure it out.
Last week, on the eve of the program going live, we wrote that the form being circulated seemed to disqualify companies who are 20 percent or more owned by foreign nationals or entities. At some point, either that night or early the next morning
Contractors in the COVID-19 era may be tempted to think that the Government will compensate them for increased costs caused by virus-induced shutdowns, quarantines, and the like. And this line of thought has some inherent appeal. After all, the virus was entirely unforeseen by both parties when the contract was inked. So shouldn’t the customer–the party wanting the good or service–bear the risk of these extraordinary events?
In a very timely and relatable case, the Civilian Board of Cont
While we’ve recently enjoyed some sunny spring weather in Lawrence, KS, this week saw the other side of spring: overcast days and rain. While working from home, this means staring out the window at a grey sky. So, while we continue to cope with the effects of COVID-19, it can be comforting to read about the wheels of government continuing to turn.
This week, we saw federal contracting updates in the areas of the DOD shoring up the industrial base, a guilty plea for bribery and a settlement
What can contractors do about unreasonable terms in an agency’s solicitation? Managing Partner Matt Schoonover walks you through the options:
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Last month, the SBA moved to edit its regulations, taking a red pen to its current rules governing Small Disadvantaged Businesses (or SDBs), as described in the Federal Register. This blog post will highlight what the new rule will mean for current SDBs—and how businesses can become eligible for SDB subcontractor status under the new rule. While the SDB program is still alive and kicking, the rules will be simplified to eliminate a lot of language that is simply no longer applicable.
Why
Happy Independence Day to all of our SmallGovCon readers! I hope you are able to share some time with family and friends and observe the 4th in a way that means the most to you. Stay healthy and safe.
In this short week, there were still some interesting federal contracting developments. These included debate on National Defense Authorization Act and other congressional initiatives such as the ban on equipment from certain Chinese companies, some challenges for Cybersecurity Maturity Model C
For large and small contractors alike, teaming agreements, joint venture agreements, and subcontracts can be essential to winning and successfully performing federal government contracts. In this three-part series, government contracts attorneys Nicole Pottroff and John Holtz will explain how to develop, negotiate and administer agreements that are both compliant and effective. The presentations will cover both the key rules (such as flow-downs and ostensible subcontractor affiliation) and best
Maybe it’s happened to you: your company receives a notice of unsuccessful offeror, and your eyes pop. You can’t believe that the winner’s price is so low. “There’s no way they can successfully perform for that,” you say.
But before you file a GAO bid protest, you should carefully check the solicitation’s evaluation criteria. As one unsuccessful offeror recently learned the hard way, GAO often won’t listen to an argument that “the other guy’s price is too low.”
GAO’s decision in Un
GAO may only consider protests to civilian agency task or delivery orders under $10,000,000 if the protests allege that the order increases the scope, period, or maximum value of the underlying contract. GAO recently dismissed a case for lack of jurisdiction where the protester relied on the underlying contract’s ordering clause to argue that the agency’s amendment to the evaluation scheme was “out of scope.” Let’s take a look.
The MayaTech Corporation, B-419313 (Nov. 9, 2020), involved
Depending on the type of procurement, an agency will often provide either a brief explanation or debriefing after an award is made. But those explanations are difficult to challenge, as a recent GAO decision confirmed.
In the decision, GAO dismissed a protester’s challenge to the sufficiency of a two-paragraph explanation. Protester failed to show competitive prejudice or regulatory deficiency in the explanation. Since the protester could not demonstrate either of these conditions resulted f
Agencies commonly ask offerors to designate a point of contact for communications about the proposal. But what happens if the person the offeror identifies is unavailable when the agency reaches out?
A recent GAO bid protest decision is a cautionary tale and suggests some best practices for offerors.
The GAO’s decision in Ortho-Clinical Diagnostics, Inc., B-418946 (Oct. 23, 2020) involved a Navy RFQ seeking two clinical chemistry/immunoassay laboratory analyzer systems and one labo
A new FAR final rule recently went into effect that has increased the percentage for the domestic component requirement under the Buy American Act, a percentage that had been in place for nearly 70 years before this recent change.
Originally passed in 1933, in simple terms, the Buy American Act (BAA) encourages Federal agencies to procure domestic materials and products which are intended for domestic use, so long as the procured items or the materials thereof are present in sufficient
A company that is nonresponsive to an Invitation for Bid (IFB), or any solicitation for that matter, will usually be rejected for consideration for award. All too often, when a nonresponsive finding is made, there is no coming back.
A recent decision from GAO shines light on what it means to be “nonresponsive” and “not responsible.” GAO confirmed that SAM registration submitting annual certifications are matters of responsibility, not responsiveness.
What is the difference? Let’s look at
Koprince Law LLC, a boutique federal government contracts firm in Lawrence, KS, is pleased to announce that that Nicole Pottroff has now been elevated to partner status with the firm!
Nicole’s legal practice focuses exclusively on representing federal government contractors. Among her many professional accomplishments, Nicole recently co-authored the totally revamped “Koprince Law LLC GovCon Handbook Volume 4: Second Edition – The 8(a) Program.” She is as comfortable with 8(a) narratives as
You may have noticed that SBA issued a final rule last week that created sweeping changes to the SBA’s 8(a) Program regulations, but along with that, SBA made sure to slip in a change to the ostensible subcontractor rule that has been a sticking point for many contractors when facing affiliation concerns. With this final rule, SBA will update the regulations to provide contractors certain ways to defend against potential ostensible subcontractor rule affiliation, depending on the type of contra
An agency providing an opportunity to substantially revise a proposal can seem too good to be true. And sometimes, it is. It is a fundamental principle of procurement law that offerors must be treated equally. When one offeror is given an opportunity to “fix” the deficiencies in its proposal, but the other offeror is not, that is fundamentally unfair.
As one offeror found out, despite submitting everything to the agency as it was asked, GAO still sustained the protest.
In GAO’s decis
The Government Accountability Office (GAO) has offered participants in the U.S. Small Business Administration’s (SBA) 8(a) Business Development Program the opportunity to tell Congress about their views and experience in the program.
Currently, GAO is working on its report regarding the 8(a) Program’s eligibility thresholds. In GAO’s own words, these reports and testimonies serve to provide “Congress, executive agencies, and the public timely, fact-based, non-partisan information that c
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