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SmallGovCon.com

A blog by Koprince Law LLC in General

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Entries in this blog

2017 NDAA Requires GAO Report On DoD Minority And WOSB Contract Awards

The 2017 National Defense Authorization Act will require the GAO to issue a report about the number and types of contracts the Department of Defense awarded to minority-owned and women-owned businesses during fiscal years 2010 to 2015. If the 2017 NDAA is signed into law, the GAO would be required to submit its report within one year of the statute’s enactment. The 2017 NDAA requires the GAO to identify minority-owned and women-owned businesses using the categories identified in the Federal

2017 NDAA Strengthens Subcontracting Plan Enforcement

The 2017 National Defense Authorization Act, if signed into law, includes a few changes designed to help small business subcontractors. Among those changes, the bill, which has recently been approved by both the House and Senate, includes language designed to help ensure that large prime contractors comply with the Small Business Act’s “good faith” requirement to meet their small business subcontracting goals. Section 1821 of the 2017 NDAA is called “Good Faith in Subcontracting,” and is anot

ASBCA Orders Agency To Speed Up Claim Decisions

The Armed Services Board of Contract Appeals can order an agency to “speed up” its decision on a certified claim if the contracting officer’s anticipated time frame is unreasonably slow. In a recent case, the ASBCA ordered a contracting officer to issue a decision approximately eight weeks earlier than the contracting officer planned to do so. The ASBCA’s decision highlights a little-known provision of the Contract Disputes Act, which entitles a contractor to request that an appropriate tribuna

SDVOSB Programs: 2017 NDAA Modifies Ownership & Control Criteria

The 2017 National Defense Authorization Act makes some important adjustments to the criteria for ownership and control of a service-disabled veteran-owned small business. The 2017 NDAA modifies how the ownership criteria are applied in the case of an ESOP, specifies that a veteran with a permanent and severe disability need not personally manage the company on a day-to-day basis, and, under limited circumstances, permits a surviving spouse to continue to operate the company as an SDVOSB. As

SmallGovCon Week In Review: December 5-9, 2016

I don’t know about your part of the country, but here in Lawrence, the temperatures have plunged and it has finally felt like winter for the first time.  When temps get cold, I prefer to stay inside with a hot beverage, but I have to hand it to all of the die hard Chiefs fans who scoffed at the single-digit temperatures and spent the evening watching their team defeat the Raiders at Arrowhead Stadium last night. As we continue our wintry approach to the holidays, it’s been a big week in governm

2017 NDAA Increases DoD’s Micro-Purchase Threshold To $5,000

The 2017 National Defense Authorization Act will increase the DoD’s micro-purchase threshold to $5,000. Under the conference bill recently approved by both House and Senate, the DoD’s micro-purchase threshold will be $1,500 greater than the standard micro-purchase threshold applicable to civilian agencies. A micro-purchase is an acquisition by the government of supplies or services that, because the aggregate is below a certain price, allows the government to use simplified acquisition proce

2017 NDAA Authorizes $250 Million For New Small Business Prototyping Program

Good news for small business looking to break into Department of Defense contracting: the 2017 NDAA establishes a new prototyping pilot program for small businesses and nontraditional defense contractors to develop new and innovative technologies. The DoD is putting its money where its mouth is: the new pilot program is funded with $250 million from the rapid prototyping fund established by last year’s NDAA. The new pilot program is officially called the “Nontraditional and Small Contractor

2017 NDAA Extends SBIR & STTR Programs For Five Years

Coming as welcome news for collaborative R&D, the 2017 NDAA will extend the life of the Small Business Innovation Research and Small Business Technology Transfer programs. The conference version of the bill, which seems likely to be on the President’s desk in short order, contains provisions extending both programs for five years. SBIR and STTR are unique research, development, and commercialization programs overseen by the SBA. Each program calls for a three-phase process. In the first

2017 NDAA Restricts DoD’s Use of LPTA Procedures

The 2017 NDAA is full of important changes that will affect federal contracting going forward. As Steve wrote about earlier this week, some of these changes relate to government contracting programs (like the SDVOSB program). Still others relate to how the government actually procures goods and services. One of these important changes severely limits the use of lowest-price technically-acceptable (“LPTA”) evaluations in Department of Defense procurements. Following the change, “best value” trad

GAO Lacks Jurisdiction Over Certain DoD Task Orders, Too

As previously foreshadowed and discussed in depth, October 1, 2016, marked the date in which unsuccessful offerors lost the ability to challenge most task order awards issued by civilian agencies. Although the GAO remains able to hear protests relating to DoD task orders exceeding $10 million, two recent GAO decisions impose an important limitation: GAO does not have jurisdiction to consider awards issued by DoD under a multiple-award contract operated by a civilian agency. By way of backgro

SDVOSB Programs: 2017 NDAA Sharply Curtails VA’s Authority

The 2017 National Defense Authorization Act will essentially prevent the VA from developing its own regulations to determine whether a company is a veteran-owned small business. Yes, you heard me right.  If the President signs the current version of the 2017 NDAA into law, the VA will be prohibited from issuing regulations regarding the ownership, control, and size status of an SDVOSB or VOSB–which are, of course, the key components of SDVOSB and VOSB status.  Instead, the VA will be requir

SmallGovCon Weeks In Review: November 21-December 2, 2016

I hope that all of our readers had a happy Thanksgiving.  The holiday season is in full swing here at Koprince Law LLC, where we have a festive tree in our lobby and holiday cookies in the kitchen. But between holiday shopping and snacking, there is still plenty happening in the world of federal government contracts.  Today, we have a special SmallGovCon “Weeks” in Review, beginning with stories from November 21.  The latest news and commentary includes two different cases in which business own

ASBCA: No Valid Claim Certification Where “Signature” Was Typewritten

A contractor did not file a proper certified claim because the purported “signature” on the mandatory certification was typewritten in Lucinda Handwriting font. A recent decision of the Armed Services Board of Contract Appeals highlights the importance of providing a fully-compliant certification in connection with all claims over $100,000–which includes, according to the ASBCA, the requirement for a verifiable signature. The ASBCA’s decision in ABS Development Corporation, ASBCA Nos. 60022

Ostensible Subcontractor Affiliation Can’t Be “Fixed” After Final Proposals

Affiliation under the ostensible subcontractor rule is determined at the time of proposal submission–and can’t be “fixed” by later changes. In a recent size appeal decision, the SBA Office of Hearing and Appeals confirmed that a contractor’s affiliation with its proposed subcontractor could not be mitigated by changes in subcontracting relationships after final proposals were submitted. In Greener Construction Services, Inc., SBA No. SIZ-5782 (Oct. 12, 2016), the U.S. Army Contracting Comman

Businesses Controlled By Brothers Were Presumed Affiliated, Says SBA

Businesses controlled by brothers were presumed affiliated under the SBA’s affiliation rules. In a recent size determination, the SBA Office of Hearings and Appeals held that a contractor was affiliated with companies controlled by its largest owners’ brother, even though the companies had only minimal business dealings.  OHA’s decision highlights the “familial relationships” affiliation rule, which can often trip up even sophisticated contractors–but the decision, which was based on a March 20

Government “Poaches” Contractor’s Employee, Then Rejects Fixed-Price Invoices

Picture this scenario: the government hires your company to do a job; you assign one of your best employees to lead the effort. He or she does such a good job that the government hires your employee away. The government then drags its feet on approving your proposed replacement and refuses to pay you for the time when the position was not staffed–even though the contract was fixed-price. The scenario is exactly what happened to a company called Financial & Realty Services (FRS), and acc

SmallGovCon Week In Review: November 14-18, 2016

The year is flying by.  Believe it or not, Thanksgiving is next week.  While my colleagues and I prepare to overdose on turkey and stuffing (and my personal Thanksgiving favorite–copious amounts of pie), our focus today is on the top stories that made government contracting headlines this week. In this edition of SmallGovCon Week In Review, all nine bid protests filed against the TRICARE award were denied, the FAR Council proposes a rule to clarify how Contracting Officers are to award 8(a) sol

Ambiguous Contractor Teaming Agreement Sinks CIO-SP3 Proposal

Joint venture partner or subcontractor?  An offeror’s teaming agreement for the CIO-SP3 GWAC wasn’t clear about which tasks would be performed by joint venture partners and which would be performed by subcontractors–and the agency was within its discretion to eliminate the offeror as a result. A recent GAO bid protest decision demonstrates that when a solicitation calls for information about teaming relationships, it is important to clearly establish which type of teaming relationship the offer

Agency’s Reliance on Unstated Evaluation Criteria Leads to Sustained Protest

A solicitation’s evaluation criteria are tremendously important. Not only must offerors understand and comply with those criteria in order to have a chance at being awarded the contract, but the agency must abide by them too. Where an agency does not, it risks that a protest challenging the application of an unstated evaluation criteria will be sustained. So it was in Phoenix Air Group, Inc., B-412796.2 et al. (Sept. 26, 2016), a recent GAO decision sustaining a protest where the protester’s pr

Cost Realism: Agency Must Evaluate Employee Compensation Rates

When an agency performs a cost realism evaluation under a solicitation involving significant labor costs, the agency must evaluate offerors’ proposed rates of employee compensation, not just offerors’ fully burdened labor rates. In a recent bid protest decision, the GAO held that an agency erred by basing its realism evaluation on offerors’ fully burdened labor rates, without considering whether the direct rates of compensation were sufficient to recruit and retain qualified personnel. The G

SmallGovCon Week In Review: November 7-11, 2016

It’s been quite the week!  We began with a Presidential election to remember and are ending the week with a celebration of the veterans who have served our country.  On behalf of the entire team here at Koprince Law LLC, thank you to the many veterans who read SmallGovCon.  Your sacrifice and dedication to our country is truly a debt that can never be repaid. Election coverage dominated the headlines this week, but there was  no shortage of government contracts news.  In this week’s SmallGovCon

GAO: Oral Final Proposal Revisions Were Permissible

An agency did not act improperly by allowing for oral final proposal revisions, rather than permitting offerors to submit written FPRs following discussions. In a recent bid protest decision, the GAO held that–at least in the context of a task order awarded under FAR 16.505–an agency could validly accept oral revisions to offerors’ proposals. The GAO’s decision in SSI, B-413486, B-413486.2 (Nov. 3, 2016) involved an Air Force solicitation seeking a contractor to provide enterprise language,

GAO’s Jurisdiction Over Most Civilian Task Order Protests Has Expired

The GAO’s jurisdiction to hear most protests in connection with task and delivery order awards under civilian multiple award IDIQs has expired. In a recent bid protest decision, the GAO confirmed that it no longer has jurisdiction to hear protests in connection with civilian task and delivery order awards valued over $10 million because the underlying statutory authority expired on September 30, 2016. The Federal Acquisition Streamlining Act of 1994 established a bar on bid protests concerni

Thank You, Veterans!

I am back in Lawrence after a great trip to Minneapolis last week for the 2016 National Veterans Small Business Engagement.  At the NVSBE, I presented four Learning Sessions: one on the nomanufacturer rule, the second on SDVOSB joint ventures, the third on best (and worst) practices in prime/subcontractor teaming agreements, and the fourth on common myths in the SBA’s size and socioeconomic set-aside programs (no, a contractor is not required to list a solicitation’s specific NAICS code in the c

SBA Proposed Rule Will Allow SBA OHA Size Standard Appeals

The SBA’s Office of Hearings and Appeals will have authority to hear petitions for reconsideration of SBA size standards under a proposed rule recently issued by the SBA. Once the proposal becomes a final rule, anyone “adversely affected” by a new, revised or modified size standard would have 30 days to ask OHA to review the SBA’s size standard determination. By way of background, when a federal agency issues a solicitation, it ordinarily is required to designate one–and only one–NAICS code

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