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SmallGovCon.com

A blog by Koprince Law LLC in General

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Entries in this blog

SmallGovCon Week In Review July 11-15, 2016

I’m back in the office after a week-long family beach vacation around the 4th of July.  Kudos to my colleagues here at Koprince Law for putting out last week’s SmallGovCon Week In Review while I was out having some fun in the sun. This week’s edition of our weekly government contracts news roundup includes a prison term for an 8(a) fraudster, a Congressional focus on full implementation of the Supreme Court’s Kingdomware decision, the release of an important new FAR provision regarding small bu

Interaffiliate Transactions Exception Remains Narrow — For Now

The U.S. Small Business Administration, Office of Hearings and Appeals recently affirmed–for now–its narrow reading of the so-called interaffiliate transactions exception. In a recent size appeal decision, Newport Materials, LLC, SBA No. SIZ-5733 (Apr. 21, 2016), OHA upheld a 2015 decision in which OHA narrowly applied the exception, holding that interaffiliate transactions count against a challenged firm’s annual receipts unless three factors are met: 1) the concerns are eligible to file a con

Affiliation Allegations Result In $5.8 Million Settlement

A group of companies has agreed to pay $5.8 million to resolve a False Claims Act case stemming from alleged affiliations among the companies. According to a Department of Justice press release, the settlement resolves claims that En Pointe Gov Inc (now known as Modern Gov IT Inc.) falsely certified that it was a small business for purposes of federal set-aside contracts, despite alleged affiliations with four other companies–all of whom will also pay a portion of the settlement. The governm

GAO: “Minimal” Solicitation Changes Justified Cancellation

An agency was entitled to cancel a solicitation when its needs changed–even though the anticipated changes in its needs “might be characterized as minimal.” In a recent bid protest decision, the GAO confirmed that a procuring agency has broad discretion to cancel a solicitation when the agency’s anticipated needs change, and that discretion extends to cases in which the agency’s changed needs could be addressed by amending the existing solicitation. The GAO’s decision in Social Impact, Inc.,

GAO: Agency Need Not Perform Calculations For Offeror

An agency ordinarily is not required to perform calculations to determine whether an offeror’s proposal complies with a solicitation’s requirements, according to the GAO. In a recent bid protest decision, the GAO rejected the protester’s argument that, in determining whether the proposal satisfied certain requirements, the agency should have used the information in the proposal to perform certain calculations. The GAO’s decision in Mistral, Inc., B-411291.4 (Feb. 29, 2016) involved a DHS small

SmallGovCon Week In Review: July 5-8, 2016

Welcome back after a hopefully enjoyable long 4th of July weekend! Although this week is a shortened one, there was no shortage of news floating around the county. This week’s SmallGovCon Week In Review looks at the number of suspensions and debarments of government contractors, a proposed penalty for Pentagon contractors trying to game the system, a case of fraud and much more. Government contractors shouldn’t be celebrating that the number of suspensions and debarments dropped in fiscal 201

SmallGovCon Week In Review: June 27 – July 1, 2016

Happy (early) 4th of July! I hope you have something fun planned for this long weekend–and all the better if those plans include sunshine, fireworks, and plenty of BBQ. Before the holiday festivities begin, it’s time for our weekly dose of government contracting news and notes. This edition of SmallGovCon Week In Review includes articles about a DoD bribery scandal, the release of the solicitation for the major Alliant 2 IT contracts, a look a the top 100 rankings in federal IT spending and muc

VA Issues Post-Kingdomware Acquisition Guidance

The VA has released an Acquisition Policy Flash providing guidance to VA Contracting Officers on implementing the U.S. Supreme Court’s decision in Kingdomware Technologies, Inc. v. United States. The Policy Flash suggests that the VA is, in fact, moving quickly to implement the Kingdomware decision–and if that’s the case, it is good news for SDVOSBs and VOSBs. The Policy Flash begins by reiterating the Supreme Court’s major holdings: namely, that the Rule of Two applies to orders placed unde

Small Business Fraud: Guilty Plea In Major SBA Pass-Through Case

A former owner and officer of a large business has pleaded guilty to conspiracy charges stemming from an illegal pass-through scheme. According to a Department of Justice press release, Thomas Harper not only conspired to evade limitations on subcontracting, but obstructed justice during a SBA size protest investigation of his company’s relationship with a putative small businesses. The DOJ press release states that Harper is the former owner and officer of MCC Construction Company.  Between

Agency Need Not Put Dollar Value On “Relevant” Past Performance

An agency’s solicitation was not unreasonably vague where the solicitation defined “relevant” past performance to include projects of “a similar dollar value and contract type.” In a recent bid protest decision, the U.S. Court of Federal Claims rejected a protester’s assertion that the solicitation was required to identify a specific dollar value associated with relevant past performance, finding that the solicitation’s phrasing was sufficient to allow offerors to compete intelligently. The

SmallGovCon Week In Review June 20-24, 2016

It’s hard to top last week’s government contracting news, which included the major SDVOSB Supreme Court victory in Kingdomware.  But with the Fourth of July just a week and a half away, there is still plenty going on in the world of government contracts law. In this week’s SmallGovCon Week in Review, an SDVOSB’s owner speaks out about his important GAO bid protest win, suspensions and debarments of government contractors dropped in 2015, major changes are coming to the GSA Schedule, HUBZone con

GAO: Solicitation Terms Trump Standard Industry Practice

An offeror’s proposal must conform to all technical requirements of an agency’s solicitation–even if the offeror believes those requirements to differ from standard industry practice. In a recent bid protest decision, the GAO held that an agency appropriately rated an offeror’s proposal as technically unacceptable because the offeror failed to conform to certain material solicitation requirements; the offeror’s insistence that those requirements varied from standard industry practice was irrele

VA Will “Immediately Comply” With Kingdomware Decision

The VA will “immediately comply with the Court’s decision” in Kingdomware Technologies, Inc. v. United States, according to a top VA official. In written testimony offered in advance of a Senate committee hearing tomorrow, the Executive Director of the VA’s Office of Small and Disadvantaged Business Utilization tells Congress that the VA will work to implement the Kingdomware decision, including by improving its market research processes. In his testimony, Executive Director Thomas J. Leney

Awardee’s Bait And Switch Leads To Sustained Protest

Ordinarily, whether an offeror’s proposed personnel actually perform under a contract is a non-protestable matter of contract administration. But GAO will consider the issue when an offeror proposes personnel that it did not have a reasonable basis to expect to provide during contract performance in order to obtain a more favorable evaluation. Such a “bait and switch” amounts to a material misrepresentation that undermines the integrity of the procurement and evaluation. That’s exactly what hap

SmallGovCon Week In Review: Kingdomware Edition

Yesterday was a huge victory for SDVOSBs and VOSBs, 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 Kingdomware decision has drawn news coverage and discussion from across the country.  This special Kingdomware edition of the SmallGovCon Week In Review collects some of the many articles on this important precedent. Enjoy! SmallGovCon – Victory! SDVOSBs Win In Kingdomware Supreme Court De

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

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

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

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: 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

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 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

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

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

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

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