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  1. In order to have a bid protest sustained, a protestor must have a reasonable chance of being awarded the contract if the protest succeeded. Often, this just means that the protestor’s own proposal must be acceptable to the awarding agency in the first place. What many contractors do not know, however, is that if intervening offerors would be in line for the award even if the protest was sustained, the protestor will not be considered an interested party by the GAO. The GAO came to the above conclusion in a June 10, 2021 decision, Gulf Civilization Gen. Trading & Contracting Co., B-419754 (June 10, 2021). In this case, the Defense Logistics Agency (DLA) had issued a request for proposals (RFP) for excess property management services, among other services, on December 15, 2020. Award for the RFP was to be on a best-value tradeoff basis, with factors of past performance and price. Past performance was “significantly more important than price” for this RFP. Gulf Civilization General Trading & Contracting Company (Gulf) submitted a proposal along with 25 others on the RFP. The DLA ranked the offers by price at first, ranking Gulf’s proposed price twelfth. Another company, Asahi, submitted the second lowest price. After evaluating the offerors for past performance, the DLA determined that Asahi had a substantial confidence past performance rating, the highest possible confidence rating. As Asahi had proposed the second-lowest price as well as having a top past performance rating, the DLA decided it was unnecessary to consider the past performance of the remaining offerors and awarded the contract to Asahi. Gulf filed a protest thereafter. Gulf’s protest argued the award was improper for multiple reasons. The GAO addressed two of them: That the DLA had failed to conduct a price realism evaluation, and that the DLA’s decision to evaluate the past performance of only the two lowest-priced proposals under the RFP was improper. The GAO rejected both arguments, finding them to contradict the express terms of the solicitation and to be untimely. The GAO then dismissed the remainder of Gulf’s arguments by stating that Gulf was not an interested party, and so even if its arguments were correct, it didn’t matter. Only interested parties may protest a federal procurement, and only protestors that are “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract” are interested parties. 4 C.F.R. § 21.0(a)(1). “Determining whether a party is interested involves consideration of a variety of factors, including the nature of the issues raised, the benefit or relief sought by the protester, and the party’s status in relation to the procurement.” “In a post-award context,” the GAO explained, “we have generally found that a protester is an interested party to challenge an agency’s evaluation of proposals only where there is a reasonable possibility that the protester would be next in line for award if its protest were sustained.” “In this regard, we have explained that where there are intervening offerors who would be in line for the award even if the protester’s challenge was sustained, the intervening offeror has a greater interest in the procurement than the protester, and we generally consider the protester’s interest to be too remote to qualify as an interested party,” the GAO continued, citing HCR Constr., Inc.; B-418070.4, May 8, 2020. In this case, the DLA had responded to Gulf’s protest arguing that two other proposals demonstrated the relevant experience for the RFP and had received favorable customer evaluations. Although the GAO normally would not consider such an argument as the agency hadn’t formally concluded those proposals would receiving the best rating, it still concluded Gulf “failed to reasonably establish that it would be next in line for award” if its protest was sustained. Recalling a then-recent Federal Circuit case , the GAO noted that “to succeed in showing that it has a direct economic interest to be an interested party, a protestor must make a sufficient showing that it had a ‘substantial chance’ of winning the contract.” To demonstrate this “substantial chance”, the protestor not only must sufficiently challenge the eligibility of the awardee, but also intervening offerors. Here, the GAO concluded that Gulf failed to show the nine other offerors with lower prices lacked proper standing for award. “Specifically, the agency provided the protester with sufficient information upon which it could–and should have–challenged its relevant standing with respect to the intervening offerors. Specifically, DLA’s agency report disclosed the identities of the nine intervening offerors, as well as produced the complete past performance proposal volumes and past performance questionnaires for at least two of the intervening offerors.” As Gulf knew there were other offerors with lower proposed prices and that two of them demonstrated substantial past performance, it failed to show it had a substantial chance at award by arguing any flaws with the evaluation of intervening offerors. While the rule held here isn’t necessarily new (A similar finding was made in Automated Power Sys., Inc., B-246795 (Feb. 20, 1992)), we do find the application of the rule a bit concerning. While Gulf wasn’t the lowest priced offeror, it wasn’t the highest priced offeror like in Automated, it was middle of the pack. Further, the GAO edged towards performing an evaluation of other offerors on the DLA’s behalf by saying the two other offerors that demonstrated relevant experience basically means they would be in line for award before Gulf. It is fair that a protest for an offeror that has no chance anyways can be dismissed, but this rule seems to suggest that a protestor must show with a high degree of confidence that it would win, not merely a reasonable possibility that it would win. This is an additional burden on protestors that could make it more difficult to challenge agency decisions, which already is quite difficult to begin with. Planning on submitting a bid protest and unsure what to do? Email us or 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 GAO: Protestors Must Show Intervening Offerors Would Not be in Line for Award to be Interested Party first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  2. Friday marked a new federal holiday for Juneteenth. Juneteenth commemorates the end of slavery by marking the day enslaved people in Texas learned they were free. This is the first new federal holiday since first holiday to be approved since Martin Luther King Jr. Day was established in 1983. Many government agencies were closed on Friday and so we bring this week in review a little later due to the holiday. As we recognize this new national holiday, here’s some other notable news in the federal government. Requests for Nominations: Council on Underserved Communities [FedReg] SBA Announces Funding Competition to Organizations Providing Federal Procurement Training to Veteran Entrepreneurs [SBA] Government’s Contract Spending Reached Record High in Fiscal 2020 [NextGov] Former CEO Sentenced for Defrauding Multiple Federal Agencies [DOJ] GSA set to alter cloud buying landscape with new policy [FedNewsNet] Scanning military records now will improve disability claims process later [FedNewsNet] DOD says goodbye to its temporary teleworking platform used by millions [FedScooop] Cyber EO response will involve leaders from every agency [FedScoop] The post SmallGovCon Week In Review: June 14-18, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  3. For SDVOSBs and VOSBs, June 16, 2016 was a monumental day. That morning, the U.S. Supreme Court issued its unanimous decision in Kingdomware Technologies, Inc. v. United States, holding that the VA must follow the law by putting “veterans first” in VA contracting. Koprince Law LLC was honored to submit an amicus brief to the Supreme Court supporting Kingdomware, and my colleagues and I were thrilled with the Court’s 8-0 decision. Click here to check out my post from June 16, 2016 proclaiming “Victory!” for SDVOSBs and VOSBs in this watershed case. The Kingdomware decision didn’t (and couldn’t) solve every problem that some SDVOSBs and VOSBs have had with VA’s contracting practices, but five years later there is no doubt in my mind that the Court’s decision has been the driving force behind a large increase in VA’s SDVOSB and VOSB contracting. Happy anniversary! The post Happy Anniversary, SDVOSBs: The Supreme Court’s Kingdomware Decision Was Five Years Ago Today first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  4. Intervening in a GAO bid protest can be an important way to protect a federal contractor’s award. But when can you and should you intervene? Here’s how this might come up. As a federal contractor, you work hard to submit the best proposal you can, and then find out you win the award. A few days after, you find out you’ve been protested as part of a GAO bid protest. What are your options for responding to such a protest? Below, I’ll discuss the five things you should know about intervening in a GAO bid protest. Intervene to monitor the bid protest and protect an award. When a protest is filed, an intervenor has the right to review all pleadings in the case, get admitted to a protective order (through an attorney), and file pleadings in the case. So, intervening is a way to monitor how the agency is defending its award to your company. In most cases, the agency will vigorously defend the award, but it can be helpful for the awardee to have its counsel involved as well. 2. Who can intervene? The awardee of a procurement has the right to intervene. The GAO rules state that an intervenor is “an awardee if the award has been made or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.” 4 CFR § 21.0. GAO will generally always allow the awardee to intervene. If you’re not the awardee, you generally cannot intervene. 3. An intervenor, through an attorney, can get access to agency documents and other protected information. Just like the protester, the intervenor can, through counsel, be admitted to the GAO protective order. Once admitted to the protective order, the intervenor’s counsel can view source selection information such as how the agency came to its evaluation and award decision and potentially to view proposal information from the protester. This allows the intervenor to submit arguments to rebut any allegations set forth in the protest. 4. An intervenor can file pleadings. An intervenor can file pleadings in the GAO bid protest. One common pleading is requesting dismissal of the protest. A request for dismissal, if granted by GAO, can result in the protest going away quickly without reaching a decision. A common ground for dismissal is that the protest is untimely, such as if the protest was filed more than 10 days after the time when the protester came to know about the basis for the arguments made in the protest. In some cases, the intervenor can file its own motion to dismiss, or join in with the agency’s motion to dismiss. In addition, the intervenor is allowed to file comments to highlight and bolster agency arguments made in the agency report. 5. The intervenor can work with agency counsel. In some cases, the intervenor can cooperate with the agency counsel to have a coordinated strategy against the protest. Even if the intervenor’s pleadings are relatively limited, the intervenor can highlight and enhance the arguments made by the agency. Working with agency counsel can also mean discussing strategy in responding to the bid protest and finding out what the agency counsel thinks about the protest. Intervening in a GAO bid protest is not required. The agency will defend the award against the protest (assuming it doesn’t take corrective action). But intervening gives the awardee a seat at the table and the ability to monitor and file pleadings in the case. If it’s an important award that is protested, seriously consider whether an intervention may be be beneficial. Questions about this post? Or need help with a 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 for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Five Things You Should Know: GAO Bid Protest Interventions first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  5. 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 can be used to improve government and save taxpayers billions of dollars.” As such, GAO is actively seeking 8(a) business owners willing to participate in virtual discussion groups about the 8(a) Program. The National 8(a) Association‘s announcement of this opportunity says: “Understanding and reporting your perspectives on the program is essential to GAO’s ability to provide Congress with an accurate, complete and useful report.” The announcement further explains: GAO is seeking the perspectives of 8(a) business owners on the program’s eligibility thresholds. If you are an 8(a) small business owner, GAO is looking for business owners such as you to participate in virtual discussion groups to discuss your reasons for getting 8(a) certified, your experience with bidding for and winning federal contracts, your thoughts on the updated eligibility thresholds, and other concerns related to 8(a) eligibility you may have. We plan to hold these discussion groups between June 16 and July 2. The announcement also discusses the manner in which GAO will use this feedback–and assures 8(a) business owners it will be kept confidential, stating: The feedback you provide during the discussion group on your experience with the 8(a) program and lessons learned will be discussed in our report to Congress. Your feedback will be reported in aggregated form and no individual names or business names will be used. During the discussion group, we will not ask you to share any business strategies that you feel are proprietary or give your business a competitive edge. While the virtual discussion group event will be recorded, the recording will be used for transcription purposes only and will be deleted thereafter. In the unlikely event that it is requested, Congress or a court may compel GAO to provide information included in audit documentation such as the transcript. If you are an 8(a) business owner and are interested in participating in GAO’s virtual discussion group, which is currently scheduled to be held sometime between June 16 and July 2, GAO encourages you to reach out directly to 8adiscussiongroup@gao.gov or to call (202) 512-7975 to speak with Peter Kramer, a GAO Analyst assisting with this opportunity. Questions about this post? Email us or 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 GAO Seeking Feedback from 8(a) Firms first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  6. Happy Friday! It’s been a busy week in federal government contracting news. Among the notable announcements, Federal agencies are staffing up and a new IRS web app has been announced. The Treasury Department laid out its updated vision for its financial management shared services offerings and some companies are considering opting out of working with the Defense Department because of the cost of the Cybersecurity Maturity Model Certification program. Have a great weekend. As agencies rebuild staff capacity, OPM finalizes new rehiring tool for former employee [FedNewsNet] Memorandum for the Heads of Executive Departments and Agencies [Whitehouse] Some companies may choose not to work with DoD because of CMMC [FedNewsNet] IRS procurement shop develops web app to predict contract spending [FedNewsNet] Federal Acquisition Regulation: Application of Micro-Purchase Threshold to Task and Delivery Orders [FedReg] VIEWPOINT: The Pitfalls of Factoring in Security and CMMC Costs [NatDefMag] Biden administration details its vision for agency reopening, post-pandemic telework [FedNewsNet] GovExec Daily: Staffing at the IRS and the Biden Budget [GovExec] Former Managers at Major Property Management Firm Plead Guilty to Defrauding U.S. Air Force [DOJ] The post SmallGovCon Week in Review: June 7-June 11, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  7. Sometimes, task force meetings are held just for the sake of having meetings. However, on June 2nd and 3rd the Interagency Task Force on Veterans Small Business Development (IATF) and Advisory Committee on Veterans Business Affairs (ACVBA) met to discuss important issues facing small businesses. This shed much needed light on the issues fast approaching and what steps the SBA needs to take. The main topic of discussion was the pending CVE transfer. The transfer, as I soon found out, is deceptively complex. In a separate point, SBA noted that the Biden Administration announced it will use the purchase power of the federal government to make more awards to disadvantaged businesses, raising the target from 5% to 10%. The star of the show, however, was the CVE transfer. So, what does this mean for you? In 2020, we blogged about the plan to transfer CVE from the VA, to SBA. The 2021 National Defense Authorization Act (NDAA), whose Conference Report noted this seismic shift from the VA to the SBA. The change does make sense, as it will have the result of keeping all program certifications under one roof at the SBA. However, unlike the other SBA programs, the VA keeps extensive, confidential, and sensitive information on each of these Veterans. The NDAA mandated that the transfer occur two years after it was signed. That means the transfer will occur by January 2023. After the transfer is complete, CVE will be abolished. While seemingly a long way off, if the integration of beta.SAM is indication, there will be a lot to iron out between now and then. The main concern I found throughout both task force calls was figuring out who will be responsible for what. From payment, to oversight, to procedures, to access, task force groups are currently working through how and what responsibility to transfer. Breathing a sigh of relief for all people who confuse “certification” and “verification” between SBA and CVE, the “verification” term appears to be on the way out. Although the confusion will not be going away any time soon, as veterans will still need to verify their status with the VA until after the transfer. However, it is good to know that, when we are talking about small business programs, certification will be the operative term after transfer is finalized. The first topic of discussion is how will the SBA gain access to the information it needs to verify a veteran owns a business? What information will the SBA gain access to? Will the SBA have access to all the veterans information, including medical/mental health/service records? Veterans both in–and out of–service hand over countless amounts of sensitive information to the VA on a daily basis. Service, medical, mental health, and financial information is all held by the VA. In order for the SBA to certify a SDVOSB, the SBA needs access to relevant records for its review. The public comment section revealed keen interest in safeguarding veterans information. How will this be resolved? The VA informed the task force that it has groups running the pros and cons of each potential avenue right now. It does not appear there is a preferred method at this time. My guess is we will have direction by the end of the calendar year as to which way it intends to go. I am in the camp that the less information that is transferred, the better. That would mean allowing the SBA to request access to a specific veterans information, and then have the VA make that information available to the SBA through a login. This would limit blanket access or the risk of having veterans’ information contained on multiple servers. With all things, how the money flows is front-of-mind for those making decisions. Currently, CVE operates out of the Supply Fund authorized by 38 U.S. Code § 8121(a). Because verification is required for SDVOSB and VOSB participation in VA contracts, utilizing the supply fund is considered necessary. Once this shifts to the SBA, it is unclear whether the supply fund could still be utilized. I suspect that either a re-work of this statute, or a more expansive interpretation, including certification as a necessity, will be found. While this is a a small piece of the overall picture, it is unlikely the SBA will take on the cost without a source for the funds. The transfer specifically will not include transferring any employees, which makes funding even more critical for staff, training, and costs of certification. Suffice it to say, there are still major logistical gaps in the proposed change. Throw in a new administration and new leadership, and the project has only recently left the starting gates. We will stay tuned for additional updates and keep readers apprised. We appreciate the transparency of these agencies and SBA Administrator Guzman for taking the time to shed light on these issues. We look forward to future discussions, and will bring these to you when we receive additional details. Questions about this post? Email us or 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 Recent Task Force Meeting Underscores Challenges Facing SDVOSB Transfer from VA to SBA first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  8. A recent GOA decision provides a costly lesson about the importance of having internal procedures to receive and respond to official e-mail communications when a company team member is unavailable. The stakes can be big–GAO recently dismissed a contractor’s protest challenging the Department of State’s decision to cancel a solicitation. The question in this matter revolved around when a party is deemed to have received constructive notice of an agency’s cancellation of a solicitation. The case is SAGAM Securite Senegal B-418583.2 (March 22, 2021). The matter began when the State Department issued a solicitation seeking local guard services for the U.S. Embassy in Dakar. The agency subsequently determined that the solicitation violated the Procurement Integrity Act and that the violation impacted the underlying procurement. On December 2, 2020, the Agency’s contracting officer sent an email to the director of operations for SAGAM (the Director) providing notice of its cancellation of the solicitation. The Agency received no acknowledgement of receipt of the email from the Director and sent follow-up emails on December 7th and 10th. The Director finally acknowledged receipt of the emails on December 10. On December 21, SAGAM filed a protest challenging the cancellation of the solicitation. The Agency requested that GAO dismiss the protest as untimely because it was filed more than 10 days after December 2, the date on which the Agency notified SAGAM of cancellation of the solicitation as required under GAO’s regulations. SAGAM argued that its protest was timely because it did not have actual or constructive notice of the Agency’s cancellation of solicitation until December 10. Between November 23 and December 23, the Director was on leave and could not access emails without physically going into a SAGAM office and, in following with the company’s standard business practices, the Director enabled an automatic email response providing notice that he was on leave with irregular access to email. The automatic response also identified an alternative contact for urgent matters. SAGM also argued that the Agency should have sent notice of the cancellation to the alternate contact person identified in the email auto-response. The GAO dismissed SAGAM’s protest finding that the protest was untimely. The GAO’s protest regulations require that a protest must be filed within 10 days of when the protester knew or should have known the basis of the protest. The GAO considers the receipt of an email during a firm’s regular business hours to constitute constructive notice. The GAO concluded that the date upon which the timeline for a response begins is the date that the relevant information was in fact received by the offeror. In this case, the Agency’s email notifying SAGAM of the cancellation was available to be opened during regulation business hours on December 2 and was deemed to have been received on that date. Further, the fact that SAGAM’s director was on leave during that time did not toll the protest filing deadline and that the Agency had no duty to follow up with a particular individual identified in an automatic email response. For the purposes of the GAO’s timeliness rules, the receipt of an email during a firm’s regular business hours constitutes notice and start the countdown for a timely response. This case should serve as a reminder to make sure that, if a staff member is responsible for government communications, someone should monitor the email when they are unavailable. An out of office reply is simply not enough to toll GAO bid protest deadlines. Questions about this post? Or need help with a 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 for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GOA Considers Receipt of Email During Regular Business Hours Adequate Notice first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  9. We are pleased to announce that Kevin Wickliffe has joined our team of government contracts attorney-authors here at Koprince Law. Before joining our team, Kevin served as general counsel and chief compliance officer at a federally registered institutional, manager-of-managers, investment adviser. His combined regulatory compliance, business, and legal experience give him a unique perspective in providing legal assistance on transactional matters and in interpreting the government’s complex rules and regulations. Check out Kevin’s full biography to learn more about our newest attorney, and don’t miss his first SmallGovCon post concerning email notice for bid protests. The post Koprince Law Welcomes Kevin Wickliffe first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  10. Among some contractors, it’s taken as an article of faith that even a single negative Contractor Performance Assessment Report will effectively preclude the contractor from winning new government work. While it’s undoubtedly true, in my opinion, that some Contracting Officers place too much emphasis on a single less-than-perfect CPAR, it’s also true that a contractor with multiple negative CPARs can still win government contracts, so long as the government reasonably believes that the contractor can successfully perform the new work. Case in point: a recent GAO bid protest decision upholding an award to a company with nine (count ’em!) recent, relevant and negative CPARs. GAO’s decision in Aviation Ground Equipment Corporation, B-417711.2, B-417711.3 (May 3, 2021) involved a Naval Air Systems Command solicitation seeking land-based mobile electric power plants. The solicitation was a small business set-aside and contemplated the award of a single IDIQ contract. The solicitation established a “best value” evaluation, encompassing three factors: technical approach, past performance, and price. For the past performance factor, offerors would be assigned one of five confidence ratings, ranging from the highest, Substantial Confidence, to Satisfactory Confidence, Neutral Confidence, Limited Confidence, and No Confidence. After evaluating competitive proposals, the Navy announced that it would award the contract to Essex Electro Engineers Inc. Essex received the highest possible rating, “Outstanding,” on the technical factor and a “Satisfactory Confidence” past performance rating. Essex proposal a total price of approximately $46.6 million. An unsuccessful competitor, Aviation Ground Equipment Corporation, filed a GAO bid protest. AGEC had also received an “Outstanding” technical rating. AGEC’s past performance confidence rating was “Substantial Confidence,” a higher rating than Essex’s. But AGEC proposed a total price of approximately $62.6 million, significantly higher than Essex’s. In its bid protest, AGEC contended, in part, that the agency’s evaluation of Essex’s past performance was flawed. AGEC pointed out that, of Essex’s 14 recent, relevant CPARs, “9 reflected less than satisfactory performance.” In those nine CPARs, Essex received “12 marginal ratings and 5 unsatisfactory ratings.” Additionally, “for six of the CPARs, the assessing official stated that they would not recommend Essex for similar work in the future.” GAO wrote that “the contemporary record shows the Navy considered the past performance information discussed by the protester.” While the Navy’s evaluators noted the negative CPARs, “the agency also noted that Essex assigned a new engineering team in 2016 that has significantly improved its performance on Navy contracts, including a very relevant Navy contract for similar mobile electric power plants.” The evaluators also found that Essex’s Navy CPARs since 2017 “have been uniformly satisfactory” and that Essex “proposed the same engineering team for this procurement.” GAO continued: While the agency could have reasonably come to a different conclusion on these facts, the agency did not ignore or overlook the awardee’s negative past performance. Rather the agency considered all of Essex’s past performance information and decided to give greater weight to its own recent experiences with Essex on very similar requirements. Our decisions have consistently concluded that it is reasonable for an agency to give differing weight to an offeror’s prior contracts based on their similarity or relevance to the required effort. Writing that it had “no basis to find the agency’s evaluation unreasonable,” the GAO rejected this ground of protest, and denied the remainder of AGEC’s arguments, as well. The Aviation Ground Equipment Corporation case is a good reminder that negative CPARs are not necessarily a death knell for a contractor. While some agency officials might give a negative CPAR undue weight, others–like the Navy’s evaluators here–will look beyond the scores. Corrective measures, like the new engineering team Essex assigned, may help demonstrate that the issues behind a negative CPAR are unlikely to reoccur. That said, it’s important not to read too much into GAO’s decision. It seems likely that, had the agency assigned Essex a Limited Confidence or even a No Confidence past performance score, GAO would have upheld those results as reasonable, too. Aviation Ground Equipment Corporation doesn’t mean that an agency is required to give a satisfactory past performance score to an offeror with negative CPARs–just that an agency has the discretion to do so when the facts warrant. Questions about this post? Or need help with a 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 for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Agency Properly Awarded Contract to Company with Nine Negative CPARs first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  11. In the commercial world, it’s normal to buy a good customer a holiday gift. But when your customer is Uncle Sam, you might break the law by giving that same gift. The government contracting ethics rules aren’t always as cut-and-dried as “don’t give the contracting officer a briefcase full of unmarked bills” (although you shouldn’t do that, either!) and the government’s rules sometimes vary from commercial norms. On June 10, please join me and Shane McCall as we cover the key ethics and related rules contractors should know, including gift/gratuity rules, the False Claims Act, Procurement Integrity Act, anti-kickback rules, contingency fee restrictions, conflicts of interest and much more. This webinar is hosted by our friends at Govology and it’s easy to register: just click here. Shane and I hope to see you on June 10! The post Event: Government Contracting Ethics, Hosted by Govology first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  12. Happy Friday blog readers! Can you believe that it is already June? The sunshine and warmer temperatures have returned here in the Midwest and I, for one, am grateful for it. We hope you can get out and enjoy the sunshine this weekend. There has been a lot of activity in the federal government contracting arena this week. Some noteworthy items are the announcements from the Biden administration concerning agency hiring initiatives, a 5% increase in federal contracts set asides for small disadvantaged businesses, and legislation that will examine if federal agencies should relocate from Washington D.C. Read on for all the details. We hope you have a wonderful weekend! Biden Increasing Share of Federal Contracts to Small Disadvantaged Businesses [HSToday] New NGA Mentor-Protégé Program [Sam.gov] Congress Organizes to Promote Reform of Design and Construction-Related Contracting [POB] Why Government Needs More than Money to Fix Cybersecurity Issues [NextGov] CH2M Hill Plateau Remediation Company Agrees to Pay More than $3 Million to Settle Hanford Subcontract Small Business Fraud Allegations [DOD] Contracting Community Welcomes Biden’s Budget Proposal [GovExec] FSS BPAs: Back to the Future or “Déjà vu All Over Again!” [GCP] With Biden’s 2022 budget, civilian agencies are due for a hiring spree [FedNewsNet] Legislation calls for examining if agencies should relocate from DC [FedNewsNet] Army Secretary Wormuth says modernization programs remain ‘a top priority’ [FedScoop] Agency Hiring Initiatives and Other Takeaways From Biden’s First Budget [GovExec] The post SmallGovCon: Week in Review May 31-June 4, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  13. SBA’s Paycheck Protection Program (PPP) loans provided nearly $800 billion dollars of crucial financial support to over 8.5 million businesses and nonprofit organizations in the face of the COVID-19 pandemic. But as the proverb goes, “all good things must come to an end.” SBA closed the PPP doors to new loan guaranty applications at the end of May 2021 and released a closing statement on the program’s success. On June 1, SBA Administrator, Isabella Casillas Guzman, released a statement regarding the closure of the PPP application window at the end of May. As you probably know, the PPP was one of the first (but not the last) COVID-19 economic disaster relief programs implemented by the federal government to support the nation’s economy. Specifically, the PPP provided emergency funds to small businesses and nonprofits that were affected by the COVID-19 pandemic. In her statement, Ms. Guzman praised the program’s widespread success. She said: The Paycheck Protection Program provided over 8.5 million small businesses and nonprofits the lifeline they needed to survive during a once-in-generation economic crisis. I’ve heard story after story from small business owners across the country about how PPP funds helped them keep the lights on, pay their employees — and gave them hope[.] But Ms. Guzman also addressed some of the PPP’s shortcomings, explaining: At the same time, millions of underserved businesses – particularly our smallest businesses and those owned by women and people of color – were left out of early rounds of relief. I’m proud of the work we did to begin to rectify these inequities — in 2021, 96% of PPP loans went to small businesses with fewer than 20 employees. Moving forward, we will continue to prioritize equity in all SBA’s programs and services. According to SBA, the PPP “supported the smallest of small businesses with 32 percent of the loans going to Low-and-Moderate Income (LMI) communities.” SBA added that “PPP loans in 2021 averaged $42,000, another indicator of targeted relief to the smallest small businesses.” Finally, SBA also noted the “pivotal role” that Community Financial Institutions played in the PPP by lending crucial funds to underserved communities, “providing 1.5 million loans totaling $30 billion.” PPP’s stats are impressive to say the least. Sure, there were some issues in the eligibility vetting process–to the extent that many companies simply returned their loans. But regardless, the impact that the PPP had on the nation’s economy and well-being during a time of crisis and uncertainty is nothing short of monumental. For information on PPP loan forgiveness, check out our prior blog, 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 SBA’s Paycheck Protection Program Now Closed first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  14. Receiving a notice that a competitor received an award can be a punch to the gut. This feeling is compounded when the requested debriefing is short on details. Offerors are normally left with more questions than answers. The DoD has proposed to amend the DFARS to enhance debriefings in certain procurements. The correct amount of information in a debriefing is an ever-moving target; hopefully, this new proposed amendment will be a step in the right direction. We posted back in 2018 when the DoD immediately implemented some measure of enhanced debriefing requirements. The latest proposed amendment tries to advance the ball a bit farther. The proposed amendments are far from finalized, only being announced on May 20, 2021. Comments are now open, and are expected to close on July 19, 2021. The proposed amendments seek to implement section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018. First, the new rule would allow unsuccessful offerors to submit written follow-up questions within two days of receiving the debriefing. The contracting officer will then have five business days to respond in writing to the question. The key is that the postaward debriefing will not conclude until the agency delivers its written response to the offeror. This key change from 2018, as outlined in more detail below, is the disclosure of source selection documentation through the debriefing process. Next, the DoD will require written or oral debriefings, when requested, for all contracts $10 million or more. For awards in excess of $10 million, but less than $100 million, a small business must receive an option to request the written source selection document. The agency can redact the document, but when considering a potential protest, this can contain crucial information. For awards in excess of $100 million, the written source selection document must be included with the debriefing. This applies to negotiated contracts, task orders, and delivery orders.. If the goal is transparency, I do not see the need to create an extra step for small businesses to have to request the written source selection document. This is important for small businesses, assuming this rule goes into effect, be sure to request the source selection document as part of every debriefing. The new rule also formalizes the timeframe for suspending performance or termination of a contract. Suspension will be required in the following circumstances, Within 10 days after the date of contract award or the issuance of a task or delivery order, where the value of the order exceeds $25 million. Within 5 days after the date that is offered to an unsuccessful offeror for a debriefing that is requested, and when requested is required, and the unsuccessful offeror submits no additional questions related to the debriefing. Within 5 days after the date that is offered to an unsuccessful offeror for a debriefing that is requested, and when requested is required, if the debriefing date offered is not accepted. Within 5 days, commencing on the day the Government delivers its written response to additional questions timely submitted by the unsuccessful offeror, when a requested and required debriefing is held on the date offered. The DoD does not intend for these new post-award debriefings to apply at or below the Simplified Acquisition Threshold (SAT). However, the new rules would apply to Commercial Off The Shelf (COTS) items in excess of $10 million. When doing business with DoD, debriefings are poised for an overhaul. When receiving notice of an unsuccessful offer, be sure to ask written questions, and request the written source selection document. Knowledge is power, be sure to grab it when it is available. Questions about this post? Or need help with a 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 for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post DoD Proposes DFARS Amendment to Enhance Debriefings first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  15. One of my major concerns with the draft solicitation for the CIO-SP4 GWAC was the limited nature of the past performance NITAAC intended to consider. Under the draft RFP, NITAAC would not have considered the past performance of subcontractors–something I believed violated 13 C.F.R. 125.2(g) in certain cases, and was contrary to the guidance of FAR 15.305(a)(2)(iii), which says that agencies “should” consider the past performance of “subcontractors that will perform major or critical aspects of the requirement.” The good news is that the final CIO-SP4 RFP fixes this problem. That’s a relief for a lot of potential offerors. But now I’m concerned that NITAAC went too far in the other direction! Section M.4.3. of the final CIO-SP4 RFP states: The government consider and evaluate the past performance experience of affiliates, members of the offeror’s 9.601(1) CTA (if applicable), subcontractors of the prime’s 9.601(2) CTA, members of the offeror’s JV (if applicable), and all members of the offeror’s mentor protégé arrangement (if applicable). Other portions of the final CIO-SP4 RFP, such as L.5.7, make similar statements. This is a broad review and solves my concern about subcontractors. So what’s my worry? “Affiliates.” Affiliates, of course, come in many flavors. They might be parent/subsidiary companies, sister companies, or two companies owned by spouses. Heck, in one case, affiliation was based on the fact that an individual owned one share of a company–out of 120! Needless to say, just because an offeror has an affiliate does not necessarily mean that the affiliate’s past performance has any logical relationship to how well the offeror will perform on the contract it is bidding–which, of course, is the entire point of submitting past performance. You don’t have to take my word for it. In a 2017 case that we discussed here, GAO explained that it is inappropriate for an agency to consider the past performance of an affiliate without evidence that the affiliate will have a meaningful role in the procurement at issue. GAO said: [w]here an agency observes apparent affiliation between companies but lacks evidence establishing the nature of the relationship in the procurement at issue, the potential for variations in the extent and nature of the relationship between two affiliated companies means that it is not reasonable for that agency simply to infer that the relationship will affect contract performance, or even to accept an offeror’s general representation that the performance of an affiliated company–positive or negative–should be attributed to that offeror. Before the agency can properly attribute the past performance of an affiliate to an offeror, it generally must have a factual basis showing the planned relationship between the companies on the contract at issue. Where, as here, the record before the agency does not indicate the involvement of the affiliate in performance of the contract, the agency cannot simply attribute the affiliate’s past performance to the offeror. I do not see anything in the final CIO-SP4 RFP requiring offerors to show the “planned relationship between the companies on the contract at issue,” that is, on CIO-SP4. Instead, at least as I read it, it seems that NITAAC intends to consider the past performance and experience of affiliates based merely on the affiliation itself (plus, of course, a showing that the affiliate was involved in the submitted past performance project). If this is NITAAC’s intent, I think NITAAC has gone too far. In my view (and, I think, GAO’s), a CIO-SP4 bidder shouldn’t be able to take advantage of an affiliate’s past performance and experience even if the affiliate won’t be meaningfully involved in CIO-SP4. I am curious to see if this issue will get raised in the upcoming Q&As. Stay tuned! Questions about this post? Or need help with a 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 for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post The CIO-SP4 RFP Allows Broad Past Performance Information–But Does It Go Too Far? first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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