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Koprince Law LLC

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  1. Koprince Law LLC
    Happy Friday, Readers! Can you believe that February is almost over? I guess that means we are one month closer to Spring. Stay safe if you are in the areas of the country getting pounded by more snowfall. In the middle of the country, the thermometer has been going up and down so much on a daily basis, we just never know what we will get. That’s Kansas for you.
    We have included a few news articles on the federal government contracting issues this week. There is some good thoughts this week on how contractors can approach the debt ceiling standoff, as well as federal diversity and inclusivity goals. Enjoy and we hope you have a great weekend.
    Creating a More Diverse and Resilient Federal Marketplace through Increased Participation of New and Recent Entrants [WH] Federal Awardee Database Integration Falls Short [POGO] DLA Named Agency of the Year for Supporting Nation’s Small Businesses [DoD] Federal IT leaders see ‘critical moment’ in securing systems from fraud [FedNewsNet] The Debt Ceiling Standoff Has Federal Contractors On Edge [Inc] Biden pushes federal agencies to meet diversity, inclusivity goals [FedTimes] Department of Labor to Offer Online Seminars to Educate Current, Prospective Federal Contractors on Prevailing Wage Requirements [DoL] Recidivist Fraudster Pleads Guilty To Fraud, Identity Theft, And Making False Statements In Connection With Andrews Air Force Base Construction Contract [DoJ] US Department of Labor Recovers $3.1M in Wages, Benefits for 3,100 Workers Employed by a Federal Subcontractor Servicing Benefeds Program [DoL] Why so many Federal IT Contracts Fail and what to do about it [BOG] NASA, Air Force contractor to settle with DOJ for $400,000 in False Claims Act case [FedScoop] Pending cloud pilot could get DOD to zero trust in a year rather than five [DefScoop] Rules on Gifts in the Federal Government [FedWeek] The post SmallGovCon Week in Review: February 20-24, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  2. Koprince Law LLC
    The San Antonio Business Opportunity Counsel will be hosting this workshop that will include a day of training, networking, speakers and exhibitors in beautiful San Antonio, Texas. I’m excited for the opportunity to be the keynote speaker and will be presenting on Mentor Protege, Teaming and Joint Venture Agreements. For more information on this event please visit www.saboc.org. Hope to see you there!
    The post Event: “Small Business is BIG Business in Government Procurement” Training Workshop, August 15, 2023 San Antonio first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  3. Koprince Law LLC
    We are pleased to announce that the Second Edition of the GovCon Handbook, SBA Small Business Size and Affiliation Rules, is now available!  
    Is your small business really small? When it comes to federal government contracts, the answer can be a lot more complex than it sounds.
    In this GovCon Handbook, government contracts attorneys provide an in-depth look at the size and affiliation regulations for federal contractors. Written in plain English and packed with easy to understand examples, this GovCon Handbook demystifies the SBA’s rules regarding small business status for government contracts.
    This updated handbook was co-authored by me and Nicole Pottroff as well as firm founder Steven Koprince. It is now available through Amazon at this link.
    The post Koprince McCall Pottroff’s GovCon Handbook, SBA Small Business Size and Affiliation Rules is Now Available! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  4. Koprince Law LLC
    Happy St. Patrick’s Day! Historical reports say the Irish have been celebrating St. Patrick’s Day for over 1,000 years. They would feast on the traditional meal of Irish bacon and cabbage–not quite sure when the green beer was added into the festivities! The first St. Patrick’s Day parade took place not in Ireland but in America on March 17, 1601 in St. Augustine, Florida. Although not as old as St. Augustine’s, our city of Lawrence, Kansas is also preparing for a St. Patrick’s Day Parade, which has been a tradition since 1988. It’s always a fun experience, with 100 floats, and has raised more than $1.2 million dollars for children’s charities.
    We’ve included a few articles from this week’s news in federal government contracting to peruse before you head out to your local St. Pat’s Day celebrations, including updates on government budges for the upcoming fiscal year and contractors leaving the federal space. Have a fun day, stay safe, and a have great weekend.
    Pentagon’s $842B budget boosts procurement, R&D as personnel levels shrink [FedNewsNet] Federal IT spending in 2024 request up by 13% in part thanks to cyber, CX plans [FedNewsNet] Federal arbitrator: VA didn’t bargain ‘in good faith’ with AFGE to update decade-old contract [FedNewsNet] Why do so many contractors leave the federal market each year? [FedNewsNet] GSA Aims to Double Down on Initiatives to Boost WOSB Participation in GovCon [ExecGov] CACI court filing alleges lack of transparency by the Army [WashTech] GSA announces the 2022 design award winners [GSA] NASA opens bidding for $1.3B IT services contract [WashTech] White House requests more than $500M to support CX offices and initiatives in 2024 budget [FedScoop] Federal arbitrator: VA didn’t bargain ‘in good faith’ with AFGE to update decade-old contract [FedNewsNet] FY24 Clock is Already Ticking: Congress and the Whitehouse Need to Mind the calendar and Get Moving on the Budget [PSC] General Services Administration Acquisition Regulation; Standardizing Federal Supply Schedule Clause and Provision Prescriptions [FedReg] Supporting Competition in the AbilityOne Program [FedReg] Pentagon’s $842B budget boosts procurement, R&D as personnel levels shrink [FedNewsNet] The post SmallGovCon Week in Review: March 13-16, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  5. Koprince Law LLC
    Our very own Nicole Pottroff was featured in the Washington Post yesterday, in an article titled: “SBA program upended in wake of Supreme Court affirmative action ruling.” This article covers SBA’s 8(a) Program and its recent changes, as well as the federal court decisions that sparked the changes and some of the more widespread concerns moving forward. As you probably know as one of our readers, the 8(a) Program has always been a subject close to our hearts here at SmallGovCon. We have been fortunate enough to help countless companies get into the program, stay in the program, and navigate all the opportunities and benefits it has to offer. As such, we have been blogging about the 8(a) Program since long before the recent changes. And since then, we have blogged consistently on everything from the federal court decisions at issue to the SBA’s implementation of the ordered changes to the 8(a) Program–doing our best to ensure our readers stay up-to-date on all things 8(a) in these times of uncertainty and change.
    So suffice to say, we are excited to see the program being talked about on such a highly-esteemed, public, national forum. We are also very proud to see Nicole’s name in such a significant article on that forum. If you haven’t yet, please go check out the article linked here.
    https://www.washingtonpost.com/business/2023/09/07/sba-8a-program-ruling-affirmative-action/ The post Partner Nicole Pottroff Discusses Recent 8(a) Program Changes in Washington Post Article first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  6. Koprince Law LLC
    While losing a procurement is never easy, many contractors will learn some valuable lessons from a debriefing. On top of that, a debriefing can delay bid protest filing deadlines at GAO. However, recently, GAO clarified that the bid protest filing deadline delay for debriefings only applies to GAO protests. A protestor found this out the hard way after a pre-award debrief, and multiple protest actions.
    Given the importance that debriefings (or debriefs, for short) hold for contactors to determine areas to improve, possible bid protest grounds, and bid protest deadlines, we have written about them many times. There is our Back to Basics post on the topic, and, relevant to this case, we even have a post on pre-award debriefs affecting deadlines. If this post piques your interest, we highly recommend these and our other posts to learn more about debriefs. That being said, this case provides a great opportunity for a quick review of pre-award debriefs, and GAO’s filing rules.
    GAO’s bid protest filing regulations state that protests based on a solicitation’s terms must be filed “prior to bid opening or the time set for receipt of initial proposals.” For any other protests, they must be “filed not later than 10 days after the basis of the protest is known or should have been known.” However, GAO built in an exception for debriefings. The regulations state, when there is a competitive procurement in which “a debriefing is requested and, when requested, is required,” then the protest will not be filed “before the debriefing date offered to the protester” and not later than “10 days after the date on which the debriefing is held.” What this means is that in most cases, for a GAO bid protest, if a contractor is allowed a debrief under the solicitation, and if requested the agency has to give it, then the GAO bid protest deadline clock does not start until the debrief is given. Note, this is separate from the deadline to file to get a stay of award, which applies if a GAO protest is filed “within 5 days after a debriefing date offered to the protester for any debriefing that is required by 15.505 or 15.506.” FAR 33.104. 
    That being said, there are some oddities regarding pre-award debriefs that could affect filing deadlines. If a contractor is offered a pre-award debrief after being excluded from the competitive range, there is an option to delay the debrief until after the award to get more information through a post-award debrief. This will get contractors more information about their evaluation, but critically, GAO has held that if a contractor chooses to postpone the pre-award debrief until post-award for more information, the contractor actually loses its right to protest. Also, the DoD has enhanced debriefs. which could allow for more information and push a GAO bid protest filing deadline out further, but the DoD’s enhanced debrief rules only apply to post-award debriefs.
    In NikSoft Systems Corporation, B-421801 (Comp. Gen. Aug. 16, 2023), GAO examined how a pre-award debrief affects (or in this case doesn’t affect) agency-level bid protest deadlines. On June 15th, 2023, NikSoft received notice that it was excluded from the competitive range for the subject procurement. NikSoft requested a pre-award debrief (debrief that occurs when excluded from competitive range before award). The debrief was received by NikSoft on June 30th, with the option of supplying questions on the debrief by July 5th. On July 6, NikSoft sent an email to the agency stating it disagreed with the weaknesses identified, and rebutted the agency’s evaluation. As this email was sent over 10 days after June 15th, the Agency treated this email as an agency-level protest, and deemed it untimely under the FAR agency level protest deadline of 10 days after notice of adverse action. On July 7th, NikSoft sent an email to the Agency that it labeled as an agency-level protest. The agency treated this second email as an appeal of the decision to treat the July 6th email as an agency-level protest. The agency’s senior procurement officer denied this appeal. NikSoft then filed a protest with GAO stating that the agency did not reasonably evaluate its proposal, and the exclusion of the proposal was improper. GAO dismissed this protest for being untimely.
    In its dismissal, the GAO focused on filing deadline requirements. As a general matter, GAO holds that a matter that was initially filed with an agency will be seen as timely “only if the agency protest was filed within the time limits provided by [GAO],” unless the agency places a “more stringent time for filing.” In that case, GAO will honor the agency’s filing requirements.
    GAO stated that the initial notice of exclusion sent to NikSoft on June 15th provided “sufficient information to inform the protester of its bases of protest” and the protester was required to file a protest within 10 days of June 15th. NikSoft in the GAO bid protest argued it waited for the debrief to be concluded before filing any protest. But GAO states in this decision “the debriefing exception established in our Bid Protest Regulations” for protest timeliness is “inapplicable to agency-level protests, which are governed by the timeliness rules in the FAR.” This is the lynchpin of GAO’s decision.
    The delay of a filing deadline because of a debrief is exclusive to GAO, and the agency, relying on the FAR, had a more stringent filing deadline. Thus, if a protester wants to file an agency-level protest, the FAR’s 10-day filing deadline applies, and has no exceptions for debriefs. A contractor cannot keep asking questions or delay a protest to seek more facts to fill out a protest. And if the contractor files an agency level protest before going to GAO, that protest must be timely under the agency’s rules (if those rules are more restrictive).
    This case has made some things clear to the contracting community: 1) contractors must be sure to start the proverbial protest deadline clock as soon as the notice of exclusion from award is received, if they plan to do an agency level protest; 2) contractors must be careful about how communications with the agency are worded, as an agency may treat it as a agency-level protest; 3) Debriefs will only effect bid protest filing deadlines, if the bid protest is filed at GAO. Given this complicated web of filing deadlines, it is important not hesitate about reaching out to federal government contracting lawyers as soon as possible if you find yourself excluded from award or a competitive range. That will allow you to fully discuss the various filing deadlines, exceptions, and forums for a potential protest. If not, you run the risk of a dismissal and missing your chance to fully state your case.
    Questions about this post? Email us . Need legal assistance? 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: Debriefings Only Delay Filing Deadlines For GAO Protest first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  7. Koprince Law LLC
    When submitting an offer, it is important to make sure that all the requirements of the solicitation are met. This is essentially Federal Government Contracting 101 and applies to any type of solicitation. In RELX, Inc., B-421597.2, 2023 CPD ¶ 262 (Comp. Gen. Nov. 17, 2023), GAO looked at this issue in the context of a lowest-price, technically acceptable (LPTA) solicitation for a brand name or better product, with an unexpected ending that the protester surely did not see coming.
    Brand Name or Better
    Under a brand name or equal solicitation, described in full at FAR 52.211-6, a firm offering product equal to the brand name product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. This doesn’t mean that the product being offered must be identical to the name brand. What it does mean is that the features identified in the solicitation are presumed to be material and essential, and any offerors that are not the manufacturer of the name brand product must demonstrate that it meets all requirements. Any products that do not meet the essential requirements must be rejected.
    In RELX, the Air Force was accepting quotations for an electronic search and data tool license that was capable of meeting specific requirements that the LexisNexis search engine could do. Since this was solicited on an LPTA basis, the agency planned to evaluate offers received starting with the lowest-priced option and continuing its evaluation of offers with increasing prices until it found an offer that met the salient characteristics of the LexisNexis product.
    Only two offers were submitted, one by the protester, RELX, Inc. d/b/a LexisNexis, and one by West Publishing Company. West submitted the lowest price, and the agency found its search engine to be technically acceptable, meeting all the requirements that the LexisNexis product offers. Upon award, RELX protested the agency’s decision, stating that the West product did not meet the requirements. As often happens, the agency responded by taking corrective action—though there were no details on what exactly that corrective action was to entail—and the protest was dismissed.
    Fast forward a couple of months to the second award to West, and RELX again protests the award on the basis that the award to West was improper because West’s offer did not contain all the required characteristics listed in the solicitation. The first, and only, issue discussed in the decision asserted that West’s research platform was not equal to the LexisNexis platform offered by RELX because West’s product provided a singular login to access multiple applications, while the solicitation required a singular login to access one application. West’s offer included two platforms: CLEAR, which is used for law-enforcement searches, and Westlaw, its legal and legislative search product. And the solicitation made it clear that multiple platforms would not be acceptable. Though the decision mentions additional requirements that West’s product did not offer, discussion of the salient characteristics stopped there because it was enough to warrant a sustain on that basis.
    Open Market Items
    There was a second issue identified by RELX, though RELX likely regrets its decision to bring this one up. This solicitation was for a task order offered under a Federal Supply Schedule (FSS) contract, meaning the offerors were already awarded indefinite duration, indefinite quantity contracts with products that the agency would then solicit for task orders. Products and services acquired via a FSS contract cannot offer open market items, meaning items that the offeror did not include in its FSS contract. And here, the items offered by West were open market items that were not included in West’s FSS contract, yet another reason why this award was improper. However, as the agency pointed out, RELX also included open market items in its offer. Therefore, the agency claimed that its award to West was allowable because awarding RELX would have the same issue.
    Regardless, GAO didn’t follow that same reasoning. Instead, it took a “two wrongs don’t make a right” stance and required the agency to terminate the award to West. And, because West and RELX were the only two offerors, GAO instructed the agency to revise the solicitation, obtain new proposals, conduct a new evaluation, and issue the task order to the successful offeror under the revised solicitation. Not exactly the ending RELX hoped for, I am sure.
    Conclusion
    Though this surely was not a result that any protester hopes for, the decision supports two concepts. First, strict adherence to the salient characteristics in a name brand or better solicitation is essential. Second, when making an offer for an FSS task order, ensure that all items being offered are in your FSS contract, so you don’t end up like this protester: out of luck.
    Questions about this post? Email us. Need legal assistance? Call us 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 Two Bites of the Same Apple: Protester Wins Sustain on Second Name Brand or Equal Protest with an Unexpected Result first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  8. Koprince Law LLC
    The government contracting legal landscape has gone through many important changes in 2022 and the first part of 2023, including new small business rules, SDVOSB certification requirements, recent domestic preference changes under the Buy American Act, key provisions of the 2023 National Defense Authorization Act and other laws passed in 2022, and much more.  In this session, we will provide a comprehensive update on the most important government contracting legal changes in 2022, and the projected changes in the first months of 2023. This webinar is hosted by The Catalyst Center for Business & Entrepreneurship. Hope to see you there! Register here.
    The post Free Virtual Workshop: Legislative Changes that May Affect Your Small GovCon Business, February 28, 3:00-5:00PM CST first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  9. Koprince Law LLC
    If your small business status hangs in the balance, you can’t afford mistakes in your next SBA size determination. Join us for an in-depth look at key accounting strategies and lessons from recent SBA size appeal decisions involving affiliation issues, joint ventures, and receipts calculation. Learn how to properly account for inter-affiliate transactions, raise strong arguments, and avoid missteps that could lead to an adverse size determination. Register now to demystify SBA rules and gain the knowledge needed to respond to size protests and succeed in appeals.
    If you are interested, please register here.
    The post Free Webinar Event: Mastering Size Calculations for SBA Size Determinations hosted by LeftBrain, December 12, 2023, 1:00pm EST first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  10. Koprince Law LLC
    Everyone has New Year traditions. Some do resolutions, some take vacations, some simply buy a fun new calendar. Here at SmallGovCon we like reading the different federal contracting annual reports. These annual reports function as almost yearbooks or like a friend’s yearly holiday card that discusses all the highlights of the past year. These annual reports are a great resource for contractors to catch up on what a specific agency or tribunal has been up to, and plan for the year ahead. In this quick review of the CBCA and ASBCA’s annual reports, we will cover some of those takeaways. Who knows, maybe in reading this post, you can find something that gives you your own federal contracting new year’s resolution.
    The Civilian Board of Contract Appeals (CBCA) functions as a tribunal at which contractors and civilian agencies can “resolve contract disputes between government contractors and agencies under the Contract Disputes Act.” As such, when reading about the CBCA you will typically hear about contract claims, and different contract administration and performance issues. While it doesn’t seem to get as much traction on publications about federal contracting as say the GAO or Court of Federal Claims, it is still a tribunal which many contractors may someday need to go to in order to resolve issues. Similarly, the Armed Services Board of Contract Appeals (“ASBCA”) is a tribunal that generally hears contract disputes between Department of Defense agencies and contractors . As the CBCA annual report has more information this year than ASBCA, we will start with some nuggets of info from that.
    CBCA Annual Report
    CBCA’s 2023 annual report covers a good amount of ground. You will find some significant case summaries, information on new staff (including a new Judge), acknowledgment of staff achievements, and fiscal year statistics. Of most interest to federal contractors will likely be the cases and statistics, although it is good to put faces to names that you may encounter as well as recognize the great work CBCA’s employees may be completing.
    CBCA Cases of Note:
    In its annual report, CBCA lists summaries of nine cases that it deems “Decisions of Note.” All are worth a quick read (each is about half a page). The cases noted by CBCA in the annual report provide some great examples and pitfalls for contractors to consider prior to filing with CBCA. Some good takeaways are below:
    Alan E. Fricke Memorials, Inc. v. Department of Veterans Affairs, CBCA 7352, et al. (Jan. 12, 2023) VA issued cure notices for performance of a contract for inscription services at a VA cemetery. The contractor did not respond directly to the cure notices, but eventually completed all backlogged work on the contract. VA, however, terminated the contract for default. Upon review, CBCA converted the termination for default to a termination for convenience. CBCA found that the cure language didn’t properly put the contractor on notice that the CO sought a plan for how the contractor would “receive and process orders in the future and that, by the date of the cure notices, [contractor] had no delinquent orders to support a default termination.” With this case, CBCA seems to be issuing an alert to agencies that cure notices must be clear, and that contractors should strive to catch up on any work that may be subject to them. If it’s not clear, a contractor may be able to challenge a default termination. Contractors should also read any cure notices closely, and correct any problems. Cobra Acquisitions, LLC v. Department of Homeland Security, CBCA 7724 (Sept. 21, 2023) The contractor here had a contract with the Puerto Rico Electric Power Authority (“PERPA”) to provide power restoration services. This contract stemmed from the Federal Emergency Management Agency (“FEMA”) entering into a “cooperative agreement with Puerto Rico” to allow FEMA to provide disaster assistance. PERPA failed to pay the contractor “more than $174 million” that the contractor claimed was due. The contractor submitted a claim to FEMA for this. The CBCA however states that under the Contract Disputes Act (“CDA”), its jurisdiction is limited to contracts with an executive agency, and FEMA (the executive agency here) was not a party to the contract between PERPA and the contractor. CBCA continued, clarifying that a “suretyship arrangement is not a contract for the procurement of good or services” and would not be seen as a procurement contract under CDA. The CBCA “lacks jurisdiction to entertain third-party beneficiary contract claims.” CBCA’s jurisdiction is limited to direct contracts with executive agencies; and even if an executive agency may have been the cause behind an action, if the contract itself is not with that agency, then CBCA cannot hear the claim. Contractors need to be sure to nail down who their contract and claim is with, before diving into the CBCA process. SBA Archway Helena, LLC v. General Services Administration, CBCA 5997, et al. (Mar. 6, 2023) In a design/build lease with GSA, the contractor alleged that GSA was “at fault for 234 days of delay in issuing a notice to proceed (NTP) after the contract was awarded.” This caused occupancy and the start of rent payments to be pushed back. CBCA found that the costs at issue (pre-occupancy costs) would not have occurred under the lease without the agency’s delay. That being said, the CBCA did not agree that GSA was liable for the entirety of the delay, adjusting the percentage of costs accordingly. This confirms that an agency’s delay in starting a contract could lead to a viable claim for contractors, but that CBCA will not take a contractor’s length of delay in such claim at face value. CBCA will make its own determination on how much a contractor can recoup in any such claim. CBCA Statistics:
    CBCA notes that there were 409 new cases filed at CBCA in 2023, but this includes cases that are not claim appeals, such as FEMA cases, of which there were quite a few. There were 246 claim appeals docketed in the past year. For the 47 claim appeal cases that went to a decision on the merits, the Board granted the appeal 10 times (contractor fully wins), granted in part the appeal 11 times (contractor won some of its grounds), and denied the appeal 26 times. The report mentions CBCA dismissed 138 CDA cases (125 were voluntarily dismissed, often meaning a settlement was reached). The CBCA also produced a graph of which agencies had the most appeals filed. It would appear that the agency with by far the most appeals filed was the Department of State, followed by the VA, and then the GSA.
    Taking the statistics into account, a great many CBCA appeals end in settlement. And of those not ending in settlement or dismissal, close to half of appeals (about 45%) at least result in some victory for the contractor.
    ASBCA Annual Report
    The ASBCA’s annual report focuses on the statistics for ASBCA during 2023. The ASBCA docketed 342 cases in 2023, representing a decrease of 58 cases from 2022. This also marks a 5-year low for the amount of cases docketed at ASBCA. Among the DoD agencies that had cases docketed, the one with the most was the Corps of Engineers at 105, with the Army, Navy and Air Force with 40 to a little over 50 cases each.
    The ASBCA resolved (or as they say “disposed”) 375 cases in 2023, 22 less than 2022. Of those, 88 were sustained, 44 were denied, and 243 were dismissed. The 88 sustains are lower than 2022, but still represent a higher amount of sustains than in 2019, 2020, and 2021. Of those not dismissed, that represents quite a high sustain rate of 67%–but we have few details on what a sustain resulted in for the contractor. Very few ASBCA cases are appealed up to the U.S. Court of Appeals for the Federal Circuit, as there were 14 appeals filed based on 13 ASBCA decisions in 2023. ASBCA also highlighted that 83 cases were voluntarily diverted to Alternative Dispute Resolution.
    In comparison to CBCA, the ASBCA rules in favor of the contractor more often on the merits. But it does look like ASBCA’s usage was less common than the CBCA this past year, which is interesting because DoD spends many more contract dollars than civilan agencies. Whether that was due to less contracting issues in DoD contracts, or due to some form of wariness in using ASBCA, is unclear.
    While ASBCA and CBCA may not be the most talked about federal contracting tribunals, they are still widely used. As you can see, there is some helpful information in these annual reports. Given the percentage of sustains and settlements reached for claim appeals, it is crucial to fully assess your options with a federal contracting attorney to see if you have a viable case before going to the CBCA or ASBCA.
    Questions about this post? Email us. Need legal assistance? Call us 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 Government Claim Appeals Nuggets from the ASBCA and CBCA 2023 Annual Reports first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  11. Koprince Law LLC
    Under 13 C.F.R. § 124.506, if an 8(a) contract price would exceed a certain threshold ($7 million for manufacturing contracts, $4.5 million for others), in most cases, the agency must compete the set-aside.  13 C.F.R. § 124.506(a)(5) is a provision meant to close up what otherwise would be a loophole in the rules. It states that “[a] proposed 8(a) requirement with an estimated value exceeding the applicable competitive threshold amount may not be divided into several separate procurement actions for lesser amounts in order to use 8(a) sole source procedures to award to a single contractor.” But this rule does not apply in all circumstances. In particular, it does not apply to bridge contracts.
    In Anika Systems, Inc., B-422187 (Feb. 1, 2024), the SEC (the federal one, not the football one), had a two-step acquisition plan for data management services. It would sole source the first part to 8(a) participant Peregrine Advisors Benefit, Inc. (Peregrine) and compete the second part, worth $43 million, for 8(a) participants to bid on. The first part in 2022 went through without issue. But the second part of the acquisition was protested by unsuccessful offerors, resulting in the SEC taking corrective action. The problem was that now, the 2022 contract to Peregrine was about to expire with no successor to take on the data management services. As such, the SEC offered a bridge contract worth $4.2 million to Peregrine to continue the work while the second part of the acquisition was carried out. Anika Systems, Inc. (Anika), one of the competitors for the second part of the acquisition protested this bridge contract.
    Anika had some good points to make on this. Most notably, Anika argued that this bridge contract was basically inseparable from the 2022 contract as both contracts involve provision of the exact same services, and that, combined, the requirements had a value that exceeded the 8(a) sole source dollar limit. The SEC countered that the bridge contract wasn’t an attempt to split its requirement into smaller procurements so it could sole source the work to Peregrine. It argued that the bridge contract was a different requirement since it was issued in light of the protests and corrective action for the second part of the acquisition. The SEC also stated that 13 C.F.R. § 124.506(a)(5) is not meant to stop bridge contract as bridge contracts are a stop-gap measure to be used until an actual competition can take place.
    The SBA (invited to the party by GAO because the matter involved SBA regulations and GAO usually listens to SBA when interpreting SBA rules) filed a brief and agreed with the SEC’s interpretation, noting that the regulation was really meant to stop agencies from using indefinite-delivery, indefinite-quantity (IDIQ) contracts to get around the threshold. It “implemented this regulation to prevent an agency from dividing an IDIQ contract into separate smaller contract actions to make award to a single firm without competition.” Per SBA, it was not meant to stop agencies from using emergency measures like bridge contracts.
    GAO sided with SBA and the SEC. It noted that back in 2000, it in fact had addressed this question and agreed with the government’s view of the matter in Champion Bus. Servs., Inc., B-283927 (Jan. 24, 2000). GAO agreed that “the regulation does not apply to bridge contracts because bridge contracts do not pose any threat to the aims sought to be protected by a competitive procurement.” Going further, it noted its decision in New Tech. Mgmt., Inc., B-287714.2 (Dec. 4, 2001). There it “concluded that the regulation only applied to the award of concurrent contracts.” In other words, the regulation prohibits agencies from taking a single contract for, say, 10 services that would have a value above the threshold, and dividing it out into five separate contracts with covering two services each and each smaller contract being below the threshold.
    Anika also made an argument that the SEC failed to consider the effect the bridge contract would have on the equitable distribution of 8(a) contracts. Under 13 C.F.R. § 124.503(g), “[a] procuring activity contracting officer must submit a new offering letter to SBA where he or she intends to award a follow-on repetitive contract as an 8(a) award.” The SEC had not done this. However, GAO also rejected this argument. 13 C.F.R. § 124.3 notes:
    “The determination of whether a particular requirement or contract is a follow-on includes consideration of whether the scope has changed significantly, requiring meaningful different types of work or different capabilities; whether the magnitude or value of the requirement has changed by at least 25 percent for equivalent periods of performance; and whether the end user of the requirement has changed. As a general guide, if the procurement satisfies at least one of these three conditions, it may be considered a new requirement.”
    The bridge contract only had a base period of one month and was worth only $4.2 million compared to the $43 million original competitive acquisition. As such, it was a new requirement, not a follow-on requirement, so the new offering letter requirement did not apply.
    Thoughts
    GAO’s analysis seems very reasonable concerning bridge contracts, which really aren’t planned ahead of time. After all, how can you divide a requirement after the fact? But we think this protest raises some important questions. What happens when an agency decides that instead of competing a five-year contract to 8(a) companies, it will just sole source five one-year contracts at the sole source dollar threshold to an 8(a) company? Assuming they do this while complying with 13 C.F.R. § 124.503(g) and receiving SBA approval, there’s still an argument to be made that the agency is splitting up a five-year contract into five separate one-year contracts to stay under the threshold limit. 13 C.F.R. § 124.506(a)(5) doesn’t specify that it only applies for concurrent procurements, it says that “[a] proposed requirement may not be divided into several separate procurement actions for lesser amounts in order to use 8(a) sole source procedures to award a single contractor.” In fact, couldn’t this have maybe applied to the 2022 Peregrine contract itself? The agency basically split the procurement into two parts, one large and one small, and sole sourced the small part. It was too late for a GAO protest on the matter, but it is interesting to think about.
    It seems the implication is that the procedures in 13 C.F.R. § 124.503(g) on repetitive contracts will serve to prevent such a situation, and to SBA’s credit, we think that would do a good job of it. But it still opens a potential door, and we think it is something where some clarification in the regulation language itself could be helpful.
    Questions about this post? Email us. Needing legal assistance? 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 A Bridge (Not) Too Far: Prohibition on Dividing up Contracts to get Under 8(a) Sole Source Dollar Limit Doesn’t Apply to Bridge Contracts first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  12. Koprince Law LLC
    Happy Friday! We always know it’s almost Labor Day when the sunflower fields start blooming in Kansas. They hold a special place in our hearts because they are the state flower. People come from miles around to visit and photograph the beautiful fields each year. I mean, how can you not smile when you see a sunflower, right?
    We hope you have some fun plans for the long Labor Day weekend and if you have a bit of spare time, we have provided some interesting articles on what’s happening in federal government contracting below, including new small business data, updated rules on the 8(a) Program, and more. Have a great holiday weekend.
    SBA Releases New Small Business Award Data Hub Local Small Business Achievements by Fiscal Year Government contracting: Protecting the recipe to your intellectual property Contractors make plans for a messy start to the next fiscal year U.S. Department of the Treasury, IRS Release Guidance on Inflation Reduction Act Provision to Ensure Good-Paying Clean Energy Jobs, Expand Clean Energy Workforce CAAC Consultation to Issue a Class Deviation From the Federal Acquisition Regulation (FAR) Regarding the Small Business Administration (SBA) Memorandum, “Impact of Recent Court Decision (Ultima Servs. Corp. v. Dep’t of Ag. (E.D. Tenn.)) on the use of the 8(a) Program” Asphalt Paving Company and President Plead Guilty to Bid Rigging SBA Announces Extension of Moratorium on 8(a) Eligibility Requirement Telework leads to feds ‘phoning it in,’ says senator seeking IG assessment Defense Contracting:DOD’s Use of Federal Prison Industries Class Deviation—Verification of Eligibility for the 8(a) Program The post SmallGovCon Week in Review: August 28-Sept. 1, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  13. Koprince Law LLC
    Happy Friday! We hope you enjoyed the nice long weekend. After this long heatwave, we’ve been enjoying the cooler weather this week, here in Kansas. I think it’s safe to say that most everyone is ready for fall.
    There was a lot of activity this week in federal government contracting. We have included some articles that we hope will be of interest, including updates on the 8(a) Program, and a lot of changes on the IT front for federal agencies. Enjoy the weekend!
    SBA program upended in wake of Supreme Court affirmative action ruling Sen. Ernst to agencies: No more ‘easy As’ on the SBA scorecard Maryland Woman Charged for Role in Million Dollar Fraud at New Orleans Marine Forces Reserve Facility You’re not innovating if you’re not talking to small business SBA looking to accelerate AI breakthroughs as part of ‘customer-centric’ transformation VA vows ‘full review’ of website after IT issues impact disability claims for nearly 57,000 veterans How NASA, NOAA and AI might save the internet from devastating solar storms The Pentagon’s innovation arm has a new chief and a new strategy Verizon agrees to settle False Claims allegations over cyber standards for federal contractors GSA opens office to support Biden’s open government plan Federal agency contingency plans lay in wait for shutdown notices Army switches from GDIT to Leidos to run its multibillion-dollar hardware contract vehicle UW and Wyoming APEX Accelerator to Host ‘Lunch and Learn’ Workshop Sept. 13 The post SmallGovCon Week in Review: September 4-8, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  14. Koprince Law LLC
    Steven Koprince, Govology Legal Analyst and retired founder of Koprince McCall Pottroff (and all around cool dude) will be presenting this webinar providing a big-picture overview of small business certifications in the government marketplace. In this webinar, you will learn about various federal small business certification programs, including Small Business Self Certification, Small Disadvantaged Business (SDB) & 8(a), Service-Disabled Veteran-Owned Small Business (SDVOSB), Veteran-Owned Small Business (VOSB), Historically Underutilized Business Zones (HUBZone), Woman-Owned Small Business (WOSB), and Economically Disadvantaged Woman-Owned Small Business (EDWOSB). Steve will also touch on state and local certification programs and provide information on additional training and resources you can use to develop a deeper understanding and get help with any federal, state, and small business certification program. If interested in this informative webinar, please register here.
    The post Govology Webinar: An Introduction to Government Small Business Certifications (2023 Update) July 25, 2023, 1:00pm EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  15. Koprince Law LLC
    Congress has made it pretty tough to file a protest against a task order. For one thing, task order protests can generally only occur at the Government Accountability Office (GAO). For another, if a task order dollar value is too small, it can’t be protested at all. A recent case confirms that the exceptions to the restrictions on task order protests are quite narrow. However, a protest can allege that a task order increases the scope, period, or maximum value of the contract under which it is issued. Here, the protester did that. GAO had jurisdiction, but still denied the protest. 
    In Duro Health, LLC, B-421947 (Nov. 30, 2023), GAO considered an Air Force task order proposal under Defense Health Agency’s (DHA) Medical Q-Coded Service (MQS) multiple award contract vehicle. DURO was not one of the MQS contract holders. The protester argued that instead of being solicited under the MQS IDIQ contract vehicle, the work should have been procured under United States Special Operations Command’s (USSOCOM) Preservation of the Force and Family Program (POTFF).
    MQS is designed for “procurement[s] of health care staffing requirements,” including “physician, nurse, dental, and ancillary contract services” as well as “ancillary services” from health care workers. This particular task order sought “services of physical therapists, certified athletic trainers, performance dietitians, licensed clinical social workers, and strength and conditioning specialists.”
    DURO’s main argument in its protest was that the “agency seeks services that are outside the scope of the MQS contract. The protester contends that the instant requirement is part of USSOCOM’s POTFF program, and as such, the services are beyond the scope of the MQS contract vehicle.”
    As we’ve noted on the blog before, there are very specific requirements dealing with protests of task order proposals. Specifically, GAO can only review “protests of task orders that are issued under multiple-award contracts established within the Department of Defense (or protests of the solicitations for those task orders) where the task order is valued in excess of $25 million, or where the protester asserts that the task order increases the scope, period, or maximum value of the contract under which the order is issued.” 10 U.S.C. § 3406(f). GAO, in reviewing scope, will examine “whether the order is materially different from the original contract, as reasonably interpreted.”
    Here the dollar value of the task order was under $4 million. So, it seems like GAO would simply say, no jurisdiction. Not so fast. Here, the protester properly argued that the task order was not within the scope of the underlying MQS contract. Specifically, DURO argued “that the services sought are outside the scope of the underlying MSQ IDIQ contract,” so GAO found that “this protest is within our Office’s jurisdiction.”
    However, the protester still lost. GAO determined that the “MQS IDIQ contract covers the provision of health care workers . . . in providing direct health care services to eligible beneficiaries” and the MQS solicitation specifically listed positions that were in this task order RFP, such as physical therapist and performance dietitian. Therefore, the scope of the MQS included the services sought under this task order, and GAO denied the protest.
    GAO’s jurisdiction is limited when it comes to task orders. However, it will consider a protest that a task order expands the scope of the underlying IDIQ contract. Therefore, just because GAO had jurisdiction doesn’t mean the protest is won. Rather, GAO will look to the scope of the IDIQ contract to determine if the task order fits within it. It doesn’t matter if another IDIQ contract might work, too, only whether the IDIQ contract chosen by the agency fits the scope of the task order.
    Questions about this post? Email us. Need legal assistance? Call us 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: Small Task Order Protesters Can Protest Scope of Task Order first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  16. Koprince Law LLC
    In this webinar, Nicole Pottroff and I will cover the most important legal developments for federal contractors in 2023. We will discuss some new small business rules, updates to the 8(a) rules and application procedures, joint venture changes, updated SDVOSB certification requirements, key provisions of the recent National Defense Authorization Act, and more. Hope you can join us. Register here.
    The post Govology Webinar Event: 2023 Government Contracting Year in Review, December 7, 2023, 1:00pm EST first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  17. Koprince Law LLC
    Happy Friday and happy belated Valentine’s Day. We hope you had a great week and found some time to celebrate with your loved ones. We have certainly been in celebration mode with the Kansas City Chiefs winning the Super Bowl on Sunday. What an exciting game and what a great season!
    There was a lot of news from the federal government contracting world this week, as well. We have included a few articles that we hope will be of interest to you below, including those on small business contracting involvement and CIO-SP4 protests. Enjoy your weekend.
    Small business participation in federal marketplace continues decline despite $159 billion in awards [FCW] JUST IN: Muddled Process Deterring Small Businesses from Defense Contracts, Study Shows [NatDefMag] This week in Congress: A full slate of leaders for VA [FedTimes] Spacelabs Healthcare, LLC Agrees to Pay $2.5 Million to Settle Allegations it Overcharged Federal Agencies for Patient Monitoring Equipment [DoJ] Biden is pushing contractors to cut emissions. They’re pushing back. [WashPost] NASA, Air Force contractor to settle with DOJ for $400,000 in False Claims Act case [FedScoop] New round of CIO-SP4 protests gets underway [WashTech] Contractors eye a report about contract management by the GSAIG [FedNewsNet] Insulation Contracting Firm Co-Owner Sentenced to Fifteen Months in Prison and Ordered to Pay more than $1 Million to Victims of Bid Rigging and Fraud [DoJ] NIH $50 billion IT services contract being buried under protests [FedNewsNet] The post SmallGovCon Week in Review: February 13-17, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  18. Koprince Law LLC
    SBA’s size protest rules contain a stick to force companies to respond to SBA as part of size determination. That stick is called the adverse inference rule. The adverse inference rule says that, if SBA requests specific information and a protested company refuses to provide it, SBA may assume that the missing information would show that the company is not a small business. In a recent decision, SBA’s Office of Hearings and Appeals (OHA) upheld the use of the adverse inference.
    In Portacool, LLC, SBA No. SIZ-6251 (October 24, 2023), Defense Logistics Agency (DLA) conducted a small business set-aside procurement for for evaporative coolers. DLA assigned North American Industry Classification System (NAICS) code 333415, Air Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing, with a corresponding size standard of 1,250 employees. Portacool (or Appellant) was the apparent awardee and its size was protested by Portable Air Group, LLC (PAG or protester).
    The protest alleged that Portacool was acquired in April 2012 by a large business and is no longer small. As part of the standard response to a size protest, a protested company receives a letter from the SBA informing it that it has to provide a “response to each of the allegations in the protest”, as well as provide certain relevant documents and completed Form 355. The Form 355 provides basic information about ownership and management of the protested concern and potential affiliates.
    Among the items requested by SBA were:
    “A copy of organizational documents (i.e., Articles of Organization and Operating Agreement or Bylaws) for [Appellant] and all potential affiliates”; “If [Appellant] is not the manufacturer [of the evaporative coolers], an explanation of [Appellant’s] compliance with each of the four elements of the manufacturer rule in 13 CFR 121.406(b) is required”; “Completed employee calculation worksheet for [Appellant] and all of the potential affiliates, each affiliate will need to prepare a [worksheet].” Portacool received an extension to its response due date. After some back and forth with the SBA, the SBA wrote:
    The SBA Area Office determined that Portacool was not small. “The Area Office found that Appellant did not adequately respond to the Area Office’s requests for information posed on July 19, 2023, August 7, 2023, and August 14, 2023, and therefore drew an adverse inference that the missing information would have shown that Appellant is not small.” Among other things, the Area Office noted that “Appellant claimed that it is 100% owned by [Company 1]” but “Appellant did not disclose the owners of [Company 1] nor identify other potential affiliates.”
    Overall, the Area Office found that Portacool’s responses “lacked the necessary detail for the Area Office to determine ‘who ultimately owned and controlled’ Appellant” and failed to address various potential affiliates and their employee counts. Portacool appealed the size determination, arguing it had provided all relevant information to show it was small.
    Adverse Inference
    Under SBA size protest rules, protested companies must respond to SBA questions, provide a Form 355, and has the burden to establish it is small. In particular:
    13 C.F.R. § 121.1008(d).
    Under OHA’s test, SBA may impose an adverse inference based on three factors:
    In this case, OHA confirmed that the Area Office properly imposed the adverse inference penalty. First, the Protester “raised a specific and credible protest allegation, i.e., that Appellant is not small because Appellant was acquired in April 2012 by” another company–and SBA asked questions related to this protest allegation. However, Portacool did not adequately respond because it “failed to disclose specific information about other concerns that may be owned or controlled by” Portacool, its parent companies, or the individual owner of the parent companies. Portacool provided no information about the size of potential affiliates. Portacool, in its Form 355, had indicated it had an affiliate, but then tried to disclaim affiliation on appeal. OHA rejected this request.
    Conclusion
    Ultimately, OHA rejected this appeal. This case shows how important it is to fill out the Form 355 carefully upon the initial submission to SBA. It is very hard to walk back what is submitted in the initial version of documents sent to SBA. It is also very important to make responses to size protest allegations and requests for information that are both responsive and timely. Federal contractors must be careful in how they respond to an SBA size protest. Some things cannot be fixed on appeal.
    Questions about this post? Email us . Need legal assistance? 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 OHA: Respond to SBA Size Determination Questions, or Risk an Adverse Inference first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  19. Koprince Law LLC
    A lot has been happening in the 8(a) Business Development Program world over the past couple of weeks. SBA has been busy updating regulations applicable to the 8(a) Program to both bring SBA rules into alignment with the economic realities in a post-COVID world and to make 8(a) requirements more uniform across the board. Here, we focus on a change to ownership rules for non-disadvantaged owners of 8(a) Program participants that are also part of an SBA-approved Mentor-Protégé Agreement.
    As mentioned, the SBA has been busy with a flurry of activity related to the 8(a) Program. With probably the largest impact to the 8(a) Program, was the decision regarding a challenge to a presumption of social disadvantage. That decision led to the ongoing temporary pause on submission and at least some application reviews. And don’t forget the SBA’s regulatory agenda which includes a planned change to increase the economic disadvantage thresholds for 8(a) (and economically disadvantaged women owned small business) participation. Now, we turn to the 8(a) Program participant ownership rules, and resolve a long-standing conflict between such rules and those applicable to Mentor-Protégé Program participants.
    13 C.F.R. § 124.105 discusses, in detail, the ownership requirements for the SBA’s 8(a) Program including the minimum ownership percentage a disadvantaged individual may have and the maximum ownership percentage that non-disadvantaged individuals may have in an 8(a) Program participant. The ownership requirement for the disadvantaged individual is relatively easy to determine. Ownership of a partnership? “At least 51 percent of every class of partnership interest.” 13 C.F.R. § 124.105(b). Ownership of an LLC? “At least 51 percent of each class of member interest.” 13 C.F.R. § 124.105(c). Ownership of a corporation? “At least 51 percent of each class of voting stock outstanding and 51 percent of the aggregate of all stock outstanding.” 13 C.F.R. § 124.105(d).
    This is consistent with the SBA’s ownership requirements for woman-owned small businesses and service-disabled veteran owned small businesses as well. In short, the qualifying individual, or group of qualifying individuals, must unconditionally and directly own 51% of the business. Logic then follows that non-disadvantaged individuals and/or non-8(a) concerns, which we will collectively call non-disadvantaged persons, are permitted to own up to 49% of the 8(a) participant. Simple, right? Yes, but—there’s always a “but,” right?—when non-disadvantaged owners begin “collecting” ownership shares in multiple 8(a) participants, the rules get a bit more complicated.
    The ownership restrictions for non-disadvantaged persons with an interest in multiple 8(a) concerns are much more limited. 13 C.F.R. § 124.105(h)(1) restricts non-disadvantaged persons that are a general partner or stockholder with an ownership share of at least 10% in one 8(a) participant from owning more than a 10% interest in another 8(a) participant in the developmental stage, or 20% in the transitional stage. There was no change to this particular section between the prior version and the current version.
    However, there were some changes to 13 C.F.R. § 124.105(h)(2) to help clarify a conflict between 8(a) ownership rules and the Mentor-Protégé Program rules. The information in the previous version of 13 C.F.R. § 124.105(h)(2), focusing on non-8(a) participant concerns in the same or similar line of business, remains intact, although it is broken up between different sections. 13 C.F.R. § 124.105(h)(2) restricts non-8(a) participant concerns, or principals of such concerns, in the same or similar line of business from owning more than a 10% interest in an 8(a) participant in the developmental stage, or 20% in the transitional stage.
    The remaining information was moved to a new sub-section, found at 13 C.F.R. § 124.105(h)(2)(i), which restricts former 8(a) participants in the same or similar line of business, or principals of such concerns,  from owning more than a 20% interest in a current 8(a) participant in the developmental stage, or 30% in the transitional stage.
    If you are familiar with SBA programs, you are probably wondering whether this means that mentors are now restricted from, at the very most, owning more than a 30% interest in a current 8(a) participant. According to SBA’s Mentor-Protégé Program rules, a mentor has traditionally been permitted to own up to a 40% interest in its protégé. It’s no doubt one of the benefits that attracts mentors to the Mentor-Protégé Program. But the former language of 13 C.F.R. § 125.9(d)(2) made no mention of participants in the Mentor-Protégé Program. So, which is it: 10, 20, 30, or 40%? Well, this, my friends, is exactly what the change in this particular 8(a) Program ownership rule targets.
    Finding a need for clarity, SBA added new language, found at 13 C.F.R. § 125.9(d)(2)(i), which states that a mentor in an SBA-approved Mentor-Protégé Agreement may own up to 40% of its protégé. This applies whether the mentor and protégé are in the same or similar line of business—“same or similar line of business” meaning business activities that share the same four-digit industry group of the NAICS Manual as the 8(a) participant’s primary industry classification. For example, a mentor who worked in 541310 Architectural Services would be in the same or similar line of business as its protégé if the protégé’s primary industry classification is 541330 Engineering Services, because both NACS Codes fall under the 5413 industry group of Architectural, Engineering, and Related Services.
    Given the number of changes that occurred within this particular rule amendment in the Federal Register, it is easy to see that the SBA is making an attempt to clear up some long-standing ambiguities within the 8(a) Program. Stay tuned for more information on even more changes within this action-packed Federal Register entry.
    Questions about this blog? email us at info@koprince.com
    Questions about this post? Email us. Need legal assistance? 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 SBA Clarifies Inconsistencies in 8(a) and Mentor-Protégé Ownership Rules first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  20. Koprince Law LLC
    Happy Friday Readers. We hope you all have had a great week. We are enjoying some milder winter weather here in Kansas finally. We still have a bit to go before spring, but it feels like it is right around the corner. We will be following our KC chiefs as they look to defend their Super Bowl title!
    Enjoy the weekend and we also hope you will enjoy reading the articles below, regarding federal government contracting this week. Some highlights include more on the push to increase small business participation, and new legislation that will have an impact on contractors.
    Ex-CIA officer and WikiLeaks source sentenced to 40 years for largest breach in agency history Audit of the U.S. Ability One Commission’s Quality of Products in Support of Meeting Government Requirements PF 2024-17 Increasing Small Business Participation on Multiple-Award Contracts Senate Panel Advances Bills on Contracting, Cyber Competition, Other Matters FACT SHEET: The Biden-⁠Harris Administration Advances Equity and Opportunity for Black Americans and Communities Across the Country Data privacy is a full-time job at OPM. It’ll only get busier in the AI age Hit by OPM’s data breach? Bill offers feds free ID protection for life Contracting Orders legislation passes out of House Small Business Committee White House breaks the rules on rulemaking for contractors Chairman Williams: “Under the Microscope: Reviewing the SBA’s Small Business Size Standards” Space VCs urge startups to pursue government contracts but stay focused on commercial success The promise and peril of AI for federal contractors Study: Women-owned firms generate nearly 6,500 jobs Regulatory Agenda: Semiannual Regulatory Agenda General Services Administration celebrates $62.4 million award for improvements at Whittaker Courthouse in Kansas City as part of President Biden’s Investing in America agenda The post SmallGovCon Week in Review: February 5-9, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  21. Koprince Law LLC
    Many federal contractors know of and participate in the SBA’s Mentor-Protégé Program. However, there are many agency specific Mentor-Protégé Programs, including the oldest continuous program, the Department of Defense’s Mentor-Protégé Program. The DoD’s program has been operating since around the First Gulf War, and like any good machine that is a few decades old, regularly needs some updates. Just in the past week, the DoD released the newest proposed changes to its program.
    Here at SmallGovCon, we have always endeavored to stay on top of all the different changes to the myriad of small business contracting programs. As such, you may remember we covered last year’s changes to the DoD’s Mentor-Protégé Program. Those updates proposed changes to the length of the Mentor-Protégé Agreements, and protégé eligibility, among other items. Well, in what appears to be a new fall tradition, the DoD on October 25 released further proposed changes to its Mentor-Protégé Program.
    While there are many similarities between the SBA’s Mentor-Protégé Program, and its “older cousin” at the DoD, there are quite a few unique characteristics to the DoD’s own program. While a separate blog post about all the differences is likely justified as some point, for this blog, we will just cover the unique items that DoD is planning on updating right now.
    Currently, the DoD’s Mentor-Protégé Program has a deadline for hopeful participants to apply for inclusion. Additionally, Mentors are able to either receive some small business contracting credit or reimbursement of costs through the DoD Mentor-Protégé Program. For Mentor-Protégé Agreements entered into after December 23, 2022, the Mentor actually has deadlines to submit data on those items. Also, to qualify as a Mentor, a business must show the ability to impart value to a Protégé. That of course can be shown in many ways, but one is having DoD contracts and subcontracts equal to or greater than $100 million during the previous fiscal year. Additionally, a Mentor-Protégé Agreement under the DoD’s Program can only last for two years currently, with the possibility of reaching five years in special circumstances.
    Now the DoD is proposing to change those specific items. In its proposed rule, the DoD plans to make the following adjustments:
    First, you may notice in DoD’s regulations, that it calls its program the “Pilot Mentor-Protégé Program.” The DoD is proposing to make their Program permanent (yes, the oldest continuously operating Mentor-Protégé Program technically is not permanent). In line with that the DoD proposes removing the word “Pilot” from all regulations, likely alleviating those among us who are sticklers for proper word usage. Also, the DoD will remove the deadline to apply to participate in the program. Logically, if something has no end, then there should be no deadline to get in.
    Next, to the delight of many who may be trying to determine further deadlines, the DoD proposes removing the specific dates found in the DFARS for mentors to submit for reimbursement and credit towards subcontracting goals under mentor-protégé agreements that were entered into after December 23, 2022.
    Also, in moves that were likely aimed to increase participation, or at least interest among potential mentors, the DoD is proposing a reduction of the dollar threshold associated with mentor eligibility, and increasing the length of a mentor protégé agreement. The DoD would adjust the amount of revenue from DoD contracts required to be a Mentor, from $100 Million during the previous fiscal year, to $25 Million. Also, a DoD Mentor-Protégé Agreement would now last three years, rather than two.
    Finally, the DoD proposes changes to a type of assistance that could occur under a DoD MPA. The DoD is adding “manufacturing, test and evaluation” to the list of assistance that a Mentor may provide to a Protégé, and “manufacturing innovation institutes” to the list of assistance that a Mentor may obtain for a Protégé.
    It is important to note that these are proposed changes, not final. So, there is still a period for comments. Therefore, if you have thoughts or comments on these proposed changes, your comments may be submitted up until December 26, 2023. The DoD will consider those comments when forming a final rule.
    While these are only proposed changes, it is likely that in the absence of glaring contradictory comments from the public, the DoD will march forward with these proposed changes. Upon first reading, it appears that these changes may actually help encourage more participation in the DoD’s Mentor-Protégé Program as it allows for longer relationships, and more Mentors to qualify. It also helps alleviate any concerns of those on the fence trying to decide whether they will participate due to it being a “temporary” or “Pilot” program. The stability of the Program, and longer-term relationships should do quite a lot to calm the waters of Mentors and Proteges; especially those who were afraid that assistance would not suffice, or they would have the rug pulled out from under them due to the non-permanent nature of the Program. Of course, much of how this goes could be determined by comments submitted. So, if you have thoughts on these changes or want to help leave your impact on the DoD’s Mentor Protégé Program, you have your chance to submit comments up until December 26th.
    Questions about this post? Email us. Need legal assistance? 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 Updates to its Mentor-Protégé Program first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  22. Koprince Law LLC
    If you are a government contractor, odds are you have faced a situation where some aspect of the contract you were performing changed outside of your control, or you ran into something that neither you nor the government expected. As a result, your work requirements likely changed, and with that, your costs likely changed as well. When this happens, there are multiple paths to getting reimbursements for those new costs, and one of the most common ones is a request for equitable adjustment. Today, we’re going to explore when you should submit a request for equitable adjustment as opposed to the other routes.
    What is a request for equitable adjustment?
    Curiously, as much as it is referenced in the FAR, there is no set definition for “request for equitable adjustment” in the FAR. That said, the appellate court has taken a stab at it: “It is a remedy payable only when unforeseen or unintended circumstances, such as government modification of the contract, differing site conditions, defective or late-delivered government property or issuance of a stop work order, cause an increase in contract performance costs.” Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1577 (Fed. Cir. 1995). Basically, a request for equitable adjustment is when you ask the government to reimburse you for some unexpected occurrence or issue that has increased your work costs. You are asking the government to make you whole for something that was outside your control. An adjustment made for equitable reasons, so to speak.
    A request for equitable adjustment is not the same as a formal cost claim. This is a crucial distinction. There is a specific procedure, located in FAR 52.233-1, to submitting a formal cost claim that requires the contracting officer to respond and that starts the path towards filing an appeal with a board of contract appeals or the Court of Federal Claims (COFC). A request for equitable adjustment does not set those mechanisms (or their corresponding deadlines) into motion. When you submit a request for equitable adjustment, there is no requirement that the contracting officer will respond, nor does a denial of the request allow you to take the matter to the board of contract appeals or COFC. So, with that said, you may ask why even consider filing a request for equitable adjustment at all? There are often good reasons to go that route.
    You have a cordial relationship with the agency.
    Just because the contracting officer isn’t required to respond to a request for equitable adjustment does not mean a contracting officer won’t respond. For every example of a bad relationship between a contractor and the contracting agency, there are many examples of good relationships. In our experience, it is rare for a contracting officer to not respond to a request for equitable adjustment, even where the relationship isn’t that great. The more informal nature of a request for equitable adjustment, as opposed to a formal cost claim, can be an advantage for the contractor. It comes across as less adversarial (think of the difference between “Could you please” and “I demand”) and so can help preserve a good relationship (or even help mend a strained one) while still getting the whole cost issue sorted. Many contractors go for a request for equitable adjustment before resorting to a formal cost claim for this reason: Why make things any more difficult than they need to be if the contracting agency is on good terms with them?
    You want to test the waters of your cost claim.
    When you file a formal cost claim, as noted earlier, it sets into motion a formal process in which the contracting officer must make a decision on the claim. When the contracting officer makes a decision on the claim, that is the contracting officer’s final decision. If you do not like the decision, you then have 90 days to take the matter to a board of contract appeals or 1 year to take it to COFC. If you try taking it to a board of contract appeals after 90 days have passed or to COFC over a year later, you will be too late. These two clocks start ticking from the moment you receive the contracting officer’s final decision. You are, essentially, locked in.
    On the other hand, if you make a request for equitable adjustment and the contracting officer denies your request for equitable adjustment, no clock starts on bringing the claim to the board of contract appeals or COFC. You can decide to start the formal claim process then by filing a formal cost claim, or you can even just make another request for equitable adjustment. (Keep in mind you should make your initial request for equitable adjustment or at least assert the right to increased payment within 30 days of whatever caused your costs to increase (FAR 52.243-4) and that you must file the request before the contract is closed out). As such, a request for equitable adjustment can let you test the waters of your cost claim and see if there are any major issues with it without starting the formal process.
    Attorney fees are potentially recoverable with requests for equitable adjustment, unlike claims.
    Requests for equitable adjustment are considered negotiations rather than litigation, and under FAR 31.205-33, contract administration costs are allowable costs. This was the finding in Tip Top Const., Inc. v. Donahoe, 695 F.3d 1276, 1281 (Fed. Cir. 2012). Generally, costs in preparing requests for equitable adjustment are considered part of the negotiation process, and so are considered contract administration costs. That means that attorney and accounting fees incurred for preparing a request for equitable adjustment can be included in the request and in a later cost claim. Costs to prepare a formal claim, however, are considered litigation costs. Such costs are not allowable under FAR 31.205-33. So, this can be a great incentive to pursue a request for equitable adjustment instead of a formal cost claim, as there is the potential to get the costs of preparing that request.
    Summary
    There are many reasons why one might go with a request for equitable adjustment as opposed to a formal cost claim, but the above three are three of the most common reasons we see contractors go that route. It really will depend on the contractor’s situation on which route might be best for them. A request for equitable adjustment may be a great route in some cases, but not in others. We always recommend consulting with a government contracts attorney to discuss the potential options if you are unsure.
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    The post Why File: A Request For Equitable Adjustment first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  23. Koprince Law LLC
    Happy new year! We hope you enjoyed the holiday and are looking forward to what 2024 brings. It’s been a pretty mild winter so far, but we expect old man winter will be showing up any day now. Until then, everyone has been taking advantage of getting out and about without any major travel problems. We are all grateful for that.
    This week in federal government contracting news saw more insights on the new CMMC regime as well as important trends for 2024.
    Investigations into DoD struck a chord in 2023 Cyber risks to defense industrial supply chains are ‘substantially worse’ than other concerns Navigating the Challenges and Opportunities in Government Contracting: A Guide for C-level Executives Nondisplacement of Qualified Workers Under Service Contracts GSA Technology Transformation Services Names Eric Mill Its Executive Director of Cloud Strategy PF 2024-11 Acquisition Guide, Chapter 7.1, Acquisition Planning and Acquisition Letter 2010-05 Contract Periods of Performance Exceeding 5 Years Five things to remember about CMMC Battle renews over $356M Veterans Affairs records contract If, Then: 2024 serves up many questions and potentials Fugitive Leonard Francis Back in San Diego; Appears in Federal Court The post SmallGovCon Week in Review: January 1-5, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  24. Koprince Law LLC
    Happy Friday! It’s time to say goodbye to 2023 and usher in the new year. Here at SmallGovCon, we would like to thank all of our blog readers for a wonderful year. We will continue to work hard to provide helpful federal contracting news and updates in 2024 and we truly appreciate your continued support and feedback. Happy new year! Enjoy a final few federal contracting updates to round out the year, including the new CMMC rules and new SDVOSB goals.
    Strengthening Digital Accessibility and the Management of Section 508 of the Rehabilitation Act Class Deviation—Implementation of the United States Trade Representative Trade Agreements Thresholds Civilian Agency Acquisition Council (CAAC) Consultation to Issue a Class Deviation from the Federal Acquisition Regulation (FAR) Regarding New Trade Agreements Thresholds Risk Management: Identifying and Mitigating Risks in Federal Contracts Cybersecurity Maturity Model Certification Program Proposed Rule Published Proposed rule would allow DOD program managers to request waivers for CMMC requirements DOD Seeks Comments on Proposed CMMC Program Rule to Protect Sensitive Unclassified Information Congress Increases the Government-Wide Goal for Awards to Service-Disabled Veteran-Owned Small Businesses From 3% to 5% in a Victory for NVSBC, Veterans and American Small Businesses GSA’s Federal Acquisition Service achieves $100 billion status Addressing cyber shortages and going after zero trust: Pentagon’s efforts to modernize its forces Army Futures Command to focus more on rapid acquisition, with an eye toward potential pitfalls The post SmallGovCon Week in Review: December 25-29, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  25. Koprince Law LLC
    The White House has issued a memorandum that calls for specific procedures for Increasing Small Business Participation on Multiple-Award Contracts. To that end, OMB has recommended steps such as increasing small business order set-asides and maximizing small business set-asides across multiple types of contracts. Perhaps most importantly, OMB has directed federal agencies to apply the small business Rule of Two for all orders, which should has the potential of leading to an increase in small business set-asides. Below, we dive into these new recommendations.
    The memorandum, issued through the Office of Management and Budget (OMB), refers to a number of other policy documents. One of those is Executive Order 14091, Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. That executive order established a government-wide goal of awarding at least 15 percent of federal contract spending to small disadvantaged businesses in FY 2025.
    The White House, SBA, and the Federal Acquisition Regulatory Council (the FAR Council), had worked together to come up with solutions to “promote a diverse federal supplier base.” These actions will be the subject of future regulations in the FAR and SBA rules. Here are some of these key actions that the memo encourages.
    For Multiple Award Contracts (MACS)
    Work with agency small business specialists early. “Agencies should carefully consider total or partial small business set-asides when planning new multiple-award contracts.” Agencies should review set-aside decisions with the the agency small business specialist and the SBA’s Procurement Center Representatives (PCR). While agencies always consider small business set-asides, this recommendation says that agencies must engage both the SBA and the small business specialist at the agency, to ensure small business advocates are part of the set-aside decision. The agency small business specialist should review the decision to not use a small business set-aside. Use On-Ramps. “Consider on-ramps when developing the acquisition strategy.” This would allow small businesses to be added to MACs on a continuing basis, so that they are not foreclosed from entry just because they did not make the initial cut. Limit Off-Ramps. Agencies should not remove companies from small business MACs “because of a change to its size status, except where size status changes as a result of a merger or acquisition of the business.” Agencies should not actively look to remove small businesses from awards based on off-ramping, unless there is an acquisition of a business. We have seen some solicitations that have pretty strict off-ramping procedures. The OMB memo instructs agencies not to have such strict procedures for small businesses. For Orders under MACS
    We’ve written extensively on when agencies must set aside orders under MACS. For instance, in one COFC decision, the court held that “[t]he Rule of Two unambiguously applies to ‘any’ ‘acquisition,’ FAR 19.502-2, without any loophole for MAIDIQ task orders.” The court noted, “where the FAR intends to make the Rule of Two entirely inapplicable to the selection of a particular procurement vehicle, the FAR knows how to do so,” and it cited FAR subpart 8.4, which expressly exempts FAR Part 8 FSS procurements from the Rule of Two requirements. The indefinite delivery contract regulations in FAR subpart 16.5, however, do no such thing.
    However, GAO has disagreed with the COFC on whether the small business Rule of Two apply to orders under a multiple award contract and said it is discretionary on the part of the agency. GAO noted that it had in the past construed the small business Rule of Two as applicable to any task order delivery order solicitation, but that in 2010 Congress amended the Small Business Act to require rules allowing federal agencies to “set aside orders placed against multiple award contracts for small business concerns” “at their discretion.” Both the FAR and SBA rules echoed the language allowing agencies to have discretion in setting aside orders for small business. In various decisions, GAO had consistently ruled that “set-aside determinations under multiple-award contracts are discretionary, not mandatory.” In keeping with that tradition, GAO reiterated that agencies do not have to use small business set-asides for orders solicited against multiple award contracts.
    Perhaps in part to overcome this split in authority, here are the key actions that the memo recommends:
    “Apply the rule of two to contract orders, with limited exception.” With limited exceptions for things like urgency, “agencies should set aside orders over the micro-purchase threshold (MPT) for small business contract holders when the contracting officer determines there is a reasonable expectation of obtaining offers from two or more small business contract holders under the multiple-award contract that are competitive in terms of market prices, quality, and delivery.” This memo, then, encourages agencies to use small business set-asides for orders, regardless of the split between the COFC and GAO. This should have a positive effect on setting more acquisitions aside for small business. “Maximize orders to small businesses under the simplified acquisition threshold (SAT) to the maximum extent practicable.” Agencies should review data on what percentage of orders are not set aside and take action on those small-dollar orders. Make BICs work for small business. “Best-in-class (BIC) contract vehicles are enterprise multiple-award contracts that meet a rigorous set of criteria, including demonstrated use of category and performance management strategies and small business best practices.” Many of them have been used for awards to SDBs and SDVOSBs. Agencies should prioritize small business and use order set-asides in connection with BICs. This memo shows that the OMB is committed to increasing small business participation. It predicts that new SBA and FAR rules will be coming soon to put these ideas into practice. For now, OMB is relying on voluntary agency effort to carry out these steps. Let’s hope that many agencies follow them, but that new regulations come out soon. Stay tuned to SmallGovCon to see how this develops.
    Questions about this post? Email us or give us a call at 785-200-8919.
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    The post OMB Issues Command to Increase Small Business Participation on MACs first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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