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  1. Koprince Law LLC
    Contractors will often enter into mentor protégé relationships and joint ventures to leverage the experience and skills of multiple parties for various reasons. SBA regulations dictate how the capabilities, past performance, and experience of a mentor-protégé joint venture will be evaluated. But at the end of the day, what matters is, whether agencies will follow those regulations in their small business set-aside solicitations and evaluations thereunder. A recent GAO case addressed this issue, providing further guidance on the interplay of solicitation terms for experience evaluations and SBA’s rules for evaluating mentor-protégé joint ventures’ experience.
    SBA regulations dictate that when evaluating a joint venture’s experience, capabilities, and past performance, on a “contract set aside or reserved for small business,” the agency “must consider work done and qualifications held individually by each partner to the joint venture as well as any work done by the joint venture itself previously.” Additionally, an agency “may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.” The joint venture as a whole must “demonstrate the past performance, experience, business systems and certifications necessary to perform the contract.” Basically, if a mentor-protégé joint venture bids on a small business set-aside procurement, the agency must evaluate the members, as well as the joint venture as a whole. But, an agency can’t require the protégé member to meet the same requirements as other contractors.
    GAO in Akima Data Management, LLC; Absolute Strategic Technologies, LLC, B-420644.7, B-420544.8 (Comp. Gen. 2024) looked at terms under the Polaris small business pool solicitation. This is quite the well known procurement around federal contracting. So, unsurprisingly, there is some bid protest history with this procurement. In fact, the disputes in Akima revolve around agency action taken after a Court of Federal Claims (“COFC”) case.
    Prior to this case at GAO, the solicitation in Akima, was protested at the COFC for its terms related to submitted experience for a mentor and protégé, which stated: “a minimum of one Primary Relevant Experience Project or Emerging Technology Relevant Experience Project must be from the Protégé or the offering Mentor-Protégé Joint Venture,” and “[n]o more than three Primary Relevant Experience Projects may be provided by the Mentor.” The COFC found that these terms meant that the same evaluation criteria was was applied to all experience projects, regardless of whether the project is submitted by a protégé or not. As you recall, the SBA regulations state that the protégé will be separately evaluated from other offerors (or rather is not required to meet the same conditions as other offerors). Due to the COFC decision, the terms were updated. However, these updates were also protested, this time at GAO, bringing us to this current case, Akima.
    These terms protested at GAO still required a “minimum of one Relevant Experience Project” from the protégé or the mentor-protégé joint venture. However, the terms were also updated in response to COFC’s orders, to state this requirement could be met by “submitting ‘a Primary Relevant Experience Project’; ‘an Emergency Technology Relevant Experience Project’; or–new and specific to MJPVs–‘a Protégé Capabilities Relevant Experience Project'” to be evaluated on a pass/fail basis rather than on a scoring table that other offerors used. In connection with this change, effected offerors could revise portions of their proposal, including removing or replacing the projects impacted by the term change submitted by a protégé or by a mentor-protégé joint venture. If an effected proposal didn’t have one of these project experiences from a protégé or mentor-protégé joint venture, then offerors must submit a protégé capability experience project from the protégé or the mentor-protégé joint venture.
    Akima protested this update, stating that the solicitation should allow all offerors to update or substitute projects for experience. Absolute (the other protester), among other arguments, argued that the updated terms violated SBA regulations because it “unreasonably limits protégés from taking advantage of the experience of their MPJVs and precludes members of MPJVs from demonstrating past performance and experience to perform the contract ‘in the aggregate.'”
    GAO held that only mentor-protégé joint ventures were required to submit projects for protégés or mentor-protégé joint ventures, and the updates limit revisions to projects from the protégé or mentor-protégé joint venture. GAO also held that the updated terms do not violate SBA regulations because the regulations simply require agencies to “consider the work and qualifications of the individual members of the MPJV as well as the MPJV, itself, and provides that ‘partners to the joint venture in the aggregate must demonstrate the past performance, experience, business systems and certifications necessary to perform the contract.'” GAO interpreted the updated terms as providing mentor-protégé joint ventures with flexibility, through the ability to “replace any experience project from the protégé or the MPJV with one from the mentor or a subcontractor–while still providing details about the protégé’s capabilities.” Thus the terms meet the requirement to evaluate a mentor-protégé joint venture “based on the abilities of the joint venture and its members” as a whole.
    This case provides some great insight on: 1) the type of evaluation terms that GAO and other reviewers will see as acceptable related to mentor-protégé joint ventures; and 2) the advantages placed on mentor-protégé joint venture experience evaluations. Contractors bidding on a procurement through a mentor-protégé joint venture need to be on the look out for experience evaluation terms. If the solicitation’s terms place requirements on protégés that are the same as other offerors, or don’t consider the mentor-protégé team as a whole, then it may be seen as violating SBA rules. Additionally, mentor-protégé joint ventures (and really all contractors) should be careful to examine the effects of any corrective action or amendment to a solicitation, to ensure it meets regulatory expectations. Finally, this case serves as a great reminder to all contractors who are interested in, or are involved in the SBA’s mentor-protégé program, that the SBA’s regulations can provide significant experience advantages to joint ventures formed under SBA’s Mentor Protégé Program (such as permitting protégés to be held to different experience standards than other offerors).
    Need legal assistance with a government contracting matter? 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 GAO Says: SBA’s Rules for Mentor-Protégé Joint Venture Experience Evaluations May Limit Solicitation Terms first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  2. Koprince Law LLC
    For large and small contractors alike, teaming agreements are often essential to winning and successfully performing federal government contracts. Many agencies are (increasingly) requiring teaming agreements for a prime contractor to rely on subcontractor experience, qualifications, or resources. Even where a teaming agreement is not required to compete for a contract, it can still significantly reduce the likelihood of disputes during contract performance. So it is easy to see why teaming agreements are special enough to be the star of their own show. In this webinar, government contracts attorney, Nicole Pottroff & Greg Weber, will explain how to develop, negotiate, and administer teaming agreements that are both compliant and effective, covering best practices for teaming agreements that go beyond the bare minimum legal requirements and lead to more successful teams.  Please join us! Register here.
    The post Virtual Event Announcement: Teaming Agreements hosted by Wyoming APEX Accelerators, September 13, 2023, 1:00pm CDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  3. Koprince Law LLC
    It’s Friday and time for another week in review. The kids are finishing up the school year, so get ready parents! There are lots of activities happening in town and as I drive by our local ice cream shop it seems to be constantly filled with kids as they celebrate the beginning of summer. We hope you are looking forward to a lot of fun summer activities, as well. Enjoy the weekend!
    This week in federal government contracting included updates on veteran-owned and WOSB contracting, as well as concerns about the ranks of DoD contracting officers getting thin.
    Federal Contracting by Veteran-Owned Small Businesses: An Overview and Analysis of Contemporary Issues Women-Owned Small Business Federal Contract Program Updates and Clarifications Department of Labor Recognized by SBA for Excellence in Procurement Practices to Support Small Businesses White House procurement office releases data circular as it celebrates 50th anniversary Defense Agencies Strategic Outlook for 2024-2025 Military movers urge DoD, Congress to pause household goods contract Legislation would create program for veteran-owned small businesses to win federal contracts Senate approves FAA Reauthorization bill DoD’s acquisition workforce is stretched thin FedRAMP board launched to support safe, secure use of cloud services in government White House procurement office marks 50 years Markup Wrap Up: Committee Advances Legislation to Secure Biotechnology Data, Safeguard Taxpayer Funded Projects, Federal Grants, and More Contractors Agree to Pay $273,100 Over Failure to Deliver Telescope to the Air Force Unique Entity ID is Here The post SmallGovCon Week in Review: May 13-17, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  4. Koprince Law LLC
    Join this webinar as John Holtz and I explore the pivotal role of NAICS codes in determining eligibility for SBA’s exclusive small business set-aside contracts. Recent revisions in size thresholds, size calculations, and industry classifications within the latest NAICS manual have reshaped the landscape. We’ll also discuss NAICS codes appeals, which can be a powerful tool. Register here.
    The post Govology Webinar: Cracking the Code: NAICS Essentials for Government Contractors, September 12, 2023, 1:00pm EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  5. Koprince Law LLC
    An adverse inference is a penalty that the Small Business Administration (SBA) can enforce as part of a size protest. During a size protest determination, SBA will ask the protested company lots of questions. Sometimes, a protester will not answer those questions, either on purpose or due to oversight. Depending on the circumstances, SBA can apply an adverse inference if a protested company fails to respond to questions. If SBA applies an adverse inference, that means that the SBA Area Office will determine that the information that was not provided would prove that the company is not a small business. A recent decision reminds us about this penalty. If you are in a similar situation, reach out to a firm like ours to help think of a way to respond to SBA.
    In Size Appeal of: Sanford Fed., Inc. Appellant, SBA No. SIZ-6261, 2024 (Jan. 16, 2024), a contractor faced a size protest concerning a VA solicitation for boiler plant safety device testing under North American Industry Classification System (NAICS) code 238290, Other Building Equipment Contractors, and a size standard of $22 million.
    A protester filed a size protest against Sanford Federal, Inc. (Sanford) who was the proposed awardee. During the size protest, the SBA Area Office reached out to Sanford and asked them to provide financial information and a Form 355 (the SBA standard form for size determinations). Sanford failed to respond to multiple emails from SBA advising them of the size protest.
    As a result, the SBA found that Sanford did not qualify as small for the procurement, based on an adverse inference. SBA’s standard for adverse inference requires that three prongs be met:
    “(1) the requested information be relevant to an issue in the size determination;”
    “(2) there be a level of connection between the protested concern and the firm from which the information was requested;”
    “(3) the request for information be specific.”
    After the size determination was issued, Sanford appealed. Sanford argued that the protest did not make sense and was non-specific, basically arguing that the protest referred to contracts in 2023 that would not provide any money to Sanford until well after the period for review. As a side note, a receipts-based size standard looks back five years to calculate the average receipts for a company. 13 C.F.R. § 121.104(c)(1).
    The judge, at SBA’s Office of Hearings and Appeals (OHA), actually agreed that the protest did not appear to be on target and was nonspecific. However, that didn’t matter because Sanford did not respond to the size protest at all. OHA said that the Area Office properly applied the adverse inference rule, holding that Sanford, “could have requested that the Area Office dismiss the protest as nonspecific, or could have produced information showing that [Sanford] was small over the years 2018-2022.” But Sanford, “raised no such arguments to the Area Office, however, and its claim that the protest was nonspecific is therefore not properly before OHA on appeal.”
    Because Sanford “did not respond to the protest and did not produce a completed SBA Form 355 and other requested documents . . . [t]he Area Office therefore appropriately drew an adverse inference.”
    This is a sobering result for all small business federal contractors. If a federal contractor bids on a small business set-aside, it opens up that company to a potential size protest. Don’t respond to the size protest–and you could risk losing an award based on a protest that might not have any actual merit.
    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 Adverse Inference, the Wrong Way to Lose a Size Protest first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  6. Koprince Law LLC
    SBA administers four socioeconomic programs: Service-Disabled Veteran-Owned Small Business (SDVOSB), 8(a) Business Development Program (8(a)) Women-Owned Small Business Program (WOSB) and HUBZone. The SDVOSB, 8(a), and WOSB programs all require that the key owner generally have control over the long-term decision-making and the day-to-day operations of a company. These same rules apply to the veteran-owned small businesses program (VOSB) as well. A recent decision from the Office of Hearings and Appeals at SBA reveals that the operating agreement or bylaws for these types of companies must be very clear about how they are operated.
    In VSBC Appeal of: Tree Services, Inc., SBA No. VSBC-291 (2023), OHA looked at a VOSB company that was seeking certification. SBA denied certification due to what it considered defects in the bylaws. SBA rules state that “Non-qualifying-veterans may be found to control or have the power to control in circumstances where non-qualifying-veterans control the Board of Directors of the Applicant or Participant, either directly through majority voting membership, or indirectly, where the by-laws allow non-qualifying-veterans to prevent a quorum or block actions proposed by the qualifying veterans.” 13 C.F.R. § 128.203.
    Specifically, the company had increased the size of its board from six to nine directors, but only one director was a veteran. However, the bylaws stated that:
    “The number of directors of the corporation shall be one (1).” “The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.” SBA’s initial review of the bylaws indicated it would likely not meet the veteran control requirements “(1) there appears to be only one veteran among Appellant’s nine-member Board and (2) the quorum and voting provisions in the Bylaws would enable non-veteran directors to block corporate decisions.” More directly, SBA recommended that the company revise the bylaws to avoid any confusion about veteran control, and provided a deadline for an amendment.
    When the company did not amend the SBA denied the certification application, writing that ““it appears that there are more Directors than authorized by the Bylaws and only one Veteran individual [i.e., Mr. Anna] holds a Director position, it cannot be determined that the Veteran is able to meet the Board of Director quorum and voting requirements set forth in the Bylaws.”
    Here’s one interesting thing about the Veteran Small Business Certification (VetCert) program–it allows a company to revise its documents and resubmit for an updated review. This means that, in many cases, a veteran-owned company can update its documents and address concerns from the SBA. It’s something that most companies should take advantage of.
    In this, the company did not take advantage of the opportunity to amend. After denial, though, Tree Services filed an appeal with OHA, arguing that, although SBA gave it until May 12, 2023 to amend its bylaws, SBA nevertheless denied the application on May 10, 2023.
    Interestingly, OHA granted the appeal. OHA noted that, under SBA’s rules for the VeCert program, SBA can “request additional documentation at any time in the eligibility determination process.” 13 C.F.R. § 128.302(c). SBA must, however, “take into account any clarifications made by an Applicant in response to” an SBA request for information, and must ‘consider’”’ all information provided by the concern in deciding whether the concern qualifies as a VOSB or SDVOSB.”
    In this case, SBA did not play by its own rules and denied the application prior to the deadline. The applicant, though, did not indicate it would amend its bylaws, or provide a response showing its bylaws met the requirements. In the end, OHA remanded this matter back to SBA for further consideration.
    Thoughts
    When a government reviewer such as SBA gives a company an opportunity to revise an application to meet any errors, it’s usually (although not always) the right move to take advantage of the opportunity. This is often the case when it comes to a certification program such as the VetCert program. However, SBA must also play by the rules as well. If it appears SBA did not abide by the deadline it set, it may be worth appealing such a decision.
    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 Clearing Things Up: OHA Remands Matter for Unclear Veteran-Owned Bylaws first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  7. Koprince Law LLC
    Hello, blog readers and happy Friday. Can you believe it’s already March? In just a few short weeks, spring will (finally) be here!
    We hope that you’re gearing up for a nice weekend. But before you punch out, let’s take a look at the-week that was. In this edition of the Week in Review, Congress passed a short term spending measure to avoid another government shutdown and a report was released citing that federal employee whistleblower complaints have dropped, and Congress is trying to improve small business contracting methods. You can read more about this and other federal government contracting news in the articles below.
    Have a great weekend!
    Federal Acquisition Regulation: Certification of Service-Disabled Veteran-Owned Small Businesses Congress approves short-term extension to avoid shutdown, buy more time for final spending agreement Sen. Ernst hopeful about fixes to small business contracting Federal employee whistleblower complaints to OSC fall by nearly half over 5 years US Government Preparing 3 Key Space Contracts for Launch GovCon Expert Payam Pourkhomami Ventures Into the New Era of DOD Cybersecurity With the Proposed CMMC 2.0 Rule (Part One) DOD, GSA & NASA Release Interim Rule on SDVOSB Certification Advice for contractors when the government really, really could shut down DOD Fraud Risk Management: Enhanced Data Analytics Can Help Manage Fraud Risks DoD calls for more contracting flexibilities in 2025 NDAA Class Deviation—Prohibition on Required Disclosure of Information Relating toGreenhouse Gas Emissions SBA Announces Statutory Increases for Surety Bond Guarantee Program How emerging technologies are changing government contracting The post SmallGovCon Week in Review: Feb 26-March 1, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  8. Koprince Law LLC
    If federal contracting had a proverbial town square, it would be SAM.gov. So much federal contracting activity flows through or starts there. A large portion of SAM is contractor information. Contractors are required to be on SAM and are expected to keep their profiles on SAM updated. A “hot off the presses” GAO ruling has confirmed that the timing of SAM registration can make or break a contractor’s winning bid.
    In TLS Joint Venture, LLC, B-422275 (Comp. Gen. Apr. 1, 2024) GAO heard a protest focused on the timing of an awardee’s SAM registration renewal. At the center of the protest is FAR 52.204-7, which lays out the requirements for SAM registration when bidding on a federal procurement. FAR 52.204-7 states: “An Offeror is required to be registered in SAM when submitting an offer or quotation, and shall continue to be registered until time of award, during performance, and through final payment of any contract, basic agreement, basic ordering agreement, or blanket purchasing agreement resulting from this solicitation.” This FAR provision also warns offerors: “Processing time should be taken into consideration when registering. Offerors who are not registered in SAM should consider applying for registration immediately upon receipt of this solicitation.”
    In this case, the awardee submitted its renewal information on SAM prior to the expiration of its current SAM registration, but the processing of its renewal did not complete until after the expiration date. The protester argued that the awardee’s SAM registration had lapsed for that short period of time between expiration and active status, and that the agency was required to ensure a contractor’s SAM registration is “active.” The agency argued back that since the renewal was submitted prior to expiration, the awardee’s registration did not lapse. GAO sided with the protester.
    GAO first analyzed FAR 52.204-7 and found that the text of the FAR provision requires offerors to maintain SAM registration throughout the evaluation period (i.e., the time between proposal submission and the award of any contract). GAO also noted that the United States Court of Federal Claims recently held in Myriddian, LLC v. United States, 165 Fed. Cl. 650 (2023), that FAR 52.204-7 “requires offerors to maintain their SAM registrations without lapses during the solicitation period” (which we blogged about here). In this case, GAO found that this FAR provision was unambiguous, and even though an agency monitoring an offeror’s SAM registration throughout the evaluation period may be burdensome, it is not GAO’s job to weigh the pros and cons of a procurement regulation. GAO pointed to FAR 52.204-7’s definition of “Registered” in SAM as partially determinative. This definition states a four step process to be “Registered” on SAM:
    “(1) The Offeror has entered all mandatory information, including the unique entity identifier and the EFT indicator, if applicable, the Commercial and Government Entity (CAGE) code, as well as data required by the Federal Funding Accountability and Transparency Act of 2006 (see subpart 4.14) into SAM;
    (2) The offeror has completed the Core, Assertions, and Representations and Certifications, and Points of Contact sections of the registration in SAM;
    (3) The Government has validated all mandatory data fields, to include validation of the Taxpayer Identification Number (TIN) with the Internal Revenue Service (IRS). The offeror will be required to provide consent for TIN validation to the Government as a part of the SAM registration process; and
    (4) The Government has marked the record ‘Active.'”
    GAO stated that this definition places requirements on both the contractor and agency to take actions to make sure a contractor is registered on SAM. The offeror “must enter all mandatory information and complete the representations and certifications,” and the agency “must validate all information and mark the offeror’s record as ‘Active.'” All this must be completed for an offeror to be considered “registered” on SAM.
    GSA (who essentially manages SAM) explained to GAO that a contractor’s SAM registration expires within one year of when the contractor last submitted registration information. GSA sends reminder emails to contractors so they don’t miss this annual renewal date. After a renewal is sent in by contractors on SAM, GSA and and other agencies, such as the IRS, review the information. So there is a delay between submission of the information, and approval of “active” status on SAM.
    Here, the awardee did submit their renewal prior to their expiration date of December 11. But the processing of its renewal information to achieve “active” status did not complete until December 12. So for about a day, the awardee was not “active” on SAM, during the evaluation period for the subject procurement. GAO found that this is a lapse in SAM registration, and thus violated FAR 52.204-7.
    GAO, with this decision, has essentially issued a warning to all contractors; stay on top of your SAM registration, or risk losing award. GAO also placed on agencies a requirement to proactively check SAM statuses for any offerors during the evaluation period. While it may seem a simple and quick action to confirm SAM information or do quick updates to your SAM profile, the timing of when these occur can be critical. Here, there was a very short lapse between expiration and “active” status. But that short time cost the contractor an award. Contractors need to make sure to not delay SAM registrations or updates, and anticipate that any submission has to be bounced around multiple agencies prior to being approved for “active” status. Cutting SAM renewal close to a deadline could cost you an award.
    Need legal assistance with a government contracting matter? 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 GAO: Don’t Slip Up on SAM Registration, Even for One Day first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  9. Koprince Law LLC
    When it comes to calculating a company’s receipts for size purposes, the procedure for is (or at least was) pretty simple: Look at the company’s tax returns. Indeed, it has long been SBA’s position that they can only consider tax returns, as noted in Nordstrom Contracting & Consulting Corp., SBA No. SIZ-5891 (Mar. 7, 2018) (“[T]here is no authority for an area office to consider any evidence apart from tax returns…when calculating a firm’s average annual receipts.”) among other cases.  In other words, if something was not mentioned in a tax return, it couldn’t be considered by SBA. The only exception was if the tax returns were not filed, in which case SBA will review financial statements or similar information in lieu. 13 CFR § 121.104. Therefore, other than that exception, a contractor only needs to rely on the information in its tax return when making its size representation.
    But the U.S. District Court of the District of Columbia (DDC) thinks otherwise. On May 18, 2023, it entered a decision on opposing motions for summary judgment in a size protest that had become a False Claims Act case. In this decision, it concluded the opposite: Contractors must in some cases consider information outside their tax returns. Let’s take a deeper dive.
    United States ex rel. Bid Solve, Inc. v. CWS Mktg. Grp., Inc., 678 F. Supp. 3d 53 (D.D.C. 2023) began as a standard size protest back in 2018. At first, the matter was simple enough: CWS Marketing Group’s (CWS) size was protested, it submitted its tax returns, and SBA sided with CWS over the protester, Bid Solve, Inc. (Bid Solve) after reviewing those returns.
    However, Bid Solve apparently knew there was something more going on and filed a False Claims Act case with the DDC against CWS. Bid Solve alleged that CWS had misreported its receipts by improperly subtracting expenses that it shouldn’t have subtracted. If these expenses were not subtracted, then CWS would be over the size standard. Proving this would necessarily require looking at information that wasn’t in CWS’ tax returns, and here is where the question arose: Was CWS justified in only relying on the information in its tax return? The DDC said “no” in light of 13 C.F.R.  § 121.104:
    Looking at CWS’ argument, the DDC further explained why it was rejecting it:
    The DDC then noted that, basically, CWS was using the “only tax returns” argument to justify the fact that they violated the provision that “reimbursements for purchases a contractor makes at a customer’s request” may not be excluded from receipts. CWS’ position would basically make it impossible to enforce the rest of the regulation if the contractor in question made an inaccurate tax return (unintentionally or otherwise).
    The DDC then further explained how CWS’ position does not make sense. “For example, 13 C.F.R. § 121.1009(b) says that when making a size determination, the SBA will mostly rely on the information a bidder provided but ‘may use other information and may make requests for additional information.’” It would not make sense for the rule to be that others can submit other information but the contractor itself need only rely on its own tax returns. After all, the contractor would have the most access to its own information.
    Impact on SBA Rule
    Quite frankly, we think the DDC’s ruling here is just common sense. It does not stand to reason that a contractor could file inaccurate tax returns and then rely on those same inaccurate tax returns to its own benefit, or that tax returns could allow subtractions from receipts that SBA rules do not allow. It would completely undermine the size determination process.
    With that, we turn to the fact that, as we noted above, SBA has historically stated that area offices will only rely on tax returns, when filed, in making size determinations. Thus far, it does not appear any SBA decision has cited to the DDC’s decision, either to accept it or attempt to get around it (technically, the DDC did not overturn any SBA precedent, this was a False Claims Act case). That said, we think it would make sense for SBA to adopt the DDC’s ruling as its own standard for size determinations.
    However, that is basically something that SBA will have to do on its own, although we could see SBA continuing to rely on tax returns in the interest of efficiency. For it would have to be an odd situation indeed for a protester to have enough evidence about an awardee’s internal finances to be able to say that the awardee’s own tax returns are wrong. Generally, such an assertion is going to be pure speculation on the part of the protester, which means that a request that the protested firm provide additional information would be rejected by SBA. SBA will not act on requests or protests based on speculation alone. As such, it is going to be on SBA to change its own standard and ask protested firms to provide more than just their own tax returns in these protests. Whether it will do so remains to be seen.
    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 Beyond Tax Returns: Federal District Court Says Contractors Must Include Information Outside Tax Returns in Calculating Size first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  10. Koprince Law LLC
    The Rule of Two is the federal contracting rule requiring agencies to set aside a solicitation for competition only between small businesses when there are at least two small businesses that could do the work for a fair price. But that rule does have some exceptions. These exceptions can make it difficult to know the situations that would justify filing a Rule of Two protest. Read on to find out.
    First, a primer on SBA’s Rule of Two.
    Note that this particular post relates solely to the SBA’s Small Business Rule of Two. The Department of Veterans Affairs has its own Rule of Two for service-disabled veteran owned businesses. For more information on the VA’s SDVOSB Rule of Two, visit our post here.
    FAR 19.502-2(a) requires that all acquisitions for supplies or services that have an anticipated dollar value above the micro-purchase threshold ($10,000 at the time of this post) but not over the simplified acquisition threshold or SAT ($250,000 at the time of this post) be set aside for small businesses. That is, unless the contracting officer does not have a “reasonable expectation” that it would receive offers from two or more responsible small businesses that were competitive in terms of fair market prices, quality, and delivery.
    The rule in FAR 19.502-2(b), which pertains to acquisitions above the simplified acquisition threshold, is worded a little differently. As noted in the prior paragraph, acquisitions between the micro-purchase threshold but below the SAT must be set aside for small businesses unless the contracting officer does not have a reasonable expectation that it would receive offers from two or more small businesses. In contrast, those over the SAT must be set-aside for small businesses when there is a reasonable expectation that offers will be obtained from at least two responsible small business concerns and award will be made at fair market prices. (In practice, both formulations should typically result in small business set-asides under the same circumstances). However, an acquisition should not be a total small business set-aside unless such a reasonable expectation exists. Otherwise, the acquisition may be partially set-aside under FAR 19.502-3.
    This leads us to the question of how a contracting officer will know whether there is a reasonable expectation or not? Well, that is a decision that the contracting agency must make if market research shows at least two small businesses that meet the criteria.
    When should you file a Rule of Two protest?
    Now that we have the background out of the way, what situations are appropriate to file a Rule of Two protest? Rule of Two protests are filed in situations where the protester believes that a procurement should have been set-aside for small businesses, but it was not, or those in which the protester believes the procurement was improperly set-aside for small businesses, when it should not have been. Simple, right?
    In nearly all GAO Rule of Two protests, no matter which way you argue it, the protest will be won if GAO determines that the agency’s basis for its decision is inadequate. Such decisions are generally based on market research. Sometimes market research will include issuing a sources-sought notice, internal meetings, conducting research (generally, online searches looking for capable potential offerors), market surveys, looking back at prior procurements for the same or similar products or services, speaking with small business analysts, and more. Though there is no specific method that must be used in market research, the basic rule is that the decision “must be based on sufficient facts so as to establish its reasonableness.” (See Mountain West Helicopters, LLC). In some capacity, the market research must examine the capabilities of the potential offerors to determine not only whether two or more small businesses will submit offers, but whether they are capable of performing the contract requirements. You can read more about that in this previous SmallGovCon blog post.
    Therefore, if your company is a small business that can do the work on a solicitation that is unrestricted, and you know of at least one other company that can do the work, you have the basis of a small business Rule of Two protest.
    Other Important Details
    Remember how I said that it’s up to the contracting agency to determine whether a small business set-aside is appropriate? Well, in a protest, GAO will not second guess unless there has been an abuse of discretion, which it is up to the protester to show. (See Nordic Sensor Tech., Inc.). Unfortunately, it doesn’t matter if the protester is a small business protesting because it believes that an unrestricted solicitation should have been set aside for small business competition, or whether the protester is a large business protesting the fact that a solicitation is limited to small business offerors only. The requirement that the protester prove a clear abuse of discretion when protesting a set-aside (or unrestricted) solicitation is the same.
    GAO has sustained a protest and held that a contracting officer should conduct additional research into the existence of additional firms that could meet the Rule of Two. In that decision, GAO held that an Agency must contact firms that meet requirements of a set-aside if it is aware of any. (See SWR, Inc.).
    Additionally, because a protest involving the Rule of Two is an issue with the solicitation, most Rule of Two protests must be filed before bid submissions are due. 4 C.F.R. § 21.2(a)(1). This covers situations when you believe there was a mistake in setting a contract aside, or not setting a contract aside, for a small business. This covers most Rule of Two protests. Therefore, if you think that there was a mistake in setting aside, or not setting aside, a procurement, raise the protest early! Otherwise, you may miss the opportunity.
    If you think you may have grounds for a protest, it’s best to act early in the solicitation process.
    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 Why File: A Rule of Two Protest first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  11. Koprince Law LLC
    It is no doubt that the SBA’s 8(a) Business Development Program is a first-class program: there is a reason that some of us around here tend to say that it is one of the most important of federal government contracting programs. And in the past year, there has been a flurry of activity surrounding the 8(a) Program. For the most part, this uptick in activity has had to do with the requirement that all applicants prove they are socially disadvantaged in light of the the Ultima decision that we’ve discussed on the blog. As you may know, applicants must also prove that they are economically disadvantaged, though the requirements to qualify as such are a little more objective. But then there is the requirement that the applicant firm must be able to prove that it has the potential for success. Today we take a closer look at the potential for success requirement’s two year business revenue rule, and delve into whether there is any way around it.
    Potential for Success: A Mile High View
    If you are new here, I’ve included a short primer on potential for success to bring you up to speed. You can also go here to read more in-depth about it.
    SBA requires that 8(a) Program applicants demonstrate “reasonable prospects for success in competing in the private sector if admitted to the 8(a) BD program,” which is reasonable in light of the additional benefits 8(a) Program participants receive. Benefits like business development assistance and priority on many federal contracting opportunities. Makes sense, right? The SBA wants to make sure your business has a chance at making it before it will let you take advantage of the 8(a) Program benefits for up to nine years. Therefore, by looking at a number of criteria, the SBA evaluates the applicant’s potential for success. And, because this is arguably the most important of SBA’s socioeconomic programs, the program that every federal contractor wants a piece of, that isn’t always an easy thing to do.
    Two Years in Business Rule
    Turning to the two-years in business rule, it requires the applicant to demonstrate that it has “been in business in its primary industry classification for at least two full years immediately prior to the date of its 8(a) BD application[.]” To demonstrate this, the applicant must submit its income tax returns for the prior five tax years (if possible), two of which must show “operating revenues in the primary industry in which the applicant is seeking 8(a) BD certification.” Essentially, SBA is looking at whether you have been in business for at least two years, in your primary NAICS code identified on your 8(a) application, and whether you have generated revenues in that amount of time for that NAICS code.
    Two years in business is relatively easy to demonstrate, but the NAICS code and revenue requirements have potential to cause problems. You want to make sure that your primary NAICS code identified on your tax returns matches your primary industry identified in your 8(a) application, as experience has shown is it far easier to have it correct from the get-go than to have to field any number of questions from SBA reviewers about why the two don’t match up. Additionally, revenue is straight forward: there either was revenue in those two years or there was not. Does this mean that not having revenue in those two years is an automatic disqualification? Will you be denied if your NAICs codes don’t match? Will applicants that have been in business less than two years be immediately denied? Is there a minimum amount of revenue? The answer to those questions is every attorney’s favorite response: it depends.
    Waiver
    There is a waiver for the two-years in business rule, but it’s not very often that such a waiver is granted. It is entirely understandable that a business that is eligible for the 8(a) Program in every other way would want to get into the program without waiting the two years. But the bar to get over to be granted a waiver is very high and contains five separate conditions, each of which must be met to qualify. Those conditions are:
    (i) The individual or individuals upon whom eligibility is based have substantial business management experience;
    (ii) The applicant has demonstrated technical experience to carry out its business plan with a substantial likelihood for success if admitted to the 8(a) BD program;
    (iii) The applicant has adequate capital to sustain its operations and carry out its business plan as a Participant;
    (iv) The applicant has a record of successful performance on contracts from governmental or nongovernmental sources in its primary industry category; and
    (v) The applicant has, or can demonstrate its ability to timely obtain, the personnel, facilities, equipment, and any other requirements needed to perform contracts as a Participant.
    Seems easy, right? Not so fast. This waiver doesn’t allow the applicant to just check off each of the boxes. Instead, it must be able to provide evidence that it meets the requirements. That means
    evidence of current and completed “governmental and nongovernmental” contracts (including letters of reference or past performance reports) to establish its history of successful contract performance. Information demonstrating performance of work in the industry in which it is seeking 8(a) certification. Bank statements. Letters of recommendation. Documents showing availability of capital. Generally, the more documentation you have that can account for each of the five requirements, the better your chances of receiving a waiver.
    That said, SBA doesn’t hand out such waivers all willy-nilly. It can be incredibly difficult to have a waiver request granted. Unfortunately, denial of an 8(a) applicant because of a lack of potential for success is not a denial reason that can be appealed per 13 C.F.R. § 124.206. This means there is little information publicly available due to a lack of decisions that often come from appeals, which is where we would look to determine the finer details of waivers, such as what is “adequate capital to sustain its operations” and what amount of experience is considered “demonstrated technical experience to carry out its business plan,” are unknown. And SBA doesn’t release numbers on how many waivers it grants. But SBA officials have said that granting waivers is something that SBA does only in rare circumstances.
    * * *
    Moral of the story: requesting a waiver of the two year business revenue rule can be a valid path towards 8(a) Program participation if you are able to meet the five requirements for a waiver and have plenty of evidence to back it up, but it is by no means an easy one. Regardless, it might be worth a try. After all, the worst that can happen is a denial and, although you cannot appeal on account of potential for success, you can always re-apply 90 days later.
    Need legal assistance with applying to or navigating the SBA’s 8(a) Program or another government contracting legal matter? 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 8(a) Program’s Two Years in Business Rule: Requirement or Suggestion? first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  12. Koprince Law LLC
    Have you ever wanted to learn more about the advantages of the SBA’s Mentor-Protégé program? Join Allisa Young, CT APEX – Procurement Specialist, along with the subject-matter experts from Koprince McCall Pottroff LLC to learn how the SBA Mentor-Protégé program can help leverage your business in regards to government contracting opportunities. We will discuss the eligibility criteria for both the “Mentors” & “Proteges”, along with information about how to apply. Stephanie Ellis, Attorney for Koprince McCall Pottroff LLC, will be on hand to answer questions for the Q&A session. Register here.
    The post Webinar Event!  SBA’s Mentor-Protégé Program hosted by Connecticut APEX Accelerators, March 21, 2023, 11:00am EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  13. Koprince Law LLC
    Join our attorneys, Nicole Pottroff and John Holtz, on the latest edition of MyGovWatch, now on YouTube. This podcast, hosted by Nick Bernardo, covered a wide variety of current government contracting topics and answered all the right questions. From the migration of the Veteran Small Business Program from the VA to the SBA (and the first appeal reviewing SBA’s SDVOSB “grace period”)–to the most-recently updated size standards and the assignment of (the often incorrect) NAICS codes to federal contracts–all the way to SBA’s 8(a) Program and the effects of the recent federal court decision in Ultima –and everything in between.
    You can watch this informative video here.
    The post MyGovWatch YouTube Video Available Now! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  14. Koprince Law LLC
    As we often tell people, language in a teaming agreement is important for a federal contract. But so is complying with the terms of a solicitation. A recent GAO decision hinged on a very specific portion of the language in a teaming agreement that was required as part of a solicitation. Because the contractor did not include the required language in a teaming agreement, it lost out on an award.
    In Global Patent Solutions, LLC, B-421602.2 (Feb. 23, 2024), GAO looked at a solicitation from the Patent and Trademark Office (PTO or USPTO) for professional services to assist the PTO in reviewing international patent applications. Protester Global Patent Solutions, LLC (GPS), challenged award under the solicitation to CPA Global, Inc. (CPAG).
    The protest argued that CPAG was not evaluated properly under Factor 4, Small Business Participation. Here, the solicitation required large business offerors to submit a small business subcontracting plan, and provided that an offeror’s plan “shall comply with all elements of FAR Subpart 19.704 (Subcontracting Plan Requirements) and FAR Clause 52.219-9 (Small Business Subcontracting Plan).”
    In particular, there was a requirement that “[t]he extent of small business participation shall equal or exceed the minimum requirement” of at least 10 percent with a goal of reaching at least 25 percent. In addition, “[t]o receive credit under this factor, an enforceable teaming agreement must be in place with one or more small businesses (unless the Prime Offeror is a small business) and a copy of each signed agreement shall be included with the Offeror’s proposal as an attachment.” Finally, an “Enforceable agreement” was defined as one “signed by both parties committing to a teaming arrangement if the contract is received and identifying the percentage of the total contract to be subcontracted.”
    As far as the evaluation, small business subcontracting plan would “be evaluated to the extent the Offeror complies with all elements of FAR Subpart 19.704 . . . and FAR Clause 52.219-9″ and proposals would “be evaluated to ensure it meets or exceeds the Government’s minimum requirement that at least ten percent (10 [percent]) of the annual order value be directed to small business for each of the five ordering periods,” and that the teaming agreements would “be reviewed to ensure compliance.”
    The small business teaming agreement for CPAG stated that the small business “Partner will accept and perform a subcontract for the services for up to [DELETED] [percent] of awarded volumes.” In reviewing this language, the agency initially determined that the subcontractor teaming agreements submitted by CPAG “do not specify any percentages of work to be contracted.” The evaluation team also noted that it was “impossible for the USPTO to evaluate exactly how much is guaranteed to go to small business” and “CPAG’s proposal also neglected to state what the percentages were as a portion of the subcontract value as required by FAR 52.219-9.” That FAR provision, FAR 52.219-9, in part states that a subcontracting plan should express small business subcontracting goals “as a percentage of total planned subcontracting dollars.”
    Ultimately, the agency weighed the missing information in the teaming agreement against the historical performance by the awardee when it comes to small business subcontracting and concluded that “CPAG’s flaws” in the small business participation “area were mostly procedural and not substantive.”
    GAO disagreed. GAO ultimately found that the agency did not follow its own solicitation rules:
    In the evaluation record, all statements by the USPTO found “CPAG’s teaming agreements and the firm’s overall subcontracting plan to be lacking.” This included the contract specialist, who found that the agreements “do not specify any percentages of work to be contracted[.]” Similarly, the TET stated that CPAG’s teaming agreements failed to include “firm commitments with guaranteed minimum percentage[s] as specified in the [solicitation][.]” Finally the SSA found that the teaming agreements “did not represent a guaranteed amount of work to be subcontracted.”
    GAO concluded that “the evaluators’ and SSA’s conclusions were inconsistent with the solicitation’s material requirement for offerors to demonstrate through the use of enforceable teaming agreements that a minimum of 10 percent of the annual order value would be subcontracted to small businesses.” The agency tried to get a little sneaky in its argument, saying that the solicitation requirement for “the percentage of the total contract to be subcontracted” could mean any range of percentages, rather than a specific number. Again, GAO didn’t buy it–“the percentage” meant a specific percentage, not a range.
    GAO sustained the protest because USPTO did not follow its own solicitation requirements in evaluating a teaming agreement. But the take home message for contractors is that, if a solicitation asks for a specific number, even if it is in a teaming agreement, the contractor should include a specific number, or risk losing an award.
    Need legal assistance with a government contracting matter? 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 GAO: Small Business Teaming Agreement Must Follow Solicitation Guidelines first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  15. Koprince Law LLC
    Happy Friday, readers. Around these parts, we’ve been enjoying some nice spring weather as we try to fill the void left by the end of March Madness. But it will be heating up soon, so enjoy the spring weather while you can and have a great weekend! Here are some recent updates from the world of federal contracting, including some new congressional initiatives to streamline federal contracting processes, as well as create new cyber standards for federal procurement.
    SBA Recognizes 2024 Government Contractors and 8(a) Graduate of the Year Wyden bill requires new cyber standards in federal tech procurement Evaluation of DoD Financial Responsibility Reviews on Prospective DoD Contractor FACT SHEET: Vice President Kamala Harris Launches Call to Action to Bring the Benefits of Space to Communities Across America Technology Modernization Fund announces targeted investments to improve security at NASA, Department of Labor Mace sponsors bill to ban educational requirements for government contractors Senate Bill Introduced to Streamline Federal Procurement Processes How Government Contractors Can Plan for a Bright Future by Forecasting the Right Metrics Lawmakers push skills-based hiring for federal contractors Highlights from the Defense-Wide FY 2025 Unclassified IT Budget Request General Services Administration announces $23.8 million for projects to improve federal facilities and benefit local communities as part of President Biden’s Investing in America agenda Libby woman admits stealing mail while working as a contract carrier Disadvantaged Business Enterprise and Airport Concession Disadvantaged Business Enterprise Program Implementation Modifications The post SmallGovCon Week in Review: April 8-12, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  16. Koprince Law LLC
    Hello, blog readers. We want to say that our hearts are with the people of Kansas City. Our thoughts and prayers go out to the victims and families of those impacted during the the Super Bowl celebration in Kansas City. We also salute the first responders who acted so quickly.
    Our stories from federal contracting news this week included continued delays for CIO-SP4 and a new initiative on carbon-free electricity.
    GSA & DOD Seek Input on Upcoming Government Procurement of Carbon Pollution-Free Electricity Biden administration preps potential largest ever federal carbon-free electricity purchase How government contractors can harness artificial intelligence FACT SHEET: Biden-⁠Harris Administration Releases Annual Agency Equity Action Plans to Further Advance Racial Equity and Support for Underserved Communities Through the Federal Government How acquisition hinders national security VA sexual harassment investigation recommends firing, recouping bonuses from supervisors NITAAC seeking another 6-month extension for CIO-SP3 GE Aerospace Resolves Alleged Gender-based Hiring Discrimination, Pays $443K in Back Wages to Affected Job Applicants After Compliance Review Defense Federal Acquisition Regulation Supplement: DFARS Buy American Act Requirements (DFARS Case 2022-D019) General Services Administration Acquisition Regulation; Removing Small Disadvantaged Business Program Requirements To Align With the FAR The post SmallGovCon Week in Review: February 12-16, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  17. Koprince Law LLC
    If you feel like prices for just about everything are going up, you’re not alone. I recently got my annual property tax bill, and the first thing I did (after recovering from a brief fainting spell) was to start Googling to find out how much I could get for one of my kidneys on the black market.
    I get the feeling that my county tax assessor would consider anything less than a double digit increase to be an embarrassing professional failure. In federal government contracting, however, a contractor may not have the same leeway to raise its prices. In a recent bid protest decision, the GAO held that when an agency sought to procure services using the Federal Supply Schedule, the agency could not agree to pay a price higher than the price set forth in the offeror’s underlying FSS contract.
    The GAO’s decision in Kauffman & Associates, Inc., B-421917.2, B-421917.3 (2024) involved a request for quotations issued by the Centers for Medicare and Medicaid Services seeking in-person and virtual training services. CMS issued the RFQ to five GSA Schedule vendors under the procedures of FAR Subpart 8.4, which governs FSS acquisitions.
    Two of the five vendors submitted quotations. After evaluating the quotations, CMS announced that the order would be awarded to Octane Public Relations. The other vendor, Kauffman and Associates, Inc., then filed a bid protest with the GAO, challenging various aspects of CMS’s evaluation.
    Among its challenges, Kauffman argued that the agency “failed to evaluate discrepancies between the awardee’s proposed pricing and its FSS pricing.” Kauffman pointed out that Octane’s proposed price for the Events Coordinator labor category exceeded Octane’s price for the same category in its underlying FSS contract.
    The GAO explained:
    In this case, the GAO wrote, “[w]e find the agency’s determination that the awardee’s pricing was fair and reasonable to be flawed.” Because Octane proposed a price that was higher than its FSS price, “it would not be proper to issue the order to that vendor.”
    The GAO sustained the protest.
    Contractors often negotiate FSS prices that are higher than they expect to actually charge, knowing that agencies may expect discounts. Per GAO, that tried-and-true strategy is viable. But as the Kauffman and Associates, Inc. case shows, a contractor’s FSS prices may effectively be a ceiling. When bidding on an FSS order, proposing a price higher than the underlying FSS contract price may make it improper for the agency to award the order.
    Oh, one more thing: if you know someone who is looking for a lightly-used kidney, could you let me know? Asking for a friend.
    This article was originally published by Steven Koprince on LinkedIn and is reprinted with permission. Steve is the founder of Koprince McCall Pottroff LLC but has retired from the practice of law to focus on other endeavors. His views do not necessarily represent those of the firm or its attorneys. To read more of Steve’s current government contracting writing, follow him on LinkedIn and subscribe to his LinkedIn newsletter.
    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 here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.

    The post Agency Could Not Accept Price Above Awardee’s FSS Price, GAO Says first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  18. Koprince Law LLC
    Touted as a “game-changer” when it was first introduced in 2016, the U.S. Small Business Administration’s All Small Mentor-Protégé  Program isn’t new anymore. Known now as simply the “SBA Mentor-Protégé  Program, it is still extremely powerful for large and small contractors alike.
    In this webinar, Gregory Weber and I will explain the ins and out of the SBA Mentor-Protégé  Program, covering the program’s eligibility requirements, its potent benefits (including the ability to form special Mentor-Protégé  Joint Ventures), the application process, and common misconceptions and pitfalls. Target Audience: Small Businesses (SDVOSB, WOSB, HUBZone, 8(a), SDB) and large businesses interest in doing business with the federal government. Please join us and register here. And thanks to Earl King of the DC Department of Small and Local Business Development and Apex Accelerator for organizing this event.
    The post Free Webinar! The SBA Mentor-Protégé Program hosted by Washington DC APEX Accelerators, February 27, 10:30am -12:30 PM EST first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  19. Koprince Law LLC
    Whether you are a small, medium or even a large contractor seeking to team with small businesses, this course will discuss the different regulations you must follow, the different small business programs set up by the SBA, the advantages and disadvantages of the JV & Mentor Protégé programs, plus other topics of interest. This live virtual event will be hosted by Larry Allen and Nicole Pottroff and Stephanie Ellis will be joining Larry for the afternoon session. We hope you will consider attending this informative event! Register here.
    The post 1 Day Virtual Event! The Essentials for Small Business Government Contracting, February 29, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  20. Koprince Law LLC
    Please check out the new release from my friend, federal contracting expert Michael LeJeune.
    Bestselling author and GovCon expert, Michael LeJeune is releasing his new book, “I’m New to Government Contracting – Where Should I Start?” on March 26th. Michael’s new book has all that a growing federal contractor needs to get started on a path to success. I was especially struck by the emphasis on avoiding shortcuts. As a GovCon attorney, we sometimes hear about get-rich-quick schemes involving federal contractors. Michael puts those to bed. For instance, you have to read his takedown of the middleman strategy if you have heard about that online.
    But he also provides time-tested strategies for getting into government contracting and for growing your business. As one example, there is a nice overview of how to do an evaluation of your business and examine how your processes will translate to government contracting. The book also has great explanations and concrete checklists for things like 9 core marketing tools and 7 key ways to build your pipeline.  
    Register here to get a special 60% discount link on the day of launch: https://mailchi.mp/f3520f7e9b0a/5snc8wdmhp.
    The post Michael Lejeune’s New Book Now Available! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  21. Koprince Law LLC
    This post was written by our friend and colleague, Nick Bernardo, president of MyGovWatch, a
    bid notification and intelligence website offering a free trial to government contractors in more
    than 200 industries.

    Over the years, MyGovWatch has accumulated tens of thousands of buyer email addresses,
    from Federal government buyers in the DC Beltway all the way down to the tiniest school
    districts in the remote American hinterlands. In January, we decided to conduct our first-ever
    survey among buyers to create a dataset to help our users and the govcon community, at large,
    to better understand how buyers view certain aspects of the source selection process. (You can
    download a copy by visiting this page and filling out the form.)

    In broad strokes, the MyGovWatch survey was intended to shed light on the significance of
    name recognition and incumbency during source selection in absolute terms. Will buyers still
    pick you if they never heard of you before the bid process, or if you’re not an incumbent? To
    what extent should you let these drive bid/no bid decisions? For example, we asked buyers:
    How often are you involved in purchasing decisions where you had no awareness of the
    company selected until the bid process started? (The data around these questions may shock
    you!)

    This is the crux of the MyGovWatch survey, with fascinating data points that have already
    surprised a few who have accessed the full report as described below. (This post is intended as
    a primer, offering a sneak preview of sorts by providing data in a couple of key areas while
    letting people know how to get access to the full survey report in one of three ways.)

    For our purposes here, the MyGovWatch survey asked buyers two things designed to let them
    speak to the govcon community. These two questions encouraged respondents to give
    suppliers advice and to disclose areas of emergent and hard-to-fill needs for which it’s not
    always easy to find qualified suppliers. It’s important to note here the MyGovWatch survey
    respondents were not solely Federal buyers; they comprised of state and local folks also.
    The first of these questions was: What advice would you offer as a seasoned purchasing
    professional to companies that would like to do business with government agencies?

    The MyGovWatch survey asked this as an open-ended question by design, not wanting to limit
    what might come back. What came back was varied. When studied closely and after removing
    vague or ambiguous comments, the rest generally fell into seven categories, as follows.

    Understand the Procurement & RFX Process
    A clear majority of respondents (62.3%) gave simple advice: invest time in understanding the
    buyer’s procurement rules and the RFX process (where “RFX” can mean RFP, RFQ, ITB, etc.).
    Don’t simply show up for the bid process without any knowledge of how the process works or
    what rules the buyer must follow. More than anything else, buyer frustration with the supplier
    community around this idea appears to color much of how buyers perceive specific suppliers,
    invariably leading to lower evaluation scores within an RFX process if the buyer views the
    supplier’s understanding of procurement rules and processes as inadequate. This advice
    therefore tops the list of what buyers encourage suppliers to know more about to foster greater
    success.

    Bid on Relevant RFXs
    An astonishing 21% of respondents, or more than one in five, gave suppliers the straightforward
    advice of simply identifying and bidding on relevant RFX opportunities. They did this in various
    ways, mentioning identifying bids and knowing when and where bids are posted. One simply
    commented suppliers should, “register on all government platforms,” not realizing that suppliers
    would need to identify and monitor thousands of individual websites daily and weekly to do the
    job a platform like MyGovWatch does for users – sending relevant RFX opportunities to each
    user’s inbox daily.

    Network with Government Buyers
    A cohort of 11.5% of respondents gave suppliers the sage advice of networking with
    government buyers as a means of growth in govcon. This tried-and-true approach undoubtedly
    yields personal contact with buyers in way that fosters not only recognition of your company’s
    name in any resulting RFX process, but also the inside scoop on what pain points motivate
    buyers in a way that’s not always discernible in a statement of work. It’s no surprise many
    respondents mentioned this piece of advice; however, it may surprise some that respondents
    were nearly twice as likely to mention simply bidding on relevant RFXs than they were to
    mention traditional networking with decision makers, who often have neither the time nor the
    interest in networking with as many suppliers who would like to do the same if given the chance.

    Everything Else
    Between 1%-5% of respondents mentioned one or more of the following steps suppliers should
    take to experience greater success in govcon markets.
     Price RFXs Competitively: Respondents pointed out suppliers should do more
    research around pricing for their products or services in govcon markets to have greater
    success. (Incidentally, you can obtain competitor and contract pricing information
    through open records requests after RFX awards, whether on your own or through tools
    available on MyGovWatch, to research pricing.)
     Publish Good Marketing Materials: A gaggle of respondents said suppliers could have
    better success with better marketing materials, mentioning anything from websites to
    capability statements, from proposal documents to handouts, as an additional focus
    area.
     Research Competitors: A bunch of respondents said suppliers should spend more time
    investigating who they are competing with (which can also be learned by completing
    open records requests for copies of RFX winning proposals as described above, mainly
    in state and local markets.)
     Take Advantage of Government Procurement Resources: A handful of respondents
    encouraged suppliers to take advantage of resources government agencies themselves
    offer to support supplier success. Notably, many Federal respondents mentioned APEX
    Accelerator resources, which are geared toward small businesses pursuing Federal
    buyers.
    The second open-ended question the MyGovWatch survey asked buyers was: What are any
    emerging or growing areas of need where it is difficult for purchasing professionals to identify
    and contract with qualified vendors?
    Many had nothing to offer related to this particular question and left it blank. However, among
    those who did answer, buyers overwhelmingly mentioned technology in its myriad forms, mainly
    citing ongoing needs for developers and software. One buyer wrote, “While it is not an emerging
    or growing area of need, we’re finding it to be increasingly more difficult to hire software
    specialists at competitive prices. Industry is starting to price out the government in a lot of
    software-related fields.” There were a number of other notable fields where government buyers
    feel they are underserved. To read about those, we encourage you to get access to the
    MyGovWatch survey report in full.

    How to Access the Full MyGovWatch Survey Report
    Interested govcon suppliers may obtain a copy of survey results in one of three ways.
    MyGovWatch Trial: Start a free, 14-day trial at MyGovWatch and request a copy via
    chat on the website post sign up. You can get a copy by visiting this location and filling out
    the form. (Current MyGovWatch users need only request a copy via chat or to
    support@mygovwatch.com to obtain one.) SmallGovCon: If you are a subscriber to the email newsletter at www.smallgovcon.com,
    forward a copy of a recent issue to support@mygovwatch.com and you will receive a
    copy by reply. RSM Federal Book Pre-Release: Sign up to hear about the release of Michael
    Lejeune’s upcoming book, which will feature a chapter exploring survey results to
    include critical analysis, at this location, then email us from the same address to
    support@mygovwatch.com with subject line GovCon Survey Results Request.
    Media requests for a copy of the survey results should go to media@mygovwatch.com. The post First Annual MyGovWatch Buyer Survey Results May Surprise You first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  22. Koprince Law LLC
    Happy Friday and happy, early Saint Patrick’s Day. We hope you have some fun things planned for the weekend. Here, in Lawrence, Kansas, preparations are underway for the annual St. Patty’s Day parade. It seems the whole town comes out to celebrate and it’s a very fun and festive spectacle. I think more than anything, people are just ready to get outside to enjoy the warmer temperatures.
    Before you head into your weekend activities, here are a few articles on what’s happening in the federal government contracting world. Enjoy the weekend and don’t forget to wear green!
    Top Government Contracting Events for 2024 GovCon Index Snaps 4-Day Win Streak but Marks Another Winning Week Shreveport Man Convicted in Recent Trial Pleads Guilty to Additional Charge of Theft of Government Funds Biden administration requests $3B for federal AI application development, procurement and integration in 2025 budget Statement by GSA Administrator Robin Carnahan on the President’s Fiscal Year 2025 Budget Contract losses have defense contractors saying no to their biggest customer: the DOD Navy civilian worker, contractor indicted in alleged bribery scheme Argus Information & Advisory Services Agrees to Pay $37M to Settle Allegations that it Misused Data Obtained Under Government Contracts OMB Announces Pilot to Better Leverage Federal Acquisition to Strengthen America’s Critical Supply Chains Incurred cost submission best practices for government contractors Women-Owned Contracting Trends for 2024 Defense Contracts: Better Monitoring Could Improve DOD’s Management of Award Lead Times The post SmallGovCon Week in Review: March 11-15, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  23. Koprince Law LLC
    We hope you had a great week and are enjoying some nice spring weather. Here are some happenings from the federal government contracting world this week, including more updates on the funding package, upcoming information on complying with labor regulations, and new policies on AI. Enjoy your weekend!
    DoD’s approach to fix its computers is function over form Biden signs $1.2 trillion funding package after Senate’s early-morning passage ended government
    shutdown threat Contractors wonder which of two procurement systems applies to them Government contracting helps tribal economies diversify Labor Department to Open Contractor Portal for Affirmative Action Certification in April Small Business Works 2024: A.C.T.S. on Maximizing Small Business Opportunities FACT SHEET: Vice President Harris Announces OMB Policy to Advance Governance, Innovation, and Risk Management in Federal Agencies’ Use of Artificial Intelligence Peaceful protests, lawful assembly can’t be sole reason for DOJ facial recognition use under interim policy GSA’s commercial platforms program to grow by five providers Advancing Governance, Innovation, and Risk Management for Agency Use of Artificial Intelligence Recission of “Treatment of Nontraditional Defense Contractors” Memorandum Defense Federal Acquisition Regulation Supplement: DoD Mentor-Protégé Program Defense Federal Acquisition Regulation Supplement: Trade Agreements Thresholds Submission for OMB Review; Federal Acquisition Regulation Part 3: Improper Business Practices and Personal Conflicts of Interest Rep. Scott Franklin eyeing public-private partnerships as his House AI task force work kicks into gear DoD seeks single point of entry, new governance to boost vendors’ cyber defenses The post SmallGovCon Week in Review: March 25-29, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  24. Koprince Law LLC
    If you’re interested in learning more about the federal government contracting business, our very own, Nicole Pottroff and John Holtz, will be co-hosting with Nick Bernardo at this live podcast event. Sign up now to join this free opportunity to speak with experts, who have actually helped people succeed in govcon and who will be happy to answer your questions. Please register here. For more information on this and other upcoming events visit my MyGovWatch.com.
    The post Event! MyGovWatch Live: The B2G Rountable hosted by Nick Bernardo, February 21, 2024, 12:00pm CST first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  25. Koprince Law LLC
    Happy Friday everyone! Here in the Midwest we are enjoying some nice spring weather. But along with the beautiful flowers comes the allergies for some folks. In contracting news this week legislators in Washington have been working on bills in an attempt to make it easier for small businesses to work with the government and there is continued movement on cybersecurity for federal contractors. You can read more about that in the articles below as well as other contracting news.
    Have a great weekend.
    Former Veterans Affairs Procurement Supervisor Sentenced to Seven Years in Prison for Pocketing Kickbacks Readout of Roundtable on Project Labor Agreements for Large Federal Construction Projects Breaking Down the DOD’s New Defense Industrial Base Cybersecurity Strategy Accenture Federal Services acquires major federal contractor How legislators could make things a little easier for those companies working with the government Congressional minority caucuses call for data on government spending on contractors Investigating the US Army’s FY2025 Budget Proposal Virginia-Based Defense Contractor Pleads Guilty to Bribery Conspiracy Involving Government Contracts Worth More Than $100 Million Virginia-Based Defense Contractor Pleads Guilty to Bribery Conspiracy Involving Government Contracts Worth More Than $100 Million House Committee on Small Business Unanimously Reports Seven Bipartisan Bills Favorably to the House Ensuring Prevailing Wages: A Closer Look at the Davis-Bacon Act Former Federal Contract Employee Sentenced to 18 Years for Child Pornography US Department of Labor Recovers $34K in Back Wages, Benefits for 9 Workers Misclassified by Subcontractor on Federal Project in District of Columbia The post SmallGovCon Week in Review: April 15-19, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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