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Koprince Law LLC

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  1. 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
  2. Koprince Law LLC
    In this webinar, John Holtz and I will discuss the most important legal developments for federal contractors in 2023 and the first part of 2024.
    Specifically, we will discuss important 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, recent cases pertinent to federal contractors, and more. Register here!
    The post Free Webinar! Regulatory Updates in Government Contracting hosted by El Paso APEX Accelerators, April 11, 2024, 10:00-11:30am MDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  3. Koprince Law LLC
    Hope you are having a good week readers, and enjoying some March Madness. While it looks like spring in our neck of the woods, in this part of the country the weather can change quickly. We joke around that we must always have every type of coat or jacket at the ready on any given day. Never a dull moment! Speaking of never a dull moment, the NCAA tournament has started and there certainly have been some great games in the first round! How’s your bracket doing?
    We hope you had a great week and are enjoying some nice spring weather as well as some exciting basketball. Here are some happenings from the federal government contracting world this week. Interesting updates include an update on OASIS+ timing and enhancing whistleblower protections for DoD contracts. Enjoy your weekend!
    Busted! Is your March Madness bracket breaking government ethics rules? GSA’s Tiffany Hixson Offers Advice for New Providers Breaking Into the GovCon World Supreme Court rules public officials cannot block critics on social media, even from personal accounts GAO Urges DOD to Implement Better Monitoring of Procurement Administrative Lead Time Data Contracting Brief: AI Funding Plans Spread Across Budget Request GSA Targets Summer for Initial OASIS+ Small Business Awards Senators Coons, Kennedy introduce bill to help small businesses compete for federal contracts Women’s History Month 2024: Celebrating a vital business force US Department of Labor Nearly $200K for Workers Underpaid by Massachusetts Subcontractor at Rhode Island Worksite Whistleblower Protections in Defense Contracts Aventura Technologies, Inc. Pleads Guilty to Wire Fraud and Illegal Importation for Reselling Chinese Goods as U.S.-Made Washington State Man Sentenced to Federal Prison for Marketing and Selling Low-Quality Ballistic Protective Equipment Produced in China to Dozens of Law Enforcement Agencies and the U.S. Military The post SmallGovCon Week in Review: March 18-22, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  4. Koprince Law LLC
    Back in 2021, GAO came down with a clear decision on whether Department of Defense (DoD) agencies could require a joint venture (JV) to have its own facility clearance level (FCL) if its component members held the required FCL themselves. Infopoint LLC, B-419856 (Aug. 27, 2021). That decision was “no,” and it was based on a very strong foundation: The 2020 National Defense Authorization Act (2020 NDAA), an act of Congress, contained a provision, Section 1629, expressly forbidding DoD agencies from doing such. We in fact did a blog post on this GAO decision and litigated this very matter. Despite this, in October 2023, the DoD quietly released a memorandum describing how they think they can still require JVs to have their own FCL. Today, we look at this memorandum to see what DoD is saying.
    The 2020 NDAA and InfoPoint
    Back in 2019, when Congress passed the 2020 NDAA, it contained a provision specifically prohibiting the DoD from requiring a JV to have its own FCL if its component members held the FCL required for the solicitation:
    “TERMINATION OF REQUIREMENT FOR DEPARTMENT OF DEFENSE FACILITY ACCESS CLEARANCES FOR JOINT VENTURES COMPOSED OF PREVIOUSLY-CLEARED ENTITIES. A clearance for access to a Department of Defense installation or facility may not be required for a joint venture if that joint venture is composed entirely of entities that are currently cleared for access to such installation or facility.”
    On top of this, SBA amended 13 C.F.R. § 121.103, the regulation governing affiliation rules, to include the following: “A joint venture may be awarded a contract requiring a facility security clearance where either the joint venture itself or the individual partner(s) to the joint venture that will perform the necessary security work has (have) a facility security clearance.”
    Despite this fairly straightforward language, many DoD procurements continued to include a requirement that a JV hold its own FCL even if the component members of the JV held that FCL. This was in spite of the fact that a JV is really just the JV members working together: If the JV members each have the requisite FCL, that would mean that all those working as part of the JV meet the FCL requirement.
    It took a few GAO protests, led by the Infopoint protest, to put an end to this. In InfoPoint, GAO observed that “section 1629 of the NDAA specifically states, and the plain meaning of the statute leads us to conclude, that it unambiguously prohibits DOD from requiring that a joint venture hold a facility clearance if the members of the joint venture hold the required facility clearances.” It further noted that 13 C.F.R. § 121.103 was “consistent with the 2020 NDAA,” and that “the relevant inquiry is whether the joint venture itself, or the individual partners that make up the joint venture, hold a facility security clearance.”
    October 2023 DoD Memorandum
    Despite the holding in InfoPoint, in October 2023, DoD issued a memorandum stating it was going to allow its agencies to require for a given contract that joint ventures hold their own or entity eligibility determinations or EEDs (the term the memo uses for FCLs, we’re going to stick to FCL), regardless of whether their members have their own FCL or not. The memorandum starts off by noting it is needed “in light of the recent Small Business Administration (SBA) rule (Oct. 16, 2020), which addresses JVs under the SBA’s programs, and a subsequent Government Accountability Office (GAO) decision (Aug. 27, 2021) that interpreted the SBA rule without addressing NISP requirements and 32 CFR 2004 or how the two interconnect, thus adding to the confusion.”
    It appears that DoD is referring to a requirement in 32 C.F.R. § 2004.32 stating: “The CSA must ensure that all entities needing access to classified information as part of a legitimate U.S. or foreign government requirement have or receive a favorable eligibility determination before accessing classified information.” DoD thinks that JVs don’t have to have this clearance when they bid, only by the time they begin performance. Furthermore, DoD recognizes one exception to its requirement: “[I]f the JV is established by contract (not a separate legal entity), is unpopulated (no employees of the joint venture itself will be performing work connected with classified information), or other similar situations, and thus will not be involved with or otherwise influencing performance on the security work accessing the classified information,” then it does not need its own FCL. However, a joint venture that is formed as a separate legal entity (which, in our experience, is most joint ventures), will need its own FCL by the time it begins performance.
    Adding to the confusion, DoD stated: “A JV formed as a separate legal entity may be awarded a classified contract and may hold an EED in its own right, although as with any U.S. legal entity, it is not required to hold an EED in order to be awarded the classified contract.” Similarly, DoD recognizes that a “prime JV offeror cannot be required to already hold an EED in order to submit an offer on a classified contract.”
    To summarize its view, DoD finishes:
    Thoughts
    It appears that DoD is arguably saying that it is going to allow its agencies to require separate legal entity JVs to have their own FCL since the SBA rule in 13 C.F.R. § 121.103 doesn’t conflict with such a requirement, and their own regulations require such. (DoD could certainly be clearer in describing its policy). DoD appears correct that 13 C.F.R. § 121.103 only is concerned with requirements that the JV have its own FCL at award and is silent on whether the JV can be required to have its own FCL at start of performance. However, while we understand DoD’s interest in security here, we feel there’s a major problem in its analysis. InfoPoint was not solely based on 13 C.F.R. § 121.103. In fact, it was primarily based on the 2020 NDAA, which is a federal statute. That statute, which then trumps any conflicting federal regulation, plainly states: “A clearance for access to a Department of Defense installation or facility may not be required for a joint venture if that joint venture is composed entirely of entities that are currently cleared for access to such installation or facility.” While it might be arguable that the DoD’s reading of 32 C.F.R. § 2004.32 does not conflict with the SBA’s regulations, that doesn’t change or resolve the issue that it appears to directly conflict with a federal statute. The language in the NDAA does not distinguish between award or performance.
    We admit that we are a bit confused by DoD’s insistence on maintaining this requirement where the JV is already entirely made up of entities that have the required FCL. What does requiring the JV to have its own FCL in such an instance do to further security? All involved already have the required clearance. This was the issue with the old system that InfoPoint did away with.
    One thing contractors can consider is that if you make a JV that doesn’t involve a separate legal entity (until now, this has not been the norm, but it may arise more in light of this), the FCL requirement won’t be applied. As for challenging this position, it appears a protest of this to GAO or COFC for a given procurement wouldn’t work, as the requirement only that the JV must hold the FCL by the time performance starts. That means it isn’t technically a requirement to bid on a procurement, so it isn’t suitable for protesting. That said, there are routes to challenge agency actions during a contract itself. This would go to a Contract Disputes Act matter, and it may be worth considering if getting the FCL by the time of award appears prohibitive. Again, while we get DoD’s interest in security, we are hopeful that DoD may consider revisiting this plan to prevent needless issues down the road. If this is not what DoD intended, then it needs to amend or reissue its guidance to make it clearer how small business joint ventures can comply. There’s no real need for it to play Dr. Frankenstein here.
    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 Playing Dr. Frankenstein: DoD Memo Tries to Revive Joint Venture Facility Clearance Requirements first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  5. Koprince Law LLC
    If you are a small business government contractor who ever utilizes subcontractors to complete federal set-aside contracts, knowing what a “similarly situated entity” is for a given contract is vital to your success. So, let’s take it back to the basics of “similarly situated entities.”
    Even if you are not sure where this term comes from, don’t fret, a great place to start is this other Back to Basics blog on limitations on subcontracting. Because as you guessed it, the term comes from the SBA’s limitations on subcontracting. And since you can read-up on those at the links above, I will keep my explanation of the limitations on subcontracting pretty simple.
    For work that the federal government sets aside for any small business concerns–including those in the 8(a) Business Development Program, the Veteran Small Business Certification Programs (SDVOSB/VOSB), the Historically Underutilized Business Zones (HUBZone) Program, or either of the Woman-Owned Small Business Programs (WOSB/EDWOSB)–provided such contract exceeds the simplified acquisition threshold (which is currently $250,000.00 under FAR 2.101), there are limitations on how much the prime can subcontract out to whom.
    There are different sections of the SBA rule dedicated to–and thus, different limitations for–the various types of federal contracts as follows:
    A 50% limitation for services contracts and contracts for supplies or products (other than from a nonmanufacturer); An 85% limitation for general construction contracts; and A 75% limitation for specialty trade contracts. Note: the Nonmanufacturer Rule may be applied instead to contracts for supplies from a nonmanufacturer, but such is not relevant here; so, check out this other Back to Basics blog on it if you would like more information.
    Since all three of the limitations listed above utilize essentially the same language in regard to “similarly situated entities,” we will use services contract limitations to explain it. For those, SBA’s limitations on subcontracting rules state:
    In a nutshell, whatever this “similarly situated entity” is can actually help the prime contractor reach its 50% subcontracting limitation on a services contract. So, now we just need to fully understand that term. SBA’s definitions section of its government contracting regulations says the following:
    Crystal clear right? Ok, if not, I will break it down a bit.
    A “similarly situated entity” is a subcontractor that directly qualifies for: (a) the prime contract’s set-aside designation; and (b) the size standard assigned to the NAICS code for that prime contract. It is as simple as that, folks. Yes, by default, if a subcontractor meets (a) and (b) here, it will also have “the same small business program status as the prime contractor.” But again, since that should be inevitable if (a) and (b) are met–assuming the prime contractor was directly eligible for the prime contract’s set-aside and size standard to get the award–I think it is best to focus on (a) and (b).
    Here’s an example. Let’s say the government sets aside a contract for event planning services under NAICS code 812990, All Other Personal Services, with a corresponding size standard of $15 million, for the SBA’s SDVOSB Program. The prime contractor who received the award is “Blake Anderson Events, Inc.”–an SDVOSB with $10 million in annual receipts (thus, eligible for the prime contract). Blake Anderson Events, Inc., has two subcontractors for the prime contract: “DeVine Events & Services, LLC,” an SDVOSB with annual receipts of $12 million, and “Anders Activities & Events, Inc.” an SDVOSB with annual receipts of $20 million.
    Are these subcontractors “similarly situated entities” for the prime contract? Now, you might be tempted to say, “Yup, they are both SDVOSBs”–and move on. But remember it is a two-pronged qualification. The only “similarly situated entity” here for the prime contract awarded to Blake Anderson Events, Inc., would be DeVine Events & Services, LLC–meeting both the prime contract’s SDVOSB designation and its $15 million size standard (just like Blake Anderson Events, Inc.). Anders Activities & Events, Inc., is considered large under the prime contract’s $15 million size standard–and thus, doesn’t meet both prongs for qualification.
    As a quick side note, if you are at all wondering how this is possible, the SDVOSB rules (like some of the other SBA Program rules) allow an SDVOSB to be considered a small business for the purpose of participating in the SDVOSB Program generally if the company “meets the size standard corresponding to any North American Industry Classification System (NAICS) code listed in its SAM profile[.]” But they also note: “At the time of contract offer, a VOSB or SDVOSB must be small within the size standard corresponding to the NAICS code assigned to the contract.” And this second part of the rule is exactly what the two pronged approach to being a “similarly situated entity” is based on. To read up on all the SBA’s Program’s size qualifications, check out this blog.
    Finally, what does all this mean for Blake Anderson Events, Inc.?
    This simply means that any work Blake Anderson Events, Inc., subcontracts to DeVine Events & Services, LLC, will count toward the 50% minimum for Blake Anderson Events, Inc.’s, limitation on subcontracting for the prime contract here.
    But any work Blake Anderson Events, Inc., subcontracts to Anders Activities & Events, Inc., will count against the 50% minimum for Blake Anderson Events, Inc.’s, limitation on subcontracting for the prime contract here–or rather, it will count toward the 50% maximum that can be paid out to subcontractors for the prime contract.
    ***
    Understanding and complying with the SBA’s limitations on subcontracting is no easy feat. And the consequences can be dire for noncompliance. So, if you have rule application or compliance concerns, never hesitate to reach out for assistance–you are certainly not alone.
    Questions about this post? Email us or give us a call at 785-200-8919.
    Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.
    The post Back to Basics: Similarly Situated Entities first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  6. Koprince Law LLC
    Please join federal government contracts attorneys Nicole Pottroff & Greg Weber for this informative webinar on SBA certifications hosted by Catalyst Center for Business & Entrepreneurship. Participants will get an overview about the Small Business Certifications including:
    Woman Owned Small Business and Economically Disadvantaged Woman Owned Small Business 8(a)  Business Development Program HUBZone (Historically Underutilized Business Zone) Service Disabled Veteran Owned Small Business We will discuss how to get certified, how long it may take, regulations, changes, updates, and tips and tricks on how to be prepared. Please Register here.
    The post Webinar! Small Business Certifications, March 20, 2024, 10:00-11:00 am CDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  7. Koprince Law LLC
    SBA’s Service-Disabled Veteran-Owned Small Business (SDVOSB) rules include one particular component dealing with the working hours of a service-disabled veteran owner of an SDVOSB business, often called the full-time devotion rule. SBA has recently reviewed its full-time devotion requirement in an SDVOSB protest, and found that the company in question did not establish that a service-disabled veteran met the requirement.
    In Marathon Indus. Equip., LLC, SBA No. VSBC-342-P (Mar. 14, 2024), a protester challenged the SDVOSB status of Gilk and Sons, LLC (Gilk and Sons) in connection with a DLA solicitation set aside for SDVOSBs. A competitor can challenge the SDVOSB status of a proposed awardee on SDVOSB set-aside contracts. In this case, the protester argued that the veteran owner (Mr. Gilkison) worked at a different company (PacTec) that was the supplier of the products under the Solicitation.
    As part of the initial SDVOSB application, Gilk and Sons explained that Mr. Gilkison “works for Gilk and Sons Monday to Friday from 8:00am to 5:00pm” and he is “finishing up some consulting work with PacTec that will be completed by the end of the year … [w]hen I consult it is outside of the business hours for Gilk and Sons … [t]his does not conflict with my normal working hours.”
    SBA regulations prohibit the key service-disabled veteran for SDVOSB status from being engaged “in outside employment that prevent[s] [him or her] from devoting the time and attention to the concern necessary to control its management and daily business operations.” 13 C.F.R. § 128.203(i). Normally, the service-disabled veteran “must devote full-time during the business’s normal hours of operations”. Id.
    As part of the protest, OHA (which processes these sort of protests) “required Gilk and Sons to clearly state Mr. Gilkison’s current working hours at both Gilk and Sons and PacTec. The Order also required Gilk and Sons to specify Mr. Gilkison’s duties at Gilk and Sons and at PacTec.” OHA then reviewed the response and determined that Gilk and Sons had not met the full-time devotion requirement.
    SBA OHA pointed out that Gilk and Sons did not properly respond to the request for more information. The response to OHA fails to clearly state just what Mr. Gilkerson’s working hours are both at Gilk and Sons and at PacTec. The Response fails to describe what Mr. Gilkerson’s duties are at Gilk and Sons and at PacTec. It does not describe how Mr. Gilkerson handles his duties at Gilk and Sons while also performing his duties at PacTec. 
    Because of the failure to respond, OHA assumed “that disclosure would be contrary to the interests of the party failing to make disclosure.” 13 C.F.R. § 134.1011. So, OHA assumed that Gilk and Sons “failed to establish that Mr. Gilkison devotes himself to the concern full time during normal business hours.
    The big takeaway from this case is that SBA is still enforcing the full-time devotion requirement for SDVOSBs (and the rule is also present in the 8(a) Program regulations). If an SDVOSB company veteran owner works a second job, pains must be taken to explain (1) current working hours at both companies, (2) the duties at each job, and (3) how the veteran owner devotes sufficient time to the SDVOSB necessary to control its management and daily business operations. As a side note, it is always important to fully respond to questions from SBA or other federal government agencies.
    As we noted on the blog, SBA made some comments that it wanted to introduce more flexibility into some of these rules, including the full-time devotion requirement. However, we have yet to see a published decision where SBA has demonstrated this flexibility. Should you face a similar situation, reach out to our firm.
    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 SBA: Full-Time Devotion Still Matters for SDVOSBs first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  8. Koprince Law LLC
    Please join us for an in-depth exploration of past performance management in government contracting. Gain valuable knowledge to leverage your past successes for future growth and competitive advantage.
    Past performance management holds significant weight in the success of government contractors. Government agencies now place a premium on a contractor’s ability to deliver on promises, emphasizing the adage that “actions speak louder than words.” Contractors with a strong track record of past performance gain a competitive edge in the government contracting arena. 
    Nicole Pottroff and Greg Weber, will discuss the essential components of past performance crucial for building a solid foundation for success. Register here.

    The post Govology Webinar: Past Performance: A Critical Factor For Success in the Government Marketplace (2024 Update), April 25, 2024, 1:00-2:30pm EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  9. Koprince Law LLC
    As many know, a prominent goal of President Biden’s administration has been to promote green initiatives, and help reduce America’s carbon footprint. That initiative has now found its way to federal contracting. In a recent final rule, the FAR is being updated to facilitate federal contracting’s move, closer to net-zero emissions. This FAR update, updates and sets requirements for agencies to procure “sustainable products and services”, outlines what those products and services actually are, and places new expectations on contractors.
    On April 22, 2024 a final rule was published in the federal register to amend the Federal Acquisition Regulation (“FAR”) to “focus on current environmental and sustainability matters and to implement a requirement for agencies to procure sustainable products and services to the maximum extent practicable.” Specifically, this FAR update was conducted in direct response to Executive Order (E.O.) 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability. This E.O. focuses on how the Government itself can help promote sustainability and reduce its emissions, and multiple memorandums following it have helped further clarify the E.O.’s aims. The Final Rule sums up the E.O.’s goals as federal agencies should “reduce emissions, promote environmental stewardship, support resilient supply chains, drive innovation, and incentivize markets for sustainable products and services by purchasing sustainable products and services in accordance with relevant statutory requirements, and, to the maximum extent practicable, as identified or recommended by the Environmental Protection Agency (EPA).” With the goals of the E.O. in mind, let’s look at a quick rundown of the changes to the FAR that will go into effect May 22, 2024.
    In line with that Executive Order and its directions, this final rule updates the FAR as follows:
    Dedicates FAR Part 23 to “environmental matters” by moving certain content to it, including drug-free workplaces content. Consolidates/updates already existing environmental purchasing program requirements into FAR SubPart 23.1. Dedicates FAR SubPart 23.2 to “energy savings performance contracts.” Consolidates requirements related to hazardous and radioactive material in FAR SubPart 23.3. Consolidates/updates Federal facility and pollution prevention requirements in FAR SubPart 23.4. Redesignates FAR SubPart 23.8 as FAR SubPart 23.5. Adds a definition of ‘‘sustainable products and services’’ to FAR 2.101 (we discuss this further below) Creates a new “omnibus” contract clause at FAR 52.223–23, Sustainable Products and Services, discussing Government requirements for sustainable products and services. (we discuss this further below as well) Makes other conforming changes throughout the FAR to align with revisions within FAR Part 23. Updates agency requirements at FAR 36.104(b)(1) for construction and architect-engineer contracts to align with “CEQ’s Guiding Principles for Sustainable Federal Buildings and Associated instructions.” Removes certain contractor reporting requirements in the FAR 52.223–11, Ozone Depleting Substances and High Global Warming Potential Hydrofluorocarbons; FAR 52.223–12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners; and
    alternates to FAR 52.223–5, Pollution Prevention and Right-to-Know Information. Finalizes the interim rule published under FAR Case 2010–001. This seems like a pretty exhaustive list, but much of it is done in order to help make it easier to find applicable provisions (many now under FAR Part 23), and amend FAR provisions so they are consistent across the board. The crux of these updates is that once this rule goes into effect, agencies will need to prioritize procuring what the FAR deems is “sustainable products and services.” So, that definition is quite crucial.
    The definition of “sustainable products and services,” in updated FAR 2.101 is: products and services “that are subject to and meet . . . applicable statutory mandates and directives for purchasing” and “Required EPA purchasing programs.” Naturally, the next question is, what are these statutory mandates, and EPA purchasing programs. The definition provides:
    “Applicable statutory mandates and directives for purchasing” include, but are not limited to: products containing recovered material designated by the EPA; energy and water efficient products certified by “Energy Star” or FEMP; biobased products meeting Department of Agriculture’s “BioPreferred” program; and items meeting EPA’s SNAP program. “Required EPA purchasing programs” are: “WaterSense” labeled products or services; “Safer Choice” certified products; and products or services that meet “EPA Recommendations of Specifications, Standards, and Ecolabels” as of October 2023. The Final Rule also states that under these updates, when agencies look at procuring sustainable products and services, the agency should consider “life-cycle costs” of the product when considering if the sustainable product or service can be procured at a reasonable price. Additionally, solicitations will identify the “sustainable products and services” (along with details about programs etc.) that the agency sees as “applicable to the acquisition.” So, once the FAR updates go into effect, agencies will be responsible for identifying clearly the “sustainable products and services” it sees as applicable to the solicitation.
    Under the FAR update, contractors will soon also face new requirements. Contractors “must provide sustainable products and services, including products that meet the definition of sustainable products and services” if the product or service meets the following four criteria: 1.) the product or service is delivered to the Government; 2.) the product or services are furnished for Government use; 3.) the product or service are “incorporated into the construction of a public building or public work”; and 4.) the product or service are used by the contractor “in performing services under a Government contract where the cost of the products is a direct cost to the Government.” Also, “contractors performing management and operation of Government-owned facilities are required to use products that meet the definition of sustainable products and services to the same extent that an agency would be required to comply if an agency operated or supported the facility.”
    In line with all of this, is the new “omnibus” contract clause found at FAR 52.223-23. This FAR clause discusses the definition of “sustainable products and services” explained earlier from FAR 2.101, while laying out the requirements placed on parties also explained above in this blog post. This FAR clause makes it clear that the “sustainable products and services” must meet the standards laid out “at time of quote or offer submission” and must meet “the EPA Recommendations of Specifications, Standards, and Ecolabels” as of October 2023. This FAR clause closes by providing a “Green Procurement Compilation” website which has a “list of sustainable products and services and sustainable acquisition guidance.” The FAR suggests contractors review this site.
    This is certainly not the first time that federal contracting has received an update aimed at helping curb emissions (see our blog on greenhouse gas regulations here), nor would we expect it to be the last. However, this final rule does shift how solicitations will look going forward, and what contractors need to keep in mind when proposing products or services. Contractors should expect to start seeing solicitations discuss “sustainable products and services” while incorporating FAR 52.223-23. Those same contractors need to also be prepared to address in their proposal and performance, how they will provide those specific sustainable products and services. This FAR update’s final rule is quite large. This update had 52 respondents send in comments on its proposed rule and 23 respondents send in comments on its interim rule prior to this final rule. As such, there is some great detail within the final rule that we encourage contractors to review when they have time. We here at SmallGovCon will of course keep you updated on any new FAR changes, and you should expect to see the changes discussed here to go into effect on May 22, 2024.
    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 New FAR Final Rule Promotes Sustainability first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  10. Koprince Law LLC
    Good day and happy Friday! We hope you had a very productive week and are looking forward to the weekend. We have been, and will be, receiving some much-needed rain, so outdoor weekend activities might be a bit hit or miss here. It’s wonderful weather for all those recently planted gardens, however, as long as the storms aren’t bad!
    In federal government contracting news this week, be sure to check out the stories about the new sustainability rules (and our recent blog), as well as new legislation on solicitation language and buying technology.
    New rule cements sustainability mandate for federal buyers GSA announces new political appointees and departure Navy Posts Solicitation for Potential $200M Construction, Repair Services Contract Army commanders fail to adequately address all forms of harassment, DoD IG says Federal Trade Commission bars ‘noncompete’ agreements for US employees It’s April, but end-of-termism will start to slow federal contracting GSA’s new approach to small business matchmaking House panel advances bill to make federal contracting easier to understand Defense Federal Acquisition Regulation Supplement: Use of Fixed-Price Contracts for Certain Major Defense Acquisition Programs (DFARS Case 2023-D009) Hazelwood Company Owner Admits Contract Fraud Consolidated Nuclear Security Agrees to Pay $18.4 Million to Settle False Claims Act Allegations of Timecard Fraud Justice Department Announces Charges Against Four Iranian Nationals For Multi-Year Cyber Campaign Targeting U.S. Companies Ten Charged and One Arrested in Connection with Sanctions Evasion Scheme CISA’s chief data officer: Bias in AI models won’t be the same for every agency

    The post SmallGovCon Week in Review: April 22-26, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  11. Koprince Law LLC
    Contracting agencies, and contractors, must always be aware of potential organizational conflicts of interest (OCIs). An OCI can result in a contractor being kicked off a federal procurement. One type of OCI is an impaired objectivity OCI, typically resulting from a contractor evaluating its own offer or its own performance. In a recent decision, the United States Court of Federal Claims (COFC) said that an agency was overly cautious in rejecting an offeror based on a perceived OCI.
    In Dist. Commc’ns Grp., LLC v. United States, 169 Fed. Cl. 538 (2024), the Court of Federal Claims reviewed a Department of Veterans Affairs (VA) decision to exclude a joint venture from a competition to provide support suicide prevention services for the VA. The procurement was called the “White House Priority Goal Support to Safeguard Against Veteran Suicide” (WHPG solicitation).
    As part of the evaluation process, the VA began to investigate potential OCIs. The procuring officials reviewed existing and future contracts for potentials OCIs involving the WHPG solicitation. Then, the VA issued an amendment to the WHPG solicitation that included a list of companies excluded from the procurement due to an “actual and/or potential significant conflict of interest.” And the protester, District Communications Group (DCG) was on that list due to its involvement working on a contract with J.R. Reingold & Associates (Reingold).
    The VA asserted that work under the Reingold contract would result in Reingold “could be put in a position to advise and/or recommend [the] VA employ any of the outreach efforts/methodologies Reingold currently implements on [the] VA’s behalf under its existing task order, to include conducting pilots that may be run under [the WHPG solicitation].” Similarly, the agency argued that “performance requirements and/or deliverables under Reingold’s [existing task] order are all examples of the types of tasks and services VA seeks advisory support for in considering its best course of action to meet the White House Priority Goals set forth in [this] solicitation ….” 
    The court summarized the VA’s position by writing that the potential OCI could stem from “improper crossover” between Reingold’s existing task order and the WHPG solicitation.
    An impaired objectivity OCI can occur where a contractor is tasked with “evaluat[ing] its own offers for products or services, or those of a competitor.” FAR 9.505-3. The court noted that for purposes of determining if there is an impaired objectivity OCI, “it is wholly irrelevant whether the two efforts are same or similar in scope or size; instead, what is relevant is whether the contractor would be in a position of reviewing its own work or otherwise unable to perform its obligations in an impartial manner.”
    The court looked closely at the WHPG solicitation language. One aspect of it was an OCI clause, which stated:
    Interpreting this language, the court wrote:
    The court also noted that the agency failed to properly explain its conclusions regarding the OCI. “For instance, there is no real explanation as to why a subcontractor of Reingold, like DCG, has an actual or potential OCI that requires its exclusion from competition under the WHPG solicitation.” The agency simply repeated that for Reingold and subcontractors, “there is the potential … that the vendor performing this existing task order will be in a position to recommend the strategies and/or services it already provides under [the existing] task order, when advising [the] VA on potential methods to meet the goals and objectives [under the WHPG contract].”
    Normally, agencies are given quite a bit of discretion when it comes to evaluating potential OCIs. This case shows that there is some limit to this discretion. An agency must properly explain the basis for its OCI concerns. The agency cannot rest its fears of an OCI on a possibility that is unlikely to occur. To do so goes beyond reasonableness in evaluating an OCI.
    Questions about this post? Email us. Need legal assistance? Give us a call at 785-200-8919.
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    The post Contracting While Impaired: Court Rejects Overbroad Finding of OCI Based on Impaired Objectivity first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  12. Koprince Law LLC
    In 2010, Congress passed the “Plain Writing Act,” which essentially requires that federal agency communications to the public must be in language that “the public can understand and use” and is “clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.” In other words, the idea was that agencies should stop using so much jargon and legalese. However, this arguably didn’t apply to contract opportunity notices. Congress is now looking at making sure that omission changes with the proposed “Plain Language in Contracting” Act, at least with regards to small business set-asides. We explore this more in depth in this post.
    It is worth looking a little more at the implementation of the Plain Writing Act to get a sense of what the Plain Language in Contracting Act would entail. Helpfully, the federal government even has a website devoted to the Plain Writing Act. There, it notes that executive departments and agencies must follow the Federal Plain Language Guidelines and OMB’s Guidance on Implementing the Plain Writing Act.  The Federal Plain Language Guidelines are really about what one might expect. Agencies are advised to ensure their writing is well suited to their audience, use word choice that avoids jargon and technical terms, and use concise wording.
    On April 15, 2024, Representative Nick LaLota of New York introduced H.R. 7987, the “Plain Language in Contracting Act.” This proposed act states that its aim is “[t]o require plain language and the inclusion of key words in covered notices that are clear, concise, and accessible to small business concerns, and for other purposes.” While the bill itself is relatively short, it could make a substantial impact on government contracting for small business set asides.
    The bill states: “Each covered notice shall, to the maximum extent practicable, include key words in the description of the covered notice such that a small business concern seeking contract opportunities using” SAM.gov “can easily identify and understand such covered notice.” Importantly, “covered notices” only refers to notices “pertaining to small business concerns published by a Federal agency on” SAM.gov.
    Basically, the idea is that the principles from the Plain Writing Act should apply to the government’s solicitations. This appears to apply to sources sought documents, solicitations themselves, and really anything else posted on SAM.gov for a given solicitation. Basically, Congress wants less jargony, clearer solicitations.
    We think this proposed law isn’t a bad idea in itself, but there are some questions that it raises that need to be addressed. For starters, ironically, there is some ambiguity here. It is not clear what is meant by “notices pertaining to small business concerns.” Does this mean that it applies to all solicitations (as small businesses can bid on any solicitation they are otherwise qualified for) or just small-business and other set-asides? It seems reasonable to think the latter, but as it stands, it is not certain. It would clear things up tremendously to say “all solicitations” or “solicitations set-aside for small businesses or SBA socio-economic programs.”
    The biggest question, however, is how will this be enforced? Will this be something where contractors can protest a solicitation for not being clearly written? A contractor already may protest a solicitation for having ambiguous terms or having terms that are so inscrutable that the contractor cannot properly bid. If contractors can assert a violation of the Plain Language in Contracting Act as a protest ground, this will likely open up the door to a lot of protests. Granted, we imagine that GAO would use its typical “reasonableness” standard in determining whether an agency properly used plain language, so it is doubtful that such would result in many successful protests.
    Really, it appears that effective enforcement of the Plain Language in Contracting Act (if it is passed) is going to have to come internally. Agencies themselves will need to set up their own standards and review procedures and train their employees on utilizing plain language writing skills. The hope is that this will indeed get rid of lots of the ambiguities and other issues that sometimes plague federal procurements.
    Questions about this post? Email us. Need legal assistance? Give us a call at 785-200-8919.
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    The post Clearing Things Up? A Quick Look at the Proposed Plain Language in Contracting Act first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  13. Koprince Law LLC
    It’s that time of year again! The time of year that all federal government contractors wait for with bated breath to see how well agencies performed in relation to their small business subcontracting goals (or at least how well the metrics show them to be doing). Time for the SBA’s Annual Scorecard. Ok, so maybe it’s not quite that hyped up. But it is informative, nonetheless. And for 2023, it looks like things are looking up with every category making gains from the previous year. Once again, government-wide performance earned an overall score of an “A” by achieving 109.13% of its goal coming in with a whopping $178.6 billion spent with small business contractors.  
    First, a short primer for those unfamiliar with the SBA scorecard before we get into the specifics making up this record-breaking achievement. 
    In case you have never heard of these scorecards in the past, the annual scorecard details information on the various categories of small businesses recognized by the SBA. Specifically, the scorecard is used to assess “how well federal agencies reach their small business and socio-economic prime contracting and subcontracting goals,” to “provide accurate and transparent contracting data,” and “report agency-specific progress.” Congress sets annual goals for federal agencies to meet when awarding contracts and subcontracts to small businesses. These goals include governmentwide goals, as well as agency specific goals, which are determined pursuant to 15 U.S.C. § 644(g). 
    To determine these goals, each included agency submits proposed goals based on SBA’s review of agency year-to-date performance prior to the beginning of the fiscal year. SBA then evaluates each agency’s proposal, and either notifies the agency that its proposal is acceptable, or negotiates with the agency to reach a goal that is acceptable. In total, there are 24 agencies. You can find a list of all included agencies as well as more detailed information on how the process works here. Following each fiscal year, SBA reviews information from the various agencies to determine whether goals were met and assigns each agency a “grade” based on how well it performed. 
    Now, onto the reason everyone is here: the numbers. 
    Overall, there was $178.6 billion of federal contracting dollars directed toward small business prime contractors. The 2023 small business contracting goal was set at 23% and the agencies knocked it out of the park with an all-time high of 28.4%. Wow! This is an increase of $15.7 billion from FY2022. This includes all types of small businesses grouped together, but it is quite the achievement regardless. 
    As usual, the next-largest grouping was small disadvantaged businesses, including those in the 8(a) Program, which received $76.2 billion, or 12.1% of all federal contracting dollars, just barely squeaking past its goal of 12%. 
    Next up was service-disabled veteran owned small businesses (SDVOSB), which also exceeded its 3% goal for the year with $31.9 billion, or 5.07% of all federal contracting dollars. 
    In 2023, the goal for women owned small businesses (WOSB) once again was missed (this has been a recurring theme on these scorecards), but it came much closer to reaching its goal of 5% coming in at 4.91% of all federal contracting dollars, or $30.9 billion. Maybe 2024 will finally be the year that agencies finally give WOSBs the business needed to meet the goal? It has now been over a decade since the WOSB goal was met. Come on, agencies! You can do this!  
    The HUBZone goal was missed, but it did improve over the previous fiscal year. The HUBZone goal is set at 3%. Agencies awarded 2.78% of overall contracting dollars to HUBZone small businesses, or $17.5 billion. 
    In another bit of bad news, the total number of small business prime contractors decreased again. It went from 62,670 in 2022 down to 61,298 in 2023. That has been a worrying trend for years, despite attempts to bring more small businesses into the fold.
    Overall, 2023 was a very strong year for individual agency performance. While 2022’s lowest scoring agency was the Department of Veterans Affairs with an overall score of 79.88%, 2023’s lowest scoring agency was the Department of Health and Human Services which came in at 97.95%. Not only that, but there was also only one other agency that received a score lower than 100% and that was the Environmental Protection Agency with a score of 98.37%. The highest agency score for 2023 goes to the Department of Commerce reaching 143.48% of its small business contracting goal. Nice going, Department of Commerce! 
    All in all, ten agencies received what is considered an A+, meaning they achieved 120% or more of their goal. An additional 12 agencies received an A, which is defined as meeting 100% to 119% of their goal. And finally, the two that received a B, the Environmental Protection Agency and the Department of Health and Human Services, missed their goals by a small margin. Will 2024 be the year for straight A’s? Only time will tell.
    To learn more, see the scorecard in full here, and the agency specific numbers here.
    Questions about this post? Email us. 
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    The post SBA Scorecard: Largest Small Business Federal Contracting Year, Some Goals Missed first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  14. Koprince Law LLC
    Happy Friday! And just like that, it’s May! Hope you had a wonderful week and have some fun plans this weekend. This week in federal government contracting news included updates about small business federal contracting dollars (see our blog here) as well as new contracting bills coming out of Congress.
    Ernst Celebrates National Small Business Week White House: Small Businesses Awarded Record-Breaking $179B in FY23 SBA: Federal Government Awarded 28% of FY23 Contracting Dollars to Small Businesses US appeals court upholds Biden’s $15 minimum wage for recreational contractors AbilityOne contracts for workers with disabilities opens to competition IRA update: Federal government works to decarbonize construction materials FTC rule on non-compete employees has contractors worried GSA Issues Resource Guide for Federal Generative AI Tech Acquisition Supreme Court to hear another major veterans benefits case this fall GSA receives A+ rating for 14th consecutive year for working with small business contractors Contracting Bills Pass House; FEMA Workplace Planning Measure Offered in Senate Staffing Company to Pay $2.7M for Alleged Failure to Provide Adequate Cybersecurity for COVID-19 Contact Tracing Data Mentor-Protégé Program Resources Former Defense Contractor Pleads Guilty to Attempted Espionage The post SmallGovCon Week in Review: April 29-May 3, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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