2018 NDAA Could Raise the Stakes for Companies Filing Bid Protests on DoD Contracts
The U.S. Senate has proposed a provision in the 2018 National Defense Authorization Act that, if adopted, would raise the stakes for larger firms in filing bid protests. The provision would apply to protests against DoD procurements to the GAO. If GAO denies all elements of such protests, the protesting company would be required to pay to DoD the costs the government incurs for processing the protest at the GAO and DoD. It is unclear how the government would track . . . Read More
House Bill Would Reduce Use of LPTA in All Agencies’ Procurement
A recent bill before the U.S. House of Representatives seeks to limit the use of the lowest price technically available (“LPTA”) source selection process in procurements. H.R. 3019, which was introduced on June 22, 2017, would create a policy to avoid using LPTA criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process. The LPTA process dictates that when conducting a competitive procurement, the agency will select the offeror that . . . Read More
Licensing Third Party Software for Use in Federal Contracts
In the IT sector, it is common for contractors with relationships to various federal agencies to have top-tier talent in-house to provide high quality IT services. Some vendors even have programmers and software engineers in-house to directly develop commercial and non-commercial software products for its clients. However, there are many times when, among other things, (1) the government needs a particular type of solution; (2) the contractor believes that some third-party software would suit the government’s needs best; or (3) . . . Read More
Be Prepared – Be Proactive About Defending Size Protests
Imagine that after months of diligently working on a proposal for a set-aside contract, you learn that your company has been identified as the apparent successful offeror. Then, a few days later, you receive an email from the Small Business Administration (“SBA”) notifying you that another offeror has filed a size protest. The SBA’s email cites multiple regulations and instructs you to respond to the protest allegations. The SBA also directs you to complete a lengthy form called the SBA . . . Read More
House Small Business Committee Approves Legislation Providing For Expedited Partial Payments of Requests for Equitable Adjustment to Small Construction Contractors
A common frustration faced by many small business government contractors, particularly in the construction industry, is how often agencies make very costly unilateral change orders during the course of performance. Although a contractor may be able to receive compensation for the additional work it has performed through a request for an equitable adjustment (“REA”), whether due to agency budgetary constraints or other issues, processing of REAs is often subject to significant delays. The contractor may have serious cash flow constraints . . . Read More
One Size Does Not Fit All: Hidden Size Certification Issues for 8(a) Contractors With Multiple Award Contracts
Savvy small business contractors holding Multiple Award Contracts (“MAC”) know that the small business size representations that they make at the outset of contract award will typically last the “life” of the contract, absent other size status recertification triggering events, such as a merger, acquisition, or contract novation. See, e.g., 13 C.F.R. § 121.404(g). This means that a contractor that represented itself as a small business at the time of contract award may continue to rely upon that small business . . . Read More
Congress Targets VA Procurement Abuse: Seeks Enforcement of Limitations on Subcontracting Rule
A bill was recently introduced in the U.S. House of Representatives, H.R. 2749, known as the Protecting Business Opportunities for Veterans Act of 2017 (“Bill”), which, if passed, would require the Department of Veterans’ Affairs (“VA”), in administering the Veterans First Contracting Program (“Vets First”), to identify and penalize violations of the limitations on subcontracting (“LOS”) rule, outlined in the Small Business Act and discussed here . As a quick primer, under the Vets First Law ( 38 U.S.C. § 8127 ), the VA (1) . . . Read More
House Proposes Broader Application of “VA Rule of Two” to Close Kingdomware Loophole
On June 6, 2017, a bipartisan pair of lawmakers introduced a bill in the U.S. House of Representatives, H.R. 2781, known as the Ensuring Veteran Enterprise Participation in Strategic Sourcing Act (“Bill”), which, if passed, would have a significant impact on how the Department of Veterans Affairs (“VA”) administers the Veterans First Contracting Program (“Vets First”) and specifically—the “Rule of Two.” As a brief background, the “Rule of Two” requires the VA to set aside procurements for veteran-owned small businesses . . . Read More
Avoiding Common Subcontracting Pitfalls
Companies often team together to bid on government procurements in order to boost their chances of being awarded contracts and, if awarded the contracts, to provide greater support to the government than they may be able to provide on their own. While these partnerships usually begin with the best of intentions, far too often they lead to costly and disruptive disputes between the parties. The most common types of teaming agreement and subcontracting disputes involve one of the following issues: . . . Read More
Court of Federal Claims Holds That VA Rule of Two Trumps AbilityOne Program
A recent decision from the U.S. Court of Federal Claims (“Court”) confirms the U.S. Department of Veterans Affairs’ (“VA”) mandate to perform a Rule of Two analysis on all procurements, including before utilizing the AbilityOne Program. In PDS Consultants, Inc. v. United States, Case No. 16-1063C (Fed. Cl. May 30, 2017) , PDS Consultants challenged whether the VA must conduct analyze whether at least two veteran-owned small businesses (“VOSB”) are capable of performing the work at issue (also known as the “VA Rule of Two”) before procuring goods and services through the AbilityOne Program, . . . Read More