The Weekly Update for March 9, 2018

According to an article in the Federal Contracts Report, the United States Court of Federal Claims (COFC) is on course to receive an unprecedented 200 bid protest cases in calendar year 2018. In each of the past 15 years, between 100 and 130 protests were filed with the COFC, making 2018’s potential docket the busiest in the courts history. This large increase can be partly attributed to a large and growing case involving the Department of Education and Windham Professionals Inc. The case has 18 plaintiffs and revolves around an 800 million dollar debt collection awards. The awards were initially granted to 7 companies, but competitors successfully protested the award at the Government Accountability Office (GAO), and in response to a multiparty protest at the COFC, the agency agreed to reopen the competition last May. Windham Professionals Inc. and one other company each received 400 million dollar awards which were being protested in the COFC. Coupled with similar protests, it’s easy to see how 200 bid protests could ultimately come before the COFC. For more information, please read the Federal Contracts Report, Vol 109, No. 8, 195 (2018).

According to an article in the Federal Contracts Report, GAO is preparing to unveil its new Electronic Protest Docketing System later in 2018, after years of planning and testing. The New system is currently in a pilot phase, which follows the security sub-assurance and accountability reviews that took place last year to eliminate bugs from the system. Currently, contractors use the combination of email, mail, and hand-delivered packages to initiate and maintain bid protest-related communications. The new system, by contrast, is a single place to initiate, update, and monitor protests at GAO. The per case filing fee to use the system will be $350. For more information, please read the Federal Contracts Report, Vol 109, No. 8, 195 (2018).

 

According an article in the Set-Aside Alert, the current administration’s budget request for the Small Business Administration in fiscal 2019 proposes a small increase of 1.5% for small business federal contracting programs. The budget request also proposes a 15% drop in funding for entrepreneurial programs, including business development centers. Another negative found in the budget request would drop the HUBZone programs funding by 4.4%, and the Women’s Business Ownership funding would drop by 5%. For further statistics on the budget proposals please see the Set-Aside Alert, Vol26, No 5, 1-3 (2018). 

 

The Department of Veterans Affairs (VA) is providing public notice of inflationary adjustments to the maximum civil monetary penalties assessed or enforced by VA, as implemented by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, for calendar year 2018. VA may impose civil monetary penalties for false loan guaranty certifications. Also, VA may impose civil monetary penalties for fraudulent claims or written statements made in connection with VA programs in general.

 

The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, sets forth a formula that increases the maximum statutory amounts for civil monetary penalties and directs VA to give public notice of the new maximum amounts by regulation. Accordingly, VA is providing notice of the calendar year 2018 inflationary adjustments that increase maximum civil monetary penalties from $21,916 to $22,363 for false loan guaranty certifications and from $10,957 to $11,181 for fraudulent claims or written statements made in connection with VA programs generally. 83 Fed. Reg. 8945.  

 

The U.S. Supreme Court on Monday agreed to consider the Ninth Circuit’s ruling that the Age Discrimination in Employment Act applies to political subdivisions of every size, teeing up a decision that could settle a split among circuits. The high court granted the Mount Lemmon Fire District’s petition for certiorari concerning the Ninth Circuit’s revival of a lawsuit by two firefighter captains who claimed they were fired by the Arizona fire department because of their age, in violation of the ADEA. For more information can be found here. 

 

On March 7, 2018, the Senate Judiciary Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts held a hearing to assess the bankruptcy system for small businesses.  Among those testifying were representatives from the ABI Commission to Study the Reform of Chapter 11, Brooklyn Law School, and Wilmer Cutler Pickering Hale and Dorr LLP.  Archived video footage of the hearing can be viewed here.

On March 7, 2018, the House Small Business Committee heard from a panel of small business stakeholders about regulatory reform and President Trump’s Executive Order 13771, which requires the elimination of at least two prior regulations for every new regulation issued.  Chairman Steve Chabot has applauded President Trump’s efforts, saying: 

 

Small business owners must navigate what is often a tangled web of complex, confusing, and costly regulations. A start-up company will spend on average over $83,000 in regulatory costs alone in the first year.  Small business owners also spend a substantial about of time with regulations, with nearly half of them spending over 40 hours every year to handle new and existing regulations.  

 

Ranking Member Nydia Velázquez expressed concerns with this policy, saying “[w]hile we certainly must be mindful of how regulations affect small businesses, the Trump Administration’s proposal . . . is arbitrary and economically reckless,” and that “[w]e cannot lose sight of the fact that many regulations exist to protect our health and safety and some of them provide small businesses with stability or protection from unfair advantage by their larger competitors.” You can read their full statements here and here, respectively.  Archived video footage of the hearing can be found here.