Effective October 1, 2018: SBA Issues Final Rule Regarding Ownership and Control Requirements for SDVOSBs

October 3, 2018
By Meghan F. Leemon
Recently, I wrote a blog detailing the Department of Veterans Affairs' (VA) final rule on verification guidelines for veteran-owned small businesses (VOSBs) and service-disabled veteran-owned small businesses (SDVOSBs), which provides that the VA will use the U.S. Small Business Administration's (SBA) regulations. Just three days before taking effect, SBA issued its final rule on Ownership and Control of SDVOSB Concerns, amending its regulations relating to ownership and control for VOSBs and SDVOSBs.
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OHA to Decide VA SDVOSB Status Protests Starting This Week

October 3, 2018
By Peter B. Ford
Starting on October 1st, SBA began hearing protests challenging an apparent awardee's eligibility for inclusion in the VA Center for Verification and Evaluation ("CVE") database and, in turn, its eligibility for a VA SDVOSB contract award. Previously, an SDVOSB status protest for a VA procurement was filed with the contracting officer, who then forwarded the protest to the Director of the CVE to render a status determination. To be timely, the protest had to be filed within five business days after notification by the contracting officer of the apparently successful offeror.
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Breach of Settlement Agreement Suits Against Federal Government Not Precluded by Finality Clauses

October 2, 2018
By Patrick T. Rothwell
During settlement discussions with the federal government, contractors are sometimes concerned that the government may not live up to the terms or frustrate the purposes of a settlement agreement and that they will be harmed without effective recourse. These concerns may arise from finality clauses, which are often contained in settlement agreements. However, the U.S. Court of Appeals for the Federal Circuit recently issued an opinion in Labatte v. United States, No. 2017-2396 (Fed. Cir. Aug. 16, 2018), which clarifies that a finality clause in a settlement agreement ("Agreement") does not bar a person from pursuing a lawsuit at the Court of Federal Claims ("COFC") for a breach of the Agreement. While the underlying dispute in this decision did not involve federal government contracting, the decision is beneficial and instructive to contractors entering such agreements with the federal government.
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Marketing Your Small Business for Sole Source Awards

October 2, 2018
By Julia Di Vito
The federal government is increasingly using nontraditional ways to spend its money, such as purchasing goods and services through "other transaction authority," which we recently wrote about and which does not require traditional competitive award procedures. Another alternative to traditional procurement by competition is a sole source award, and we are seeing more and more of our clients pursuing sole source awards or, in other cases, challenging the award of sole source contracts to other firms. If you are a small business, there are a number of ways your firm can be awarded a sole source award, including awards under various small business programs. You should be aware that these opportunities exist, so you can be ready to market your company and put it in the best position to receive a sole source award.
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GAO Rebukes Agency for Finding Proposal Nonresponsive Based on Buy American Act Submission

September 26, 2018
By Julia Di Vito
The U.S. Government Accountability Office ("GAO") recently sustained a bid protest in which the U.S. Department of Energy ("DOE") found a construction contractor's bid to be nonresponsive due to the contractor's failure to provide all information required by Federal Acquisition Regulation ("FAR") 52.225-9 and 52.225-10. When these FAR provisions are included in a solicitation, they set out a preference that a contractor use domestic products and materials in its construction project. If a contractor wishes to use foreign materials instead of domestic ones based on cost reasons, these FAR provisions require a contractor to provide data about the construction materials the contractor plans to use so that the agency can determine whether the Buy American Act should be applied to the contract.
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