Making a Good Faith Effort: The Recent Update to FAR Subcontracting Plan Regulations

The Department of Defense, General Services Administration, and National Aeronautics and Space Administration recently published a final rule that amends the Federal Acquisition Regulation (FAR) to better explain how contracting officers should evaluate “good faith efforts” on the part of prime contractors to comply with their small business subcontracting plans. These explanations were already included in Small Business Administration (SBA) regulations through a final rule published on November 29, 2019. But, the FAR amendments will allow contracting officers to more easily determine when and . . . Read More

DOD Issues Class Deviation Making Limitations on Subcontracting Compliance More Uniform

As we previously wrote , the Federal Acquisition Regulation (FAR) limitations on subcontracting (LOS) rule was recently revised to more closely mirror the U.S. Small Business Administration’s (SBA) LOS regulation. However, because the changes to the FAR do not account for more-recent revisions to SBA’s LOS rule, inconsistencies between the two sets of regulations remain. Recognizing this disconnect, the Civilian Agency Acquisition Council has released a memorandum authorizing civilian agencies to issue FAR class deviations to better align the FAR’s and . . . Read More

Watch Your Step: Avoiding False Claims Act Violations from Limitations in Subcontracting and Performance of Work Requirements

Members of the government contracting community are familiar with the contracting opportunities offered specifically to small and disadvantaged businesses.  The availability of small business contracts and set-aside contracting opportunities through the U.S. Small Business Administration’s (SBA) 8(a), Mentor-Protégé, and various set-aside programs (such as those available for service-disabled veteran-owned small businesses or women-owned small businesses), offer important opportunities for small businesses to grow without competing against mega companies with endless resources.  However, certain requirements for performing contracts under these programs . . . Read More

The FAR’s Revised Limitations on Subcontracting: What You Need to Know

On August 11, 2021, the Federal Acquisition Regulatory Council (FAR Council) issued a final rule revising and standardizing the limitations on subcontracting (LOS), including the nonmanufacturer rule, that apply to small business concerns under Federal Acquisition Regulation (FAR) part 19, more closely aligning them with Small Business Administration (SBA) regulations. The final rule becomes effective today, September 10, 2021, and is summarized in more detail below. The FAR Council’s long-awaited LOS rule finally addresses major differences that had existed between SBA’s regulations . . . Read More

DOD Proposes to Amend DFARS to Implement Trump-Era Buy American Act Executive Order

The Department of Defense (DOD) issued a proposed rule on August 30, 2021, that would amend the Defense Federal Acquisition Regulation Supplement (DFARS) to align the Buy American Act (BAA) domestic content requirements in the DFARS with the recently revised requirements in the Federal Acquisition Regulation (FAR). Trump Administration Executive Order (EO) 13881, “ Maximizing Use of American-Made Goods, Products, and Materials ,” provided for significant changes to BAA requirements. The EO directed the Federal Acquisition Regulatory Council (FAR Council) to consider proposing amendments to the FAR that would provide . . . Read More

Should You File Your Bid Protest Before GAO or COFC: For the Record, the Record Can Make All the Difference

In a bid protest, the record of the actions that the contracting agency took during the procurement is of paramount importance. Regardless of whether a protester files its challenge with the Government Accountability Office (GAO) or the Court of Federal Claims (COFC), the reviewing tribunal must base its decision on the record. Many potential protesters do not realize, however, that the contents of the record can vary (often dramatically) based on the forum in which the protester chooses to file. . . . Read More

CVE’s SDVOSB and VOSB Verification to Transfer to SBA January 1, 2023

The U.S. Department of Veterans Affairs (VA) has announced that the functions of its Center for Verification and Evaluation (CVE) will be fully transferred to the U.S. Small Business Administration (SBA) on January 1, 2023. The CVE certifies service-disabled veteran-owned small businesses (SDVOSB) and veteran-owned small businesses (VOSB) to compete for set-aside and sole-source contracts under the VA’s Veterans First Contracting Program, which—with some exceptions—currently operates independently of SBA’s SDVOSB program. This transfer will eliminate the VA’s separate SDVOSB and VOSB . . . Read More

Requests for Equitable Adjustment Versus Claims: Which Should Contractors Pursue?

Government contractors in various industries encounter increased costs and / or delays caused by the government while performing government contracts. For instance, a contractor may have increased costs in performing a contract as a result of compliance with new COVID-19 requirements imposed by the government that were not included in the original contract. Or, a construction contractor may be required by the contracting officer to perform additional work that is outside the scope of the contract. Likewise, a construction contractor . . . Read More

GAO Confirms Joint Ventures Pursuing DOD Contracts May Rely on Facility Clearances of Their Members

In a recent decision , the Government Accountability Office (GAO) sustained a protest challenging the terms of a solicitation because it required that a joint venture (JV) pursuing an Air Force contract hold a facility clearance (FCL), which is prohibited by the National Defense Authorization Act (NDAA) of 2020 and U.S. Small Business Administration (SBA) regulations.  This decision has significant implications for JVs pursuing classified contracts and underscores the value of protests as a useful procurement tool for government contractors. Background . . . Read More

Sovereign Acts Doctrine: New Government Defense Tactic Against COVID-Related Claims and REAs

With the rise in COVID-19 cases due to the Delta variant, government contractors and the government agencies they work with may also see a rise in COVID-related claims and requests for equitable adjustment (REAs) linked to their contracts.  In this blog, PilieroMazza reviews a key government defense tactic, the Sovereign Acts Doctrine (the Doctrine), that contractors should be aware of to help them better prepare before filing a claim or REA. What is the Sovereign Acts Doctrine? The Doctrine provides . . . Read More