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

House Bill Would Limit Credit for Small Businesses Falling into Multiple Socioeconomic Categories

A recent bill introduced in the U.S. House of Representatives seeks to amend the Small Business Act to limit the way agencies take credit for contracting with small businesses that fall into several socioeconomic categories. H.R. 2362, known as the Assuring Contracting Equity Act of 2017, was introduced on May 4, 2017 and would, if passed, add a provision titled “Limitation on Number of Categories for which a Small Business May Qualify.” This provision would prevent a Federal agency from . . . Read More

What’s that Cybersecurity FAR Clause Doing In My Contract?

Many contractors we talk to believe that cybersecurity requirements are exclusively a concern of contractors working with DoD or with highly-classified, top secret projects. While perhaps true to some degree in the past, that belief is now outdated. In recent years, the federal government has steadily expanded the reach of cybersecurity requirements imposed on contractors and contracts of all shapes and sizes, and that trend is expected to continue.  As an example, one year ago this month the government implemented . . . Read More

DOT’s DBE Program Helps Promote Growth

The U.S. Department of Transportation (“DOT”) Disadvantaged Business Enterprise (“DBE”) Program provides opportunities for small businesses, owned and controlled by socially and economically disadvantaged individuals, Tribes and Alaska Native Corporations, to participate on federally-assisted highway, transit, and aviation projects.  In addition to setting a goal that at least 10% of such contracts go to certified DBEs, the DBE Program provides related opportunities to assist DBEs with business development. Large businesses and non-DBE eligible contractors seeking to do work on DOT-funded . . . Read More