Are You Complying with All Applicable Procurement Requirements?
Entering into contracts with the federal government requires contractors to comply with a significant number of requirements, including statutory, regulatory, and contractual requirements. And, under the False Claims Act, the penalties for failing to comply with those requirements can be steep. In fiscal year 2018, there was a total of $2.88 billion in settlements and judgments in False Claims Act cases. That $2.88 billion includes settlements and judgments for procurement-related fraud cases brought under the False Claims Act. Most contractors . . . Read More
Small Business Subcontractor Recertifications
I spoke at the TRI-Association Small Business Advisory Panel (TRIAD) Winter Meeting a couple weeks ago in Nashville, and a number of attendees asked me questions about how often a large prime contractor must require its small business subcontractors to recertify size/status during the term of a subcontract. SBA’s regulations and the FAR indicate that a subcontractor’s status for a particular subcontract is established at the time the subcontractor submits its offer for the subcontract, and a prime contractor may . . . Read More
TINA Traps: Defective Pricing in Competitively Awarded IDIQ Contracts
While there has been extensive coverage of the fact that Truth in Negotiations Act (“TINA”) thresholds for DoD were increased from $750,000 to $2M and certain civilian agencies have adopted the thresholds either via a FAR deviation or on an ad hoc basis, we have seen an increase in clients falling into insidious TINA traps—task orders on competitively awarded IDIQ contracts that require new labor categories or requirements not contemplated under the initial RFP. Specifically, we have seen instances where the agency . . . Read More
Subcontract Language Controls, Even When It May Not Be Fair
The language you choose to put in your subcontract matters, even if you do not understand it or applying that language might end in an unfair result. The Ninth Circuit Court of Appeals drove this point home recently in Aspic Engineering and Construction Company v. ECC Centcom Constructors, LLC. In Aspic, a contractor, ECC, was awarded two prime contracts by the U.S. Army Corps of Engineers for the construction of various buildings in Afghanistan. Aspic, an Afghani company alleged to be unfamiliar . . . Read More
The Contracting Officer Denied My Claim: Is It Time to Appeal?
The Contract Disputes Act (“CDA”) was intended to provide a straightforward process for contractors to resolve disputes that occur under a government contract. In short, a contractor may initiate a dispute by submitting a claim to the contracting officer. The contracting officer then issues a final decision, and if the contractor disagrees, it may appeal to a board of contract appeals within 90 days or to the U.S. Court of Federal Claims (“COFC”) within one year. Although this path seems . . . Read More
Not So Fast: Practical Considerations Before Novating Your GSA Schedule Contract
The acquisition market for federal contractors is booming. Acquisition can provide a buyer the opportunity to target its growth strategically by acquiring the seller’s past performance and experience, in addition to gaining the seller’s personnel and resources. Of course, part of what makes a seller attractive is the contracts found in its portfolio. While the government does not officially condone the “buying and selling” of federal contracts, a contract may be novated after an acquisition if the buyer has acquired . . . Read More
Using a Joint Venture for Supply Procurements
Joint ventures have been popular arrangements for chasing government contracts, particularly since the start of SBA’s All Small Mentor-Protégé program in 2016. The “ASMPP” allows any small business to enter into an SBA-approved mentor-protégé relationship with a large business. Once a mentor-protégé relationship is approved, the small business and large business can form a joint venture to pursue small business set-asides. This marriage of a small and large business to pursue small business contracts can provide a real competitive edge . . . Read More
A Five-Year Measuring Period for Economic Dependence Affiliation
Earlier this month, we wrote about the internal SBA Information Notice (Information Notice), which clarifies that the changes made by the Small Business Runway Extension Act (Runway Extension Act) are not effective immediately. The Runway Extension Act requires that receipts-based size standards be based on annual average gross receipts over five years. SBA’s regulations currently require a three-year lookback for size standards based on annual receipts. And, according to the Information Notice, until SBA revises its regulations through the rulemaking process, businesses must continue . . . Read More
GAO Sustains Protest Alleging Misrepresentation in Proposal Regarding Availability of Incumbent Staff
It is generally difficult to win a bid protest by arguing that the awardee proposed personnel that it did not have a reasonable expectation would be available for performance. Such allegations are normally difficult to prove, particularly at the outset of a protest, because the protestor is unlikely to know which personnel the awardee proposed. As a result, these protest grounds have a high risk of being dismissed as speculative. Winning such a protest is, however, possible. The Government Accountability . . . Read More
Teaming Agreements: Are They Necessary or Not Worth the Effort?
Government contractors enter into teaming agreements to secure contracts with partners that will help them win and perform the work. It surprises many, however, that certain terms in a teaming agreement may not be enforceable, particularly the clauses providing for the award of a subcontract. This has led contractors to ask, “What is the point of a teaming agreement?” There are many advantages to teaming agreements, or they would not be so prevalent in the government contracting industry. Although those . . . Read More