Doing Double-Duty: Your Claim Can Serve as Your Complaint in a Claim Appeal
The Civilian Board of Contract Appeals (“Board”) recently held that a contractor’s claim could serve as its complaint when appealing the denial of that contractor’s claim. In K.O.O. Construction, Inc. v. Department of Veterans Affairs, CBCA 6072, 2018 WL 1899353, the appellant, K.O.O. Construction, Inc. (“KOO”) filed a nineteen-page, single-spaced, certified claim with various exhibits with the U.S. Department of Veterans Affairs (“VA”). VA did not respond to the claim, and KOO filed an appeal of VA’s “deemed denial” of . . . Read More
Who Are the “Key Management Personnel” for Purposes of My Company’s Facility Clearance?
Whether a federal contractor can be cleared depends on its people. Specifically, whether a company can obtain a facility clearance (“FCL”) depends on the personnel clearances (“PCL”) of the company’s Key Management Personnel (“KMP”). For instance, if a company needs a secret FCL for contract performance, then the company’s KMP either need to have a secret PCL or be excluded from access to classified information. Contractors often ask who the KMP for their companies are supposed to be. At a . . . Read More
Legislative Remedies for Surviving Midsize
Back when you started your small business, and the very prospect of making payroll for the month was nerve-wracking, you probably never imagined that your company might actually become too successful. Now, as you get closer to midsize, this very concern may have crossed your mind. Once a company’s revenues exceed the size standard for its industry, it is no longer afforded the federal protections and opportunities of a small business, and it graduates to “midsize,” the undefined middle ground . . . Read More
The Protests Are Coming: Draft DoD Guidance Reveals How Cyber Readiness Will Impact Contract Evaluations
We have been blogging and giving webinars since last year about the DoD requirements around cybersecurity for contractors that are subject to DFARS 252.204-7012. Please view our past blogs and webinars here and here to get more of the backstory. In a nutshell, DoD contractors operating nonfederal IT systems and subject to DFARS 252.204-7012 were required to have a system security plan (“SSP”) in place by December 31, 2017, to demonstrate compliance with the recommended security controls in NIST SP 800-171. Although . . . Read More
SBA Amends Its Recertification Rules: Effectively Overturns Recent OHA Case
In a noteworthy decision earlier this year, the Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) confirmed the broad nature of SBA’s general rule that a contractor maintains its size and socio-economic status for the life of a contract. See In the Matter of Analytic Strategies, Inc., SBA No. VET-268 (Jan. 29, 2018) . This case required OHA to interpret the SBA regulation establishing the recertification rule in the context of Service-Disabled Veteran-Owned Small Business Concern (“SDVO SBC”) status. The regulation permits a concern that initially qualifies as an SDVO SBC . . . Read More
Big Changes Proposed to SBA’s Size Standards Methodology
Being and remaining a small business in the eyes of the government is one of the most important considerations for every federal contractor participating in small business set-aside programs. The rules of the contracting game change significantly if your company is small versus “other than small.” On April 27, 2018, SBA released a proposed rule that could impact your status as a small business, as SBA goes forward with its statutorily mandated revision of the size standards that dictate the . . . Read More
Make Releases Work for You
Releases have proven to be the double-edged sword of government contracting. In some cases, a release can prevent a contractor from successfully submitting a request for equitable adjustment (“REA”) or a claim to the Government. At the same time, a prime contractor can use releases to its advantage—requiring a subcontractor to sign releases during performance and at contract closeout. These releases can be used to easily defeat subsequent subcontractor claims if a dispute arises. Contractors should be familiar with releases . . . Read More
New Verification Requirement for SAM.gov Now Applies to Existing Entities
Just over a month ago, we wrote about a new verification requirement in the form of a notarized letter for new entities registering on SAM.gov, a registration that is required for companies that do business with the federal government. At that time, the requirement was only applicable to new registrations. However, according to an April 26, 2018, update on GSA’s website, the requirement is now applicable to “existing registrations being updated or renewed in SAM,” effective April 27, 2018. As discussed . . . Read More
The Section 809 Panel’s Recommendations on Bid Protests May Cause Major Headaches for Contractors
In Section 809 of the National Defense Authorization Act for FY 2016 , Congress created a panel, known as the Section 809 Panel, to review and to provide recommendations on how to streamline and improve the Department of Defense’s (“DOD”) acquisition process. The Section 809 Panel issued the first volume of its report in January 2018. The second volume, slated for release in June 2018, may include sweeping recommendations for a drastic overhaul of the bid protest process for DOD procurements. While a successful offeror on any . . . Read More
An Instructive Warning to Contractors of the Need to Understand CDA Requirements
A few months back, my colleague, Michelle Litteken, wrote a blog post titled “ Don’t Get Lost Filing and Prosecuting CDA Claims .” She discussed a decision, Securiforce International America, LLC v. United States , in which the U.S. Court of Appeals for the Federal Circuit held that a federal contractor was required under the Contract Disputes Act (“CDA”) to demand a specific amount of money (called a “sum certain”) in a CDA claim to its Contracting Officer (“CO”) for non-monetary relief if, by granting such relief, the contractor would be entitled to monetary damages. . . . Read More