The Future is Here: GAO Bid Protests to Be Filed Electronically Starting May 1, 2018
On April 2, 2018, the U.S. Government Accountability Office (“GAO”) issued a final rule, which, effective May 1, 2018, implements an electronic filing system for bid protests known as the Electronic Protest Docketing System (“EPDS”). Historically, GAO has only accepted protest filings via e-mail, fax, regular mail, or hand delivery. However, in 2014, Congress directed GAO to establish an electronic filing and dissemination system. Thus, the concept for EPDS was born. After years of development, EDPS was taken for a “test drive” . . . Read More
DoD Issues Class Deviation to Implement Enhanced Postaward Debriefing Requirements from FY 2018 NDAA
On Thursday, March 22, the Department of Defense (“DoD”) issued a Federal Acquisition Regulation (“FAR”) class deviation in light of the enhanced postaward debriefing rights required by Section 818 of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2018. The NDAA, which was signed into law on December 12, 2017, requires revisions to the Defense Federal Acquisition Regulation Supplement (“DFARS”) to implement a number of changes to debriefing requirements for DoD procurements. For instance, the NDAA requires a written . . . Read More
SAM, I AM: New Verification Requirement for SAM.gov Likely to Delay New Registrations
Registering with SAM.gov is a fact of life for government contractors. And, from what we often hear, a challenging fact at that. Indeed, it can be difficult to navigate the registration process, and it is time-consuming. Plus, processing times can be slow, from a few weeks to longer in extreme cases. These realities of the SAM.gov registration process can cause stress for a new entity that is registering in SAM.gov for the first time and needs the registration completed before . . . Read More
HUBZone Maps Will Be Frozen Until December 2021
The Small Business Administration (“SBA”) has made changes to the HUBZone maps to implement the new changes from the National Defense Authorization Act for Fiscal Year 2018 (“NDAA”). In December , we wrote about the changes to the HUBZone Program that would result from the 2018 NDAA, which included a requirement that the HUBZone map stay the same until at least January 1, 2020. Since then, SBA has taken the following steps: All areas that were listed as “Redesignated” on 12/12/17 . . . Read More
ASBCA Confirms That It Has Jurisdiction to Entertain Fraud-Based Defenses
The Federal Circuit’s holding in Laguna Construction Co. v. Carter seemed, when the case was decided in 2016, to scale back the Armed Services Board of Contract Appeals’ (“ASBCA”) jurisdiction to entertain fraud-related defenses. 828 F.3d 1364. In that case, the government asserted a defense that Laguna could not recover in its claims because several of the company’s officials had pled guilty to a kickback scheme involving those contracts. The ASBCA found in the Government’s favor, relying on the guilty . . . Read More
Pre-Award Notifications in a Set-Aside Procurement: Can I Get a Debriefing Now?
If you pursue contracts that are set aside for small businesses, you have probably noticed that if your proposal is not successful, you will get what is called a “pre-award” notification from the agency informing you of the identity of “apparently successful offeror.” If you receive such a notice, you may be eager to get a debriefing to find out why your company was not identified as the “apparently successful offeror.” However, receiving a pre-award notification on a set-aside contract . . . Read More
HUBZone Definition of “Employee” Not So Black-and-White
In a recent decision, HUBZone Appeal of Q Services, Inc., the Small Business Administration (“SBA”) clarified that the number of hours worked by a person does not bar SBA from examining the totality of the circumstances to determine whether that individual qualifies as an employee for HUBZone program eligibility purposes. Under SBA’s HUBZone regulations, if a person works a minimum of 40 hours per month (whether employed on a full-time, part-time, or other basis), that individual will be treated as . . . Read More
The Risk of Certifying as Small Without Tax Returns
We are regularly contacted at this time of year, before tax returns are due, by companies that wish to pursue small business set-aside contracts but have not yet filed their tax returns. These inquiries stem from the belief by some firms that, because their tax returns have not been completed, they may still self-certify as a small business while knowing, or suspecting, that their immediate, prior year revenues make them large. This misunderstanding of the size regulations can have dire . . . Read More
VA Amends Rules on Price Adjustments, Comments on Its Use of the Vets First Authority and Cascading Set-Asides
On February 21, 2018, the U.S. Department of Veterans Affairs (VA) issued final rules to amend its regulations that pertain to Economic Price Adjustment clauses for firm-fixed-price contracts, identifying VA’s Task-Order and Delivery-Order Ombudsman; clarifying the nature and use of consignment agreements; adding policy coverage on bond premium adjustments and insurance under fixed-price contracts; and providing for indemnification of contractors for medical research or development contracts. These final rules adopt the proposed rule published on March 13, 2017, and will . . . Read More
SBA’s Office of Hearings and Appeals Clarifies the (Not So Obvious) Effect of Size and Status Recertifications
In a recent case with wide-ranging implications, 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) . As a quick primer, SBA regulations provide that, where a concern represented itself and qualified as small and/or for a certain socio-economic status (e.g., SDVOSB, HUBZone, EDWOSB/WOSB) at the time of its initial offer, it maintains that . . . Read More