Missing a Wage Determination in a SCA-Covered RFP? Ask for It.
By Megan Connor I recently participated in a webinar regarding Service Contract Act (“SCA”) compliance and during the webinar, a number of participants noted instances where a request for proposal (“RFP”) or solicitation did not include the relevant wage determination (“WD”), even though the agency otherwise incorporated the SCA clauses into the RFP. If you face a similar circumstance, you should be aware of your rights. First, the applicable regulations make clear that contracting officers—not contractors—are required to determine if the . . . Read More
Eight Principles You Should Know When Negotiating Your Teaming Agreement
By Michelle Litteken As the saying goes, “two heads are better than one.” This statement often applies to government contracting, where contractors frequently work together in joint ventures or prime and subcontractor teams to bid on and perform contracts. Teaming with another contractor may help a contractor enter new markets, support new customers, and develop a deeper past performance record. And, teaming with a participant of one of the Small Business Administration’s (“SBA”) set aside programs (e.g., 8(a), HUBZone, or . . . Read More
Drafting Indemnification Provisions to Address Common Issues
By Ambi Biggs Corporate bylaws and operating agreements often contain provisions that provide for indemnification to directors, officers and in some cases employees and agents who become parties to litigation, arbitration or investigations by reason of their service with the corporation. By shifting responsibility for liability that may arise from actions taken in their roles as officers and directors from the individuals to the company, indemnification provisions can ease potential corporate officers’ minds and induce them to fill necessary roles . . . Read More
U.S. Supreme Court Hears Oral Argument on Implied Certification Theory of the False Claims Act
We recently wrote about an important case , Universal Health Services v. United States ex rel. Escobar, up for consideration by the Supreme Court which could have a large impact on government contractor liability under the False Claims Act (“FCA”). As we previously explained, the FCA establishes liability for anyone who knowingly presents a “false or fraudulent claim” for payment. 31 U.S.C. § 3729. The false certification theory of liability under the FCA, at issue in the case before the Supreme Court, involves a legally false claim where . . . Read More
OHA Says Mentor-Protégé Affiliation Exemption Does NOT Excuse Program-Specific Requirements for SDVOSB Joint Ventures
SBA’s Office of Hearings and Appeals recently issued a surprising decision finding that the mentor-protégé affiliation exemption does not excuse program-specific requirements for SDVOSB joint ventures. OHA agreed with SBA’s Office of Government Contracting in finding that an SDVOSB joint venture was ineligible because one of the joint venture partners was a large business. The two joint venture partners were approved as mentor and protégé under SBA’s 8(a) Program. They thought they qualified as a small business for the SDVOSB procurement because . . . Read More
FY2015 Procurement Scorecard: Another “A” for the Government
Yesterday, the Small Business Administration (SBA) released its annual small business procurement “report card,” identifying how the federal government as whole and major federal agencies measured up in terms of meeting their small business prime and subcontracting goals for the 2015 fiscal year. The federal government got an “A,” as did 18 of the 24 major Federal agencies. And, three agencies (i.e., the Department of Justice, the General Services Administration, and SBA) even got an “A+.” 2015 marks the third consecutive year . . . Read More
The GAO’s Report on Contracting with ANC-Owned 8(a) Firms And Its Potential Impact on Tribally-Owned 8(a) Firms
The Government Accountability Office (GAO) recently issued a report , titled “Alaska Native Corporations: Oversight Weaknesses Continue to Limit SBA’s Ability to Monitor Compliance with 8(a) Program Requirements.” The report was prepared at the request of Senators McCaskill and Markey, and Congressman DeFazio, whom asked the GAO to examine the Small Business Administration’s (SBA) oversight of 8(a) contracts specifically awarded to Alaska Native Corporations (ANCs). The report focused on the SBA’s ability to enforce regulations prohibiting the award of follow-on, sole source contracts to . . . Read More
Decision: Agencies Are Not Required to Accept Size Standards Increased After Solicitation is Issued
Recently, the U.S. Court of Federal Claims issued the decision in Orion Construction Co. v. United States, No. 15-1505C (Fed. Cl. April 1, 2016) which is a cautionary tale for all small business offerors regarding the risk of an inaccurate certification from simply misinterpreting which size standard applies to a particular solicitation. In the case, the United States Naval Facilities Engineering Command Southwest (“NAVFAC”) issued a solicitation for “commercial and institutional building construction” companies under North American Industry Classification System (“NAICS”) . . . Read More
GAO Proposes Rule to Create New Electronic Filing System and Fee
By Katie Flood On April 15, 2016, GAO released a proposed rule announcing its intent to create an electronic bid protest filing and document dissemination system. The proposed system will implement requirements of Section 1501 of the Consolidated Appropriations Act for Fiscal Year 2014, enacted on January 14, 2014. In the proposed rule, GAO outlines the basics of the system, which will be called the Electronic Protest Docketing System (EPDS). Once up and running, EPDS will be the sole means for filing . . . Read More
Data Rights Under Federal Government Contracts: What Are Data rights?
This article is the first installment in a series from PilieroMazza where we will walk through the various data rights clauses in the FAR and DFARS to explain how they are supposed to work, what they mean, and when to know which rules apply to a particular procurement. Data rights under federal government contracts create confusion from both the government and the contractor perspectives. There is substantial misunderstanding as to the purpose of the data rights regulations and the limits . . . Read More