On August 13, 2018, the John S. McCain National Defense Authorization Act (“NDAA”) for Fiscal Year 2019 was signed into law by President Trump. As with prior NDAAs, the 2019 NDAA includes a number of provisions that affect procurement policy, management, and related matters. Below, we summarize some of the more notable provisions that will impact small business procurement. Section 822—Establishment of Expedited Process for Small Value Contracts Among other things, Section 822 of the 2019 NDAA requires the Secretary of Defense (“Secretary”), by no later than December 1, 2019, to develop . . . Read More
The 2019 NDAA brought a welcome surprise for many defense contractors—the DoD plans to increase its micro-purchase threshold from $5,000 to $10,000, which matches the increase given to civilian agencies in last year’s NDAA. Earlier this year, the Civilian Agency Acquisition Council (CAAC) issued a class deviation to the FAR to implement the revised simplified acquisition threshold (SAT) and micro-purchase threshold that were included in the 2018 NDAA before the FAR was revised. These deviations increased the SAT to $250,000 and the . . . Read More
As I have noted in recent blogs here and here , momentum has been building this year toward a greater impact for cybersecurity compliance in the award of federal contracts, particularly at DoD. From talking with many contractors, however, it still appears that a lot of firms are taking a wait-and-see approach to cybersecurity. Meaning, they will wait to see if it becomes an issue for a particular contract or if DoD starts to more actively enforce and monitor requirements. While an . . . Read More
Government contractors have criticized lowest-priced technically acceptable (“LPTA”) procurements since LPTA was first introduced as a source selection method. In an LPTA procurement, all offerors that meet the requirements in a solicitation are deemed technically acceptable, and award is based solely on price. Critics of LPTA have argued that this source selection technique does not allow an agency to exercise the type of judgment needed when a contract involves complex requirements or when quality, safety, and innovation are paramount. The . . . Read More
FEDERAL ACQUISITION REGULATIONS Federal Acquisition Regulation; Paid Sick Leave for Federal Contractors The Department of Defense (DoD), General Services Administration (GSA), and NASA are adopting as final, without change, an interim rule amending the FAR to implement the Executive Order, Establishing Paid Sick Leave for Federal Contractors. The interim rule also implemented a final rule issued by the Department of Labor. 83 Fed. Reg. 163, 42569 . Federal Acquisition Regulation: Non-Retaliation for Disclosure of Compensation Information The DoD, GSA, and NASA adopted as final, without . . . Read More
The U.S. Court of Federal Claims (“COFC”) recently issued an opinion that should give pause to contractors who seek to bring suit against the U.S. government but have not complied with materially relevant government regulations. In LW Construction of Charleston, LLC v. U.S., a government contractor filed suit against the Department of Veterans Affairs (“VA”), alleging that its contract for a construction project at Fort Jackson National Cemetery was wrongfully terminated. The procurement under which LW Construction of Charleston (“LW”) had . . . Read More
SMALL BUSINESS ADMINISTRATION Small Business Size Regulations: Correction SBA revised the entry for NAICS code 336999 under Subsector 336 with the addition of “All Other Transportation Equipment Manufacturing” under the NAICS’ U.S. industry title and “1,000” under Size Standards for number of employees. 83 Fed. Reg 159, 40660 . GENERAL SERVICES ADMINISTRATION General Services Administration Acquisition Regulation; Federal Supply Schedule, Order-Level Materials; Technical Amendment GSA is amending the General Services Administration Acquisition Regulation to clarify the text regarding the application of the threshold for order-level . . . Read More
The phrase organizational conflict of interest (“OCI”) may result in uncertainty and even anxiety for many government contractors. A contractor may be unsure as to whether it may have an OCI if it submits a proposal for or is awarded a contract. And, if the contractor has an OCI, it may not know if the OCI can be mitigated or what to do to mitigate or avoid the OCI. These are critical considerations, as an OCI may result in an . . . Read More
With summer here, we are reminded that the federal fourth quarter (Q4) buying season is upon us. September 30 marks the end of the federal government’s 2018 fiscal year (FY), and federal contractors should take steps to obtain as much yearend money as possible. For those companies whose commercial sales may lag in the summer months, this can be the perfect time to focus on sales, especially through the GSA Schedule Program, as federal agencies strive to spend the rest . . . Read More
It is a well-known fear of many small business federal contractors that, if you are too successful, it may be the death knell for the business. Every small business set aside is restricted to only those companies whose revenues or employees fall below the applicable size standard, some of which are quite small (only a few million dollars a year in some cases). As a result, small businesses that continue to win work soon find themselves classified as a large . . . Read More
