DoD Proposes to Apply Non-Manufacturer Rule to All 8(a) Contracts
Nearly three years ago, the U.S. Small Business Administration (“SBA”) issued a final rule that standardized the limitations on subcontracting and the non-manufacturer rule (“NMR”) that apply to small business concerns, including participants in SBA’s 8(a) Business Development Program. In a step toward regulatory conformity, the Department of Defense (“DoD”) is now proposing to implement the revised NMR for 8(a) participants that contract with DoD. These entities should familiarize themselves with the proposed rule (“Rule”), which is summarized below. As a brief background, the . . . Read More
OFCCP Investigations on the Rise: How Should You Prepare?
The number of Office of Federal Contract Compliance Programs (OFCCP) investigations is on the rise, and OFCCP has stated a continued focus on enforcement. OFCCP enforces the contractual promise of equal employment opportunity and affirmative action required of those that do business with the federal government. Between fiscal years 2015–2017, the OFCCP received an average of 648 complaints annually. However, in fiscal year 2018, this number more than doubled, jumping to 1,418 complaints received. And, in the first quarter of . . . Read More
Does SBA’s New Recertification Rule Apply to My Contract? Recent OHA Decision Provides Some Clarity
The U.S. Small Business Administration’s (“SBA”) regulations require a concern to recertify its socio-economic (e.g., SDVO SBC, HUBZone, WOSB/EDWOSB) and/or small business size status (1) within 30 days of an approved contract novation; (2) within 30 days of a transaction becoming final in the case of a merger, sale, or acquisition, where contract novation is not required; and (3) no more than 120 days prior to the end of the fifth year of a contract exceeding five years in duration . . . Read More
GAO Finds That Federal Agencies Have Made Few SBIR Awards to Small Businesses Majority-Owned by Multiple Venture Capital Operating Companies, Hedge Funds, or Private Equity Firms
The purposes of the Small Business Innovation Research (“SBIR”) program include, among other things, the use of small businesses to meet federally funded R&D needs and the fostering and encouragement of participation by SDBs and WOSBs in technological innovation. Federal agencies with obligations of more than $100 million for extramural R&D activities (that is, R&D conducted by non-federal employees outside of federal facilities) must establish an SBIR program and are required to spend a percentage of their extramural R&D obligations . . . Read More
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