Important Changes Governing Limitations on Subcontracting Immediately Affecting All DoD Procurements
In a welcome step towards regulatory conformity, on December 4, 2018, the FAR Council finally issued its proposed rule to bring the FAR into compliance with the statutory requirements of § 1651 of the NDAA for FY 2013, which governs limitations on subcontracting. The proposed rule will conform the FAR’s limitations on subcontracting clause, FAR 52.219-14, with how SBA performs the calculation, codified at 13 C.F.R. § 125.6. The proposed rule signals an end to two years of relative uncertainty for contractors . . . Read More
Limitations on LPTA Coming to DFARS
On December 4, 2018, DOD issued a proposed rule amending the DFARS to impose limits on the use of the lowest price technically acceptable (“LPTA”) source selection process. These changes are driven by the National Defense Authorization Acts (“NDAA”) for Fiscal Years 2017 and 2018. Notably, the 2018 NDAA directed similar changes to the FAR, but there is no proposed change to the FAR yet. DOD proposes adding a new DFARS section, 215.101-2-70, to address the limitations and prohibitions on the use . . . Read More
Avoiding Flat Tires When Acquiring IDIQ Contract Vehicles
With proposals costing hundreds of thousands of dollars and many IDIQs having 50 or more awardees, it can easily happen that some contractors who win a spot on a contract are unable to capitalize on it and simply stop trying to capture task orders. Whether it was because the initial win was based on sheer luck or perhaps because of a tragic, unforeseeable change in circumstances, making it impossible to bid or even keep the company doors open, a contractor . . . Read More
Three Indicators You Need an OCI Mitigation Plan
The risk of an organizational conflict of interest (“OCI”)—either perceived or actual—strikes fear in the heart of many a government contractor. An OCI may result in disqualification from a procurement, an adverse bid protest decision, or termination of a contract. Although that can be unnerving, in many cases, an OCI is mitigatable if the contractor implements measures to avoid, neutralize, or mitigate the conflict. At the same time, it is critical to implement a mitigation plan early on. For this . . . Read More
Big Changes Are Coming for SBA’s HUBZone Program
For the first time in 20 years, SBA is proposing an extensive overhaul of its regulations for the HUBZone program. SBA recognizes the difficulty firms face getting into and staying in the HUBZone program, so they are revising the HUBZone rules to provide greater certainty to HUBZone applicants and participants. The proposed rule would reduce the regulatory burdens imposed on HUBZone small business concerns and on government agencies by eliminating ambiguities in the regulations and making it easier for HUBZone . . . Read More
Federal Circuit Confirms That VA Rule of Two Analysis Is Required for All Types of VA Procurements
Last year, I wrote about a decision of the U.S. Court of Federal Claims (“COFC”) in which it held that the U.S. Department of Veterans Affairs (“VA”) must perform a “Rule of Two” analysis to determine whether at least two veteran-owned small businesses (“VOSB”) are capable of performing the work at issue before procuring the work through a non-VOSB set-aside solicitation, including through the AbilityOne Program. That case, PDS Consultants, Inc. v. United States, was appealed by VA and the awardee of . . . Read More
The Climb to Enforce Your Teaming Agreement in Virginia Has Gotten Steeper
A few years ago, we wrote about the likely effect of a case commonly called “Cyberlock” on teaming agreement enforceability in Virginia. Cyberlock Consulting, Inc. v. Info. Experts, Inc., 939 F. Supp. 2d 572, 580 (E.D. Va. 2013), aff’d, 549 F. App’x 211 (4th Cir. 2014). While decided in the U.S. District Court for the Eastern District of Virginia, Cyberlock looked to Virginia state court precedent for its conclusions on the enforceability of the teaming agreement at issue. As we noted at the time, the Cyberlock court . . . Read More
Submitting a Proposal Soon? Make Sure Your SAM Registration Is Active
While there has been some confusion and a bit of a grey area surrounding when an offeror’s profile with the System for Award Management (SAM) must be active, the confusion will be put to rest effective October 26, 2018. Recently, a final rule was released clarifying that offeror registration in SAM is required prior to submission of an offer. Currently, FAR 4.1102(a) requires contractors to be registered in SAM “prior to award of a contract or agreement,” with some narrow exceptions. While this seems . . . Read More
809 Panel Seemingly Switches Focus of Protest Recommendations
As we noted in our May 2, 2018, post on the possible 809 Panel recommendations for bid protests, the Panel was planning to make radical changes to the bid protest process at DOD, which would lead to less oversight and accountability, opening the floodgates for fraud and abuse by government personnel. However, we recently learned that the Panel may be thinking of taking action that could benefit DOD’s buying processes, without reducing public oversight, by looking at more inward-facing policy changes . . . Read More
809 Panel Likely to Scale Back Harmful Small Business Recommendations
As we have noted in the past , when the 809 Panel first convened, a number of the members believed that small business programs provided little for the warfighter at DOD and, thus, were simply unnecessary. Indeed, the Panel’s initial recommendation was going to be the full elimination of small business goals—which effectively stops small business set-asides entirely. The idea was that government personnel were wasting time counting dollars instead of focusing on increasing the lethality of the warfighter. While helping the warfighter is . . . Read More