False Claims Act Cases Involving Set-Aside Contracts Held to More Stringent Requirements Following Escobar
Two years have passed since the U.S. Supreme Court issued Universal Health Services, Inc. v. United States ex rel. Escobar, a key False Claims Act (“FCA”) case that resolved a circuit court split regarding the scope and validity of the implied false certification theory and established that the materiality standard for FCA cases is “demanding.” Since that time, lower courts have been implementing those standards to varying effects. The trend has been favorable for companies facing FCA cases that allege . . . Read More
Don’t Get Disqualified Because of Organizational Conflicts of Interest
A recent decision from the Government Accountability Office (“GAO”) reiterates two important principles concerning organizational conflicts of interest (“OCIs”). First, proactive measures may allow a contractor to effectively mitigate and avoid an OCI. Second, appearances, innuendo, and suspicion are insufficient to establish that a contractor has an OCI. Hard facts are required. In Archimedes Global, Inc. , B-415886.2 (June 1, 2018), the protester challenged the agency’s decision to exclude it from a competition because of an alleged OCI. By way of background, the . . . Read More
Pursuing a CTA Team Solution? Make Sure You’re on an Eligible Team!
Contractor Team Arrangements (CTA) formed to pursue GSA Schedule task order opportunities are unique animals in the government contracting universe. A mashup of elements taken from joint ventures and more traditional prime-sub relationships, CTAs allow two or more Schedule contract holders to combine their respective Schedule contract offerings in response to an ordering agency’s solicitation. GSA guidance is clear that for Schedule obligations—such as reporting sales and paying the Industrial Funding Fee (IFF)—each CTA Team Member is considered to be . . . Read More
SAM Registration Update: Notarized Letter Requirement Change and New Deadline Looming
As most government contractors may know by now, in order to proactively fight against alleged fraudulent activity in the System for Award Management (SAM), the General Services Administration (GSA) issued a rule that required all entities to “provide an original, signed notarized letter stating that you are the authorized Entity Administrator before your registration will be activated.” On June 11, 2018, GSA issued an update to the notarized letter requirement in two parts. The first, which went into effect on . . . Read More
SBA Eliminates “Direct” Ownership Rules for HUBZone Program
On March 26, 2018, the U.S. Small Business Administration (SBA) issued a direct final rule that changed the wording of 13 C.F.R. § 126.200(b)(1) to allow indirect ownership by U.S. citizens of companies in the HUBZone program. The stated purpose of the rule change is to align more accurately the rule with the underlying statutory authority. Prior to this change the HUBZone rules required that a HUBZone company be “unconditionally and directly owned” by U.S. citizens. The rule took effect . . . Read More
GAO Overturns OTA Award to REAN Cloud
On May 31, 2018, GAO sustained a protest filed by Oracle America, Inc. (“Oracle”) challenging the Army’s entry into a follow-on production other transaction agreement (“OTA”) with REAN Cloud LLC (“REAN”). Oracle alleged that the Army did not properly exercise its authority in entering the follow-on production OTA with REAN. GAO agreed. The OTA was for the migration of legacy software applications to a commercial cloud service provider. REAN is an Amazon Web Services partner. The initial award was $950 . . . Read More
OHA Reaffirms the Relevancy of the Date of Self-Certification
In the Matter of ASIRTek Federal Services, LLC, SBA No. VET-269 (2018), SBA found that the apparent awardee of a contract set aside for service-disabled veteran-owned small businesses (“SDVOSB”) was ineligible as an offeror because its joint venture agreement (“JVA”) failed to conform to the regulatory requirements. On appeal, SBA’s Office of Hearings and Appeals (“OHA”) upheld the finding of ineligibility, noting that the appellant’s JVA was defunct because it was dated more than a year before the solicitation was . . . Read More
Doing Double-Duty: Your Claim Can Serve as Your Complaint in a Claim Appeal
The Civilian Board of Contract Appeals (“Board”) recently held that a contractor’s claim could serve as its complaint when appealing the denial of that contractor’s claim. In K.O.O. Construction, Inc. v. Department of Veterans Affairs, CBCA 6072, 2018 WL 1899353, the appellant, K.O.O. Construction, Inc. (“KOO”) filed a nineteen-page, single-spaced, certified claim with various exhibits with the U.S. Department of Veterans Affairs (“VA”). VA did not respond to the claim, and KOO filed an appeal of VA’s “deemed denial” of . . . Read More
Who Are the “Key Management Personnel” for Purposes of My Company’s Facility Clearance?
Whether a federal contractor can be cleared depends on its people. Specifically, whether a company can obtain a facility clearance (“FCL”) depends on the personnel clearances (“PCL”) of the company’s Key Management Personnel (“KMP”). For instance, if a company needs a secret FCL for contract performance, then the company’s KMP either need to have a secret PCL or be excluded from access to classified information. Contractors often ask who the KMP for their companies are supposed to be. At a . . . Read More
Legislative Remedies for Surviving Midsize
Back when you started your small business, and the very prospect of making payroll for the month was nerve-wracking, you probably never imagined that your company might actually become too successful. Now, as you get closer to midsize, this very concern may have crossed your mind. Once a company’s revenues exceed the size standard for its industry, it is no longer afforded the federal protections and opportunities of a small business, and it graduates to “midsize,” the undefined middle ground . . . Read More