Make Releases Work for You
Releases have proven to be the double-edged sword of government contracting. In some cases, a release can prevent a contractor from successfully submitting a request for equitable adjustment (“REA”) or a claim to the Government. At the same time, a prime contractor can use releases to its advantage—requiring a subcontractor to sign releases during performance and at contract closeout. These releases can be used to easily defeat subsequent subcontractor claims if a dispute arises. Contractors should be familiar with releases . . . Read More
New Verification Requirement for SAM.gov Now Applies to Existing Entities
Just over a month ago, we wrote about a new verification requirement in the form of a notarized letter for new entities registering on SAM.gov, a registration that is required for companies that do business with the federal government. At that time, the requirement was only applicable to new registrations. However, according to an April 26, 2018, update on GSA’s website, the requirement is now applicable to “existing registrations being updated or renewed in SAM,” effective April 27, 2018. As discussed . . . Read More
The Section 809 Panel’s Recommendations on Bid Protests May Cause Major Headaches for Contractors
In Section 809 of the National Defense Authorization Act for FY 2016 , Congress created a panel, known as the Section 809 Panel, to review and to provide recommendations on how to streamline and improve the Department of Defense’s (“DOD”) acquisition process. The Section 809 Panel issued the first volume of its report in January 2018. The second volume, slated for release in June 2018, may include sweeping recommendations for a drastic overhaul of the bid protest process for DOD procurements. While a successful offeror on any . . . Read More
An Instructive Warning to Contractors of the Need to Understand CDA Requirements
A few months back, my colleague, Michelle Litteken, wrote a blog post titled “ Don’t Get Lost Filing and Prosecuting CDA Claims .” She discussed a decision, Securiforce International America, LLC v. United States , in which the U.S. Court of Appeals for the Federal Circuit held that a federal contractor was required under the Contract Disputes Act (“CDA”) to demand a specific amount of money (called a “sum certain”) in a CDA claim to its Contracting Officer (“CO”) for non-monetary relief if, by granting such relief, the contractor would be entitled to monetary damages. . . . Read More
The Future is Here: GAO Bid Protests to Be Filed Electronically Starting May 1, 2018
On April 2, 2018, the U.S. Government Accountability Office (“GAO”) issued a final rule, which, effective May 1, 2018, implements an electronic filing system for bid protests known as the Electronic Protest Docketing System (“EPDS”). Historically, GAO has only accepted protest filings via e-mail, fax, regular mail, or hand delivery. However, in 2014, Congress directed GAO to establish an electronic filing and dissemination system. Thus, the concept for EPDS was born. After years of development, EDPS was taken for a “test drive” . . . Read More
DoD Issues Class Deviation to Implement Enhanced Postaward Debriefing Requirements from FY 2018 NDAA
On Thursday, March 22, the Department of Defense (“DoD”) issued a Federal Acquisition Regulation (“FAR”) class deviation in light of the enhanced postaward debriefing rights required by Section 818 of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2018. The NDAA, which was signed into law on December 12, 2017, requires revisions to the Defense Federal Acquisition Regulation Supplement (“DFARS”) to implement a number of changes to debriefing requirements for DoD procurements. For instance, the NDAA requires a written . . . Read More
SAM, I AM: New Verification Requirement for SAM.gov Likely to Delay New Registrations
Registering with SAM.gov is a fact of life for government contractors. And, from what we often hear, a challenging fact at that. Indeed, it can be difficult to navigate the registration process, and it is time-consuming. Plus, processing times can be slow, from a few weeks to longer in extreme cases. These realities of the SAM.gov registration process can cause stress for a new entity that is registering in SAM.gov for the first time and needs the registration completed before . . . Read More
HUBZone Maps Will Be Frozen Until December 2021
The Small Business Administration (“SBA”) has made changes to the HUBZone maps to implement the new changes from the National Defense Authorization Act for Fiscal Year 2018 (“NDAA”). In December , we wrote about the changes to the HUBZone Program that would result from the 2018 NDAA, which included a requirement that the HUBZone map stay the same until at least January 1, 2020. Since then, SBA has taken the following steps: All areas that were listed as “Redesignated” on 12/12/17 . . . Read More
ASBCA Confirms That It Has Jurisdiction to Entertain Fraud-Based Defenses
The Federal Circuit’s holding in Laguna Construction Co. v. Carter seemed, when the case was decided in 2016, to scale back the Armed Services Board of Contract Appeals’ (“ASBCA”) jurisdiction to entertain fraud-related defenses. 828 F.3d 1364. In that case, the government asserted a defense that Laguna could not recover in its claims because several of the company’s officials had pled guilty to a kickback scheme involving those contracts. The ASBCA found in the Government’s favor, relying on the guilty . . . Read More
Pre-Award Notifications in a Set-Aside Procurement: Can I Get a Debriefing Now?
If you pursue contracts that are set aside for small businesses, you have probably noticed that if your proposal is not successful, you will get what is called a “pre-award” notification from the agency informing you of the identity of “apparently successful offeror.” If you receive such a notice, you may be eager to get a debriefing to find out why your company was not identified as the “apparently successful offeror.” However, receiving a pre-award notification on a set-aside contract . . . Read More