Enhanced Post-Award Debriefing Requirements Included in Final Version of FY 2018 NDAA
We recently wrote about enhanced post-award debriefing requirements included in the Senate’s version of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2018 [ read article here ]. The final NDAA signed into law on December 12, 2018, incorporates many of the changes from the Senate version, though the changes are not as burdensome on the Department of Defense (“DoD”) in the final NDAA. For instance, the final NDAA requires a written or oral debriefing for all contract and task order awards . . . Read More
Enhanced DoD Debriefing Requirements in the Senate Version of the FY 2018 NDAA May Reduce Bid Protests
On September 18, 2017, the Senate passed its version of the National Defense Authorization Act (“NDAA”) which authorizes nearly $700 billion in defense spending for Fiscal Year 2018 and contains significant procurement reform provisions. One of those reforms deals with new Department of Defense (“DoD”) debriefing requirements. Currently, unsuccessful offerors are entitled to little information under FAR part 15 procurements. Under FAR 15.506(d), a post-award debriefing must include, at a minimum: the agency’s evaluation of any significant weaknesses or deficiencies . . . Read More
U.S. Supreme Court Denies Petition for Certiorari on Constitutional Challenge to 8(a) Program
On October 16, 2017, the U.S. Supreme Court denied the petition for a writ of certiorari filed by Rothe Development, Inc. in Rothe Development, Inc. v. Department of Defense & Small Business Administration. Rothe, a non-minority-owned federal contractor, challenged the SBA’s 8(a) Program, a program which gives benefits to small business concerns owned and controlled by socially and economically disadvantaged individuals. Rothe alleged that the statutory basis of the 8(a) Program denies it, a company not owned or controlled by socially . . . Read More
SBA Office of Hearings and Appeals Reaffirms “Unconditional Ownership” Requirement in the SBA SDVOSB Program
A recent case reinforces that, just because the corporate governing documents of an SDVOSB satisfy the unconditional ownership requirements for VA’s SDVOSB set aside program, does not mean that the unconditional ownership requirements under SBA regulations will be met. Last month, the SBA Office of Hearings and Appeals issued a decision, Veterans Contracting Group, Inc., SBA No. VET-265 (2017), which reaffirmed the SBA SDVOSB Program’s requirement that an SDVOSB be 51-percent unconditionally and directly owned by one or more service-disabled . . . Read More
How Loans Can Impact Size and Status
It’s protest season. Or, maybe it is always protest season. In any event, the best defense for a size or status protest is always to be prepared before the protest is filed. That means regularly assessing potential affiliations that could affect your size and status. With that in mind, I want to share some information about how affiliation can arise through loans. Specifically, loans from a private party (i.e., an individual or a company, not a bank). SBA . . . Read More
The Sisyphean Labor of the DAR Council: Segregation and Reintegration Data Rights
Having just presented on data rights issues to a number of government contracting officers and procurement professionals, as well as private sector contract management personnel, during the 2017 National Contract Management Association World Congress, it became clear that many people are confused (and rightly so) about what is happening with regard to the segregation and reintegration rules. Given that it took four years to get the first DFARS rule proposed, and then, in the 2017 National Defense Authorization Act (“NDAA”), . . . Read More
Protesting FAA Awards: Understanding the Nuances
Nearly every federal agency is required to follow the Federal Acquisition Regulation (“FAR”). However, one exception is the Federal Aviation Administration (“FAA”), which is not required to comply with the FAR but rather has its own policies and procedures, called the Acquisition Management System (“AMS”). As a result, unlike most bid protests, which may be brought either at the agency-level, Government Accountability Office (“GAO”) or the Court of Federal Claims (“COFC”), protests against the FAA contract awards (or solicitations) must . . . Read More
New Government-Wide Category Management Policy for Package Delivery Services Could Signal Changes for Other Industries
Despite the change in Administration, the Government’s efforts to implement category management continue and are about to have a major impact in how the Government contracts for package delivery services. What is category management? Essentially, it is a Government initiative to reduce contract duplication to save money on common goods and services that the Government purchases through the federal procurement system and is also called strategic sourcing. (For more information about what category management entails, click here .) In . . . Read More
SBA Launches New HUBZone Map
The Small Business Administration (“SBA”) recently launched a new version of the Historically Underutilized Business Zone (“HUBZone”) map on the SBA website. The new HUBZone map designates areas as eligible HUBZone locations and indicates whether an address qualifies as one or more HUBZone designations, such as census tract, county, Indian land, disaster area, closed base area, or redesignated area. For certain types of HUBZones, like redesignated areas, disaster areas, and closed base areas, the map also indicates the date when . . . Read More
2018 NDAA Could Raise the Stakes for Companies Filing Bid Protests on DoD Contracts
The U.S. Senate has proposed a provision in the 2018 National Defense Authorization Act that, if adopted, would raise the stakes for larger firms in filing bid protests. The provision would apply to protests against DoD procurements to the GAO. If GAO denies all elements of such protests, the protesting company would be required to pay to DoD the costs the government incurs for processing the protest at the GAO and DoD. It is unclear how the government would track . . . Read More