GAO Sustains Protest Alleging Misrepresentation in Proposal Regarding Availability of Incumbent Staff
It is generally difficult to win a bid protest by arguing that the awardee proposed personnel that it did not have a reasonable expectation would be available for performance. Such allegations are normally difficult to prove, particularly at the outset of a protest, because the protestor is unlikely to know which personnel the awardee proposed. As a result, these protest grounds have a high risk of being dismissed as speculative. Winning such a protest is, however, possible. The Government Accountability . . . Read More
Teaming Agreements: Are They Necessary or Not Worth the Effort?
Government contractors enter into teaming agreements to secure contracts with partners that will help them win and perform the work. It surprises many, however, that certain terms in a teaming agreement may not be enforceable, particularly the clauses providing for the award of a subcontract. This has led contractors to ask, “What is the point of a teaming agreement?” There are many advantages to teaming agreements, or they would not be so prevalent in the government contracting industry. Although those . . . Read More
SBA Information Notice Provides Guidance on SBA’s Interpretation of the Small Business Runway Extension Act of 2018
We recently wrote about the Small Business Runway Extension Act (Runway Extension Act), which President Trump signed into law on December 17, 2018. Under the Runway Extension Act, for industries with receipts-based size standards, the size of a firm is to be measured based on its average annual gross receipts over the previous five years (extended from the previously used three-year period). Missing from the Runway Extension Act is any explicit directive as to when the new five-year calculation takes effect, . . . Read More
OHA Explains Which SDVOSB Eligibility Rules Apply in Its First VA SDVOSB Protest Decision
Starting October 1, 2018, the U.S. Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) now has jurisdiction over all service-disabled veteran-owned small business (“SDVOSB”) status protests when the procuring agency is the U.S. Department of Veterans Affairs (“VA”). Previously, SDVOSB status protests on SDVOSB set-aside solicitations issued by VA were decided by VA. Now, OHA hears all SDVOSB status protests on VA procurements and has recently issued its first decision in an SDVOSB status protest in connection with . . . Read More
President Trump Signs Small Business Runway Extension Act of 2018 into Law
On December 17, 2018, President Trump signed the Small Business Runway Extension Act (H.R. 6330) into law . As we discussed in our previous blog , the Small Business Act previously measured a company’s size under the prescribed size standards on a basis of the company’s average annual receipts from the previous three years; the new law extends this time to the previous five years. The change was designed to reduce the impact of rapid-growth years and resulting spikes in revenue that could prematurely eject a . . . Read More
Key Considerations for Government Contractors Facing a Government Shutdown
A government shutdown is looming once again. Congress has already passed five of the twelve FY 2019 funding bills, which fund 70% of the government through September 2019, through two vehicles. H.R. 6157 includes funding for the Departments of Defense, Labor, Health and Human Services, Education, and related agencies. H.R. 5895 provides funding for the Departments of Energy, the Interior (Bureau of Reclamation only), Veterans Affairs, and related and independent agencies, as well as the Army Corps of Engineers civil works projects, and the . . . Read More
Congress Passes New Receipts Calculation for Determining the Size of Small Businesses
On December 6, 2018, the Senate passed the Small Business Runway Extension Act (HR 6330) , which amends the Small Business Act by changing the time period for determining a company’s size based on average annual receipts. Initially, the Small Business Act required a company’s compliance with the size standards to be prescribed on the basis of the company’s average annual receipts from the previous three years; the Small Business Runway Extension Act extends this time to the previous five years. The House passed the bill on . . . Read More
SBA Proposes Significant Changes to Its Small Business Regulations
On December 4, 2018, the U.S. Small Business Administration (“SBA”) issued a proposed rule (“Rule”) to implement several provisions of the National Defense Authorization Acts (“NDAA”) of 2016 and 2017 and the Recovery Improvements for Small Entities After Disaster Act of 2015 (“RISE Act”), as well as other clarifying amendments. The Rule will likely garner a lot of attention in the coming weeks, as it proposes a number of sweeping amendments that could have a significant impact on small business government contracting. . . . Read More
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