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
OHA to Decide VA SDVOSB Status Protests Starting This Week
Starting on October 1st, SBA began hearing protests challenging an apparent awardee’s eligibility for inclusion in the VA Center for Verification and Evaluation (“CVE”) database and, in turn, its eligibility for a VA SDVOSB contract award. Previously, an SDVOSB status protest for a VA procurement was filed with the contracting officer, who then forwarded the protest to the Director of the CVE to render a status determination. To be timely, the protest had to be filed within five business days . . . Read More
Effective October 1, 2018: SBA Issues Final Rule Regarding Ownership and Control Requirements for SDVOSBs
Recently, I wrote a blog detailing the Department of Veterans Affairs’ (VA) final rule on verification guidelines for veteran-owned small businesses (VOSBs) and service-disabled veteran-owned small businesses (SDVOSBs), which provides that the VA will use the U.S. Small Business Administration’s (SBA) regulations. Just three days before taking effect, SBA issued its final rule on Ownership and Control of SDVOSB Concerns, amending its regulations relating to ownership and control for VOSBs and SDVOSBs. For context and background, I also wrote about SBA’s proposed rule earlier . . . Read More
Marketing Your Small Business for Sole Source Awards
The federal government is increasingly using nontraditional ways to spend its money, such as purchasing goods and services through “other transaction authority,” which we recently wrote about and which does not require traditional competitive award procedures. Another alternative to traditional procurement by competition is a sole source award, and we are seeing more and more of our clients pursuing sole source awards or, in other cases, challenging the award of sole source contracts to other firms. If you are a small . . . Read More
Breach of Settlement Agreement Suits Against Federal Government Not Precluded by Finality Clauses
During settlement discussions with the federal government, contractors are sometimes concerned that the government may not live up to the terms or frustrate the purposes of a settlement agreement and that they will be harmed without effective recourse. These concerns may arise from finality clauses, which are often contained in settlement agreements. However, the U.S. Court of Appeals for the Federal Circuit recently issued an opinion in Labatte v. United States, No. 2017-2396 (Fed. Cir. Aug. 16, 2018), which clarifies . . . Read More
Effective October 1, 2018: A Universal Set of Ownership and Control Requirements for VOSBs and SDVOSBs
Just one week before taking effect, the Department of Veterans Affairs (VA) issued a final rule on verification guidelines for veteran-owned and service-disabled veteran-owned small businesses, found in the National Defense Authorization Act for Fiscal Year 2017 (NDAA 2017). The final rule implements the NDAA 2017, which placed the responsibility for issuing regulations relating to ownership and control for the VA’s verification of VOSBs and SDVOSBs with SBA. As relevant background, the current VA and SBA regulations regarding ownership and control of . . . Read More
New Receipts Calculation for Federal Contractors?
Congress is considering changing the receipts calculation for small businesses. Currently, a company’s size is determined based on the average annual receipts of the three recently completed fiscal years. However, in the Small Business Runway Extension Act of 2018, H.R. 6330 , which the House passed on September 25, 2018, the House of Representatives proposes amending the Small Business Act to change this time period to five years. In a Report dated September 12, 2018, the House Small Business Committee (“HSBC”) observed that . . . Read More