GAO Rebukes Agency for Finding Proposal Nonresponsive Based on Buy American Act Submission
The U.S. Government Accountability Office (“GAO”) recently sustained a bid protest in which the U.S. Department of Energy (“DOE”) found a construction contractor’s bid to be nonresponsive due to the contractor’s failure to provide all information required by Federal Acquisition Regulation (“FAR”) 52.225-9 and 52.225-10. When these FAR provisions are included in a solicitation, they set out a preference that a contractor use domestic products and materials in its construction project. If a contractor wishes to use foreign materials instead . . . Read More
Taking Advantage of State and Local Small Business Certifications
Many federal government contractors are familiar with certain federal certifications, such as small business, woman-owned small business, service-disabled veteran-owned small business, and the like, and the contract set-aside benefits that are associated with such socioeconomic designations. While some of these federal certifications may flow down to state and local procurements, many government contractors may also qualify for state and local certifications, which can generate more revenue outside of the ever-competitive federal government contracting marketplace. Similarly to the federal government, many . . . Read More
NLRB Proposes Rule to Limit Joint Employer Test: Small Businesses Beware
If at first you don’t succeed, try, try again. The National Labor Relations Board (“NLRB”) has taken this proverb to heart when it comes to implementing a new test for what it means to be a “joint employer” under the National Labor Relations Act. Following a failed attempt to change the standard through case law, the NLRB is now attempting to revise it by issuing a proposed rule. Last December, the NLRB endeavored to reverse Obama-era NLRB precedent, which held . . . Read More
How a CTA Can Help You Qualify for Government Contracts
You may have heard of Contractor Team Arrangements (“CTA”) that can be used to pursue General Services Administration (“GSA”) Schedule contract opportunities, but do you know how a CTA can maximize your ability to qualify for government contracts? CTAs are distinct from traditional prime contractor-subcontractor relationships and joint ventures, and they provide different methods for making your company a more attractive offeror. A CTA allows two or more GSA Schedule contractors to team together for GSA Schedule opportunities, and all . . . Read More
How New Minimum Wage and Service Contract Act Health and Welfare Rates Apply to Your Contract
As we head into a busy proposal and award season, keep in mind some important changes to Service Contract Act (“SCA”) wages and fringe benefits. In July, the Department of Labor (“DOL”) issued revised SCA health and welfare (“H&W”) benefit amounts, increasing the base rate from $4.41 per hour to $4.48 per hour. An H&W rate of $4.18 per hour is now applicable to employees performing work on contracts that include FAR 52.222-62, Sick Leave for Contractors. This rate takes . . . Read More
The 2019 NDAA Streamlines, Reorganizes, and Redefines
Title VIII—Acquisition Policy, Acquisition Management, and Related Matters of the National Defense Authorization Act for Fiscal Year 2019 (“2019 NDAA”) includes a number of changes to the Department of Defense (“DoD”) acquisition statutes and the definition of commercial items. These changes appear to be in direct response to the recommendations from the Section 809 Panel (the “Panel”) reports from January and June of 2018. In its reports, the Panel noted the sometimes cumbersome and unnecessary complexity of the DoD acquisition system and the confusion surrounding the definition of . . . Read More
The 2019 NDAA’s Impact on Small Business Procurement
On August 13, 2018, the John S. McCain National Defense Authorization Act (“NDAA”) for Fiscal Year 2019 was signed into law by President Trump. As with prior NDAAs, the 2019 NDAA includes a number of provisions that affect procurement policy, management, and related matters. Below, we summarize some of the more notable provisions that will impact small business procurement. Section 822—Establishment of Expedited Process for Small Value Contracts Among other things, Section 822 of the 2019 NDAA requires the Secretary of Defense (“Secretary”), by no later than December 1, 2019, to develop . . . Read More
2019 NDAA Raises Micro-purchase Threshold for DoD
The 2019 NDAA brought a welcome surprise for many defense contractors—the DoD plans to increase its micro-purchase threshold from $5,000 to $10,000, which matches the increase given to civilian agencies in last year’s NDAA. Earlier this year, the Civilian Agency Acquisition Council (CAAC) issued a class deviation to the FAR to implement the revised simplified acquisition threshold (SAT) and micro-purchase threshold that were included in the 2018 NDAA before the FAR was revised. These deviations increased the SAT to $250,000 and the . . . Read More
Lost in Cyberspace? It’s Time to Find a Map
As I have noted in recent blogs here and here , momentum has been building this year toward a greater impact for cybersecurity compliance in the award of federal contracts, particularly at DoD. From talking with many contractors, however, it still appears that a lot of firms are taking a wait-and-see approach to cybersecurity. Meaning, they will wait to see if it becomes an issue for a particular contract or if DoD starts to more actively enforce and monitor requirements. While an . . . Read More
Congress Lowers the Acceptability of LPTA
Government contractors have criticized lowest-priced technically acceptable (“LPTA”) procurements since LPTA was first introduced as a source selection method. In an LPTA procurement, all offerors that meet the requirements in a solicitation are deemed technically acceptable, and award is based solely on price. Critics of LPTA have argued that this source selection technique does not allow an agency to exercise the type of judgment needed when a contract involves complex requirements or when quality, safety, and innovation are paramount. The . . . Read More