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
The Weekly Update for October 1, 2018
DEFENSE DEPARTMENT Federal Acquisition Regulation: Evaluation Factors for Multiple-Award Contracts The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) are proposing to amend the Federal Acquisition Regulation to implement a section of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017. Section 825 of the NDAA for FY 2017 amends 10 U.S.C. 2305(a)(3) to modify the requirement to consider cost or price as an evaluation factor for the award for . . . 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
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
The 2019 NDAA’s Impact on Small Business Programs
The Weekly Update for September 21, 2018
SMALL BUSINESS ADMINISTRATION House Small Business Committee Calls for a Status Update on FAR Revision of Limitations on Subcontracting. Last week, House Small Business Committee Chairman Steve Chabot and Ranking Member Nydia Velázquez sent a letter to the acting administrator of the Office of Federal Procurement Policy requesting a status update of Federal Acquisition Regulation Case Number 2016-011, titled “Revision of Limitations on Subcontracting. Section 1651 of Public Law 112-239, the National Defense Authorization Act for Fiscal Year 2013 (2013 . . . Read More
Using CTAs to Pursue GSA Schedule Opportunities – The Basics You Need to Know
Presented By Katie Flood and Julia Di Vito Click here to view the recorded session. Although the FAR provides a fairly generic definition of a Contracting Team Arrangement (CTA), the concept means something very distinct when applied in the pursuit of a GSA Schedule opportunity. Combining practical elements from both joint ventures and prime/subcontractor relationships, GSA provides contractors the opportunity to team together under a CTA umbrella in order for the contractors to combine their respective Schedule offerings in response to the . . . 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