Government Contracts Monitor

Remember, the RFP Is Your Touchstone in Both Structuring Your Proposal Team and Selecting Past Performance Examples

May 10, 2016

The solicitation is always your quintessential touchstone, in both constructing your proposal team and preparing your response, including particularly demonstrating your experience and selecting your past performance examples. You therefore need to carefully review the solicitation, and understand both what the agency says it wants, and what it requires and is willing to consider in evaluating…

Short Take: OHA Defers NAICS Code Size Standard Challenges Pending the Promulgation of New Governing Regulations

May 2, 2016

The 2016 National Defense Authorization Act (NDAA-16), 15 U.S.C. § 632(a)(9), authorizes SBA’s Office of Hearings and Appeals (OHA) to hear administrative challenges seeking reconsideration of NAICS Code size standards promulgated by SBA, “us[ing] the same process [OHA] uses to decide challenges to the size of a small business concern.” Id., § 632(a)(9)(A) & C).  Such requests are to be filed “not…

Short Take: FAPIIS Reporting Requirements Expanded to Include Information about Affiliates and Predecessors

April 11, 2016

Effective April 6, 2016, the Federal Acquisition Regulation (FAR) has been amended to require reporting in the Federal Awardee Performance and Integrity Information System (FAPIIS) to include, to the extent practicable, identification of any immediate owner or subsidiary, and all predecessors of an offeror that held a Federal contract or grant within the last three years.

The final rule implements…

Mentor/Protege Agreements – When Does Yours Expire; More Traps for the Unwary!

March 14, 2016

Mentor-Protege Agreements (MPAs) are a hot topic right now, as we near the Small Business Administration (SBA)’s anticipated issuance of new regulations on a possible “universal” Mentor-Protege program that would extend SBA’s current 8(a) Mentor-Protege (M/P) rules (13 C.F.R. §124.520), to other socio-economic programs.  However, as we have discussed from time-to-time, the rules governing…

SBA’s Update of WOSB Set-Aside Industries Brings Mixed News

March 14, 2016

In addition to other changes previously noted, section 825 of the National Defense Authorization Act (NDAA) of 2015 required the Small Business Administration (SBA) to conduct a new study to identify the industries in which women-owned small businesses (WOSBs) are underrepresented in federal government contracting and report its findings to Congress. SBA’s March 3, 2016 Federal Register …

Deemed Denials: Contracting Officers Also Must Comply Strictly with Contract Disputes Act Timeliness Requirements

March 7, 2016

As we have discussed, contractors must pay careful attention to, and comply strictly with, timeliness and related submission requirements, whether in the claims or bid protests context. This is not a one-way street, however.  Government contracting officers also must comply strictly with such requirements.  The equal application of these principles is reflected in two recent decisions…

VA’s Rule of Two Applies to IDIQ Contracts

March 7, 2016

Most contractors are familiar with the “Rule of Two,” which in general requires acquisitions to be set aside if the government determines that there is a reasonable expectation that offers will be received by at least two small (or service disabled veteran-owned, etc.) business concerns and that award can be made at a fair and reasonable price. But what happens if the government determines that…

How Well Do You Answer the Mail, and Are You Willing to Pay the Price of Failure?

February 29, 2016

We all know that time is of the essence in government contracting. Compliance with time deadlines is critical, and missing the same can cost you big time, whether in lost work, lost rights or worse.  A threshold issue is how you receive and respond to government communications, since it is receipt, whether by hand, mail, email or fax, that triggers your obligation to respond.  What procedures do…

Eric Whytsell to Moderate Panel at 22nd Annual FPI - Gaining Advantage on the High Seas: The Thoughtful Pirate’s Approach to Subcontract Terms and Clauses

February 28, 2016

Eric Whytsell of Jackson Kelly will be moderating the opening Practicum panel, entitled “Gaining Advantage on the High Seas: The Thoughtful Pirate’s Approach to Subcontract Terms and Clauses,” at the upcoming 22^nd Annual Federal Procurement Institute, March 9-12, 2016, in Annapolis Maryland. The presentation will cover sorting out the interests of prime contractors, subcontractors, and the…

When the Government Buys Commercial Items, Don’t Forget You Can Demand Terms Consistent with Customary Commercial Practice

February 9, 2016

The Government’s statutory preference for acquiring commercial items that meet an agency’s needs comes with the requirement that, to the maximum extent possible, contracts for the acquisition of those items include only clauses that are consistent with customary commercial practice. In other words, if the Government buys commercial items, it is supposed to use commercial contract terms if it can.…

Short Take: GAO Refuses to Read Limitations on Subcontracting Clause into Solicitation

February 3, 2016

Small businesses and their teaming partners often spend a significant amount of time figuring out how best to comply with FAR 52.219-14, Limitations on Subcontracting. This should come as no surprise, since the clause imposes strict requirements concerning the amount of set-aside contract work that must be performed by the prime contractor and failure to comply can render a proposal…

Short Take: SBA Confirms Last Year’s Monetary-Based Size Standards Inflation Increases

January 25, 2016

The Small Business Administration (SBA) has published a Final Rule, effective January 25, 2016, adopting, as issued, SBA’s 2014 Interim Final Rule, previously discussed here, increasing SBA’s monetary-based size standards to account for inflation since 2008.  These adjustments, which resulted in size standard increases of approximately 8.73% (rounded to the nearest $500,000), were made…