Contractors sometimes read solicitations and think, “I’ve got just the thing for this contract”, without paying sufficient attention to what the government purchaser actually wants to buy. Usually, that failure is fatal to the contractor’s chances of winning an award. As the recent Government Accountability Office (GAO) decision in Global SuperTanker Services, LLC, B-413987; B-414987.2 (November…
Usually, the failure to timely submit a proposal to a procuring agency results from poor planning, administrative error, or a lack of proper attention to detail on the part of the offeror. But sometimes the “failure” to meet the proposal submission deadline is largely beyond the offeror’s control. As the Government Accountability Office (GAO) decision in the recent case of ManTech Advanced…
For the past seven years or so, procuring agencies within the Department of Defense (DoD) have been precluded from expending funds on contracts in excess of $1 million unless the contractor agrees not to require its employees to agree to binding arbitration as a condition of employment. To the extent that anyone is still clinging to the notion that the prohibition was toothless and essentially…
Eric Whytsell will be speaking at the upcoming Fall Meeting of the American Bar Association Section of Public Contracts Law, which will take place in Louisville, Kentucky on November 2-3, 2017. He will be part of the "Hot Topics in State and Local Procurement" portion of the Program, which will consist of four TED Talk style presentations. Mr. Whytsell's talk is entitled "Exemptions -…
When preparing proposals and responding to discussion questions, offerors sometimes unconsciously respond to solicitation requirements and agency comments from a normative perspective, providing the information they believe “makes sense” rather than the information the agency has actually requested. It seems that this dynamic may have contributed to the circumstances considered by the Government…
In May 2016, the Small Business Administration (SBA) revised its small business regulations to, among other things, amend 13 C.F.R. § 121.103(h) to expand the exclusion from affiliation for small business size status to allow two or more small businesses to joint venture for any procurement without being affiliated for purposes of that procurement requirement. SBA believed this change would…
Preparing and submitting contract claims is a time-consuming and expensive endeavor. The last thing a contractor wants is for all that time and expense to be for naught. The recent Armed Services Board of Contract Appeals (ASBCA) decision in the case of NileCo General Contracting LLC, ASBCA 60912, reiterates the vital importance of a contractor’s dotting its “i’s” and crossing its “t’s”--and…
DFARS Clause 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting, was added in 2016. It requires contractors to safeguard covered defense information that is processed or stored on their internal information system or network by implementing National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, "Protecting Controlled Unclassified…
Upon learning of a contract award to a competitor, offerors often immediately latch onto the idea of protesting what they are sure must be a flawed decision. After all, how could it be reasonable and consistent with law and the solicitation for the agency to have chosen the awardee over the disappointed bidder? Firms that find themselves in this situation need to find a way to quickly get past…
Contractors often find themselves caught between a rock and a hard place, where the rock is the need to get ready to perform the contract and the hard place is the lack of a notice to proceed. Firms facing this dilemma must determine whether and to what extent they should incur costs without a notice to proceed and how long those costs can reasonably be incurred. These issues lie at the core of…
Sometimes small business offeror’s lack of success in a competitive procurement results from questions about whether it is “responsible” (i.e. has the ability to perform). When a small business’ proposal is found unacceptable due to a responsibility-related issue, the procuring agency must refer the matter to the Small Business Administration (SBA), which has the ultimate authority to determine…
August 29, 2017, the Office of Management and Budget (OMB) notified the Equal Employment Opportunity Commission (EEOC) that it was initiating a review and immediate stay of the revised EEO-1 form announced by EEOC in September of 2016. The new form, which was to be used beginning on March 31, 2018, sought more information than its predecessor relating to total compensation and total hours worked…
