Government Contracts Monitor

GAO Sides with the FAR Council: The Small Business Act’s Set-Aside Provisions Do Not Apply Outside the United States

October 9, 2013

A recent General Accountability Office (GAO) case resolves an ongoing dispute between the Small Business Administration (SBA) and the Office of Federal Procurement Policy (OFPP) concerning the application of set-aside rules outside the United States.  It also offers some interesting insight into the GAO’s approach to resolving inter-agency squabbles concerning statutory interpretation.

In …

Royalty-in-Kind Contracts With The Department of the Interior Can Be Enforceable Federal Contracts

October 7, 2013

Companies that extract minerals and other natural resources from federal land typically pay royalties to the U.S. Department of the Interior (“Interior”).  Under standard federal oil and gas leases, the government may enter into Royalty-In-Kind (“RIK”) contracts providing that the government receives a designated proportion of the minerals extracted instead of a cash payment by the company…

The Federal Government Is Shut Down. Now What?

October 1, 2013

Because Congress was unable to reach an agreement on the federal budget by October 1, 2013, there is no appropriation in place and most federal agencies are required to severely curtail their operations or shut down entirely due to lack of funding.

The following is a sampling of federal agencies of interest to Jackson Kelly clients, a brief summary of their shutdown contingency plans, and the…

Here We Go Again…Possible Federal Government Shut-Down - Actions to Take Now (Updated)

September 27, 2013

Once again we find ourselves faced with a possible federal government shut-down.  Contractors need to start planning and communicating now with their respective government contracting officers about how to address the shut-down, possibly as early as this coming weekend or in a couple of weeks.  If there is a shut-down, virtually all federal government contractors face serious…

Warning: Solicitations Cancelled for Budgetary Reasons Are Likely Not Protestable

September 17, 2013

As the Federal Government continues to navigate the fiscal constraints of sequestration, we are likely to see more cancelled solicitations and decisions to move programs in-house in order to cut spending. While contractors can protest these actions, a recent GAO decision in Vinculum Solutions, Inc., B-408337 (Comp. Gen. Aug. 5, 2013), demonstrates that winning such a protest will be an uphill…

Get What You Need: Final FAR Rule Makes Past Performance More Important Than Ever

September 10, 2013

Last month, the Federal Acquisition Regulation (FAR) was amended to change the government’s procedures for recording contractor past performance.  Specifically, the changes provide factors for government-wide standardization of past performance evaluations and make reporting more consistent and accurate. The final rule requires contracting officials to enter past performance information…

Furloughs Over but Procurement Woes Remain

August 26, 2013

Congress’s $85 billion in budget cuts are certainly affecting government contractors.  Not surprisingly, many of the contractors feeling the greatest impact are those associated with military spending.  The Department of Defense (DOD) was specifically targeted to absorb approximately half of the cuts from the sequester that began March 1, 2013.

Contractors are trying to diversify and…

Federal Circuit Does Not Agree With Contractor’s Contention That “Where There’s Smoke, There’s Fire”

August 26, 2013

The Federal Circuit recently set a high bar to hurdle for any company wishing to file bid protests in these times of sequestration and partially cancelled solicitations.  Croman Corp. v. United States, No. 2012-5138 (Fed. Cir. July 31, 2013) involved a 2011 Solicitation by the Forest Service for heavy and medium helicopters to use for firefighting support missions from selected operations…

Time Is On My Side: Protests Extend Incumbency

August 19, 2013

The federal budget is shrinking.  As a result, there are fewer federal contracting opportunities and, of critical concern, competition for the opportunities that remain is increasing. How?  Not only in the number of concerns competing for each opportunity, but in the number of protests filed by disappointed bidders. Indeed, many companies feel they simply cannot afford not to protest.…

Get What You Need: Final FAR Rule Makes Past Performance More Important Than Ever

August 13, 2013

On August 1, 2013, the Federal Acquisition Regulation (FAR) was amended to change the government’s procedures for recording contractor past performance specifically, to provide factors for government-wide standardization of past performance evaluations and to make reporting more consistent and accurate. The final rule requires contracting officials to enter past performance information into the …

Anti-Kickback Act’s Reach Includes Vicarious Liability for an Employer

August 7, 2013

In a case of first impression, the Fifth Circuit held that a specific civil provision of the Anti-Kickback Act extends vicarious liability to an employer for the acts of its employees.  In United States ex. rel. Vavra v. Kellogg Brown & Root, No. 12-40447 (5th Cir. 2013), the Court reversed a decision by the District Court which held that the Act does not allow the government to allege…

Under Their Thumb: The SUSPEND Act

August 5, 2013

Even brief exclusions from participation in federal contracting or programs can seriously harm a company.  Needless to say, long term exclusions can be fatal.  Thus, the risks of suspension and debarment inherent in doing business with the government cannot be overlooked or underestimated.

Recently contractors, government personnel and legislators alike have expressed concern…