Government Contracts Monitor

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: DoD Issues New Guidance on Contract Types

April 19, 2016

The Department of Defense (DoD) recently issued new guidance concerning the proper selection of contract type for use in procurements. The “Guidance on Using Incentive and Other Contract Types” will be posted within the DFARS Procedures, Guidance and Information (PGI) at DFARS PGI 216.104.

In her April 1, 2016 issuing memorandum, Claire M. Grady, Director of Defense Procurement and Acquisition…

If You Develop Software for the Federal Government, You Need to Read the OMB’s Draft Federal Source Code Policy

March 21, 2016

On March 11, 2016, the Office of Management and Budget (OMB) published a Federal Register notice seeking public comment on a draft memorandum entitled, “Federal Source Code Policy — Achieving Efficiency, Transparency, and Innovation through Reusable and Open Source Software.’’ The notice explains that the Administration’s Second Open Government National Action Plan committed to adopting a…

Short Take: Democratic Representative to Introduce Bill to Broaden CFIUS Review

March 14, 2016

Representative Rosa DeLauro (D – Connecticut) intends to introduce a bill before the 114^th Congress that will broaden the powers of the Committee on Foreign Investment in the United States (CFIUS), a United States government committee tasked to review business transaction that result in foreign ownership of US corporations.  At present, CFIUS is directed to review transactions to determine…

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…

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…

Short Take: DoD Seeking Input on Potential Rule to Address How IR&D Expenses Are Considered during Proposal Evaluation

February 16, 2016

Last week, the Department of Defense (DoD) issued an advance notice of proposed Rulemaking (81 Fed. Reg. 6844) seeking information it hopes will aid in crafting a revision to Defense Federal Acquisition Regulation Supplement (DFARS) to ensure uniformity in the manner by which DoD evaluates “the use substantial future independent research and development (IR&D) expenses as a means to reduce…

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…

Sole Source Awards to WOSBs Are Finally Here, But Certification Questions Remain

January 18, 2016

Year-end 2015 brought two important developments for Women-Owned Small Businesses (WOSBs), that provide new business opportunities, as well as some uncertainty, as we start 2016. First, the FAR Council issued its eagerly-awaited Interim Rule authorizing sole source awards to WOSBs in appropriate circumstances. This new authority, which is effective immediately, levels the playing field between…

Short Take: Treasury Increases Prompt Payment & Contract Disputes Interest Rates, Effective 1/1/16

January 18, 2016

The Treasury Department has announced that the Prompt Payment Act interest rate is being increased to 2-1/2% per annum for the period of January 1, 2016 through June 30, 2016. Federal Register Notice.  This interest rate is used to calculate the interest penalty paid by the Government when it fails to timely pay contractors for goods and services, as well as interest due under the Contract…

DoD Gives Contractors More Time to Comply with Data Security Rules

January 11, 2016

On December 30, 2015, the Department of Defense issued a new interim rule (80 FR 81472) amending the Defense Federal Acquisition Regulation Supplement (DFARS) to give contractors additional time to implement security requirements specified by National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171. This second interim rule amends DFARS 252.204–7008, Compliance…

2016 New Year’s Resolutions

January 4, 2016

Reassess Your Size Status, Update Your DSBS and SAM Listings, Check Your Past Performance Ratings, and Update Your Employment Policies, Handbooks and Postings

Happy New Year! The start of a new year is a time for New Year’s Resolutions.  Here are several we strongly urge you to follow-through on early in 2016.

1.    Reassess Your (and Any Subcontractors’) Small Business Size Status: Most…