Government Contracts Monitor

Department of State Proposes Changes to United States Munitions List Categories VIII and XIX

February 22, 2016

The latest outcome of the President’s ongoing Export Control Reform (ECR) effort is the recent Department of State (DoS) proposal to amend the International Traffic in Arms Regulations (ITAR) to revise Categories VIII (aircraft and related articles) and XIX (gas turbine engines and associated equipment) of the U.S. Munitions List (USML) to describe more precisely the articles warranting control…

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: 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…

FAR Proposed Rule Would Bar Contractor Confidentiality Agreements Restricting Employees and Subcontractors from Reporting Fraud, Waste & Abuse

January 25, 2016

The FAR Council has published a new Proposed Rule implementing Section 743 of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235), and anticipated successor provisions in future appropriations acts and continuing resolutions, prohibiting the use of appropriated or otherwise available funds for any contract, grant or cooperative agreement with an entity that requires…

Showing a “Clear Fracture” Does Not Rebut Presumption of Affiliation Based on a Common Investments Identity of Interest

January 25, 2016

Small Business Administration (SBA) rules relating to the concept of “affiliation” can render an entity “other than small” for a wide variety of reasons. Unfortunately, as demonstrated by the recent decision of SBA’s Office of Hearings and Appeals (OHA) in Size Appeal of Tenax Aerospace, LLC, SBA No. SIZ-5701 (December 23, 2015), these rules are complex and often difficult to apply.  The …

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…

Opposition Research Has Its Limits – Knowing the Facts May Not Be Enough

January 18, 2016

In order to make good decisions about whether and how to protest an award decision, disappointed bidders must, among other things, have good information about the awardee. This is particularly true where the protest grounds being considered include the argument that the winner’s proposal violated the applicable limitation on subcontracting requirement, an attack that requires a showing that the…

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…

Short Take – FAR Final Rule Implements E.O. 13672 on Sexual Orientation & Gender Identity.

December 15, 2015

On December 4, 2015, DOD, GSA and NASA adopted a Final Rule, effective immediately, amending the Federal Acquisition Regulation (FAR) to implement (i) President Obama’s Executive Order (EO) 13672, and (ii) the Department of Labor (DOL), Office of Federal Contract Compliance Policy (OFCCP)’s implementing Final Rule (previously discussed here).  EO 13672 amends EOs 11246 and 11478 to add…

Short Take – Final Rule Establishing Minimum Wage

December 7, 2015

On December 4, 2015, DOD, GSA and NASA adopted a Final Rule, effective immediately, amending the Federal Acquisition Regulation (FAR) to implement (i) President Obama’s Executive Order 13658, establishing a minimum wage for employees working on covered federal contracts and subcontracts, and (ii) the Department of Labor (DOL)’s Final Rule (previously discussed here).  The Final Rule…

DUNS’ Days May Be Numbered

November 23, 2015

On November 18, 2015, the Federal Regulations Council proposes to amend the Federal Acquisition Regulation (FAR) to change the terminology for unique identification of entities receiving Federal awards by removing the current references to the proprietary DUNS number standard.

Maintaining a unique identification system for entities receiving Federal dollars is critical to ensuring the Government…