Government Contracts Monitor

In Order to Succeed, Protests Relying on a Limitation on Subcontracting Clause Must Show a Lack of Compliance on the Face of the Proposal

August 22, 2013

In two recent protests at the Government Accountability Office (GAO), the protester alleged that the awardee’s quotation violated the applicable limitation on subcontracting because awardee could not or would not perform the required portion of the contract. In both cases, GAO made clear that such protests cannot succeed unless the protester can demonstrate that the quotation shows, on its face,…

Patent Ambiguity Doctrine Is A Lot Like Obscenity: “I Know It When I See It”

August 19, 2013

You are a government contractor.  You receive a solicitation.  You read it carefully and begin crafting detailed technical and price proposals.  You come across a paragraph or two that, when read together, appear inconsistent or even in conflict.  What should a government contractor do:  try to take advantage of the ambiguity in a post-award bid protest if you don’t…

Short Takes

August 19, 2013

After a long lull, it appears that the regulatory agenda of the Office of Federal Contract Compliance Programs (OFCCP) is back in full swing.  According to the Office of Management and Budget (OMB), the OFCCP recently submitted new affirmative action final rules for veterans and for persons with disabilities to OMB for approval and ultimate publication.  The affirmative action rules…

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 …

Competitors Are Continuing to Police One Another on Compliance Issues

August 7, 2013

More and more, government contractors have their competitors to blame when they find themselves on the wrong end of government enforcement efforts.  Two recent cases involving General Services Administration (GSA) contractors underscore the dangers of non-compliance in today’s government marketplace – and how easily your business rivals can become whistleblowers.

In the first, contractor…

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…

When Submitting Proposals Electronically, Late Might Not Always be Late at the Court of Federal Claims

July 30, 2013

The Court of Federal Claims explained in the recent bid protest Insight Systems Corp. v. United States, Nos. 12-863C and 12-883C (Fed. Cl. May 6, 2013), that it has seen “with disturbing frequency . . . bid protests that find [the Government] straining to defend agency decisions to reject, as purportedly late, proposals submitted by contractors electronically.”  The Court noted that…

Update: Two Government Fraud Cases Go to Sentencing

July 29, 2013

We previously reported on two cases involving fraud against the Government in connection with contracting and loan guarantee programs – the case of Donald and Sherri Brewer and the case of Sandy Oh.  The defendants in each of these cases were recently sentenced, providing yet another reminder (if one were needed) that defrauding the Government comes with serious – and sometimes unique…

Executive Compensation Benchmark Applies To Most Contractor Employees

July 26, 2013

In a series of regulatory actions, the limit on allowable costs for compensation of most contractor employees has been limited to the Executive Compensation Benchmark, a level of allowable compensation traditionally applied only to senior executives.

Previously, the Office of Federal Procurement Policy set a $763,029 cap for allowable costs incurred after January 1, 2011 related to senior…

SBA’s Final Size and Status Integrity Rule Is More Nuanced but It Still Has Teeth

July 23, 2013

The Small Business Administration (SBA) recently issued a final rule strengthening penalties for small businesses that misrepresent their size and/or special socioeconomic status.  As previously explained here, the proposed rule adopted the aggressive approach manifest in the small business size and status integrity provisions of the Small Business Jobs Act of 2010.  While the new rule largely…