August 24, 2017
As we approach the end of the Government’s fiscal year at the end of September, we are once again facing a risk that the Federal Government could shut-down. The risk is heightened this time by: (1) the impending debt ceiling crisis, which Treasury estimates will be hit on September 28 or 29; and (2) President Trump’s reiteration earlier this week that he would be willing to shut-down the…
August 17, 2017
In the compliance context, contractors often have to try to do the impossible: think about everything all the time. A similar ideal applies in the protest context. When considering whether and how to pursue a protest, it's important to think about more than just whether you can win the short-term battle on the substantive legal issues. Contractors also need to consider whether there are…
August 10, 2017
Given the oft-repeated mantra of “full and open competition”, contractors are understandably alarmed when a procuring agency defines its requirements in a way that essentially tracks another company’s product offerings. The recent Government Accountability Office (GAO) decision in Simplex Aerospace, B-414566.2, (August 8, 2017) reminds us that “full and open competition” does not guarantee a…
August 3, 2017
The U.S. Department of Labor (DOL), Wage and Hour Division recently issued All Agency Memorandum No. 225, increasing the basic minimum Health and Welfare (H&W) fringe benefits rate applicable to service contracts under the Service Contract Labor Standards statute (formerly known as, and hereinafter referred to as, the Service Contract Act (SCA)) to $4.41/hr vs the former $4.27/hr -- i.e., an…
July 25, 2017
The Treasury Department has announced that the Prompt Payment Act interest rate is being decreased to 2-3/8% per annum for the period of July 1, 2017 through December 31, 2017. 82 Fed. Reg. 34348 (7/24/17). This interest rate is used to calculate the interest penalty payable by the Government when it fails to timely pay contractors for goods and services, as well as interest due on claims under…
July 19, 2017
When the Government Accountability Office (GAO) dismisses a protest due to timing issues, the problem almost always involves protests submitted after the protest period ends. But late filing protesters are not the only ones who suffer timing-based dismissals. As the recent decision in 2M Research Services, LLC, B-413993.4 (June 19, 2017) makes clear, filing too early--before the protest period…
July 12, 2017
Faced with a short time in which to prepare a protest, contractors sometimes rely too heavily on the notion that the protest clock doesn’t start running until a debriefing is held. Unfortunately, only certain debriefings have that effect. Other types of debriefings, while they may provide useful insight into the procurement process or how to improve future offers, do not extend the timeline for…
July 5, 2017
Contractors sometimes fall into the trap of thinking of protests as a sort of silver bullet that can be used, at least in theory, to remedy any problem. Whether this perspective reflects the contractor’s own past protest success or its perception that the procedure has allowed others to avoid bad outcomes, it substantially overstates the availability–and hence ultimate utility--of the protest…
June 27, 2017
Effective communication of all sorts requires attention to detail, accuracy, and clarity. Simply put, words matter. In many contexts, numbers matter too. And while some circumstances may call for the use of generalization, puffery or creative ambiguity, proposal preparation calls for a more straightforward approach. As the recent Government Accounting Office (GAO) decision in AdvanceMed…
June 21, 2017
Pursuant to President Trump’s February 24, 2017 Executive Order (E.O.) 13777, “Enforcing the Regulatory Reform Agenda,” the DFARS Subgroup to the DOD Regulatory Reform Task Group is seeking public input as to DFARS solicitation provisions and contract clauses that may be appropriate for repeal, replacement or modification. This comment opportunity provides contractors (and other members of the…
June 21, 2017
Starting a business is not for the faint of heart. Establishing and operating a start-up always entails careful consideration of a wide variety of legal and practical issues. Success or failure can depend on the choice of entity, agreed-upon buy-out provisions, the selection of teammates and suppliers, or any of a multitude of other key decisions. When a firm’s business plan includes the pursuit…
June 13, 2017
For many contractors, the process of obtaining or renewing a Federal Supply Schedule (FSS) contract is a loathsome chore only slightly less painful than repeatedly sticking needles in one’s eyes. Firms with this attitude often “go along to get along”, choosing the path of least resistance between them and their coveted Schedule contract. As a result, they might get their contract sooner but they…
August 24, 2017
As we approach the end of the Government’s fiscal year at the end of September, we are once again facing a risk that the Federal Government could shut-down. The risk is heightened this time by: (1) the impending debt ceiling crisis, which Treasury estimates will be hit on September 28 or 29; and (2) President Trump’s reiteration earlier this week that he would be willing to shut-down the…
August 17, 2017
In the compliance context, contractors often have to try to do the impossible: think about everything all the time. A similar ideal applies in the protest context. When considering whether and how to pursue a protest, it's important to think about more than just whether you can win the short-term battle on the substantive legal issues. Contractors also need to consider whether there are…
August 10, 2017
Given the oft-repeated mantra of “full and open competition”, contractors are understandably alarmed when a procuring agency defines its requirements in a way that essentially tracks another company’s product offerings. The recent Government Accountability Office (GAO) decision in Simplex Aerospace, B-414566.2, (August 8, 2017) reminds us that “full and open competition” does not guarantee a…
August 3, 2017
The U.S. Department of Labor (DOL), Wage and Hour Division recently issued All Agency Memorandum No. 225, increasing the basic minimum Health and Welfare (H&W) fringe benefits rate applicable to service contracts under the Service Contract Labor Standards statute (formerly known as, and hereinafter referred to as, the Service Contract Act (SCA)) to $4.41/hr vs the former $4.27/hr -- i.e., an…
July 25, 2017
The Treasury Department has announced that the Prompt Payment Act interest rate is being decreased to 2-3/8% per annum for the period of July 1, 2017 through December 31, 2017. 82 Fed. Reg. 34348 (7/24/17). This interest rate is used to calculate the interest penalty payable by the Government when it fails to timely pay contractors for goods and services, as well as interest due on claims under…
July 19, 2017
When the Government Accountability Office (GAO) dismisses a protest due to timing issues, the problem almost always involves protests submitted after the protest period ends. But late filing protesters are not the only ones who suffer timing-based dismissals. As the recent decision in 2M Research Services, LLC, B-413993.4 (June 19, 2017) makes clear, filing too early--before the protest period…
July 12, 2017
Faced with a short time in which to prepare a protest, contractors sometimes rely too heavily on the notion that the protest clock doesn’t start running until a debriefing is held. Unfortunately, only certain debriefings have that effect. Other types of debriefings, while they may provide useful insight into the procurement process or how to improve future offers, do not extend the timeline for…
July 5, 2017
Contractors sometimes fall into the trap of thinking of protests as a sort of silver bullet that can be used, at least in theory, to remedy any problem. Whether this perspective reflects the contractor’s own past protest success or its perception that the procedure has allowed others to avoid bad outcomes, it substantially overstates the availability–and hence ultimate utility--of the protest…
June 27, 2017
Effective communication of all sorts requires attention to detail, accuracy, and clarity. Simply put, words matter. In many contexts, numbers matter too. And while some circumstances may call for the use of generalization, puffery or creative ambiguity, proposal preparation calls for a more straightforward approach. As the recent Government Accounting Office (GAO) decision in AdvanceMed…
June 21, 2017
Pursuant to President Trump’s February 24, 2017 Executive Order (E.O.) 13777, “Enforcing the Regulatory Reform Agenda,” the DFARS Subgroup to the DOD Regulatory Reform Task Group is seeking public input as to DFARS solicitation provisions and contract clauses that may be appropriate for repeal, replacement or modification. This comment opportunity provides contractors (and other members of the…
June 21, 2017
Starting a business is not for the faint of heart. Establishing and operating a start-up always entails careful consideration of a wide variety of legal and practical issues. Success or failure can depend on the choice of entity, agreed-upon buy-out provisions, the selection of teammates and suppliers, or any of a multitude of other key decisions. When a firm’s business plan includes the pursuit…
June 13, 2017
For many contractors, the process of obtaining or renewing a Federal Supply Schedule (FSS) contract is a loathsome chore only slightly less painful than repeatedly sticking needles in one’s eyes. Firms with this attitude often “go along to get along”, choosing the path of least resistance between them and their coveted Schedule contract. As a result, they might get their contract sooner but they…
