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Joshua Duvall was quoted by Law360 in its article "SBA Small Biz Program Changes Likely To Limit Participation." In July, U.S. District Judge Clifton L. Corker (E.D. Tennessee) held in Ultima Servs. Corp. v. U.S. Dep't of Agric. that the "rebuttable presumption" of social disadvantage under SBA's 8(a) program regulations violated a plaintiff's Fifth Amendment right to equal protection under the U.S. Constitution. As a result, the court enjoined SBA from using the rebuttable presumption in administering the 8(a) program.

In discussing the court's decision and SBA's recent ...

We recently wrote about a federal court decision in Ultima Servs. Corp. v. U.S. Dep't of Agric., which held that the "rebuttable presumption" of social disadvantage under Small Business Administration's ("SBA") 8(a) Program ("8(a) Program") was unconstitutional. Following the court's decision, SBA paused all applications for its 8(a) Program and provided a short update on certify.SBA.gov.

Today, the SBA, in conjunction with the National 8(a) Association, held a webinar to provide another update on how SBA plans on moving forward in light of the court's decision in Ultima. This ...

On August 22 & 23, 2023, Joshua Duvall will be participating in the 2023 National HUBZone Conference in Leesburg, VA as both a presenter and panel moderator. On August 22, Josh will present Bid Protests 101, and on August 23, Josh will moderate a panel called Navigating Regulatory and Policy Updates in Government Cyber Security Protocols: Ensuring Compliance and Strengthening Resilience.

The 2023 National HUBZone Conference is a 2-day event packed with matchmaking, networking, and workshops. This annual conference emphasizes the importance of community collaboration to ...

On July 19, 2023, the U.S. District Court for the Eastern District of Tennessee held in Ultima Servs. Corp. v. U.S. Dep't of Agric. that the "rebuttable presumption" of social disadvantage under Small Business Administration's ("SBA") 8(a) Business Development Program ("8(a) BD Program") violated a plaintiff's Fifth Amendment right to equal protection under the law. The Court enjoined the SBA from using the rebuttable presumption in administering SBA’s 8(a) BD Program. As a result, discussed further below, both future and current 8(a) BD Program participants will need to ...

The government's fiscal year ("FY") is coming to an end on September 30, which means the need for agencies to spend "use it or lose it" contracting dollars will steadily increase over the next couple of months. And, while the contracting space typically sees a concomitant uptick in bid protests in September and October due to the influx of late Q4 contract awards, this year, we may also see an uptick in something else due to a recent Small Business Administration ("SBA") regulatory update: sole source 8(a) awards.

As many contractors may recall, in 2020, the Department of Defense ("DOD ...

On June 9, 2023, the Department of Defense (“DoD”) issued a proposed rule to address domestic preferences – the Buy American Act – in DoD procurements. The proposed rule follows updates to the Federal Acquisition Regulation (“FAR”) that implemented Executive Order (“EO”) 14005, Ensuring the Future Is Made in All of America by All of America's Workers, by addressing DoD-unique requirements.

The FAR final rule, Amendments to the FAR Buy American Act Requirements (effective October 25, 2022), which we previously covered on this blog, implemented a portion of EO ...

On June 2, the Federal Acquisition Regulatory Council published an interim final rule ("IFR") to ban the use of a ByteDance Covered Application (i.e., TikTok) in government contracting. This rule is effective June 2, 2023 and "prohibits contractors from having or using a covered application on any information technology owned or managed by the Government, or on any information technology used or provided by the contractor under a contract, including equipment provided by the contractor's employees.”

Every federal contractor knows how difficult it is to win a government contract. Indeed, contractors often start pursuing larger contracts or vehicles well over a year before the solicitation is even published. And, while each contractor’s business development and capture strategies vary, they typically share two characteristics: copious amounts of time and money. Given the financial burden and significant hurdles between contractors and a contract, it is exhilarating to receive a notice of award.

That sense of accomplishment, however, can be fleeting, particularly where ...

The Federal Trade Commission (“FTC”) recently issued a proposed rule, which, if enacted as written, would ban essentially all non-compete agreements by private employers. The proposed rule is one of the broadest expansions of agency authority in the FTC’s history, raising a myriad of considerations for all employers.

Briefly, the proposed rule would prohibit employers from entering agreements with employees, regardless of what the agreements are called, if their substantive effect would prohibit or otherwise restrict employees from working for another company or ...

Recently, the U.S. House of Representatives and Senate overwhelmingly approved the National Defense Authorization Act for Fiscal Year 2023 ("FY23 NDAA"). The legislation is welcome news for both the Department of Defense ("DoD") and defense contractors – the bill now heads to the President's desk for signature.

While the legislation is over 4,400 pages, covering a host of issues, one provision may have a profound impact on the defense industrial base ("DIB"): inflation relief under Section 822, Modification of Contracts to Provide Extraordinary Relief Due to Inflation ...

On November 17, 2022, the Small Business Administration (“SBA”) issued a final rule and several interim final rules effective December 19, 2022 that upwardly adjust some of SBA’s monetary thresholds for inflation. The changes are welcome news in this period of economic uncertainty because they will ultimately help more small businesses participate in federal set-aside opportunities. As summarized below, SBA’s new rules cover three inflationary adjustments: (1) receipts-based size standards; (2) economic disadvantage thresholds; and (3) the 8(a) sole source ...

The landmark Bipartisan Infrastructure Law (“BIL”) is a once-in-a-generation initiative to address aging U.S. infrastructure needs and equalize greater access to public resources. While the Administration continues to move with impressive speed in creating the administrative channels and oversight offices necessary to implement the billions of dollars that have been appropriated for this impressive undertaking, recipient agencies have had more difficulty in evaluating and implementing the requirements of the BIL, including the domestic sourcing preferences ...

Yesterday, the U.S. Government Accountability Office (“GAO”) published its Bid Protest Annual Report to Congress for Fiscal Year 2022. GAO’s annual report is required under the Competition in Contracting Act of 1984 (“CICA”) and provides the government contracting community with good insight into GAO’s bid protest function. [1]

Despite being just four pages (excluding GAO’s letter regarding one instance in which an agency did not follow GAO’s recommendation), [2] GAO’s report is highly informative because it showcases key bid protest statistics and ...

On October 26, 2022, John M. Tenaglia, Principal Director, Defense Pricing and Contracting, issued Class Deviation 2023-O0001 to direct contracting officers to use alternate procedures to verify small business joint venture offeror eligibility instead of using the System for Award Management ("SAM"). The Class Deviation takes effect on October 28, 2022 and remains in effect until rescinded.

Under the Class Deviation, DoD contracting officers are required to include the following statement in solicitations:

• “A small business joint venture offeror must submit, with its ...

Numerous changes to the Buy American Act (“BAA”) have been proposed and implemented in recent years, with another one coming this week. Beginning tomorrow, on October 25, 2022, the domestic content requirement for components in non-ferrous manufactured end products and construction materials will increase from 55% to 60%. This increase will be the first of three phased increases for such products implemented under the Biden Administration.

As a brief recap, the BAA is a domestic preference statute that encourages federal agencies to procure manufactured end products or ...

On June 16, 2022, the Department of Defense ("DoD") issued a memorandum on cybersecurity compliance, Contractual Remedies to Ensure Contractor Compliance with Defense Federal Acquisition Regulation Supplement Clause 252.204-7012, for contracts and orders not subject to Clause 252.204-7020; and Additional Considerations Regarding National Institute of Standards and Technology Special Publication 800-171 Department of Defense Assessments. The memo is important for defense contractors because it reminds procuring officials of alternative remedies and tools that are ...

Today, the U.S. Small Business Administration ("SBA") published a final rule that changes the lookback period for employee-based size standards from 12 months to 24 months. The final rule takes effect on July 6, 2022 and is welcome news for contractors that operate under North American Industry Classification Systems ("NAICS") codes with employee-based size standards.

Specifically, the final rule implements section 863 of the National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283 ("2021 NDAA”), which amended portions of the Small Business Act to change ...

Recently, the U.S. Government Accountability Office (“GAO”) issued a report on the continuing challenges and opportunities for the Department of Defense (“DOD”) in space acquisitions. GAO’s report, which was timely published during the 37th Annual Space Symposium, reflects the current rise of space systems in military and national security operations. The report also unearths challenges and opportunities related to space acquisitions stemming from a new acquisition process, the Space Force, growth in the commercial space industry, and evolving threats in ...

We recently wrote about the Office of Federal Contract Compliance Programs' (“OFCCP”) upcoming requirement for contractors to certify their affirmative action program ("AAP") compliance starting March 31, 2022. In forging ahead with its oversight function, on March 15, 2022, the OFCCP issued Directive 2022-01, Pay Equity Audits (the “Directive”), which requires contractors to produce internal pay equity analyses as part of their audit responses. This is the first OFCCP directive under the Biden Administration and it adds yet another significant element to ...

Federal contractors and subcontractors will soon be required to certify, on an annual basis, to the Office of Federal Contract Compliance Programs (“OFCCP”) that they have developed and maintained a written affirmative action program (“AAP”). On February 1, 2022, registration opened for the OFCCP AAP Verification Interface (“AAP-VI” or “Contractor Portal”) and, on March 31, the certification features will be turned on. When the certification features become available, existing covered contractors will then have until June 30, 2022 to certify that they have ...

A Government Accountability Office ("GAO") bid protest decision highlights an important aspect of "best value" in government contracting: a proper tradeoff decision must provide a rational explanation as to why a superior technical proposal warrants paying a higher price.

The protest of Alpha Omega Integration, LLC, B-419812; B-419812.2, August 10, 2021, 2021 CPD ¶ 302 involves a challenge to the U.S. Department of Agriculture's ("Agency") award under a solicitation for information technology services. The solicitation used a best-value source selection process with a ...

On November 30, 2021, Judge Gregory F. Van Tatenhove of the U.S. District Court for the Eastern District of Kentucky issued a preliminary injunction in Commonwealth of Kentucky et al. v. Biden et al. (Case No. 21-cv-00055) that prohibits the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.” This Client Alert provides a high-level overview of the decision and highlights similar challenges now pending in various U.S. District Courts throughout the country.

In ...

Yesterday, the Department of Defense ("DoD") announced Version 2.0 of the Cybersecurity Maturity Model Certification ("CMMC") Program. Notably, CMMC 2.0 maintains the original CMMC 1.X Program's goal of safeguarding sensitive information, while:

• Simplifying the CMMC standard and providing additional clarity on cybersecurity regulatory, policy, and contracting requirements;
• Focusing the most advanced cybersecurity standards and third-party assessment requirements on companies supporting the highest priority programs; and
• Increasing Department oversight of ...

This Client Alert outlines the critical points for government contractors to know about the Biden Administration’s executive order, regulations, and guidance addressing COVID-19 prevention measures in the workplace.

On September 9, 2021, President Biden issued Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO”), to promote the economy and efficiency in federal procurement by ensuring that certain federal prime contractors and subcontractors provide adequate COVID-19 safeguards to their workers performing on or in ...

In August, the Government Accountability Office ("GAO") provided a boost for small business joint ventures ("JV") that are pursuing defense contracts in holding that the plain language of the 2020 National Defense Authorization Act ("NDAA") prohibits the Department of Defense ("DoD") "from issuing solicitations that require a joint venture, rather than the members of the joint venture, hold the required facility clearance."

The decision is welcome news for small business JVs where each member holds the required facility security clearance ("FCL"), as the decision may result ...

On Friday, September 24, 2021, the Safer Federal Workforce Task Force ("Task Force") published its Guidance for Federal Contractors and Subcontractors ("Guidance"). This Guidance follows President Biden's Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors ("EO") and provides definitions, three sections of contractor guidance, and a host of Questions and Answers ("Q&A") to assist contractors in implementing the President's vaccine mandate and workplace safety measures.

Briefly, the Guidance is broad and the vaccine mandate ...

Last week, the Federal Acquisition Regulation ("FAR") Council published a final rule amending the FAR to implement a portion of the National Defense Authorization Act for Fiscal Year 2017 ("2017 NDAA"), which requires examples of failure to make good faith efforts to comply with a small business subcontracting plan.

The final rule also provides that "failure to make a good faith effort to comply with the plan may result in the assessment of liquidated damages per FAR 52.219-16, Liquidated Damages—Subcontracting Plan," and requires that "all indirect costs, with certain ...

A recent Government Accountability Office ("GAO") bid protest decision provides a reminder of when an agency may conduct a price realism analysis in fixed-price contracts. So, the next time you want to challenge a competitor's low price, remember that agencies are neither required nor permitted to conduct a price realism analysis in a fixed-price procurement unless the solicitation calls for it either expressly or impliedly.

The protest of Inbound, LLC, B-419853.5, July 30, 2021, 2021 CPD ¶ ___ involved the protester's challenge to the establishment of multiple blanket purchase ...