Blog
Today, the Federal Acquisition Regulatory Council ("FAR Council") – Department of Defense, General Services Administration, and National Aeronautics and Space Administration – published its Semiannual Regulatory Agenda. As the document states, the agenda provides interested parties (e.g., government contractors, industry stakeholders, etc.) an opportunity to participate in the federal rulemaking process. Under the Administrative Procedure Act ("APA"), agencies must publish proposed rules in the Federal Register (notice) and allow interested parties to ...
The recent bid protest decision in ELS, Inc., B-421989, December 21, 2023, 2023 CPD highlights an important aspect of bid protest litigation before the U.S. Government Accountability Office ("GAO"): task order jurisdiction.
As many contractors are aware, and generally, GAO has jurisdiction over task orders where: (a) the value of the order exceeds $25 million (DOD/NASA) or $10 million (civilian) and (b) the order increases the scope, period, or maximum value of the underlying IDIQ contract. In other words, and excluding (b), where the value of the task order is below the monetary ...
Last week, the U.S. Government Accountability Office ("GAO") published its much anticipated Bid Protest Annual Report to Congress for Fiscal Year 2023. 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, GAO's report is highly informative because it showcases key bid protest statistics and GAO's most prevalent grounds on which it sustained bid protests during FY23.
To that end, government contractors that ...
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 ...
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 ...
Late last month, the Biden administration launched the 8(a) MAS Pool Initiative. This initiative is a joint effort between the U.S. Small Business Administration (SBA) and the U.S. General Services Administration (GSA) to help small disadvantaged businesses (SDBs) participating in the 8(a) Business Development Program gain access to more federal contracts in GSA’s Multiple Award Schedule (MAS) Program.
The MAS Program is part of the GAO’s Federal Supply Schedule (FSS) and seeks to issue long-term, government-wide contracts that provide federal, state, and local ...
Recently, Cherissa Tamayori, Director of Acquisition and Senior Contracting Official for the Defense Innovation Unit (DIU), joined U.S. military and defense industry experts from around the globe at the Navy League’s Sea-Air-Space conference in April 2023 to discuss innovation and adoption in procurement strategies in the Department of Defense (DoD), particularly by leveraging commercial partners.
Tamayori noted a shift across the DoD shift to adopt non-traditional forms of contracting, including the use of other transaction authorities, or OTAs, and the use of the ...
Foreign direct investment (FDI) plays a crucial role in the global economy, and the United States has long been an attractive destination for international investors. To accurately gauge the impact and trends of FDI, the US government conducts the Benchmark Survey of Foreign Direct Investment every five years.
In general, any US company that had covered foreign ownership in 2022 is required to submit a survey response. The law requires a US company to respond if at least one foreign person held, directly or indirectly, a ten percent (10%) or more voting interest at the end of the ...
On Tuesday, the United States Court of Appeals for the Federal Circuit issued its decision in Harmonia Holdings Group, LLC v. United States, No. 20-1538, a case that has garnered national attention for its potential to alter the way the United States Court of Federal Claims applies the so-called “waiver rule” first articulated in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1038 (Fed. Cir. 2007). Brad English and Emily Chancey represented Harmonia in this case and were excited for the favorable ruling their client received.
The case involved a $325 million IT services ...
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 ...
Most government contracts include a clause giving the government the right to terminate the contract, or any part thereof, for its sole convenience “when it is in the best interests of the government.” FAR Parts 49, 12, 13, and 31 establish the regulatory requirements for termination and settlement of government contracts. The mechanics are specific. Upon receipt of the notice of termination, the prime contractor should immediately stop all work and terminate all subcontracts related to the terminated portion of the prime contract. Inventory disposal schedules must be ...
OTA Overview
The Department of Defense can issue Other Transaction Agreements (“OTA”) for research, prototypes, and production. 10 U.S.C. § 2371b. Research OTAs are available for basic, applied, and advanced research projects. The DoD may also acquire prototypes using OTAs. Production OTAs are only permitted where the government has previously acquired a prototype under an earlier OTA. Additionally, the solicitation for the original prototype must have notified offerors that the government reserved the right to issue a follow-on Production OTA.
OTAs at the GAO
In a ...
Prime contractors are responsible for incorporating the appropriate provisions of their prime contracts into the agreements with their subcontractor. Determining which clauses are applicable to subcontractors and how best to monitor subcontractor compliance needs to be a priority. The first step is identifying contract clauses that are required to be incorporated into the contractor’s subcontracts. These “mandatory flow-downs” are FAR, DFARS, and other contract clauses that, by their own terms, are required to be incorporated into subcontracts. Clauses that must ...
The U.S. Department of Labor (DoL) just announced that the Wage and Hour Division (WHD) recovered a record $304 million in wages owed to workers in the Fiscal Year 2018 (read more here). This includes violations of labor laws unique to federal contractors, such as the McNamara-O’Hara Service Contract Act (SCA). On September 13, 2018, the DOL found that a California-based contractor and five of its subcontractors had violated the SCA. WHD determined the contractor owed over $3.5 million to 1,416 workers (both their own and subcontractor personnel) for failing to pay federal ...
Most contractors are aware that President Trump signed into law the Small Business Runway Extension Act of 2018 on December 17, 2018. The Act modified how the Small Business Administration (SBA) calculates a business’ size for revenue-based size standards. Size has been calculated based on a three fiscal year average of annual receipts. The Act increased the period of time in the calculation from three years to five.
The Act, however, contained no effective date. On December 21, 2018, SBA issued an information notice announcing the new statute would not take effect until the SBA ...
Most companies pursuing government contracts enter into teaming agreements to prepare and submit their proposals. Teaming agreements are an important element of the government contracting proposal process, used to enhance the likelihood of the teaming partners winning a contract by combining complementary capabilities to offer a more comprehensive and competitive solution. Typically, a teaming agreement will describe the anticipated contribution for each team member in performing the prime contract and designate one of the parties as the “prime” and the other as a ...
Maynard Nexsen shareholders Stephen Davis and David Block joined Maynard's Andy Watson and Jon Levin in hosting a webinar on June 29th. During the 60 minute program, they provided listeners with an in-depth discussion of common pitfalls related to the Fair Labor Standards Act, updates to the Federal Immigration Law as well as other updates in the labor and employment industry. The Government Solutions Webinar Series is a monthly program targeted at assisting government entities with the strategies of navigating the laws of government contracts. For more details on the program ...
Brandon Smith of Anglin, Reichmann, Snellgrove & Armstrong, P.C. joined Jon Levin in hosting a webinar on May 25th. During the 60 minute program, they provided listeners with a discussion of Business Systems: Compliance Requirements for Large and Small Businesses. The Government Solutions Webinar Series is a monthly program targeted at assisting government entities with the strategies of navigating the laws of government contracts. For more details on the program, please contact Ellery Miller.
Be sure to watch the webinar here, as well as download the presentation from the ...
Brad English and Hobie Frady presented a webinar on March 16 titled Preserve Your Right to Obtain an Equitable Adjustment: Practical Legal and Accounting Advice Before a Change Occurs. The session addressed the following issues related to changes:
- What is a change
- Types of changes
- Formal changes
- Constructive changes
- Authority, Notice, and Duty to Proceed
- Cardinal Changes
- Quantum
- Claims certification and appeals
Brad is a Shareholder and member of the Government Contracts & Bid Protests practice, as well as several practices in the Litigation section at Maynard Nexsen and Gale. He ...