Photo of Michael Payne, Chair

Michael H. Payne is a Partner and Chair of the Federal Construction Group at Cohen Seglias Pallas Greenhall & Furman PC as well as an experienced trial lawyer who has represented contractors, subcontractors, and suppliers in all aspects of federal contract and construction law. His efforts have included assistance in the preparation of bids and proposals, interpretation of contract provisions, filing of protests, negotiation of contracts, and the litigation and settlement of contract claims and appeals.

Michael co-authored Bidding and Managing Government Contracts, published by R. S. Means Co., Inc, and also co-authored chapters in two books on Federal Government contracting published by Thompson/Reuters. He currently presents several seminars each year on a variety of federal government contracting topics including construction, proposal preparation, and ethics in government contracting, while maintaining an active national construction practice.

Government contractors know that an unfavorable performance review posted to the Contractor Performance Assessment Reporting System (“CPARS”) can be extremely costly. Many negotiated solicitations include past performance as an important or even primary evaluation factor for contract award. An unfavorable review on a past contract can impose significant costs on the contractor to address the unfavorable review with contracting officers on future solicitations. However, the contractor saddled with an unfair and inaccurate CPARS review may now have a means to challenge the review and recover some of these costs.  Continue Reading A New Way to Claim Damages Resulting from an Unfavorable CPARS Rating

The long-awaited Final Rule addressing changes to the SBA’s Mentor-Protégé program is being published in the Federal Register today. The Mentor-Protégé program that was limited to 8(a) Small Business Concerns has now been expanded and, effective August 24, 2016, will be available to Service Disabled Veteran-Owned Small Businesses, HUBZones Small Businesses, and Women-Owned Small Businesses, as well as non-disadvantaged Small Business Concerns. The program is “designed to enhance the capabilities of protégé firms by requiring approved mentors to provide business development assistance to protégé firms and to improve the protégé firms’ ability to successfully compete for federal contracts.”

Continue Reading New Small Business Mentor-Protégé Program Announced By The SBA

In its final rule published on May 31, 2016, the SBA modified the regulations relating to affiliation based on an “identity of interest” pursuant to 13 C.F.R. § 121.103(f). Specifically, the SBA provided clearer guidelines regarding identity of interest affiliation due to familial relationships and economic dependence.

Continue Reading Identity of Interest Affiliation: Further Defined by the SBA

Change Ahead SignEarlier this week, we blogged about a final rule issued on May 31 by the Small Business Administration (“SBA”), which made several major changes to the small business regulations. This new rule implements changes mandated by the 2013 National Defense Authorization Act, (“NDAA”) and finalizes the proposed rule issued by the SBA back in December of 2014.

Continue Reading Big Changes to Limitations on Subcontracting Requirements

Business People Meeting Discussion Communication ConceptAs we blogged Wednesday, this week the Small Business Administration (“SBA”) published a lengthy final rule that implements the long-awaited small business regulation changes mandated by the National Defense Authorization Act (“NDAA”) of 2013. The rule makes a number of very important changes affecting Federal contractors.  One of the more important changes makes it easier for small businesses to form joint ventures (JVs) to compete for government procurements and removes prior, and often confusing, restrictions.

Continue Reading SBA Makes It Easier for Small Businesses To Joint Venture for Federal Contracts

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The Small Business Administration (“SBA”) has had a very busy week. First, on May 24, 2016, the agency issued “Statement of General Policy No. 3” (“the Statement”) clarifying the hotly debated inter-affiliate sales exclusion (an issue relating to the counting of annual receipts for purposes of determining size). Then, yesterday, the agency published a lengthy final rule, which implements the long-awaited small business regulation changes mandated by the National Defense Authorization Act (“NDAA”) of 2013. Collectively, the Statement and the rule make a number of very important changes affecting Federal contractors. Some of the most important changes are: Continue Reading SBA Issues Important Changes and Clarification Concerning Small Business Regulations

On March 3, 2016, the SBA announced that it has expanded the list of industries in which a contract can be set-aside for women-owned small businesses (“WOSB”) or economically disadvantaged women-owned small businesses (“EDWOSB”). This expansion was mandated last year by section 825 of the National Defense Authorization Act for Fiscal Year 2015 (“NDAA”), which required numerous changes be made to the SBA’s WOSB/EDWOSB contracting program.

Continue Reading In a Major Win for Women Owned Businesses, SBA Expands WOSB/EDWOSB-Eligible Industry List

The Government Accountability Office (“GAO”) issues statistics each year regarding the outcome of bid protests.  In 2015, there were 2,639 cases filed and there we 587 decisions on the merits.  Of those, only 68 protests were sustained.  According to the way the GAO presents its statistics, that would indicate that protestors prevailed approximately 12% of the time.  In reality, since many protests were withdrawn or summarily dismissed, the protesters only prevailed in 68 of the 2,639 protests filed and the true success rate was closer to 3%.  With those odds, why would anyone file a GAO bid protest?  The answer requires a little closer scrutiny since statistics can be misleading.

Continue Reading Deciding Whether to File a GAO Bid Protest

A contractor performed a project involving the construction of stone dike extensions and other work at four sites on the Mississippi River.  Nelson, Inc.  ASBCA No.  57201 (December 15, 2015).  One of the issues was whether the four distinct sites were separable for purposes of applying the Termination for Default clause (FAR 52.249-10).  In other words, the question was whether the contractor could be terminated for failing to diligently prosecute the work on one of the four work sites, even though the overall contract allowed 165 days for completion.  The Board stated that “Where a contract is separable (sometimes also referred to as severable, or divisible) and a contractor is delinquent only as to a separable part of the contract work, it is improper for the contracting officer to terminate for default the entire contract.”  The contractor would not be prohibited from continuing performance on any of the sites where work was being performed in a timely manner.

Continue Reading Termination for Default Held Improper