Disputes frequently arise because the government refuses to agree that a contractor is entitled to additional money or time resulting from constructive changes, differing site conditions, government-caused delays, or countless other reasons. These disagreements typically are dealt with through the submission of Requests for Equitable Adjustment (REAs) or certified claims and are ultimately resolved through the disputes process. They focus on the rights of the parties under the specific terms of the contract. The problem, however, is that contractors also incur costs because of government indecisiveness that has not yet generated an REA or claim under a particular contract clause. This places the contractor in a state of limbo, not knowing whether there will be a significant impact to the project.
Over the past couple of months, we have had several clients contact us to discuss issues involving Organizational Conflicts of Interest (OCIs). In each case, it seemed like there was some confusion either by the government, the contractor, or both, regarding what amounted to a conflict of interest and how having one could impact contract performance. In most cases, we were able to work with the contracting officer and develop a mitigation plan to avoid, neutralize, or mitigate each OCI successfully. This blog post will cover the basics about OCIs and discuss some ways that contractors can work with the government to mitigate them.
The Small Business Administration (SBA) and the Department of Veterans Affairs (VA) finalized new regulations, effective October 1, 2018, that govern eligibility to obtain contracts that are set aside for veteran-owned small business and service-disabled veteran-owned small business (collectively, “(SD)VOSB”). The regulatory changes are intended to improve coordination between the VA’s “Vets First” program, which covers (SD)VOSB set-asides issued by the VA, and the SBA’s program, which covers (SD)VOSB set-asides issued by all other government agencies.
The Europe District of the U.S. Army Corps of Engineers is hosting an Industry Day on August 15, 2018 in Tel Aviv. The event begins at 09:00 at The Ritz-Carlton Herzlia.
This conference will present an overview of upcoming construction projects in Israel and provide U.S. firms with an opportunity to meet potential Israeli subcontractors or suppliers.
Although these construction projects are performed in Israel, the law requires that the prime contracts must be awarded to U.S. firms and they, in turn, are permitted to subcontract up to 75% of the work to Israeli companies. Given the millions of dollars that have been obligated to the program, there are many opportunities for American and Israeli firms to work together. Continue Reading Upcoming Industry Day in Tel Aviv
The Judgment Fund was established by Congress in 1956 to alleviate the need for specific legislation following every successful claim against the United States. The purpose behind the Judgment Fund was to eliminate the procedural burdens involved in getting an individual appropriation from Congress, allowing for the prompt payment of judgments and reducing the amount of interest accrued between the time the judgment was awarded and payment was made. Although the Judgment Fund successfully eliminated the need for legislative action in almost every case, and in most cases resulted in prompter payments to successful claimants, it also had the unintended consequence of incentivizing procuring agencies to avoid settling meritorious claims in favor of prolonged litigation. Specifically, an agency could avoid making payment from its own appropriated funds if it refused to settle a case and instead sought a decision from a court, subsequently providing it access to the Judgment Fund which draws money straight from the Treasury. Congress eliminated this problem when it passed the Contracts Disputes Act (CDA) of 1978, which requires agencies to reimburse the Judgment Fund with appropriated funds that are current at the time of the judgment against the agency. Although contracting officers are no longer incentivized to avoid settlement, the source and availability of funds can still impact whether or not they decide to settle a claim because there are differences between how a judgment is funded and how a settlement can be funded. Continue Reading How the Judgment Fund’s Availability Impacts a Contracting Officer’s Decision to Settle a Claim
Last week, I attended the ChallengeHER event in Arlington, VA where I had the pleasure of meeting other females in federal contracting. ChallengeHER events, which are organized by Women Impacting Public Policy (WIPP), the U.S. Small Business Administration (SBA), and American Express (AMEX), are designed to supply women business owners with information and resources regarding the SBA’s Women-Owned Small Businesses (WOSB) Program in order to provide more federal government contracting opportunities for small businesses owned by women.
One thing was made clear at the event – federal agencies, including the Department of Defense (DoD), are indeed striving to achieve their goals of awarding 5% of their prime contracting dollars to WOSBs. Ms. Amy Kim, the SBA’s WOSB Program Manager, informed attendees that although federal agencies fell just shy of meeting the 5% goal in FY2017, they did award $20.8 Billion contracting dollars to WOSBs. While this number also includes contracting dollars awarded to WOSBs under other SBA socio-economic programs, it was encouraging to learn that FY2017 saw $723.5 Million in WOSB set-aside contract award dollars, which is a 60% increase from FY2016! Several representatives from the DoD discussed how the number of set-aside contract award dollars can continue to increase. Continue Reading Reminder to Women Owned Businesses – Take Advantage of Federal Contracting Opportunities!
As I mentioned in a recent post, the Department of Defense (DoD) is using its “other transaction” authority with increased frequency to attract non-traditional defense contractors and to capitalize on the cutting-edge technological advancements found in the commercial marketplace. Other Transaction Agreements (OTAs) are not procurement contracts, grants, or cooperative agreements and, as such, many procurement laws and regulations do not apply, including the Competition in Contracting Act (CICA) and the Federal Acquisition Regulation (FAR). Continue Reading Bid Protests: Are Other Transaction Agreements (OTAs) Really Bulletproof?
Last week, I had the opportunity to participate in the Office of the Director of National Intelligence’s 12th Annual Intelligence Community Legal Conference to discuss acquisition reform with some of the top government attorneys in the intelligence community. Much to my surprise, the majority of the conversation focused on bid protests and the impact that protests have on federal procurements. During my time as a government attorney defending against bid protests, I gained valuable insight into how the government works to defeat them and what contractors can to do improve their chance of success. Some of these lessons are shared below. Continue Reading Bid Protests: An Insider’s Perspective
If you gave me $17 million on the credit card, I could call Cabela’s tonight and outfit every soldier, sailor, airman and Marine, and I’d get a discount on it for a bulk buy. This is a pistol. The technology’s been around for five centuries, and arguably it’s the least important weapons system in the Department of Defense inventory.
Senior leaders within the Department of Defense (DoD) have grown increasingly frustrated with an acquisition system characterized by ever-increasing costs and significant delays in getting end items to customers. Their frustration has been heard by Congress and has resulted in recent Congressional action. The latest major acquisition reform effort started with the Fiscal Year (FY) 2016 National Defense Authorization Act (NDAA), with each subsequent NDAA containing various provisions that are meant to modernize and accelerate the antiquated and cumbersome federal acquisition system providing flexibility and allowing for the agile acquisition of next-generation technology. Continue Reading The Future of Acquisition in the Federal Government: Innovation and Rapid Procurement Through Other Transaction Authorities and Other Transaction Agreements
Effective May 25, 2018, the Small Business Administration (“SBA”) amended its regulations regarding a contractor’s size and/or socio-economic status following a novation, merger, or acquisition. Specifically, through a “technical correction,” the SBA revised its regulations to dictate that when a company becomes “other than small” or no longer has a certain socio-economic status (veteran-owned, woman-owned, HUBZone, etc.) as a result of a novation, merger, or acquisition, the business is no longer eligible to compete for set-aside task orders on multiple-award contracts held by the company. This change in eligibility is applicable even where the contracting officer does not specifically request a recertification. Continue Reading Contractor Beware: SBA Expands Impact of Novation, Merger, or Acquisition on Size and Socio-Economic Status