For federal construction contractors, payment and performance bond obligations in construction contracts with the federal government that exceed $150,000 should, typically, come as no surprise. However, what requirements should contractors expect from a contract that is ambiguous as to whether it is a construction contract, yet calls for construction-related services, but lacks explicit bonding requirement terms? Can bonding requirements be “read-in” to the contract? When should contractors raise such questions? This past November, the Federal Circuit addressed those questions in K-Con, Inc. v. Secretary of the Army, 908 F.3d 719 (Fed. Cir. 2018). This decision provides instrumental lessons contractors should keep in mind before submitting offers for projects that include construction-related services.
Continue Reading No Bonding Requirements? Think Again, Instructs the Federal Circuit

When an agency decides to set aside an acquisition for participation only by small businesses, certain subcontracting limitations apply to the small business awardee. For construction contracts, the small business contractor cannot pay subcontractors more than 85% of the amount they receive from the agency. For service and supply contracts, the small business contractor cannot pay more than 50% of the amount paid to it by the agency to other entities that are not similarly situated. Work performed by similarly situated entities is not considered in determining if the limitation on subcontracting is violated. A similarly situated entity is defined as a small business subcontractor that is a participant of the same small business program as the prime contractor and is small for the NAICS code assigned by the prime contractor to the subcontract.

Continue Reading Recent GAO Decision Suggests SBA Regulation Regarding Limitations on Subcontracting Takes Precedence Over the FAR

By law, a GAO protest must be filed by an interested party. An interested party is an actual or prospective bidder or offeror whose direct economic interest would be impacted by the award of a contract or by the failure to award a contract. Before bid opening or the closing date for receipt of proposals, a protestor must be a prospective bidder or offeror with a direct economic interest in the procurement. This generally means that a bidder or offeror has expressed an interest in competing and is capable of performing the type of work that the solicitation requires. After bid opening or the submission of proposals, a protestor must be an actual bidder or offeror with a direct economic interest in the procurement. This generally means a bidder or offeror who would be in line for award if the protest were sustained. A protestor who cannot receive an award if it prevails on the merits of its protest is not an interested party. In some cases, a high-priced bidder might be able to demonstrate that all lower-priced bidders are ineligible for award, thus becoming the next-in-line for award. In a “best value” negotiated procurement, the GAO determines whether a protestor is an interested party by examining the probable result if the protest is successful. This means that an actual offeror, who is not in line for award, is an interested party if it would regain the opportunity to compete if the protest is sustained.

Continue Reading Recent GAO Decision Highlights the Distinction Between Jurisdiction and Prejudice

A bid protest must allege a violation of a procurement statute or regulation. Although most protests challenge the award or proposed award of a contract, the GAO will also consider protests involving defective solicitations and other unreasonable agency actions like the cancellation of a solicitation. In certain cases, the GAO will consider protests involving the termination of a contract where the protest alleges that the government’s termination was based upon improprieties associated with the contract award (this is sometimes called a “reverse protest”). Additionally, the GAO will consider protests concerning (1) awards of subcontracts by or for a Federal agency, (2) sales by a Federal agency, or (3) procurement actions by government entities that do not fall within the strict definition of Federal agencies, if the agency or entity involved has agreed in writing to allow the GAO to decide the dispute.

Continue Reading The GAO Reaffirms That a Bid Protest Must Allege a Violation of a Procurement Statute or Regulation

The Department of Defense (DoD) enhanced post-award debriefing requirements, contained in Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (NDAA), have been a large topic of conversation this past year. In January 2018, our Government Contracts team detailed the specifics of these new requirements, which includes, among other things, the mandatory question and answer period for debriefings. On March 22, 2018, DoD issued a class deviation letter titled “Enhanced Post-award Debriefing Rights,” (Enhanced Debriefing Rules) which implements the question and answer period requirements. Notably, however, the Enhanced Debriefing Rules do not address the other new requirements in Section 818 of the NDAA, such as those involving the release, under certain circumstances, of redacted source selection award determinations.

Continue Reading GAO Interprets Protest Filing Deadlines in the Wake of Enhanced Debriefing Rules

The Consolidated Appropriations Act for Fiscal Year 2014 required the U.S. Government Accountability Office (“GAO”) to establish an electronic docketing system for bid protests. Now, four years later, there are indications that the GAO might be moving to the Electronic Protest Docketing System (“EPDS”) sometime this year. Before going live with EPDS, the GAO is implementing a pilot program in which certain protests already filed at the GAO will be moved into EPDS. The pilot program will ensure that EPDS is fully operational before it goes live and becomes the sole means for filing a bid protest at the GAO. 
Continue Reading The GAO’s Electronic Docket May Be Going Live Soon!

The National Defense Authorization Act (“NDAA”) for Fiscal Year 2018 includes enhanced post-award debriefing requirements for the Department of Defense (“DoD”). This change is likely a response to the Office of Federal Procurement Policy’s (“OFPP”) January 5, 2017 memorandum. The memorandum debunked certain misconceptions about the debriefing process and encouraged agencies to adopt best practices and maximize the value of debriefings. One such myth that the OFPP’s memorandum debunked was that debriefings always lead to protests. The memorandum advocated for more transparency in the debriefing process, explaining that, in fact, an effective debriefing process can greatly reduce the frequency of protests.
Continue Reading Good News for Department of Defense Contractors: Enhanced Post-Award Debriefing Requirements are on Their Way!

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

This article was originally published by Law360 on December 16, 2015.

In the past year, the Small Business Administration has issued proposed rules that will likely result in major regulatory changes. Some of the most important changes are those relating to its mentor-protege program, and the performance of work requirements for prime contractors. The proposed rules affecting these areas have the potential to substantially alter the landscape of small business contracting in 2016.


Continue Reading Small Business Contracting May Be Very Different in 2016

VOSB-LOGOLast week, the House of Representatives voted to amend the Department of Transportation’s (“DOT”) definition of Disadvantaged Business Enterprises (“DBEs”) to include Veteran-Owned Small Business Concerns (“VOSBs”).  This was accomplished by passing the “Fairness to Veterans for Infrastructure Investment Act of 2015” (the “Bill”).  As the Bill states, its purpose is to improve contracting opportunities for veteran-owned small business concerns, and that is just what will happen if the Bill is signed into law. 
Continue Reading Big News for Veteran-Owned Small Businesses