Closeup image of wooden cube with mail icon inside trash can.

Sanford Federal, Inc., the selected awardee for a U.S. Department of Veterans Affairs (the VA) contract, learned the hard way that a contractor simply cannot ignore a size protest, regardless of its actual merit.

On August 8, 2023, the VA issued an RFQ for boiler plant safety device testing, calibration and inspection for one of its facilities in Arizona. The RFQ was set aside entirely for Service-Disabled Veteran-Owned Small Businesses and assigned NAICS code 238290, Other Building Equipment. The corresponding size standard for this code was $22 million in average annual receipts. The VA received two timely quotes and selected Sanford for the award. The non-awardee, Caldaia Controls, Inc., filed a protest with the contracting officer asserting that Sanford was not a small business because it received significant contract awards between 2019 and 2023, which, when averaged, exceeded the procurement’s applicable size standard. The contracting officer forwarded the protest to the cognizant SBA Area Office (Area Office).

Continue Reading An SBA Public Service Announcement: If You See Something, Say Something
Bid

In Steiner Construction Co., Inc., the Government Accountability Office (GAO) upheld the U.S. Coast Guard’s (USCG) award of a $1.19 billion small business set-aside shipbuilding contract to a business concern that was later determined to be other than a small business. The protestor argued that the Small Business Administration (SBA) Office of Hearing and Appeals (OHA) decision to vacate an earlier SBA Area Office’s size determination that found the awardee to be an eligible small business concern required that the USCG terminate the award.

Continue Reading It’s No Big Deal: How a Non-Small Business Won a Small Business Set-Aside Contract
3D Isometric Flat Vector Conceptual Illustration of Regulatory Compliance.

On December 26, 2023, the U.S. Department of Defense (DoD) published the much anticipated proposed rule for the revamped Cybersecurity Maturity Model Certification (CMMC) 2.0 Program.

Following growing concerns within DoD that contractors were not consistently implementing the cybersecurity requirements of DFARS 252.204-2012, DoD responded with the creation of the CMMC Program in 2019 to move away from a “self-attestation” model of security. The CMMC Program’s purpose is for contractors and subcontractors to demonstrate that Federal Contract Information (FCI) and Controlled Unclassified Information (CUI) being processed, stored, or transmitted is adequately safeguarded. CMMC builds from existing cybersecurity requirements by requiring that contractors and subcontractors undergo Self-Assessments, Third-Party Assessments, or Government Assessments, as required, to ensure that mandated information protection requirements have been implemented.

Continue Reading Happy New Year From DoD – The Proposed CMMC Rule Is Here
Programming and password concept

On October 3, 2023, the FAR Council released two proposed rules for federal contractor cybersecurity requirements that relate to cyber threat and incident reporting and information sharing (case 2021-017) and standardizing cybersecurity requirements for unclassified federal information systems (case 2021-019). Both proposed rules not only provide new requirements for federal contractors to follow but also provide new definitions and contract provisions for information and contract technology and federal information systems contracts.

Continue Reading New Proposed Cybersecurity Rules Mean Big Changes for Federal Contractors
Hand with red string wrapped around index finger vector against teal background

A contractor recently learned the hard way that if you open an email from an agency regarding a debriefing, you must read it closely and in its entirety, or you may face the consequence of missing the time to protest the agency’s action.  

In the Matter of Infotrend, Inc. (Infotrend), the Department of Health and Human Services, National Institutes of Health (NIH) issued a request for proposal for the award of multiple indefinite-delivery, indefinite-quantity government-wide acquisition contracts for IT services, known as Chief Information Officer-Solutions and Partners (CIO-SP4). Specifically, NIH sought proposals to provide IT solutions and services for health, biomedical, scientific, administrative, operational, managerial, and information systems requirements. The acquisition evaluation was to be carried out in multiple phases, the first of which involved offerors submitting a self-scoring sheet with points based on the offeror’s representations concerning its experience and other capabilities. Per the solicitation, “[o]nly the highest rated offerors will advance to phase 2 of the evaluation.”

Continue Reading You’ve Got Mail—A Lesson on Timeliness for Bid Protests

The Armed Services Board of Contract Appeals (ASBCA) recently issued a decision regarding a contractor’s claim for increased performance costs due to the economic impact of the COVID-19 pandemic. Notable about this case is the contractor’s invocation of a July 2, 2020 Department of Defense (DoD) memorandum concerning the financial consequences on contractors with firm-fixed-price contracts lacking an economic price adjustment clause during “historic and unprecedented challenges” in the wake of the pandemic’s onset. Continue Reading ASBCA Says “Not So Fast” to Contractors Seeking Relief from Pandemic Impacts

Illustration of red and white calendar with circled date in red against sky blue background

On August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a notice regarding a Freedom of Information Act (FOIA) request from the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by all federal contractors, including “first-tier subcontractors,” (covered contractors) from 2016-2020. Continue Reading OFCCP Issues September 19 Deadline for Federal Contractors to Object to Disclosure of EEO-1 Data

Hand with red string wrapped around index finger vector against teal background

On July 14, 2022, the Department of Labor (DOL) issued a proposed rule that would require contractors and subcontractors performing covered service contracts to offer, in good faith, service employees employed under the predecessor contract the right of first refusal of employment under the successor contract. The proposed rule implements President Biden’s November 18, 2021 Executive Order 14055, Nondisplacement of Qualified Workers Under Service Contracts (the order). In sum, the order establishes a general policy for the federal government that “service contracts which succeed contracts for the same or similar services, and solicitations for such contracts, shall include a non-displacement clause.” Continue Reading Don’t You Forget About Me: DOL’s Proposed Rule on the Right of First Refusal in Service Contracts

Tower Crane with DOLAR SIGN on Chalkboard Background - 3D Rendering

In a recent Armed Services Board of Contract Appeals (ASBCA) decision, Pave-Tech, Inc., the ASBCA found that the decisions a construction contractor makes, even from the very beginning of a project, have consequences. In another recent article, we warned about signing contract modifications that contain release language which could thereafter preclude recovery of costs to which a contractor thought it was entitled later in a project. The decision in Pave-Tech reinforces the importance of considering all aspects of a contract from the onset of a project.

One such decision a government contractor might be tempted to make is to accept additional field office (jobsite) overhead (FOOH) expenses for a change on a percentage markup basis, especially for a change that may not even have required an extension to the contract completion date. However, what might appear to be a windfall recovery—the government allowing the recovery of FOOH expenses (even when a change order does not require an extension to the contract’s period of performance)—could result in a contractor not being able to recover its actual FOOH when the contract completion date is extended. Continue Reading Recovering Field Overhead Expenses

Gavel with Check List Clipboard

As a follow-up to my earlier post about the need to develop a settlement strategy when a claim is headed for litigation, I reviewed the various decisions of the Armed Services Board of Contract Appeals (ASBCA) for the first five months of 2022. The Board entered 107 decisions, and 54 of those decisions were orders dismissing the appeals because the parties had reached a settlement. Some of those settlements resulted from Alternative Dispute Resolution (ADR), which the Board enthusiastically promotes, or simply reflected settlements achieved by the parties through negotiation. Interestingly, only two opinions sustained an appeal by a contractor, while most of the other appeals were denied on the merits or due to various pre-trial motions. These motions included Motions for Summary Judgment, Motions to Dismiss for lack of jurisdiction, or the failure to comply with the applicable Statute of Limitations. Continue Reading The Percentages Favor Settlement of Claims and Appeals