GovCon Reading List: June 2024

Federal government contracting is challenging. Expert insights can help!

It's June, and it's time for the annual gala in support of the Elizabeth B. Ballard Center, the local nonprofit where I volunteer eight-ish hours most weeks and serve on the board of directors. When people ask what I "do" in my post-attorney life, I always mention the Ballard Center as one of my primary commitments, but since it's not connected to government contracting, I rarely receive any follow-up questions.

That's a shame because volunteering for Ballard, which provides early childhood education and needs-based wraparound services to children and families in my community, is very important to me. I only wish I had started giving my time earlier. Sure, eight hours a week may not have been entirely realistic in my lawyer heyday, but everyone has some free time. I know many of my readers already give back, too, and if you don't yet, I hope you'll consider it--I know you'll find it every bit as rewarding as I do. (And if you're wondering where to start, well, the Ballard Center gladly accepts donations!)

On to the government contracts! Every month in this newsletter, I publish the GovCon Reading List, a hand-picked selection of the previous month's best expert-written articles on federal government contracting. June's collection includes articles on the shockingly (to me, at least) low usage of woman-owned small business set-aside and sole source vehicles, a look at how the Federal Trade Commission's recent ban on most non-compete agreements may affect the government contracting marketplace, tips on how to spot those nasty govcon con artists, and much more.

Let's get to it with the June 2024 GovCon Reading List!

• Office of Federal Contract Compliance Programs Releases New Guidance on the Use of Artificial Intelligence in Federal Contracting Employment Processes by Scott Freling , Lindsay Burke and others with Covington & Burling LLP . The government has released new guidance about "how federal prime contractors and subcontractors should approach employment nondiscrimination risks and best practices when using AI in the context of the laws that OFCCP enforces."
• Back to Basics: Agency Contracting Authority by Gregory Weber with Koprince McCall Pottroff LLC . Many contractors believe in what I call the "government business card rule," that is, the mistaken assumption that anyone who carries a government business card can direct the contractor to change its work or perform new work. Not so--and following directives from unauthorized government officials can leave the contractor holding the bag. This article provides a good look at this important topic.
• WOSB Set-Asides Accounted for Just 0.29% of FY 2023 Contract Spending by Steven Koprince in GovCon Roundup. Ever wonder why the government can't seem to meet its modest five percent goal for woman-owed small businesses? New data published by the SBA shows that only 0.29% of contract spending in the 2023 fiscal year was issued under woman-owned set-aside and sole source vehicles.
• Foundational Cybersecurity Standards for Contractors Updated by Eric Crusius with Holland & Knight LLP . The National Institute of Standards and Technology has released the third version of its publication 800-171. This article highlights key changes and takeaways.
• Somewhat Appealing: Which SBA Certifications Can You Appeal From? by Shane McCall with Koprince McCall Pottroff LLC . If your application for an SBA socioeconomic certification is denied, can you appeal to the SBA's Office of Hearings and Appeals? It depends--the rules are all over the place. This article provides a helpful breakdown to help contractors understand when such appeals are allowed.
• The Case for Intervening in Bid Protests: It’s Almost Always the Right Call by Katherine Burrows & Eric Valle with PilieroMazza PLLC . If your award is protested at the GAO or Court of Federal Claims, it may be tempting to sit back and hope the government successfully defends it--but as I used to tell clients back in my lawyer days, as able as the government's attorneys may be, "the government will never care as much as you do that you're the awardee." As this article explains, intervening in the protest is almost always the right call.
• New DoD Memo Supports Treating Nontraditional Defense Contractor Products and Services as Commercial by Dan Ramish with Haynes and Boone, LLP . Under the guidance set forth in a recent DoD memo, products and services sold by so-called "nontraditional defense contractors" could be treated as commercial even if they wouldn't ordinarily fall under the definition of a commercial item.
• With the FTC's Looming Non-Compete Ban Agencies Should Rethink Key Personnel Requirements by Josh Duvall with Maynard Nexsen . The Federal Trade Commission's recent decision to ban many noncompete agreements is big news in the government contracting marketplace. This article offers an interesting look at how the FTC's action could affect agency key personnel requirements in the future.
• No End “Insight” for DOJ’s Civil Cyber-Fraud Initiative by Nkechi A. Kanu Brian Tully McLaughlin and others with Crowell & Moring . The Department of Justice recently announced a $2.7 settlement in a False Claims Act case involving allegations that the contractor failed to implement adequate cybersecurity protections. The settlement highlights the underappreciated FCA risk that contractors may face for noncompliant cybersecurity.
• Question the Questions and the Answers: Bid Protest Decision Highlights Need to Clarify Ambiguities Prior to Bidding by Katherine Burrows , Eric Valle & Dozier Gardner Jr. with PilieroMazza PLLC . When a government solicitation is unclear, contractors should consider themselves to operate under the old wedding adage: "speak now, or forever hold your peace." As a recent bid protest case demonstrates, failing to raise ambiguities before submitting a bid can be fatal.
• NAICS Codes Don't Flow Down to Subcontracts by Steven Koprince in GovCon Roundup. Contrary to a common misunderstanding, the prime contract’s NAICS code and size standard do not automatically flow down to subcontracts—and this means that just because a business qualifies as small under the prime contract’s NAICS code does not necessarily mean that the prime can count the business as small for subcontracting purposes.
• How to Spot GovCon Scammers & Con Artists by Michael LeJeune with RSM Federal . It's sad, but it's true: the government contracting marketplace has its share of scammers and grifters. In this piece, Michael LeJeune offers some great tips for spotting and avoiding these hucksters.

That's a wrap for this month's edition of the GovCon Reading List. See you in July!

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Boring but important disclaimer: The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.