May 2024 Newsletter
Koprince McCall Pottroff LLC
Legal Solutions for Government Contractors
GAO: Don't Slip Up on SAM Registration, Even for One Day
If federal contracting had a proverbial town square, it would be SAM.gov. So much federal contracting activity flows through or starts there. A large portion of SAM is contractor information. Contractors are required to be on SAM and are expected to keep their profiles on SAM updated. A “hot off the presses” GAO ruling has confirmed that the timing of SAM registration can make or break a contractor’s winning bid.
In TLS Joint Venture, LLC, B-422275 (Comp. Gen. Apr. 1, 2024) GAO heard a protest focused on the timing of an awardee’s SAM registration renewal. Read More Here
Clearing Things Up? A Quick Look at the Proposed Plain Language in Contracting Act
by John Holtz
In 2010, Congress passed the “Plain Writing Act,” which essentially requires that federal agency communications to the public must be in language that “the public can understand and use” and is “clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.” In other words, the idea was that agencies should stop using so much jargon and legalese. However, this arguably didn’t apply to contract opportunity notices. Congress is now looking at making sure that omission changes with the proposed “Plain Language in Contracting” Act, at least with regards to small business set-asides. We explore this more in depth in this post.
It is worth looking a little more at the implementation of the Plain Writing Act to get a sense of what the Plain Language in Contracting Act would entail. Helpfully, the federal government even has a website devoted to the Plain Writing Act. Read More Here
Contracting While Impaired: Court Rejects Overbroad Finding of OCI Based on Impaired Objectivity
by Shane McCall
Contracting agencies, and contractors, must always be aware of potential organizational conflicts of interest (OCIs). An OCI can result in a contractor being kicked off a federal procurement. One type of OCI is an impaired objectivity OCI, typically resulting from a contractor evaluating its own offer or its own performance. In a recent decision, the United States Court of Federal Claims (COFC) said that an agency was overly cautious in rejecting an offeror based on a perceived OCI.
In Dist. Commc’ns Grp., LLC v. United States, 169 Fed. Cl. 538 (2024), the Court of Federal Claims reviewed a Department of Veterans Affairs (VA) decision to exclude a joint venture from a competition to provide support suicide prevention services for the VA. The procurement was called the “White House Priority Goal Support to Safeguard Against Veteran Suicide” (WHPG solicitation). Read More Here
New FAR Final Rule Promotes Sustainability
As many know, a prominent goal of President Biden’s administration has been to promote green initiatives, and help reduce America’s carbon footprint. That initiative has now found its way to federal contracting. In a recent final rule, the FAR is being updated to facilitate federal contracting’s move, closer to net-zero emissions. This FAR update, updates and sets requirements for agencies to procure “sustainable products and services”, outlines what those products and services actually are, and places new expectations on contractors.
On April 22, 2024 a final rule was published in the federal register to amend the Federal Acquisition Regulation (“FAR”) to “focus on current environmental and sustainability matters and to implement a requirement for agencies to procure sustainable products and services to the maximum extent practicable.” Read More Here
Beyond Tax Returns: Federal District Court Says Contractors Must Include Information Outside Tax Returns in Calculating Size
by John Holtz
When it comes to calculating a company’s receipts for size purposes, the procedure for is (or at least was) pretty simple: Look at the company’s tax returns. Indeed, it has long been SBA’s position that they can only consider tax returns, as noted in Nordstrom Contracting & Consulting Corp., SBA No. SIZ-5891 (Mar. 7, 2018) (“[T]here is no authority for an area office to consider any evidence apart from tax returns…when calculating a firm’s average annual receipts.”) among other cases. ?In other words, if something was not mentioned in a tax return, it couldn’t be considered by SBA. The only exception was if the tax returns were not filed, in which case SBA will review financial statements or similar information in lieu. 13 CFR § 121.104. Therefore, other than that exception, a contractor only needs to rely on the information in its tax return when making its size representation. Read More Here
Each Friday,?SmallGovCon?provides a snapshot of some of the week’s top news and commentary from the government contracting community.
领英推荐
?
Why File: A Rule of Two Protest
The Rule of Two is the federal contracting rule requiring agencies to set aside a solicitation for competition only between small businesses when there are at least two small businesses that could do the work for a fair price. But that rule does have some exceptions. These exceptions can make it difficult to know the situations that would justify filing a Rule of Two protest. Read on to find out.
First, a primer on SBA’s Rule of Two.
Note that this particular post relates solely to the SBA’s Small Business Rule of Two. The Department of Veterans Affairs has its own Rule of Two for service-disabled veteran owned businesses. For more information on the VA’s SDVOSB Rule of Two, visit our post here. Read More Here
SBA: Full-Time Devotion Still Matters for SDVOSBs
by Shane McCall
SBA’s?Service-Disabled Veteran-Owned Small Business (SDVOSB)?rules include one particular component dealing with the working hours of a service-disabled veteran owner of an SDVOSB business, often called the full-time devotion rule. SBA has recently reviewed its full-time devotion requirement in an SDVOSB protest, and found that the company in question did not establish that a service-disabled veteran met the requirement.
In Marathon Indus. Equip., LLC, SBA No. VSBC-342-P (Mar. 14, 2024), a protester challenged the SDVOSB status of Gilk and Sons, LLC (Gilk and Sons) in connection with a DLA solicitation set aside for SDVOSBs. Read More Here
UPCOMING EVENTS:
Event: GovCon Giants Podcast with Eric Coffie
When: May 10, 2024 Time: 2:00-2:30pm CDT
YouTube link: Here
Interviewee: Shane McCall