Organizational conflicts of interest (OCI) are troubling for both the government and contractors. Under FAR 2.101, an OCI is a situation where “a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.” In an OCI investigation, a contracting officer (CO) should assess OCI risk during the pre-award and post-award procurement processes.

Recent Court of Federal Claims (COFC) Cases

On August 2, 2021, Judge Solomson issued his decision in Oak Grove Technologies, LLC v. United States. The unsuccessful offeror, Oak Grove Technologies (OGT), filed a bid protest challenging the United States’ award to the successful offeror, F3EA. In the complaint, OGT questioned the agency’s award decision and raised numerous challenges regarding the evaluation process. OGT also provided evidence that F3EA had allegedly improperly benefited from unequal access to information and biased ground rules. Essentially, OGT argued that an OCI tarnished the award. During a hearing, the court questioned the integrity of the procurement and recognized that OGT was not treated with the fairness required under the Federal Acquisition Regulation (FAR).  The court ultimately granted OGT’s motion and the agency was prevented from proceeding with the award to F3EA.


Continue Reading Not Quite Good Enough: COFC Finds Agencies OCI Investigations Fall Short

The FAR Council recently published its proposed rule to implement a part of President Biden’s January 28, 2021 Executive Order No. 14005 (EO 14005), which dictated certain revisions to the Buy American Act (BAA) regulations. As discussed in our previous blog post, Section 8 of EO 14005 directed the FAR Council to consider the following:

  • Replacing the “component test” at FAR Part 25.
  • Increasing the threshold for domestic content.
  • Increasing price preferences for domestic end products.

The proposed rule addresses Section 8 of EO 14005 by proposing to do the following:

  • Increase the domestic content threshold instead of replacing the domestic content test (at least for the time being), with scheduled increases.
  • Permit a limited period during which U.S.-made end products meeting the current domestic content threshold (greater than 55%) will be considered “domestic end products” under certain circumstances.
  • Establish a list of critical products and critical components subject to additional price preferences and post-award reporting requirements.


Continue Reading Buy American Baby Steps: FAR Council Publishes Proposed Rule Implementing Part of President Biden’s Executive Order

This past January, the Department of Justice (DOJ) announced that procurement fraud recoveries comprised the second largest category of fraud recoveries in Fiscal Year (FY) 2020, a trend that continued from FY 2019. With last November’s announcement of DOJ’s intent to expand its Procurement Collusions Strike Force (PCSF), we expect to see a continued trend

We are looking forward to participating in Solvability’s GovCon Summit 2021 of which the firm also serves as a sponsor. This year’s GovCon Summit will provide tactics and strategies from the nation’s top GovCon professionals that have helped thousands of companies win government contracts.

Attendees of GovCon Summit 2021 will learn how to increase revenue

To protect the U.S. industrial base, among other reasons, companies that sell goods to the U.S. government are required to comply with domestic source restrictions that dictate the percentage of domestic content and have the potential to impact design, sourcing, and manufacturing decisions. In many respects, these restrictions are out of step with the decades-long trend toward globalization of commercial supply chains.

Recent developments related to the Buy American Act continue to tighten these restrictions and have the potential to cause a further divergence between commercial and government production, reversing the push toward commercial contracting and eliminating the associated efficiencies and cost-savings to U.S. taxpayers.

Please join us Wednesday, March 24, 2021 at 12:00 – 1:00 p.m. CT / 1:00 – 2:00 p.m. ET
for this timely webinar where government contracts attorneys at Bass, Berry & Sims will discuss the current state of affairs, including the following:

  • Overview of the Buy American Act.
  • Implementation and impact of EO 13881’s changes to the Buy American Act.
  • President Biden’s EO on “Ensuring the Future is Made in All of America by All of America’s Workers.
  • Takeaways for government contractors.

Please join us Wednesday, March 24 from 12:00 – 1:00 p.m. CT | 1:00 – 2:00 p.m. ET for this informative discussion. To register, please click here.

Who Should Attend?

The Court of Federal Claims (COFC) recently affirmed that agencies are required to apply the “Rule of Two” to all federal acquisitions in its decision of Tolliver Grp., Inc. v. United States. Further, agencies must give a reasonable explanation supported by factual evidence when canceling solicitations. The decision ensures that small businesses will continue to have robust access to federal procurement opportunities.

Army Cancels SDVOSB RFPs in Favor of Unrestricted Multiple Award Contract

The two solicitations at issue in this case were for the procurement of training staff for a field artillery school located in Fort Sill, Oklahoma. Both solicitations were set-aside for service-disabled veteran-owned small businesses (SDVOSBs). After the Army awarded the contracts to two SDVOSBs, a third SDVOSB bidder protested the awards, alleging deficiencies in the Army’s evaluation of various factors.

The Army issued Notices of Corrective Action for both contracts, stating that it would cancel both awards, “[r]e-evaluate the requirement and acquisition strategy to ensure that it accurately reflects the Army’s current need,” and either cancel or amend the solicitations. The Army’s internal memorandums indicate that part of the rationale for revisiting the solicitations was because the Army now had a new multiple award indefinite delivery indefinite quantity (MAIDIQ) contract vehicle that encompassed the scope of the two solicitations at issue.


Continue Reading COFC: “Rule of Two” Must Be Analyzed Before “Any” Acquisition

The U.S. Court of Federal Claims (COFC) decision in HWI Gear, Inc. v. United States highlights the importance of reviewing a solicitation to determine if the text of Federal Acquisition Regulation (FAR) 52.219-28 is included in it, as well as the risk of engaging in corporate transactions while a proposal to a procuring agency is pending. In this case, the COFC held that an offeror was required to recertify its size status during a procurement, and the agency’s failure to enforce this requirement invalidated the award.

In HWI Gear, Mechanix Wear, Inc. (Mechanix) and HWI Gear, Inc. (HWI) submitted proposals in response to a solicitation set aside for small businesses. After proposal submission but before award, Mechanix informed the procuring agency that it had changed its corporate structure from a corporation to a limited liability company and changed its corporate name, but that all other terms and conditions in its proposal remained unchanged. Mechanix, however, did not inform the agency that its change in corporate structure was the result of a merger with a large business and that Mechanix no longer qualified as a small business under the size standard established for the procurement. The agency ultimately selected Mechanix as the awardee, and HWI filed a bid protest challenging the agency’s evaluation.


Continue Reading Size Recertification Prior to Award – When is it Required?

I’m looking forward to participating in a panel session at the 2021 Tennessee Procurement Opportunities Conference presented by the Tennessee Procurement Technical Assistance Center (PTAC) and Tennessee Small Business Development Center. I will join other industry panelists for a discussion focusing on best practices for teaming in government contracting.

The program will also feature:

  • Judy

Last month, the U.S. Court of Appeals for the Federal Circuit’s (Federal Circuit) opinion in The Boeing Co. v. Secretary of the Air Force shed additional light on the technical data rights of contractors under defense contracts. The decision hinges on the fact that technical data provided by a contractor to the government remains the property of the contractor. Additionally, contractors retain certain rights in connection with technical data even when the government has so-called “unlimited rights” to use it.

Case Background

In this case, Boeing held two contracts with the U.S. Air Force (USAF) for work on the F-15 Eagle Passive/Active Warning Survivability System. The contracts included the requirement for delivery of technical data to the USAF with Unlimited Rights and the DFARS 252.227-7013, non-commercial technical data rights clause (Subsection 7013). The parties did not dispute that Boeing retained ownership of technical data delivered to the USAF under the contracts, but Boeing contended that its legends on the technical data were intended to protect its rights as they pertained to third parties. Namely, putting third parties on notice of the proprietary nature of the data and directing that “Non-US Government Entities May Use and Disclose Only As Permitted In Writing By Boeing Or By The US Government.” The USAF rejected the data deliverables marked in this manner, finding them nonconforming and Boeing requested a final Contracting Officer’s decision on the matter.

The Contracting Officer’s final decision confirmed that the USAF was correct in rejecting the legends and directed Boeing to correct them. Boeing appealed the decision to the Armed Services Board of Contract Appeals (ASBCA) on the ground that Boeing’s legend was “not nonconforming” under Subsection 7013(f) since its legend did not address restrictions on government rights, only third-party rights. The ASBCA, ruling on the motion for summary judgment, disagreed, siding with the USAF’s position that only the legends listed in Subsection 7013(f) are authorized and Boeing’s legend was not one of those. Boeing appealed this decision to the Federal Circuit.


Continue Reading Federal Circuit Confirms DoD Contractor’s Expanded Restrictions on Non-Government Parties Rights in Data

In October, the U.S. Small Business Administration (SBA) published a final rule entitled “Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments,” which went into effect on November 16, 2020. This final rule merges two existing mentor-protégé programs, revises SBA’s affiliation rules, and makes other technical changes to clarify SBA’s size requirements for contractors. Contractors of all sizes should review this sweeping final rule for any changes that may impact them. Here, we present some of the most significant changes this final rule implements.

Merger of SBA’s 8(a) Mentor-Protégé Program into the All-Small Mentor-Protégé Program

SBA’s first mentor-protégé program was created in 1998 solely for 8(a) small businesses. The goal of the program was to pair SBA-approved experienced businesses (mentors) with SBA-approved 8(a) small businesses (protégés) to help them develop. Mentors and protégés were able to form joint ventures to compete for contracts and, importantly, were not subject to SBA’s affiliation rules. This affiliation exception is important because SBA’s regulations require a small business to count its annual receipts or employees, plus the annual receipts or employees of each affiliate when determining its size status. Waiving this requirement for mentors and protégés allowed them to be awarded contracts they might have otherwise been ineligible for because of affiliation rules.

In October 2016, SBA created the All-Small Mentor-Protégé Program (ASMPP) to expand the mentor-protégé program beyond 8(a) small businesses to include all small businesses, including women-owned small businesses, service-disabled veteran-owned small businesses, and Historically Under-Utilized Business Zone small businesses. The ASMPP program possessed similar benefits as SBA’s 8(a) mentor-protégé program, including the ability to form joint ventures and the exception to affiliation rules. The ASMPP has been very popular, with more than 1,200 active mentor-protégé agreements currently in existence under the program. Because of ASMPP’s success and the overlap that exists between ASMPP and SBA’s 8(a) mentor-protégé program, the final rule eliminated the 8(a) mentor-protégé program and merged it into ASMPP in its latest final rule.


Continue Reading Bye Bye 8(a) MPP and Hello to New Small Business Rules!