The General Services Administration (GSA) is scheduled to expand a 2016 rule this November, but faces significant opposition from within its own agency due to questionable data from a pilot program. On June 23, 2016, GSA published a final rule requiring contractors to report transactional data for both products and services provided under Multiple Award Schedule (MAS) contracts. The rule sought to collect the data necessary to allow the government to make smarter buying decisions, promote industry-wide competitiveness, and reveal buying patterns, but also to reduce the administrative and transactional burden on government contractors, eliminating barriers to entry – especially for small businesses – as it eliminated Commercial Sales Practices (CSP) and Price Reduction Clause (PRC) reporting.
Continue Reading GSA’s Transactional Data Reporting Rule Set to Expand Amid OIG Worries
Challenges of New SBA Proposal for Veteran-Owned Small Business Government Contractors
I recently authored an article for Law360 offering perspective on a proposed rule announced by the Small Business Administration (SBA) on July 6. The new rule will establish a government-wide certification process for Veteran-Owned Small Businesses (VOSBs) and Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) to be eligible for the federal contract set-aside programs, which were established in a 2004 executive order by President George W. Bush to increase participation of these groups in government contracting.
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DoD’s Mentor-Protégé Program May Be Getting a Facelift
The Department of Defense’s (DoD) Mentor-Protégé program (MPP) was designed to strengthen the capabilities of small businesses, increase their participation in the DoD contract pool, and contribute to “the diversity and vitality of the U.S. Defense Industrial Base (DIB).” Like the Small Business Administration’s MPP, the program pairs small businesses with larger contractors to develop mutually beneficial relationships. Established on November 5, 1990, the DoD’s MPP has been consistently reauthorized over the last 30 years, but only as a pilot. That could quickly change, as new recommendations from the Defense Business Board (DBB) seek to bring permanency and increase participation, understanding, and oversight.
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Recent COFC Decision on Federal Agencies’ Authority to Cancel Government Contract Solicitations
I recently authored an article for Law360 discussing a May 2022 ruling in the U.S. Court of Federal Claims (COFC) and how it has curtailed federal agencies’ authority to cancel government contract solicitations.
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CBCA Opinion Provides Clarity on Anti-Assignment Act’s Murky “Operation of Law” Exception
The Anti-Assignment Act, referring to both the Assignment of Contracts Act and Assignment of Claims Act, which prohibits the assignment of government contracts and claims, respectively, has had a fairly uneven applicatory history. On June 27, the U.S. Civilian Board of Contract Appeals (CBCA) did its best to clarify the legislation’s “operation of law” exception as it relates to contractor mergers and acquisitions. The CBCA sided with the government contractor, agreeing that following a merger, the surviving entity was entitled to perform on the former entity’s contract, by “operation of law,” regardless of the alleged misrepresentation, in ATS Trans LLC dba Around the Sound/TransPro v. Department of Veterans Affairs.
Continue Reading CBCA Opinion Provides Clarity on Anti-Assignment Act’s Murky “Operation of Law” Exception
Chipping Away at Trade: New Tool Could Bring Big Changes
On August 9, President Biden plans to sign the CHIPS and Science Act into law in the White House Rose Garden. The bill provides $52.7 billion in subsidies and incentives to domestic semiconductor manufacturers to strengthen existing supply chains and better compete with China. While details of the bill have been debated as the legislation has gone through multiple rounds of revisions and edits, elected officials have remained focused on the goal of enacting a bill that ensures funding to promote domestic rather than non-U.S. business. To realize those ambitions, the legislative authors took a page from the Committee on Foreign Investment in the United States’ (CIFUS) playbook, producing a quasi-outbound investment screening mechanism that could bring big changes.
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New Certification Process for Veteran-Owned Small Businesses
On July 6, the SBA issued a proposed rule that would implement Section 862 of the National Defense Authorization Act for Fiscal Year 2021 establishing a government-wide certification process for Veteran Owned Small Businesses (VOSBs) and Service Disabled Veteran Owned Small Businesses (SDVOSBs).
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Responsibility vs. Responsiveness: A Critical Difference Saves Flawed Initial Bid
As a general matter, an agency should reject a bid out of hand if it is deemed defective due to problems with bidder responsiveness. However, flawed bids determined on account of issues with bidder responsibility can be supplemented with the requested information any time before award. On May 18, the GAO wrangled with that critical difference in operative language, finding in favor of a bidder who successfully demonstrated the requested information dealt with a question of responsibility, rather than one of responsiveness, in J.E. McAmis, Inc., B-420518; B-420518.2.
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SBA Enlarges Small Business Pool through New Rule Change
On June 6, the U.S. Small Business Administration (SBA) issued a final rule modifying its methodology for calculating the size of small businesses using an employee-based size standard and authorizes businesses participating in its Business Loan, Disaster Loan, Surety Bond, and Small Business Investment Company (SBIC) programs to choose whether to use a three-year or five-year receipts average when determining eligibility. The final rule becomes effective on July 6, 2022.
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Buyer Beware: Settling FCA Allegations Costs Manufacturer $5.2 Million
Numet Machining Techniques, a Connecticut-based machined parts manufacturer for commercial and military aerospace engines, recently agreed to pay $5.2 million to settle alleged violations of the False Claims Act (FCA) for misrepresenting its size standard following an acquisition.
Continue Reading Buyer Beware: Settling FCA Allegations Costs Manufacturer $5.2 Million