Government Contracts

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.
Continue Reading DOD’s Mentor-Protégé Program May Be Getting a Facelift

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

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.
Continue Reading Chipping Away at Trade: New Tool Could Bring Big Changes

In a recent article for Reuters, I warned of the potential consequences if government contractors fail to comply with their disclosure obligations. I outlined the types of proceedings government contractors with federal contracts and grants with a total value greater than $10 million must report on the Federal Awardee Performance Integrity and Information System (FAPISS) in accordance with FAR 52.209-7, which include:

  1. Criminal proceeding resulting in a conviction or other acknowledgment of fault.
  2. Civil proceeding resulting in a finding of fault with a monetary fine, penalty, reimbursement, restitution, and/or damages greater than $5,000, or other acknowledgment of fault.
  3. Administrative proceeding resulting in a finding of fault with either a monetary fine or penalty greater than $5,000 or reimbursement, restitution, or damages greater than $100,000, or other acknowledgment of fault.

Continue Reading Potential Consequences for Failure to Comply with Disclosure Obligations

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.
Continue Reading Responsibility vs. Responsiveness: A Critical Difference Saves Flawed Initial Bid

Generally, government agencies are given broad discretion to define their needs; however, last month, the United States Court of Federal Claims chose to curtail an agency’s authority to cancel and amend bid solicitations in Seventh Dimension, LLC v. U.S., No. 21-2275C (May 2022).
Continue Reading Broad Agency Discretion to Cancel Bid Solicitations Curtailed with Recent Court Decision – “The Tribe has Spoken”

The Department of Defense (DOD) recently issued a final rule implementing Section 828 of the NDAA for Fiscal Year (FY) 2018, requiring the treatment of the majority of contracts for items awarded using Federal Acquisition Regulation (FAR) part 12 acquisition procedures to serve as a prior commercial item determination (CID).
Continue Reading DOD Publishes Final Rule Redesignating Contracts Previously Awarded Under FAR Part 12 Guidelines as Commercial Item Determinations (CIDs)

Last month, the Department of Justice (DOJ) announced that a Florida grand jury indicted three men for conspiring to rig bids for customized promotional products to the U.S. Army and charged two of them with conspiring to defraud the United States. Bid rigging is how conspiring competitors effectively raise prices where purchasers — often federal, state, or local governments — acquire goods or services by soliciting competing bids.
Continue Reading PCSF Strikes Again: Scheme to Rig Bids Results in Federal Grand Jury Indictment

In a May 4 article published by American City Business Journals’ The Playbook, I offered insight on the opportunities for small businesses to engage with federal contracting and practical steps to get started.

The federal government spent more than $665 billion on contracts in FY2020, and a variety of special programs for contracts are designed to meet the goal of spending at least 23% of all contracting dollars with small business owners.Continue Reading Opportunities for Small Business within Federal Contracting Space

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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