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

I recently outlined the implications of the Department of Defense’s (DoD) new “enhanced debriefing rule” for government contractors that is intended to provide information and details about award decisions. However, as I explain in the article, “While this increased transparency was intended to discourage bid protests by sharing more information about award decisions, and some

We are looking forward to presenting a training webinar titled, “Nuts and Bolts of Teaming Agreements” for the Maryland Procurement Technical Assistance Center (Maryland PTAC). In this one-hour webinar, you will get answers to questions such as:

  • Joint venture or subcontract?
  • Mentor/protégé?
  • Will my company still be eligible for a set aside if I team?

In a memorandum circulated during “National Sunshine Week” celebrating the importance of open government, Attorney General Merrick Garland directed heads of executive agencies and departments to favor transparency and disclosure when considering Freedom of Information Act (FOIA) requests. The memorandum was released in the wake of bipartisan calls for increased Department of Justice (DOJ) guidance on agency FOIA responses. In February, six Democrat and Republican lawmakers co-signed a letter asking the Attorney General to issue a “clear message” to improve transparency and “encourage agencies to improve FOIA implementation.” The letter cited a 2021 Government Accountability Office report finding that agency’s use of FOIA’s limited disclosure exemptions had increased 135% between 2012 and 2019. This increased reliance on exemptions drove a 76% increase in partial denials and a 10% increase in full denials of FOIA requests in the same period.

Continue Reading New FOIA Guidelines Favor Transparency