This week, the Government Accountability Office (GAO) released its annual Bid Protest Report for Fiscal Year 2014. GAO is required by the Competition in Contracting Act to submit this annual report to Congress. The report contains some information which may be of interest to contractors, particularly the bid protest statistics.

According to GAO, while the number of bid protests filed increased 5% versus FY2013, the number of sustained decisions decreased quite a bit. From FY2010 through FY 2013, GAO sustained an average of 17.7% protests. The number of sustained protests fell sharply in FY2014, as less than 13% of cases were sustained.

Continue Reading GAO Releases Annual Bid Protest Report: Corrective Actions on the Rise?

Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) are often protested concerning their eligibility in the small-business program. The VA generally has a great deal of discretion as to the factors it considers in determining eligibility. But can the VA rule a company ineligible as an SDVOSB without any notice or opportunity to address a specific reason for ineligibility? A recent case in the Court of Federal Claims, AmBuild Company, LLC v. United States, No. 14-786C (Oct. 10, 2014), provided an answer to this question.

AmBuild was the apparent lowest-cost bidder on a VA solicitation set-aside for SDVOSBs. The second lowest bidder, Welch Construction Inc., filed a protest challenging AmBuild’s SDVOSB status. Welch alleged that AmBuild was not controlled by a service-disabled veteran due to common ownership or management with other firms and did not meet the size requirements for a SDVOSB. The protest was considered by both the SBA and the VA Center for Verification and Evaluation (CVE), and each rejected Welch’s contentions.

Continue Reading Recent Decision Reinstating Company as SDVOSB

Contracting with the Federal Government frequently includes many unique risks and uncertainties. In the wake of the Ebola epidemic occurring overseas the United States has stepped in to provide assistance, much of which comes in the form of the use of contractors. Being exposed to Ebola is not a small risk and comes with many uncertainties including becoming subject to large third-party claims for injury, death or damages. In order to continue supporting these efforts in the Ebola outbreak, there has been a drive to mitigate this risk factor for contractors. On November 13, President Obama released a Presidential Memorandum granting the Administrator of the United States Agency for International Development (USAID) the authority to indemnify companies from lawsuits related to “contracts performed in Africa in support of USAID’s response to the Ebola outbreak in Africa where the contractor, its employees, or subcontractors will have significant exposure to Ebola.”

Continue Reading President Obama Authorizes Use of PL 85-804 to Protect Ebola Contractors

Government contractors who have recently registered or re-registered in the System for Award (SAM) database have come across a new disclosure requirement regarding their corporate structure. New questions inquiring about an “immediate owner” and a “higher-level owner” have sparked confusion as to what these requirements are and where they are coming from.

The requirements were prompted by a new FAR Subpart 4.18 – Commercial and Government Entity Code (CAGE) requiring all SAM registrants, if owned by another entity, to identify that entity by name, CAGE code and type of ownership. CAGE codes are a five-character identifier used extensively within the Federal Government and provide for standardization of identifying a legal entity across the Federal Government.

Continue Reading New CAGE Code Requirements for Contractor’s Ownership Chain

I recently co-wrote an article with John Kelly and Lindsey Fetzer that outlined three recent cases (Leidos Holdings Inc., Boeing Company, DRS Technical Services Inc.) in which government contractors were accused of noncompliance under the False Claims Act (FCA). In the article we analyze these cases and provide guidance on what government contractors can do to avoid the risk of potential FCA exposure.

The article, “October FCA Enforcement: How Government Contractors Fared,” was published on November 7 on Law360 and can be read here.

In government contracting, offerors are regularly evaluated in their proposed approaches to meet solicitation requirements. Occasionally, an offeror’s proposed solution is immaterial, as the offeror’s overall ability to perform the work required by a solicitation is called into question.

Whether it is inadequate financial resources, an inability to meet delivery schedules or an inability to obtain a security clearance, some offerors fail to meet general criteria of responsibility required to perform. Generally, the procuring agency can eliminate an offeror based on a determination of nonresponsibility. However, small businesses are provided a little cover.

Continue Reading Learning from Bid Protests: Responsibility vs. Acceptability

Government contractors must always be vigilant of prosecution under the False Claims Act (FCA). Charges and settlements are brought and announced in the news daily against government contractors for violations of this Act. On October 30, we published a client alert, Government Contractors Beware: Increased FCA Enforcement in Government Contracts, discussing recent cases and settlements. Just recently, another contractor, North Florida Shipyards, settled for a fine of $1M for violations of the FCA. The president of North Florida Shipyards was caught in a scheme to qualify for ship repair contracts set aside under the Service-Disabled Veteran-Owned Small Business (SDVOSB) program. In this scheme, another company, Ind-Mar Services Inc., was created as a front company to qualify for the SDVOSB set-asides while North Florida, who did not qualify under the SDVOSB regulations, did all of the actual work and took all the profits. Fraudulently obtaining access to these special contracting opportunities was deemed a violation of the False Claims Act. If the government had known of the front company, Ind-Mar’s, falsified status, the Coast Guard would not have awarded the contracts to them. Please see our recent article published in BNA Federal Contracts report titled, Big Risks for Small Businesses: Increased Enforcement Activity Against Size and Status Misrepresentations, for a further discussion of the intersection of the FCA and small business programs and representations.

In the October 2014 issue of Service Contractor magazine, I authored the article “Will ‘Innovation’ Return to the Small Business Innovation Research Program?” In the article, I outline the recent changes that were implemented to the Small Business Innovation Research (SBIR) program and highlight challenges that remain for an important R&D tool for small businesses. One of the biggest updates detailed in the article is the change in eligibility for companies backed by venture capital, private equity and/or hedge funds and whether those small business are actually getting an opportunity to receive SBIR awards. To read the full article, click here.

If a cloud services provider (CSP) wishes to provide their services to a federal agency they must obtain authorization and approval from the Federal Risk and Authorization Management Program (FedRAMP). As more and more CSPs have entered the FedRAMP assessment process, there has been a push to help agencies and CSPs achieve FedRAMP authorization faster. Moreover, the Office of Management and Budget mandated starting June 5, 2014, that all CSPs must be FedRAMP approved or at least in the process of getting an authority to operate prior to contracting with federal agencies. In order to assist with these efforts, GSA recently unveiled a new category to its program for cloud systems proven “FedRAMP Ready.”

Continue Reading GSA Announces New FedRAMP Category to Speed Up Approval Process

On October 20, Law360 published an article that I authored titled “A Large Loophole in the Ostensible Subcontractor Rule.” In the article, I analyze a contractor’s ability to file an ostensible subcontractor size protest under a task order award, as addressed in two recent cases (Strata-G Solutions and U.S. Information Technologies Corp.) before the Small Business Administration’s Office of Hearings and Appeals. To read the full analysis, click here.

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

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