In the November 2014 issue of Contract Management magazine, I wrote an article titled “Preparation is Key to a Successful Novation” that outlines how companies can successfully transfer a federal government contract through a process called novation. In the article, I describe the common problems that can arise in the novation process and how best to resolve them. To read the full article, click here.
Learning from Bid Protests: With Late Proposals, Government Caused Delays only Matter at Agency Location
By Bass, Berry & Sims on
Posted in Bid Protests
The general rule regarding late proposals is that offerors are responsible for ensuring that their proposals reach the designated location by the time stated in the solicitation. A late proposal will not be considered unless it falls under a recognized exception in the Federal Acquisition Regulation (FAR) or common law. One exception in the FAR allows for acceptance of a late proposal where some emergency or unanticipated event interrupted normal Government processes preventing it from being delivered on-time. FAR § 52.212-1(f)(4).
This particular exception was addressed recently by the Court of Federal Claims, in which the Court examined the scope of the interruption of “normal Government processes” exception. In Global Military Mktg v. United States, No. 14-622C, (Williams, J.)(Sept. 29, 2014), the Plaintiff encountered a rather unique and unfortunate situation regarding the delivery its proposal. The Plaintiff attempted to use FedEx to make its delivery, however the region in which Plaintiff (and the FedEx facility) was located experienced a “historic rainfall event,” which caused the FAA to restrict traffic at local airports.
Upcoming Seminar on October 28, 2014: Bid Protests and SBA Size/Status Protests: Filing and Defense Strategies
By Todd Overman on
We are dusting off our boots and heading to Tennessee. We’ll be at the SCS Annual Government Contracting Seminar in Oak Ridge, TN on October 28.
The conference is designed specifically for government contractors and will cover various topics relevant to the industry including compliance and proposal writing.
Our presentation, “Bid Protests and SBA Size/Status Protests: Filing and Defense Strategies” will include the following components:
Offeror Needs Own FSS Contract to be Eligible for FSS BPA
By Todd Overman on
Posted in Bid Protests
The Court of Federal Claims recently held that a company could not rely on its affiliate’s Federal Supply Schedule (FSS) contractor status in order to comply with the solicitation. The procurement at issue involved the purchase of glucose test strips from an FSS contract. The Federal Acquisition Regulation (FAR) and the solicitation prohibited entering into the FSS blanket purchase agreement (BPA) with a non-schedule contractor. However, the Defense Health Agency (DHA) awarded the BPA to Abbott Diabetes Care Sales Corp. (Abbott), who did not have the required FSS contract but its affiliate Abbott Laboratories Inc. (ALI) did. Arkray (the protester) argued that Abbott improperly relied on the FSS of its corporate affiliate to provide the strips.
The court had previously remanded the case to the DHA to determine whether Abbott could “properly hold itself out as” having an FSS as required by the solicitation. On remand, the DHA decided to proceed with the BPA award because it concluded Abbott was either acting as ALI’s agent under its FSS contract or the companies were sufficiently closely related enough to allow Abbott to rely on ALI’s FSS contract to satisfy the terms of the solicitation.
Continue Reading Offeror Needs Own FSS Contract to be Eligible for FSS BPA
Learning from Bid Protests: Non-GSA Contract Holders Can Submit Offers Through a Contract Holder—If They Follow the Rules
By Bass, Berry & Sims on
Posted in Bid Protests, GSA Federal Supply Schedule (FSS)
The government contracting industry is extremely competitive, which is not a surprise given the $500+ billion dollars in federal procurement spending up for grabs each year. This competition certainly gives government contractors ample incentive to seek out any useful information that may provide even a small advantage in their procurement activities. Bid protest decisions can be one such source of useful information, often providing valuable insight into the procurement process.
One bid protest decision may focus on a contractor’s mistakes which led to its proposal being rejected from competition, serving as a how-to-guide of sorts showing contractors what not to do. Another bid protest decision may instead highlight errors made by the agency, giving contractors a blueprint of what agency actions/inactions to look out for in their own procurements that may lead to sustainable protests. Whatever the issue, knowledgeable contractors can utilize this information to avoid missteps and properly protect their interests in the potentially lucrative government contracting space.
Another useful aspect of bid protest decisions is that some decisions, while pointing out avoidable defects in proposals, can also shine a light on obscure rules and regulations which may open up contracting avenues not otherwise considered. GAO released a bid protest decision last week which may provide an example of this notion.
New Reporting and Data Requirements for Veteran Hiring to Begin in 2015
By Todd Overman on
Posted in Compliance
On September 24, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs published a Final Rule in the Federal Register that makes changes to the regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA) at 41 CFR Part 60-300.
VEVRAA prohibits federal contractors and subcontractors from discriminating in employment against protected veterans and requires these employers to take affirmative action to recruit, hire, promote, and retain these veterans. Generally, VEVRAA requires Federal contractors and subcontractors to annually report on the total number of their employees who belong to the categories of veterans protected under VEVRAA and the total number of those protected veterans who were hired during the period covered by the report. The new rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire protected veterans and improve job opportunities for protected veterans.
Continue Reading New Reporting and Data Requirements for Veteran Hiring to Begin in 2015
SBA Proposed Rule Will Increase Size Standards in Over 200 Manufacturing and Trade Industries
By Todd Overman on
Posted in Small Business Regulations and Programs
The U.S. Small Business Administration (SBA) published in the Federal Register two proposed rules to revise small business size standards in North American Industry Classification System (NAICS) Sectors 31-33 (Manufacturing) and industries with employee-based size standards that are not a part of NAICS Sectors 31-33, Sector 42 (Wholesale Trade), and Sectors 44-45 (Retail Trade). As part of its comprehensive size standards review required by the Small Business Jobs Act of 2010, the SBA evaluated employee-based size standards for all 364 industries in NAICS Sectors 31-33, and 57 industries and five exceptions that are not in NAICS Sectors 31-33, 42, or 44‑45 to determine whether they should be retained or revised.
Increases in Size Standards
The first rule proposes to increase size standards for 209 industries in Sectors 31-33. For instance, Burial Casket Manufacturing (NAICS 339995) and Dog and Cat Food Manufacturing (311111) size standards would increase from 500 to 1,000 (number of employees), and Frozen Specialty Food Manufacturing size standard would increase from 500 to 1,250 (number of employees). The SBA also proposes to increase the refining capacity component of the Petroleum Refiners (NAICS 324110) size standard from 125,000 to 200,000 barrels per calendar day total capacity for businesses that are primarily engaged in petroleum refining. The proposed rule also eliminates the requirement that 90 percent of a refiner’s output being delivered should be refined by the bidder.
Can a contractor assign their leasing agreement with the federal government to another party?
By Todd Overman on
The Court of Federal Claims in American Gov’t Props. & Houma SSA v. United States recently restated the general prohibition on assignment of federal government contracts and laid out the necessary steps contractors must follow in order to avoid an improper assignment of a lease agreement.
The case involved a contract to design, build and then lease to the Social Security Administration an office building in Houma, Louisiana. The General Services Administration (GSA) terminated the contract for default citing lack of progress. The plaintiffs brought suit alleging termination was improper and sought damages as a result of the alleged breach of contract. The defendant moved to dismiss on the grounds that plaintiff lacked standing to maintain suit against the government due to an improper assignment of the contract. The defendant alleged that the contract was assigned to Houma SSA, LLC (Houma) by American Government Properties (AGP), the original contracting party in violation of the Contracts Act.