Jackson Kelly PLLC

Government Contracts Monitor

Provide What The Government Wants, Not What Makes Sense to You

When preparing proposals and responding to discussion questions, offerors sometimes unconsciously respond to solicitation requirements and agency comments from a normative perspective, providing the information they believe “makes sense” rather than the information the agency has actually requested. It seems that this dynamic may have contributed to the circumstances considered by the Government…

OHA Clarifies Limited Effect of 2016 Changes to Joint Venture and Ostensible Subcontrator Rules

In May 2016, the Small Business Administration (SBA) revised its small business regulations to, among other things, amend 13 C.F.R. § 121.103(h) to expand the exclusion from affiliation for small business size status to allow two or more small businesses to joint venture for any procurement without being affiliated for purposes of that procurement requirement. SBA believed this change would…

A Certified Claim is Only as Valid as Its Certification Signature

Preparing and submitting contract claims is a time-consuming and expensive endeavor. The last thing a contractor wants is for all that time and expense to be for naught. The recent Armed Services Board of Contract Appeals (ASBCA) decision in the case of NileCo General Contracting LLC, ASBCA 60912, reiterates the vital importance of a contractor’s dotting its “i’s” and crossing its “t’s”--and…

DoD Issues New Guidance for Selected Portions of DFARS 252.204-7012

DFARS Clause 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting, was added in 2016. It requires contractors to safeguard covered defense information that is processed or stored on their internal information system or network by implementing National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, "Protecting Controlled Unclassified…

If You’re Thinking about Protesting, Don’t Forget to Consider the “Warts” on Your Own Proposal

Upon learning of a contract award to a competitor, offerors often immediately latch onto the idea of protesting what they are sure must be a flawed decision. After all, how could it be reasonable and consistent with law and the solicitation for the agency to have chosen the awardee over the disappointed bidder? Firms that find themselves in this situation need to find a way to quickly get past…

It Might Be Reasonable to Incur Costs for Three Months before the Notice to Proceed, But Be Careful

Contractors often find themselves caught between a rock and a hard place, where the rock is the need to get ready to perform the contract and the hard place is the lack of a notice to proceed. Firms facing this dilemma must determine whether and to what extent they should incur costs without a notice to proceed and how long those costs can reasonably be incurred. These issues lie at the core of…

Regardless of Whether You’re Responsible, Did You “Deliver the Mail”?

Sometimes small business offeror’s lack of success in a competitive procurement results from questions about whether it is “responsible” (i.e. has the ability to perform). When a small business’ proposal is found unacceptable due to a responsibility-related issue, the procuring agency must refer the matter to the Small Business Administration (SBA), which has the ultimate authority to determine…

Short Take: Good Bye . . . For Now. . . Revised EEO-1 Form

August 29, 2017, the Office of Management and Budget (OMB) notified the Equal Employment Opportunity Commission (EEOC) that it was initiating a review and immediate stay of the revised EEO-1 form announced by EEOC in September of 2016. The new form, which was to be used beginning on March 31, 2018, sought more information than its predecessor relating to total compensation and total hours worked…

Here We Go Again – Another Possible Federal Government Shut-Down – Actions to Take Now

As we approach the end of the Government’s fiscal year at the end of September, we are once again facing a risk that the Federal Government could shut-down. The risk is heightened this time by: (1) the impending debt ceiling crisis, which Treasury estimates will be hit on September 28 or 29; and (2) President Trump’s reiteration earlier this week that he would be willing to shut-down the…

Overcome by Events: Facts Not Directly Related to Protest Grounds Can Prevent an Ultimate Protest Victory

In the compliance context, contractors often have to try to do the impossible: think about everything all the time. A similar ideal applies in the protest context. When considering whether and how to pursue a protest, it's important to think about more than just whether you can win the short-term battle on the substantive legal issues. Contractors also need to consider whether there are…

Surprise: An Agency Can Base Its Specs on Your Competitor’s Product as Long as the Specs Accurately Reflect the Agency’s Needs

Given the oft-repeated mantra of “full and open competition”, contractors are understandably alarmed when a procuring agency defines its requirements in a way that essentially tracks another company’s product offerings. The recent Government Accountability Office (GAO) decision in Simplex Aerospace, B-414566.2, (August 8, 2017) reminds us that “full and open competition” does not guarantee a…

DOL Increases SCA Minimum Health & Welfare Fringe Benefits Rate to $4.41/hr, Effective August 1, 2017

The U.S. Department of Labor (DOL), Wage and Hour Division recently issued All Agency Memorandum No. 225, increasing the basic minimum Health and Welfare (H&W) fringe benefits rate applicable to service contracts under the Service Contract Labor Standards statute (formerly known as, and hereinafter referred to as, the Service Contract Act (SCA)) to $4.41/hr vs the former $4.27/hr -- i.e., an…

 

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