Jackson Kelly PLLC

Government Contracts Monitor

Regulations (FAR, DFARS and others)

BYE BYE DUNS - HELLO SAMMI

Last month the General Services Administration (GSA) awarded a $41 million, five-year contract to Ernst and Young LLP (EY) to replace Dun & Bradstreet (D&B) as the contractor supplying entity validation services – the well-known, long-standing Data Universal Number System (DUNS).  All federal agencies and federal contractors (and grant recipients) – everyone doing any kind of business with the…

Exemption 4: Protection of Confidential Information - The Ground May be Shifting

The Supreme Court recently granted a petition for writ of certiorari over (that is, agreed to review) an Eight Circuit decision involving Exemption 4 of the Freedom of Information Act (“FOIA”).  What is Exemption 4?  It is the exemption that protects from public disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Why is this…

China's Continuing Threat

Pentagon leaders have been speaking out, increasingly, regarding the risks to U.S. military operations created if and when Chinese technology is used in any military related 5G wireless telecommunications networks. Specifically, officials (former and current) are warning that using Chinese firms (for example, Huawei) to outfit military networks creates a high risk ... indeed a probability ... of…

GAO Sustains Limiting the Number of Projects Allocable to a Large Business Mentor's Experience, but Rejects Treating a Mentor-Protégé Joint Venture Differently than a Prime/Subcontractor Contractor Teaming Agreement

One of the principal advantages of an approved Mentor/Protégé Agreement (MPA) is that the Mentor and Protégé can enter into a joint venture (JV) that can compete as small for any contract for which the Protégé would be eligible (see, e.g., 13 C.F.R. § 125.109(d)(1)).  In turn, one of the principal advantages of a JV - now enshrined in statute and regulation - is that in evaluating experience and…

Hopewell Darneille to Present at DYNET 2019, Fairmont, WV -- April 11, 2019

Hopewell Darneille, of the Firm’s Washington, DC office, will be a presenter at the 10th annual Dynamic Networking for Small Business (DYNET) Conference, a federal and prime contracting event in Fairmont, West Virginia, on April 11, 2019 at the Robert H. Mollohan Research Center.

Mr. Darneille will co-present a Workshop on “Negotiating and Drafting a Compliant and Workable Joint Venture Agreement…

A Preference for U.S. Goods and Services: Buy American Receives A Booster Shot

On January 31, 2019 President Trump signed yet another Executive Order addressing Buy American issues: Buy American, Hire American [here]. This Order requires that federal agencies purchase U.S. goods and services in any and all infrastructure projects including, interestingly, cybersecurity projects. Among other things, this recent Order underscores the Trump Administration’s policy of enforcing…

Rare DOL Nondisplacement Decision Holds that Incumbent's Certified Employee List Is Not Determinative, and Awardee Must Consider Agency's "Credible Evidence" as to Incumbent Employee's Qualifications and First Refusal Offer Entitlement

Every awardee under qualifying federal government service contracts faces difficult issues and choices under Executive Order 13495, “Nondisplacement of Qualified Workers under Service Contracts,” and the implementing Department of Labor (DOL) Regulations at 29 C.F.R. Part 9, which require awardees to offer incumbent employees “a right of first refusal for employment under the contract in…

Changing Key Personnel After Proposal Submission? Not So Fast....

As the GAO recently determined, and the Court of Federal Claims affirmed, an offeror who finds itself in a position of having to modify key personnel specified in its proposal, after the deadline for proposal submission, may end up with an unacceptable proposal.  If an agency notified offerors that it might award without discussions, an offeror will not be able to "re-open" the proposal process to…

New Statute Extends Small Business Size Standard Reference Period to Five (from Three) Years, Enabling More Companies to Qualify as Small

In December 2018 – just before Christmas – the Senate approved, and the President signed into law, the so-called “Small Business Runway Extension Act of 2018,” Pub. L. No. 115-324 (the “Act” or “statute”).  This statute extends the three-year reference period for calculating a revenue-based small business’s size status to five years.  This Act was intended – as implied by its name – to extend the…

So Long, Farewell, Goodbye, to Low Price Technically Acceptable

The Department of Defense (“DoD”) recently proposed a new rule (click here) that would restrict the use of the lowest price technically acceptable (“LPTA”) source selection method.  The rule will apply to FAR Part 15 negotiated procurements, Federal Supply Schedule orders, commercial item acquisitions, simplified acquisitions, and orders against multiple award indefinite delivery contracts. The…

New Year's Resolutions, 2019 - Reassess Your Size Status, Update Your SAM and DSBS Listings, Check Your Past Performance Ratings, and Update Your Employment Policies, Handbooks and Postings

Happy New Year!  The start of a new year is the time for New Year’s Resolutions.  Here are several we strongly urge you to follow-through on early in 2019.

 

     1.  Reassess Your (and Any Subcontractors’) Small Business Size Status:  Most companies operate on a calendar year for tax reporting purposes.  For such companies the start of a new tax year, and the end of the prior year, means a change and…

The Challenge in Challenging A CICA Override - Know Your Facts

Under the Competition in Contracting Act’s (CICA’s) automatic stay, agencies, upon receiving notice that the award is being protested, must “direct the contractor to cease performance under the contract and to suspend any related activities that may result in additional obligations being incurred by the United States under that contract.” 31 U.S.C. § 3553(d)(3)(A)(ii)(2). Although CICA gives the…

 

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