Government Contracts Monitor

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

January 2, 2019

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…

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

December 20, 2018

As recently as yesterday morning, I had shelved this article for at least a couple of more months.  However, developments yesterday significantly increased the likelihood of a partial Federal Government shut-down at midnight tonight, causing me to resurrect and publish this today.  As you no doubt know, President Trump has been threatening a possible shut-down since last year if he does not get his…

Release of Proprietary Information - Tainted Procurement?

December 11, 2018

What happens when a competitor receives proprietary information during a procurement? Will an offeror whose information has been improperly disclosed succeed in a protest? The answer is . . . it depends.  Most recently, in DynCorp International, LLC,  the Court of Appeals for the Federal Circuit held that an agency had a reasonable basis for not disqualifying a competitor that had received…

GAO Bid Protests - FY18 Protest Statistics (Overall Effectiveness at 44%; Sustains at 14%), and a Look Ahead

December 2, 2018

The Government Accountability Office (GAO) last week issued its Annual Report to Congress on bid protests during Fiscal Year 2018 (FY18; 10/1/17-9/30/18).  The total number of bid protests filed (including supplemental protests, cost claims & reconsideration requests) increased marginally by less than 1% (2,607 vs. 2,596 protests in FY17 – an increase of 11 protests).  GAO closed 2,642 protests…

The Challenge in Challenging A CICA Override - Know Your Facts

November 28, 2018

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…

See-Saw: The Number Of Appeals May Be Down, But Contractor Success Is On The Rise

November 14, 2018

The Armed Services Board of Contract Appeals (ASBCA) released its annual report last month, describing its case activity for FY 2018. Interestingly, of the 139 cases decided on the merits, the Board agreed with the contractor/appellant 69 percent of the time.  And that’s not all.  In most of the 420 cases dismissed by the Board the case was disposed of because the parties had reached a settlement,…

Federal Circuit Overrules COFC's "Narrowly Targeted" Review Standard; Corrective Action Challenges Just Became a Lot Harder

November 7, 2018

As we have discussed, a significant percentage of bid protests end up in an agency taking some form of corrective action, either entirely voluntarily based upon the agency’s internal assessment, or as the result of external pressures – formal or informal – from the Government Accountability Office (GAO), the Department of Justice or a Court.  A critical issue in such situations is the scope of the…

FAR Change Clarifies that Offerors (Including Joint Ventures) Must Register in SAM Before Submitting Offers

November 4, 2018

The Federal Acquisition Regulation (FAR) has been amended to make clear that offerors, including joint ventures, must be registered and active in the System for Award Management (SAM) prior to submitting bids or offers responding to Federal Government solicitations.  Such registration includes completing the standard annual Representations and Certifications (Reps & Certs) required by most…

Short Take - Minimum Wage Increases to $10.60, Effective January 1, 2019

October 24, 2018

The Department of Labor (DOL) recently published a Notice [83 Fed. Reg. 44906 (9/4/18)] announcing that, effective January 1, 2019, the minimum hourly wage required to be paid to workers performing work on or in connection with covered federal contracts, per Executive Order 13658, will increase from the present $10.35 to $10.60. The minimum hourly tipped wage will increase from $7.25 to $7.40.

By…

The Cardinal Change - A Dramatic But Important Remedy

October 17, 2018

All experienced government contractors know that it is often impossible to predict (and therefore to price), the wide range of risks involved in performing federal government contracts. When a dramatic change occurs, it can sometimes be compensable as a cardinal change - a change that occurs when a contractor is directed to perform additional work beyond the scope of the contract. Case in point: …

Are there Cybersecurity Risks in Your Supply Chain?

October 9, 2018

By now we all know that the Federal Government has dramatically increased its efforts to reduce threats to cybersecurity: witness a case in the Court of Federal Claims (COFC) where the Social Security Administration (SSA), in acquiring new printers, was determined to avoid supply chain risks it suspected were present in a bidder’s offer. The bidder protested, but the COFC agreed with the agency.…

OFCCP On the Move ...

October 4, 2018

On September 7, 2018, the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) issued 750 courtesy scheduling letters to federal government contractors, notifying them that their affirmative action plans (AAPs) could be audited. The OFCCP published the list of federal contractors that received this “courtesy”. 

The letters let contractors know, 45 days in advance, that…