Government Contracts Monitor

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

December 3, 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 29, 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 15, 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 8, 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 5, 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 25, 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 18, 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 10, 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 5, 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…

The "Close at Hand" Rule Applies to Past Performance, but Not Technical Matters

September 20, 2018

Sometimes, offerors leave important information out of their proposals in the mistaken belief that agency evaluators already know—and will take into account--the facts in question. In other cases, disappointed bidders who think their ratings are too low rely on similar thinking and argue point to the agency’s supposed knowledge and argue that it improperly failed to take that information into…

Short Take: Fall Is the Season for Halloween, Thanksgiving, and OFCCP Audits

September 14, 2018

In addition to changing leaves and cooler temperatures, some federal contractors will soon also face Affirmative Action Plan (“AAP”) audits by the U.S. Department of Labor (“DOL”) Office of Federal Contract Compliance Programs (“OFCCP”). Last week, the OFCCP sent out 750 Courtesy Scheduling Announcement Letters (“CSAL"s) to notifying specific federal contractors that they had been selected to…

Sometimes Less Than Complete Information Is Enough, but Don't Count on It

September 7, 2018

As a general rule (and best practice), offerors should always strive to ensure their proposals provide complete and accurate information that strictly complies with the solicitation requirements--and gives the procuring agency what it needs to make a favorable award decision. To do otherwise is to flirt with an agency determination that the proposal is nonresponsive or otherwise insufficient. In…