Georgia Tech Procurement Assistance Center

Five things you should know about past performance when teaming

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The government’s hard shift away from lowest-price, technically acceptable evaluations has magnified the importance of past performance in many competitive acquisitions.  For start-ups and other companies new to the federal marketplace, past performance requirements can present a significant barrier to success.

Oftentimes, companies with little or no past performance of their own can offer the past performance of another entity, such as a subcontractor or joint venture partner.  But the rules surrounding the use of another entity’s past performance are often misunderstood–and recently, the rules have evolved quickly.

Here are five things you should know about using the past performance of a subcontractor, joint venture partner, or affiliate.

Continue reading at:  SmallGovCon

5 things you should know: SBA’s recent 8(a) program updates

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SBA has been hard at work this past year updating its 8(a) Business Development Program rules and policies.  And we have been doing our best to keep you posted.  Many of our blog posts focused on SBA’s monumental November 2020 “rule overhaul,” which implemented several 8(a) rule changes.  But given the sheer magnitude of information in that final rule, it is pretty easy to lose track of which updates might affect you, as a potential 8(a) applicant or current 8(a) participant.  There were also some pretty important changes to the 8(a) Program just prior to and subsequent to SBA’s November 2020 final rule.

Suffice it to say, there is a lot to process!  So, we thought a quick summary blog on some of the most significant changes to the 8(a) Program of late might help you in that endeavor.  Without further ado, here are five things you should know about SBA’s recent 8(a) Program updates.

As an initial matter, please keep in mind that this blog does not provide an exhaustive list of the rule changes in SBA’s November 2020 final rule that may affect 8(a) Program admission or participation.  It is merely a simplified discussion of some of the big picture changes that have already received a lot of attention in the government contracting community.

Continue reading at:  SmallGovCon

SBA OHA: Ownership and control are not the same in the WOSB program

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A company learned the hard way that just because their business is majority-owned by a woman, it doesn’t mean they are a Women-Owned Small Business (WOSB) in the eyes of the SBA.  The question is one of both ownership and control.

The case is SBA No. WOSB-113.  In December 2016, Joint Information Network (JIN) submitted an offer for a contract to provide software engineering and database services in support of the U.S. Navy Naval Information Warfare Center (NIWC).  The contract was to be awarded directly to a WOSB on a sole-source basis.  The contracting officer (CO) awarded JIN the $30 million contract in January 2017.  The contract period for performance ended April 17, 2020, but, as of this decision, the contract was not closed.  When JIN submitted the offer, it was a partnership owned 60% by Ms. Jihong Jin and 40% by her father, Dr. Yahne Jin, per a partnership agreement from April 2016.  The partnership agreement also stated that no partner could enter into a contract for JIN without the approval of the other partner.  In other words, while Jihong was the majority owner, she and Yahne had to agree in order to have JIN sign any agreements.

Continue reading at:  SmallGovCon

Five things you should know about responding to size protests

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There are many things to know about responding to size protests.  One could probably fill a book with the information.  But if you need to know just the basics, here are five things you should know about size protests that can help you be prepared if your company is facing a size protest.

1. The response time is short.

Normally, your company only gets three business days to respond.  So, be sure to work quickly to put together as much information as possible in that short amount of time to respond to the size protest allegations and any additional questions from SBA, while also completing the Form 355.  It’s also a good idea to have these records (such as tax returns or employee count documents) handy so that you can respond quickly.

2. But you can ask for an extension.

The SBA Area Office will often grant an extension and allow you to submit your response electronically.  Indeed, the SBA’s rules state that SBA may grant an extension.  It used to be that the SBA Area Office would require a paper copy of the response, but many Area Offices will accept submission by electronic means.  Regardless, be sure to reach out to the Area office as soon as possible to request a specific extension and to confirm that electronic submission is allowed.  While not required, the Area Office will often grant these short extension requests.

Continue reading at:  SmallGovCon

SBA extends the HUBZone map freeze to June 30, 2023

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Recently, the Small Business Administration (SBA) issued a direct final rule extending the HUBZone map freeze from December 31, 2021, to June 30, 2023.  The direct final rule (available here) takes effect on June 21, 2021.  This is the latest in a series of developments for the HUBZone Program in 2021; read PilieroMazza’s previous coverage on the developments impacting the HUBZone Program here and here.

Several years ago, SBA froze the HUBZone maps until December 31, 2021, to ensure that firms would have enough time to plan after seeing how the results of the 2020 Census would impact the HUBZone maps.  However, due to the pandemic, the 2020 Census results are behind schedule and SBA does not expect to have the data it needs until December 2022.  Therefore, to ensure HUBZone firms have enough time to plan around the new HUBZone maps based on the 2020 Census data, SBA’s direct final rule will keep the HUBZone maps “on ice” until June 30, 2023.  Pushing back the anticipated “thaw” for another 1.5 years will give SBA time to incorporate the 2020 Census data into the HUBZone maps and then provide adequate notice to the HUBZone small business community.

Continue reading at:  PilieroMazza

Novation agreements under federal contracts

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A unique aspect of doing business with the federal government is the built-in limits on a contractor’s right to assign the contract or the right to payment under the contract to third parties. The Anti-Assignment Act (41 U.S.C. § 6305) prohibits the transfer of a government contract or interest in a government contract to a third party.  An assignment of a contract in violation of this law voids the contract except for the Government’s right to pursue a breach of contract remedies.  What’s a contractor to do when it is acquired/merged with another firm, is restructured, or goes through a variety of other types of corporate transaction?  The Federal Acquisition Regulations recognize that firms involved in government contracts get bought and sold from time to time and include procedures for the novation of contracts in certain situations to avoid a potential violation of the Anti-Assignment Act.

Continue reading at:  Husch Blackwell

Navigating the FAR/DFARS: The most confusing and little known clauses

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The law firm Piliero Mazza has put together a helpful presentation on navigating the FAR/DFARS, that focuses on the most confusing the little-known clauses.  They write:

“We have fielded numerous calls from new clients asking the same question when it turns out they have violated a FAR provision: ‘Do they really expect me to read all of those regulations?  How is someone supposed to understand everything that is in there?’ Unfortunately, the answer is ‘yes’ the government does expect you to know all of the FAR and DFARS clauses that are relevant to your work and to follow them to the letter.  Not only that, but by virtue of the fact the FAR and DFARS are publicly available, all contractors are presumed to have knowledge of all the clauses and understand them.  This reality can be daunting for new companies or even large well-established businesses looking to enter the federal space.  During this session, we will look at some of the most confusing and poorly understood FAR and DFARS provisions to give you a leg up on your competition or be able to help your own companies or those you work with in navigating these areas of the law.”

You can watch the webinar at:  JD Supra

Contract language matters, even to Uncle Sam

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No one can escape the basic rules of contracting, even the federal government. If the contract is clear and unambiguous, then the four corners of the agreement set the rules for the project and the parties – and there’s not much room for interpretation.  The government was recently reminded of this cold, hard truth after it refused to grant a contractor an equitable adjustment of the contract price for purchasing wetland mitigation credits.

In Kiewit Infrastructure W. Co. v. United States, the government issued a solicitation for bids for the design and construction of roadways through the heart of the Tongass National Forest in Prince of Wales Island, Alaska.  Part of the solicitation included a Waste Disposal Sites Investigation Report, which specified where waste could be disposed of during construction.  In referring to the Report, the government’s solicitation clarified that “no further analysis of the environmental impacts of using government-designated waste sites would be needed unless an expansion of a site were proposed.”  The solicitation was clear, however, that the chosen contractor would maintain responsibility for all permits and clearances, including the need for any potential wetland mitigation credits and ensuring compliance with the Clean Water Act.

Continue reading at:  JD Supra

How government contractors can survive this difficult time

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In February 2020, economic indicators seemed stable with positive business and consumer sentiment.  But then the world was hit with a global pandemic that completely changed the way this country and the entire globe does business.

Contractors have had to deal with stop-work orders or even terminations of a project because the area where the work was being performed was too risky or expensive to operate in.  Additionally, when the pandemic first hit and strict travel restrictions were put in place, supplies and services became more scarce and expensive, which negatively impacted a contractor’s ability to maintain an existing schedule or stay within budget.

This continues to be an issue and many government contracts continue to be delayed because of concerns regarding health and safety.  These delays can directly result in cash flow challenges for companies that are looking to keep employees in place while they anxiously await new contracts to take effect.

Continue reading at:  The Federal News Network

Don’t forget about the GSA Schedule program

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With so much attention on a series of forthcoming GSA GWAC contracts, it might be easy for companies to forget about the old, reliable, GSA Schedule.  However, GSA’s Multiple Award Schedule program did record business last year.  Larry Allen is president of Allen Federal Business Partners.  He talked with Federal Drive with Tom Temin about why the schedule contracts might not be getting the attention they deserve right now.

If you need help or guidance on the GSA Schedule process, feel free to reach out to a GTPAC Procurement Counselor.

Listen to the Podcast at:  The Federal News Network

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