Georgia Tech Procurement Assistance Center

Contractors oppose proposed limit on federal bid protests

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As the Senate Armed Services Committee last week began its markup of the fiscal 2019 National Defense Authorization Act, a contractors group was pushing committee leaders to reject a Pentagon proposal to curb time-consuming bid protests.

Seeking to eliminate what some senators call “frivolous” protests and what acquisition officials call “forum shopping,” the Defense Department this spring pressed for limiting the ability of contractors who unsuccessfully sought an award and are rejected by the Government Accountability Office to then continue their protest at the Court of Federal Claims. The plan would limit the so-called “second bite at the apple” in the court to within 10 days of knowing (or when they should have known) they had the basis for a protest.

Keep reading this article at: https://www.govexec.com/contracting/2018/05/contractors-oppose-proposed-limit-federal-bid-protests/148368/ 

Pentagon seeks to limit bid protests in federal court

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The Defense Department is proposing legislation to impose new constraints on government contractors’ ability to protest federal agencies’ award decisions, including by rolling back their rights to file bid protests in federal court.

Currently, companies who believe an agency mishandled a contract award have two independent forums to file protests: the Government Accountability Office and the U.S. Court of Federal Claims (COFC). But some firms opt to take their cases to both.

If, for example, GAO denies or dismisses their protest, they still have the right to file a new claim at the COFC.

DoD’s proposal would essentially eliminate that option by requiring contractors to bring cases to COFC within 10 days of the agency’s award decision: the same deadline used by GAO. Since GAO has up to 100 days to sustain or deny a protest, a company could not wait and use the court as a backstop if it loses its case at GAO.

Keep reading this article at: https://federalnewsradio.com/defense-main/2018/05/pentagon-seeks-to-limit-bid-protests-in-federal-court/

Court upholds ‘draconian and perverse’ SBA SDVOSB ownership rules

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The SBA’s strict SDVOSB ownership rules can produce “draconian and perverse” results, but are nonetheless legal, according to a federal judge.

In a recent decision, the U.S. Court of Federal Claims condemned the SBA’s SDVOSB unconditional ownership requirements, while holding that the SBA was within its legal rights to impose those requirements on the company in question.

The Court’s decision emphasizes the important differences between the SBA and VA SDVOSB programs, because the Court held that although the company in question didn’t qualify as an SDVOSB under the SBA’s strict rules, it was eligible for VA SDVOSB verification under the VA’s separate eligibility rules.

The Court’s decision in Veterans Contracting Group, Inc. v. United States, No. 17-1188C (2017), is the third in a series of ongoing battles between the SBA and a self-certified SDVOSB.  The cases involved an Army Corps of Engineers IFB for the removal of hazardous materials and the demolition of buildings at the St. Albans Community Living Center in New York.  The Corps set aside the IFB for SDVOSBs under NAICS code 238910 (Site Preparation Contractors).

Keep reading this article at: http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/court-upholds-draconian-and-perverse-sba-sdvosb-ownership-rules/

Breaking News: On Jan. 30, 2018, the SBA released its proposed consolidated rule for SDVOSB eligibility.  See details here: http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/sba-proposes-consolidated-sdvosb-eligibility-rules/

GSA’s $50 billion IT contract delayed again

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The $50 billion Alliant 2 IT contract is again on hold following a third series of bid protests, this time in the U.S. Court of Federal Claims.

Tysons Corner, Virginia-based OBXTek filed a lawsuit in November with the U.S. Court of Federal Claims, and Falls Church, Virginia-based Centech did the same on Dec. 26—days after its bid protest and others were dismissed by the Government Accountability Office.

A General Services Administration (GSA) spokesperson told Nextgov the agency “is honoring a performance stay as a result” of the latest protest, the contract’s third delay due to protests. In November, GSA awarded 61 vendors a piece of Alliant 2, a governmentwide contract that will supply IT goods and services to agency networks for the next decade.

Keep reading this article at: http://www.nextgov.com/it-modernization/2018/01/gsas-50-billion-it-contract-delayed-again/144925/

COFC rejects SBA decision that future conditions on stock ownership destroy ‘unconditional ownership’

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Veteran-owned small businesses have long grappled with seemingly benign drafting inconsistencies between Small Business Administration (SBA) and Department of Veterans Affairs (VA) regulations that can leave a business qualified as a Service-Disabled Veteran-Owned Small Business (SDVOSB) by VA standards, but not at the SBA (or vice versa).

One such puzzler is the requirement for unconditional ownership by a service-disabled veteran, a requirement that is common to both SBA and the VA, but for which the VA provides a substantially more detailed definition.

  • Compare: 13 C.F.R. § 125.12 (“A concern must be at least 51% unconditionally and directly owned by one or more service-disabled veterans.”)
  • With: 38 C.F.R. § 74.3(b) (adding that “[o]wnership must not be subject to conditions precedent, conditions subsequent, executory agreements, voting trusts, restrictions on assignments of voting rights, or other arrangements causing or potentially causing ownership benefits to go to another (other than after death or incapacity)”).

This additional detail has created some conflicting results, which is not helped by divergent interpretations of unconditional at SBA and the Court of Federal Claims, all of which has left many a veteran business owner (and more than a few legal practitioners) scratching their heads.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=655422

Federal court interprets SDVOSB “unconditional ownership” less strictly than SBA

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The Court of Federal Claims recently issued an opinion that defines “unconditional ownership” of an SDVOSB in a more relaxed manner than the SBA, creating a split of authority on the issue.

The Court, rejecting SBA precedent, held that certain restrictions on ownership of an SDVOSB by a service-disabled veteran are acceptable under the SBA’s unconditional ownership regulations. In particular, the SDVOSB company can retain a right of first refusal that would allow it to purchase the shares of the veteran upon death, incompetency, or insolvency, and that right does not result in a violation of the unconditional ownership requirement.

With the Court and the SBA’s administrative judges staking out different positions, what should SDVOSBs do?

In Veterans Contracting Group, Inc. v. United States, No. 17-1015C, (Fed. Cl. Aug. 22, 2017), the Court examined the same facts that the SBA Office of Hearings and Appeals did in a recent decision addressed in the SmallGovCon blog post of September 19, 2017.  And, examining the very same facts, the Court reached the opposite conclusion.

Keep reading this article at: http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/federal-court-interprets-sdvosb-unconditional-ownership-less-strictly-than-sba/

GAO or the court: Does where you file your protest make a big difference? (Part 2 of 2)

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In two recent cases, disappointed contractors protested when agencies failed to request clarifications or open discussions. Both Defense Base Services and Level 3 argued that the issues with their proposals could have been remedied if given the chance. GAO denied both offerors’ protests. Yet when Level 3 persisted at the COFC, the judge concluded that an agency’s failure to request clarifications constituted an abuse of discretion. The cases illustrate the difference in the way GAO and the COFC view clarifications and discussions, and shed insight for offerors under similar circumstances.

Defense Base Services Heads to GAO

In the case of Defense Base Services (DBSI), the contractor protested at GAO when the Navy excluded them from phase 2 of a two-phase design-build competition for construction projects in Guam. DBSI felt that the agency had improperly evaluated its phase 1 proposal. In response, the Navy argued that DBSI had failed to include a legally binding teaming agreement in their proposal, a necessary component as specified in the RFP. DBSI conceded that their proposal was missing this critical piece, but felt that the Navy’s Contracting Officer should have asked for clarifications, which would have allowed them to remedy the defect.

GAO took the stance that clarifications were not appropriate for two reasons. First, clarifications were optional with the agency. Second, they were not appropriate here because the missing agreement was additional substantive information and not a mere clarification. The solicitation had warned offererors that proposals deemed unacceptable in terms of technical evaluation would be removed from the competition. So ultimately, GAO sided with the agency.

GAO or the court: Does where you file your protest make a big difference? (Part 1 of 2)

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An offeror protested an award by the U.S. Forest Service when the agency’s solicitation appeared to favor a competitor, but the protest was denied at GAO. The Simplex Aerospace decision, in comparison to the recent case of PSI, raises the question of whether disappointed contractors are better served by filing protests with GAO or the Court of Federal Claims. Does the decision of where to file really mean the difference between a win and a loss in the world of Government contracts?

The Implications of Simplex’s Aerospace Case at GAO

When Simplex Aerospace challenged the U.S. Forest Service’s solicitation to convert a C130 plane to drop retardant on forest fires, they took their protest to GAO. It appeared to the contractor that the agency had written their solicitation for services around the product of a competitor. The case highlights the tension between prescribing narrow versus broad specifications, and balancing an agency’s needs against legal requirements for a competitive procurement process.

The U.S. Forest Service’s narrow specifications prompted Simplex Aerospace to protest. Among other constraints, the protestor cited the agency’s requirement for crash survivability, which was in excess of the FAA standard. Additionally, they asserted that the agency’s required excessive accuracy in measuring the levels of fire retardant in the aircraft’s tanks.. These requirements appeared to mimic a competitor’s product, and thus the protestor felt the solicitation was unfair.

Keep reading this article at: https://petrillopowell.wordpress.com/2017/10/03/gao-or-the-court-does-where-you-file-your-protest-make-a-big-difference/

Formal claim required to appeal negative performance evaluation

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For federal contractors, it is not an exaggeration to say that performance evaluations are the lifeblood of the business.

A less-than-satisfactory evaluation in the Contractor Performance Assessment Reporting System (CPARS) affects far more than just the agency’s assessment of performance on a particular project.  A negative evaluation follows a contractor around – impacting the ability to obtain future contracts due to the specter negative past performance ratings.

The good news for contractors is that the ability to challenge and – if successful – reverse negative CPARS evaluations is a quickly developing area of government contracting law.

The first step in any successful CPARS challenge involves meaningful participation in the evaluation process.  The Federal Acquisition Regulation (FAR) Part 42.15 entitles contractors to submit comments and receive an agency review of a disputed performance evaluation.  Specifically, contractors are entitled to submit comments, rebuttal statements, and/or other information in response to the agency’s evaluation.  The agency must then review those comments at a level above the contracting officer and update the evaluation, if necessary.

Keep reading this article at: https://governmentcontracts.foxrothschild.com/2017/09/articles/contract-claims/cpars-challenge-primer-formal-claim-required-to-appeal-negative-performance-evaluation/

CORs weren’t authorized to order additional work, so contractor goes unpaid

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A contractor’s performance of extra work outside the scope of the contract may go uncompensated if a contractor does not receive appropriate authorization in accordance with the contractual terms.

A Court of Federal Claims decision reinforced that a contractor should only perform work required under the terms of the federal contract or directed by an authorized government agent in accordance with the contractual terms. And importantly, a Contracting Officer’s Representative isn’t always authorized to order additional work – even if that person acts as though he or she has such authority.

The Court’s decision in Baistar Mechanical, Inc., v. United States, No. 15-1473C (2016) involved a ground maintenance and snow removal services contract for the Armed Forces Retirement Home’s property in Washington, D.C., which included 270-acre property providing residence to several hundred retired military members. Baistar successfully bid on and was awarded the contract, which was executed in December 2011. The contract contemplated a five-year period of performance beginning on December 16, 2011.

Keep reading this article at: http://smallgovcon.com/u-s-court-of-federal-claims/cors-werent-authorized-to-order-additional-work-so-contractor-goes-unpaid/

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