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On November 18, the Government Accountability Office ("GAO") released its much-anticipated Bid Protest Annual Report to Congress for Fiscal Year 2024, which was submitted to Congress on November 14. GAO's annual report is required under the Competition in Contracting Act of 1984 ("CICA") and provides the government contracting community with good insight into GAO's bid protest function, including key statistics and GAO's most prevalent grounds on which it sustained bid protests during FY24. [1]

Government contractors and other industry professionals that become familiar ...

On November 12, the Department of Defense, General Services Administration, and the National Aeronautics and Space Administration (together, the "FAR Council") issued an interim rule, effective November 12, 2024, to amend the Federal Acquisition Regulation ("FAR") clause regarding System for Award Management ("SAM") registration. The interim rule is welcome news for contractors of all sizes, as the prior version has resulted in contractors being ineligible on what some have called a technicality.

As many contractors are aware, the SAM registration requirements under FAR ...

With just a week to go in FY24, federal agencies are rushing to spend those "use it or lose it" dollars. And while there are a number of reasons that support filing a bid protest when you're an unsuccessful offeror – this time of year or at any other time – what about when you win the contract?  Well, if your company is awarded a contract and an unsuccessful offeror challenges your win, you should consider intervening in the bid protest.

Virtually every federal contractor knows how difficult it is to win a government contract. Indeed, many contractors often start pursuing larger contracts ...

The Small Business Administration ("SBA") recently issued a proposed rule that changes the effect of a concern's size recertification following mergers and acquisitions ("M&A") activity. Notably, the proposed rule is ostensibly an omnibus proposal as it covers a host of issues under SBA's socio-economic contracting programs. The proposed rule, for example, includes changes to SBA's negative control affiliation provisions (discussed here), joint venture rules, mentor-protégé rules, and others. Comments on the proposed rule are due on or before October 7, 2024.

SBA's ...

Recently, the Small Business Administration ("SBA") issued a proposed rule, which could significantly alter the status quo for permissible negative control. Impacted small businesses and their minority shareholders and investors should consider submitting comments to ensure that SBA's final rule provides sufficient clarity and flexibility so as not to upend current common practices when drafting operating agreements or stifle investment. Comments on the proposed rule are due on or before October 7, 2024.

Prior to diving into the proposed rule and its ripple effect, a recent ...

Maynard Nexsen Government Contracts attorneys Joshua Duvall and Macy Climo take a deep dive into a recent Government Accountability Office (“GAO”) decision that highlights the Small Business Administration’s (“SBA”) regulations relating to agency evaluations of a mentor-protégé joint venture’s past performance and experience, including under the SBA’s joint venture workshare rule.

Check out the complete article: GAO Decision Highlights Agency’s Evaluation of Mentor-Protégé Joint Venture, But Could Unintentionally Lead Industry Astray on ...

Government Solutions and Cybersecurity shareholder Joshua Duvall recently published (with L3Harris attorney Sandeep Kathuria) a Law360 Expert Analysis article entitled “How DOD Can Improve Flexibility Under Proposed Cyber Rule." The article discusses the DOD's recent proposed rule for its Cybersecurity Maturity Model Program, or CMMC, focusing on POA&Ms – plan of action and milestones – and what DOD can do to inject flexibility in that process.

The full Expert Analysis article, “How DOD Can Improve Flexibility Under Proposed Cyber Rule," was published by Law360 on ...

Today, the Federal Acquisition Regulatory Council ("FAR Council") – Department of Defense, General Services Administration, and National Aeronautics and Space Administration – published its Semiannual Regulatory Agenda. As the document states, the agenda provides interested parties (e.g., government contractors, industry stakeholders, etc.) an opportunity to participate in the federal rulemaking process. Under the Administrative Procedure Act ("APA"), agencies must publish proposed rules in the Federal Register (notice) and allow interested parties to ...

The recent bid protest decision in ELS, Inc., B-421989, December 21, 2023, 2023 CPD highlights an important aspect of bid protest litigation before the U.S. Government Accountability Office ("GAO"): task order jurisdiction.

As many contractors are aware, and generally, GAO has jurisdiction over task orders where: (a) the value of the order exceeds $25 million (DOD/NASA) or $10 million (civilian) and (b) the order increases the scope, period, or maximum value of the underlying IDIQ contract. In other words, and excluding (b), where the value of the task order is below the monetary ...

The Department of Justice ("DOJ") recently announced a $1.75 million false claims settlement with a contractor that "improperly obtained government contracts that were set-aside for small businesses." The DOJ settlement highlights the criticality of accurate small business representations and certifications in government contracting, and in particular, those that may arise during or after an M&A transaction involving a small business.

Briefly, the False Claims Act ("FCA") is the primary enforcement tool in the government's arsenal to combat fraud in government ...

Last week, the U.S. Government Accountability Office ("GAO") published its much anticipated Bid Protest Annual Report to Congress for Fiscal Year 2023. GAO's annual report is required under the Competition in Contracting Act of 1984 ("CICA") and provides the government contracting community with good insight into GAO's bid protest function. [1] Despite being just four pages, GAO's report is highly informative because it showcases key bid protest statistics and GAO's most prevalent grounds on which it sustained bid protests during FY23.

To that end, government contractors that ...

In April 2023, the FCC established the Space Bureau, reorganizing the functions of the Satellite Division in the FCC’s former International Bureau (IB) into a new, stand-alone bureau, with an eye towards promoting a competitive and innovative global satellite and space-based communications marketplace.   

Yesterday, in furtherance of this objective, the Space Bureau launched its Transparency Initiative, with the goal of providing interested parties with user-friendly information and guidance regarding the Commission’s space station and earth station ...

We recently wrote about a federal court decision in Ultima Servs. Corp. v. U.S. Dep't of Agric., which held that the "rebuttable presumption" of social disadvantage under Small Business Administration's ("SBA") 8(a) Program ("8(a) Program") was unconstitutional. Following the court's decision, SBA paused all applications for its 8(a) Program and provided a short update on certify.SBA.gov.

Today, the SBA, in conjunction with the National 8(a) Association, held a webinar to provide another update on how SBA plans on moving forward in light of the court's decision in Ultima. This ...

On August 22 & 23, 2023, Joshua Duvall will be participating in the 2023 National HUBZone Conference in Leesburg, VA as both a presenter and panel moderator. On August 22, Josh will present Bid Protests 101, and on August 23, Josh will moderate a panel called Navigating Regulatory and Policy Updates in Government Cyber Security Protocols: Ensuring Compliance and Strengthening Resilience.

The 2023 National HUBZone Conference is a 2-day event packed with matchmaking, networking, and workshops. This annual conference emphasizes the importance of community collaboration to ...

On July 19, 2023, the U.S. District Court for the Eastern District of Tennessee held in Ultima Servs. Corp. v. U.S. Dep't of Agric. that the "rebuttable presumption" of social disadvantage under Small Business Administration's ("SBA") 8(a) Business Development Program ("8(a) BD Program") violated a plaintiff's Fifth Amendment right to equal protection under the law. The Court enjoined the SBA from using the rebuttable presumption in administering SBA’s 8(a) BD Program. As a result, discussed further below, both future and current 8(a) BD Program participants will need to ...

The government's fiscal year ("FY") is coming to an end on September 30, which means the need for agencies to spend "use it or lose it" contracting dollars will steadily increase over the next couple of months. And, while the contracting space typically sees a concomitant uptick in bid protests in September and October due to the influx of late Q4 contract awards, this year, we may also see an uptick in something else due to a recent Small Business Administration ("SBA") regulatory update: sole source 8(a) awards.

As many contractors may recall, in 2020, the Department of Defense ("DOD ...

Late last month, the Biden administration launched the 8(a) MAS Pool Initiative. This initiative is a joint effort between the U.S. Small Business Administration (SBA) and the U.S. General Services Administration (GSA) to help small disadvantaged businesses (SDBs) participating in the 8(a) Business Development Program gain access to more federal contracts in GSA’s Multiple Award Schedule (MAS) Program.

The MAS Program is part of the GAO’s Federal Supply Schedule (FSS) and seeks to issue long-term, government-wide contracts that provide federal, state, and local ...

Recently, Cherissa Tamayori, Director of Acquisition and Senior Contracting Official for the Defense Innovation Unit (DIU), joined U.S. military and defense industry experts from around the globe at the Navy League’s Sea-Air-Space conference in April 2023 to discuss innovation and adoption in procurement strategies in the Department of Defense (DoD), particularly by leveraging commercial partners.

Tamayori noted a shift across the DoD shift to adopt non-traditional forms of contracting, including the use of other transaction authorities, or OTAs, and the use of the ...

On Tuesday, the United States Court of Appeals for the Federal Circuit issued its decision in Harmonia Holdings Group, LLC v. United States, No. 20-1538, a case that has garnered national attention for its potential to alter the way the United States Court of Federal Claims applies the so-called “waiver rule” first articulated in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1038 (Fed. Cir. 2007). Brad English and Emily Chancey represented Harmonia in this case and were excited for the favorable ruling their client received.

The case involved a $325 million IT services ...

Yesterday, the Department of Defense ("DoD") announced Version 2.0 of the Cybersecurity Maturity Model Certification ("CMMC") Program. Notably, CMMC 2.0 maintains the original CMMC 1.X Program's goal of safeguarding sensitive information, while:

• Simplifying the CMMC standard and providing additional clarity on cybersecurity regulatory, policy, and contracting requirements;
• Focusing the most advanced cybersecurity standards and third-party assessment requirements on companies supporting the highest priority programs; and
• Increasing Department oversight of ...

Last week, the Federal Acquisition Regulation ("FAR") Council published a final rule amending the FAR to implement a portion of the National Defense Authorization Act for Fiscal Year 2017 ("2017 NDAA"), which requires examples of failure to make good faith efforts to comply with a small business subcontracting plan.

The final rule also provides that "failure to make a good faith effort to comply with the plan may result in the assessment of liquidated damages per FAR 52.219-16, Liquidated Damages—Subcontracting Plan," and requires that "all indirect costs, with certain ...

Most government contracts include a clause giving the government the right to terminate the contract, or any part thereof, for its sole convenience “when it is in the best interests of the government.” FAR Parts 49, 12, 13, and 31 establish the regulatory requirements for termination and settlement of government contracts. The mechanics are specific. Upon receipt of the notice of termination, the prime contractor should immediately stop all work and terminate all subcontracts related to the terminated portion of the prime contract. Inventory disposal schedules must be ...

OTA Overview

The Department of Defense can issue Other Transaction Agreements (“OTA”) for research, prototypes, and production. 10 U.S.C. § 2371b. Research OTAs are available for basic, applied, and advanced research projects. The DoD may also acquire prototypes using OTAs. Production OTAs are only permitted where the government has previously acquired a prototype under an earlier OTA. Additionally, the solicitation for the original prototype must have notified offerors that the government reserved the right to issue a follow-on Production OTA.

OTAs at the GAO

In a ...

Maynard Nexsen shareholders Stephen Davis and David Block joined Maynard's Andy Watson and Jon Levin in hosting a webinar on June 29th. During the 60 minute program, they provided listeners with an in-depth discussion of common pitfalls related to the Fair Labor Standards Act, updates to the Federal Immigration Law as well as other updates in the labor and employment industry. The Government Solutions Webinar Series is a monthly program targeted at assisting government entities with the strategies of navigating the laws of government contracts. For more details on the program ...

Brandon Smith of Anglin, Reichmann, Snellgrove & Armstrong, P.C. joined Jon Levin in hosting a webinar on May 25th. During the 60 minute program, they provided listeners with a discussion of Business Systems: Compliance Requirements for Large and Small Businesses. The Government Solutions Webinar Series is a monthly program targeted at assisting government entities with the strategies of navigating the laws of government contracts. For more details on the program, please contact Ellery Miller.

Be sure to watch the webinar here, as well as download the presentation from the ...

We published a prior alert on several of President Obama’s Executive Orders affecting government contractors. This is an update to that alert regarding the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) final rule implementing EO 13665 – Non-Retaliation for Disclosure of Compensation Information.

For good reason, employers often adopt a policy of confidentiality when it comes to employee compensation. The obvious business reasons for such a policy include that it tends to reduce inter-employee conflicts and other business ...

Brad English and Hobie Frady presented a webinar on March 16 titled Preserve Your Right to Obtain an Equitable Adjustment: Practical Legal and Accounting Advice Before a Change Occurs. The session addressed the following issues related to changes:

• What is a change
• Types of changes
• Formal changes
• Constructive changes
• Authority, Notice, and Duty to Proceed
• Cardinal Changes
• Quantum
• Claims certification and appeals

Brad is a Shareholder and member of the Government Contracts & Bid Protests practice, as well as several practices in the Litigation section at Maynard Nexsen and Gale. He ...