On October 25, 2023, the Department of Defense (DoD) published a Proposed Rule amending the Department of Defense Federal Acquisition Regulation Supplement (DFARS) and permanently authorizing the DoD Mentor-Protégé Program (DoD MP Program). In addition, the Proposed Rule makes several changes to the program—the most prominent of which include (a) lowering barriers to entry and (b) adding additional benefits for prospective mentors and protégés. Before we dive in to the Proposed Rule, a brief history of the DoD MP Program is in order.

Continue Reading DoD Mentor-Protégé Program Solidified under Proposed Rule

Welcome, dear readers, to the height of protest season! Around the end of the federal fiscal year, the number of contract awards being made increases greatly. Which means so do the number of protests challenging those award decisions. If you are currently asserting or defending a protest (or think you will be before October is over), you are certainly not alone. Unfortunately, if you are somewhat confused about the details, mechanics, timing and procedures relating to protests—well, you also are not alone. This is undoubtedly one of the most complex and confusing areas of government contracting. But fear not! We’re here to help clear up the confusion and get you on the right track, to ensure you obtain those awards improperly awarded to a competitor and maintain those awards that you fairly won. To that end, below is a summary list of the 10 most common bid protestor mistakes, with links to more detailed information about each mistake and how to avoid it!

Continue Reading Avoiding Common Bid Protest Mistakes: A Seasonal Guide to Our Top 10 Protest Don’ts!

Just in time for the season of new backpacks, lunch boxes, and school supplies, the Office of Management and Budget (OMB) has assigned some homework to contractors looking to participate in Federal financial assistance programs for infrastructure. Consistent with its Build America, Buy America Act (BABA) mandates, on August 23, 2023, OMB published a Final Rule revising its Guidance for Grants and Agreements to implement BABA (Final Rule). This Final Rule follows the Proposed Rule of February 9, 2023 (Proposed Rule), which we previously discussed, in which OMB proposed creating a new part 184 in 2 Code of Federal Regulations (CFR), and revising 2 CFR 200.322, Domestic preferences for procurements, to implement the requirements in Section 70914 of BABA. With the guidance becoming effective October 23, 2023, contractors should not put off studying these requirements if they want to be prepared for the BABA tests that will undoubtedly come as agencies begin to implement this guidance.

Continue Reading Back to School: Time to Study the OMB Final Rule Implementing BABA

In what is quickly becoming an epic saga centered around the repercussions from the Ultima Servs. case, 8(a) program participants should have received a direct communication from the Small Business Administration (SBA) on Monday (August 21), providing direction on next steps regarding social disadvantage eligibility determinations. As that communication stated, if your firm’s 8(a) eligibility was based on an individual or individual(s) who relied upon the rebuttable presumption of social disadvantage, the firm will now be required to submit a social disadvantage narrative. (Entity-owned firms, such as firms owned by Indian tribes, Alaska Native Corporations, or Native Hawaiian Organizations, will not need to submit narratives; nor will 8(a) participants who previously established their social disadvantage through submission of a social disadvantage narrative.) Each owner claiming disadvantaged status must submit a narrative. This is all consistent with our previous coverage on this topic. What is new, however, is that there is now some more specific guidance on timing and how this process is going to play out.

Continue Reading The Continuing Saga of 8(a) Social Disadvantage Eligibility

For those of you eagerly awaiting news on the recent shake-up of the Small Business Administration’s (SBA) 8(a) program, I have updates! (For those of you who have not been following, you can catch up on the legal context and background here.) Consistent with industry predictions, SBA will now require all applicants and certain existing 8(a) program participants to submit a social disadvantage narrative and prove social disadvantage by a preponderance of the evidence.  Entity-owned firms, such as firms owned by Indian tribes, Alaska Native Corporations, or Native Hawaiian Organizations will not need to submit narratives; nor will 8(a) participants who previously established their social disadvantage through submission of a social disadvantage narrative. For any company that previously relied on the rebuttable presumption, though, you have some work ahead of you.  Read on for more detail.

Continue Reading SBA Confirms Social Disadvantage Narrative Is Required for 8(a) Program Participants

Effective July 21, 2023, DHS is operating under new rules for government contractors on safeguarding Controlled Unclassified Information (CUI) and reporting cyber incidents. In this Feature Comment for The Government Contractor, Alex Major describes how government contractors can best navigate DHS’s wide-reaching cybersecurity and data privacy requirements.

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As many GovCon news junkies following recent events had predicted, the Small Business Administration (SBA) just “temporarily suspended” new 8(a) application submissions. For those of you who haven’t been following along the past two weeks, this critically important development might be a little confusing. Let’s get you up to speed.

Continue Reading SBA Cries Time Out! Temporary Suspension of New 8(a) Applications Following <em>Ultima Servs.</em>

On June 2, 2023, the FAR Council issued an Interim Rule to implement the prohibition on having or using TikTok or any successor application or service developed or provided by ByteDance Limited (covered application). Importantly, the prohibition applies not only to Government-issued devices but encompasses contractor and contractor employee-owned devices (e.g., employee devices used as part of a bring-your-own-device program) as well. The Interim Rule took immediate effect and requires new FAR clause FAR 52.204-27, Prohibition on a ByteDance Covered Application, to be included in solicitations issued on or after June 2, 2023. In addition, solicitations issued before the effective date were required to be amended by July 3, 2023, provided that award of the resulting contract(s) occurs on or after the effective date. Existing indefinite-delivery, indefinite-quantity contracts were required to be modified to include the new clause by July 3, 2023, to apply to future orders. Finally, if exercising an option or modifying an existing contract to extend the period of performance, contracting officers must include the clause. In short, this clause will soon be in most if not all Federal government contracts. Contractors should take action now to ensure that they are prepared to comply with these requirements and that employees are familiar with and trained regarding the prohibition.

Continue Reading TikTok Dances Off of Contractor IT Devices—Interim Rule Prohibits ByteDance Limited Applications

The Government Accounting Office (GAO) recently issued MiamiTSPi, LLC-Reconsideration, an important decision concerning a procuring agency’s obligation to consider, when evaluating a joint venture, the experience of not only the joint venture itself but also the individual joint venture partners. While many contractors have historically viewed this regulatory requirement as an advantage—allowing small, protégé joint venture partners to rely on and leverage the experience of their “big” joint venture partners—this new opinion turns that thinking on its head. Here, GAO held that an agency’s favorable evaluation of a joint venture’s “Similar Experience” was unreasonable (and the reconsideration of the award therefore required) because the agency did not consider the joint venture’s failure to submit examples of the managing member’s individual past experience.

Continue Reading Blessing or Burden? GAO Decision Casts New Light on Joint Venture Experience

Parties litigating False Claims Act (FCA) cases have long struggled with a thorny question around the essential element of scienter (the defendant’s intent, or state of mind): What/how much does a contractor need to know when submitting an invoice for payment for the related claim to be considered knowingly false when made? When that question arises in FCA litigation, a court’s determination of that essential element of scienter/knowledge often pivots on what the judge believes matters more:

(A) The defendant’s subjective belief at the time a claim is made; or

(B) An objective textual reading of what a person may have known or believed when a claim is made.

Continue Reading The False Claims Act’s Fuzzy Scienter Element Brought into Sharp Focus