Each year, Congress presents us in Title VIII of the National Defense Authorization Act (NDAA) a potpourri of procurement reforms, changes, and additions. Some are effective immediately, while some are bound for rulemaking and regulation and surface years from enactment. Some require analyses, reports, and studies which have no immediate impact but provide a roadmap that can and should be used by government contractors in their business planning. Finally, some provisions of the NDAAs just wither away and have no impact whatsoever. Nineteen days before the Trump Administration ended, the US Senate followed the US House of Representatives in overriding the President’s veto of the William (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (H.R. 6395) (FY2021 NDAA), making it law on January 1, 2021.  Happy New Year! As for its Title VIII, the FY2021 NDAA is no different from its predecessors in its procurement potpourri. Here’s a tour of key provisions you oughta know.

Continue Reading Here to Remind You of the Key Provisions of the Fiscal Year 2021 National Defense Authorization Act – You Oughta Know!

On April 8, 2020, a final rule (the Rule) was issued amending the Defense Federal Acquisition Regulation Supplement (DFARS) and implementing Section 852 of the National Defense Authorization Act (NDAA) for FY 2019 to provide for accelerated payments to DoD’s small business prime contractors and subcontractors supporting DoD contracts. The Rule applies to contracts at or below the simplified acquisition threshold (SAT) – currently $250,000 for DoD contracts – and to contracts for the acquisition of commercial items including commercially available off-the-shelf (COTS) items. With an estimated 96% of DoD contracts valued at or under the SAT, the rule appears to reflect DoD’s recognition that it is in the best interests of the government and small business contractors alike to apply this Rule to contracts at or below the SAT and to accelerate payments to small business prime contractors and subcontractors.

Continue Reading DFARS Final Rule Establishes Goal of 15-Day Accelerated Payments for Small Business Contractors

On August 6, 2014, plaintiff-relator Andrew Scollick filed a complaint in the United States District Court for the District of Columbia against eighteen defendants for multiple violations of the False Claims Act (“FCA”) in connection with an alleged scheme to submit bids and obtain millions of dollars in government construction contracts by fraudulently claiming or obtaining service-disabled veteran-owned small business (“SDVOSB”) status, HUBZone status, or Section 8(a) status, when the bidders did not qualify for the statuses claimed. United States ex. rel. Scollick v. Narula, et al., No. 14-cv-1339 (D.D.C.). Unique in this case were not the claims against the contractors, who were alleged to have falsely certified their status or ownership. Rather, what set this case apart was that Scollick also named as defendants the insurance broker who helped secure the bonding that the contractor defendants needed to bid and obtain the contracts, and the surety that issued bid and performance bonds to the contractor defendants. Scollick alleged that the bonding companies “knew or should have known” that the construction companies were shells acting as fronts for larger, non-veteran-owned entities violating the government’s contracting requirements—and thus the bonding companies should be held equally liable with the contractors for “indirect presentment” and “reverse false claims” under the FCA.

Continue Reading The Sword of Damocles Hangs Over Miller Act Sureties and Brokers: Scollick Case Stayed Sixty Days for Mediation, but Outcome Remains Uncertain

Changes to the Federal Acquisition Regulation’s (FAR) small business subcontracting rules have been slow in coming, but the FAR Council is finally catching up with the Small Business Administration (SBA) in making regulatory modifications to implement a few changes intended to help prime contractors reach their small business subcontracting goals as required by Section 1614 of the National Defense Authorization Act of 2014 (2014 NDAA). Specifically, the changes focus on aiding prime contractors possessing an individual subcontracting plan for a contract with a single executive agency. Now, in such instances, the prime contractor will receive credit toward its subcontracting goals for awards made to small business concerns employed at any tier by subcontractors through their respective subcontracting plans. This should be helpful news to prime contractors.

Continue Reading The FAR Council and the Hare – The Race to Credit for Lower-Tier Small Business Subcontracting

On Dec. 4, 2018, the Federal Acquisition Regulatory Council finally released a proposed rule to implement changes to certain small business subcontracting regulations required by the 2013 National Defense Authorization Act (NDAA). 83 Fed. Reg. 62540 (Dec. 4, 2018). This is a welcome, if not long-overdue sign of progress. Over the last half-decade since the

By now, we have all read the horror stories of federal employees who are either furloughed or forced to work without pay during this historic shutdown. Less well-known, however, is the impact this shutdown has had on small business contractors who rely on federal government contracts for much – if not all ‒ of their revenue. Whereas large government contractors may have ample cash reserves for a situation like this, small businesses are likely less fortunate. In fact, many small businesses hire highly skilled, in-demand personnel specifically in support of their government contracts. Unfortunately, with much of the government shuttered and its coffers empty, these highly skilled personnel, and the companies for which they work, find themselves emptyhanded and operating in the red. Absent a stream of revenue, small businesses cannot pay the employees they specifically hired for the contracts that are now unfunded. While many small business contractors have been able to weather the first few weeks of this shutdown by either diverting these employees to other projects or using vacation or sick leave, many thousands of contractors are now facing grim choices as the shutdown enters its fourth week. Simply stated, these companies are in real danger not only of losing those employees hired to support existing contracts, but of losing the opportunity to leverage those employees to compete for future contracts. To make matters worse, unlike federal employees who will likely receive back pay, most if not all contractors will not be reimbursed for the revenue lost during this time of political chicken.

Continue Reading Small Business, Big Problems: Navigating the Government Shutdown as a Small Business Contractor