Hope for offerors who win a multiple-award IDIQ contract and want to protest an improper award to a competitor
May 16, 2016 By cs
You just learned your company is one of several winners of a multiple-award IDIQ contract. You also learned one of your competitors, which should have been ineligible, is also an awardee. So, as things stand, you'll have to split the contract — and compete for orders — with that competitor.
Can you file a protest challenging the improper award to your competitor? Until last week, the answer was "no." Now the answer is "maybe" — but only if you go to the Court of Federal Claims (COFC).
To pursue a protest, the protester must establish that it is an interested party, by showing that (1) it is an actual or prospective offeror; and (2) its direct economic interest would be affected by the award of, or failure to award, the contract in question. (31 U.S.C. § 3551(2)(A); 4 C.F.R. § 21.0(a)(1)) Since its decision in Recon Optical, Inc., et al., B-272239, July 17, 1996, 96-2 CPD ¶ 21, GAO has consistently held that winners of multiple-award IDIQ contracts are not interested parties for purposes of a protest, but it has typically done so while implying that, in rare circumstances, an awardee might be able to show it has an economic interest sufficient to make it an interested party.
GAO's most recent decision, however, articulated what appears to be a categorical prohibition on awardee protests.
Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/05/hope-for-awardee-protesters/
Filed Under: Contracting Tips Tagged With: COFC, Court of Federal Claims, GAO, IDIQ, interested party, MAC, multiple award contract, protest
Bidders await word from SOCOM after court ruling
March 4, 2016 By cs
Tampa defense contractors are awaiting a response from U.S. Special Operations Command (SOCOM) to a federal court ruling last week that the command overreached by calling for a do-over on $900 million worth of awards on a problem-plagued contracting program.
At stake is millions of dollars in government contracts and a significant investment of time and money by contractors. But often, progress is tied up in a system where a protest can extend an existing contract or lead to a new one.
As government contracting dollars dry up, protests have increased, according to a study last year by the nonpartisan Congressional Research Service.
The latest example came last week from a Washington, D.C., court that few outside government contracting have heard about.
Court of Federal Claims Judge Nancy Firestone ruled that SOCOM took action "not reasonable under the circumstances" when it decided to redo an award that allowed four companies to bid on up to $900 million in services over a five-year period.
Keep reading this article at: http://www.tbo.com/list/military-news/bidders-await-word-from-socom-after-court-ruling-20160227/
Filed Under: Contracting News Tagged With: bid protest, bid rejection, contract extension, Court of Federal Claims, delays, influence, SOCOM
Live reports, tweets, and webinar offered on VA's Kingdomware Supreme Court case
February 18, 2016 By cs
On Feb. 22, 2016, the U.S. Supreme Court will be hearing oral arguments in a controversy that deals with whether federal agencies are doing enough to assure that their contracts go to businesses run by veterans, especially service-disabled veterans.
You'll be able to access live reports, a Twitter feed, and even a free webinar on the Court's hearing. More about that in a moment, but first some background and information on why this case is so significant.
The case dates back to November 27, 2012, when the U.S. Court of Federal Claims ruled that the Department of Veterans Affairs (VA) has discretion to procure goods and services from GSA's Federal Supply Schedule (FSS or simply GSA Schedule) without first considering a set-aside acquisition for service-disabled veteran-owned small businesses (SDVOSBs) or veteran-owned small businesses (VOSBs).
The Court of Federal Claims ruling represented a departure from several U.S. Government Accountability Office (GAO) decisions that stated the VA should comply with the Veterans Benefits, Health Care, and Information Technology Act of 2006 before conducting a GSA Schedule buy. The 2006 Act created the so-called "Veterans First" contracting program that gives priority to SDVOSBs and VOSBs in the VA's acquisitions. Despite GAO's opinions, the VA instructed its contracting officers to not apply the "Veterans First" principles to GSA Schedule contracting.
A Winding Road to the Supreme Court
The company bringing the challenge, Kingdomware Technologies, Inc., appealed the decision by the Court of Federal Claims. But the U.S. Court of Appeals for the Federal Circuit held that the purpose of the "Veterans First" rule is to ensure that the VA meets its SDVOSB goals, and that so long as the VA meets its SDVOSB goals, it is free to procure services and supplies from the Federal Supply Schedule without first considering a SDVOSB procurement. This lead the Kingdomware firm to take its plea to the Supreme Court.
The U.S. Department of Justice urged the Supreme Court to deny review, contending that the Federal Circuit got it right. The Supreme Court nevertheless granted review.
Then the VA surprised everybody. It abandoned the argument that the statutory preference for veteran-owned companies applies only if the VA has not met its SDVOSB or VOSB contracting goals. That position had proven to be successful in its arguments before both the Court of Federal Claims and the Federal Circuit. The government's new argument was that the statute's use of the term "contract" excludes orders under the Federal Supply Schedule or other multiple award vehicles. This new strategy by government lawyers puzzled Court watchers and federal contracting experts alike.
The mystery of how this case would turn out got more murky. On Nov. 4, 2015 — just five days before the Supreme Court was scheduled to hear oral arguments in the Kingdomware case — the Court yanked the case from its docket. The Court directed the parties, not later than Nov. 30, to submit briefs on whether the contracts in question had been fully performed, and if so, whether full performance renders the case moot.
Need another curious twist? While attorneys for Kingdomware worried that the VA would most certainly take the position that the case is moot, the brief filed by the government took the position that the case is not moot.
In response to the briefs, the Supreme Court announced, just before Christmas, that the Court would hear oral arguments in Kingdomware Technologies v. United States on February 22, 2016.
Anxious To Learn about the Arguments Made to Supreme Court?
Everyone who's interested is small business set-asides, in general, and to extent to which the VA must prioritize veteran-owned firms in its contracting, specifically, wants to know about the arguments being made to the Supreme Court in this case.
The good news is you have the opportunity to learn about the Kingdomware case almost as if you are in the courtroom. Attorney Steven Koprince — who has been active in supporting Procurement Technical Assistance Centers (PTACs like the Georgia Tech Procurement Assistance Center) across the country, as well as the Association of Procurement Technical Assistance Centers (APTAC) — will be attending the hearing and reporting back on what happens. He will be:
Posting his impressions on his blog, SmallGovCon, the afternoon of Monday, Feb. 22. You can check SmallGovCon.com that day or let him know if you would like him to email the post directly to you.
Answering your questions posted on Twitter starting at 10:00 a.m. EST on Tuesday, Feb. 23, for a full hour. You can follow Steven on Twitter @stevenkoprince or use the hashtag #Koprince4Vets.
Offering a free webinar to those who are interested in hearing what he learns at the oral arguments. Steven's webinar will take place at 12 noon EST on Tuesday, Feb. 23. You can register for it here.
Filed Under: Contracting Tips Tagged With: Court of Appeals, Court of Federal Claims, GAO, GSA Schedule, Kingdomware, rule of two, SDVOSB, Supreme Court, VA, veteran owned business, Veterans First, VOSB
VA and Kingdomware agree: Supreme Court case isn't moot
December 2, 2015 By cs
The VA and Kingdomware Technologies Inc. haven't agreed on much in recent years, but in briefs filed with the Supreme Court on November 20, 2015, they agree on one thing: the pending Kingdomware Supreme Court case is not moot.
Hopefully, the fact that neither party wants the case dismissed on a technicality will help convince the Court to decide Kingdomware on the merits.
As you may recall, shortly before the Supreme Court was to hear oral argument earlier this month, the Court issued an order removing the case from its docket. The Court asked the parties to submit briefs on whether the contracts in question have been fully performed, and if so, whether full performance renders the case moot.
Well, those briefs are in – and Kingdomware and the United States agree that the case is not moot.
Keep reading this article at: http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/va-kingdomware-agree-supreme-court-case-isnt-moot/
Filed Under: Contracting News Tagged With: Court of Federal Claims, GSA Schedule, preference, rule of two, Supreme Court, VA, veteran, veteran owned business, veterans, Veterans First
Contractor update: How to own and control your small business
Today we review more evidence reminding small business owners to get their house in order when it comes to questions of "ownership and control" in the eyes of the Small Business Administration (SBA). Failing to plan can mean lost contracts and – even worse – losing your small business status and the opportunity for lucrative set-aside contracts.
When we last visited this issue in April, the SBA determined that Precise Systems, Inc. was ineligible for a $134 million State Department SDVOSB set-aside contract because its employee stock ownership plan raised concerns over whether the company's service-disabled owner exercised proper "ownership and control" under the applicable SBA rules.
After the Court of Federal Claims remanded the issue for further interpretation, the SBA doubled-down on its authority to interpret questions of small business ownership and control.
Filed Under: Contracting Tips Tagged With: Court of Federal Claims, ownership and control, SBA, SDVOSB, set-aside, small business, State Dept.
Protest lessons learned: When to challenge corrective action
August 21, 2015 By cs
For Government contractors, it can be a frustrating experience to have your hard-earned contract award sidetracked by a protest – particularly if that protest includes a mandatory performance stay. More frustrating still is when the agency pulls the award altogether by deciding to take corrective action and re-open the competition.
This is no time to be passive! If your contract award is under attack, contractors should get involved and intervene in the protest. This advice takes on particular importance when corrective action is proposed – the window to challenge a renewed competition closes on the date when revised proposals are due.
Government contractor NVE Inc. learned this lesson the hard way on a recent $70 million janitorial contract for the Navy. After its initial award was the subject of multiple rounds of protests, the agency made the decision to reopen the competition by engaging in discussions with all offerors.
See frequently asked questions about bid protests at: http://www.gao.gov/legal/bid-protests/faqs
Filed Under: Contracting Tips Tagged With: award protest, bid protest, competition, contract protests, corrective action, Court of Federal Claims, GAO, protests, recompete
When government's failure to issue final decision on a certified claim is a deemed denial
June 16, 2015 By ei2admin
A recent decision from the United States Court of Federal Claims (COFC) sets forth the standard for when the government's failure to make a decision on a certified claim will be considered a deemed denial. InRudolph and Sletten, Inc. v. U.S., the COFC clarified the Contract Disputes Act (CDA) timing requirement for the government to issue a decision on a certified claim.
In Rudolph and Sletten, the contractor, Rudolph and Sletten (R&S), submitted a certified claim seeking a time extension and additional costs related to a contract for the construction of the Southwest Fisheries Science Center Replacement Headquarters and Laboratory in La Jolla, California. R&S originally submitted its certified claim on August 20, 2013. On October 21, 2013, the contracting officer advised R&S that, given the complexity of the claim, he would need additional time to issue a decision and advised that a decision would be made within nine months. R&S then requested that the contracting officer provide an explanation or work plan detailing the reason for the nine-month extension. The contracting officer provided R&S the explanation and stated that a decision would be made by July 15, 2014. On July 8, 2014, however, the contracting officer informed R&S that he would not reach a final decision on R&S's first claim by July 15, 2014 as originally estimated, and that, instead, a final decision would be forthcoming on March 15, 2015. R&S then filed an action in the COFC on July 23, 2014. The government sought to dismiss the case before the COFC on the basis that the court lacked jurisdiction to hear the case, because no final decision had been issued by the contracting officer as required by the CDA. R&S argued that the contracting officer's failure to issue a decision within the required time constituted a deemed denial.
Filed Under: Contracting Tips Tagged With: certified claim, claim, Contracting Officer's Decision, Court of Federal Claims, deemed denial
Software vendors be warned: The old rules may no longer apply to government
May 5, 2015 By ei2admin
Software vendors take notice: The General Services Administration (GSA) is proposing a new rule regarding something arcane but important.
GSA has identified 15 terms and conditions common in commercial supplier agreements that it considers incompatible with existing federal law. And where there is a conflict, government's own commercial terms rule. It's designed to save everyone time. Vendors won't have to comb their contracts for offending clauses — they just can't be enforced.
For now it applies to any GSA contract that includes software. But don't rule out the possibility of the rule going governmentwide.
For example, GSA is forcing an end to automatic renewals of period-limited software licenses or maintenance agreements. Instead, ordering agencies will award one-year with renewal options to be negotiated and re-awarded in subsequent years. The legal basis for this is that a contracting officer may not obligate funds that have not been appropriated, lest he or she be found in violation of the Anti-Deficiency Act.
Keep reading this article for a complete description of all the nullified terms and conditions: http://www.bizjournals.com/washington/blog/fedbiz_daily/2015/04/software-vendors-be-warned-the-old-rules-may-no.html
Filed Under: Contracting News Tagged With: Anti-Deficiency Act, Contract Disputes Act, Court of Federal Claims, GSA, IT, Prompt Payment Act, software, technology, terms and conditions
Extreme weather doesn't excuse a late proposal
December 1, 2014 By ei2admin
With winter weather descending on much of the country, it is all the more important for contractors to ensure that their proposals are submitted with time to spare.
In a recent bid protest decision, the Court of Federal Claims held that extreme weather at an offeror's location did not excuse the offeror's failure to deliver a timely proposal because there was no interruption of "normal government processes" at the government location designated to receive proposals.
The Court's decision in Global Military Marketing, Inc. v. The United States, No. 14-622C (Sept. 29, 2014), involved a DeCA solicitation for the supply of fresh pork products. The solicitation instructed that proposals deemed untimely would not be considered and that "[d]elays caused by commercial means such as airlines, express carriers such as Federal Express, United Parcel Service, etc or municipal difficulties such as black-outs, are not excusable." Offerors were expressly instructed to "[e]nsure enough time is allowed for the proposal to arrive on time."After a series of amendments, the proposal deadline was extended to April 30, 2014, at 3:00 p.m.
Global tendered its proposal to Federal Express on April 29, 2014. However, "extreme weather" hit Pensacola, Florida involving "intense rain of over 20 inches in 24 hours, widespread and damaging floods destroyed numerous major roads and bridges in the area." This extreme weather caused severe "damage to infrastructure and residential and commercial buildings, and temporary closure of the Pensacola International Airport."
Keep reading this article at: http://smallgovcon.com/u-s-court-of-federal-claims/extreme-weather-didnt-excuse-late-proposal/
Filed Under: Contracting Tips Tagged With: bid proposal, Court of Federal Claims, late bid, proposal preparation
Federal claims court invalidates key component of SBA's nonmanufacturer rule
November 25, 2014 By ei2admin
It has been the common understanding within the SBA, and the small business government contracting community as a whole, that the SBA's nonmanufacturer rule applies only to contracts for the provision of supplies (i.e., goods) and not to service contracts, regardless of
whether or not such service contracts have a supply component. The SBA memorialized this understanding in a 2011 rulemaking. According to 13 C.F.R. § 121.406(b)(3), the nonmanufacturer rule does not apply to procurements that are assigned a services, construction, or specialty trade construction code.
The U.S. Court of Federal Claims (COFC) recently turned this common understanding about the nonmanufacturer rule on its head. In its September 19, 2014, decision in Rotech v. United States, COFC No. 14-502C (2014), the COFC invalidated 13 C.F.R § 121.406(b)(3).
Keep reading this article by clicking here (pdf file).
Filed Under: Contracting News Tagged With: Court of Federal Claims, nonmanufacturer rule, SBA, subcontracting