Government Contractor News for February 21, 2018

Contractors Face Significant Security Threats

CyberSecurity firm BitSight reported recently that government contracting firms face significant security threats that could put the nation’s security at risk. 5.6% of aerospace and defense contractors surveyed and 4.3% of technology contractors reported at least one breach since 2016. Healthcare contractors suffered the most, with 8% reporting issues since 2016. The survey raised other concerns as well, including the fact that many contractors depend on the same set of Cloud service providers and an outage among those providers could severely impact most, if not all, federal agencies. Click here to read more about the survey and how contractors can protect themselves from these dangers. 

 

VA Bid Protest Sustained Due to Ambiguities in the Solicitation

We talk a lot about bid protests and also avoiding costly ambiguities when working with an RFP. Recently, the GAO ruled in favor of a contractor who questioned the solicitation for office furniture being labeled as a SDVOSB set-aside after the contracting officer eliminated the required subcontracting-related VAAR 852.219-10 from the solicitation. Read all the details of the case here

 

Stability and Opportunity for Contractors in the 2019 Budget

Trey Hodgkins, Senior VP for the Public Sector at the Information Technology Alliance for Public Sector, says contractors have reason to feel positive about the President’s 2019 budget. Listen here to see why Hodgkins says the 2019 budget will bring stability and opportunity for federal contractors. 

 

Whether you need help evaluating the potential of a bid protest or want to increase your opportunities as a contractor by getting on the GSA Schedule, Randolph Law can help. Contact us today to take advantage of our experience in the federal contracting industry. 

 

 

 

Dealing with a Government Shutdown & Other Contracting News for January 24th

The weekend’s government shutdown resolved on Monday, and federal employees returned to work. However, more shutdowns are inevitable as a result of intense political divides across the country. In this week’s news round up, we take a look at what federal contractors need to know in light of this week’s shutdown and possible shutdown on February 8th. 

What Do Government Contractors Need to Do During a Shutdown? 

With more government services being delivered by contractors than ever before, companies that are contracted for work with the federal government need to take special care during a shutdown. It’s critical during this time to maintain a positive relationship with your contracting officers and work with them to ensure that your actions during the shutdown meet the requirements of your contract. Click here to see a recommended action plan for federal contractors to follow during a government shutdown. 

 Tips for Using Contract Employees During the Shutdown

While some contract employees qualify as essential personnel, many federal contractors find themselves out of work during a federal shutdown. However, federal contracting firms can use this time for mandatory training or paid time off. Click here to read more about how a government shutdown impacts contractors. 

In Other News:

What are the Goals of the OMB, GSA e-Commerce Portal?

Section 846 of the 2018 Defense Authorization Bill calls for the implementation of an e-commerce marketplace for commercial items. The planning is in the very early stages of development right now, but this initiative could have a big impact on the future of contracting. Read more about the details that were released at the January 9th meeting at the GSA office. 

 

If you need legal advice for coping with the shutdown as a government contractor or navigating government contract regulations, don’t hesitate to email the team at Randolph Law for assistance. 

New Year’s News for Government Contractors

Happy New Year from Randolph Law! We’re looking forward to helping you make 2018 your most successful year yet! 

To start, we’ve put together a quick round up of the latest news for government contractors. 

DARPA Makes $850M Services Contract Available for Bids

The Defense Advanced Research Projects Agency (DARPA) has opened a 5-year, $850M contract for bidding. Bids on the Technical and Analytical Support Services Contract are due on February 8th. The scope includes technical, financial, administrative, legislative, legal and other services to support DARPA’s national security mission. Click here to see the full RFP

RAND Study Says Bid Protests Do Not Delay the DoD Procurement Process

While many in government are looking for ways to minimize and eliminate bid protests, a RAND Corp. study, commissioned by the FY 2017 National Defense Authorization Act (NDAA), found that bid protests are not undertaken frivolously. Protest activity has been increasing but remains an issue for a mere 0.3% of Department of Defense contracts. Click here to read more details from the study.

Section 809 Panel Seeks to Collect the Worst Acquisition Regulations

More than 2/3 of all Federal Acquisitions Regulations have not been updated since they were created, leaving hundreds of outdated or irrelevant compliance issues on the books for government contractors. The congressionally-mandated Section 809 Panel has been tasked with identifying and eliminating outdated provisions to streamline the acquisition process and alleviate the administrative burden posed by these regulations. Find out how to submit your least-favorite regulations to the panel’s “50 Worst!” campaign here.

 

Whether you’re struggling with regulatory compliance issues or evaluating the potential of a bid protest, Randolph Law is here to help. Contact us today with your government contracting questions. 

 

 

Government Contracting News & Notes for December 1st

2017 Bid Protest Annual Report

The GAO recently published its 2017 Bid Protest Annual Report to Congress.There were 2,433 protests last year, down 7% as compared to FY2016, with a 17% sustain rate. According to the report, the most common reasons for sustaining a bid protest were:

  1. Unreasonable technical evaluation
  2. Unreasonable past performance evaluation
  3. Unreasonable cost or price evaluation
  4. Inadequate documentation of the record
  5. Flawed selection decision

Justice Gorsuch Talks Government Contract Ambiguities

While some courts defer to administrative agencies when contract ambiguities arise, others apply general contracting principles to decisions regarding these conflicts. Justice Neil Gorsuch recently gave his position, siding with the Federal Circuit courts that defer to contracting principles rather than administrative agencies. The Supreme Court is expected to bring added insight to the conversation soon, making the process for resolving contract ambiguities clearer for government contractors and agencies alike.

 

Can Controversial Opinions Keep Your Firm from Winning a Government Contract?

In other words, can a contracting officer decide to eliminate a bid because a prominent figure in the company has expressed a controversial opinion on social media or in another public forum? The First Amendment would have you believe otherwise, but there are some situations in which a contractor’s public opinion could prevent him from performing appropriately on the job. For example, a bidder who has publicly expressed anti-immigration sentiments may be considered ineligible if bidding on a contract for English as a Second Language classes. That said, even if there doesn’t appear to be a conflict of interest, contracting officers can come up with any number of legitimate reasons why your firm was passed over – so why give them ammunition? Click here to read more on this topic and see why government contractors are urged to stay neutral on social media.

 

Do you need help with a bid protest or another aspect of working with the federal government? Contact us today for experienced legal assistance. 

 

 

 

 

 

Joint Ventures 101: What You Need to Know About Joint Ventures & Government Contracts

Last month, we hosted a “Joint Ventures 101” seminar to educate small businesses about the benefits of forming Joint Ventures in order to compete for federal contracts. I wanted to take a moment to share the same information here in the hope that it will help others who are looking for ways to take advantage of the SBA’s Joint Venture rules and regulations.
 Screen Shot 2017-10-18 at 11.18.27 AM
Please click here to read through my presentation, and don’t hesitate to contact Randolph Law for more information!

Avoiding Pitfalls in the 8(a) Application Process

I was recently invited to present a webinar on pitfalls in the 8(a) application process for Jennifer Schaus and her government contracts consulting firm, Jennifer Schaus & Associates.
Here’s the full video:

 

Here’s a link to the powerpoint presentation.

Trimming out everything else, the key take away is to read, re-read, and then read again the SBA requirements for the 8(a) program, you can find them here.
While you are reading them, take notes on every specific item that is required. Here’s a very basic checklist of questions you should ask yourself:

1) Am I a member of one of the defined minority groups? How do I know?

For example, we get inquiries from folks who say “well, my grandmother was native american, does that count?” No, it does not. You must be an enrolled member of a Native American Indian Tribe to be considered Native American Indian. Each tribe has its own criteria for enrollment, and you have to match that criteria.

2) Is my annual income under $250,000?

Look at your taxes. What’s the top line. If you file taxes jointly with your spouse, does he or she contribute in some way to the business, whether working or guaranteeing a loan or name on a lease? If yes, it’s your joint income, if no, it’s yours alone.

3) Is my net worth under $250,000?

Your house doesn’t count, and your equity in the business doesn’t count. Your retirement accounts don’t count, unless you’re over 59 1/2. Everything else counts. Your bank accounts, other businesses, vacation house, car. Everything.

4) Have I been in business over two years?

This is a yes / no. When was your business registered with the state. Count two years past that. While there are waivers available to businesses that have not been in business for two years, they are very difficult to get.

5) Am I ready to collect all the documents necessary?

I’d say the average 8(a) application if printed out would run to about 1,000 pages. Be prepared, you will be asked for everything, and you must provide everything.
These are just some of the things you’ll need to be prepared for. Review the video, read the slides, go to the SBA website. When you’re ready, give us a call and we might be able to help you out.

July 2017 Government Contract Regulations Update

This month, there have been a few large regulatory updates and changes within the government contract world. Below, read up on the progress of the Regulatory Accountability Act’s journey through the House and the death of one of the final Fair Pay and Safe Workplaces provisions.

Regulatory Accountability Act

The bipartisan Regulatory Accountability Act is currently being debated in the House of Representatives. This Act would require agencies to provide members of the public with an opportunity to participate in the rulemaking process and hold a hearing before the adoption of any “high-impact” rule, which could benefit government contractors by giving them a voice in policy decisions. According to the bill, a “High Impact” rule refers to “a rule that the Office of Information and Regulatory Affairs (OIRA) determines is likely to have an annual cost on the economy of $1 billion or more.” Additionally, the bill would require federal agencies to conduct a cost/benefit analysis prior to implementing any new regulation.

Fair Pay and Safe Workplaces Final Rule

Following President Trump’s move to repeal the Fair Pay and Safe Workspaces rule earlier this year, the GSA recently issued a class deviation to prohibit FAR clause 52.222-60, which mandated paycheck transparency for government contractors. The rule, set in place by former President Obama, was the last to be prohibited, following the dismantling of FAR 52.222-57, 52.222-58, 52.222-59 and 52.222-61. However, due to a ruling by a federal judge in late 2016, the clause remained untouched, along with the notice provision for independent contractors . Moving forward, the GSA has ordered contractors to amend solicitations and remove the clause from their current contracts immediately.

Are you currently in the market for legal assistance for your government contracting practice or need assistant navigating recent regulatory changes? Contact us today to discuss your needs!

A Graceful Exit: Planning Now For 8(a) Graduation

The regulations governing the 8(a) program mandate (i) that 8(a) contracts are generally non-assignable, and (ii) if the ownership of an 8(a) contract holder, even an 8(a) graduate, changes such that the control of the company has changed, any 8(a) contracts the company holds are subject to termination.

This causes problems if your 8(a) graduation exit strategy is “graduate and sell.” Generally, the rule of thumb for business advisors advising buyers and sellers in the government contracts space is “no more than 25% of revenue from 8(a) contracts.”  This means that the value of an 8(a) company is dramatically lowered in the market, sometimes to zero. Even if your graduation strategy is “graduate and grow” or “graduate and maintain,” you can run in to problems if your nine year past focus, and your past performance and team expertise has been in winning 8(a) contracts. In fact, any post-graduate plan other than “graduate and retire someplace nice” requires careful up-front planning from day 1 of your certification in the 8(a) program. Nine years goes by a lot faster than you think.

With that in mind, here are a few strategies you can use to try to minimize the disruption your graduation will inevitably bring, and maximize your company’s value

  1. Use your first 8(a) contract wins to create a “war chest” for going after non-8(a) work

You are limited as the 8(a) owner in how much you can withdraw from the company in compensation. For successful 8(a)s, this can become a problem. By way of example, a $20M in revenue IT company could at a 10% margin generate 2M in profit. But the qualified owner can’t withdraw more than $350K per year (averaged over 3 years and considering the owner’s salary as well).[*] When searching for what to do with potentially excess profit, consider using that profit to fund development of non-8(a) business, whether full-and-open, small business, or state or commercial. You’re going to have to start sometime, why not start from day 1.

2. Look for other certifications that aren’t time-limited, such as Women-Owned Small Businesses (WOSB) or Service-Disabled Veteran-Owned Small Business (SDVOSB) without expiration.

While these certifications are, like the 8(a) certification, size and owner limited, if you’re not looking to sell, they can be a good maintenance and growth vehicle. Of course, you have to qualify for each of these programs and since they are owner limited, they may have similar difficulties for you if your exit strategy is “graduate and sell.” The WOSB federal contract program is designed to provide greater access to federal contracting opportunities for WOSBs and economically-disadvantaged women-owned small businesses (EDWOSBs) by allowing contracting officers to set aside specific contracts for certified firms in an effort to achieve their statutory goal of five percent of federal contracting dollars being awarded to women-owned small businesses. The SDVOSB procurement program helps provide acquisitions for exclusive competition among service-disabled veteran-owned small business concerns, and to make sole source awards to service-disabled veteran-owned small business concerns if certain conditions are met.

3. Pursue 8(a) Indefinite Delivery Indefinite Quantity (IDIQ) contracts.

IDIQ contacts, depending on the contract language, may allow graduated 8(a)s to remain eligible for 8(a) task orders sourced through the contract vehicle. GSA STARS II is a great example of a contract like this.[†]  This can allow you to continue to receive 8(a) set aside work – as a task order under the IDIQ – beyond your graduation date. In the end, this only delays the inevitable, but if that delay means the difference between getting a full-and-open BD team together and closing up shop and going home, any little bit helps.

These are just a couple of examples of ways in which you can begin looking for non-8(a) work. It may seem counter-intuitive to get this wonderful certification and then immediately try to get work that doesn’t require it, but remember, it’s only 9 years. As Ferris Bueller  said, in a different context, “life moves pretty fast.”

[*]It’s actually more complicated than that, but the point is as you grow you may be unable to distribute all of your company’s profits without potentially losing your 8(a) status.

[†] Mandatory disclaimer, this isn’t legal advice, but this is based on my experience assisting a STARS II holder. If your experience was different, don’t come tell me I’m wrong, and certainly don’t file a CDA claim in the CBCA or ASBCA or anywhere claiming some lawyer told you your company shouldn’t have been kicked of an IDIQ for graduating 8(a). I’m just reporting an example.

Avoiding Ambiguities in the RFP Process

Responding to an RFP is an expensive and time-consuming process. Once your organization has decided to make that investment, it’s important to make sure your proposal is just right. Ambiguities – unclear statements or demands – in the RFP process can derail your success with the following negative consequences:

  • Bids rejected for lack of compliance
  • Bids less competitive for failure to follow unknown/misunderstood specifications
  • Bids open to rejection for other reasons under the cover of ambiguities

In order to make your proposal as effective and competitive as possible, it’s critical to resolve any questionable statements in the RFP before you submit your proposal.

Identifying Ambiguities

The first step in resolving unclear statements, demands, or terminology is to identify them. There are three main types of RFP ambiguities to watch out for and resolve:

  • Specification
  • Process
  • Terms & Conditions

In order to identify unclear portions of the RFP, you may need to call upon your technical specialists, project managers, and legal counsel to review the request and identify any areas of concern.

Examples of Ambiguities:

  • Specification: An RFP for a new piece of technology tells bidders that they can recommend a product that exceeds specifications. In some cases, it’s easy to pick out things that would exceed specifications (e.g.: faster processing speeds or more memory). However, the waters get murky when you consider things like screen size. Would a smaller screen exceed specifications because it’s lighter and easier for employees to transport? Or would a larger screen be a preferred option to avoid taxing employees’ eyes?
  • Process: The RFP specifies that all submissions must be made by 5pm on a given date. But the contracting officer is based on the East Coast, the agency is headquartered in Texas, and the work is being performed in California. Which time zone applies?
  • Terms & Conditions: The language used in an RFP is the language a contractor will be beholden to once a contract is awarded. Unclear terms and conditions are subject to definition by the contracting officer, not the contractor, so it’s very important to make sure all the legal language is crystal clear before responding to an RFP.

Quick Steps to Respond to Ambiguities in an RFP

  1. Identify unclear portions of the RFP: Let the experts at your organization review each portion of the RFP and point out any areas of concern.
  2. Submit questions to the contracting officer: At this stage, it’s important to make sure that your questions are extremely clear to avoid further confusion and get the answers you need to move ahead.
  3. Follow up with more questions: If the contracting officer’s answers are unclear, you can follow up with additional questions. These may or may not receive answers depending on the timeframe remaining for submissions.
  4. No response? Consider whether a protest is appropriate.

Bid protests are time-sensitive and costly. In order to make your proposal competitive from the start, resolve ambiguities with the contracting officer as early as you can. However, if you truly aren’t able to get answers and lose an award because of ambiguities in the RFP, a protest may be the best way to obtain a satisfactory resolution. A good government contract lawyer can carefully evaluate the merits of any protest to make sure you are able to make an informed decision about your options.

Whether you’re struggling to resolve ambiguities in an RFP or considering a bid protest, Randolph Law is here to help. 

Contact us to learn more. 

Making the Most of Your Debrief

If you have responded to a FAR Part 15 RFP or to a FAR part 16 Task Order or Delivery Order RFP, you are entitled to a debrief. You should make the most of the opportunity.

If you have responded to a FAR Part 12 Commercial Items solicitation or to a FAR Part 8 GSA Schedule Task or Delivery Order RFP or RFQ, you are not entitled to a debriefing, you are only entitled to a “brief explanation” of the reasons for the decision. You may not receive as thorough of an explanation for the award decision, but you should nevertheless use this same guidelines to make the most of that explanation as well.

Asking for a Debrief

You must ask for a debrief within three days of when you receive your notice that either you have not been selected for award, of you’ve been down-selected in an initial or multi-round selection process.

Always ask for a debrief. There is almost always no downside to ask for a debrief. The only time you may not want to ask for a debrief is if you have already decided to file a bid protest, and you’re concerned that the Agency will drag their feet (sometimes for weeks or months) on giving the debrief, leaving you unable to file you protest; since once you’ve asked for a debrief you are not allowed to protest until the debrief is completed.

Preparing for Your Debriefing

If your debriefing will take place in person or via telephone, you can prepare in advance to get the best information out of the time you have.

Think about what you want to accomplish. There are two simple questions you should aim to have answered by the time you finish:

  1. Why did you lose the bid?
  2. Why does the government say you lost the bid?

Sometimes, these answers will be the same. Other times, the requesting agency will have a favored contractor, and the government may simply say that your proposal was not as good as the winner’s. An in-person or telephone debriefing can be used to determine whether or not you have grounds to protest the award.

Once you’ve given some thought to the outcome, prepare questions that will help you walk away with the information you’re after. Your questions should be directed to the specific issues identified in the award notice. In some cases, you may choose to include members of your technical team or legal counsel in the debriefing in order to address critical concerns. Be aware of the following considerations:

  • Don’t allow technical people to get mired in minutiae, and detract from your overall purpose. Make sure that anyone who attends the debriefing understands that a high-level discussion is in order.
  • Bringing your attorney has the potential to help you get accurate answers from the contracting officer and translate his or her statements into layman’s terms. However, having a lawyer present may also cause the contracting officer to clam up for fear of saying anything that might lead to a bid protest. Weigh your options.

Setting the Tone & Gathering Information

As with any business meeting, a professional tone is required. You aren’t there to convince the contracting officer to award you the contract. Be mindful of your ability to work with the contracting officer and the agency he or she represents in the future. Be firm in your request for information, but maintain a positive working relationship at the same time.

Another thing to keep in mind is how to cut through the buzzwords to ensure that you leave with the information you need. Don’t use industry-speak, and challenge any buzzwords the contracting officer is using to explain why you lost the contract. Phrases like “best value” and similar terms are non-specific and therefore, unhelpful. Acronyms, too, can be a source of confusion. Demand clear, specific language.

Concluding Your Debriefing

At the end of the meeting, you should have some sense of whether or not a bid protest is in order. If it is, start your clock and get to work; bid protests are highly time-sensitive, and in most cases, you have no more than 10 days to protest, which is effectively five days if you want a CICA stay.

If you decide that a protest isn’t warranted, take the information you received at the debriefing and apply it to future RFPs. What that looks like will depend on your business and what you discover at the debriefing, but in all cases, the information will make you more competitive in the future. Remember, usable knowledge is the ultimate goal of any debriefing.

 

Do you need assistance preparing for a debriefing or working with the federal government in another capacity? Our experienced team can provide a legal consultation for your business. Contact us today to discuss your needs!