Limitations on Subcontracting: Compliance Presumed Unless Proposal Clearly Shows Otherwise

America’s criminal justice system is founded on the principle that a defendant is innocent until proven guilty. And when it comes to compliance with the limitations on subcontracting, a similar principle applies.

In a recent bid protest decision, the GAO confirmed that a small business’s proposal does not need to affirmatively demonstrate compliance with the “LoS.” Instead, compliance is presumed, unless the proposal “on its face” should lead the procuring agency to conclude that the small business will not comply.

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Event: How Will the New Legislative Changes Affect Your Small Business

The rules for small businesses, 8(a)s, SDVOSBs/VOSBs, WOSBs/EDWOSBs and HUBZones have changed a lot in recent months, and more changes are on the horizon in 2021! On February 4, please join me and and Steven Koprince as we cover these important changes, in an online session hosted by The Catalyst Center for Business & Entrepreneurship. Please click here for the registration information. Hope to see you there!

Five things to Look for in Executive Order Strengthening Buy American Act

As we have blogged about previously, the Buy American Act has a number of exceptions and waivers. The United States spends hundreds of billions of dollars each year in contracting alone. The Buy American Act is intended to keep federal dollars in the hands of American companies and manufacturers. The president’s new executive order on these issues, proposes making some significant changes to not only the rule, but to oversight.

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SmallGovCon Week in Review: Jan. 18 – Jan. 22, 2021

This has been an important week for the federal government, and by extension, federal contractors. We’ve celebrated both the Martin Luther King Jr. holiday as well as Inauguration Day. The incoming Biden administration is sure to change up some of the policies affecting federal contractors, in ways both big and small.

The articles from this week have some predictions about how the new administration will affect federal contracting, and we’ll provide summaries of the biggest changes here on the blog. So stay tuned! This week also saw stories about fraudulent contractors and measuring procurement administrative lead time.

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Not All Claims That Wander Into the ASBCA Will Be Heard

Some times it’s easy to forget that the world of government contracting, including the many agencies which oversee its administration, exist within an overarching federal system of delegated powers, which comes to bear on the outcome of disputes.

The Armed Services Board of Contract Appeals receives its authority from sections of the Contract Disputes Act, and exists primarily as a neutral, independent forum to hear and decide post-award contract disputes between government contractors and certain government agencies, but its power to hear cases is limited. The Board recently issued a decision with a reminder that it does not have jurisdiction over requests for specific performance or injunctive relief.

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VA SDVOSB “Rule of Two”: Contracting Officer’s Price Reasonableness Determination Need Not Defer to FSS

The VA’s “rule of two” for service-disabled veteran-owned small businesses provides a powerful contracting preference. Thanks to the rule of two, the VA awarded 23.39% of prime contracting dollars to SDVOSBs in Fiscal Year 2019, compared to 4.39% governmentwide.

But the rule of two has its limits. Importantly, before issuing an SDVOSB set-aside, the Contracting Officer must have a reasonable belief that “the award can be made at a fair and reasonable price that offers best value to the United States.” And, as a powerful federal court recently held, the fact that an SDVOSB’s prices have been accepted by the GSA under the Federal Supply Schedule program does not require the VA to accept those prices as fair and reasonable in a rule of two analysis.

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Changes to the Gig-Contractor Rule: Biden Administration Poised to Freeze New Rule From Taking Effect

The Department of Labor on January 7, 2021 posted a final rule regarding the classification of so-called “gig contractors.”  The final rule is set to take effect on March 8, 2021. A big question mark looms over whether this rule will actually take effect. The incoming Biden administration, as most incoming administrations have done, intends to freeze all pending regulations which have yet to take effect.

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