GAO Concludes Expired SAM Registration in Invitation for Bid Cannot be Rejected as Nonresponsive

A company that is nonresponsive to an Invitation for Bid (IFB), or any solicitation for that matter, will usually be rejected for consideration for award. All too often, when a nonresponsive finding is made, there is no coming back.

A recent decision from GAO shines light on what it means to be “nonresponsive” and “not responsible.” GAO confirmed that SAM registration submitting annual certifications are matters of responsibility, not responsiveness.

What is the difference? Let’s look at the two terms and their practical effect on a company’s ability to cure deficiencies.

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Buy American Act Executive Order Promises Much, Will it Deliver?

The White House has released the final language of the Buy America Act. Our recent post looked forward to what we could expect from the final rule. Now the rule has been released, so what is in it?

The executive order promises quite a bit, and a lot of what is promised we will likely not see until 6 to 12 months down the road.

Here is what to expect now, in 6 months, and then down the road.

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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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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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Reverse Auctions: Proposed Rule Poised to Strengthen Regulatory Framework

The DoD, NASA, and GSA have proposed new rules aimed at providing transparency for reverse auctions after GAO reports in 2013 and 2018 signaled the need for guidance on reverse auctions to achieve cost savings and reduce fees.  

As context, the FAR was amended in 1997 to allow for the use of reverse auctions. Six agencies conducted approximately 15,000 reverse auctions in 2016 alone. Reverse auctions, despite their wide use, are not without controversy. Application of fees, and inability to verify actual cost savings plague the use of reverse auctions.

Private companies have developed software and services which companies use to, hopefully, increase their chances in reverse auctions.

As a result, a new proposed rule is open for comments here.

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OHA and the Ostensible Subcontractor Rule: A Two-Prong Test You Can’t Fix After the Fact

In a recent decision, OHA ruled that the ostensible subcontractor rule requires a two-prong evaluation before SBA can find affiliation. The SBA Area Office took a look at only one prong, which resulted in a remand from OHA. Ultimately, OHA found affiliation, reversed the SBA Area Office and found the concern ineligible. As OHA made clear, entities can’t fix deficiencies after the fact.

Think of the ostensible subcontractor rule like the preferred go-to move (other than line dancing) at a Country/Western Dance Hall, it is the ostensible subcontractor two-step. Follow along as I lead you through the dance you need to get right to avoid stepping on the toes of your proposal.

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GAO Annual Bid Protest Report Shows 51% Effectiveness Rate

In 2020, the GAO Bid Protest effectiveness rate crossed the 50% threshold, higher than we’ve seen it in any recent year.  Overall, cases filed went down a mere 2% year over year.

GAO issues its yearly report as a requirement under statute. Congress is particularly concerned with knowing 1) which federal agencies didn’t follow GAO’s recommendations in bid protests and 2) if GAO did not issue a decision in 100 days. As like most years, GAO was “pleased” to report that all agencies followed its recommendations, when given, and that it timely (within 100 days) decided all bid protests.

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