While the federal government uses wage determinations for many occupations that contractors must abide by, things are different with professional occupations such as physicians, accountants, engineers, and (yours truly) attorneys. Contractors generally have more leeway with regard to how they pay their professional employees on a given contract. But it’s not unlimited. This is something that the National Oceanic and Atmospheric Administration (NOAA) didn’t address in its evaluation for a procurement, resulting in a successful GAO protest. In this post, we’ll look at the rules here and what went wrong.
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Agency Discretion Recertified: GAO Affirms Agency Discretion to Request Size Recertification for Task Orders
When it comes to meeting the size standards, the normal rule for a set-aside contract is simple: If you’re small at the time you submitted your initial offer for the contract, you’re small for the life of the contract. So says 13 C.F.R. § 121.404–although this could be changing in the future based on a proposed SBA rule. Furthermore, this is the general rule with set-aside IDIQs as well: If you’re small at the time of initial offer for the IDIQ, you’re small for all orders under that IDIQ. (Not so with set-aside task orders under otherwise unrestricted IDIQs, there it very much is time of offer for the task order rather than the IDIQ for the date to determine size). However, there are a couple of exceptions. The biggest one is where the contracting officer explicitly requests size recertification for the given task order. In that case, an offeror must show it is still a small business as of when it submits its offer for that task order. One contractor recently protested when the contracting officer did just that. Here, we’ll explore that GAO decision.
Continue readingRezoning (Part 2): Updates to the HUBZone Program
Very recently, we went through some more of the potential changes to the HUBZone Program from SBA’s proposed rule from August 23, 2024. In this post, we will look at the remaining proposed changes. SBA’s proposed rule would change HUBZone protests appeals, principal office requirements (which we did discuss a bit before here), HUBZone map concepts, and the HUBZone price evaluation preference (PEP).
Continue readingRezoning (Part 1): A Look at SBA’s Proposed Changes to the HUBZone Program
A few weeks ago, SBA released a proposed rule that would, among other things, modify the HUBZone program. We took a look at some of these changes when the proposals were released. As we promised in that post, we stated we were going to discuss some other aspects of the proposed rule in later posts. Today, we’ll be looking at some of the other changes that SBA is proposing for the HUBZone program, as there’s a lot. In this post, we’ll be focusing on other changes to how HUBZone employees are determined, new rules on certification and decertification, and changes to the “attempt to maintain” rule with regards to maintaining 35% HUBZone resident workforce. Some of these changes reflect a stricter approach from SBA that contractors should be on the lookout for.
Continue readingSome Assembly Required: GAO Addresses How Agencies Should Approach Trade Agreements Act Compliance
The Trade Agreements Act (TAA) (along with its cousin, the Buy American Act) is one of the more complex acts to deal with in federal government contracting. We have taken a look at the TAA before, noting that it does not apply to small business set-asides and discussing how it applies in its related FAR clause, FAR 52.225-5. One of the key requirements under the TAA, as shown in FAR 52.225-5, is that the product has been “substantially transformed…into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed” in one of the qualifying countries: the United States, various “qualifying countries”, and “designated countries”. (These countries are ones that the US has a trade agreement with, hence the law’s name) Of course, when agencies receive offers, they generally can’t go visit the assembly sites. This raises the question: When can an agency rely on a contractor’s offer and when must it do a little more digging?
Continue readingSupreme Court Weighs in on Deference to Agencies: What the End of Chevron Deference Means for Federal Contractors
On June 28, 2024, the Supreme Court issued its decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). It was a pretty notable news story as the case overturned the 1984 case of Chevron v. Natural Resources Defense Council, ending what has been called “Chevron deference.” This actually has many implications for federal contractors and how they interact with the federal government. Today, we’ll generally explore what this decision means for federal contractors.
Continue readingVOSB Program Possibly Expanding? Congress Takes Next Step Towards VOSB Expansion
The Veteran-Owned Small Business (VOSB) Program has long held a sort of unheralded position in SBA and federal contracting. Unlike its much more expansive counterpart, the Service-Disabled Veteran-Owned Small Business (SDVOSB) Program, the VOSB Program only allows for set asides for VOSBs for VA procurements (and even within VA SDVOSB companies are in a higher tier than VOSBs). In contrast, all agencies can set aside contracts for SDVOSBs. This has limited the desirability of admission to the program for many veteran owners, many of whom do not do work, that the VA needs. But things might be changing, as Congress has proposed a big step towards expanding what agencies can set-aside contracts for VOSBs.
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