Category Archives: Statutes and Regulations

2017 NDAA Reiterates GAO Bid Protest Reporting Requirements

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Under the Competition in Contracting Act, the Government Accountability Office is required to issue an annual report to Congress that summarizes the “most prevalent grounds” of sustained protests, identifies the instances in which GAO was not able to decide a protest within its 100-day deadline, and list any protest where the agency did not follow GAO’s recommendations.

The 2017 National Defense Authorization Act doubles down on this first requirement: it mandates that GAO provide Congress with a list of the most common grounds for sustaining protests. This only begs the question: why would Congress require GAO to do something it’s already required to do (and that it’s already doing)?

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SBA Corrects Profit-Splitting Flaw In New Joint Venture Regulations

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The SBA has corrected a flaw in the profit-splitting provisions of its new joint venture regulations.

Under the corrected regulations, which became effective on December 27, all of the SBA’s joint venture regulations–those for small businesses, SDVOSBs, HUBZones, 8(a)s, and WOSBs–will require that each joint venturer receive profits commensurate with the work it performs.  The SBA’s revisions clear up an inconsistency between the 8(a) joint venture regulations and the regulations for the SBA’s other set-aside programs, and eliminates a potential disincentive for joint venturers to avail themselves of the protections of a formal legal entity such as a limited liability company.

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SBA Insists That Small Business Rule Of Two Applies To Some FSS Orders

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Earlier this year, we wrote about an interesting issue brewing in federal contracting: whether the logic behind the Supreme Court’s June 2016 decision in Kingdomware Technologies means that the Small Business Act’s rule of two is mandatory for acquisitions under Federal Supply Schedules. In other words, does the Small Business Act require agencies to set aside orders under the FSS when two or more small business are likely to submit competitive offers?

The SBA believes that the rule of two (see FAR 19.502-2) is mandatory for such orders. GAO has disagreed, saying instead that the Small Business Jobs Act of 2010 and the exclusion of FSS contracts from the application of FAR Part 19 (see FAR 8.405-5(a)(1)(i)) make the small business rule of two discretionary for these orders.

This conflict—GAO believing the Small Business Act’s rule of two is discretionary for orders placed under multiple-award contracts; SBA believing it is mandatory—has existed for several years. But now the SBA is using the Supreme Court’s recent decision to bolster its case: according to a recent SBA internal memorandum, Kingdomware requires the small business rule of two to be given mandatory effect, at least with respect to orders valued between $3,500 and $150,000.

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New FAR Provisions Require Contractor Privacy Training

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The FAR Council has published a final rule to require that certain contractor employees complete privacy training.

The final rule requires privacy training for contractor employees who handle personally identifiable information, have access to a system of records, or design, maintain, or operate a system of records.

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2017 NDAA Creates Pilot Program For Subcontractors To Receive Past Performance Ratings

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The 2017 National Defense Authorization Act gives certain small subcontractors a new tool to request past performance ratings from the government.

If the pilot program works as intended, it may ultimately improve those subcontractors’ competitiveness for prime contract bids, for which a documented history of past performance is often critical.

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2017 NDAA Requires “Brand Name Or Equivalent” Justifications

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A small but interesting change in the 2017 National Defense Authorization Act will require the DoD to obtain an appropriate justification and approval (“J&A”) before restricting any competition to a particular brand name, or imposing similar restrictions.

In adopting this change, Congress doesn’t mince words, using the term “Anti-competitive Specifications” to refer to instances in which competitions are restricted to particular brand names without appropriate justification.

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