Category Archives: Statutes and Regulations

CBCA Appeal Dismissed Because Contractor Filed By FedEx, Not USPS

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As has been well-documented by news outlets, the U.S. Postal Service plans to end Saturday delivery to save money.  With the USPS facing financial and customer service struggles, it is little wonder that many government contractors rely on rival FedEx to deliver important packages.

But when it comes to filing a contract appeal with the Civilian Board of Contract Appeals, contractors may want to think twice before calling FedEx.  As one unfortunate contractor recently discovered, thanks to an arcane (and in my view, unfair) provision in the CBCA’s rules, a package sent through the USPS is deemed timely filed with the CBCA on the date of its postmark, whereas a package sent by any other means–including FedEx–is not considered filed until it is actually received at the CBCA’s office in Washington, DC.

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New SBA Mentor-Protege Program: Clearing Up The NDAA Confusion

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True or false: the FY 2013 National Defense Authorization Act requires the SBA to create a mentor-protege program for all small businesses?

Contrary to published information issued by at least three large law firms, the answer is “false.”  In fact, although the NDAA authorizes the SBA to create a mentor-protege program for all small businesses, it does not require the SBA to create such a program.

Moreover, the erroneous statement that the NDAA requires the SBA to adopt a mentor-protege program for all small businesses is just one of three pieces of misinformation being circulated by one or more of these law firms.  Let’s take a quick look at the text of Section 1641 of the NDAA itself and put the confusion to rest.

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Limitations On Subcontracting: Congress Enacts Major Changes

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Congress has enacted major changes to the limitations on subcontracting rules for small government contractors.

The 2013 National Defense Authorization Act, signed into law by President Obama on January 3, contains two important changes to the subcontracting limits.  First, for services contracts, compliance with the limitations on subcontracting will be based on the total amount paid to the small business, not the cost of the contract incurred for personnel.  Second, small businesses will be able to meet their own performance requirements by subcontracting to other small companies.

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Congress Authorizes SBA Mentor-Protege Program For All Small Businesses, Centralizes Oversight

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Congress has authorized the SBA to create a mentor-protege program for all small businesses, not just socioeconomically disadvantaged companies.

This major change was included in the 2013 National Defense Authorization Act and signed into law by President Obama on January 3.  The 2013 NDAA also addresses the recent proliferation of agency mentor-protege programs (and, by extension, the SBA’s refusal to acknowledge an exception from affiliation for participants in most other agencies’ mentor-protege programs) by requiring most procuring agencies to obtain SBA approval for their mentor-protege programs.

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AbilityOne Program: Court Shoots Down “Arbitrary and Capricious” Contract Award

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The AbilityOne Program cannot be used to award a contract when it is questionable whether the contractor will comply with the requirement that significant portions of the work be performed by the severely disabled, according to a recent decision of the U.S. Court of Federal Claims.

In Systems Application & Technologies, Inc., No. 12-526C (2012), Judge Eric Bruggink, in an opinion brimming with colorful quotes, shot down the Army’s effort to award a contract involving significant degrees of physical labor at a remote location to an erstwhile AbilityOne participant, holding that the prospective awardee had not come close to demonstrating that the work would (or could) be performed by the severely disabled.

For contractors concerned that the AbilityOne program may be subject to misuse, the Systems Application case is confirmation both that questionable practices occur in AbilityOne contracting, and that such practices will not be tolerated by the Court.

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Federal Court: Small Business Set-Asides Are “Competitive”

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A federal judge has denied a large business’s pre-award bid protest, which was based on the large company’s argument that small business set-asides do not constitute a type of competitive procurement.

Although the decision of the U.S. Court of Federal Claims in Res-Care, Inc. v. The United States, No. 12-251C (2012) involved a specific statute applicable to Job Corps Centers, the court’s affirmation of small business set-asides as “competitive” reinforces an important principle underlying FAR Part 19 and other programs benefiting small government contractors.

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Federal Court Upholds Agency’s 40% Small Business Subcontracting Goal

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The United States Court of Federal Claims has denied a challenge to the Transportation Security Administration’s establishment of a 40% small business subcontracting goal–measured by total contract price, not total subcontracting dollars.

In Firstline Transportation Security v. The United States, No,. 12-601C (2012), Judge Thomas Wheeler  rejected arguments that the TSA’s 40% small business subcontracting goal was unreasonable, contrary to the FAR, and improperly established a partial small business set-aside.

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