The Government improperly threatened to terminate a contractor for default, because there was no good reason to believe the contractor had actually defaulted.
In a fascinating new decision by the Armed Services Board of Contract Appeals, the Government’s threat–made to a contractor with cash-flow issues–amounted to coercion, and invalidated a settlement agreement that awarded the contractor much less than it probably should have received.
An Air Force Contracting Officer, asked by a contractor where to send an appeal, provided the contractor with information about the Civilian Board of Contract Appeals, not the Armed Services Board of Contract Appeals.
Despite the Contracting Officer’s erroneous advice, the CBCA dismissed the appeal for lack of jurisdiction.
We’re in the final stretch! There are only about 5 weeks left in the fiscal year, which means the lives of government contractors are about to get more chaotic. But as August draws to a close, I hope you’re able to have a relaxing weekend; let’s get it started off right with the SmallGovCon Week in Review.
This week’s edition discusses an update on the ban of Kasperky anti-virus software, continuing uncertainty about GSA’s effort to re-bid SAM.gov, a contractor sentenced under a rent-a-vet scheme, and more.
Have a great weekend!
As the incumbent contractor, you’re excited to bid on the successor contract. The day it’s posted, you dash to fbo.gov, pull up the solicitation, and breathe a sigh of relief: the contract is still exclusively a small business set-aside. But wait! Under the assigned NAICS code your business doesn’t fall below the size standard.
Can the agency change the NAICS code from one iteration of the contract to another? Sure, so long as the selected NAICS code meets the regulatory standard.
I am back from a great trip to Norman, Oklahoma where it was an honor to be part of the annual Indian Country Business Summit. My talk at the ICBS covered recent legal developments in government contracting law, including the Section 809 Panel reports, the strict SBA SDVOSB ownership requirements, enhanced debriefings, and much more.
A big thank you to the Tribal Government Institute and Oklahoma Bid Assistance Network for sponsoring this wonderful event, and Victoria Armstrong and everyone who worked with her to organize it. And, of course, thank you to all of the clients, old friends, and new faces I met and spoke with at the conference.
I’ve been a road warrior recently, but will be sticking around town for awhile as the fourth quarter heads into its last stretch. Next up on my schedule: the Buy, Build and Sell Conference in Washington, DC on October 11. I’m looking forward to spending a day in my old DC stomping grounds.
If you’ve ever responded to an SBA size protest, you know that the process is quite involved: SBA will require your company to provide a complete response to the protest (including production of corporate, financial, and tax records for all implicated concerns) within only a few business days. The consequences for not providing all of the requested information can be quite severe, as the SBA can presume that the responsive information would demonstrate that the concern is not a small business (through its “adverse inference” rule).
A recent OHA appeal shows the dangers of failing to adequately respond to a size protest. In Size Appeal of Perry Johnson & Associates, SBA No. SIZ-5943 (2018), the OHA affirmed the SBA’s reliance on an adverse inference and, as a result, found the protested company was not an eligible small business.
It’s mid-August, which means school is back in session! If you have little ones, we hope they had a nice first few days back.
But before we head out to enjoy the weekend, let’s take a look at the SmallGovCon Week in Review. In this week’s edition, the Pentagon’s procurement process is criticized, contractors are reminded how to prep for a government shutdown (let’s hope one doesn’t happen), and more.
Have a great weekend!