DoD, GSA, and NASA are issuing a final rule that amends the Federal Acquisition Regulations (FAR), effectively implementing a provision of the 2016 National Defense Authorization Act. The rule permits and encourages agency acquisition personnel to engage in responsible and constructive exchanges with the industry, provided that such exchanges remain consistent with the applicable law and refrain from promoting any unfair competitive advantages.
Continue readingTag Archives: market research
Who You Gonna Call? Your Contracting Officer
In our line of work, we regularly litigate protests, appeals, claims, etc., against the Government. But often, procuring and contracting issues can be resolved without the need for litigation–via a little-known method we like to call “talking things out with your CO.” There are also opportunities to communicate with your contracting officers for networking and marketing purposes that many contractors (often unnecessarily) shy away from. This article is the first of three articles that will provide you with some tips for when and how to communicate with your contracting officer at different steps of the procurement process. This article will focus on pre-solicitation and solicitation communications; the next will focus on proposal submission communications; and the third will focus on contract performance communications.
Continue readingGAO: Agency Has Discretion on Type of Socioeconomic Set-Aside for Procurement
From a recent GAO decision it appears that the ends can, in fact, justify the means; at least when it comes procurement set-asides for HUBZone companies. The decision is Foxhole Technology, Inc. B-419577 (May 12, 2021). In this matter, Foxhole Technology, Inc., a service-disabled veteran-owned small business, protested the Department of Education’s decision to set aside an RFQ to supply cybersecurity services for HUBZone businesses. In its protest, Foxhole argued that the agency’s decision to set aside the procurement for HUBZone small business concerns was based on inadequate market research and was therefore not justified. GAO denied the protest.
Continue readingGAO: WOSB Set-Asides and Sole Sources are Discretionary, not Mandatory
Historically, Uncle Sam has struggled to meet its WOSB contracting goals. It wasn’t until 2015, in fact, that the government first met its WOSB contracting goal and, since then, has continued to struggle to meet it.
Thankfully, agencies are authorized to use set-asides and sole-source awards to increase WOSB participation. But as a recent GAO decision shows, an agency isn’t required to use either procedure.
Small Business Set-Asides Not Required Under NETCENTS-2, Says GAO
The Air Force’s large NETCENTS-2 IDIQ vehicle did not require orders to be set-aside under the small business pool, except for orders valued between the micro-purchase threshold and simplified acquisition threshold.
In a recent decision, the GAO held that although the NETCENTS-2 contract in question says that Contracting Officers “should” perform a “rule of two” small business set-aside analysis for orders valued over the simplified acquisition threshold, it does not require that such an analysis be performed–meaning that Contracting Officers can validly award such orders to large businesses, even if two or more small business NETCENTS-2 holders exist.
GAO Reports on How Contracting Officers Select NAICS Codes
A newly released Government Accountability Office report provides a rare peek behind the curtain of how contracting officers assign North American Industry Classification System codes.
Contracting officers are required by 13 C.F.R. § 121.402(b) to designate the NAICS code that “best describes” the work to be performed. It sounds simple enough, but the report reveals that it can be tricky.
Agency Faces Sanctions For Backdating Market Research
An agency backdated a market research memorandum to justify its set-aside decision–and when the backdating came to light, the Court of Federal Claims was none too pleased.
In a recent decision, the Court held that the backdated memorandum resulted in a “corrupted record,” which undermined a “fair and equitable procurement process,” and agreed that the agency’s self-imposed sanctions were appropriate.