Look for some changes in the New Year regarding debriefings. For years, Ferlise & Associates has been recommending that clients request a copy of a properly redacted source selection document in connection with debriefings, regardless of the dollar value of the acquisition or and the agency involved. Now Section 818 of the 2018 National Defense Authorization Act (NDAA), titled the “Enhanced Post-Award Debriefing Rights”, which was signed into law December 12, 2017, makes production of a redacted copy of the written source selection award determination mandatory for ANY Defense Agency contract valued over $100 million, or for any Small Business award which is valued at $10 million or more.
That section also requires written or oral debriefings for ALL contract/task or delivery order awards valued at $10 million or more. The third major change is that Defense Agencies must give offerors the option to ask questions within 2 business days after receiving a debriefing. This means that the “protest clock” doesn’t start until the Government answers those questions. While these changes are certainly welcome, please note that they only are applicable to Defense Agencies and not Civilian Agencies like the VA. Hopefully, we will see these reforms spread soon.
Happy holidays and best wishes for the new year from all of us here at F&A!
Wendy McCutcheon (the former VA TAC Director) and Vince Buonocore (the former VA TAC Chief Counsel) along with Vic and Mike Ferlise will be attending this year’s National Veterans Small Business Engagement (NVSBE) from December 5–7, 2017 in St. Louis, Missouri at the America’s Center. The NVSBE is a great opportunity to meet other Veteran Owned Small Businesses (VOSBs) including Service Disabled VOSBs as well as other businesses and to learn about VA procurement opportunities.
We look forward to seeing you at this year’s conference.
To all those who have put their lives on the line in defense of this great nation…. THANK YOU from all of us here at F&A!
On October 11th, the Supreme Court of the United States (SCOTUS) issued its decision not to hear an appeal of the DC Circuit’s Federal Court of Appeals decision that found the SBA’s 8(a) Business Development (BD) Program constitutional. This is the “current” result of what is known as the “Rothe” case. Rothe Development, Inc. (a Woman-Owned Small Business) started challenging the constitutionality of the 8(a) BD program back in 2012 on grounds that the definition of “socially disadvantaged” business owners is a racial classification that violates Rothe’s right to equal protection under the Due Process Clause of the Fifth Amendment. With the SCOTUS decision not to hear the appeal, the decision of the Court of Appeals stands. That decision which used the lowest of the 3 levels of scrutiny, or a “rational basis” standard, to determine the constitutionality of the law (instead of the more intense “strict scrutiny” standard that would be applied had the Court concluded that the statute was not race-neutral on its face) may still be challenged. It is expected that while the statute, itself, was not found unconstitutional, the SBA implementing regulation, 13 CFR 124.103, might be separately challenged and might have to pass muster under the strict scrutiny test. (Note: Rothe previously challenged the Small Disadvantaged Business (SDB) Program [of which the 8(a) BD program is a subset] back in 2008 which resulted in significant changes to that program.)
Victor Ferlise and Michael Ferlise will be attending this years AUSA Annual Meeting and Exposition. The AUSA’s Annual Meeting is the largest landpower exposition and professional development forum in North America. Taking place over three days (October 9-11th), the Annual Meeting is designed to deliver the Army’s message by highlighting the capabilities of Army organizations and presenting a wide range of industry products and services.
On September 1, 2017, the Department of Veterans Affairs’ (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) withdrew its proposed revised rules which are codified at 38 Code of Federal Regulations (CFR) part 74. This regulation covers “Veterans’ Small Business Regulations” which are administered by the VA’s Center for Verification and Evaluation (CVE). The reason given for withdrawing the proposed rule was “(b)ecause of the adverse comments received during the comment period…” Of particular concern are the “disconnects” between the Small Business Administration’s regulations and the CVE requirements to include the impact on current small business contract holders who grow large during the period of performance. We are hoping that VA and the SBA can craft rules which are fair and consistent with each other. We will keep you informed. The Federal Register Notice can be found at https://www.gpo.gov/fdsys/pkg/FR-2017-09-01/pdf/2017-18543.pdf
The Department of Veterans Affairs (VA), Office of Small and Disadvantaged Business Utilization (OSDBU) will be hosting its 2017 National Veterans Small Business Engagement (NVSBE) from December 5–7, 2017 in St. Louis, Missouri at the America’s Center. This is a great opportunity to meet other Veteran Owned Small Businesses (VOSBs) including Service Disabled VOSBs as well as other businesses and to learn about VA procurement opportunities.
“NVSBE directly connects VOSBs with (Procurement Decision Makers) PDMs from the Department of Veterans Affairs (VA), other federal agencies, state government, as well as Commercial Firms with procurement needs—and provides learning sessions to improve the capabilities of small businesses to successfully compete for procurement opportunities.
NVSBE also enables VA PDMs to engage with a large number of VOSBs in a short period of time, facilitating market research in support of meeting VA socioeconomic goals.”
You may sign up at https://nvsbe.com/
Ferlise and Associates will be attending and would be happy to discuss the services that we offer with you. Please let us know if you would like to schedule a meeting out in St. Louis.
If you are familiar with Government contracting, at some point you have probably encountered disappointment in losing an award when you thought you should have won. Or, maybe you read a Request for Proposals (RFP) with terms that just seemed unfair.
There are two basic categories of protests: Pre-award protests which must be filed before the close of the solicitation (or the opening of a bid) and Post-award protests which must be filed by an “interested party” within certain time limits depending on the type of bid requested and the forum selected. Note that an “interested party” is not necessarily what it sounds like. The Federal Acquisition Regulations define an interested party as “An Interested party for the purpose of filing a protest means an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.” This definition has been further narrowed by the Government Accountability Office (GAO) and the Courts as “the next in line.” In other words, if there is no chance you could be awarded a contract even with the protest issue resolved, you are not an interested party.
There are many other things to consider before filing a protest to include: WHEN to file (as mentioned above), WHERE to file (as there are advantages/disadvantages in filing at the Agency level, at GAO, or in the US Court of Federal Claims), HOW to file (format, redactions, requests for documents and a protective order, etc.), and, most importantly, WHAT arguments to make. In addition, if you are protesting the small business size or socioeconomic status of a business, those protests are filed with the Small Business Administration which has its own administrative rules.
If you need help with deciding whether or not to protest, we can help. Our staff of former Government contract lawyers have, collectively, hundreds of years’ worth of experience both prosecuting and defending protests and can provide invaluable advice on all aspects involved in making this crucial business decision.
F&A can provide timely advice to companies that are out-growing their small business size or larger firms who wish to sell part or all of their business, or who are looking to diversify by acquiring companies. Our experience can aid you in reviewing potential target companies to buy or can help you market your business for sale. Frequently, the divesting of part or all of a business involves the transfer of Government contracts to the buyer. As former Government acquisition lawyers, we have been involved in the novation of hundreds of contracts resulting in superior expertise in the Government’s role in, and rules for, novating contracts to help ensure that this complicated process runs smoothly.
We can also help companies with “size” issues. The mixed blessing of a small company outgrowing its size brings unique challenges. We can provide advice on everything from challenging a NAICS code decision encouraging the Government to select a more favorable NAICS code, to helping you draft newly required documents that will be necessary as a “no longer small” business like a Small Business Subcontracting Plan. We can also help with the creation of Joint Ventures (JVs) to take advantage of the Small Business Administration’s (SBA’s) new “all small” Mentor-Protégé Program which permits a large business Mentor to create a JV with its small business Protégé to pursue small business set-asides. We can help draft those Mentor-Protégé and JV Agreements to ensure the SBA’s requirements are met.
Our informed and responsive attention to your questions on all issues related to Government contracting is not only our most important priority, it’s our ONLY priority.