On June 1, 2021, the Biden-Harris Administration announced that it intends to use the federal government’s purchasing power to grow federal contracting with small disadvantaged businesses by 50 percent, translating to an additional $100 billion over five years. This is one of many new steps intended to help narrow the racial wealth gap and reinvest in communities. In explaining this new policy goal, the Administration recognized that:
For years, I have been blogging and speaking about the very real and very serious civil and potential criminal consequences of a failure to comply with the Davis Bacon Act. Every once in a while, a case comes along that drives those points home. One such case – involving criminal convictions for wire fraud and conspiracy to commit wire fraud in connection with what appears to be a blatant failure to comply with Davis Bacon Act requirements – is the recent decision in United States v. Estepa, No. 19-12272 (11th Cir. May 25, 2021).
If a dispute arises on a federal contract, the Contract Disputes Act requires a contractor to submit a written demand seeking as a matter of right a “sum certain” to the contracting officer as part of the claims process. What exactly is a “sum certain”? It is what it sounds like—contractors must provide an exact dollar amount of the overall damages they are claiming in their CDA claims. In other words, whatever damages the contractor is claiming cannot be qualified in any way. Contractors should never use the words “at least,” “approximately,” “no less than,” or “well over” with their damage figure. Instead, the contractor must provide an exact amount a set damage figure that represents the overall amount being demanded. It is okay if the damage figure is an estimate—even a flat calculation of $100,000—as long as an overall demand is made without any qualifying language.
Breaking into federal government contracting can be daunting. There are ever-changing compliance obligations to consider and complex bidding and proposal submission requirements to navigate. An entire industry of sales consultants, proposal writers, and lobbyists promising to help tap into the $600 Billion plus federal marketplace are only a Google search away. Engaging the services from one of these firms is generally allowed, but there are restrictions. This post deals with one of those restrictions—the Covenant Against Contingent Fees (FAR 52.203-5) which restricts how government contractors pay third-party sales agents.
In an unusual turn of events, the SBA Office of Hearings and Appeals (OHA) recently reversed course and granted a Petition for Reconsideration in a case involving a challenge to the Service-Disabled Veteran-Owned Small Business (SDVOSB) status of a company. (CVE Protest of Blue Cord Development Group, LLC, SBA No. CVE-188-P (2021)) After initially determining that the company was not controlled by service-disabled veterans because the relevant manager lacked the necessary control and experience, OHA granted the Petition for Reconsideration and overturned that determination.
The Small Business Administration’s HUBZone program provides federal contracting assistance for qualified small business concerns located in historically underutilized business zones in an effort to increase employment opportunities, investment, and economic development in such areas. The Small Business Administration defines HUBZones and publishes a map identifying the location of all HUBZones. Certified businesses located in a HUBZone are eligible to participate in the HUBZone program goal of awarding at least three percent of federal contract dollars.
The Contract Disputes Act establishes the formal process for resolving nearly all claims and disputes that arise under federal government contracts. It is the source of the requirement that contractors certify claims in excess of $100,000, the contracting officer’s final decision, and the deadlines for bringing a dispute to the Court of Federal Claims or an agency board of contract appeals.
It is also the source of the federal government’s authority to use mediation and other forms of alternative dispute resolution. Today we review six key things contractors should know about mediating contract claims and disputes at the Armed Services Board of Contract Appeals.
The Biden Administration has committed to making cybersecurity a top priority and is now turning its focus towards energy infrastructure, which is widely recognized as vulnerable to cyberattack due to grid control systems. The U.S. Department of Energy (DOE) has launched a 100-day initiative to “advance technologies and systems that will provide cyber visibility, detection, and response capabilities for industrial control systems of electric utilities.”
Contractors interested in contracts with the Federal Aviation Administration (FAA) should be aware that FAA bid protests are different from protests involving other federal agencies. The FAA’s Office of Dispute Resolution for Acquisition has exclusive jurisdiction to resolve protests involving FAA procurements. Protest proceedings at ODRA are different from those at the Government Accountability Office and the Court of Federal Claims.
Mentor-protégé programs, such as the government-wide one at the SBA for all small business concerns, are designed to help small contractors engage in federal contracting by allowing larger, more experienced mentor firms to provide assistance to protégés. Generally, the proteges receive financial, technical, or management aid from mentors, and the mentors may receive subcontracting goal credits, reimbursement of expenses, and other incentives in return. One of the key concepts behind these programs is to increase the capacity of small business concerns to compete for contracts they would not ordinarily qualify for otherwise. The U.S. Government Accountability Office’s (GAO) recent decision in Innovate Now, LLC, B-419546, Apr. 26, 2021, confirmed this underlying principle.