SBA Issues New Proposed Rule to Consolidate SDVOSB Eligibility Rules

On January 29, 2018, the SBA issued a proposed rule to address and resolve the existing conflicts between the current eligibility requirements in the SBA and VA regulations. This action comes after specific direction in the 2017 National Defense Authorization Act for the SBA and VA to work together on a consolidated rule. Following this… Continue Reading

Changes to DCAA’s Incurred Cost Audit Model: How May It Affect You?

It is no secret that the Defense Contract Audit Agency (DCAA) has been plagued by a significant backlog in processing incurred cost (electronically) proposals (“ICE proposals”). In 2011, there were approximately 31,000 ICE proposals awaiting audit.  While reduced, the current estimate is still a staggering 14,000.  While DCAA has implemented policies to reduce this backlog,… Continue Reading

Agency Erred By Failing to Tell Offeror During Discussions That “Neutral” Past Performance Was a Weakness

In December 2017, the Court of Federal Claims ruled in favor of protestor Precision Asset Management Corp. after finding the agency failed to inform Precision that the agency assessed Precision’s “Neutral” past performance rating negatively. In 2014, Precision submitted its proposal for a Department of Housing and Urban Development property management contract. After the agency… Continue Reading

2017 Government Contracts Year in Review

Last week, Kate Kennedy and I presented a 1-hour webinar to the members of the Pacific Northwest Defense Coalition titled “2017 Government Contracts Year in Review and Regulatory Update.” This was a fast-paced, high level review of topics such as the current Administration’s regulatory reform agenda, cybersecurity, the 2018 National Defense Authorization Act, bid protest… Continue Reading

COFC Ruling Confirms Harsh SBA Decision Regarding Ownership Requirements of SDVOSBs

In late December, the Court of Federal Claims upheld an SBA decision revoking a Service Disabled Veteran Owned Small Business’ (“SDVOSB”) status on the basis the business failed in the unconditional ownership requirement set forth in the SBA’s SDVOSB regulations. In Veterans Contracting Group, Inc. v. United Sates, No. 17-1188C, the SDVOSB was determined not… Continue Reading

Termination for Convenience: File on Time and Document Your Costs

Last month, the Armed Services Board of Contract Appeals issued two decisions involving terminations for convenience.  Both decisions are instructive regarding how contractors should anticipate contractual and regulatory requirements regarding termination for convenience, in order to maximize likelihood for a full recovery of incurred costs. The first case, Black Bear Construction Co., ASBCA No. 61181,… Continue Reading

Data Breaches in 2017

As we near the end of the year and look back on 2017, both the number of data breaches and magnitude of these breaches stand out.  There have been over forty very significant breaches of data stored on cloud computing systems in the past year – and it is safe to assume that we will… Continue Reading

Government Contractor Awarded Equitable Adjustment for Negligent Quantities Estimate in Fixed Price Contract

A recent decision by the United States Court of Federal Claims reminds us how important the Government’s estimated quantities are, even in a fixed price contract. In Agility Defense & Government Services, Inc. v United States (October 18, 2017), the Court of Federal Claims awarded Agility $6,906,339.20, plus interest, representing the cost of additional, unanticipated… Continue Reading

Pending Dispute Over Contract Performance Prompts Agency to Find Contractor Non-Responsible and Rescind Bid Award on Separate Project

This past summer, the Alaska Department of Transportation and Public Facilities (“DOTPF”) rescinded a bid award after determining that the awardee was not a responsible contractor within the meaning of DOTPF’s bid specifications. The primary basis for this determination? An unresolved dispute over the contractor’s performance on a separate project. On April 20, 2017, DOTPF… Continue Reading

Ostensible Subcontractor Rule Does Not Apply to Similar Entities

A recent bid protest decision confirmed that the ostensible subcontractor rule cannot apply to similarly situated entities. The rule can result in a finding of affiliation if a small business prime contractor is determined to be unusually reliant on its subcontractor.  However, on October 20, 2017, the GAO denied a protest that was partially based… Continue Reading

Deadline for DFARS Cybersecurity Compliance Approaching

Last week, I spoke in Portland, Oregon about cybersecurity requirements for federal contractors at an all-day seminar hosted by the Pacific Northwest Defense Coalition.  Speakers from the Department of Defense, the FBI, and consultants specializing in cybersecurity compliance offered interesting and (sometimes different) perspectives on compliance, which led to candid and robust discussion.  Many thanks… Continue Reading

Failing to Respond to Negative CPARS May Affect Future Contracts

When the performance of a federal contract runs into trouble, the contractor may face a variety of issues including threats of default, delays and acceleration, cost overruns, etc. During this time, worrying about the government’s evaluation of its performance is often not the contractor’s main focus. However, ensuring that the contractor responds timely and addresses… Continue Reading

Trump Taps Linda McMahon to Lead SBA

On December 7, 2016, President-elect Donald Trump announced he will nominate former professional wrestling executive Linda McMahon as the head of the Small Business Administration. McMahon, 68, is the former CEO of the WWE, who also unsuccessfully ran for Senate in 2010. Trump’s announcement stated that McMahon will assist his administration with generating stronger job Continue Reading

Final FAR Rule Proposed for Small Business Set-Asides on Multiple Award Contracts

On Tuesday, Dec. 6, 2016, the Federal Acquisition Regulatory Council published a proposed rule aimed at finalizing regulations for small business set aside contracts in multiple award procurements. The new rule allows more flexibility to set aside contracts for small businesses in multiple award procurements. The proposed rule provides additional guidance to contracting officials on… Continue Reading

Substantial Transformation of IT Products Under the TAA Requires Careful Consideration

The Trade Agreement Act (“TAA”) utilizes a “substantial transformation” test in determining the country of origin of an end product composed of various parts from various countries. Substantial transformation is assessed and determined on a case-by-case basis, examining the totality of the circumstances. Therefore, no one factor is determinative. TAA as well as “Buy American”… Continue Reading

SBA Adds Training Module to Mentor-Protégé Applications

Small and large businesses seeking to take advantage of the Small Business Administration’s (SBA) new All Small Mentor-Protégé Program will now have to jump through an extra hurdle as part of the application process. The SBA began accepting applications for the new program on Oct.1, 2016.  The program allows any qualifying small business to partner Continue Reading

Department of Defense Issues Final Rule on Network Penetration Reporting and Contracting for Cloud Services

Last week, the Department of Defense adopted as final, with several changes, its interim rule amending the DFARS on “Network Penetration Reporting and Contracting for Cloud Services.”  The changes went into effect immediately, as of October 21, 2016. Among the changes in the final rule, DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident… Continue Reading

Washington State Ruling Heightens Liability Risk for Design Professionals

Recently, the Washington Court of Appeals potentially expanded the scope of tort duties owed by design professionals. In a May decision, the court held that an engineer’s duty of care to developers and property owners encompasses “the prevention of safety risks” even when no personal injury or property damage has resulted from claimed deficiencies.  See… Continue Reading

SBA to Start Accepting Mentor-Protégé Applications

On Oct.1, 2016, the Small Business Administration (SBA) will begin accepting applications for the new All Small Mentor-Protégé Program. This program has been several years in the making and follows authorizations in the Small Business Jobs Act of 2010 and the National Defense Authorization Act of 2013, which allowed the SBA to create mentor-protégé… Continue Reading

State of Alaska Tightens Its Claim Provisions

In 2015, the Alaska Department of Transportation and Public Facilities significantly amended the claims provision of its Standard Specifications—105-1.17.  The amendments incorporate language from the standard conditions which had previously been utilized for public facilities construction and which had previously been upheld by the Alaska Supreme Court in North Pacific Erectors, Inc. v State Department… Continue Reading

Law360’s Trial Pros Profiles DWT’s Lisa Marchese

This week, Law360 profiles our very own Lisa Marchese, a partner in our Government Contracts Counseling and Litigation Group. Lisa joined Davis Wright Tremaine in January, 2015, having spent the previous seven years as the Trial Department Head for the Seattle and Anchorage offices of Dorsey & Whitney. Since earning her J.D. from Georgetown… Continue Reading

PNDC Government Contracting Updates with Jonathan DeMella

On Wednesday, February 11, 2016, DWT Partner Jonathan DeMella presented on a number of recent regulatory changes and judicial decisions that significantly affect those that are small business government contractors as well as large business in joint ventures or teaming agreements with a small businesses. These changes and developments involve: Small Business Mentor Protégé Program… Continue Reading