The Federal Government Contracts & Procurement Blog

http://governmentcontracts.foxrothschild.com/

Nicholas contributes to the Federal Government Contracts & Procurement blog, addressing current and future issues affecting federal contractors and procurement professionals in both the Washington, D.C., area and throughout the United States.

Recent Blog Posts

  • Government Contracting 101: Differing Site Conditions One of the primary risks facing construction contractors is subsurface or unexpected physical conditions discovered after the work begins (commonly known as a Differing Site Condition).  When such conditions are encountered on a federal government project, contractors need to: (1) properly document the condition, (2) notify the government, and (3) preserve the right to bring a Request for Equitable Adjustment or Certified Claim. Typically, any Differing Site Condition inquiry begins at Federal Acquisition Regulation 52.236-2.  The regulation defines a Type I... More
  • SBA Finds Violation of Ostensible Subcontractor Rule – Even Though Contractor Performs “Primary and Vital” Requirements Contractors seeking to avoid affiliation under the Ostensible Subcontractor Rule know the soundbite:  Your firm must self-perform the “primary and vital” contract requirements. A small business prime contractor must zero in on the essential objective of its contract and make sure to perform those requirements with its own employees.  If those requirements are subcontracted out to others, the SBA will have all the ammunition it needs to find affiliation. While the “primary and vital” requirements test is the most commonly cited metric... More
  • Money for Nothing: Recovering Bid Protest Attorneys’ Fees Winning bid protests all share one common theme – the government erred somewhere in the procurement process and the contractor was unfairly prejudiced as a result.  It is then up to the contractor to expend the time, effort, and resources necessary just to return to the status quo of basic fairness. Fortunately for contractors, the burden of pursuing a meritorious protest can (sometimes) be lifted. By law, the GAO has authority to recommend the reimbursement of protest costs (including attorneys’ fees) when... More
  • Bid Protest Denied After Contractor Declines to Engage with Agency Regarding Price Government agencies have ample discretion when it comes to corrective action in response to a bid protest.  A recent GAO bid protest shows that contractors must tread lightly when it comes to challenging that discretion. Unlike negotiations in the private sector, power plays against the government can end in lost contracting opportunities. The procurement that spawned the protest in question started as a sealed IFB by the U.S. Army Corps of Engineers (USACE) for dredging services.  In response, to the IFB, the... More
  • Contractor Alert: Beware Bilateral Modification Release Language Contractors intending to submit a Request for Equitable Adjustment or Claim on a government contract need to be aware of the implications of bilateral modifications. In simple terms, a bilateral modification is a supplement to your company’s contract with the government that is signed by both you and the government.  The agency can use a bilateral modification to execute any number of contract changes or otherwise modify the terms of the agreement. Sometimes, however, a contracting officer may use a bilateral modification... More
  • WOSB Certification Errors Lead to Size Protest Small business owners need to be aware of the simple, proactive measures that are available right now to avoid headaches down the road. One prime example is properly maintaining your SAM.gov profile.  Taking the time to properly check (and periodically re-check) your SAM.gov reps and certs can help to establish and maintain your eligibility in the SBA’s socio-economic programs (like the Women-Owned, Service-Disabled, and HUBZone programs). For example, a recent SBA size protest considered the case of whether an apparently woman-owned small... More
  • How to Approach Best Value RFPs and Protest Improper Award Decisions Government contractors responding to RFPs understand the need to read the fine print. Mostly commonly, we discuss this topic in terms of pure proposal acceptability.  Protest decisions from the GAO and Court of Federal Claims make it abundantly clear that the burden falls on the contractor to follow directions and include all of the required information in all of the right places.  It is for that reason (among others) that we always recommend having an outsider (be it a consultant, a... More
  • GAO: Contractor (Not Agency) Responsible for Alleged Technical Glitch Bid protests concerning proposal interpretation present an uphill battle for federal contractors.  Both the Government Accountability Office and the Court of Federal Claims take the expansive view that the contractor is responsible for the content of its proposal — and that it is not the agency’s role to play detective or dig through a proposal to piece together responsive information. For example, a few months ago, we looked a case where the protester’s proposal was rejected for failing to include certain required... More
  • Contractor Wins Claim for Additional Costs After Partial Termination by Government It is common for government contractors to file claims on federal projects where there are government-directed changes to the contract that add time or scope. But what if – instead of adding time and/or scope – the government de-scopes work from the contract by issuing a partial termination?  A recent successful claim shows that the contractor can still recover its increased costs. In a decision by the Armed Services Board of Contract Appeals (ASBCA), the Board considered a contract for the provision... More
  • COFC: HUBZones Are Responsible for Tracking 35% Employee Residency Requirement The Small Business Administration’s HUB Zone program seeks to encourage development in historically underutilized business (or HUB) zones.  Like the SBA’s other socio-economic programs, HUBZone contractors are eligible for certain set-aside contracting opportunities, as well as participation in the SBA’s new All Small Mentor Protégé Program. The HUBZone program is different from other SBA programs in that owning a HUBZone business depends less on who you are (unlike, for example, the SBA’s women-owned or service disabled veteran-owned programs) and more on... More