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While most contractors think of the Government Accountability Office and Court of Federal Claims (or even the agency) when considering whether to challenge a government contract award, there are additional options for small business set-asides – small business size and status protests. The government, recognizing the importance of small businesses to the American economy, provides small businesses certain preferences in government contracting, including only allowing eligible small businesses to compete for certain contracts (referred to as small business set-asides). But in order to be eligible for this exclusive federal marketplace (that was worth more than $178 billion dollars in FY 2023), a small business has to qualify as “small” under federal regulations. Small businesses are generally responsible for calculating their own size. But, a protester (usually a disappointed offeror), may bring a size protest alleging that the awardee on a small business set-aside contract is not actually a small business (and is thus ineligible for award) because it exceeds the applicable size standard. Below is the nuts and bolts of the size protest process.Continue Reading Keep Your Eyes on the Size: Small Business Size Protests

On April 4, 2023, the Defense Contract Management Agency’s (“DCMA”) Commercial Item Group held an industry day at Fort Lee in Virginia. The DCMA Commercial Item Group assists DOD purchasers in determining whether items provided to DoD qualify as commercial products or services and, thus, will be subject to fewer federal acquisition and DoD requirements. The Commercial Item Group also assists with market research, technical analysis, price analysis, negotiation support, commercial item database maintenance and providing support on commercial products and services initiatives.Continue Reading DoD Commercial Item Group Summit: A Recap

The federal government uses its contracting dollars not only to purchase the supplies and services it needs, but also to support broader policy goals. For example, the government has special contracting priorities for veteran-owned small businesses (VOSBs) and service-disabled veteran-owned small businesses (SDVOSBs), as well as women-owned small businesses (WOSBs) and economically-disadvantaged women-owned small businesses (EDWOSBs), and others, like the 8(a) business development program and small businesses more generally. In other words, these special types of businesses are able to compete for government contracts with a limited pool of competitors (and limited competition should yield a higher likelihood of business success for these small businesses). But access to these contracting priorities comes with a complex web of regulatory requirements unparalleled in the commercial sector. And one way to make sure that only eligible small businesses are receiving these special set-aside and sole-source awards is through what is known as a “status protest,” where it is alleged that the specialized small business does not actually qualify for the status and priority that is being claimed.Continue Reading Comparing Two Small Business Status Protests: Veteran-Owned Small Business CVE Protests and Women-Owned Small Business Status Protests—Different Processes but Similar Results

The Small Business Administration’s (“SBA”) Office of Hearing and Appeals (“OHA”) rejected a small business government contractor’s 8(a) participation determination appeal as untimely, notwithstanding the contractor’s claim the termination letter at issue was sent to a junk email folder.
Continue Reading SBA OHA Says Small Business on Notice of Email in Junk Folder: Appeal Untimely

As we head into the new year, it seems like a good time to check-in on the adjusted small business set-aside thresholds for 2022. As you may recall, the threshold are tied both to the micro-purchase threshold and the simplified acquisition threshold. While these rates are periodically adjusted for inflation, the thresholds remain unchanged going into 2022. Currently, the micro-purchase threshold is $10,000 and the simplified acquisition threshold is $250,000. Here’s what that means for small business set-asides:Continue Reading What Are the 2022 Small Business Set-Aside Thresholds?

The U.S. Government Accountability Office (“GAO”) recently released a new report finding that Army and Navy contracting officials were unaware of their oversight responsibilities regarding  combating trafficking in persons. Though the U.S. Government has a zero tolerance policy when it comes to human trafficking, GAO’s report indicates that Department of Defense (“DOD”) officials have been lax in ensuring contractor compliance with anti-human trafficking requirements. Of particular concern are human trafficking activities by contractors on U.S. military bases overseas. Most commonly these cases involve foreign workers employed on U.S. Government contracts overseas that are subjected to labor abuses, such as wage withholding.[1]
Continue Reading Does Your Contract Work Abroad Require A Combatting Trafficking In Persons Compliance Plan? Now Is A Good Time To Check

On October 9, 2019, the President issued two executive orders that require agencies to formally provide official guidance before enforcing any new jurisdiction or legal standards. In other words, agencies…
Continue Reading New Executive Orders Aim to Eliminate Unfair Surprise in Civil Enforcement Actions by Formalizing Guidance Documents

On January 25, 2018, Associate Attorney General Rachel Brand issued a memorandum (the “Brand Memo”) limiting the use of agency guidance documents in affirmative civil enforcement cases. The memorandum builds on Attorney General Jeff Sessions’ November 16, 2017 memorandum prohibiting DOJ from promulgating guidance documents that create rights or obligations that are binding on regulated parties. When DOJ issues a guidance document with voluntary standards, it must also contain a statement that noncompliance is not subject to future DOJ enforcement actions. The Brand Memo makes clear that this principle also applies to other agencies’ guidance documents. In other words, agency guidance, in and of itself, cannot create new binding legal requirements.
Continue Reading “Brand Memo” Prohibits US DOJ From Converting Agency Guidance Into Binding Legal Obligations In Civil Enforcement Actions

On November 13, U.S. Government Accountability Office (“GAO”) published its Annual Report to Congress (B-158766, November 13, 2017), which contains the statistics for bid protests filed at GAO in FY 2017.
Continue Reading While Protests and the Sustain Rate Decrease, the Effectiveness Rate Continues Its Upward Climb – A Brief Review of GAO’s FY 2017 Bid Protest Statistics

The Department of Defense (“DoD”) recently proposed to make specified costs allowable that are associated with discovering and correcting counterfeit or suspect counterfeit electronic parts.  DoD’s proposed rule would amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to implement the National Defense Authorization Act (“NDAA”) for Fiscal Year 2016.
Continue Reading DoD Proposes Cost Allowability Rule for Correcting Counterfeit Electronic Parts