Administrative

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
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

This month, Sheppard Mullin’s Organizational Integrity Group continued its exploration of a number of complex compliance matters as part of their “OIG Shorts” series with discussions on Reality Based Ethics & Compliance Programs, Structure Matters, and Let’s Be Disciplined About Discipline.

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Continue Reading Organizational Integrity Shorts

It is not unusual for agency personnel to request extracontractual changes during performance of a contract, many of which may seem fairly innocuous at first glance. From changing the type of screw used in a machine, to altering the background colors displayed on computer screens, extracontractual changes requested by agency personnel can seem minor or inconsequential, and contractors often readily agree without immediately recognizing the potential adverse consequences or taking the necessary steps to adequately protect themselves. 
Continue Reading Small Changes During Contract Performance Can Take A Large Bite Out Of The Bottom Line

On November 1, 2022, the U.S. Government Accountability Office (“GAO”) published its Annual Report to Congress, which contains the statistics for bid protests filed at GAO in Fiscal Year 2022. We have highlighted below several items worth noting from our review of the GAO’s report.
Continue Reading GAO’s FY 2022 Bid Protest Statistics: GAO Protest Filings and Sustain Rates Continue to Decline, but Effectiveness Rates and Alternative Resolutions Continue to Climb

On November 14, 2022, the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) published a proposed rule that would amend the Federal Acquisition Regulation (FAR) to require Federal contractors that receive annual Federal contract obligations over a specified amount to disclose their greenhouse gas (GHG) emissions[1] and climate-related financial risk, and set science-based targets to reduce GHG emissions.[2] This proposed rule implements section 5(b) of Executive Order 14030, Climate-Related Financial Risk, which we previously wrote about here. The Government will consider comments from interested parties that are submitted by January
Continue Reading Proposed Rule Requires Contractors to Disclose Greenhouse Gas Emissions and Climate-Related Financial Risk

The U.S. Small Business Administration (“SBA”) recently released its annual Procurement Scorecard, demonstrating the federal government’s continued prioritization of small business contracting and subcontracting. In 2021, the government awarded $154.2 billion dollars in federal prime contracts – an increase of $8.5 billion over the prior year – with at least an additional $72 billion in small business subcontracts – a decrease of $10.8 billion from the prior year. These subcontracting figures continue the trend from prior years, which may lead to increased scrutiny of small business subcontracting plans to reverse the perceived decline. (In 2020, small business subcontracting decreased by an
Continue Reading SBA Annual Scorecard Shows Federal Government Continues to Prioritize Small Business Contracting

In the first two parts of this series, we have summarized what constitutes an Organizational Conflict of Interest (“OCI”) in government procurements, and discussed OCIs’ importance in the bid protest arena. But lest you think that, having passed the protest hurdle, you are now free from all harm caused by having an OCI, we now address potential post-award liability stemming from undisclosed and unmitigated OCIs. Contractors found to have undisclosed and unmitigated OCIs, that either existed before award or arose thereafter, can face a variety of bad outcomes—contract termination, suspension or debarment, and liability for fraud under the False Claims
Continue Reading Organizational Conflicts of Interest – Part 3: The Next Target for FCA Enforcement

We all know that failure to submit your bid proposal on time typically results in rejection. And the list of exceptions to this “late is late” rule is very short, providing only four notable exceptions: (1) an offeror has acceptable evidence of government control of a proposal; (2) an offeror can establish a systemic failure of government procedures resulting in multiple instances of lost information; (3) if electronically submitted, a proposal was received by government infrastructure by 5:00 p.m. one working day prior to the proposal submission date; and (4) if there is only one offeror. But what if you
Continue Reading The Gap Widens Between COFC and GAO on Late is Late Rule

In an “update” that reads more like a teaser to a B Movie, the OMB on Friday advised that it will have more guidance on EO 14042 for us soon. What precipitated this official warning that more guidance would be forthcoming? Well, it seems that tomorrow (October 18, 2022) OMB expects the Southern District of Georgia to narrow the nationwide injunction prohibiting enforcement of EO 14042. This is the procedural step we’ve all been waiting for since the 11th Circuit issued its decision on August 26, 2022. In anticipation of the narrowed injunction, OMB announced it expects to release three new guidance
Continue Reading EO 14042 Update 17.0 – Preview of Updated OMB Guidance

The FedRAMP Program Management Office is seeking comments on its draft FedRAMP Authorization Boundary Guidance, Version 3.0, released on September 14, 2022. The public comment period currently is open and closes on October 17, 2022.
Continue Reading Third Time’s The Charm – FedRAMP Releases Draft Authorization Boundary Guidance Version 3 for Public Comment

Last month, we began our three-part series on organizational conflicts of interests (“OCIs”) with an article discussing the different types of OCIs and how they can be mitigated. Now, in Part 2 of our series, we analyze how OCIs arise in bid protests. First, we explain how the Government Accountability Office (“GAO”) and the Court of Federal Claims (“COFC”) review OCI protests. Then, we examine scenarios where OCI protests have been sustained, followed by a synopsis of OCI protest grounds that (almost) always will be denied. Finally, we conclude with a summary of key points to consider when faced with an
Continue Reading Organizational Conflicts of Interests – Part 2: OCIs in Bid Protests

Per Executive Order 14028, Improving the Nation’s Cybersecurity, the Office of Management and Budget (OMB) issued a memorandum on September 14, 2022 requiring federal agencies to only use software from software producers that attest compliance with secure software development guidance issued by the National Institute of Standards and Technology (NIST).
Continue Reading Federal Government Outlines New Security and Attestation Requirements for Software

Effective August 25, 2022, the U.S. Department of Defense (“DoD”) has issued two new changes to the Defense Federal Acquisition Regulation Supplement (“DFARS”) reinforcing national defense priorities that limit DoD contracts performed in China, and the DoD’s ability to acquire tantalum metals from China and other unfriendly countries such as a Iran, North Korea, and Russia. These rules continue the trend of further isolating targeted countries in U.S. supply chains that are deemed a potential national security threat.

1. Employment Transparency Regarding Individuals Who Perform Work in China

First is DFARS Case 2022-D010 (87 Fed. Reg. 52339), an interim rule
Continue Reading In the Interest of National Security – Two New DFARS Rules Reinforce Increased Scrutiny For Chinese-Origin Supply Chains