Legal Updates

Past Performance Can Still Be Rated Very Good on CPARs Despite Some Not so Great Interim Reports

By: Christine V. Williams on 08/14/2017

In a protest in front of the GAO, Matter of: Mark Dunning Industries, Inc., File: B-413321.4 Date: July 26, 2017, the agency (the Navy)  reasonably evaluated awardee’s past performance as acceptable notwithstanding some number of allegedly negative interim contract administration reports where the agency considered the contractor performance assessment reports (CPARs) for the contract, which...

ASBCA Decides Case on Small Business Subcontracting Plan Participation for Excluded Entity

By: Christine V. Williams on 08/13/2017

The Armed Services Board of Contract Appeals (“ASBCA”) decided a case recently on how to calculate small business participation when the Navy allowed, through a modification, the exclusion of one facility in that calculation for the small business subcontracting plan.  The case, BAE Systems Southeast Shipyard Mayport LLC, ASBCA No. 59876 (July 2017) visited the question on when the agency...

Senate Small Business Committee Approved Six Bipartisan Bills Before Heading to Recess

By: Christine V. Williams on 08/07/2017

Before heading to recess, on August 2, 2017, the Senate Small Business Committee (SSBC) approved six bipartisan bills unanimously.  Now it passes out of the SSBC. Support Small Business R&D – S. 650 Until recently federal R&D tax credit could only be used to offset a company’s income tax liability Many start-ups are not yet profitable and have no tax liability, so it was...

Rothe Files Reply to DOJ/SBA/DOD’s Opposition for the Supreme Court to Review Case

By: Christine V. Williams on 07/28/2017

This week, Rothe Development, Inc. (“Rothe”), a woman owned small business who could, arguably apply for and be granted 8(a) Program status, filed its Reply to the Department of Justice’s (“DOJ”) Opposition to Rothe’s Petition for Writ of Certiorari to the U.S. Supreme Court. In non-legalese, Rothe lost at the D.C. Circuit Court of Appeals when it challenged the facial (not the...

SBA’s Office of Hearings and Appeals Holds that the Ostensible Subcontractor Rule is Contract Specific and Dismisses Appeal

By: Christine V. Williams on 06/26/2017

In Size Appeal of Bridgeway Professionals, Inc., SBA No. SIZ-5827 (May 2017), the SBA's Office of Hearings and Appeals (OHA) found that the Ostensible Subcontractor Rule was a contract specific finding of affiliation.  In this case, the SBA's area office had found Bridgeway, the prime contractor, was unduly reliant on its subcontractor and made a finding of affiliation  pursuant to the...

GAO Holds that Agency Properly Determined Sister Subsidiary’s Past Performance Evaluation Lacked Credibility In Evaluating Response to Solitication

By: Christine V. Williams on 06/25/2017

Summary: In PacArctic, LLC, B-413914.3; B-413914.4 (May 2017), the GAO upheld that an agency's  decision to disregard the past performance evaluation of a sister subsidiary when the only information on one of the contracts used for past performance came from a rating done by its sister subsidiary.  As such, the GAO held that the agency reasonably determined that the information in the past...

CPAR Guide from Government-November 2016 and Government Slide Deck

By: Christine V. Williams on 06/23/2017

The Contractor Performance Assessment Reporting System ("CPAR")  is often misunderstood in both importance and how to move the needle if you get a bad review.  A couple of resources from the Government may help without breaking the bank.  This update will give you, all from Government sources, the following:  (1) what CPARs are intended to do; (2) the November 2016 CPAR guide put out by the...

Department of Justice Granted Another Extension in the Rothe Case

By: Christine V. Williams on 06/22/2017

The Department of Justice has moved for another extension in Rothe Development Inc., v. the Department of Defense and the SBA.  You may recall that case was/is a facial Constitutional challenge to the SBA’s 8(a) Program.  In short, Rothe lost at the DC Circuit Court of Appeals and asked the US Supreme Court to hear this case.  DOJ will generally oppose this request (writ of certiorari) and...

New Legislation Introduced in the U.S. House to Help Small Businesses Recover Partial Payment of Claims Immediately through the Small Business Act

By: Christine V. Williams on 05/25/2017

Rep. Brian Fitzpatrick (Pa), along with Rep. Stephanie Murphy (Fl.) and Steve Knight (CA), introduced a bill to the House Small Business Committee with bi-partisan support to amend the Small Business Act to provide interim partial payment to small business contractors that request an equitable adjustment due to a change order in terms of a construction contract, and for other purposes. The...

When is a Bridge Contract a New Award-GAO and SBA Offers Clarification

By: Christine V. Williams on 05/22/2017

Many companies have struggled with the analysis of when a contract changes enough to truly become a new requirement.   Recently, the SBA and GAO offered some guidance for SBA contracts subject to the SBA regulations.  For more information and a cite to the case, please click here: Legal Update Bridge versus new Requirement