GovConJudicata 2019: Thank You for Your Readership!
45th Post + 17 Weekly Debriefs = 62 Pieces of Content for GovCons!
It was a busy, inaugural year for GovConJudicata. The blog started with a simple mission: to provide news, insights, and legal analysis to the government contracting space.
In August, I launched the GovConJudicata Weekly Debrief series to keep you current with govcon news around the DC Beltway and beyond.
Tomorrow, I will officially [re]launch CyberJudicata as a stand-alone blog that will focus on providing news, insights, and legal analysis to the cybersecurity and privacy space.
I'm looking forward to providing more content in 2020, including on Twitter/Twitter!
Thank you for your readership!
Below are the 2019 GovConJudicata posts, excluding Weekly Debriefs.
"Last night, the President signed the National Defense Authorization Act ("NDAA") for Fiscal Year 2020 at Joint Base Andrews. The 2020 NDAA creates the the U.S. Space Force, the sixth branch of the U.S. military. The Space Force is America's first new military service since the passing of the National Security Act of 1947, which created the U.S. Air Force from the U.S. Army Air Corps."
"The Department of Defense ("DoD") recently published its Draft Cybersecurity Maturity Model Certification ("CMMC") Version 0.7 (dated December 6, 2019)."
SBA Size Standards: 5-Year Lookback Effective January 6, 2020
"Today, the U.S. Small Business Administration ("SBA") issued its final rule implementing the Small Business Runway Extension Act of 2018, Public Law 115-324, which was signed into law on December 17, 2018. The final rule changes the lookback period from a three-year averaging period to a five-year averaging period for purposes of calculating the size of a small business under receipts-based size standards."
"Today, the U.S. Small Business Administration ("SBA") published its final rule amending the Historically Underutilized Business Zone ("HUBZone") Program regulations. This is the first comprehensive regulatory amendment to the HUBZone Program in more than twenty years. The amendments are designed to 'reduce the regulatory burdens imposed on HUBZone small business concerns and government agencies, implement new statutory provisions, and eliminate ambiguities in the regulations.'"
"On Friday, November 22, 2019, the U.S. Government Accountability Office ("GAO") published a report on the Department of Defense's ("DoD") use of prototype other transactions agreements ("OTA") from Fiscal Years ("FY") 2016 through 2018, including 'the extent to which agreements officers followed established review processes before awarding selected transactions.'"
SBA Proposes to Eliminate the 3-Contract Limit for Joint Ventures
"For many small businesses, forming a joint venture ("JV") can be a great way to compete for larger government contracts. Indeed, combining technical capabilities or past performance can unlock revenue for JV members. Yet, with all of the upside, there are some issues that can be particularly troublesome."
"As many small business government contractors know, forming a joint venture ("JV") can be a great way to compete for government contracts. Indeed, combining technical capabilities or past performance can unlock revenue not otherwise available to each JV member individually. Yet, with all of the upside, there are some issues that can hinder a JV's chances of success."
RFP Amendment Adds Page Limitation, Contractor's Violation Sinks Proposal
"Government contracting is a challenging yet lucrative business model. First, contractors often face stiff competition in this $550 billion marketplace. And second, it also requires contractors to be familiar with an extensive––and complex––legal and regulatory framework under which Federal agencies procure goods and services."
Upcoming Webinar: Bid Protest Trends, Developments, and Issues
"On November 19, 2019, Joshua Duvall will be speaking along side a panel of industry experts on bid protest trends, developments, and issues."
"Today, the Department of Defense ("DoD") posted its Draft Cybersecurity Maturity Model Certification ("CMMC") Version 0.6 (dated November 7, 2019)."
GAO Publishes its Bid Protest Annual Report to Congress for FY 2019
"On November 5, 2019, the U.S. Government Accountability Office ("GAO") submitted its Bid Protest Annual Report to Congress for Fiscal Year 2019. The Report, which is mandated by the Competition in Contracting Act of 1984 ("CICA"), 31 U.S.C. § 3554(e)(2), requires GAO to provide Congress with: (1) "each instance in which a federal agency did not fully implement a recommendation made by our Office in connection with a bid protest decided the prior fiscal year," (2) "each instance in which a final decision in a protest was not rendered within 100 days after the date the protest is submitted to the Comptroller General[,]" and (3) "a summary of the most prevalent grounds for sustaining protests” during the preceding fiscal year. "
"On October 31, 2019, President Trump signed Executive Order ("EO") 13897, which revoked EO 13495 (Nondisplacement of Qualified Workers Under Service Contracts). As many might recall, EO 13495 required Federal contractors to offer a right of first refusal of employment to "qualified" service employees  (other than managerial and supervisory employees) employed under an incumbent contract. "
Contractor Noncompliance with Excel Filetype Requirement Sinks Proposal
"Contractors know all too well how challenging it is to win a government contract. From business development to capture, the process is labor intensive, costly, and complex. When the decision to bid is made, the path only becomes steeper, as contractors must not only submit a technically superior solution at "the right price" but also must ensure that their proposal complies with all of the stated solicitation requirements along the way."
SBA OIG Report: The Most Serious Management and Performance Challenges Facing SBA in FY 2020
"On Friday, October 11, 2019, the Small Business Administration Office of Inspector General ("SBA OIG") published its Report on the Most Serious Management and Performance Challenges Facing SBA in FY 2020. While the Report focuses on significant issues, its objective is to enhance the effectiveness of SBA's programs and operations."
Proposed Rule: FAR Limitations on LPTA Source Selection Process
"Today, the Department of Defense ("DoD"), General Services Administration ("GSA"), and the National Aeronautics and Space Administration ("NASA") have published a proposed rule to amend the Federal Acquisition Regulation ("FAR") to provide limitations on the use of lowest price technically acceptable ("LPTA") source selection procedures."
GAO Report: Information on Agencies' Use of the Lowest Price Technically Acceptable Process
"On September 26, the Government Accountability Office ("GAO") published a report on lowest price technically acceptable ("LPTA") procurements. Notably, the study was published on the same day as the Department of Defense ("DOD") published its final rule restricting the use of LPTA procurements (discussed here)."
"The end of FY2019 is around the corner, which means countless government contractors have recently received, or are patiently waiting to receive, an award decision from a Federal agency. Likewise, some contractors are also waiting for their opportunity to receive a debriefing."
DoD Issues Final Rule Restricting Use of LPTA Source Selection Procedures
"Today, the Department of Defense ("DoD") issued a final rule amending the Defense Federal Acquisition Regulation Supplement ("DFARS") to implement portions of the FY2017 and FY2018 National Defense Authorization Act ("NDAA"), which provide limitations and prohibitions on DoD's use of lowest price technically acceptable ("LPTA") source selection process."
GAO Report: Awards to Mid-Sized Businesses and Options for Increasing Their Opportunities
"On September 19, the U.S. Government Accountability Office ("GAO") publicly released a 54-page report on federal contracting opportunities for mid-sized government contractors.  The report was requested by the House Committee on Small Business after it learned that there is minimal data on what happens to contractors in the federal marketplace after they exceed their small business size standards."
"As many contractors are aware, Federal Business Opportunities (f/k/a "FedBizOpps" or "FBO") is being decommissioned and its functionality will be transitioned to beta.SAM.gov on or about November 8, 2019."
GAO: Agency Properly Found SDVOSB Ineligible Due to Issue With Corporate Name Change
"Recent GAO protest provides cautionary reminder to service-disabled veteran-owned small businesses ("SDVOSB")––as well as other government contractors––on one of the issues that contractors need to consider when changing your company's name."
GAO, SBA OHA: Contractors Should Use Three-Year Average to Calculate Size
"In the last month, both the Government Accountability Office (“GAO”) and the SBA Office of Hearings and Appeals (“SBA OHA”) have separately ruled that, for the purpose of calculating size under receipts-based size standards, contractors must continue to use a three-year averaging period, rather than a five-year averaging period, until the SBA concludes its rulemaking."
"Yesterday, the Department of Defense (DoD) published its Cybersecurity Maturity Model Certification (CMMC) Draft Version 0.4 (dated August 30, 2019). "
"Welcome news for many small businesses as the Small Business Administration (SBA) publishes its new size standards, effective as of August 19, 2019."
SBA Size Standards: Inflationary Adjustment of Monetary-Based Size Standards
"Today (7/18), the Small Business Administration ("SBA") issued an interim final rule with request for comments 'adjusting the monetary-based industry size standards (i.e., receipts- and assets-based) for inflation that has occurred since the last adjustment in 2014.'"
"Today (6/24), the U.S. Small Business Administration (SBA) published a proposed rule to modify its method for calculating average annual receipts used to prescribe its receipts-based size standards. The proposed rule changes the lookback period from a 3-year averaging period to a 5-year averaging period."
DoD Should Create Objective Guidelines for Selecting the Appropriate CMMC "Go/No-Go" Threshold for Set-Asides
"The Department of Defense (DoD) will likely publish a draft Cybersecurity Maturity Model Certification (CMMC) standard sometime this summer (see here and here)."
DoD to Propose Cybersecurity Maturity Model Certification (CMMC)
"DoD to propose Cybersecurity Maturity Model Certification (CMMC)––via third-party audit––and it will add another layer to defense contractor cybersecurity compliance."
Recent GAO Decision Reiterates: Veterans Come First at the VA
"Recent GAO decision––Veterans4You––reiterates that veterans come first at the Department of Veterans Affairs (VA)."
DoD Proposes Rule to Provide for Accelerated Payments to Small Business Contractors and Subcontractors
"On May 31, the Department of Defense (DoD) issued a proposed rule to implement section 852 of the FY 2019 National Defense Authorization Act (NDAA) (Pub. L. 115-232) by amending the Defense Federal Acquisition Regulation Supplement (DFARS) to provide accelerated payments to small business contractors and subcontractors."
"Today, May 14, the Small Business Administration published a proposed rule to require certification of Women-Owned Small Business Concerns (WOSB) and Economically Disadvantaged Women-Owned Small Business Concerns (EDWOSB) participating in the section 8(m) WOSB Program."
"The 2019 DBIR is finally here! Some interesting items at first glance: – 32% of breaches involved phishing"
GAO Protest Highlights the Need for Contractors to Account for Proposal Transmission Delays
"Recent GAO protest highlights the need for contractors to account for transmission delays when submitting proposals/quotations."
"SBA Office of Hearings and Appeals (OHA) decision regarding the eligibility of an SDVOSB joint venture (JV) provides cautionary reminder: keep your JV agreements (JVA) up to date."
Sedona Conference Publishes Commentary on Attorney-Client Privilege and Work Product Protection for Cyber
"The Sedona Conference Working Group 11 on Data Security and Privacy Liability (WG11) publishes commentary on the application of the attorney-client privilege and work product doctrine protections in the cybersecurity context."
Insight Into Recent Supreme Court Oral Argument Regarding "Confidential" Information Under FOIA Exemption 4
"The below article provides insight into a recent Supreme Court oral argument regarding Freedom of Information Act ("FOIA") Exemption 4. Food Marketing Institute v. Argus Leader Media (No. 18-481)."
GAO Decision Highlights Protest Timeliness for Postponed Pre-Award Debriefings (Competitive Range Exclusion)
"GAO decision highlights protest timeliness for postponed pre-award debriefings (competitive range exclusion). GAO's timeliness rules are strictly construed and provide that a protest following a "required" post-award debrief is timely if it's filed not later than 10 days after the debriefing."
GAO: Agency's Upward Adjustment of Incumbent's Proposed Labor Rates is Reasonable
"Incumbent contractors should heed this GAO decision regarding the reasonableness of an agency's upward adjustment of the protester's (the incumbent) proposed labor rates."
GAO Protest is an Instructive Reminder to Contractors Regarding Timeliness Rule for Protests Filed Before a Required Debriefing
"GAO protest is an instructive reminder to contractors regarding timeliness rule for protests filed before a required debriefing. GAO's regulations generally provide that post-award protests must be filed within 10 days after the basis for protest is known or should have been known."
SBA Revises White Paper, "SBA's Size Standards Methodology (April 2019)"
"On Thursday, April 11th, the SBA published a notification that it revised its white paper, 'SBA's Size Standards Methodology (April 2019).'"
"Got DoD Cyber Compliance? For DoD contractors, it appears that DFARS 252.204-7012 (NIST SP 800-171) compliance was just the beginning. Next, DoD will not only begin auditing companies for compliance within the next 18 months but also DoD is in the process of creating 'new cybersecurity standards this year.'"
SCOTUS to Rule on Agency Deference––Ruling May Impact Contractors
"On March 27, 2019, the Supreme Court of the United States heard oral argument in a veteran's disability benefits case, the outcome of which will likely impact the government contracting community (agency deference). Kisor v. Wilkie (No. 18-15)."
Two Recent GAO Bid Protest Decisions Highlight an Important Aspect of Agency Evaluations
"Two recent GAO bid protest decisions (both sustained) highlight an important aspect of agency evaluations. That is, agencies must look beyond mere adjectival ratings, and instead turn to the underlying merits behind those ratings, when making an award decision. GAO's rule statement in both decisions (linked below) is nearly identical and can be summed up as follows:"
"For small businesses, entering into the world of federal procurement is often viewed as a costly, complex endeavor. This is due, in part, to the myriad of laws and regulations governing federal procurement. Compliance can be both laborious and expensive. But, familiarity with this vast regulatory regime can occasionally bear a competitive advantage for some small businesses. One such example is intertwined with North American Industry Classification System (NAICS) codes––or, more specifically, NAICS code appeals."
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