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Being a Not for Profit Company
Does Not Avoid Affiliation for Size Purposes

Size protests stemming from corporate affiliation between subsidiaries, sister companies, and owners are common. Less common are size protests stemming from affiliation with a non-profit. That was the situation in a recent Small Business Administration (“SBA”) size appeal. ZLynx Enterprises (“ZLynx”) won a contract for grounds maintenance services with a $7.5 million annual receipts size […]

Who Will Pay the High Price of FLSA & SCA Violations?

The U.S. Department of Labor (DOL) announced last week that a Virginia contractor has agreed to pay $2,772,977 in back wages to 6,450 employees for violating the Service Contract Act (SCA) and the Fair Labor Standards Act (FLSA). That’s a lot of money and a lot of underpaid employees! A brief description of the violations […]

FAR 52.222-46 Requires Realism Evaluation of Professional Compensation
Even If Agency is Awarding a Firm Fixed Price Contract

Sparksoft Corp. v. US, et al., Case No. 18-1708C, — Fed. Cl. –, 2019 WL 394396 (Fed.Cl. Jan. 31, 2019), was a pre-proposal protest against an RFQ let by the Centers for Medicare and Medicaid Services (“CMS”) that included FAR 52.222-46 – Evaluation of Professional Compensation – but the RFQ also was revised to say […]

“Read Receipt” and Failure to Extend Proposal Dooms Protest

An email “read receipt” was at the center of a recent GAO decision denying a protest on the grounds that the protestor failed to extend its proposal. In Emagine IT, Inc., B-416344, the Department of Health and Human Services (“Agency”) emailed the offerors on September 18, 2018 asking them each to extend their proposals through […]

New Law Extends the Benefits of Being a Small Business

Earlier this week, President Trump signed a bill (H.R. 6330, the Small Business Runway Extension Act of 2018) that could expand the ability of small businesses to get U.S. Government contracts. Many Government procurements are set aside for small businesses. Also, unrestricted procurements, i.e., those that are not set aside, often require large businesses to […]

Protesters Have Remedies When Promised
Corrective Action Doesn’t Materialize

When an agency announces it will take corrective action in response to a protest, protesters can usually view that as a “win.” Whether the agency will re-evaluate existing proposals or issue an amended solicitation inviting offerors to submit new or revised proposals, the protester gets a second chance to win the contract that it didn’t […]

GAO’s New Electronic Protest Docketing System Goes Live May 1, 2018 (Along with Mandatory $350 filing Fee)

Effective May 1, 2018, all protests, except those involving classified material, must be filed using GAO’s new Electronic Protest Docketing System or EPDS.  This is per a Final Rule issued by GAO on April 2, 2018.[1]  That rule also implements the mandatory $350 filing fee for each new protest starting May 1, 2018.  And, a […]

The Power of the OCI Waiver

Organizational Conflicts of Interest (“OCIs”) in government contracting create an unfair competitive advantage. The FAR requires contracting officers to identify and mitigate potential conflicts before awarding any contracts. See FAR 9.504. However, the FAR also provides that an agency may waive conflicts of interest if it is in the Government’s best interest. See FAR 9.503. […]

Government Shutdown – Impact on Bid Protests

While the US Federal Government Shutdown is over (for now), the shutdown had impacts on bid protests. According to the Government Accountability Office (“GAO”) website, those impacts are as follows: Deadlines for filing new protests:  The protest deadline is extended to the first day that GAO resumes operations following the shutdown. GAO’s closure as part […]

Challenging Negative CPARS at the Court Of Federal Claims: A Cautionary Tale

Cautionary tales have been around for hundreds of years, serving to warn its listeners of a certain danger. They traditionally have three parts: 1) a danger is identified; 2) someone engages in the dangerous act; 3) the results of engaging in the dangerous act are undesirable. This is one of many cautionary tales in the […]