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Olivia L. Lynch is a partner in Crowell & Moring's Government Contracts Group in the Washington, D.C. office.

General Government Contracts Counseling. Olivia advises government contractors on navigating the procurement process, compliance and ethics, commercial item contracting, accessibility, supply chain assurance, and various aspects of state and local procurement law.

Major changes to the way small business contractors obtain, and agencies evaluate, past performance references are set to arrive on August 22, 2022. On July 22, 2022, the Small Business Administration (SBA) published a final rule implementing provisions of Section 868 of National Defense Authorization Act for Fiscal Year 2021. The rule provides two new methods for small business contractors to obtain past performance ratings upon which they may then rely when submitting offers on prime contracts with the Federal Government.

First, a small business offeror may rely on the past performance of a joint venture of which it is a member, as long as the small business was involved in performance of the joint venture’s contract(s).  To that end, when submitting a proposal, the small business must: (1) identify the joint venture; (2) specify the joint venture’s contract(s) the small business elects to rely upon; and (3) detail the duties and responsibilities the small business carried out as part of the joint venture. Provided these requirements are met, the procuring agency shall (per 13 C.F.R. § 125.11) consider the past performance of the joint venture when evaluating the past performance of the small business concern.

Continue Reading SBA to Implement New Methods for Evaluating Expanded Sources of Small Business Past Performance

On March 23, 2022, a bipartisan group of senators introduced the Preventing Organizational Conflicts of Interest in Federal Acquisition Act. Designed to identify and address potential conflicts of interest in the federal acquisition system, current and prospective government contractors should closely monitor the Act’s progress.

The Act emphasizes the potential for conflicts of interest

On February 24, 2022, the Department of Defense, General Services Administration, and the National Aeronautics and Space Administration proposed to amend the Federal Acquisition Regulation (FAR) to account for changes made by the Small Business Administration (SBA) in its regulations in late 2019 to implement several provisions of the National Defense Authorization Acts of 2016

In a February 11, 2022 decision, the U.S. Court of Federal Claims (Court) dismissed for lack of interested party status a post-award protest filed by Colsa Corp. (Colsa) in which it challenged the status eligibility of other offerors.

In September 2018, the Missile Defense Agency (MDA) issued a solicitation seeking a single contractor to provide

On February 28, 2022, the Department of Defense (“DoD”) published a proposed rule to reauthorize and improve DoD’s Mentor-Protégé Program (“the Program”).

Briefly, under the Program, approved mentor firms enter into mentor-protege agreements with eligible protege firms to provide developmental assistance to enhance the capabilities of the protégé firms to perform as subcontractors and suppliers

On February 7, 2022, the Small Business Administration’s (SBA) changes to the “surviving spouse” provision in its regulations on Service Disabled Veteran Owned Small Business (SDVOSB) status became effective.  SBA had issued a direct final rule covering this change, 86 FR 61670, on November 8, 2021.

In brief, SBA’s now provides for a 3-year

Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this episode, hosts Olivia Lynch and Rob Sneckenberg interview in-house counsel from LMI, Adele Navarrete, about organizational conflicts of interest.

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On January 12, 2022, the U.S. Attorney’s Office for the District of Colorado announced a $1.15 million civil settlement in a case implicating misuse of the Small Business Administration’s (SBA) Mentor-Protégé Program.  The settlement is to be partially paid by both the SBA-approved mentor and protégé relating to conduct associated with winning and performing two set-aside awards.

Native American Services Corp. (NASCO) was the mentor to Mirador Enterprises, Inc. (Mirador), a small business and participant in the SBA’s 8(a) Program.  The contracts at issue in this settlement were two Army set-asides for construction projects at Fort Carson—one set-aside for small businesses and one for 8(a) participants.  At the time that Mirador submitted offers as a prime contractor for each of these procurements, Mirador qualified both as a small business and as an 8(a).

The problem, as alleged by DOJ, was that NASCO prepared the bids with the intent that NASCO would primarily perform the contracts.  DOJ further alleged that, after the Army made award to Mirador, NASCO took the lead in the performance of these two contracts and provided assistance that far exceeded what was permitted under the Mentor-Protégé relationship.

Once the government raised concerns about NASCO’s “improper level of involvement,” the parties purportedly doubled down and took steps to conceal how they were actually performing.  As laid out in DOJ’s press release:

  • The parties tried to make it appear that NASCO was transferring employees to Mirador, but these employees remained under NASCO’s control;
  • NASCO provided information to Mirador employees to make them appear more involved or knowledgeable about the contracts than they actually were; and
  • NASCO drafted correspondence for Mirador’s signature, to be submitted to the government.

Of the $1.15 million civil settlement, NASCO will pay $750,000 and Mirador $400,000.

There are two takeaways from this settlement.

Continue Reading DOJ Reaches Settlement in Fraud Case Regarding Misuse of the Mentor-Protégé Program

Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this episode, hosts Christian Curran and Olivia Lynch discuss a recent decision from GAO regarding the interplay between price reasonableness and price

In early January 2022, the Government Accountability Office (GAO) published a report on the Small Business Administration’s (SBA) 8(a) Business Development Program’s procedures for verifying whether tribes identified by program applicants were federally or state-recognized Indian tribes.

As is well known, the ability of a small business to participate in the 8(a) Program can be