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In the face of an actual or potential organizational conflict of interest (OCI), the potential solutions are often limited. There are several options for contractors and the government that are broadly categorized as mitigation, avoidance, neutralization, limitations on future contracting, and exclusion. Although used sparingly, the FAR also provides that the government can “waive” actual or potential OCIs. Specifically, FAR 9.503 states: “The agency head or a designee may waive any general rule or procedure of this subpart by determining that its application in a particular situation would not be in the Government’s interest.”

A recent GAO decision sheds light on how contractors and agencies should think about OCI waivers. CACI, Inc.-Federal; General Dynamics One Source, LLC, B-413860.4, et al., Jan. 5, 2018.


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Crowell & Moring has issued its Regulatory Forecast 2018: What Corporate Counsel Need to Know for the Coming Year.

The section focusing on government contracts, Will Purchasing Be Streamlined?” provides an overview of how the procurement process might be made more efficient, and this time, government contractors might be able

With 2017 firmly in the rear-view, it’s time to take stock of recent and anticipated bid protest developments.  Today, we’ll look back and highlight five of the most significant trends in 2017 bid protests.  In the near future, we’ll turn our gaze forward and predict the five most important protest developments to keep an eye on in 2018.

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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 inaugural episode, hosts Olivia Lynch, Rob Sneckenberg, and Christian Curran cover GAO’s FY2017 bid protest statistics, the RAND Corp.’s comprehensive report

Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without. This latest edition is hosted by partner Peter Eyre and counsel Olivia Lynch and includes updates on GAO reports on cybersecurity, a

In this second part of our blog series about the July 25, 2016 SBA final rule implementing numerous changes to multiple SBA regulations and establishing a new small business Mentor-Protégé Program (SB MPP), we address how such implementation impacts the parallel 8(a) Business Development mentor-protégé program (8(a) MPP).  As the final rule points out, the 8(a) MPP will remain intact; however, the SBA has made several changes to the regulations governing that program, which largely represent the SBA’s efforts to harmonize the two programs.  The paragraphs below discuss some of these changes, including those impacting the requirements for entry, ongoing reviews and terminations, and reporting obligations.

Requirements for Entry into the 8(a) MPP

With the creation of the SB MPP, companies qualifying as an 8(a) have the option to participate in either the 8(a) or the SB MPP. Any current or future participant in the 8(a) MPP should be aware of the final rules’ numerous changes to this program, as discussed below.
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On July 25, 2016, the SBA published its final rule establishing a government-wide mentor-protégé program for the benefit of all small businesses as protégés.  This widely-anticipated rule, implementing provisions of the Small Business Jobs Act of 2010 and the National Defense Authorization Act for Fiscal Year 2013, provides increased opportunity for small and large businesses to partner with one another.  Effective August 24, 2016, this new program is expected to unleash a flood of new mentor-protégé agreements (MPAs) as well as joint ventures eligible to compete on set-aside procurements, and it could likely result in an increase in the number of set-aside procurements.

Below we discuss the benefits from participating in this program, the requirements for the mentor-protégé agreement (“MPA”), the eligibility criteria for mentors and protégés, and the requirements for joint ventures established pursuant to the MPAs. Given the numerous benefits to participating in this program, including the opportunity to joint venture, the SBA has layered into this final rule the requirement for numerous express certifications of compliance and severe consequences for violation of the SBA’s regulations, MPAs, and/or joint venture agreements.  A separate blog post will address the changes that the SBA is implementing in the final rule to the SBA’s current regulations governing the 8(a) business development (BD) program.


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In this part of our ongoing series (see Part I, Part II and Part III) on the Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments implementing the National Defense Authorization Act of 2013 (FY2013 NDAA) Amendments, we address the new recertification requirement that is triggered following the merger, sale, or acquisition of a firm that has submitted an offer as a small business concern (SBC).

A concern that represents itself as a small business and qualifies as small at the time of proposal submission is considered to be a small business throughout the life of that contract.  This even applies for Multiple Award Contracts—the SBC is considered small for each order issued against the contract with the same NAICS code and size standard (unless a contracting officer chooses to request a new size certification in connection with a particular order).  In other words, even where a concern grows to be other than small, the procuring agency may exercise options and still count the award as an award to a SBC, unless a recertification requirement has been triggered.

Given the great boon that comes to a firm upon award of a contract where it has qualified as a SBC, the SBA has long sought to set the right balance for what should happen when a small business is involved in a merger, sale, or acquisition. The concern is that if a SBC could submit a proposal with pricing, certify that it is small, and actually qualify on that date of proposal submission as small, should that small business be able to sell itself following proposal submission or contract award to a large business and allow the large business to benefit for up to five years of contract performance as a “small business”?  The SBA’s answer to that is no.  The SBA’s regulations as currently drafted require recertification in certain circumstances following a merger, sale, or acquisition but only once award has already been made.  In the final rule, SBA imposes new recertification requirements aimed at changes that occur within the window between proposal submission and contract award.


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As we have previously addressed, the Small Business Administration’s (SBA) final rule, Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments, has implemented numerous changes to small business contracting contained in the National Defense Authorization Act of 2013 (FY2013 NDAA).  Below we discuss an important change to one affiliation test as well as newly introduced exclusions from affiliation.  On the whole, these changes make it easier for small businesses to work together without risking a finding of affiliation.

Affiliation is a central component of SBA’s regulations: in determining a concern’s size, SBA counts the receipts, employees, or other measure of size of the concern whose size is at issue and all of its affiliates (domestic and foreign).  In other words, these tests and (and exemptions or exclusions) affect whether SBA finds a concern to be small or other than small based on its relationships with other concerns.


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The Small Business Administration’s (SBA) final rule, Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments, implements changes regarding small business subcontracting plans contained in the National Defense Authorization Act of 2013 (FY2013 NDAA).  We discuss the key changes below.  This rule becomes effective June 30, 2016, but as some of the changes impact the proposal process which can involve planning and team selection months in advance of proposal submission, contractors need to focus on the new requirements now.

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