I am excited to invite you to attend Fox’s 2021 Federal Contracts Symposium on October 25 and 26 — just two weeks away!

After careful consideration, we’ve made the decision to switch to a fully virtual format on an interactive platform.  While we hoped to see everyone in person, the Remo Tables platform offers plenty of opportunities for questions and even networking.

Please use this link to register

This year, I’ll be teaching a session with Diana McGraw addressing how to navigate terminations on federal projects.  We’ll cover key considerations for contractors dealing with the threat of termination for default or convenience under the FAR.  We’ll also tackle subcontract drafting and subcontractor management in the context of a termination scenario.

The session will feature a virtual lunch Judges’ Panel moderated by Federal Government Contracts Practice Chair Reggie Jones and featuring Judge Patricia E. Campbell-Smith (United States Court of Federal Claims), Judge Jeri Somers (former Chair of the Civilian Board of Contract Appeals), and Judge Carol Park-Conroy (JAMS Mediator, Arbitrator and Neutral Case Evaluator).

Based on popular demand, we’ve also added a session addressing what contractors need to know about the new Federal Vaccine Mandate.

Additional topics will include

  • Bid Protests
  • Effective Allocation of Damages for Federal Contract Claims
  • False Claims Act Internal Investigations
  • Expanding Your Business Through Mergers and Acquisitions
  • Suspension and Debarment; and
  • The Government’s Rights to Your Intellectual Property

You can view the full agenda here.

We hope to see you virtually on the 25th (and in person next year).  Please feel free to contact me directly with any questions about the event.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

Please join Nick Solosky and Diana McGraw for a free webinar focused on successful partnering for federal contracting opportunities.  We are excited to be working with the Washington Building Congress on this presentation.

The webinar will be held on Thursday, June 10 at 11:00 Eastern.  Please click here to Register.

The webinar will focus on helping contractors adapt to market shifts experienced in 2020 and focus on opportunities available in the federal marketplace — for 2021 and beyond.

A major point of discussion will be the Small Business Administration’s October 2020 Final Rule, which provides much needed clarity for government contractors (both large and small) on issues including:

  • Multiple Award Contracts and Requirements for Certification and Recertification
  • Affiliation Rules and Size Determinations
  • Joint Venture Requirements
  •  SBA’s All Small Mentor-Protégé Program

If you are interested in exploring federal work — or if the government is already one of your clients — understanding this Rule is the key to unlocking new opportunities.  Even in  uncertain times like these, the government continues to spend money..  For example, President Biden’s American Jobs Plan alone includes a proposed multi-billion dollar investment in transportation infrastructure over the next 10 years. Opportunities abound for those ready to take action.

We hope that you are able to join us for the webinar.  If not, please feel free to contact us directly for a copy of the presentation materials, or to discuss specific questions.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

Join us tomorrow, December 8 at 12:00 Eastern for Part III of our Web Series covering the Small Business Administration’s Final Rule: Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments.

To Register, please Click Here.

In this session, we’ll cover changes to the SBA’s rules and regulations governing Affiliation.

It should go without saying that every small business needs to stay current regarding the rules of affiliation.  Affiliation with a large business renders small businesses ineligible for critical set-aside contracts.  Simple mistakes, misunderstandings, or even ignorance of the law are no excuse – it is up to each small business to stay informed.

To help keep your business ahead of the curve, we’ll examine updates regarding economic dependence, the newly organized concern rule, and the ostensible subcontractor doctrine.  As always, we’ll also break down the real world application of the changes.

In addition to affiliation, this session will examine other rule changes that small businesses need to understand.  Most notably, the Final Rule adds a requirement that procuring agencies must consider the “capabilities, past performance, and experience” of the first-tier subcontractors if the small business prime contractor cannot independently demonstrate its own capabilities and past performance needed for contract award.  We’ll discuss what small businesses must do to best take advantage of this change.

If you missed out on Parts I and II of the Web Series – Good News!  The materials are now available online.

You can check out Part I on covering Multiple Award Contracts here.

Part II on Joint Ventures and the All Small Mentor-Protégé Program is available here.

We designed this Web Series to provide Federal contractors and industry professionals a meaningful and practical crash course in what the Final Rule means and how it will impact business operations.  Each one hour and fifteen minute session will take place through the interactive Remo webhosting platform and consist of learning and networking opportunities, broken down in the following schedule:

15 minute Networking Session

30 minute SBA Final Rule Topic Presentation

30 minute Follow-Up Networking

We look forward to seeing you there.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

Fox is excited to announce a new four-part Web Series covering the Small Business Administration’s Final Rule: Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments.  The Final Rule is more than 50 pages – all packed with significant new rules and changes that will affect how both large and small businesses do work for the Federal Government.

Join Nick Solosky and Diana McGraw next Tuesday November 17, 2020 at Noon EasternClick here to Register today (the first 100 to register get lunch on us).

The first session will cover the Final Rule’s impact on Multiple Award Contracts and Requirements for Certification and RecertificationShawn Ralston (Small Business Liaison Officer, AECOM) will join us for this session and offer his insights on the practical application of the Final Rule.

In future weekly sessions we will also cover:

  • Changes to the 8(a) Program;
  • Updates to the Small Business Regulations and Affiliation Rules Generally; and
  • Joint Ventures and the All Small Mentor-Protégé Program Limitations and Requirements

We designed this Web Series to provide Federal contractors and industry professionals a meaningful and practical crash course in what the Final Rule means and how it will impact business operations.  Each week, we will also invite industry guest speakers to offer valuable advice and insights.

Each one hour and fifteen minute session will take place through the interactive Remo webhosting platform and consist of learning and networking opportunities, broken down in the following schedule:

  • 15 minute Networking Session
  • 30 minute SBA Final Rule Topic Presentation
  • 30 minute Follow-Up Networking

We look forward to getting your business ahead of the curve.

Be sure to check back here for detailed discussions of the Final Rule changes that will accompany each weekly Web Session.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

Government contractors may face performance evaluations by federal agencies that erroneously or capriciously capture the  efficacy of their work,  at times by seemingly arbitrary standards. These evaluations can hobble key abilities to gain new projects — the lifeblood of federal contractors.

In his article for Modern Contractor Solutions, Federal Government Contracts and Procurement Partner Nicholas Solosky details how the Contract Disputes Act (CDA) creates the framework for handling “claims” against the government on Federal contracts and discusses key evaluation issues, including: 

  • Past Performance
  • Ratings and Narratives
  • CPARS Procedure/Timeline
  • Practical Resolution Strategies

Read the full article.

A quick reminder that Fox Rothschild (Virtual) Federal Contract Symposium starts this Monday (October 5).

Please Click Here to Register for the Symposium.

After careful consideration, we elected hold the event virtually.  However, using the innovative Remo platform, you can still expect an interactive and engaging two days of remote targeted sessions on the most important legal topics facing the industry.

I’ll be presenting on Recent Trends in GAO & COFC Bid Protests.  In addition, my colleagues will present on topics including:

• Federal Affirmative Action Plans & Equal Employment Opportunity Requirements
• Federal Contract Ethics & Compliance Program Requirements
• Agency Counsel’s Perspective: How to Communicate Effectively & Resolve Disputes With Government Customers
• Effective Management, Litigation & Resolution of Complex Claims
• Internal Investigations & How to Avoid False Claims Act Violations; and
• Navigating the DFARS & CMMC Cybersecurity Requirements

We’re also pleased to present the Keynote Presentation by Patrick J. Fitzgerald (Director at Baker Tilly and former Director of the Defense Contract Audit Agency at the Department of Defense).  The Full Symposium Agenda is available  here.

CLE credit is available for certain jurisdictions and the first 100 registrants will enjoy  complimentary lunch on both days via delivery service.

If you have questions or want to receive additional information and updates, please contact Stacy Flynn at sflynn@foxrothschild.com or 215.299.2035.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

I am excited to host this upcoming Webinar on Protecting the Reputation of Government Contractors by Challenging Erroneous CPARS Evaluations.

The Webinar goes Live on Wednesday, August 19 at Noon Eastern.  If you are unable to attend, please contact me directly :  nsolosky@foxrothschild.com or 202-696-1460.

Click Here To Register Now

Webinar Preview

A negative performance evaluation from a Federal agency, or worse a recommendation against future performance, can make it very difficult for a government contractor to win new work.

But all is not lost.

Contractors that have been unjustly injured by an erroneous Contractor Performance Assessment Reporting System (CPARS) evaluation have options.  Venues such as the U.S. Court of Federal Claims and Boards of Contract Appeals are increasingly entertaining claims filed by contractors over inaccurate CPARS evaluations – including claims for monetary damages.

In this webinar, we will cover:

• Practical strategies for contractors to deal with unfair and harmful CPARS performance evaluations before they become final.

• A review of the claim and litigation process in the event that early intervention is unsuccessful.

• New and innovative strategies emerging for performance evaluation disputes – including how contractors can seek to recover monetary damages associated with negative performance evaluations.

Register for the Webinar Here

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

The Small Business Administration (SBA) finally put an end to self-certifications for the Woman-Owned Small Business Program (WOSB).  Starting now and continuing through October 15, 2020, federal contractors that want to perform future WOSB set-aside contracts must complete the certification process at www.certify.sba.gov.

Why Require Formal Certification?

The WOSB Program aims to award at least five percent of all federal contracting dollars to woman-owned small businesses each year (including exclusive set-aside contracts in under-represented industries).  But recent studies show that those awards too often go to businesses that do not actually qualify as true WOSBs under the law (despite having self-certified as  both woman-owned and small).

To address this issue, SBA is adding additional oversight through a mandatory certification process.

SBA says that:

These new regulations make it easier for qualified small businesses to participate in the WOSB Federal Contracting Program by improving the customer experience. At the same time, the SBA is strengthening oversight and maintaining the integrity of the certification process.

SBA will begin issuing decisions on certification applications on October 15.   In the meantime, WOSB contractors  can continue to rely on self-certifications.

Moving forward, the SBA will also continue allow  WOSB certification through approved third-party vendors.

Important Contractor Considerations

It is important to remember that formal certification with the SBA is the last step for WOSBs – not the first.

Contractors must consider what it means to own and control a business in the eyes of the SBA.

You should also consider what it means to be small, and whether your business can take advantage of the Economically Disadvantaged WOSB Program (EDWOSB).

SBA’s regulations often present a moving target.  Regular small business size-status checkups is the best way to stay in the game and avoid perilous claims of size status fraud.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

Please join my colleagues Reggie Jones and Diana McGraw tomorrow for an upcoming webinar covering the CARES Act, the Paycheck Protection Program, and the heightened risk of Federal enforcement:  Federal Relief for COVID-19: Protecting Against the Increased Risk of False Claims.

The webinar draws on the lessons of the Great Recession concerning the increased scrutiny that falls on businesses that accept federal relief funds.  During the program, Reggie and Diana will discuss the history of the civil and criminal False Claims Acts (the primary tool for government enforcement actions).  The program also offers practical advice for firms that accepted relief funds concerning how to recognize and mitigate risk through strong business and ethics compliance programs.

We will broadcast the webinar live tomorrow July 14 at Noon Eastern (9:00 a.m. Pacific)Please click here to register.

If you are unable to attend the webinar live, please contact me for additional information.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

Contractors filed 2,071 bid protests at GAO  in 2019– the lowest number in five years.

One possible cause for the decline is the Department of Defense’s enhanced debriefing procedures.  Enhanced debriefings mean that contractors have greater access to information before the GAO’s short-fuse filing deadline and can make better-informed decisions regarding protests.

Importantly, the enhanced procedures also permit contractors to ask targeted questions regarding the agency’s source selection decision.

By understanding how to take advantage of debriefings and ask good questions, contractors can maximize the effectiveness of the bid protest process and increase the odds of a favorable outcome.

What Are Enhanced Debriefing Procedures?

DoD implemented mandatory enhanced debriefing procedures about two years ago.  The purpose is to provide unsuccessful offerors “an opportunity to submit additional questions related to the debriefing within two business days after receiving the debriefing.”

Agencies must “respond in writing” within five business days after the receipt of the contractor’s questions.

While these requirements may seem modest, the enhanced procedure allow for a more meaningful process and an opportunity for the contractor to better understand the agency’s decision.

By comparison, civilian agency debriefings (which have not implemented enhanced procedures) are much more one sided.  A contractor that does not receive a helpful debriefing is left in the unenviable position of potentially investing resources into a bid protest without a complete understanding of the agency’s position regarding the contractor’s proposal.

How To Ask Better Questions and Use Enhanced Debriefings To Your Advantage

A contractor’s goal for every debriefing should be to gather as much information as possible from the contracting officer.  The more the contracting officer speaks (or writes), the more the he or she is likely to say something that may be helpful in a possible protest of the contract award.

With that in mind, the Q&A element of enhanced debriefings is critical.  Consider a mix of open-ended questions and questions more targeted to the area(s) of concern.

Contractors should also consider the source of the debriefing.  While no one is happy to lose out on a contract, try to avoid questions that overtly telegraph a pending bid protest.  The threat of litigation could lead to receiving less useful information from the debrief.

Instead, for every debriefing, focus on the goal of improving for the next bid or proposal.  This approach will likely enable the contractor obtain more information during the debriefing than if the contracting officer believes the debriefing is a precursor to a protest.

However, if the contracting officer provides information during the debriefing indicating a procurement error, the contractor can run with the information by filing a protest.

The Effect on Bid Protest Timing

The short-fuse for GAO bid protests makes every day during the debriefing process critical.

DoD’s enhanced debriefing procedures help here, too.  A recent decision from the Court of Federal Claims holds that the Q&A period defines the debriefing period and, by extension, the deadline for obtaining a mandatory stay of contract performance.

In the decision, the Court held that the “debriefing date” is that last day available to the contractor to submit questions (even if the contractor elects not to do so).  In other words, the debriefing period continues while the contractor thinks it over.

Once the debriefing period ends, the contractor must file the protest within the usual five days to obtain the stay.

Practice Tip:  While this decision is helpful in terms of defining the time to file a protest, contractors must always remain vigilant on bid protest deadlines.   Key words and phrases from the agency (like, “this concludes the debriefing”) should always play a role in decisions on the time for filing.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.