certification | The Contracting Education Academy

February 23, 2021 By cs

Size recertification prior to contract award – When is it required?

The U.S. Court of Federal Claims (COFC) decision in HWI Gear, Inc. v. United States highlights the importance of reviewing a solicitation to determine if the text of Federal Acquisition Regulation (FAR) 52.219-28 is included in it, as well as the risk of engaging in corporate transactions while a proposal to a procuring agency is pending.

In this case, the COFC held that an offeror was required to recertify its size status during a procurement, and the agency’s failure to enforce this requirement invalidated the award.

In HWI Gear, Mechanix Wear, Inc. (Mechanix) and HWI Gear, Inc. (HWI) submitted proposals in response to a solicitation set aside for small businesses. After proposal submission but before award, Mechanix informed the procuring agency that it had changed its corporate structure from a corporation to a limited liability company and changed its corporate name, but that all other terms and conditions in its proposal remained unchanged. Mechanix, however, did not inform the agency that its change in corporate structure was the result of a merger with a large business and that Mechanix no longer qualified as a small business under the size standard established for the procurement. The agency ultimately selected Mechanix as the awardee, and HWI filed a bid protest challenging the agency’s evaluation.

Keep reading this article at: https://www.jdsupra.com/legalnews/size-recertification-prior-to-award-4583775/

January 8, 2021 By cs

Judge rules that lying about 8(a) eligibility violates False Claims Act

Another court has joined the growing chorus of judges who are singing the same tune on set-aside fraud: when a government contractor lies about its eligibility for a set-aside contract, it violates the False Claims Act, and can be sued by either the Department of Justice or a whistleblower.

The new case is United States ex rel. Montes v. Main Building Maintenance Inc., and the decision was issued on December 22, 2020, by Judge Jason Pulliam of the Western District of Texas.

This is a qui tam case brought under the False Claims Act by a whistleblower, or “relator” as it’s called under that statute. The relator alleges that two parents, Robert and Elvira Ximenes, created a company, JXM, to bid on government contracts reserved (or, in technical terms, “set aside”) for contractors that qualified for the so-called “8(a) Business Development program” for small businesses that are owned by “socially and economically disadvantaged people or entities.”

To qualify for such set-aside contracts, the business must first be “certified” as eligible by the Small Business Administration (SBA). And to be eligible for such certification, the business must make a series of representation to SBA about who both owns the business, and who controls the business.

Keep reading this article at: https://www.natlawreview.com/article/federal-judge-texas-rules-lying-about-eligibility-8a-business-development-program

December 2, 2020 By cs

New small business rules: Capabilities of small business joint venture members and first-tier subs

The U.S. Small Business Administration (SBA) has published a long-awaited rule that made important changes to numerous small business contracting programs and the rules Federal agencies must follow when contracting with small businesses.

These changes went into effect on November 16, 2020. You can read a summary of the rule here and read the rule itself here.

Here, we take a closer look at changes in the way procuring agencies will have to consider the past performance, experience, security clearances, capabilities, and certifications of small businesses and small business joint ventures.

To understand why the new rule is important, it’s useful to consider the current state of affairs. When businesses compete for Government contracts, they often create joint ventures or put together subcontractor teams with different companies complementing each other’s capabilities and experience. In general, procuring agencies have had wide latitude in being able to specify on a procurement-by-procurement basis the extent to which the prime offeror itself must have certain capabilities and experience, and the extent to which the offeror may rely upon subcontractors or joint venture members to fill in any gaps.

There currently is one principal exception to that wide latitude. When an offeror is a small business joint venture, the procuring agency is required to consider the past performance and experience of the joint venture members (including of any large business mentor joint venture member) as the past performance and experience of the joint venture itself. 15 U.S.C. § 644(q)(1)(C); 13 C.F.R. § 125.8(e) (Dec. 27, 2016).

Keep reading this article at: https://www.mondaq.com/unitedstates/government-contracts-procurement-ppp/999586/new-small-business-rules-capabilities-of-small-business-joint-venture-members-and-first-tier-subcontractors

November 23, 2020 By cs

ASBCA revisits email “signature” and finds typed name meets the test

In a departure from its prior precedent, the Armed Services Board of Contract Appeals (ASBCA) recently held in Kamaludin Slyman CSC, ASBCA Nos. 62006, 62007, 62008, that a typed name at the end of an email satisfies the certification requirement under the Contract Dispute Act (CDA), so long as it is discrete, verifiable, and conveys an intent to authenticate.

The contractor at issue submitted a $155,500 demand for payment to the Government in March 2013, thus, triggering the CDA’s certification requirement under FAR 52.233-1. The demand itself did not contain a certification, but the contractor sent a follow-up email just prior to the six-year statute of limitations, stating:

Hey Sir,

For contract numbers -12-C-0089, -12-C-0131, -11-C-0322, and the claims submitted in respect to them on March 16, 2013, I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the contractor.

Sincerely,

Kamaludin Slyman

Three days after sending this email, the contractor submitted an appeal to the ASBCA pursuant to a “deemed denial” and the Government moved to dismiss asserting that the contractor had failed to sign its certification and, thus, failed to certify its claim. The Board noted that the Government did not argue in its motion that the appeal was premature, as the requisite 60 days had not passed between the certification and the purported deemed denial. However, because at the time of its decision more than 60 days had elapsed since the certification, the ASBCA saw “no useful purpose in dismissing the appeal as premature and requiring appellant to refile.”

Keep reading this article at: https://www.mondaq.com/unitedstates/government-contracts-procurement-ppp/1003364/asbca-revisits-email-signature-and-finds-typed-name-meets-the-test

August 25, 2020 By cs

4 lessons from SBA’s $30 million ‘Certify’ platform debacle

Let me know if you’ve heard this one before: An agency hires “experts” to develop an application, spends tens of millions of dollars and the effort falls flat.

This easily could be the story to focus on with Small Business Administration’s Certify.SBA.gov project.

A recent agency inspector general report found the agency brought in U.S. Digital Service experts, spent upwards of $30 million over the last five years to develop the platform only for most of the effort to go to scrap and forcing SBA to basically start over again.

Instead this is a story about perseverance. It’s a story about lessons learned that every agency should keep in mind. And this is a story that offers an inside view into why federal projects do fail and how simple steps could change the direction of any IT project.

Keep reading this article at: https://federalnewsnetwork.com/reporters-notebook-jason-miller/2020/08/4-lessons-from-sbas-30m-certify-platform-debacle/