Size and Status Protest Episode

Joseph:
All right. We've got a few more people funneling in, but we'll go ahead and get started because we want to be respectful of everyone's time. We sent out an invite, or rather a reminder, about an hour before the 10:00 Mountain Time, about an hour before this kicked off with some instructions, so hopefully, I know I got some feedback on the last one that some people had some difficulty getting into the room. Hopefully those technological issues have been worked out. So I'm going to kick it off.

Joseph:
Hello everyone, and welcome back to another version of David versus Goliath, and 10 weapons small businesses and general councils need to win. If this is your first webinar with us, welcome. If you have joined us before, we are flattered and welcome back.

Joseph:
Today, we're going to start the first of what will be a multi-part series in post award bid protest. Specifically, we're going to be covering size standard protest and socioeconomic status protests. Both are governed by the Small Business Administration or SBA, and both must be submitted within a very limited timeframe. With me today is [Dani Terolli 00:01:03], she is one of our associate attorneys in our firm, and has moderated all of our previous webinars. The structure of today's webinar will be primarily a Q & A. The questions are the variety that we regularly get from clients and from prospective clients on what to do immediately following the award of a contract or the government's notice of potential award. These types of questions usually creep in when you, as the disappointed offer, are convinced that the awardee either does qualify because it is too large, or because it doesn't meet within the socio-economic set-aside criteria.

Joseph:
The time today will be split with the first 20 minutes of question and answer being between Dani and me, and we will try to reserve the last 10 minutes to answer questions that you, as the audience, may have, and there should be a Q & A button on your screen. You can submit questions that way, and then of course we'll moderate, Dani will moderate those and we'll have an opportunity to touch on those. A few of you have already started to send chats. All right, and Tom is in the background and he will be helping you guys with any technical issues or any questions. If I'm not speaking up loudly enough, just let us know through the chat, and I'll try to adjust.

Joseph:
All right. So without further ado, I'll let Dani shoot the first question, and that be the last thing I read today.

Dani:
Thanks Joe, so I guess to get us started, why don't you tell the audience what a side standard protest actually is.

Joseph:
All right. So a side standard protest to the nerds in the room, like myself, will sound a little self-explanatory. So I believe that most people, most of the companies represented on today's meeting are small businesses. You hear that term thrown around a lot in the media, but small business hat is a defined term by the Small Business Administration. The easiest way for me to present that is our law firm, and they're all controlled by NAICS codes. So our law firm's NAICS code is 54000, office of attorneys. The size standard for office of attorneys, I believe as the most recent publication of the SBA size standards, is $12 million. And that is $12 million as per year, as demonstrated by literally the very top line revenue receipts of your company as average over the last three or five years. And when I say three or five years, the SBA recently promulgated rules that allowed owners or companies to pick either three or five years, depending on what is the most advantageous to that company.

This episode covers Evaluation Criteria and LPTA vs. Best Value Contracts

To see the entire transcript to this podcast, please visit the post at https://www.whitcomblawpc.com/blog/video/government-contracting-best-practices

My name is Joe Whitcomb coming to you from Whitcomb Selinsky PC. We are a Denver-based law firm in the South Metro portion of Denver Colorado. It is April 6, 2020, and we are in the throes of the COVID 19 crisis. I am bringing you another episode of Vetbizlawyer podcast and video. Today I'm going to speak to you about representations and warranties which are documents that normally accompany the purchase or sale of a business. For most of today's discussion I'm going to be bringing you items you would be looking for as a buyer in the seller's representations and warranties. 

The Company that you as the seller are acquiring is usually referred to as the target company. The representations and warranties are normally presented to you during the course of the transaction but before you actually close on the purchase of the company. The name representations and warranties, does a good job describing what the documents are. Representations are issues that the seller of the Company is informing the buyer about before the purchase. Warranties go farther than that in that they are more akin to a guarantee. Normally, as a buyer, if a seller meaningfully misrepresents a warranty, you would have the option of withdrawing from the purchase or getting a portion of your money refunded by the seller.

Conclusion

 If you are currently asking yourself, "why go to the trouble of getting all of these representations and warranties in writing?" It may be because your planning on doing a thorough due diligence investigation before closing. However, that process will be time-consuming and expensive. Getting the seller to make meaningful commitments in its representations and warranties, could make the costs of unearthing negative information expensive for the seller. 

 Put differently, if the seller knows that you have the authority to not only pull out of negotiations but also the authority to charge the seller money for your time and financial investment then it may incentivize a more truthful disclosure from the outset. Also remember, most Letters of Intent come with exclusivity provisions, which means that while you are negotiating the purchase of this company you will be foreclosed from purchasing one of the seller’s competitors. This means you are effectively "out of the market" the entire time you are performing your due diligence on the target company. Of course, the same is true for the seller, but they may not have the same urgency that you do in the transaction. Therefore, a great way to save you time, money, and aggravation is insisting on thorough and accurate representations and warranties covering the above 13 items. 

This is all for this week’s vetbizlawyer video and podcast. I hope that you and yours are safe and secure during this COVID crisis.

[Introduction]

Good afternoon, my name is Joe Whitcomb. I am the founder and president of Whitcomb Selinsky PC, a veteran owned, operated, and centric law firm located in Denver, Colorado. Today I'm going to take some time and talk to those of you that are beginning to consider government contracting. We represent a lot of veteran business owners across the country in the space of government contracting and we regularly get the question either by email or by phone call “Hey, I'm interested in government contracting. How do we get started?” So, today's video is going to cover about ten topics on exactly what it takes to get started in government contracting.

[Why do business with the Federal Government?]
The first topic we're going to cover is why do business for the federal government in the first place. Most companies will have defined themselves as either a B to B or B to C enterprise depending on whether their business focuses on other businesses or consumers. That said, many understand that the federal government is a huge consumer of goods and services. In fact, they are the largest consumer of goods and services in the United States with about a 4.5 trillion-dollar budget and about $560 billion of that going to government contractors. So, one reason to be in the government contracting space is that there's a lot of money in it. Also, usually there are contracts involved that give business owners a little bit of a little bit of runway. Meaning, if you win a five-year contract, of course it is not guaranteed, but in most instances the five-year contracts last five years.  Additionally, once a contractor has won a contract, they are now incumbents and have an increased chance of winning on recompete.

If a client were to ask me, I would typically advise them to diversify and do business with consumers, commercial businesses and with federal, state, and local governments. However, those are business decisions that are made by business owners and their consultants. So that’s my answer to the question “Why do business with the federal government in the first place?” 

[Where do I start?]
Once you’ve made the decision to do business with the federal government the question becomes “Where and how do I get started?”

Once you have created articles of organization and filed them with your state’s secretary of state, the next thing you will do is get a federal Dun’s number. On your screen there should not be an image of Dunn & Bradstreet’s “iUpdate.” You can Google that or you can follow the link that is in the blog post that accompanies this video. That link will take you out to a website where you just begin populating it with information; i.e. the names of the owners, business addresses and so forth and eventually what you'll get is a number we typically refer to as a DUNS number. That DUNS number becomes the number by which the federal government will identify your company.  It is important to note that the U.S. government does not use your company’s EIN. There are instances in which you will need to supply the government with your EIN, but most times, the government will use your DUNS number which is free. An important note, your company should not have to pay anybody for a DUNS number. 

It is also important that when you apply for your DUNS number that the information on the Secretary of State's website is accurate, because that is the information that DUNS will use to populate important matters like your company’s address. So, make sure to keep your company’s information up to date on your State’s Secretary of State page. Now that you have your DUNS number, what's next? 

[Bid Protest Video Transcript]

[Introduction]

My name is Joe Whitcomb and I am coming to you this morning from Denver, Colorado, bringing you another addition of vetbizlawyer video and podcast.  I'm the owner and founder of Whitcomb Selinsky PC and today I'm going to discuss a topic that is typically top of mind for many government contractors.  When and where should my company file a bid protest?

But, let’s start with, “what is a bid protest?”

A bid protest is something a government contractor can file at varying stages of the procurement process, when the contractor disagrees with something the procuring agency has done. A company can file a pre-award bid protest at the instance in which it discovers a defect in the solicitation itself.  Another type of protest is a post-award bid protest. A company would file this when it believes that the procurement process was either carried out incorrectly or resulted in an unfair outcome.  The protestor might believe that the agency should have awarded it the contract based on the evaluation criteria in the solicitation.  Or, you as the contractor may learn that the contracting officer did not apply the evaluation criteria correctly, meaning the criteria was applied in a way that was contrary to the solicitation documents.  Today we'll be discussing a number of different scenarios. 

[Types of Bid Protest]

          This first type of bid protests is one that the protestor actually files with the competing agency.  This is called an agency level a bid protest. 

[GAO Bid Protest]

The second type of protest a company can file is called a GAO bid protest.  That is a protest that a company files at the Government Accountability Office.  The GAO has its own set of rules covered under 4 CFR 4.21.   

[Protest at the Court of Federal Claims]

The third type of bid protest is filed at the Court of Federal Claims, which is a court in Washington DC. It's a court of unique jurisdiction, which means it is the only court in the country that is allowed to hear cases against the United States that originate in contract. These cannot be filed in any other US District Court. So, again, if you to have a rule violation and that rule violation has negatively impacted your company, you can file the protest at the Court of Federal Claims.

[Conclusion]

So, those are the types of bid protest and the timing on those bid protest. Normally, the timing at the Court of federal claims from complaint to adjudication is about 120 days. This court is intentionally very quick, because in many instances the government procurement process is either halted completely or at least is unclear and so the Court of Federal Claims tries to get these cases adjudicated quickly.

That is the conclusion of our overview of bid protests. If you have any questions about bid protests, of course you know how to reach us. You can reach us at the number on your screen. There is even a link on this page to schedule an appointment with a member of our legal team.   We are happy to counsel you on whether a bid protest at the Court of Federal Claims, GAO or agency level is advisable. So again, I thank you for your time  hope you found the video useful. Good-bye.

[Rule of 2 Video Transcript]

[Introduction]

Good afternoon, my name is Joe Whitcomb, founder and owner of Whitcomb Selinsky PC located in Denver, Colorado. Today we are going to discuss what is commonly referred to as the Rule of Two in government contracting. We will also talk about the statutes and regulations that govern the rule of two and issues that specifically affect veterans and service-disabled veteran business owners in the universe of government contracting. 

[What is the Rule of Two]

The Rule of Two, put most simply, states that the government must first satisfy the Rule of Two before it can “set aside” a contract for a particular socio-economic group. The policy reason behind that rule is that if there are at least two companies competing for a contract then by virtue of that competition, the government has some assurance that they will receive reasonable pricing for the goods or services that they are attempting to purchase.

In 2006, Congress passed a law that is known as the “Veterans Benefits, Health Care, and Information Technology Act of 2006.” That statute is listed as 38 USC 8127 subparagraph D. Our firm’s view of that statute is that Congress created a two-pronged test with that statute. First, the contracting officer is supposed to do market research to determine whether or not here she has a reasonable expectation of receiving two offers from either service disabled or veteran owned small businesses. Secondly, the contracting officer should determine in advance whether or not here she has a reasonable expectation of being able to make an award at a “fair and reasonable price.” If both of those criteria are satisfied, then the statute requires that the government award the contract to a service disabled or veteran owned small business as long as the agency receives one qualified offer from one of those two types of companies.

[Kingdomware II]

Our law firm has affectionately dubbed these cases Kingdomware Two because we believe that both the federal legislation and the Supreme Court in the Kingdomware decision has left the question of what constitutes an “fair and reasonable price” open to interpretation. Our argument is that the VA should not be in the business of frustrating Congress's intent, which was to award as many contracts as the VA could reasonably award to businesses owned and controlled by veterans or service-disabled veterans.

[Conclusion]

We will certainly be following up with this issue in the future. There are also some overlapping issues having to do with the rule of two like limitations and subcontracting. We have already created a separate video blog on that subject. We hope you learned something from this video and that the content has been informative. Of course, if you have any further questions, please reach out to us. If you have something you would like to speak to me about specifically, you can click the let’s talk but an at the bottom of our website and schedule a time to speak with me.

If you enjoyed the content and if you found it useful, I hope you'll subscribe to the video blog. 

12 M&A Issues for Government Contractors

 [Introduction]

My name is Joe Whitcomb I am founder and president of Whitcomb Selinsky, PC. We are a veteran owned and operated law firm situated in South Metro Denver Colorado. This morning I'm going to speak to you about a subject about which I get a fair number of questions. It doesn't come up every day, but it comes up regularly enough that I felt like it was worth dedicating a webinar to. And it's on the issue of mergers and acquisitions and the 12 special legal issues that government contractors have to deal with. Now as a law firm, we do a good bit of government contracting. Most of our clients are veteran owned or service-disabled veteran-owned small businesses situated around the country. And like any other business, the owners want to get ready at some point with potentially merging with another company. purchasing another company, or selling to another company. Some are eager to retire while others may want to move  on to another venture. So today we're going to talk about 12 issues that are particular to government contractors. Some of them are issues that deal specifically with government contractors that operate in the socio-economic space like women-owned businesses, 8(a)s, service-disabled veteran-owned small businesses. You'll hear me use the term SDVOSB or service-disabled veteran-owned small business interchangeably. We want to cover those issues today. I hope you find the information informative and useful. 

 [Conclusion]

 These twelve things that we’ve just outlined, will be included in the written text to accompany this video that you'll be able to follow along and use for posterity. It is also my intension to get the audio for these videos into podcasts, so that you can review them again later if needed. My name is Joe Whitcomb. I just covered the twelve legal issues of mergers and acquisitions that while not unique to government contractors are certainly a priority for them. If you have any questions or concerns, of course we are a resource. We welcome your questions.