A Virginia trial court recently dismissed a contractor’s bid protest against the City of Harrisonburg on jurisdictional grounds. In the case of General Excavation, Inc. v. City of Harrisonburg, the contractor’s bid was rejected along with all the other bids. Thus, the Court determined that there wasn’t any award for a bidder to challenge under the Virginia Public Procurement Act.

The bid by General Excavation, Inc. (GEI) for the road-improvement contract worth approximately $20 million was one of seven rejected by the City. After the City declined to award the contract to anyone, GEI filed suit pursuant to the Virginia Public Procurement Act and the City’s own purchasing manual alleging that the City’s action was done solely to avoid awarding GEI the project.

However, the Court noted that the plain language of the Virginia Public Procurement Act allows contractors to bring an action in the appropriate circuit court challenging only a proposed award or the award of a contract – not the rejection of all bids.

Although the alleged conduct of the City appeared to be in violation of Virginia Code section 2.2-4319, which allows a public body to reject all bids but not solely to avoid awarding a contract to a particular bidder, the Court declined to exercise jurisdiction. It noted that the General Assembly created relief mechanisms for those aggrieved under the Public Procurement Act, and it would not enlarge the scope of those remedial statutes.

It should be noted that the City claimed that its decision had nothing to do with a desire not to award GEI the project.  Rather, the City official recommended the rejection of all bids based on the city, state and federal transportation representatives’ determination that the contract documents were probably not clearly understood by the bidders.  However, the Court's interpretation of the Virginia Public Procurement Act's jurisdiction eliminated the contractor's ability to receive a fair and impartial hearing on whether the City's actions were opportunistic and an unlawful rejection of all bids.   

Written by Angela France

Small businesses with Federal contracts have to be especially mindful of ensuring compliance with equal employment opportunity (EEO) requirements. The failure to comply with the EEO guidelines set forth in Executive Order 11246 (which prohibits employment discrimination by Federal contractors and subcontractors as well as federally-assisted construction contractors and subcontractors) may very well result in the cancellation of a contract, termination, suspension (in whole or in part), or the debarment of the contractor. As the Office of Federal Contract Compliance Programs (OFCCP)requires contractors to engage in their own internal EEO compliance analysis, small businesses often run afoul of satisfying their obligations under Executive Order 11246. 

To ensure compliance with the basic EEO requirements imposed by Executive Order 11246 -- and to avoid the wrath of the OFCCP – contractors should adhere to the following OFCCP guidelines:

Don’t Discriminate! Contractors must refrain from engaging in workplace employment discrimination on the basis of race, color, religion, sex, or national origin. Although most people think of intentional discriminatory acts, employment discrimination can also arise when a neutral policy or practice has an adverse impact on the members of any race, sex, or ethnic group.

Post an EEO Poster. Federal contractors must post OFCCP’s EEO poster in a location that is easily seen (e.g., a lunchroom, break room, or locker room).

Include an EEO Tag Line in Employment Advertising. Contractors should include a sentence in all solicitations and advertisements for employment stating that “all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin.”

Keep Records. Contractors must maintain their personnel records and employment records including job descriptions, job postings, job offers, applications and resumes, interview notes, tests and test results, written employment policies and procedures, personnel files, and time-keeping records.

Develop and Maintain an Affirmative Action Program. Contractors with 50 or more employees and a contract of $50,000 or more must develop and maintain a compliant affirmative action program (AAP).

Small businesses with Federal contracts should regularly review their EEO policies and procedures to ensure that they are compliant with Executive Order 11246. Certainly, given the potential penalties, it is better to be safe than sorry!

Written by H. Scott Johnson, Jr.

I recently read an interesting post on the ExecutiveBiz blog on the top 10 predictions for government contracting in 2010. Unlike the typical mundane prediction lists that clutter the blogosphere at the beginning of a new year, the predictions in this post consist of quotes from a who’s who of leaders in the government contracting industry. As Virginia (particularly Northern Virginia along the Dulles Technology Corridor) is home to many government contracting businesses, I thought it would be useful to provide a brief summary of a few predictions that caught my attention.

Industry will compete with government
Norm Augustine, the retired Chairman and CEO of Lockheed Martin Corp., predicts that “heightening fiscal pressures” on the procurement process will result in the government contracting industry finding itself “more and more a competitor with government” than a partner.

National security contracts will remain a focus
Paul Cofoni, the President and CEO of CACI, predicts that there will be “continued demand” for “proven solutions to keep our nation safe and implement efficient and cost-effective solutions to modernize federal agencies.” 

Collaboration between industry and government will remain strong
Renny DiPentima, the former President and CEO of SRA, predicts that the relationship between industry and government “will continue to be robust over the next decade” as “[g]overnment depends upon contractors in large part to get its jobs done and contractors depend upon government to keep their companies financially sound.”

Government will expect more secure offerings from industry
According to Melissa Hathaway, the President of Hathaway Global Strategies, LLC, the “seams between private networks and government networks will continue to blur” thereby requiring “industry and government to share details on vulnerabilities of and security threats to our infrastructures and information assets.” As such, she predicts that “the government will demand from industry more secure software products and services.”

New cyber czar will help industry challenges
Stan Sloane, President and CEO of SRA, predicts that a new cyber czar will lead to “some progress on the policy front, as well as collaboration with industry on intellectual property protection.” 

Modest growth and productivity gains for sector
Ralph Shrader, Chairman, CEO and President of Booz Allen Hamilton, predicts that “2010 will be a year of modest growth and productivity gains for the economy as a whole, and for the government contracting sector.” However, these gains will require industry and government to work together “toward the same goals.”

I concur with many of the predictions expressed by the leaders of the government contracting industry. Although fiscal pressures will continue to squeeze the procurement process in 2010, communication and collaboration amongst all segments of the government contracting industry can mitigate these economic challenges. While the continued demand for efficient measures to address national security concerns will help drive the sector, it will take a unified effort by government and industry alike to realize any gains in 2010.

Written by H. Scott Johnson, Jr.