Government typically has no obligation to assist the contractor in completing work before the contract completion date. Despite this lack of obligation, it is still not permissible for the government to hinder or otherwise prevent a contractor’s early completion of performance. In this regard, when the contractor’s early completion of work is delayed due to government actions, the government may be liable for the delay it causes even when the contractor completes performance within the agreed-upon contract completion deadline. Contractors must satisfy three elements to establish entitlement to benefits of a planned early completion which is adversely impacted by government-caused delays. First, from the outset of the contract, the contractor must establish its intent to complete performance on an accelerated schedule and ahead of the contractually mandated completion date. Notably, while it is necessary for the contractor to convey its intent to complete early performance, it need not inform the government of a specific early completion date. Second, the contractor must have the capability to perform early, and its intent must be supported by consistent actions and performance activities during the performance period. Third, the contractor must establish that had it not been for the government-caused delays, its actions in pursuing acceleration would have led to an early completion. Once the three elements are established, the government is liable for damages arising from its dilatory actions that prevent the contractor’s early performance.

An offeror bidding on a federal contract set-aside for small businesses may challenge another offeror’s representation that it is a small business concern. Such size protests are referred to the Small Business Administration (SBA) area office where the challenged offeror is headquartered. The challenged concern must then establish that it is indeed a small business. Per SBA regulations, if the challenged concern fails to submit a completed SBA Form 355 regarding size determination information or otherwise does not adequately respond to requests for information or size protest allegations in a timely manner, it risks the SBA presuming that the disclosure of the requested information would demonstrate that the concern is other than small. In this regard, the SBA Office of Hearings and Appeals (OHA) has developed a three-factor test to determine whether an adverse inference is appropriate. First, the information the SBA area office seeks must be relevant to an issue in the size determination. Second, there must be a level of connection between the entity being protested and the entity the SBA area office is seeking information from. Third, the request for information by the area office must be specific. If the challenged concern does not provide the requested information and these three factors are met, the SBA may infer that the disclosure of the information would show that the concern is other than small.

The Small Business Administration (SBA) has a longstanding rule that a business that represents itself as small at the time of contract award remains small for the life of that contract, unless the contracting officer (CO) expressly requests recertification. This rule also applies to long-term multiple award contracts (MACs) against which orders may be issued. Thus, it is typically at the CO’s discretion whether to require businesses to recertify their size status for individual orders under long-term MACs. The determination regarding whether the CO required recertification for an individual order is primarily made based on the plain language of the task order solicitation and relevant clauses included in the overarching long-term MAC. A size status recertification is required if the task order solicitation plainly includes language requiring recertification or otherwise asks offerors to verify, in writing, that they are a small business under the applicable North American Industry Classification System (NAICS) code at the time of submitting their task order proposals. Notably, the fact that an order is set aside for small businesses does not, by itself, mean that a size recertification is requested. However, the task order solicitation need not expressly use terms such as “certify” or “recertify” when requesting a recertification when it is clear to the offerors that a representation regarding their size status at the time of task order proposal submission or award is necessary. Similarly, the small business set-aside solicitation need not explicitly state the size standard if it identifies an applicable NAICS code that adequately conveys the required size standard information to offerors.