Restrictions on Use of Forward Edge-AI Past Performance in Bid and Proposals

January 01, 2024

Use of Forward Edge-AI, Inc.'s Past Performance, Experience, Products, Research and/or Capabilities (our information) on our website or received from a Forward Edge-AI employee or third party for the purposes of submitting a bid and proposal to the Government is subject to the following terms and conditions:

If the government relies on the information in your proposal that includes Forward Edge-AI information, and your company fails to award a subcontract to Forward Edge-AI in the amounts and scopes proposed, your organization shall be in material breach pursuant to U.S.C. 637(d)(9), and Public Law (P.L.) 111-240, Part II Sec. 1321.
Forward Edge-AI takes these matters seriously. For the purposes of enforcement, Congress granted small businesses privity of contract under U.S.C. 637(d)(9) to provide you this notification.
As stated in 15 U.S.C. 637(d)(9), any contractor or subcontractor failing to comply in good faith with the requirements of its subcontracting plan is in material breach of its contract.
Further, 15 U.S.C. 637(d)(4)(F) directs that a contractor’s failure to make a good faith effort to comply with the requirements of the subcontracting plan shall result in the imposition of liquidated damages.

The U.S. Small Business Administration (SBA) issued a final rule requiring prime contractors to notify the contracting officer in writing if they fail to utilize a small business included in their bid or proposal or make late or reduced payments to a small business subcontractor (see 78 Fed. Reg. 42391 (July 16, 2013)).

The final rule implements provisions of the Small Business Jobs Act of 2010, Pub. L. No. 111-240 (2010), and applies to all prime contracts that require a small business subcontracting plan. Prime contractors performing such contracts are required to submit written reports to the contracting officer when they fail to use a small business subcontractor “used in preparing the bid or proposal during contract performance.” The phrase “used in preparing the bid or proposal” is defined quite broadly, to include any situation in which:

the offeror references the small business concern as a subcontractor in the bid or proposal or associated small business subcontracting plan;
the offeror has a subcontract or agreement in principle to subcontract with the small business concern to perform a portion of the specific contract; or
the small business concern drafted any portion of the bid or proposal, or the offeror used the small business concern’s pricing or cost information or technical expertise in preparing the bid or proposal, where there is written evidence (including email) of an intent or understanding that the small business concern will be awarded a subcontract for the related work if the offeror is awarded the contract.

Forward Edge-AI will aggressively enforce its rights. U.S.C. 637(d)(9), makes clear that contracting officers are responsible for monitoring and evaluating a prime contractor’s compliance with its small business subcontracting plan as part of the prime contractor’s overall performance evaluation. The contracting officer’s review must include, among other things, an evaluation of the prime contractor’s written explanation for failing to utilize a small business subcontractor used in preparing the prime contractor’s proposal.

Furthermore, FAR 52.219-16 and FAR 19.705-7, lists the possible remedies for the prime contractor’s material breach, including the assessment of liquidated damages against the prime contractor to the extent that the contracting officer determines that the prime contractor has not acted in good faith. FAR 19.705-7 contains examples of a good faith effort, and examples of a failure to make a good faith effort.