DoD Issues Class Deviation For Small Business Joint Venture Offerors Until SAM Is Updated to Account for Recent FAR Revisions
Client Alert | 1 min read | 10.27.22
On October 26, 2022, the Department of Defense published a class deviation establishing alternative procedures for verifying the small business size and status of joint venture offerors. This class deviation is necessary because, effective October 28, 2022, the Federal Acquisition Regulation has been updated to include new certifications for use by joint venture offerors in FAR solicitation provisions 52.212-3 and 52.219-1—via a FAR update on which Crowell previously reported. Due to a lag in system implementation in the System for Award Management (SAM) and in the interface between SAM and the Small Business Administration, SAM will not reflect the new representations immediately. As such, DoD’s class deviation provides language for contracting officers to use in solicitations in lieu of relying on SAM for size and status certifications of joint venture offerors.
Insights
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As part of the 2012 America Invents Act, statutory estoppel was included to balance the interests of patent owners and patent challengers following an inter partes review (“IPR”). Estoppel prevents an IPR petitioner from later asserting in court that a claim “is invalid on any ground that the petitioner raised or reasonably could have raised” during the IPR. 35 U.S.C. § 315(e)(2). As applied, estoppel prevents petitioners from later relying in district court or in ITC proceedings on most patents or printed publications – the limited bases upon which petitioner can rely in an IPR. But a question remained, and contradictory district court decisions arose, as to whether petitioners would be estopped from relying on a prior art commercial product (known as “device art,” which could not itself have been raised in the IPR) even if a printed publication describing the product (i.e. a patent or technical manual) was available and presumably could have been raised.
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