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Koprince Law LLC

I am back in Lawrence after a great trip to Omaha, where I spoke at the SAME Omaha Post Industry Day.  My talk focused on recent legal changes in federal contracting, including pieces of the 2017 National Defense Authorization Act and the SBA’s implementation of the All Small Mentor-Protege Program.

Thank you very much to Anita Larson and the rest of the Planning Committee for organizing this great event and inviting me to speak.  Thank you also to all of the clients, contractors, and government representatives who stopped by my “booth” in the Exhibit Hall to ask questions and chat about the nuances of government contracts law.  As much as I enjoy speaking to large groups, it’s these one-on-one discussions that make for a truly outstanding conference.

Next up for me: the Department of Energy Small Business Conference, which will be right in my backyard (Kansas City) next week.  Hope to see you there!

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Koprince Law LLC

An Alaska Native Corporation subsidiary was not affiliated with its parent company and two sister companies under the ostensible subcontractor affiliation rule, even though the company in question would rely on the parent and sister companies for managerial personnel, financial assistance and bonding.

A recent decision of the SBA Office of Hearings and Appeals highlights the breadth of the exemption from affiliation enjoyed by ANC companies.

OHA’s decision in Size Appeal of Olgoonik Diversified Services, LLC, SBA No. SIZ-5825 (2017) involved a Department of State solicitation seeking a contractor to provide design-build construction services in Baghdad.  The solicitation was issued as a small business set-aside under NAICS code 236220 (Commercial and Institutional Building Construction), with a corresponding $36.5 million size standard.

After evaluating competitive proposals, the agency announced that Olgoonik Diversified Services, LLC was the apparent successful offeror.  An unsuccessful competitor subsequently filed a size protest.  The protester alleged, in part, that Olgoonik was affiliated with other entities under the ostensible subcontractor rule.

The SBA Area Office determined that Olgoonik was established in 2011 as a wholly-owned subsidiary of Olgoonik Development, LLC (“OD”), an ANC holding company.  OD, in turn, was a wholly-owned subsidiary of an ANC.  OD had 11 other subsidiaries besides Olgoonik, referred to as Olgoonik’s “sister companies.”  These sister companies included O.E.S., Inc. (“OES”) and Olgoonik Specialty Contractors, LLC (“OSC”).

The SBA Area Office found that Olgoonik had relied on OES and OSC for the relevant past performance identified in its proposal.  OD would provide bonding and other financial assistance to allow Olgoonik to perform the contract.  All six key employees listed in the proposal (including the Program General Manager responsible for overall project management) were OSC employees.

Although Olgoonik had not named OES or OSC as subcontractors in its proposal, the SBA Area Office found that Olgoonik was unusually reliant on its sister companies for contract performance.  The SBA Area Office issued a decision finding Olgoonik affiliated with OES and OSC under the ostensible subcontractor rule (the SBA also found an affiliation for another reason, which is outside the scope of this post).

Olgoonik filed a size appeal with OHA.  Olgoonik argued that the ostensible subcontractor rule did not apply because OSC and OES were not proposed as subcontractors for the project.  Additionally, Olgoonik argued that a regulatory exemption from affiliation precluded a finding of affiliation.  That exemption, which is found in 13 C.F.R. 121.103(b)(2)(ii), provides, in part, that businesses owned and controlled by Indian Tribes, ANCs, Native Hawaiian Organizations, and Community Development Corporations are not considered affiliated with other businesses owned by these entities “because of their common ownership or common management.”  However, “[a]ffiliation may be found for other reasons.”

OHA first addressed the low-hanging fruit: the fact that OD, OES and OSC were not proposed to be subcontractors on the State Department project.  OHA wrote that it has “consistently held that in order for the ostensible subcontractor rule to apply, the alleged affiliate must actually be a subcontractor of the challenged concern.”  In this case, “there is no record of subcontracting in [Olgoonik’s] proposal,” meaning that OD, OES and OSC could not be Olgoonik’s ostensible subcontractors.

But OHA didn’t stop there: it also found that the SBA Area Office had erred by failing to apply the “common ownership” and “common management” exceptions from affiliation.  OHA wrote that “an ANC transfers personnel among its sister companies as part of the common management of its concerns, and an ANC’s exercise of common management is a clear exception to a finding of affiliation.”  Additionally, OHA explained, “relying on its parent company for financial assistance in justifying a finding of affiliation based on a joint venture or ostensible subcontractor is equally illogical.”  ANCs are “excepted from affiliation based on common ownership, thus it would be reasonable for a subsidiary to rely on its parent company’s financial resources, and for bonding . . ..”

OHA granted Olgoonik’s size appeal.

The SBA’s regulations do not expressly exempt ANCs, Tribes, NHOs and CDCs from ostensible subcontractor affiliation.  But as the Olgoonik Diversified Services size appeal demonstrates, the types of relationships that might ordinarily be deemed indicative of ostensible subcontractor affiliation are often part and parcel of common ownership and management.  Olgoonik Diversified Services confirms that OHA will broadly apply the regulatory exception to cover things such as transferred personnel, financial assistance, and bonding assistance.

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Koprince Law LLC

Feliz Cinco de Mayo! Whether you are celebrating the Mexican Army’s “unlikely victory over French forces at the Battle of Puebla” back in 1862 or just looking for an excuse to grab a cold margarita on the patio, I hope you have a wonderful May 5.

Even though it’s not an official holiday here in the U.S., it’s still Friday–and that means it’s time for our weekly roundup of government contracts news. This edition of SmallGovCon Week In Review includes a defense contractor heading to prison in connection with a $53 million fraud and gratuity scheme, the GAO provides six recommendations to reduce fraud, waste, and abuse, California lawmakers debate “blacklisting” contractors who work on the President’s proposed border wall, and more.

  • With last week’s potential government shutdown temporarily averted, contractors breathed a sigh of relief, but what happens in a few months? Forbes takes a look at the toll a shutdown would take on women federal contractors. [Forbes]
  • Federal News Radio gives us a look at eight trends its expects to continue into 2018 for federal contractors. [Federal News Radio]
  • A defense contractor will be spending five years in prison after being sentenced for a $53 million fraud and gratuity scheme. [United States Department of Justice]
  • The GAO makes six recommendations to reduce fraud, waste and abuse in small business research programs. [GAO]
  • What can Congress and the administration do now to speed up the modernization of IT procurement? [Defense Systems]
  • California lawmakers are debating whether to blacklist contractors who help build the president’s proposed border wall. (My opinion: regardless of one’s political leanings, punishing contractors for working on federal government contracts of any type is a very bad idea). [NPR]
  • Government contracts guru Mark Amtower busts seven pervasive contracting myths. [Washington Technology]

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Koprince Law LLC

A NAICS code appeal can be a powerful vehicle for influencing the competitive landscape of an acquisition.  A successful NAICS code appeal can dramatically alter a solicitation’s size standard, causing major changes in the number (and sizes) of potential competitors.

But a NAICS code appeal cannot be filed until the solicitation is issued.  As the SBA Office of Hearings and Appeals recently confirmed, a NAICS code appeal cannot be filed with respect to a presolicitation.

OHA’s decision in Marvin Test Solutions, Inc., SBA No. NAICS-5826 (2017) involved a Navy procurement for Common Aircraft Armament Test Set systems and Pure Air Generator System Adapter Set units.  On March 28, 2017, the Navy published a presolicitation notice.  The presolicitation notice indicated that the forthcoming solicitation would be classified under NAICS code 334519 (Other Measuring and Controlling Device Manufacturing), with an associated 500-employee size standard.

On April 13, 2017, Marvin Test Solutions filed a NAICS code appeal with OHA.  Marvin alleged that the procurement should be classified under NAICS code 336413 (Other Aircraft Parts and Auxiliary Equipment Manufacturing), with an associated 1,250-employee size standard.

OHA noted that under the SBA’s regulations, “[a] NAICS code appeal must be filed within 10 calendar days after issuance of the initial solicitation.”  OHA explained that “mere publication of a presolicitatoin notice does not guarantee that the procuring agency will issue a solicitation or that it will assign the NAICS code anticipated in the presolicitation.”  OHA continued: “[p]ublication of a presolicitation notice does not constitute a NAICS code designation within the meaning of [the SBA’s regulations] and, therefore, an appeal of a presolicitation notice must be dismissed as premature.”

OHA dismissed Marvin Test Solutions’ NAICS code appeal.

While Marvin Test Solutions confirms that it is too early, when a presolicitation notice is issued, to file a NAICS code appeal, it doesn’t mean that a prospective contractor must sit on its hands until the solicitation is issued.  The period after a presolicitation notice is issued provides a window to lobby the contracting officer to change the NAICS code, and–if that fails–get a head start on drafting a persuasive NAICS code appeal.  Given the limited 10-day window in which a NAICS code appeal is viable, that head start can be quite beneficial.

On a final note, speaking of that 10-day window: because Marvin Test Solutions’ NAICS code appeal was premature, Marvin Test Solutions will get a second chance to file its appeal if the solicitation is issued under NAICS code 334519.  But Marvin Test Solutions is lucky that the March 28, 2017 publication was only a presolicitation, and not the solicitation itself.  By my count, Marvin Test Solutions filed its NAICS code appeal 16 days after the presolicitation was issued.  Had the March 28 publication been the solicitation itself, Marvin Test Solutions’ NAICS code appeal likely would have been dismissed as untimely–and there would be no second bite at the apple.

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Koprince Law LLC

To encourage joint venturing, the SBA’s size regulations provide a limited exception from affiliation for certain joint venturers: a joint venture qualifies for award of a set-aside contract so long as each venturer, individually, is below the size standard associated with the contract (or one venturer is below the size standard and the other is an SBA-approved mentor, and they have a compliant joint venture agreement). In other words, the SBA ordinarily won’t “affiliate” the joint venturers—that is, add their sizes together—if the joint venture meets the affiliation exception.

Because of this special treatment, it can be easy for the venturers to assume that they are completely exempt from any kind of affiliation. But as the SBA Office of Hearings and Appeals recently confirmed, however, the exception isn’t nearly so broad.

The facts in Veterans Construction Coalition, SBA No. SIZ-5824 (Apr. 18, 2017) are relatively straightforward: AWA Business Corporation (an 8(a) company) and Megen Construction Company (a small business) formed a joint venture called Megen-AWA 2 (“MA2”), to bid on and perform various construction projects at Wright-Patterson Air Force Base, under an 8(a) set-aside solicitation. The solicitation in question was issued under NAICS code 236220 (Commercial and Institutional Building Construction), with a corresponding $36.5 million size standard.

After evaluating competitive proposals, the Air Force announced that MA2 was the apparent awardee. An unsuccessful competitor filed a size protest, arguing that AWA and Megan were affiliated in various ways, including identity of interest (as the companies were owned by brothers), common management (the brother who owned AWA used to be vice president of Megen), and totality of the circumstances (the companies had worked together under other joint ventures before).

In response to these allegations, MA2 argued, in part, that it qualified as a small business because AWA and Megen both fell below the solicitation’s $36.5 million size standard, as required by the joint venture exception from affiliation. The SBA Area Office agreed, but went a step farther: it held that because AWA and Megan were parties to a joint venture, they could not be affiliated on the “general affiliation” grounds of identity of interest, common management, or totality of the circumstances. The SBA Area Office issued a size determination finding MA2 to be an eligible small business.

On appeal, OHA asked the SBA Office of General Counsel to comment on the breadth of the joint venture exception from affiliation found in 13 C.F.R. § 121.103(h)(3). The SBA Office of General Counsel wrote that the provision “created an exception to affiliation on the basis of participation in a joint venture.” The provision does not create a general exemption to affiliation for joint ventures—“[t]hat is, firms exempted from joint venture affiliation . . . still could be found to be affiliates for reasons other than those set forth in § 121.103(h).”

OHA agreed with the Office of General Counsel. OHA wrote that the affiliation exemption at issue “applied to ‘affiliation under paragraph (h),’ which is affiliation based on joint ventures. Logically, then, the exception was confined to contract-specific affiliation based on joint ventures and did not extend to issues of general affiliation[.]” Because the Area Office did not consider the general affiliation allegations (like identity of interest, common management, and totality of the circumstances), OHA remanded to the Area Office for additional analysis.

Sometimes, small businesses think that their participation in a joint venture serves as a broad exemption from affiliation with their partner. Veterans Construction confirms this isn’t true—joint venture partners can still be deemed affiliated for reasons other than their participation in the joint venture. Knowing when such affiliation might be found—and taking steps to minimize any indicia of affiliation—just might save a contract award.

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Koprince Law LLC

An agency may modify a contract without running afoul of the Competition in Contracting Act, so long as the the modification is deemed “in scope.” An “out of scope” modification, on the other hand, is improper–and may be protested at GAO.

In a recent bid protest decision, GAO denied a protest challenging an agency’s modification of a contract where the modification was within scope and of a nature that competitors could have reasonably anticipated at the time of award. In its decision, GAO explained the difference between an in scope and out of scope modification, including the factors GAO will use to determine whether the modification is permissible.

The GAO’s decision in Zodiac of North America, Inc., B-414260 (Mar. 28, 2017), involved a U.S. Army Contracting Command solicitation for a contractor to produce a seven-person inflatable combat raiding craft (I-CRC) and a 15-person inflatable combat assault craft (I-CAC). The Army initially issued the solicitation in February 2013.

The solicitation included purchase descriptions, which set forth the product requirements for the boats and motors. Specifically, the submersible outboard motors for the I-CRC and I-CAC required “they propel a fully-loaded craft (2,120 pounds and 4,000 pounds, respectively) at 16 knots during sea state 1 (calm water) within two minutes.” As part of the solicitation, offerors were also informed that they were required to provide two units of each the I-CRC and I-CAC for article testing in accordance with FAR 52.209-4. If the government disapproved the first article, upon the government’s request, the contractor was required to make any necessary changes, modifications, or repairs to the first article or select another first article for testing.

The Army evaluated proposals and awarded the contract. Zodiac, an unsuccessful offeror, protested the award to GAO arguing that the Army should have found the awardee’s proposal technically unacceptable because the awardee’s proposed boats were insufficient to meet the speed requirements detailed by the solicitation. GAO denied the protest in Zodiac of North America, B-409084 et al. (Jan. 17, 2014) finding that Zodiac had proposed the same motors as the awardee, and the Army had reasonably relied on the awardee’s test reports demonstrating the product’s compliance with the solicitation’s speed requirements.

Likely unsatisfied with GAO’s decision, Zodiac subsequently filed a Freedom of Information Act request in October 2016. Through this request, Zodiac learned the Army had modified the contract requirements after the awardee twice failed product testing. The modification revised both the purchase description for the boats and the motors. It resulted in a 10 percent reduction in the propeller weight of the motors, a three-inch dimensional increase in the hard deck floor and storage bag, and removal of the airborne transportability requirement. Believing these revisions of the contract terms amounted to an improper sole source award contract, Zodiac protested again.

GAO explained that the Competition in Contracting Act ordinarily requires “the use of competitive procedures” to award government work. However, “[o]nce a contract is awarded…[it] will generally not review modifications to the contract because such matters are related to contract administration and are beyond the scope of [its] bid protest function.”

While a modification that changes the contract’s scope of work is an exception to this rule, such a modification is only objectionable where there is a “material difference” between the modified contract and the original contract. A material difference exists when “a contract is so substantially changed by the modification that the original and modified contracts are essentially and materially different.” A material difference typically arises when an agency enlarges a contract’s scope of work, the relaxation of contract requirements post-award (as alleged by Zodiac) can also be a material difference.

In assessing whether there is a material difference, GAO will look to:

[T]he extent of any changes in the type of work, performance period, and costs between the modification and the original contract, as well as whether the original solicitation adequately advised offerors of the potential for the change or whether the change was the type that reasonably could have been anticipated, and whether the modification materially changed the field of competition for the requirement.”

In this case, considering these factors, GAO found that the modification did not substantially change the scope of the original contract, competitors for the initial solicitation could have reasonably anticipated the changes to the contract, and the changes to the contract would not have had a substantial impact on the field of competition for the original contract award. Importantly, the deliverables still functioned as seven-person I-CRCs and 15-person I-CACs, and the awardee remained subject to the same performance period. GAO held that there was not a material difference, and denied Zodiac’s protest.

Zodiac of North America is a useful primer on when a modification crosses the line into an improper sole source award. As demonstrated in Zodiac, the key is whether there is a material difference between the modified contract and the awarded contract.

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Koprince Law LLC

There is no cost to register in SAM or other government contracting databases–but that hasn’t stopped some companies from charging would-be contractors hefty fees for assistance in the registration process.  Some of these companies are out-and-out frauds, like the Tampa firm whose owner recently pleaded guilty to wire fraud in a FEMA registration scheme.  And others, while not fraudulent, still often neglect to mention an important (but for them, inconvenient) fact: government contracts registration assistance is available for free through Procurement Technical Assistance Centers and other reputable sources.

Now, a bipartisan new Senate bill aims to get the word out about the free registration assistance available to prospective contractors.

The bill, titled the “Procurement Fraud Prevention Act,” was introduced by Senator Gary Peters (D-MI) on April 25, 2017.  Numbered “S.938” in the Senate’s numbering system, the bill’s stated purpose is simple: “To require notice of cost-free Federal procurement technical assistance in connection with registration of small business concerns in procurement systems.”  The bill is co-sponsored by Senators Susan Collins (R-ME), Tom Carper (D-DE) and Jack Reed (D-RI).

In an era of bloated legislative language, the operative text of the bill is blissfully brief.  It states, in full:

The Administrator of General Services, in consultation with the Director of the Office of Management and Budget, shall establish procedures to ensure that any notice or direct communication regarding registration of a small business concern in a procurement system contains information about cost-free Federal procurement technical assistance services that are available through the Small Business Administration, Procurement Technical Assistance Centers of the Defense Logistics Agency, the Department of Commerce (including the Minority Business Development Agency), and other Federal agencies and programs.

The bill would require the for-pay operators of government contracts registration services to disclose that free registration assistance is available through PTACs and other resources.  It’s an important step, because these entities–even the more legitimate ones–don’t exactly go out of their way to mention that their services can be obtained for free elsewhere.  If you’re curious, Google “government contractor registration” (or something similar) and take a look at the for-pay results that pop up.  Still hunting for that PTAC mention?  Yeah, me too.

Would-be contractors ought to be able to make an informed decision about how best to pursue government contracts registration.  In some cases, there may be a good reason to use a for-pay resource to assist in the process–but that choice should be made with full knowledge of the free alternatives available.

The Procurement Fraud Prevention Act has been referred to the Committee on Homeland Security and Governmental Affairs.  I hope that the Committee will take up this important bipartisan bill soon and move it to the full Senate for a vote.  Stay tuned.

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Koprince Law LLC

I’m starting to feel like the old Johnny Cash and Lynn Anderson song, I’ve Been Everywhere. After two trips out west earlier this month, I spent time this week in Wichita with the Kansas PTAC, and soon enough I will be back on the road for the SAME Omaha Post 2017 Industry Day.  I am always grateful for the opportunity to meet contractors, government officials, and others in the industry–and I am always heartened by how many people I meet at these events have kind words to say about SmallGovCon.

It’s Friday, and time for our weekly look at the latest in the government contracting world. In this edition of  SmallGovCon Week In Review, a contractor faces potential jail time for selling Chinese-made items to the government, Defense analysts anticipate little impact from the recent “Buy American and Hire American” executive order, one commentator says that a recent LPTA National Guard contract hurts those who work to support our troops, and much more.

  • When it comes to wishlists for the last half of 2017, financial and contracting experts say perhaps the most agencies can hope for from Congress is the status quo. [Federal News Radio]
  • Defense analysts are anticipating little impact from President Donald Trump’s “Buy American and Hire American” executive order. [National Defense]
  • One commentator says that a recent “low-ball” National Guard contract is hurting those who work to ‘support our troops.’ [San Francisco Chronicle]
  • The federal government’s biggest challenge in defending its civilian, military and intelligence networks from hackers isn’t technology, it’s people. [Nextgov]
  • The Army has announced that several cloud RFPs are already in the works under the new ACCENT contract. [Federal News Radio]
  • A contractor (who is also a member of the Army Reserves) has been convicted of selling Chinese-made items to the government in violation of the Buy American Act, Berry Amendment, and the contracts’ “100% U.S. MADE” requirement. [United States Department of Justice]

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Koprince Law LLC

The VA has adopted a Class Deviation to the VAAR, severely restricting the ability of VA Contracting Officers to request waivers of the nonmanufacturer rule–and, even more troubling, suggesting that Contracting Officers need not apply the statutory SDVOSB and VOSB preferences even when the SBA has already granted a class waiver.

You may be wondering “does the VA’s Class Deviation comply with Kingdomware?”  Good question.

Before diving into the details of the Class Deviation, let’s step back for a second to review why this is so important.

Under the SBA’s regulations, when any contract is set-aside for small businesses (including SDVOSBs and VOSBs) under a manufacturing NAICS code, there are two ways that the prime contractor can satisfy the requirements of the limitations on subcontracting.  As one option, the prime contractor can agree to pay no more than 50% of the amount paid by the government to it to firms that are not similarly situated.  In other words, the prime can do most or all of the manufacturing itself (or work with similarly situated small businesses).  Alternatively, the prime can sell the products of another business, so long as the prime qualifies as a nonmanufacturer.

For VA SDVOSB set-asides, VAAR 852.219-10 (VA Notice of Total Service-Disabled Veteran-Owned Small Business Set-Aside) provides the applicable limitation on subcontracting.  While this clause has not yet been updated to reflect the new wording of the SBA’s regulations, it also recognizes the nonmanufacturer exception.  A nearly-identical provision is set forth in VAAR 852.219-11, which governs VOSB set-asides.

The nonmanufacturer rule, in turn, states that a company qualifies when it meets four requirements.  Among those, the company must “supply the end item of a small business manufacturer, processor or producer made in the United States or [obtain] a waiver of such requirement.”  The SBA is the only agency empowered to grant nonmanufacturer rule waivers.

An SBA nonmanufacturer rule waiver can be a “class” waiver, which applies to a class of products after the SBA determines that there are no small business manufacturers available to participate in the Federal procurement marketplace.  Anyone can request that the SBA process a class waiver.  Alternatively, the SBA can grant an “individual” nonmanufacturer rule waiver when it determines that no small business manufacturers are likely to be available for a particular solicitation.  Only a Contracting Officer can request an individual waiver.

So, to sum up, if a small business (including an SDVOSB or VOSB) wants to sell the product of a large business under a set-aside contract, the small business may do so provided that an SBA class waiver or nonmanufacturer rule waiver is in place (and provided that the small business satisfies the other criteria of the nonmanufacturer rule).  Many small businesses validly sell products this way: the SBA’s current class waiver list spans 14 pages.

That takes us to the VA’s recent Class Deviation.  The Class Deviation does two things.

First, the Class Deviation states that a Contracting Officer must receive the approval of the Head of the Contracting Activity, or HCA, to request an individual nonmanufacturer rule waiver from the SBA.  As this helpful GAO report states (see pages 3 and 4) there are only eight HCAs in the entire VA.  (For comparison, that’s the same number of people who have been in the Rolling Stones).

So the Class Deviation strips the discretion to request nonmanufacturer rule class waivers from VA Contracting Officers (where the FAR says it belongs) and limits it to only eight individuals.  Further, the HCA’s authority to approve individual nonmanufacturer waiver requests “cannot be redelegated.”  Anyone want to guess what this is likely to do to the number of requested and approved individual nonmanufacturer rule waiver requests?

Second, the Class Deviation says that “[w]here the SBA has issued a class waiver to the Nonmanufacturer Rule, a contracting officer must receive approval from the HCA prior to utilizing other than competitive procedures or restricted competition as defined in 38 U.S.C. 8127.”  The Class Deviation says that “[t]his is necessary to ensure HCAs have situational awareness of issues prompting the requests or use and, if needed, can take actions to mitigate requests or use.”  This authority, too, “cannot be redelegated.”

If you think that 38 U.S.C. 8127 sounds familiar, you’re absolutely right–it’s the “rule of two” statute made famous by Kingdomware.  When the Class Deviation says “other than competitive procedures,” it means “SDVOSB and VOSB sole source contracts.”  When the Class Deviation says “restricted competition” it means “SDVOSB and VOSB set-asides.”

In other words, the Class Deviation provides that a Contracting Officer cannot make an SDVOSB or VOSB sole source award or establish an SDVOSB or VOSB set-aside competition for a product covered by an SBA nonmanufacturer rule class waiver unless the HCA approves.  The almost-certain result is that many procurements that otherwise would have been set aside for SDVOSB and VOSB nonmanufacturers will be issued as unrestricted instead, with awards going to non-veteran companies.

The Class Deviation seems to make the assumption that the VA gets to pick and choose when to “use” a nonmanufacturer rule class waiver.  I’m not sure that the SBA would agree.  It seems to me that a class waiver either exists, or it doesn’t.

It’s hard to see this Class Deviation as anything but a premeditated targeting of SDVOSB and VOSB nonmanufacturers as somehow unworthy of the preferences established by 38 U.S.C. 8127 and Kingdomware.  I hope that the powers that be at the VA come to their senses and retract this poorly-conceived rule.  The Class Deviation itself doesn’t address the interplay between this rule and Kingdomware, and I’ll reserve for another day my thoughts on whether this Class Deviation complies with the Supreme Court’s ruling–but unless the VA does the right thing and withdraws the Class Deviation, my crystal ball sees another battle in the future.

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Koprince Law LLC

An agency backdated a market research memorandum to justify its set-aside decision–and when the backdating came to light, the Court of Federal Claims was none too pleased.

In a recent decision, the Court held that the backdated memorandum resulted in a “corrupted record,” which undermined a “fair and equitable procurement process,” and agreed that the agency’s self-imposed sanctions were appropriate.

I’ve said it many times before, and I’ll say it again: in my experience, the vast majority of agency procurement officials, at all levels, act honestly and ethically.  But that’s not true 100% of the time.  Just last week, I posted on the case of Starry Associates Inc. v. United States, in which the Court held that an agency had engaged in “intransigence and deception” during its evaluation and the following bid protests.  Now comes another example of agency misbehavior, again in an apparent effort to undermine a bid protest.

The Court’s decision in Gallup, Inc. v. United States, No. 16-1656C (2017) involved a U.S. Special Operations Command procurement for its Global Research and Assessment Program.  On May 31, 2016, the agency issued an RFI seeking information regarding “small business’ ability to support GRAP while ensuring compliance with FAR 52.219-14, Limitations on Subcontracting.”

After reviewing responses from interested contractors, the agency concluded that 14 respondents were capable of supporting the GRAP requirements and “the majority of respondents addressed FAR 52.219-14.”  On November 14, the agency issued the solicitation as a small business set-aside.

Gallup, Inc., a large business, filed a pre-award bid protest with the Court.  Gallup argued that the agency’s set-aside determination was irrational.  According to Gallup, a small business could not perform the GRAP requirements while maintaining compliance with the limitations on subcontracting.

On January 6, 2017, the agency filed its Administrative Record responding to the protest.  The Administrative Record contained a document entitled “Market Analysis (June 24, 2016).”  The Market Analysis memorandum was the only record of the agency’s evaluation of RFI responses.  The Market Analysis memorandum stated that a majority of RFI respondents addressed the limitations on subcontracting and that three small businesses “provided the most extensive and detailed information regarding compliance with the clause.”  The memorandum concluded: “As such, the GRAP acquisition will be processed as a small business set-aside.”

After briefing on the case had been completed in March, the Government (USSOCOM was represented both by its own attorneys and those of the Department of Justice) filed a Notice of Corrective Action, stating that the agency would cancel the set-aside solicitation.  The Government also informed the Court that it had learned, on March 23, that the Market Analysis memorandum “had been prepared on or about December 15, 2016 . . . after the agency had proceeded with the procurement as a small business set-aside and had received [Gallup’s] pre-filing notice” regarding its protest.

The Court issued an order for an oral hearing, and required all individuals who had participated in the production of the Administrative Record to attend.  At the hearing, the Contracting Officer testified that she had prepared the Market Analysis memorandum in December, after the acquisition was underway.  She had used the June 24 date in an effort to make sure that the record was “in good shape” to defend the protest.  The Contracting Officer was contrite, saying that she had made a “huge mistake” and was “deeply sorry” for it.

Following the hearing, Judge Thomas Wheeler asked the Government to explain why the agency should not be sanctioned for its actions.  The Government did “not dispute the appropriateness of sanctions in this case,” and agreed to pay Gallup’s attorneys’ fees and litigation costs.  The Government also stated that the agency would issue guidance to its contracting staff “emphasizing the importance of completeness, accuracy, and integrity in preparing records and accompanying certifications,” and would conduct training focusing on “accuracy and ethics in preparing and certifying administrative records.”  Gallup agreed that these self-imposed measures would be satisfactory.

Given the agreement between the Government and Gallup, the Court found that formal sanctions were unnecessary.  The Court ordered the Government to file a status report by May 17 regarding its implementation of the agreement.  Judge Wheeler concluded with a warning:

The integrity of the administrative record, upon which nearly every bid protest is resolved, is foundational to a fair and equitable procurement process.  While the Government has accepted responsibility for its misconduct, the importance of preventing a corrupted record cannot be overstated.  The Court encourages USSOCOM to take all reasonable steps to ensure that its contracting office appreciates the necessity of conducting a well-documented, well-reasoned procurement and producing a meticulous and accurate record for review.  The Court will not tolerate agency deception in the creation of the administrative record.

That’s twice in one week that I’ve covered Court decisions in which the presiding judge used the word “deception” to describe agency conduct.  As Judge Wheeler noted–and as Judge Bruggink forcefully stated in Starry Associates–the fairness and integrity of the procurement process rest on the assumption that agencies will act fairly and honestly.  Conduct like the backdating that occurred here undermine the fairness of the process, and just as importantly, undermine the perception that the process is fair–which is, after all, why contractors are willing to compete in the first place.

That said, I don’t want to give the impression that the misconduct in Gallup rose to the level of that described in Starry Associates.  Here, the Government’s attorneys appeared to have unilaterally disclosed the backdating when they discovered it–which was the right and ethical thing to do.  The Contracting Officer expressed remorse for her actions, and USSOCOM agreed to reasonable corrective measures without being forced to do so by the Court.  Those actions are worthy of acknowledgment, just like the improper backdating is worthy of criticism.

I won’t get up on my soapbox again about why good faith bid protests are such an important part of the competitive process (although you can read my musings on that subject in the Starry post). Perhaps Starry Associates and Gallup will be good lessons for those few agency officials who could be tempted to cross the line.  Hopefully, this is the last time for awhile that I’ll be writing about agency “deception.”

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The continuing legal battle over the constitutionality of the 8(a) program’s “socially disadvantaged” criteria may be on its way to the Supreme Court of the United States.

Last September, we covered the decision of the United States Court of Appeals for the D.C. Circuit in Rothe Development, Inc. v. United States Department of Defense, 836 F.3d 57 (D.C. Cir. 2016), where a two-judge majority of the court concluded the 8(a) program did not violate Rothe’s equal protection rights under the Due Process Clause of the Fifth Amendment by establishing a racial classification.

Now, Rothe has filed a Petition for Writ of Certiorari—a formal request that the Supreme Court review (and overturn) the D.C. Circuit’s decision.

By way of background, the main question in Rothe is whether the 8(a) program violates the Fifth Amendment by granting contracting preferences on the basis of race. One of the essential questions in resolving any equal protection challenge is determining the level of scrutiny to which the challenged law will be subjected. Judges can apply three different intensities of scrutiny: rational basis, intermediate, and strict. Think of these like low, medium, and high scrutiny.

Rational basis is the least intense of the scrutiny levels and applies to most laws. To survive a rational basis challenge, a law merely must bear some reasonable relation to a legitimate government interest. Needless to say, most laws reviewed under the “rational basis” test are upheld.

Strict scrutiny, on the other hand, is the most intense level of scrutiny. To survive a strict scrutiny review, the challenged law must be narrowly tailored to meet a compelling government interest. Strict scrutiny is typically applied when a statute is not race-neutral on its face. Many laws do not survive a strict scrutiny review.

In its September decision, the D.C. Circuit majority concluded the statute establishing the 8(a) program is race-neutral. As the court’s majority explained, “Section 8(a) uses facially race-neutral terms of eligibility to identify individual victims of discrimination, prejudice, or bias, without presuming that members of certain racial, ethnic, or cultural groups qualify as such.” Consequently, the D.C. Circuit concluded rational basis was the proper level of scrutiny to apply to the 8(a) statutes. Given the low bar set by rational basis review, the D.C. Circuit concluded the case met constitutional muster.

Rothe’s petition for Supreme Court review challenges the D.C. Circuit’s application of rational basis. Rothe argues that the D.C. Circuit should have reviewed the statute under strict scrutiny, and should have found the statute to violate the Fifth Amendment.

Rothe begins with the long-established principle that “drawing distinctions between citizens based on their race or ancestry is odious to a free people whose institutions are founded upon the doctrine of equality.” Rothe says that “the statutory provisions of the Section 8(a) program contain a paradigmatic racial classification because they distribute burdens and benefits on the basis of race.”

Rothe makes several arguments in support of its petition.

Rothe first argues the D.C. Circuit ignored the plain language of the statute, which Rothe says gives preferences to“’ocially disadvantaged individuals’ based upon ‘their identity as a member of a group without regard to their individual qualities.’” Rothe contends the statute establishes membership in certain racial minority groups as being indicative of social disadvantage; for this reason, Rothe says, the statute is not race-neutral.

Rothe then takes issue with the D.C. Circuit’s holding that the portion of the statute identifying racial classifications was analogous to an unenforceable “preamble.” Rothe writes that the section of the statute containing this language “reads like a definitional section,” and was “voted on and passed” by Congress. Further, Rothe says, “a court should always review the entirety of a statute,” and the D.C. Circuit failed to do so.

Next, Rothe says that the D.C. Circuit erred by finding that the statute was race-neutral because non-minorities are also eligible for the 8(a) program. Rothe concedes that non-minorities can be admitted to the 8(a) program, but writes that members of minority groups “receive an advantage over non-minorities based on their race.” Rothe continues: “this Court applies strict scrutiny whenever the government uses race as a factor in distributing burdens and benefits, regardless of whether race is the sole factor.”

Rothe next dives into the legislative history of the 8(a) program, which Rothe says supports its position. For instance, Rothe writes that a 1978 House-Senate conference committee intended that “the primary beneficiaries of the program would be minorities.”

Finally, Rothe contends that the D.C. Circuit misapplied the doctrine of constitutional avoidance. The doctrine of constitutional avoidance counsels that when a statute is open to multiple reasonable interpretations, courts should select the interpretation that does not present a constitutional issue. Rothe alleges that Section 8(a) is not ambiguous and that the D.C. Circuit had to contort the statutory language to apply the constitutional avoidance doctrine. As such, application of the doctrine was improper and led to the incorrect conclusion.

Rothe concludes by arguing that its case is “an issue of nationwide importance.” Writes Rothe: “[t]here can be little doubt that government contracting is big business, even for small businesses.” Rothe notes that $16.6 billion in 8(a) contracts were awarded in 2015, and says that “when billions of dollars in government contracts are at stake, any preferential treatment has a nationwide, economic impact.”

Now the big question: will the Supreme Court take Rothe’s case? If the Court declines to take the case, the D.C. Circuit’s ruling will stand, solidifying the 8(a) program’s constitutionality–at least for now. But if the Court takes the case, anything is possible.

The raw numbers don’t look good for Rothe. As the Supreme Court’s website says, “[t]he Court receives approximately 7,000-8,000 petitions for a writ of certiorari each Term.  The Court grants and hears oral argument in about 80 cases.”

But Rothe’s chances are probably a little better than those numbers would suggest. Rothe’s case presents a constitutional question affecting billions of dollars in government spending. And as the Supreme Court showed in 2015 with Kingdomware, it’s not afraid to take on a major government contracting case.

Continue to check back at SmallGovCon as we keep an eye on the developments in Rothe.

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Koprince Law LLC

SDVOSB fraud allegations, stemming from a “secret side agreement” between two joint venture partners, have resulted in a grand jury indictment against the companies and their owners.

According to a Department of Justice press release, an SDVOSB and non-SDVOSB executed a joint venture agreement that appeared to meet the SBA’s requirements, but later undermined the JV agreement with a secret agreement that provided that the non-SDVOSB would run the jobs–and receive 98% of the revenues.

The DOJ press release states that Action Telecom, Inc. and A&D General Contracting, Inc. formed a joint venture named Action-A&D, A Joint Venture.  The parties signed a joint venture agreement specifying that Action (which supposedly was an SDVOSB) would be the managing venturer, employ a project manager for each SDVOSB contract, and receive a majority of the JV’s profits.

But six months later, the owners of the two companies “signed a secret side agreement that made clear the JV was ineligible under the SDVOSB program.”  For instance, the side agreement stated that A&D (apparently a non-SDVOSB) would run the joint venture’s jobs and retain 98% of all government payments.  Additionally, consistent with the side agreement, A&D–not Action–appointed the joint venture’s project manager.  The side agreement specified that it superseded the original joint venture agreement, and that its purpose was to allow A&D to “use the Disabled Veteran Status of Action Telecom” to bid on contracts.

The DOJ says that twice, the government asked the joint venture for information about itself.  Both times the joint venture provided the original JV agreement, but not the secret side agreement.

Over time, the joint venture was awarded approximately $11 million in government contracts.

On April 7, a grand jury returned a 14-count indictment against the companies and their owners.  The charges include wire fraud, conspiracy, and major government contract fraud, among others.  The defendants were arraigned on April 21.  The same defendants also face civil charges in a False Claims Act lawsuit pending in California federal court.

As is the case with all criminal defendants, Action, A&D and their owners are presumed innocent.  But if they are found guilty, they deserve some tough penalties.  After all, an SDVOSB joint venture agreement is worthless if the parties develop a secret side agreement to circumvent and undermine the requirements for SDVOSB management and control.  If it turns out that the the government’s allegations are true, the defendants not only defrauded the government (and honest SDVOSBs) but actually thought it was a good ideal to document their fraud in writing.  There used to be a TV show about crooks like that.

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Koprince Law LLC

When we talk about the federal contracting industry, one of the first things that comes to mind is compliance.  We are an overly regulated industry with a ton of laws to abide by, FAR changes to keep up with, legislation of which we need to stay on top.  None of it is particularly easy or straightforward, and it sometimes takes experts to keep your organization in compliance.  In short, no one can claim they are 100% compliant, nor can they claim to know everything with regards to this industry, especially a GovCon CEO.  That’s the bad news.

The good news is that no one expects this of the CEO.  However, your attitude towards compliance goes a long way within the organization.  The example you set at the top will filter throughout the organization and will go a long way towards establishing and maintaining a company culture that follows the rules of this industry.  We all talk about making sure that the company is not on the front page of the Washington Post for getting into hot water with the law or for debarment.

How can you contribute to that as a CEO?
How can you build your organization to take it seriously?
How do you keep from bogging down the wheels of progress and allow the mission goals for you and your clients to be met?

Lead by example.  It sounds so easy, is in every leadership book, and is touted on every trending article on LinkedIn.  But ask yourself, who fills out your timesheet?  Do you throw 8 hours of your time into G&A and call it a day?  Do you have your admin fill out your timesheet?  Do you approve your direct reports?  Every GovCon has a timekeeping system that requires daily input and ultimately, signature submission and approval of direct reports time.

Do you travel according to JTRs and/or within the per diem rates?  Do you expect your folks to abide accordingly?  As a GovCon, you just don’t travel extravagantly. Ever.

Put your Money where your Mouth is.  How many emails from the Timekeeping Goon have you received?  Do you ever take the time to find out who the repeat offenders are and to speak with them about these transgressions?  Ever told your top sales person that they could have their pay docked or lose their jobs if they continue to be non-compliant?  It’s that type of discussion (and action) that shows that the company values compliance and takes it seriously.

Have you had your HR folks scrub through your labor categories and the folks associated with them…proactively?  Have you righted any salary discrepancies to ensure that your workforce is fairly and consistently paid according to skill set and experience?  These suggestions all are dictated by FAR compliance and laws, but in general, they emulate good advice.

Be the leader that the GovCon industry needs and keep your company on the front pages for the work you are contributing to this country; not for running afoul of the rules.

Stephanie Alexander, CEO and Founder

Stephanie Alexander has over 15 years’ experience providing leadership, management and problem solving to government contractors.  Stephanie has assisted businesses increase revenue, plan for manageable growth, and map successful strategies for expansion.

Because government contractors often spend most of their resources on business development, but need to strengthen their back office, Stephanie founded BOOST to provide accounting, contracts, HR, and recruiting services to GovCons. She designed this unique business model to provide scalable, customized services to meet the specific needs of GovCons.

In 2015, Stephanie and a partner founded govmates, a free business development tool for government contractors. Govmates is a proprietary database of government contractors seeking teaming partners to bid on opportunities.

BOOST ahead: www.boostllc.net     govmates: www.govmates.com     Phone: 703-598-4595     Email: salexander@boostllc.net

GovCon Voices is a regular feature dedicated to providing SmallGovCon readers with candid news, insight and commentary from government contracting thought leaders.  The opinions expressed in GovCon Voices are those of the individual authors, and do not necessarily reflect the opinions of Koprince Law LLC or its attorneys.  

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I was fortunate enough to spend the beginning half of my week speaking at the 2017 SAME Small Business Symposium in Bremerton, Washington. It was a wonderful event and it was nice to be able to see so many familiar faces (and make some new acquaintances). I am back in the office to wrap up the week and bring you yet another SmallGovCon Week In Review.

In this week’s edition: former President Obama’s “mandatory sick leave” Executive Order may remain on the books after all, IDIQ contracts made up about one-third of all federal contracting spending over a four-year period, contractors react to President Trump’s “Buy American, Hire American” Executive Order, and much  more.

  • Why won’t many small firms won’t sell to the government?  FCW provides some answers. [FCW]
  • Surprise: an Obama Executive Order mandating sick leave for federal contractor employees, once considered primed for reversal by the Trump administration, may be here to stay. [Bloomberg BNA]
  • The DoD is parsing out exactly how it will split one of its biggest and most infamous sections after Congress mandated the division last year. [Federal News Radio]
  • Between 2011-2015 the sometimes-controversial contract type known as indefinite delivery/indefinite quantity accounted for an annual $130 billion of agency awards. [Government Executive]
  • Quantum computing is about to disrupt the government contracts market. [Bloomberg Government]
  • The White House previewed an Executive Order that will make it tougher to obtain foreign contracting waivers and H-1B visas, which the administration claims will boost manufacturing and skilled labor at home. [Federal Times]
  • Insider threats present a real danger to federal agencies, and those threats have inspired the GSA to issue a Schedule 70 special item number for Continuous Diagnostics and Mitigation products and services. [FCW]
  • President Trump’s “Buy American” order is drawing mixed reviews from government contractors. [Government Executive]
  • The SBA released a notice of termination of the class waiver to the nonmanufacturer rule for rubber gloves. [Federal Register]

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Koprince Law LLC

I am back in Lawrence after a great trip to the Pacific Northwest for the SAME 2017 Small Business Symposium, hosted by the SAME Seattle Post.  I gave two talks at the Symposium: the first focused on the legal requirements for joint ventures and prime/subcontractor teaming arrangements, and the second on the SBA’s new All Small Mentor-Protege Program.

A big “thank you” to Julie Erickson for organizing the event and inviting me to speak, and thanks also to Thomas Nichols for his kind introductions at both talks.  And of course, thank you to all of the contractors, government officials and clients who attended the sessions and asked such insightful questions.

I’ll be sticking around Kansas for the next several weeks, but that doesn’t mean that I’ll be taking a break from speaking about government contracts.  Please join me and the Kansas PTAC for in-depth sessions on the government’s four major socioeconomic programs: 8(a), SDVOSB, HUBZone, and WOSB.  These sessions will be held in Wichita and Overland Park; click here for details and to register.  Hope to see you there!

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A procuring agency’s conduct in the course of evaluating proposals–and defending itself in four subsequent bid protests–was an “egregious example of intransigence and deception,” according to the Court of Federal Claims.

In a recent decision, Judge Eric Bruggink didn’t hold mince words, using terms like “agency misconduct,” “untruthful,” and “lack of commitment to the integrity of the process,” among other none-too-subtle phrases, to describe the actions of the Department of Health and Human Services.  But Judge Bruggink’s decision is striking not only for its wording, but because it demonstrates the importance of good faith bid protests to the fairness of the procurement process, in a case where HHS unfairly sought to “pad the record” in support of a favored bidder–and would have gotten away with it were it not for the diligent efforts of the protester.

The Court’s decision in Starry Associates, Inc. v. The United States and Intellizant, LLC, No. 16-44C (2017) ostensibly was a case about attorneys’ fees.  The legal question before the Court was whether Starry Associates, Inc., which had prevailed in a prior protest, Starry Associates Inc. v. United States, 127 Fed. Cl. 539 (2016), should recover its fees.  But in answering this question, the Court took HHS to task for repeated egregious conduct in its underlying source selection, and in the bid protest process itself.

Back in 2014, HHS issued an RFQ seeking a range of business operations to support HHS’s financial management system, known as the Unified Financial Management System, or UFMS.  The RFQ was issued as a small business set-aside, and called for award to the lowest-priced, technically acceptable offeror.

Three companies submitted quotations.  Starry Associates, Inc., the incumbent contractor, was one of these companies.  However, the lowest-priced quote was submitted by a competitor, Intellizant, LLC.  Because Intellizant had submitted the lowest-priced quote, HHS evaluated Intellizant’s quote for technical acceptability.

Technical proposals were evaluated by a Technical Evaluation Panel consisting of three individuals: John Thompson, Karen Slater, and Arlette Peoples.  And here’s where things got interesting.  According to internal HHS correspondence (as well as sworn statements made in connection with the protest), the composition of the TEP was determined, at least in large part, by an HHS employee named John Davis.  Mr. Davis happened to be a former Intellizant employee, and had been involved in Intellizant’s unsuccessful bid for the incumbent contract (the contract won by Starry).

Ms. Slater, for her part, was the Contracting Officer’s Representative on an unrelated HHS contract being performed by Intellizant.  On November 21, 2014, Ms. Slater prepared a Past Performance Questionnaire for Intellizant on that contract, and rated Intellizant as “Exceptional” in every category.  Just four days later, the TEP was convened.  When Mr. Thompson asked whether Ms. Slater might appear to be biased, having prepared such a glowing PPQ for Intellizant so recently, Ms. Slater responded that she was asked to serve on the TEP “per the direction of John Davis,” who had informed Ms. Slater that it was appropriate for her to serve on the TEP.

Mr. Thompson rated Intellizant unacceptable overall, finding that the proposal didn’t meet several RFQ requirements.  Ms. Peoples also questioned whether she ought to rate Intellizant as unacceptable.  However, another HHS official incorrectly informed Ms. Peoples that HHS would be able to hold discussions with Intellizant to clear up those concerns.  Ms. Slater, for her part, rated Intellizant’s proposal as acceptable.

The Source Selection Authority, Cassandra Ellis, reviewed the TEP’s report, and then evaluated the proposal herself.  She found Intellizant’s proposal to be acceptable.  Starry was notified that the award had been made to Intellizant.

Starry filed a GAO bid protest, arguing that Intellizant could not satisfy all of the RFQ’s requirements and lacked key personnel.  In January 2015, HHS announced that it would take corrective action.  However, upon inquiry from the GAO, HHS stated that it would not solicit new proposals or reevaluate existing proposals; instead, it said that the protest had revealed “gaps in the record” which it would correct in its “contract file.”

Believing this so-called corrective action to be insufficient, Starry announced its intent to file a bid protest with the Court.  HHS then changed its tune, stating that it would reevaluate proposals and make a new award decision.  In response, Starry agreed to withdraw its notice of intent to protest in the Court.

The same TEP reevaluated proposals.  Again, there was no consensus: Mr. Thompson rated Intellizant as unacceptable, while Ms. Peoples and Ms. Slater rated it as acceptable.  Ms. Ellis, the SSA, again concluded that Intellizant was acceptable; Intellizant was announced as the awardee for a second time.

Starry protested again at the GAO.  This time, among its arguments, Starry alleged that Mr. Davis was biased in favor of Intellizant and had attempted to exert influence to guide the award to that company.  In response, Mr. Davis informed the GAO that he had “recused” himself from the protest process.  The GAO issued a decision sustaining a portion of Starry’s protest.  However, based on Mr. Davis’s representation, the GAO denied the bias allegation.

After receiving the GAO’s decision, Mr. Davis decided to cancel the solicitation entirely.  Starry protested again, arguing that the cancellation was an improper pretext to allow the work to be contracted to Intellizant under a new RFQ.  The GAO denied the protest in December 2015.

Starry then took its case to the Court.  In the Court, Starry was able to obtain additional evidence that had not been available at the GAO.  Starry’s new evidence included the depositions of several HHS officials, including Ms. Slater, Ms. Ellis, and Mr. Davis.

In July 2016, the Court issued a decision sustaining Starry’s protest.  The Court wrote that “[o]nce the initial decision to award to Intellizant had been made, Ms. Ellis and Ms. Slater make clear that any other result was unwelcome and not seriously considered.”  Instead, “they viewed their task as bolstering the initial decision, not reevaluation.”  Although HHS told the GAO and Starry that it was performing a full and fair reevaluation following Starry’s record protest, “the record does not reflect such an effort.”

Further, the Court found, in a “cavalier disregard for the truth of representations made to the GAO,” Mr. Davis did not recuse himself from the procurement process.  In fact, “he remained directly involved in the selection of the TEP and ultimately made the critical decision to moot out the series of protests by canceling the solicitation.”  Further, based on Mr. Davis’s deposition, his ultimate rationale for canceling the solicitation was “completely illusory.”

The Court issued an injunction setting aside the cancellation.  The Court also ordered that Ms. Ellis, Ms. Slater, and Mr. Davis could not be involved in “any subsequent agency actions involving this solicitation.”

After winning at the Court, Starry sought attorneys’ fees under the Equal Access to Justice Act.  EAJA caps the recovery of attorneys’ fees at $125 an hour (a sum which probably sounded mighty princely when it was adopted back in 1996, but won’t get a traffic ticket defended in many jurisdictions 21 years later).  However, there are exceptions to the cap, including when there is a “special factor” that the court finds justifies a higher amount.

At issue in Starry’s case was whether there was a special factor present that justified deviating from the $125 cap (plus a cost-of-living adjustment, which the government did not oppose).  Judge Bruggink began his analysis this way: “[w]hat the agency did here constitutes an egregious example of intransigence and deception, not just with regard to the bidder, but to the GAO and to the court.  It is fortunate, but relevant, that this was anomalous conduct.”

Judge Bruggink then summarized the history of the procurement.  He wrote that, after Starry’s first protest, “HHS did not conduct a meaningful reevaluation but instead undertook an effort to pad the record to better support award to Intellizant.”  In the course of the second protest, HHS “misled GAO” with the “untruthful” representation that Mr. David had recused himself from the process.  When Mr. Davis later decided to cancel the solicitation, he provided “an illusory basis for that decision.”  In addition, “[t]he fact that the agency left the decision of what to do with the procurement to Mr. Davis after it had just represented to GAO that he was uninvolved is a further reflection of its lack of commitment to the integrity of the process.”

The Court continued:

The extreme measures that [Starry] was forced to pursue to vindicate its right to a rational and lawful federal procurement process, combined with the shocking disregard of the truth by the agency, justify an award at higher than the default rate.  Both Starry and the GAO were misled on multiple occasions.  Although we do not reach the question of bias, the record is replete with examples of agency misconduct.

Judge Bruggink held that Starry was entitled to recover attorneys’ fees and costs under EAJA, and that a “special factor” adjustment was appropriate, allowing Starry to recover for the rates actually billed by its attorneys.

Starry should be congratulated for its perseverance, and Judge Bruggink should be commended for holding HHS’s feet to the fire–and not mincing words when it became apparent that HHS had engaged in improper conduct.  It’s rare, to say the least, to see a federal judge unload on an agency like Judge Bruggink did here, but it’s readily apparent that HHS deserved it.

Judge Bruggink labeled the circumstances here “particular and unique,” and I think he’s right.  In my experience, the vast majority of agency officials take great care to act fairly and honestly.  For example, contrary to common misconception, these fair and honest agency officials do not automatically blackball contractors who file good faith bid protests–in fact, many such good faith protesters are awarded a contract after a fair re-evaluation.

But Starry Associates is a good reminder that must because the vast majority of agency officials act fairly and honestly does not mean that all agency officials do so.  In this case, Judge Bruggink found that the agency allowed a former employee of a competitor to make crucial evaluation decisions, “padded the file” to support that competitor, flat-out lied to Starry and the GAO, and more.

There’s been a lot of sky-is-falling complaining lately about bid protests. The former U.S. Chief Technology Officer wants to create a “shame list” of unsuccessful protesters.  One GSA official says she has “given up hope” for a reduction in protests.  The Senate attempted to enact strict (and poorly conceived) bid protest “reforms.”  And so on.

Underpinning these complaints, of course, are several assumptions: bid protests are commonplace, bid protests are frivolous, and–perhaps most important–government evaluators always act fairly and honestly.

All of these assumptions are readily disproved.

Let’s start with the number of protests.  In Fiscal Year 2016, there were 2,621 protests filed at GAO, and perhaps a hundred more at the Court.  That sounds like a lot, but it’s a drop in the bucket compared to the total number of government contracting actions.  A few years ago, former OFPP head Dan Gordon did the math, and concluded that “etween approximately 99.3 percent and 99.5 percent of procurements were not protested.”

Then there’s the assumption that most bid protests are frivolous.  Again, those pesky facts get in the way.  Year after year, the overall “effectiveness rate” of protests at GAO (that is, cases that result in a positive outcome for the protester, either through a “sustain” decision or voluntary corrective action) hovers somewhere around 45%.  Last year, it was 46%.  Think about that for a second: the protester has the burden of proof in a protest; given that burden, one would assume that protesters would lose most of the time.  Instead, protesters receive a positive outcome in nearly half of cases filed.

And just because a protester doesn’t win doesn’t mean the protest was intentionally frivolous.  Lots of protests are close cases, involving subjective judgment calls and gray areas of the law.  Many of these close cases (again, that burden of proof thing) go the agency’s way.  There’s a huge gap between being a losing protester and a frivolous protester–a gap that some people (I’m looking at you, Mr. “Shame List”) should acknowledge.

Sure, sometimes a protest is filed that appears frivolous.  But in my experience, many of these are filed by what we lawyers call pro se protesters, that is, protesters who aren’t represented by counsel.  Instead of being exercises in frivolity, many of these protests–although legally insufficient–are the result of a lack of legal understanding, not an attempt to game the system.  For example, a pro se protester in a small business set-aside competition may file a GAO bid protest challenging the small business size status of the awardee.  The GAO’s bid protest regulations don’t provide for jurisdiction over such issues, so the protest could appear frivolous–but how many non-lawyers have spent time poring over 4 C.F.R. 21.5?

That brings us to the final assumption–that agency evaluators will act fairly and honestly.  Again, I want to be clear: in my experience, that is absolutely true in the large majority of cases.  But Starry Associates shows that it is not always true.  Starry Associates demonstrates that every now and then an agency official pads the file, or allows a conflict of interest to permeate an evaluation, or lies to an offeror.  The bid protest process offers a way–perhaps the only way–to combat this type of malfeasance.  And human nature being what it is, what would happen if bid protests disappeared, or were severely curtailed?  I think that most agency officials would continue operating just as honestly and fairly as before–but a few, knowing that there was no chance of being caught, would be tempted to engage in unfair behavior like that seen in Starry Associates.

The procurement process is about more than speed and efficiency, as some of the “protest complainers” would have it.  Those things are important, but the process is also about fundamental fairness.  Our system of competition is worthless if the competitors believe–rightly or wrongly–that the game is rigged, and that there is no way to fix it.  As Starry Associates makes clear, every now and then, the game is rigged.  And even when (as is far more typical) an agency’s evaluation error is the result of an honest mistake, those mistakes happen quite frequently–as evidenced by the 46% bid protest effectiveness rate.

Congress has asked for an independent report on the impact of bid protests at DoD, and lawmakers undoubtedly will continue to get an earful from procurement officials who’d like to see the protest process severely curtailed or wiped out completely.  I’m not saying that the protest process cannot be improved–there is room for improvement in almost any process.  But I hope that Congress will check the statistics (and perhaps read Starry Associates) before equating “reform” with “greatly reducing access to bid protests.”  Improving the procurement process shouldn’t begin with curtailing one of the most important mechanisms available to ensure the fairness and integrity of the competitive system.

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It is out with the old, in with the new at the U.S. Small Business Administration.

A proposed SBA rule change published Tuesday, April 18, would incorporate the 2017 NAICS code revision into the SBA’s size standards table. If the proposed rule is made final, it will replace SBA’s current size standards table, which SBA has relied on for making size determinations since 2012. The revised size standards table will add 21 new NAICS industries. The revised NAICS code table also will feature larger standards for six industries, smaller standards for two industries, and will switch one size standard from revenue-based to employee-based.

By way of background, NAICS codes are a system for classifying businesses by type of economic activity. In the federal contracting world, NAICS codes are best known for their relationship to small business status, but the government uses NAICS codes for many other purposes, as well. The U.S. Office of Management and Budget has revised NAICS codes every five years since the system was adopted in 1997. OMB’s most recent revision came last summer.

OMB revisions do not automatically apply to SBA, which uses NAICS codes as the basis of its size standards table under 13 C.F.R. 121.201. The SBA’s current size standards table is based on the 2012 NAICS codes.

SBA now proposes to update its size standards table to use OMB’s 2017 NAICS code revision. The new NAICS codes will not only update the size-standards associated with existing codes, but also will create 21 new industries by reclassifying, combining, or splitting 29 existing industry codes. Only one new industry would be formed by designating part of an existing industry as a separate industry. No new codes would be created out of whole cloth.

Below is a summary of the most significant proposed changes:


211112 (Natural Gas Liquid Extraction) / 750 employees to 1,250 employees
335222 (Household Refrigerator and Home Freezer Manufacturing) / 1,250 employees to 1,500 employees
335224 (Household Laundry Equipment Manufacturing) / 1,250 employees to 1,500 employees
335228 (Other Major household Appliance Manufacturing) / 1,000 employees to 1,500 employees
452112 (Discount Department Stores pt: Insignificant perishable grocery sales only) / $29.5 million to $32.5 million
454111 (Electronic Shopping) / $32.5 million to $38.5 million


212234 (Copper Ore and Nickel Ore Mining) / 1,500 employees to 750 employees
512220 (Integrated Record Production/Distribution) / 1,250 employees to 250 employees


512210 (Record Production) / $7.5 million to 250 employees

All of these changes would be the result of merging codes together. For example, current code 211112 (Natural Gas Liquid Extraction) will be merged with 211111 (Crude Petroleum and Natural Gas Extraction) to create code 211130 (Natural Gas Extraction). The move will increase the size of 211112 (Natural Gas Liquid Extraction) from 750 employees to 1,250. SBA estimates this change would result in an additional 4-6 firms qualifying as small businesses.

SBA also proposes to merge four NAICS codes related to appliance manufacturing into one, adopting the size standard of the largest of the four, thereby increasing the size of three codes at once. NAICS codes 335221 (Household Cooking Appliance Manufacturing), 335222 (Household Refrigerator and Home Freezer Manufacturing), 335224 (Household Laundry Equipment Manufacturing), and 335228 (Other Major household Appliance Manufacturing) will all become 335220 (Major Household Appliance Manufacturing) with a corresponding size standard of 1,500 employees. Currently, codes 335222 (Household Refrigerator and Home Freezer Manufacturing), 335224 (Household Laundry Equipment Manufacturing), and 335228 (Other Major household Appliance Manufacturing) have smaller size standards: 1,250, 1,250, and 1,000 respectively.

SBA did not say how many large businesses would become small based on the change, but said that 77 percent of the businesses in the appliance manufacturing field operate in 335221 (Household Cooking Appliance Manufacturing) and that therefore decreasing the size of that code would cause four known firms to lose their small business size status. What SBA did not say is that, after the change, 1,500 employee-sized businesses in the Appliance Manufacturing code would be able to compete for contracts that would have previously been set aside under the smaller refrigerator, laundry or other codes.

The rule change would also increase the size of 452112 (Discount Department Stores pt: Insignificant perishable grocery sales only) from $29.5 million to $32.5 million by merging it into code 452111 (Department Stores (except Discount Department Stores)) to create 452210 (Department Stores). SBA notes that the impact of this change will be negligible as wholesale and retail contracts are classified under a manufacturing or supply code and generally an offeror has to meet the 500-employee standard of the non-manufacturer rule in order to be eligible as a small business.

The final increased size standard would be NAICS code 454111 (Electronic Shopping) which is proposed to merge with 454112 (Electronic Auctions) and 454113 (Mail-Order Houses) to create 454110 (Electronic Shopping and Mail Order Houses). The size of 454111 would increase from $32.5 million to $38.5 million to match the other codes in the new 454110. SBA said reducing the size of the other two codes would not be feasible as it would result in 80 businesses having their small business status stripped. But SBA did not estimate how many currently large businesses under 454111 would be small as a result of the change.

As for the two NAICS codes that would be decreased in size, the first is a mining code. The rule would decrease the size standard of code 212234 (Copper Ore and Nickel Ore Mining) from 1,500 employees to 750 employees by merging it with 212231 (Lead Ore and Zinc Mining) to create code 212230 (Copper, Nickel, Lead, and Zinc Minding). Code 212231 (Lead Ore and Zinc Mining) currently has a size standard of 750. According to the SBA, increasing the size of 212234 would not be an option, because it would make virtually every business operating in that code–including dominant ones–into small businesses. But, the SBA says, reducing the size of 212234 would only make one formerly small firm into a large one.

Finally, the merging of 512220 (Integrated Record Production/Distribution) and 512210 (Record Production) into 512250 (Record Production and Distribution) would decrease the size of 512220 from 1,250 employees to 250 employees and swap 512210 from $7.5 million to 250 employees. According to the SBA, retaining the 1,250 employee standard of 512220 would have resulted in all but one business in the industry being small. As proposed, however, SBA says that two current businesses under 512220 would become large. Meanwhile, three businesses currently large under 512210’s $7.5 million standard (with average revenues between $52 million and $213 million) would become small under the 250 employee standard. Further, the change would remove the earnings cap from all businesses operating in the 512210 code.

The SBA is asking for comments on the proposed rule before June 19 and seeks to adopt the rule on October 1, 2017.

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I’ve been spending quite a bit of time on the West Coast lately: I started the week in San Diego as a speaker at the APTAC’s Spring 2017 Training Conference and after a few days in the office will be heading back on the road to present at the 2017 SAME Small Business Symposium in Bremerton, WA. If you will be attending please come say hello!

Before I head back West, it’s time for our weekly look at comings and goings in the world of federal government contracting.  In this week’s SmallGovCon Week In Review, a business owner pleads guilty to defrauding more than 1,000 would-be contractors in a sleazy registration scheme, the GSA’s Alliant 2 unrestricted contract is moving forward, a government official goes on the record as stating that some contractors are “kicking butt,” and much more.

  • Government agencies are paying out millions of dollars to contractors that violate federal labor laws, says government watchdog. [FederalTimes]
  • The GSA’s Transactional Data Reporting program is supposed to eliminate the need for contractor-supplied price and discounting information but there is widespread anecdotal evidence to show that this is not happening. [Federal News Radio]
  • More GSA news: the Assisted Acquisition Services has found itself moving away from IT and into professional services. [Federal News Radio]
  • A national counterintelligence chief gave a pat on the to the contractors who are “kicking butt” in helping agencies head off insider threats. [Government Executive]
  • DHS’s acquisition processes are improving, according to a new GAO audit. [Nextgov]
  • The Alliant 2 unrestricted acquisition is moving forward: GSA has reached the source selection phase and will soon be contacting bidders to verify certain information. [FederalTimes]
  • A sleazy “government contracts registration” scheme has resulted in a guilty plea from a defendant accused of defrauding more than 1,000 would-be contractors. [United States Department of Justice]
  • A small-business advocate has won a day in court with Pentagon attorneys to argue whether the DOD should release internal documents that the plaintiff argues will reveal a government bias against small defense contractors. [Government Executive]

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The GAO estimates that 27 percent of DoD mentor-protege agreements are deficient.

In a comprehensive new report, the GAO says that many active DoD mentor-protege agreements are missing basic (and necessary) information, like the protege’s primary NAICS code.  Also missing, in some cases: the parties’ signatures

The GAO’s report, titled “Small Business Contracting: DOD Should Take Actions to Ensure That Its Pilot Mentor-Protege Program Enhances the Capabilities of Protege Firms,” begins with an excellent background on the history of the DoD mentor-protege program, and the legal relationship between the DoD program and SBA’s new All Small Mentor-Protege Program (spoiler alert: there isn’t one; the two programs are separate and independent).  The GAO then explains the many required elements of a DoD mentor-protege agreement, such as an assessment of the protege’s needs, a description of the specific assistance the mentor will provide to the protege, and so on.

However, many of the active DoD mentor-protege agreements are missing some of the required elements.  GAO writes:

Our review of a randomly selected probability sample of 44 of the 78 total active DOD mentor-protege agreements in place as of June 2016 found that a number of these agreements were missing required elements.  Specifically, based on our review, we estimate that 27 percent of the agreements did not address all required elements.  With respect to specific elements, we estimate that 25 percent of the agreements did not include the signature of the mentor and protege, 9 percent did not include the protege’s primary NAICS code, and 7 percent did not include an anticipated start and end date for the agreement.  These missing elements suggested that the [DoD] components’ procedures for approving mentor-protege agreements do not provide reasonable assurance that agreements are completed in accordance with DOD requirements.

These omissions can be important.  For instance, GAO noted, “missing industry codes are used to determine whether proteges are eligible to participate in the program” in the first place.  And of course, without signatures, it’s not clear that an agreement exists at all.  It’s stunning that an estimated one-fourth of active DoD mentor-protege agreements are unsigned.

In addition to these problems, the GAO writes that the DoD “lacks performance goals and other measures needed to fully assess the program.”  In other words, GAO concludes, the DoD lacks the tools and data necessary to “fully assess how well the program is enhancing the capabilities of small businesses to perform under DOD and other contracts.”

The DoD submitted comments concurring with the GAO’s findings and recommendations for improvements; DoD has pledged to take action to address the GAO’s findings.  We’ll keep you posted on changes to the DoD mentor-protege program if and when they happen.

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It’s a well-known aspect of federal contracting: if a contractor wishes to formally dispute a matter of contract performance, the contractor should file a claim with the contracting officer.

But if the contractor is working under a task or delivery order, which contracting officer should be on the receiving end of that claim—the one responsible for the order, or the one responsible for the underlying contract?

As a recent Civilian Board of Contract Appeals decision demonstrates, when a contractor is performing work under a Federal Supply Schedule order, a claim involving the terms of the underlying Schedule contract must be filed with the GSA contracting officer.

Consultis of San Antonio, Inc. v. United States, CBCA No. 5458 (March 31, 2017) involved an appeal relating to a task order award by the VA to Consultis under its GSA Federal Supply Schedule Contract, for various information technology services. During performance, one of Consultis’ employees raised concerns about wage rates, so the Department of Labor conducted an inquiry to determine the applicability of the Service Contract Labor Standards under the task order. The DOL found that, while the Service Contract Act was incorporated in Consultis’ GSA Schedule contract, the appropriate wage determinations were not. It therefore recommended that GSA and VA add them to the task order.

Both GSA and the VA initially declined to add the wage determinations to the task order. Some six months later, however, the VA’s contracting officer issued a unilateral modification that did so. About two months after that, Consultis requested a supplemental payment from the VA as a result of these wage determinations, saying that it would pay the increased wages as soon as the VA provided the payment. After additional correspondence, the VA’s contracting officer issued a “final decision” denying Consultis’ request, noting that compliance with the labor standards is a contractor’s responsibility. GSA’s contracting officer apparently was involved in this decision.

Consultis appealed this denial to the Civilian Board of Contract Appeals. But after a review of the appeal, the Board questioned whether the VA contracting officer’s final decision was sufficient to trigger the Board’s jurisdiction.

Specifically, the Board noted that “FAR 8.406-6 requires that disputes pertaining to the terms and conditions of contracts be referred to the schedule contracting officer for resolution . . . whereas disputes pertaining to performance may be handled by the ordering activity contracting officer.” The Board found that this provision required GSA’s contracting officer—not the VA’s—to decide Consultis’ claim:

Although the focus of this appeal is the applicability of the wage determinations to the task order contract, the resolution of that issue necessarily requires an examination of the terms and conditions of the schedule contract. . . . We are not persuaded that clauses mandated by statute in the FSS contract, including those mandating compliance with the SCLS, cannot be enforced if they are not expressly incorporated into the task order contract. The task order comes into existence under the schedule contract. . . . Whether the VA contracting officer merely made explicit (by issuing the modification) what the contract already requires is an issue of contract interpretation that is appropriate for consideration by the GSA contracting officer. At the very least, it is a mixed issue, involving both performance and contract interpretation, which . . . also requires a decision from the GSA contracting officer.

Because GSA’s contracting officer did not issue final decision, the Board ruled that it did not have jurisdiction to consider Consultis’ appeal. It therefore dismissed the appeal for lack of jurisdiction.

Though the principle that a contracting officer must first issue a final decision before a contractor may appeal that decision seems relatively straightforward, Consultis demonstrates that its real-world application is sometimes not. For disputes involving FSS contracts, contractors should consider which contracting officer—either the ordering agency’s or the GSA’s—should consider the claim; if the claim is not decided by the appropriate contracting officer, the Board will not have jurisdiction to consider any appeal.

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I am on my way home from San Diego, where I spent yesterday at the APTAC Spring Conference.  My presentation focused on recent major legal updates in government contracting, including key provisions of the 2017 National Defense Authorization Act, implementation of the All Small Mentor-Protege Program, and more.

APTAC is a wonderful organization and it is always such an honor to speak at an APTAC national conference.  Thank you to Becky Peterson, Teri Bennett, Tiffany Scroggs, and all of the APTAC leadership for inviting me to be part of this spring’s event.  And thank you to all the PTAC counselors who asked great questions and had kind words about the presentation (and a few lighthearted jests about KU’s tournament woes, too).

I say it all the time, but it’s worth saying again: if you are a small business in government contracting, you owe it to yourself to see what your local PTAC can do for you.  Visit the ATPAC website to get started.

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The SBA has published a list of active “All Small” mentor-protege agreements.  The list, which is available on the SBA’s website, is dated April 5, 2017.  It’s not clear how often the SBA intends to update the list.

The April 5 list reveals that there are approximately 90 active All Small mentor-protege agreements, covering a wide variety of primary industry classifications.  All major socioeconomic categories (small business, 8(a), SDVOSB, HUBZone, EDWOSB and WOSB) are represented.

There’s no reason why mentor-protege pairings should be a secret.  Kudos to the SBA for publishing the list, which will be useful to contracting officers and industry alike (as well as those of us who are simply curious by nature).

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One might think that when an electronic proposal is received by a government server before the solicitation’s deadline, the proposal isn’t late. A government server is under government control, so the proposal is timely, right?

Not necessarily, at least the way the GAO sees it. As one contractor recently learned, waiting until the last minute to submit a proposal electronically carries significant risk that the proposal will not be considered timely, even if the proposal reaches the government server in time.

Peers Health, B-413557.3 (March 16, 2017) involved a Navy RFQ for occupational health disability and treatment guidelines. Quotations were to be submitted no later than 12:00 p.m. EST on November 28, 2016. The RFQ stated that quotations were to be submitted via email to a certain point of contact, and at an email address identified in the solicitation. Alternatively, offerors could submit their proposals by regular or overnight mail.

The Solicitation incorporated FAR 52.212-1 (Instructions to Offerors – Commercial Items), which provides, among other things, that proposals not timely received will not be considered for award. Notably, FAR 52.212-1 provides the following exceptions under which the government may accept late proposals:

(A) If [the proposal] was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers; or

(B) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers. . . .

FAR 52.212-1(f)(2)(i). As the regulation explains, proposals received after the deadline for proposal submission will be considered timely if they are submitted electronically the day before the submission deadline, or if the government received the proposal and was in control of it prior to the submission deadline.

Peers submitted its quotation by email at 11:59 a.m. on November 28, 2016—one minute before the deadline. While the government server received the submission at 11:59 a.m., Peers’ email did not reach its final destination (the point of contact identified in the RFQ)  until 3:49 p.m. GAO did not explain what caused the lengthy delay in transmission from the server to the Navy point of contact.

The Navy eliminated Peers from the competition, stating that Peers’ quotation was untimely. After Peers learned of the Navy’s decision, it filed a GAO bid protest.

Peers argued that under FAR 52.212-1(f)(2)(i)(B), its proposal was timely because the email was received by the government’s server at 11:59 a.m. As such, Peers contended, its proposal was eligible for the timeliness exemption under FAR 52.212-1(f)(2)(i)(B) because it was “received at the government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers . . . .”

GAO was not convinced. GAO explained that in an earlier case, Sea Box, Inc., B-291056, 202 CPD ¶ 181 (Comp. Gen. Oct. 31, 2002), GAO had ruled that only FAR 52.212-1(f)(2)(i)(A) applied to electronically submitted proposals because it spoke directly to the issue of electronic submission. GAO concluded that applying the broader government control exception found in FAR 52.212(f)(2)(i)(B) to electronic submission would make the specific day prior requirements for electronic submission redundant. To the dismay of Sea Box, GAO concluded the government control exception does not apply to electronic submissions.

Applying its reasoning from Sea Box, GAO concluded Peers’ proposal submission was untimely because it was neither received by the intended recipient prior to the closing date for proposal submission, nor received before 5:00 p.m. the working day prior to proposals being due. As such, Peers’ proposal was properly eliminated from competition as untimely, even though it had reached a government server before the deadline.

Interestingly, the Court of Federal Claims disagrees with the GAO’s reasoning in Sea Box (and, presumably, in Peers Health, as well).  In Watterson Construction Company v. United States, 98 Fed. Cl. 84 (2012), the Court carefully analyzed the regulatory history of the exceptions, and concluded that the “government control” exception does apply to emailed proposals. The Court has since confirmed its ruling, most recently in Federal Acquisition Services Team, LLC v. United States, No. 15-78C (Feb. 16, 2016).

In our view here at SmallGovCon, the Court has the better position: and not just because arguing with a federal judge isn’t usually a good idea. The regulation states that a late proposal may be accepted where the electronic commerce “or” the government control exception applies. The plain language of the regulation (and the Court’s careful study of the underlying history) suggest to us that Peers should have won its protest.

As we’ve discussed on this blog before, it’s bad news when the GAO and Court disagree about an important matter of government contracting. True, the GAO isn’t required to follow the Court’s rules. However, a bid protest shouldn’t turn on which forum the protester selects. My colleagues and I hope that the GAO reconsiders its position in future protests.

Perhaps Peers will take its case to the Court and obtain a different result. For now, contractors should be aware that under the GAO’s current precedent, the only way to ensure that an electronic proposal submission is timely received is to file before 5:00 p.m. the day before proposals are due. If the proposal is submitted later, and gets stuck on the government’s server, a potential protester should make plans to skip the GAO and head directly to the Court of Federal Claims.

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It’s been a rainy spring here in Lawrence, but the sun is finally out today.  And speaking of sunshine, I’ll be in sunny San Diego on Monday to speak at the APTAC Spring 2017 Training Conference.  I am looking forward to catching up with many of my favorite “PTACers” next week.

Before I head to the West Coast, it’s time for our weekly rundown of government contracting news and commentary.  In this week’s SmallGovCon Week In Review, a contractor has agreed to pay nearly $20 million to resolve accusations of overcharging the VA, the GSA is considering removing a mandate requiring industry partners to participate in the new Transactional Data Reporting pilot, the GAO concludes that DoD’s buying power is on the rise, and much more.

  • Public Spend Forum offers tips on how to bridge the gap between public procurement and government contracting. [Public Spend Forum]
  • After being accused of overcharging the U.S. Department of Veterans Affairs for drugs under two contracts, Sanofi-Pasteur has agreed to pay $19.8 million. [The United States Department of Justice]
  • As the GSA approaches a transition to its new communications effort, it has promised to learn from its past mistakes by listening more to its agency customers and industry partners and simplifying its efforts. [Federal News Radio]
  • In its annual assessment of the Defense Department’s major weapons systems, the GAO calculated that over the past year the DoD has seen a $10.7 billion increase in its “buying power.” [Federal News Radio]
  • UnitedHealthcare has filed GAO bid protests challenging DoD’s decision to award two large contracts in military health care to rival insurers. [StarTribune]
  • The Pentagon is ending a seven-year drawdown of acquisition spending after the Defense Department 2016 fiscal contract obligations increased by 7% over the previous year. [Government Executive]
  • The GSA is considering whether to remove a mandate requiring industry partners seeking or renewing a schedule to participate in its Transactional Data Reporting Pilot. [Nextgov]

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In evaluating a WOSB joint venture’s past performance, the procuring agency considered each joint venture member’s contemplated percentage of effort for the solicitation’s scope of work, and assigned the joint venture past performance ratings based on which member was responsible for particular past performance.

The GAO held that the agency had the discretion to evaluate joint venture past performance in this manner–although it is unclear whether a relatively new SBA regulation (which apparently didn’t apply to the solicitation) would have affected the outcome.

The GAO’s decision in TA Services of South Carolina, LLC, B-412036.4 (Jan. 31, 2017) involved an Air Force solicitation seeking services supporting Air Force Information Network operations.  The solicitation was issued on March 13, 2015 and was set aside for WOSBs.

The solicitation called for the award of a fixed-price contract (with a few cost reimbursable line items) for a 12-month base period and four potential option years.  The Air Force was to evaluate proposals on a best value basis, considering technical, past performance, and price factors.

The successful offeror was to perform work in five Mission Areas.  Under a “staffing/management” technical subfactor, offerors apparently were required to provide information regarding the anticipated breakdown of work between teaming partners (or joint venture partners) for each Mission Area.

With respect to past performance, the solicitation stated that offerors should submit past performance information on up to eight recent, relevant contracts performed by the offeror, its subcontractors, teaming partners, and/or joint venture partners.  The solicitation stated that “past performance of either party in a joint venture counts for the past performance of the entity.”

TA Services of South Carolina, LLC was an 8(a) mentor-protege joint venture between Technica, LLC, a woman-owned small business, and AECOM, its large mentor.  TAS submitted a proposal in response to the Air Force solicitation.  TAS provided three past performance contracts performed by AECOM, but none by Technica.

TAS proposed that Technica would provide the majority of the staffing (between 55% and 70%) on four of the five Mission Areas.  AECOM would provide the majority of the staffing on the fifth Mission Area.

In the course of its evaluation, the Air Force independently identified a fourth AECOM contract, but no Technica contracts.  The Air Force concluded that the four AECOM contracts “provided meaningful past performance to enable a confidence level to be determined for the Joint Venture.”  However, “while Technica proposed the majority of staffing in all areas except [one], they demonstrated no past performance.”  The Air Force assigned TAS a “Satisfactory Confidence” past performance rating.  The Air Force awarded the contract to a competitor, which proposed a higher price but received a “Substantial Confidence” past performance score.

TAS filed a GAO bid protest challenging the evaluation.  TAS argued, in part, that the Air Force’s past performance evaluation was inconsistent with the terms of the solicitation.  TAS contended that the solicitation required AECOM’s experience to be treated as the joint venture’s experience, and did not allow the Air Force to assign a lower confidence rating merely because Technica, the lead joint venture member, had not demonstrated relevant experience.

The GAO wrote that, “[a]s a general matter, the evaluation of an offeror’s past performance, including the agency’s determination of the relevance and scope of an offeror’s performance history to be considered, is a matter within the discretion of the contracting agency.”  In this case, “the RFP’s reference to the past performance of a JV partner counting for the mast performance of the JV does not mean the agency could not consider which JV partner was responsible for past performance.”  The GAO continued:

In the case of the protester, despite the fact that one JV partner had relevant past performance of exceptional quality in all mission areas, it remains the case that the other JV partner, which was proposed to perform the majority of staffing in four of the five mission areas, had no relevant past performance.  Given the latter circumstance, we fail to see that satisfactory confidence was an unreasonable performance confidence rating for the JV.

The GAO denied the protest.

The evaluation of a joint venture’s past performance is something I’m asked about frequently–and an area where the FAR provides little guidance.  However, is worth noting that last summer, the SBA overhauled its joint venture regulations, including those applicable to the WOSB program.  The WOSB regulations now provide, at 13 C.F.R. 127.506(f):

When evaluating the past performance and experience of an entity submitting an offer for a WOSB program contract as a joint venture established pursuant to this section, a procuring activity must consider work done individually by each partner to the joint venture, as well as any work done by the joint venture itself previously.

Nearly-identical language was added to the SBA’s regulations governing joint ventures for small business, 8(a), SDVOSB and HUBZone contracts.

The new regulation took effect more than a year after the solicitation was issued in March 2015, and wasn’t discussed in GAO’s decision.  But had it been effective, would it have changed the outcome?  That’s not entirely clear (and won’t be until a case comes along interpreting the new rule), but my best guess is “no.”

The regulation, by its plain language, specifies that the procuring agency must consider the past performance of individual joint venture members.  The SBA’s Federal Register commentary indicates that the reason SBA adopted this regulation was to prevent agencies from outright ignoring the past performance of joint venture members, and assigning undeserved “neutral” ratings to JVs comprised of experienced members.

In TA Services, of course, the agency did consider AECOM’s past performance, and didn’t assign TAS a “neutral” rating.  The new regulation doesn’t directly require any more than that, although I imagine there will be bid protests in the future about whether the underlying policy prohibits the sort of weighing that occurred here (i.e., is it fair to “penalize” a mentor-protege JV simply because the protege has little relevant experience?)

We’ll have to wait to see how the GAO and Court of Federal Claims resolve these issues in the future.  For now, TA Services of South Carolina seems clear: at least prior to the adoption of the new SBA regulations, and absent a solicitation provision to the contrary, there is nothing wrong with the agency considering each JV partner’s level of effort as part of the past performance evaluation.

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