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Thank You, 8(a)s!

I am back in Kansas, where it is a balmy 39 degrees, after a great trip to Orlando for the National 8(a) Association Small Business Conference. The weather in Florida was “for real” balmy, as my kids might say–but as tempting as the sunny outdoors was, the convention hall was packed with representatives from 8(a) companies, large primes, government agencies, and others.  You know a conference has great content–and great networking–when attendees voluntarily choose the lecture hall over a nearby

Koprince Law LLC

Koprince Law LLC

Thank You, 8(a)s!

I am back in Lawrence after a wonderful three days at the National 8(a) Association 2018 Small Business Conference in Nashville.  I was part of a great panel on Wednesday on the SBA’s All Small Mentor-Protege Program, and spent a lot of time on the trade show floor talking about government contracts with 8(a)s, government leaders, and large businesses. A big “thank you” to Ron Perry, Paula Arevalo, and the rest of the National 8(a) Association for inviting me to participate in this fantastic ev

Koprince Law LLC

Koprince Law LLC

Thank You to the House Contracting and Infrastructure Subcommittee

Participating as a witness in a Congressional hearing is among the highlights of my career. It was an honor to be selected to provide insight on the Defense Production Act and its utilization of America’s small business base. A few weeks ago, I was contacted by the Subcommittee on Contracting and Infrastructure to participate in a virtual hearing addressing the utilization of small businesses in Defense Production Act procurements. I was asked to provide testimony about the Defense

Koprince Law LLC

Koprince Law LLC

Thank You, APTAC!

I am back in Kansas after a fantastic trip to Jacksonville, Florida, where I spent yesterday at the Association of Procurement Technical Assistance Centers Spring Conference. My morning general session focused on important recent developments in government contracting–everything from key provisions of the 2018 National Defense Authorization Act to the impact of the RAND Corporation’s bid protest report. It was great to see so many familiar faces.  Thank you to all of the wonderful PTAC counselo

Koprince Law LLC

Koprince Law LLC

Termination For Default: The “No Reasonable Likelihood” Standard

Sometimes you may find yourself running late. It happens to the best of us for a multitude of reasons. But what happens to federal contractors when they are running late in performing under a contract and there is “no reasonable likelihood” of timely performance? Unfortunately for contractors in this position, as illustrated by a recent Civilian Board of Contract Appeals (CBCA) decision, the result may be a default termination. In Affiliated Western, Inc. v. Department of Veterans Affairs, C

Koprince Law LLC

Koprince Law LLC

Technically Unacceptable Offeror Cannot Protest Awardee’s Size, Says OHA

In a recent size determination appeal, OHA confirmed that an offeror found technically unacceptable does not have standing to protest an awardee’s size under SBA’s regulations. As such, OHA denied the appeal and affirmed the Area Office’s size determination dismissing the size protest on such grounds. Ekagra Partners, LLC, SBA No. SIZ-6189, 2023 (Feb. 3, 2023), involved a Department of Commerce, Enterprise Services, solicitation for Commerce Acquisition for Transformational Technology Se

Koprince Law LLC

Koprince Law LLC

Tax Extensions Don’t Impact Small Business Size, SBA OHA Confirms

Contrary to common misconception, a contractor’s small business status under a receipts-based size standard ordinarily is based on the contractor’s last three completed fiscal years–not the last three completed fiscal years for which the contractor has filed a tax return. In a recent size appeal decision, the SBA Office of Hearings and Appeals confirmed that a contractor cannot change the relevant three-year period by delaying filing a tax return for the most recently completed fiscal year.

Koprince Law LLC

Koprince Law LLC

Task Order Size Protests: Too Little, Too Late, Says SBA OHA

So, your company has made it past the first big hurdle and got on a GSA schedule. You see a small business task order pop up that you believe your company would be perfect for, but another company gets the award. Based on information you have heard or read, you believe something fishy may be going on and the awarded company may be a big fish that found its way into the small pond. But can you timely protest the task order award? Just last month, OHA reiterated the general rule that size

Koprince Law LLC

Koprince Law LLC

Take Two? GAO Grants Reconsideration of Cost Claim

Requests for reconsideration are rarely granted by GAO and reconsideration of cost claims is even more unique. But GAO recently granted one of these unicorns–recommending additional reimbursement of more than $20,000 to the protester. The history of Voith Hydro, Inc., B-416243.5 (Comp. Gen. Jan. 31, 2020) goes back to April 2018. Voith Hydro protested a contract awarded by the Army Corps of Engineers for design, supply, and installation of turbines in several hydroelectric generator

Koprince Law LLC

Koprince Law LLC

Supreme Court declines to hear VA Rule of Two challenge

The U.S. Supreme Court declined to hear a case Monday that could have upended the Rule of Two’s priority over the AbilityOne program for U.S. Department of Veterans Affairs’ procurements. The denial of a petition for a writ of certiorari—that’s Supreme Court-ese for a request to hear the appeal—ends a saga that has been several years in the making and effectively cements the supremacy of the Rule of Two over the AbilityOne program when the VA is purchasing goods and services. The c

Koprince Law LLC

Koprince Law LLC

Supreme Court Declines to Hear Case: 8(a) Program Survives Constitutional Challenge

In a big victory for proponents of the 8(a) program, the Supreme Court of the United States has denied the Petition for Certiorari filed by Rothe Development, Inc. Consequently, the decision of the Court of Appeals for the D.C. Circuit finding the statutes establishing 8(a) program to be constitutional will be allowed to stand. For those of you who are new to the Rothe Development case, it is a long-running constitutional challenge to the SBA’s 8(a) Business Development program. Rothe argued t

Koprince Law LLC

Koprince Law LLC

Supreme Court Could Limit Agency Power

Monday, the U.S. Supreme Court decided to hear a case that could have far reaching implications in agency law—including for government contractors. The Court granted certiorari to a case that could greatly diminish the amount of deference given to agencies interpreting their own regulations.  For contractors, a Supreme Court decision to curtail agency deference could lead to increased success rates in bid protests and other disputes.   The case, Kisor v. Wilkie, involves a veteran se

Koprince Law LLC

Koprince Law LLC

Successful NAICS Code Appeal Dramatically Alters Size Standard

NAICS code appeals, while little known, can be an extraordinarily powerful tool when it comes to affecting the competitive landscape of government acquisitions. Case in point: in a recent NAICS code appeal decision issued by the SBA Office of Hearings and Appeals, the appellant prevailed–and obtained an order requiring the contracting officer to change the solicitation’s size standard from 500 employees to $15 million. OHA’s decision in NAICS Appeal of Hendall Inc., SBA No. NAICS-5762 (2016)

Koprince Law LLC

Koprince Law LLC

Subcontractor Experience Irrelevant Where Subcontractor Won’t Perform Similar Tasks, Says GAO

Prime and subcontractor teaming is a common way for contractors to leverage the experience of the team’s anticipated subcontractors to make proposals more attractive to federal clients, particularly when past performance is a substantial evaluation consideration. This approach, however, recently ran into a snag when the proposed subcontractor was not going to perform the discrete work areas that its past performance experience supported, which lowered the past performance score of the bid. In th

Koprince Law LLC

Koprince Law LLC

Strings Attached? Don’t Put Conditions on SDVOSB Ownership, Cautions OHA

Ownership of a Service-Disabled Veteran-Owned Business has to be unconditional. As the owner of an SDVOSB recently found out, unconditional ownership generally means there can be no restrictions on the service-disabled veteran owner’s ability to sell the ownership interest. Let’s explore the details. The Small Business Administration’s Office of Hearings and Appeals decision was ALOG Corp., SBA No. VET-285 (July 21, 2020). OHA considered an protest of ALOG’s status after winning an Air

Koprince Law LLC

Koprince Law LLC

Strict GAO Timeliness Rules Apply to Supplemental Protests

GAO interprets its bid protest timeliness rules very strictly, as readers of this blog will know. These timeliness rules typically pertain to the initial protest, but are equally important when a protester files a supplemental protest. Often, supplemental protests are filed after the protester receives the agency’s response and comes to learn new information that wasn’t previously available. If a supplemental protest raises allegations independent of those set forth in the initial protest, the

Koprince Law LLC

Koprince Law LLC

SSA vs. SSEB: Protest Sustained Where Ratings Changes Weren’t Reasonable

In a best value acquisition, the final decision is typically made by a Source Selection Authority. But what happens when the SSA disagrees with the ratings assigned by the evaluators, such as a Source Selection Evaluation Board? The SSA has a good deal of discretion, but that discretion isn’t unlimited. In a recent decision, GAO sustained a protest where the SSA’s disagreements with the SSEB didn’t appear to be reasonable.  Immersion Consulting, LLC, B-415155 et al. (Dec. 4, 2017) involved the

Koprince Law LLC

Koprince Law LLC

Special Operations or Paint Ball? Protester Argues Solicitation is Ambiguous

Solicitations are intended to provide contractors with sufficient information about an agency’s needs to compete intelligently for government awards. In a recent procurement for special operations forces training facilities, one bidder alleged the solicitation provided so little detail that the solicited site “might just as well be a thrown-together paintball site for teenage birthday parties.” Clearly in no mood to party, GAO denied the protest, taking the agency at its word that its requiremen

Koprince Law LLC

Koprince Law LLC

Sorry: No GAO Protests of U.S. Mint Procurements

As a branch of the Treasury Department, the United States Mint would usually be subject to federal procurement laws, like bid protests. As one contractor recently discovered, however, certain activities at the Mint have been exempted from many federal procurement laws, including GAO protest review. Simply put, the GAO can’t decide a bid protest of Mint procurements. A-Z Cleaning Solutions, B-415228 (Nov. 6, 2017), involved a procurement for janitorial services at the Mint facility in San Fra

Koprince Law LLC

Koprince Law LLC

Solicitation Omits NAICS Code and Size Standard–But Agency Still Rejects Large Business’s Bid

An offeror’s bid was rejected because the offeror wasn’t a small business–even though the solicitation didn’t contain a NAICS code or corresponding size standard. It sounds like a successful bid protest waiting to happen, but GAO didn’t see it that way. Instead, GAO dismissed the protest because the offeror should have protested the defective solicitation terms before it submitted its bid, instead of waiting to see how the competition played out. GAO’s decision in M R Pittman Group

Koprince Law LLC

Koprince Law LLC

Solicitation Ambiguities: Speak Now, or Forever Hold Your Peace

When a federal solicitation is vague, ambiguous or internally contradictory, it is common for offerors to hold their tongues. Instead of challenging the solicitation’s defects before proposals are due, many offerors decide to submit proposals and “see how it plays out.” Later, if the award goes to a competitor, these offerors may try to protest the solicitation’s defects. It’s unsurprising that offerors can be reticent to rock the boat before an award is made. But a recent GAO bid protest

Koprince Law LLC

Koprince Law LLC

Sole-Source Options for Agencies During the COVID-19 Pandemic

The current COVID-19 pandemic has prompted the federal government to take drastic measures. It has altered many aspects of federal contracting for contractors and agencies alike. During these trying times, agencies also have the authority to streamline some contracting procedures. Let’s take a look. FAR part 18 provides “acquisition flexibilities” that are available to contracting officers for emergency acquisitions. What are acquisition flexibilities, you ask? They are “specific techni

Koprince Law LLC

Koprince Law LLC

Sole-Source Options for Agencies During the COVID-19 Pandemic

The current COVID-19 pandemic has prompted the federal government to take drastic measures. It has altered many aspects of federal contracting for contractors and agencies alike. During these trying times, agencies also have the authority to streamline some contracting procedures. Let’s take a look. FAR part 18 provides “acquisition flexibilities” that are available to contracting officers for emergency acquisitions. What are acquisition flexibilities, you ask? They are “specific techni

Koprince Law LLC

Koprince Law LLC

SmallGovCon’s 2017 NDAA Government Contracting Roundup

President Obama signed the 2017 National Defense Authorization Act into law on December 23, 2016.  As is often the case, the NDAA included many changes affecting government contractors. Here at SmallGovCon, my colleagues and I have been following the 2017 NDAA closely.  Here’s a roundup of all 16 posts we’ve written about the government contracting provisions of the 2017 NDAA. SDVOSB Programs: 2017 NDAA Sharply Curtails VA’s Authority. (Dec. 5, 2016). 2017 NDAA Restricts DoD’s Use of LPT

Koprince Law LLC

Koprince Law LLC

SmallGovCon’s 1000th Post Is Coming Soon – Help Us Celebrate

When I started writing SmallGovCon back in 2012, I worried that there might not be enough happening in government contracts law to support a robust blog.  Needless to say, I’m not worried anymore. We’re rapidly approaching SmallGovCon‘s 1000th post (this one is No. 990).  To celebrate, we’re offering one lucky reader the chance to win a free webinar on the government contracting legal topic of your choice.  For details (and to enter) just click here. What do you like about SmallGovCon?  We wan

Koprince Law LLC

Koprince Law LLC

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