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COFC: Agency Cannot Ignore Changed Solicitation Requirements after 4-Year Bid Protest Saga

A recent court case details the aftermath of a bid protest battle lasting over four years. During that period, the agency’s requirements had changed, and the court held that the agency was required to amend its solicitation as a result. In DZSP 21, LLC v. United States, 139 Fed. Cl. 110 (2018), the Court of Federal Claims considered the long-running saga of protests of a Navy procurement for base operation services for military installations in Guam. Prior to the protest the court was co

Koprince Law LLC

Koprince Law LLC

Agency May Request SDVOSB Recertification on MATOC Orders, Says GAO

In a recent decision, GAO determined an agency could reasonably amend a solicitation for a task order issued under a set-side base contract to require offerors to recertify their size and SDVOSB status at the task order level. The Oryza Group, LLC, B-416719 et al. (Comp, Gen. Nov. 26, 2018), involved a task order procurement by the United States Army Reserve Command for “sustainment information system” support (the “Task Order”). The task order was competed among holders of the Veterans

Koprince Law LLC

Koprince Law LLC

Unpopulated Joint Venture Can Be “Manufacturer” For SBA Size Purposes

When a small business sells products to the government under a contract designated with a manufacturing NAICS code, the small business either must be the “manufacturer” of the products, or separately qualify under the nonmanufacturer rule. The nonmanufacturer rule, in turn, requires the prime contractor to have no more than 500 employees, whereas manufacturers may fall under larger size standards–some as big as 1,500 employees. But what about an unpopulated joint venture that doesn’t itsel

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review December 24, 2018–January 4, 2019

Happy New Year! It looks as if the government needed a longer holiday break than planned. As we enter the third week of the shutdown, it’s our hope that the powers-that-be might reach a quick resolution and let government personnel and contractors alike get back to work. In this two-week New Year’s edition of the Week In Review, we’ll look (of course) at the effects of the shutdown. But we’ll also look at the need for transparency in the upcoming year’s procurement process, how a contract d

Koprince Law LLC

Koprince Law LLC

Why Does the 8(a) Program Penalize Older Business Owners?

The 8(a) Program can offer incredible opportunities: sole source contracts, set-aside competitions, mentor-protege relationships, SBA business training and much more. But for business owners older than 59 1/2, getting admitted to the 8(a) Program can be very difficult: unlike their younger counterparts, funds these owners have saved in traditional retirement accounts will likely count against the 8(a) Program’s $250,000 adjusted net worth cap. How is this fair? (Spoiler alert: in my o

Koprince Law LLC

Koprince Law LLC

SDVOSB Regulations Reveal Typo in Exceptions to Ownership Conditions

As we’ve written about on the blog, SDVOSB regulations were consolidated under the SBA’s rules beginning October 1, 2018, and those changes included some good and bad changes. We recently noticed a single letter in one of the changes that, while most likely a typo, could potentially affect the meaning of one part of the new regulation. The SBA’s SDVOSB regulations require that a service-disabled veteran unconditionally own the SDVOSB. “Unconditional ownership” now means: Rath

Koprince Law LLC

Koprince Law LLC

Failure to Update Joint Venture Agreement Costs Mentor-Protege SDVOSB JV a Contract

Updating your joint venture agreement is essential to maintaining compliance with SBA’s regulations and failing to update could cost you contracts. In Stacqme, LLC, SBA No. SIZ-5976 (Dec. 10, 2018), the SBA Office of Hearings and Appeals held that a mentor-protege joint venture’s failure to update its JV agreement caused the agreement to be non-compliant with the SBA’s rules, and meant that the joint venture was ineligible for an SDVOSB set-aside contract. Many participants in the

Koprince Law LLC

Koprince Law LLC

5 Things You Should Know: NAICS Code Appeals

NAICS code appeals are a useful tool in any small business government contractor’s toolbox. If successful, an appeal can dramatically change a procurement’s competitive landscape—either by limiting the pool of eligible offerors, or expanding it. Even still, NAICS code appeals are underutilized among contractors. So I wanted to take just a few minutes to walk through the basics of NAICS codes appeals, in case your business ever needs to file one. Here are 5 Things You Should Know about N

Koprince Law LLC

Koprince Law LLC

GAO: Don’t Misrepresent Incumbent Capture in Proposals

GAO sustained a protest recently where a contractor misrepresented to the agency that it had negotiated offers with incumbent workers when in fact it had not. In Sev1Tech, Inc., B-416811 et al., (Dec. 18, 2018), the U.S. Coast Guard sought to award a task order contract for project management, technical support, and logistics services to a member of the General Services Administration’s One Acquisition Solution for Integrated Services (“OASIS”) Small Business Pool. The solicitation

Koprince Law LLC

Koprince Law LLC

Realities of Cost Recovery in the Wake of the Federal Shutdown

Shuttering of the government (or parts of the government) following appropriations lapses has become an increasingly common phenomenon in recent years. Funding lapses interrupt the usual predictability of government operations, which is often to the detriment of both agencies and federal contractors that are left in proverbial limbo with stop work orders. Unfortunately, unlike many other topics, the FAR does not substantively address procedures for contractors during or following a governme

Koprince Law LLC

Koprince Law LLC

Update: SBA Says 5-Year Receipts Calculation Period Not Yet Effective

On December 17, 2018, the Small Business Runway Extension Act became law. As we’ve previously written, this Act had a single purpose: to extend the measurement period of the SBA’s calculation of average annual receipts, from three years to five. We opined that the Act became effective with the stroke of the President’s pen. Just a few days ago, however, the SBA disagreed—according to the SBA, the 5-year calculation period will not become effective until its regulations are revised. T

Koprince Law LLC

Koprince Law LLC

SmallGovCon Welcomes Robert Kampen!

I am very pleased to announce that Robert Kampen has joined our team of attorney-authors here at SmallGovCon.  Rob is an associate attorney with Koprince Law LLC, where his practice focuses on federal government contracts law. Rob is a graduate of the University of Kansas School of Law. Before joining the firm, Rob worked for several years in financial services and telecommunications, where he focused on negotiating, drafting and managing contracts.  Check out Rob’s full biography to learn

Koprince Law LLC

Koprince Law LLC

GAO Sustains Protest Where Agency Failed to Reasonably Evaluate Past Performance

GAO defers to agencies on many issues related to their procurements. But GAO will intervene when an agency says one thing, in a solicitation, but does another when it evaluates proposals. In other words, GAO will sustain protests when the agencies disregard their own evaluation criteria outlined in a solicitation. Otherwise, the agency might–even inadvertently–evaluate proposals unequally–a situation that a just and fair procurement system must avoid.  GAO confronted this situation

Koprince Law LLC

Koprince Law LLC

GAO: Contractors – Not the Agency – Must Know Applicable Local Laws

Agencies must draft solicitations and RFPs with enough detail that prospective offerors can determine if they are qualified to perform the work as well as be able to submit an educated offer. But how much detail is the agency required to provide in a solicitation? In some cases, GAO has allowed fairly generic language to suffice.   GAO recently considered the level of detail needed in Al Baz 2000 Trading & Contracting Company, W.L.C., B-416622.2 (2018). This protest involved a N

Koprince Law LLC

Koprince Law LLC

GAO Dismisses Protest Where Proposal was Unacceptable.

In a protest before GAO, prejudice is an essential element. Even if GAO might agree that an agency’s action was improper, it will not sustain a protest where the protester would not have received the award anyway. That’s what happened in the protest of Benaka Inc., B-416836 et al. (Dec. 16, 2018). Benaka, a New Jersey small business, had protested the award of a contract for the construction of a fuel cell/corrosion control facility for the New Jersey Air National Guard 177 Fighter

Koprince Law LLC

Koprince Law LLC

BPA Awardees Cannot Challenge Fellow Awardees, GAO Says

To file a viable bid protest at GAO, the protester must be an “interested party.” Intuition might say that an awardee under a multiple-award vehicle like a blanket purchase agreement should be able to protest other awardees, right? The GAO recently held otherwise. In Al Qabandi United Company, W.L.L., B-415353.8 (2018), Al Qabandi protested an award of a BPA by the U.S. Army Materiel Command. The original RFP called for an award of up to eight fixed-price BPAs for the provision o

Koprince Law LLC

Koprince Law LLC

GovCon Voices: Buying, Building and Selling in the Small Business Government Contracting Space

by Erin Andrew One of the biggest mistakes small business owners make is planning their exit strategy too soon. Whether a contractor wants to enter, grow, or exit the market, a small business owner must understand how buying or selling their business can play a large role in their success. Below are some tips for all three phases: Buying in the Marketplace Past performance is critical to winning work, but many government contractors are not aware of all the tools available for s

Koprince Law LLC

Koprince Law LLC

UPDATE: Bill to Change Size Measurement Term from Three to Five Years Becomes Law

You probably know this already—from what we can tell word is spreading like wildfire—but Monday (Dec. 17, 2018) the president signed the “Small Business Runway Extension Act of 2018” into law.  This changes the period of time the U.S. Small Business Administration uses to measure a business’s size in revenue-based size standards from three years to five years. The law doesn’t say that there will be a period of implementation, so it’s reasonably safe to assume the effect is immediate. 

Koprince Law LLC

Koprince Law LLC

SBA Opposed Five-Year Small Business Size Period

The Small Business Runway Extension Act, signed into law earlier this week, changes the small business size calculation under revenue-based NAICS codes from a three-year to five-year average. The new law has sparked a great deal of discussion in the government contracting community, with some commentators pointing out that not all small businesses will benefit.  But how does the SBA–the agency tasked with implementing the new law–feel? Well, according to commentary published earlier this

Koprince Law LLC

Koprince Law LLC

OHA Denies First-Ever VA SDVOSB Status Protest

The Small Business Administration Office of Hearings and Appeals has denied a protest of the service-disabled veteran-owned small business status of a company seeking to perform work for the U.S. Department of Veterans Affairs. The decision was not particularly controversial or otherwise notable in and of itself. What is notable is that this was the first VA-status SDVOSB protest decision ever issued by OHA. OHA’s jurisdiction to hear such protests is brand new. On October 1, an upd

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review December 17-21, 2018

Happy Holidays! Between all the shopping, baking, and decking the halls, it seems to be the busiest day of the year. As we write this post, the federal government is on the verge of a partial shutdown. On behalf of our clients and friends, we hope that doesn’t happen. In this edition of the Week In Review, there is a lot of criticism regarding government spending, the Pentagon gets a reminder to pay attention to its contractors, and the battle between Amazon and defense officials gets

Koprince Law LLC

Koprince Law LLC

GAO: Agency Conducted Price Realism Analysis and Misled Protester

Unless a solicitation for a fixed-price contract provides that the agency can conduct a price realism analysis, it can’t. Even so, agencies sometimes perform this analysis without alerting prospective offerors of the possibility. If they do, however, the ground is fertile for a protest. This issue recently arose in Shearwater Mission Support, LLC, B-416717 (Nov. 20, 2018). There, the Navy issued a solicitation for base operating support services at the Naval Air Facility in El Centr

Koprince Law LLC

Koprince Law LLC

The Large Business Runway Extension Act: For Some Contractors, New Five-Year Size Period Will Backfire

The House and Senate have passed the “Small Business Runway Extension Act of 2018,” which appears poised to become law in the coming days.  As my colleague Matt Moriarty has written, the bill would amend the SBA’s small business size rules to use a five-year average, instead of a three-year average, in calculations using receipts-based size standards. The purpose of the bill is to help contractors avoid becoming “other than small” following a period of quick growth, but not all companies wil

Koprince Law LLC

Koprince Law LLC

Bill Changes Size Determination Measurement Period from Three Years to Five

With the stroke of a pen, Congress may have just paved the way for some soon-to-be large businesses to remain small for longer.  Both the House of Representatives and the Senate have passed a bill that would amend the Small Business Act to change the period of measurement used to determine the size of a business from three years to five. The bill awaits the president’s signature to become law.  The Small Business Runway Extension Act of 2018 simply amends Section 3(a)(2)(C)(ii)(II) o

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review (December 10-14, 2018)

I wanted the pithy introduction to this week’s Week In Review to be a corny Christmas-themed joke. But there’s one problem: I don’t know any! (My dad jokes tend to come on the fly.)  If you know any (clean) holiday jokes, send them my way. We’ll try to feature them in next week’s edition!  But for this week’s edition, let’s focus on government contracting. We’ll look at the potential Christmas shutdown, GSA’s consolidation of schedule contracts, a VA-pilot program for facility constructi

Koprince Law LLC

Koprince Law LLC

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