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GAO Declines Jurisdiction Over the “Other Transactional Agreement” Evaluation and Award Process

Evaluation and selection of an offeror for award of an “Other Transactional Agreement,” or “OTA,” are significantly more flexible than a traditional procurement under the FAR. This was at issue recently in GAO case MD Helicopters Inc., B-417379 (Comp. Gen. Apr. 4, 2019), where GAO clarified that it does not have jurisdiction to hear protests regarding OTA award decisions. Generally, OTAs, are utilized by the Department of Defense for research and development and prototype related pro

Koprince Law LLC

Koprince Law LLC

Insufficient Experience Information Sinks Offeror’s Proposal

An offeror’s failure to provide the type of past performance information mandated by a solicitation led to the offeror’s elimination from consideration for a  major GSA contract. A recent GAO bid protest decision highlights the importance of fully reading and adhering to a solicitation’s requirements–including those involving the type of past performance or experience information required. GAO’s decision in Dougherty & Associates, Inc., B-413155.9 (Sept. 1, 2016) involved the GSA “

Koprince Law LLC

Koprince Law LLC

Populated or Unpopulated? Ambiguous JV Agreement Sinks 8(a) Award

An 8(a) joint venture agreement was ambiguous about whether the joint venturers intended to create a populated joint venture (which is no longer allowed) or an unpopulated joint venture–and the ambiguity cost the joint venture an 8(a) set-aside contract. In a recent decision, the U.S. Court of Federal Claims upheld the SBA’s decision to reject a joint venture agreement that was ambiguous about whether the joint venture was populated or unpopulated. The Court’s decision in Senter, LLC v. Unit

Koprince Law LLC

Koprince Law LLC

VA Proposes Expanded “Good Character” SDVOSB Exclusions

The VA has proposed expanding its definition of the “good character” required to own or control an SDVOSB or VOSB. The VA’s proposed rule would exclude many people convicted of felonies (including felonies unrelated to business integrity), which may raise questions about the rule’s fairness.  And I have to wonder–is the VA’s proposal consistent with the Congressional directive requiring the VA to use the SBA’s SDVOSB eligibility rules? As I wrote earlier this week, the VA recently issued a p

Koprince Law LLC

Koprince Law LLC

If You’re Working on a Military Installation, Don’t Lose Your Base Access

In the classic 1993 movie Gettysburg, Colonel Joshua Chamberlain, a great American hero (played by Jeff Daniels), commented on the power wielded by military commanders, particularly generals: “Generals can do anything. Nothing quite so much like God on Earth as a general on a battlefield.” It turns out that this this power extends to actions that might affect your Government contract. For instance, a base commander can revoke a contractor’s access to the base; if that happens, and the contra

Koprince Law LLC

Koprince Law LLC

8(a) Sole Source Decision: “Bad Faith” Bid Protest An Uphill Battle

An agency’s decision to award a contract as an 8(a) sole source is a “business decision” for which the agency has broad discretion–and a potential protester challenging the agency’s use of that discretion will have an uphill battle. In a recent bid protest decision, the GAO confirmed that government officials are presumed to act in good faith, and that the presumption extends to the decision to award an 8(a) sole source contract instead of competing the work in question. The GAO’s decision i

Koprince Law LLC

Koprince Law LLC

GAO Won’t Resolve Alleged Corporate Espionage Dispute

In a recent GAO bid protest, IBM Corp. accused a subcontractor of giving its proposal to a competitor. GAO dismissed the accusation, explaining that at its core, alleged corporate espionage is a disagreement between two parties, not a contractor and the federal government and therefore not an appropriate matter for resolution in a bid protest. The protest itself was over the Department of Homeland Security Transportation Security Administration’s task order award to Accenture Feder

Koprince Law LLC

Koprince Law LLC

Who’s the Ombudsman? Proposed FAR Rule Requires Clarity

When GAO lacks jurisdiction to hear a protest over a task or delivery order, contractors have the right to complain to an ombudsman. Implementation of the ombudsman right, however, has been haphazard at best. Last week, the DoD, GSA, and NASA–the entities comprising the FAR Council–proposed a rule to help alleviate this issue for IDIQ contracts. Generally, 10 U.S.C. § 2304c and 41 U.S.C. § 4106 require each head of an agency that awards MATOC or delivery order contracts to appoint “a senior ag

Koprince Law LLC

Koprince Law LLC

SBA Size Protests: Subsidiary Couldn’t File for Parent

A subsidiary cannot file an SBA size protest on behalf of its parent company. Last week, I wrote about an SBA Office of Hearings and Appeals case holding that a parent couldn’t file a size appeal on behalf of its subsidiary.  Unsurprisingly, it turns out that the same principles apply to initial size protests, too. OHA’s decision in Size Appeal of Conrad Shipyard, LLC, SBA No. SIZ-5873 (2017) involved a DOT solicitation for the construction of an ice-breaking tugboat.  The solicitation was i

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week in Review: July 1 – 12, 2019

I hope you all enjoyed your Fourth of July and celebrated the things you love about our country. My in-laws live outside the city limits, so around these parts the Fourth also means shooting off fireworks (in a safe manner of course). Because of the holiday, we’re offering you a rare double feature of news about government contracting–2 weeks in 1! So sit back and enjoy. Some of the interesting news this week includes updates on an alleged email scheme involving a phony contracting of

Koprince Law LLC

Koprince Law LLC

SDVOSB Updates: Free Webinar August 4, 2016

It’s been a year of big changes in the government’s SDVOSB programs.  First came the Kingdomware Supreme Court decision, which was soon followed by the SBA’s final rule adopting a new “universal” mentor-protege program–and imposing many new requirements on SDVOSB joint ventures. On Thursday, August 4, 2016 at 1:00 p.m. Central, I will host a free webinar to discuss these important changes.  To register, just follow this link and complete the brief electronic form, or call Jen Catloth of Koprinc

Koprince Law LLC

Koprince Law LLC

The Simplified Acquisition Threshold and Micro-Purchase Threshold are Going Up

The DoD, GSA, and NASA are proposing increases to the Simplified Acquisition Threshold and Micro-Purchase Threshold. Although this may seem like a minor update, it will cause changes across the federal contracting landscape, will alter the FAR, and will result in more contracts being issued under the Micro-Purchase and Simplified Acquisition Thresholds. On October 2, the DoD, GSA, and NASA issued a proposed rule that would amend the FAR to increase the Micro-Purchase Threshold and Simpli

Koprince Law LLC

Koprince Law LLC

Government “Poaches” Contractor’s Employee, Then Rejects Fixed-Price Invoices

Picture this scenario: the government hires your company to do a job; you assign one of your best employees to lead the effort. He or she does such a good job that the government hires your employee away. The government then drags its feet on approving your proposed replacement and refuses to pay you for the time when the position was not staffed–even though the contract was fixed-price. The scenario is exactly what happened to a company called Financial & Realty Services (FRS), and acc

Koprince Law LLC

Koprince Law LLC

8(a) Protege Not Entitled To Mentor-Protege JV’s Past Performance

A former 8(a) protege was not automatically entitled to take advantage of the past performance it obtained as part of a mentor-protege joint venture, in a case where the former mentor would not be involved in the new contract. In a recent bid protest decision, the GAO held that a procuring agency erred by crediting the protege with the joint venture’s past performance without considering the extent to which that past performance relied on the mentor–and the extent to which the mentor’s absence

Koprince Law LLC

Koprince Law LLC

If You Plan to Use the SBA’s Template Joint Venture Agreement, Read This First

If you’re setting up your first joint venture under the SBA’s rules, you may be tempted to download the SBA’s template joint venture agreement and use it as-is. But, as of the date of this post, the SBA’s template joint venture agreement is outdated–and it also has some other quirks and potential problems you should know about. If you’re planning to use the SBA’s joint venture template, read this first. Outdated Provisions If you’ve been following my posts on SmallGovCon (and I

Koprince Law LLC

Koprince Law LLC

SBA Confirms that Size Status Relates Back to Time of Offer, Even After Sale of Small Business

Over the years, SBA size regulations have included the general rule that the size status of a business generally relates back the time of initial offer on a contract. Therefore, a small business generally stays small for the duration of a federal contract, with some exceptions. However, there was also language in the rule that required small businesses to recertify their size status after being acquired or going through similar transactions. The effect of this recertification requirement was alw

Koprince Law LLC

Koprince Law LLC

SBA OHA Rejects “Chain Affiliation” Theory

Ordinarily, a company isn’t affiliated with the affiliates of its affiliates. That sentence may sound a little silly, but it encapsulates an important principle about the breadth of the SBA’s affiliation rules.  As demonstrated in a recent SBA Office of Hearings and Appeals decision, the SBA doesn’t apply its rules to create “chain affiliation.” Before we get to the case itself, a simple example might be helpful.  Let’s say two companies–Company A and Company B–are affiliated under the commo

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review March 11 – March 15, 2019

Happy Friday, everyone! If you’re a college basketball fan (who isn’t?), this is one of the best times of the year. Things stay pretty interesting around our office in March and April, between our assortment of KU, Duke, and North Carolina fans. We hope you enjoy the games this weekend! Before tipoff, let’s rundown the latest government contracting news. In this week’s edition of the Week In Review, we’ll discuss DoD’s ongoing cloud computing legal battle, GAO’s report on health and safety o

Koprince Law LLC

Koprince Law LLC

I Fought the Law, and the Law Won? Standing Issues Prevent Claim of Agency’s Rulebreaking

As we discussed in July 2017, Timberline Helicopters, Inc. has been involved in ongoing litigation regarding the Department of the Interior, Bureau of Land Management’s (a.k.a. “BLM”) procurement of helicopter flight services to aid in fire-fighting and fire-suppression missions, services essential now more than ever. Most recently, in Timberline Helicopters, Inc. v. United States, No. 18-1474C (Fed. Cl. Nov. 14, 2018), the Court of Federal Claims held that Timberline no longer had standing to

Koprince Law LLC

Koprince Law LLC

SmallGovCon Weeks in Review: April 9 – 20, 2018

I was enjoying a day off last Friday, so we have a lot of catching up to do on government contracting news and notes.  It’s time for a special two-week super-sized edition of the SmallGovCon Week in Review. In this edition, the GAO looks at NASA’s investigations of contractor whistleblowing complaints, the SBA announces nine new Women’s Business Centers, the Coast Guard sinks $60 million into an electronic health record system procurement with nothing to show for it,  70,000 contractors must pr

Koprince Law LLC

Koprince Law LLC

Thank You, Huntsville!

I am back in Lawrence after a great trip to Huntsville, Alabama, where I spoke at the Redstone Edge Conference.  My presentation focused on the recent major developments in small business contracting, including the changes to the limitations on subcontracting and the new universal mentor-protege program. Many thanks to Courtney Edmonson, Scott Butler, Michael Steen, and the rest of the team at Redstone Government Consulting for putting together this impressive event and inviting me to participa

Koprince Law LLC

Koprince Law LLC

GAO Reaffirms Agencies’ Broad Discretion to (Not) Consider Price Realism for Fixed-Price Contracts

As a general rule, an agency is only required to evaluate a fixed-price offer for reasonableness (that is, whether the price is too high). Agencies are not required to evaluate fixed-price offers for realism (that is, whether the price is too low) and, in fact, cannot do so unless the solicitation advises offerors that a realism evaluation will be conducted. GAO recently reaffirmed this principle when it denied a protest challenging an agency’s refusal to consider the realism of offerors’ fixed

Koprince Law LLC

Koprince Law LLC

“Government Control” Didn’t Affect Electronic Proposal Timeliness, Says GAO

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

Koprince Law LLC

Koprince Law LLC

5 Things You Should Know: SBA’s 8(a) Business Development Program (The Basics)

If you’re a small business owner interested in government contracts, you’ve probably heard about the SBA’s 8(a) Business Development Program. The 8(a) Program itself is complex, but its potential benefits are tremendous. In this post, I’ll break down some of the very basics about the 8(a) Program, leaving some of its complexities for upcoming posts. Let’s get to it: here are five things you should know about the 8(a) Program. What is the 8(a) Program? Like SBA’s other contracting programs

Koprince Law LLC

Koprince Law LLC

5 Things You Should Know: Bid Protests

You’ve poured precious time and resources into a proposal, only to lose out on the award. Making matters worse, the agency’s explanation of the award shows that it didn’t reasonably evaluate your proposal. What can you do? Here are five things you should know about bid protests. A bid protest can win a contract—or lose one. A protest can help you win an award. In a pre-award protest, you can challenge any unclear or unfair terms in a solicitation. In a post-award protest, you can challeng

Koprince Law LLC

Koprince Law LLC

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