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SBA Clarifies Family Relationship & Economic Dependence Affiliation Rules

The SBA has changed its affiliation regulations to clarify when a presumption of affiliation exists due to family relationships or economic dependence. In its major final rulemaking published today, the SBA clears up some longstanding confusion regarding affiliation based on a so-called “identity of interest.” The SBA’s current “identity of interest” affiliation rule states that businesses controlled by family members may be deemed affiliated–but does not explain how close the family relatio

Koprince Law LLC

Koprince Law LLC

DoD Micro-Purchase Increase Is Now In Effect

The increase to DoD’s micro-purchase threshold mandated by the 2017 National Defense Authorization Act is now in effect. A Class Deviation issued earlier this month provides, effective immediately, that the DoD micro-purchase threshold is $5,000 for many acquisitions. The new micro-purchase threshold is $1,500 higher than the standard $3,500 micro-purchase threshold.  But there are a few exceptions. The micro-purchase threshold for certain DoD basic research programs and science and technol

Koprince Law LLC

Koprince Law LLC

Corrective Action Following Dismissal Request Doesn’t Mean Protester Gets Costs Reimbursed, Says GAO

While GAO’s bid protest process is designed to achieve the laudable goal of providing a less costly process for procurement disputes, pursuing a GAO protest is nevertheless expensive. To offset these expenses, successful GAO protesters may be reimbursed for some of their expenses incurred pursuing a protest. But what constitutes a successful protest that would entitle a protester to costs? In a recent request, GAO concluded that successfully defending against a motion to dismiss was not enough t

Koprince Law LLC

Koprince Law LLC

Here’s Why “The Other Guy’s Price Is Too Low” Often Fails As a GAO Bid Protest Argument

Maybe it’s happened to you: your company receives a notice of unsuccessful offeror, and your eyes pop. You can’t believe that the winner’s price is so low. “There’s no way they can successfully perform for that,” you say. But before you file a GAO bid protest, you should carefully check the solicitation’s evaluation criteria. As one unsuccessful offeror recently learned the hard way, GAO often won’t listen to an argument that “the other guy’s price is too low.” GAO’s decision in Un

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week in Review: July 9–13, 2018

It’s Friday, which means it’s time for the SmallGovCon Week in Review. This week’s edition includes a look at federal spending on 8(a) contracts, GAO’s response to a discussion about a much-publicized OTA decision, and the SBA’s new effort to modernize its IT systems. There’s a lot to cover, so let’s get to it! Have a great weekend! Federal spending on competitively awarded 8(a) contracts exceeds that spent on sole-source 8(a) contracts. [Bloomberg Government] GAO offers a response to crit

Koprince Law LLC

Koprince Law LLC

GAO: No “Public Posting” Of Solicitation In Closed Government Office

An agency failed to meet its obligations to properly publicize a simplified acquisition valued between $15,000 and $25,000 where the agency placed the solicitation in a three-ring binder at the reception desk in a government office–and that office was closed during most of the relevant time. In a recent decision, the GAO affirmed that principle that even when the dollar value of a simplified acquisition doesn’t meet the requirement for electronic posting on FedBizOpps, the agency still must tak

Koprince Law LLC

Koprince Law LLC

WOSB Status & Task Orders: Underlying Contract Usually Governs

Under a multiple award contract, the underlying contract ordinarily governs whether a contractor qualifies as a woman-owned small business for purposes of task or delivery orders. As demonstrated in a recent SBA Office of Hearings and Appeals decision, if a company qualifies as a WOSB or EDWOSB at the time of its initial offer on the underlying multiple-award contract, it will also qualify as a WOSB or EDWOSB for each order issued against the contract, unless the contracting officer requests re

Koprince Law LLC

Koprince Law LLC

Agency Need Not Put Dollar Value On “Relevant” Past Performance

An agency’s solicitation was not unreasonably vague where the solicitation defined “relevant” past performance to include projects of “a similar dollar value and contract type.” In a recent bid protest decision, the U.S. Court of Federal Claims rejected a protester’s assertion that the solicitation was required to identify a specific dollar value associated with relevant past performance, finding that the solicitation’s phrasing was sufficient to allow offerors to compete intelligently. The

Koprince Law LLC

Koprince Law LLC

SDVOSB vs. AbilityOne: Major Court Ruling Stayed Pending Appeal

In May 2017, SDVOSBs and VOSBs lodged another big win in their battle to enforce the statutory preferences for veteran-owned companies: the Court of Federal Claims held that the VA cannot buy products or services using the AbilityOne list without first applying the “rule of two” and determining whether qualified SDVOSBs or VOSBs are likely to bid. But the AbilityOne vendor in question isn’t going down without a fight.  It’s taking the case to the United States Court of Appeals for the Federal C

Koprince Law LLC

Koprince Law LLC

Agency Creates Fake Source Selection Documents

An agency has been caught creating fake source selection documents to pad its file in response to several GAO bid protests. A recent GAO bid protest decision shows that, after award, the agency created new source selection documents and revised others, then pretended those documents had been part of the contemporaneous source selection file.  And although the agency’s conduct resulted in the cancellation of a major procurement, it’s not clear whether the agency employees who created the fake do

Koprince Law LLC

Koprince Law LLC

WOSB Program: Company Ineligible Because Husband Managed Business

A self-certified woman-owned small business was ineligible for a WOSB set-aside contract because the woman owner’s husband held the company’s highest officer position and appeared to manage its day-to-day operations. A recent SBA Office of Hearings and Appeals decision highlights the importance of ensuring that a woman be responsible for managing the day-to-day business of a WOSB–and that the woman’s role be reflected both in the corporate paperwork and in practice. OHA’s decision in Yard Ma

Koprince Law LLC

Koprince Law LLC

GAO Sustains Protest Where Contract Modification Fell Outside the Contract’s Scope

GAO protests typically address issues that occur before contract award. For example, GAO will review a solicitation’s terms. It will also review an agency’s evaluation of proposals submitted in connection with a solicitation. But as a general rule, GAO won’t insert itself into disputes arising after award, which fall under the contract administration umbrella. But there is an exception–and an important one . . . one that all federal contractors should be aware of. So what is this excepti

Koprince Law LLC

Koprince Law LLC

OHA Rules that Size Protest Wasn’t Five Years Too Late

As we’ve discussed in previous posts, if you want to initiate a size protest, you generally must do so within 5 business days after the contracting officer notifies you of the prospective awardee’s identity. But what happens if, after learning that you did not receive the award, the agency does something that suggests its award decision wasn’t final–e.g., reopens discussions with offerors and seeks revised proposals? Would your size protest still be late if didn’t file within the 5-day time

Koprince Law LLC

Koprince Law LLC

Cost Realism: Using Offeror’s Actual Rates Was Unobjectionable

In conducting a cost realism evaluation, an agency was entitled to use an offeror’s historic approved indirect rates and current incumbent direct labor rates to upwardly adjust the offeror’s evaluated cost, in a case where the offeror’s proposed rates were significantly lower. The GAO recently held that an agency did not err by adjusting a protester’s rates to better align with the protester’s historic indirect rates and current direct rates, where the agency was unable to determine that the pr

Koprince Law LLC

Koprince Law LLC

SBA Revises 8(a) JV Regulation–But Confusion Remains

Stating that populated joint ventures have now been eliminated, the SBA has revised its 8(a) joint venture regulations to reflect that change. In a technical correction published today in the Federal Register, the SBA flatly states that an earlier major rulemaking eliminated populated joint venture, and tweaks the profit-sharing piece of its 8(a) joint venture regulation to remove an outdated reference to populated joint ventures.  But even following this technical correction, there are three i

Koprince Law LLC

Koprince Law LLC

Contractor Ineligible For Reimbursement of Contract Tainted By Kickbacks

The ongoing federal movement to prevent fraud waste, and abuse in the contracting process continues. And as demonstrated in a recent federal court decision, the government retains its ability to refuse to pay a procurement contract tainted by fraud. In the recent decision of Laguna Construction Company, Inc. v. Ashton Carter, Appeal Number 15-1291, the U.S. Court of Appeals for the Federal Circuit affirmed that a procurement contract tainted by violations of the Anti-Kickback Act is voidable un

Koprince Law LLC

Koprince Law LLC

COFC Dismisses Claim for Failure to State Dollar Amount, Despite Claimant’s Attempt to Camouflage Claim

A government contractor must include certain details in a certified claim, including a sum certain, signature, and a request for a final decision. With regards to the “sum certain,” a contractor cannot avoid this requirement by attempting to portray its claim as one not for monetary relief, when the contractor is really just asking for money. In Northrop Grumman Systems Corp. v. United States, 140 Fed. Cl. 249 (2018), the court considered a claim by Northrop against the Postal Service. T

Koprince Law LLC

Koprince Law LLC

SmallGovCon Week In Review February 11 – February 15, 2019

Earlier this week, I had the privilege of attending the National 8(a) Conference in Nashville. If you’re an 8(a) Program participant and have never been, I’d certainly recommend it: beyond the breaking GovCon news, there’s lots of great networking opportunities. Be sure to pencil-in the date for 2020! Let’s wrap up the week as we always do, with the Week In Review. In this edition, we’ll look at GAO’s recommendations for DOD’s planned IT upgrades, additional uncertainty for federal contract

Koprince Law LLC

Koprince Law LLC

HUBZone Program: SBA’s Proposed Rule Clears Up Some Common Misconceptions

Last week, the SBA released a proposal to overhaul the HUBZone Program.  The proposed rule will make major changes to almost all aspects of the HUBZone Program, and my colleague Ian Patterson is covering those changes in a series of two posts on SmallGovCon. But while the proposed HUBZone Program rule changes will garner most of the headlines, the SBA also has used the proposed rule as an opportunity to clear up a few very common HUBZone Program misconceptions–such as the notion that so-called

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

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

GAO: Past Performance Evaluation Not Required In LPTA Set-Aside Competition

An agency was not required to evaluate past performance under an SDVOSB set-aside solicitation that contemplated making award to the lowest-price, technically-acceptable offeror. According to a recent GAO bid protest decision, a past performance evaluation in the context of an LPTA set-aside is essentially duplicative of the agency’s evaluation of responsibility, meaning that a separate past performance evaluation isn’t necessary. GAO’s decision in Data Monitor Systems, Inc., B-415761 (Mar.

Koprince Law LLC

Koprince Law LLC

DoD Proposes Updating DFARS With 15-Day “Prompt Payment” Rules

The Department of Defense awarded contracts to an average 30,806 small businesses each year in fiscal year 2016, 2017, and 2018. A proposed rule to update the DFARS may lead to these same businesses receiving payments from the government, or prime contractors, within 15 days of invoicing. The proposed rule is found at 84 FR 25225. It was published on May 31, 2019 and comments close on July 30, 2019 if you’d like to put in your two cents. The proposed rule acknowledges that “[c]urrent D

Koprince Law LLC

Koprince Law LLC

It’s Tough to Challenge a Corrective Action

For a protester, a corrective action from the agency is a win. It gives the protester another bite at the apple to possibly win a contract award. But for the initial awardee, a corrective action has some unfortunate consequences, the dreaded double whammy. Besides the obvious–losing the award–the former awardee’s price is usually revealed to the other competitors. Could this give the competitors a leg up when proposals are resubmitted as part of the corrective action? Yes. Does this amount to a

Koprince Law LLC

Koprince Law LLC

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