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Koprince Law LLC

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  1. NAICS code appeals can be powerful, and while they’re infrequent, they often succeed. But NAICS code appeals are subject to a strict, 10-day deadline–and that deadline isn’t extended by deliberations with the Contracting Officer. In a recent NAICS code appeal decision, the SBA Office of Hearings and Appeals reiterated that the 10-day deadline isn’t affected by discussions with the procuring agency. OHA’s decision in NAICS Appeal of AMEL Technologies, Inc., SBA No. NAICS-5892 (2018) involved a NAVFAC solicitation for construction management services. NAVFAC issued the solicitation as a small business set-aside and assigned NAICS Code 236220 (Commercial and Institutional Building Construction), with an associated $36.5 million size standard. The solicitation was issued on January 25, 2018. AMEL Technologies, Inc. believed that the correct NAICS code was 541330 (Engineering Services), which ordinarily carries a $15 million size standard. AMEL apparently initiated discussions with the Contracting Officer shortly after the solicitation was issued, asking the Contracting Officer to change the NAICS code to 541330. The Contracting Officer didn’t respond to the request until March 1, 2018. The Contracting Officer didn’t address the merits of AMEL’s request, but simply stated that she considered the matter closed because AMEL had not filed a formal NAICS code appeal with OHA. AMEL subsequently filed a NAICS code appeal on March 6. OHA wrote that “nder applicable regulations, a NAICS code appeal must be filed within 10 calendar days after issuance of the solicitation, or within 10 calendar days of an amendment affecting the NAICS code or size standard.” OHA “has no discretion to extend, or waive, the deadline for filing an appeal.” OHA continued, “deliberations with a procuring agency which do not result in any change to the solicitation, do not extend the [NAICS] appeal deadline.” Therefore, “the fact that [AMEL] requested that the CO reconsider the NAICS code does not alter [AMEL’s] deadline for bringing a NAICS code appeal at OHA.” AMEL “filed this appeal 40 calendar days after issuance of the RFP.” Thus, “[t]he instant appeal is untimely and must be dismissed.” OHA dismissed AMEL’s NAICS code appeal. When an agency assigns an apparently erroneous NAICS code, it’s not a bad idea to approach the Contracting Officer about a change, as AMEL did. Doing so can avoid unnecessary administrative litigation. Additionally, giving the Contracting Officer the chance to reconsider before filing a NAICS code appeal may be beneficial from a “relationship standpoint.” However, as the AMEL Technologies case demonstrates, informal discussions about NAICS codes don’t extend the strict NAICS code appeal deadline–the 10-day clock keeps ticking. View the full article
  2. A CIO-SP3 SB contract holder could not protest the award of a task order to a competitor because the order was valued at less than $10 million. In a recent bid protest decision, the GAO confirmed that civilian task order awards–including those under CIO-SP3 SB–generally cannot be protested unless the value of the order exceeds $10 million. The GAO’s decision in AMAR Health IT, LLC, B-414384.3 (Mar. 13, 2018) involved a task order RFQ issued by the Department of Health and Human Services. HHS issued the RFQ as part of the CIO-SP3 SB Government-Wide Acquisition Contract. After evaluating quotations, HHS initially awarded the task order to AMAR Health IT, LLC at a price of nearly $14 million. Zolon Tech Inc., an unsuccessful competitor, ultimately filed two GAO bid protests challenging the award to AMAR. In response to the second protest, the HHS conducted discussions and evaluated final quotations. The HHS then awarded the task order to Zolon at a price of approximately $6.3 million. AMAR attempted to file a GAO bid protest challenging the award to Zolon. The GAO wrote that “[p]rotests filed with our Office in connection with the issuance or proposed issuance of a task or delivery order under a civilian agency IDIQ contract are not authorized except where the order is valued over $10 million, or where the protester can show that the order increases the scope, period, or maximum value of the contract under which the order is issued.” For purposes of determining the value of an order, the awardee’s price “is controlling since the terms of the order define the scope and terms of the contractual commitment between the contractor and the government.” The GAO rejected AMAR’s creative efforts to encourage the GAO to take jurisdiction. “Here,” the GAO wrote, “because the order at issue is valued at less than $10 million, we lack jurisdiction to consider the protester’s challenge.” The GAO dismissed the protest. It’s easy to understand AMAR’s frustration with the circumstances here. AMAR would have won the order itself but for two GAO protests from Zolon. Then, when AMAR attempted to return the favor, it was unable to do so because Zolon’s price was below the $10 million threshold. Because the awardee’s price governs, when AMAR was the awardee, the order was protestable; when Zolon was the awardee, it wasn’t. The AMAR Health IT case highlights the difficulty of attempting to protest a task order under CIO-SP3 or another multiple-award contract. Except in unusual circumstances, the GAO lacks jurisdiction to consider the award of a task order under a civilian multiple-award contract where the value of the order is less than $10 million. View the full article
  3. Under the SBA’s size regulations, when a size standard calls for a company’s size to be determined by its average annual receipts, the company’s ongoing fiscal year usually isn’t included. In a recent size appeal decision, the SBA Office of Hearings and Appeals rejected an argument that the SBA’s evaluation of a company’s size should have included receipts from the company’s current fiscal year. OHA’s decision in Size Appeal of Nordstrom Contracting & Consulting Corp., SBA No. SIZ-5891 (2018) involved a VA IFB for the replacement of air handling units at a VA Medical Center. The solicitation was issued as an SDVOSB set-aside under NAICS code 236220 (Commercial and Institutional Building Construction), with a corresponding $36.5 million size standard. Bids were due November 28, 2017. The VA opened bids on November 28 and announced that Williams Building Company, Inc. was the apparent successful offeror. Nordstrom Contracting & Consulting Corporation then filed a size protest against WBC, alleging that WBC’s receipts exceeded that $36.5 million size standard. The SBA Area Office evaluated the size protest. Because WBC had submitted its bid in November 2017, the Area Office used WBC’s last three completed fiscal years–2014, 2015, and 2016–as the basis of its measurement. After running the numbers, the Area Office concluded that WBC fell below the $36.5 million size standard. Nordstrom filed a size appeal with OHA. Nordstrom pointed to information from USASpending.gov indicating that WBC was awarded federal contracts exceeding $50 million in 2017. Nordstrom contended that the Area Office should have included WBC’s 2017 receipts because the Area Office’s size review was conducted in January 2018. OHA wrote that, under 13 C.F.R. 121.404(a), a company’s small business size status ordinarily is determined “as of the date the concern submits a written self-certification that it is small to the procuring activity as part of its initial offer (or other formal response to a solicitation), which includes price.” Additionally, under 13 C.F.R. 121.104(c), the SBA ordinarily calculates size under a receipts-based size standard by examining “the total receipts of the concern over its most recently completed fiscal years divided by three.” In this case, “it is undisputed that WBC self-certified as a small business with its bid on November 28, 2017.” OHA continued: Therefore, WBC’s three most recently completed fiscal years were 2014, 2015, and 2016. Fiscal year 2017 was not yet complete at the time of WBC’s self-certification, and thus is not included in the period of measurement. Accordingly, the Area Office correctly based its review on WBC’s average annual receipts over the time period 2014-2016. OHA denied Nordstrom’s appeal. As with many rules in government contracting, the rule discussed in the Nordstrom Contracting case has an exception: when a company has been in business less than three complete fiscal years, the SBA will use an alternate formula that includes revenues generated in the ongoing fiscal year. But as the Nordstrom Contracting size appeal demonstrates, a company’s size under a receipts-based size standard usually turns on the average of the last three completed fiscal years–and excludes revenues generated in the ongoing fiscal year. View the full article
  4. SmallGovCon Week In Review: March 12-16, 2018

    This is a month my office (which represents several different teams) gets excited for. The first week of March Madness is here, which means you may have found yourself being less productive than usual–don’t worry, that’s expected! But even during a time as captivating as the NCAA tournament, the world of government contracting doesn’t slow down. In this week’s edition of the SmallGovCon Week in Review, a communications company has agreed to pay over $12 million to settle civil False Claims Act allegations, antitrust critics fear that a winner-take-all contract for the Defense Department’s cloud computing could help tech giant Amazon corner the government contract market, a construction company lost $40 million in four years in a scheme to illegitimately gain government contracts, and much more. A San Diego communications company will pay more than $12 million to settle False Claims Act allegations regarding SBIR contracts. [www.justice.gov] Amazon’s attempt to land a major Pentagon job has stoked some antitrust fears. [thehill.com] A construction company owner fraudulently obtained set-aside contracts–but only gets probation. [post-gazette.com] During Sunshine Week, senators cite issues with FOIA request backlog. [Federal News Radio] Alliant 2 SB has been awarded–now comes the inevitable protest phase. [Washington Technology] The Pentagon tells its leaders to talk more with contractors–but less with the press. [Government Executive] One commentator says that the DoD’s cloud strategy stifles innovation. [Federal News Radio] View the full article
  5. 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 recertification in connection with a particular order. OHA’s decision in Island Creek Associates, LLC, SBA No. WOSB-110 (2018) involved a Marine Corps solicitation for services in support of the Global Combat Support Systems-Marine Corps/Logistics Chain Management Program. The solicitation was issued as a competitive task order procurement under the SeaPort-e multiple-award IDIQ contract. The agency issued the solicitation as a WOSB set-aside, but did not request that SeaPort-e contractors recertify their WOSB status for purposes of the task order competition. After evaluating proposals, the agency announced that ReMilNet, LLC was the apparent successful offeror. An unsuccessful competitor, Island Creek Associates, LLC, then filed a WOSB status protest challenging ReMilNet’s eligibility. The SBA Director of Government Contracting issued a decision finding ReMilNet to be an eligible WOSB. Island Creek appealed the determination. OHA asked the parties to address whether the SBA should have dismissed the initial WOSB status protest as untimely. OHA pointed out that in a 2017 case involving SBA’s similar SDVOSB rules, OHA held that a protest of a task order was untimely because it wasn’t filed within five business days of the award of the underlying multiple-award contract or an option under that contract. In that case, OHA noted that the contracting officer hadn’t requested recertification at the task order level, and thus there was no new SDVOSB certification to protest with respect to the task order. OHA wrote that “with regard specifically to orders under a Multiple Award Contract, SBA regulations state that a concern will retain its status as a WOSB or EDWOSB for the entire duration of the contract, unless the CO requests recertification in connection with a particular order.” In this case, “ReMilNet self-certified as a WOSB when it submitted its offer for the SeaPort-e contract in 2014, and no status protest was filed at that time.” Moreover, “it is undisputed that the CO here did not request recertification for the instant task order.” Accordingly, “Appellant’s protest was untimely because it was not filed within five days after award of ReMilNet’s SeaPort-e contract or an order requiring recertification.” OHA vacated the SBA’s decision and dismissed the appeal. When it comes to multiple-award contracts, there is a lot of confusion about when a company must qualify by size and/or socioeconomic status. As the Island Creek Associates case demonstrates, in the WOSB and EDWOSB context, the self-certification made in connection with the underlying contract ordinarily governs. View the full article
  6. 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. 6, 2018) involved an Air Force solicitation for base operations and support services at Grissom Air Reserve Base. The solicitation was set-aside for SDVOSBs, and called for award to the lowest-price, technically acceptable offeror. Under the solicitation, the Air Force would evaluate two factors: technical merit and price. The solicitation did not include past performance as an evaluation factor. In a contemporaneous Determination and Findings, the Air Force found that evaluating past performance would not provide any significant benefit. In its D&F, the Air Force noted that, under an LPTA evaluation, offerors with limited or unknown past performance cannot be evaluated unfavorable, meaning that such offerors are entitled to an “acceptable” rating. Additionally, because the acquisition was an SDVOSB set-aside, any “unacceptable” past performance score would need to be referred to the SBA under the Certificate of Competency program, increasing the potential administrative burdens of conducting the acquisition. Data Monitor Systems, Inc. filed a pre-award bid protest challenging the terms of the solicitation. DMS argued, in part, that failing to include past performance as an evaluation factor was unreasonable and improper. The GAO wrote that “the FAR provides that past performance need not be evaluated if the contracting officer documents the reason past performance is not an appropriate evaluation factor for the acquisition.” And, in the context of a LPTA set-aside competition, the GAO “has previously questioned the value of including past performance as a separate evaluation factor precisely because the past performance evaluation is ultimately reduced to a matter of the firm’s responsibility, which will be evaluated, in any case, after source selection.” This is particularly true “given the difficulties associated with how to consider a neutral rating in the context of a pass/fail evaluation, which as noted by the agency’s D&F in this case, is the rating required for firms without any past performance record or where the record is not available.” The GAO concluded: “n sum, we see no basis to disturb the agency’s conclusion that performing a past performance evaluation in the context of a lowest-priced, technically-acceptable procurement, which is set aside for small businesses, is essentially duplicative of the agency’s responsibility determination . . ..” The GAO denied the protest. Past performance is, of course, an extremely common evaluation factor. But as the Data Monitor Systems case demonstrates, procuring agencies are not required to consider past performance in every acquisition. Where, as here, the acquisition will be set-aside for small businesses and award made on an LPTA basis, an agency may have good reason to forego an evaluation of past performance. View the full article
  7. SmallGovCon Week In Review: March 5 – 9, 2018

    I am back in Kansas after spending some time in sunny Florida for the APTAC Spring 2018 Training Conference in Jacksonville. Next week, I hit the road again, this time to not-so-sunny (but still awesome) Washington State, where I’ll be giving a session at the 2018 Alliance Northwest Conference in Puyallup, WA. If you are attending the event, please be sure to connect. Now it’s time for the latest and greatest in government contracting. In today’s edition of the SmallGovCon Week in Review, the Pentagon has reportedly slashed a contract worth almost $1 billion that was awarded last month, a former contractor has been convicted of retaining classified information, the DOJ launches a national FOIA portal, and much more. The Pentagon has slashed an Amazon partner’s $950M cloud computing contract. [siliconangle.com] The State Department is updating contract language regarding requirements for contractors to cooperate with the agency Inspector General. [Federal News Radio] A former defense contractor has been convicted of unlawfully retaining classified information. [justice.gov] DOD defends its decision to move to commercial cloud with a single award. [fedscoop.com] The DOJ has announced the launch of a national FOIA portal. [justice.gov] View the full article
  8. An 8(a) Program participant was terminated from the 8(a) Program for failing to pay a subcontractor. According to the SBA, the non-payment reflected poorly on the 8(a) company’s character–and “good character” is a prerequisite for 8(a) Program participation. The decision of the SBA Office of Hearings and Appeals in Corporate Portfolio Management Solutions, SBA No. BDPT-567 (2018) was an appeal of the SBA’s decision to terminate Corporate Portfolio Management Solutions from the 8 (a) Program. The reason for the termination was CPMS’s failure to pay a subcontractor. In 2012, the SBA certified CPMS as an 8(a) Program participant. The following year, the GSA awarded CPMS an 8(a) prime contract. CPMS then hired a subcontractor, Procon Consulting, LLC, to perform some of the work under the GSA contract. By April 2016, CPMS owed Procon $68.688.53 for its subcontract work. In August 2016, Procon initiated arbitration before the American Arbitration Association to recover the amounts due. In December 2016, CPMS signed a consent order and judgment acknowledging that it owed Procon the full $68,688.53. CPMS agreed to pay Procon $75,000 in three installments, with the last installment due February 28, 2017. In June 2017, Procon filed a complaint in the Superior Court of the District of Columbia, seeking to enforce the arbitration consent order. Procon alleged that CPMS had failed to make any of the agreed-upon installment payments. In October 2017, the Court issued a judgment in favor of Procon. Procon didn’t limit itself to civil remedies. In July 2017, Procon sent a letter to the SBA asking for the SBA’s assistance in recovering the unpaid debt and urging the SBA to revoke Procon’s 8(a) certification. In August 2017, the SBA suspended CPMS from participating in the 8(a) Program. By notice dated October 27, 2017, the SBA informed CPMS that it was being terminated from the 8(a) Program. The SBA’s notice specified that the termination was due to a lack of business integrity because CPMS had failed to pay Procon and failed to comply with the arbitration order. CPMS appealed the termination to OHA. CPMS said that it had begun making payments to Procon and had taken other corrective actions such as implementing new corporate policies. However, CPMS did not dispute any of the underlying facts regarding its relationship with Procon. OHA wrote that “[t]he SBA has an affirmative responsibility under the Small Business Act to ensure that only eligible business concerns are admitted into, and remain in, the 8(a) BD program.” OHA explained, “[t]his ensures that public funds are properly administered, and that the benefits of the 8(a) BD program are limited to those small businesses that qualify to receive such benefits.” Here, even assuming that CPMS had begun making payments to Procon and had changed some of its internal corporate policies, “these contentions do not rebut SBA’s conclusion that [CPMS] engaged in conduct indicating a lack of business integrity when it failed to pay its subcontractor.” OHA dismissed the appeal. The Corporate Portfolio Management Solutions case shows that, when it comes to 8(a) Program participation, “good character” means more than avoiding criminal convictions. If an 8(a) Program participant doesn’t pay its bills, the SBA may terminate the participant from the 8(a) Program. View the full article
  9. 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 counselors who attended the session and asked great questions during the presentation and after. A big thanks to Scott Knapp of our local Kansas PTAC, who provided a warm introduction. And a special thank you to the attendees who took my advice and really did “live Tweet” about the great pink tie my daughter gave me last Father’s Day! Spending time with the PTACers is always one of the highlights of my professional year. If you’re a government contractor who hasn’t yet connected with your local PTAC, you’re missing out. Visit the APTAC homepage to find out more. View the full article
  10. If a prospective contractor wishes to file a size protest, it must act quickly: the protester ordinarily has five business days to initiate its protest. But does the deadline get extended if the agency takes corrective action in response to a bid protest? Maybe, maybe not. A recent SBA Office of Hearings and Appeals decision examines that question. The case of Chenega Support Services, LLC, SBA No. SIZ-5874 (Dec. 12, 2017) involved a solicitation for an Air Force contract for operating certain medical centers. The Solicitation was assigned NAICS Code 621399, Office of All Other Miscellaneous Health Practitioners, with a corresponding size standard of $7.5 million. On December 19, 2016, the Air Force awarded the contract to Prairie Quest, Inc. and notified Chenega Support Services, LLC of the award. Chenega and another party then filed timely GAO bid protests. In response to the bid protests, the Air Force issued a stop work order on January 10, 2017, and indicated on January 18, 2017, it would undertake corrective action by conducting a new past performance evaluation and new source selection decision. However, the Air Force did not terminate the award to Prairie Quest. Instead, the Air Force said that the award would remain in place pending the reevaluation, and would only be terminated if the reevaluation led to a different outcome. On October 3, 2017, the Air Force confirmed award to Prairie Quest. Chenega filed a size protest on October 10, 2017. The size protest was filed within five business days of the October 3 confirmation but was filed long after the initial award in December 2016. The SBA Area Office dismissed the size protest as untimely. The Area Office held that because the award had never been terminated, any viable size protest was due five business days after the award in December 2016–not five business days after the October 2017 confirmation of award. Chenega appealed to OHA. On appeal, Chenega argued that, because there had been a new source selection, “Prairie Quest could not have been the apparent awardee while the corrective action was ongoing, and no prospective awardee existed until the Air Force made its new selection decision in October 2017.” OHA looked at the underlying regulation regarding timeliness of size protests, which states in relevant part that “[a] protest must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after the contracting officer has notified the protestor of the identity of the prospective awardee.” 13 C.F.R. § 121.1004(a)(2). OHA reasoned that “the regulations do not contemplate any exception if corrective action occurs after the award notification.” In making this decision, OHA reaffirmed the holding of EFT Architects, Inc., which we examined on the blog in 2013. The recent decision confirms that this timing issue is still coming up. But five years later, OHA is not inclined to reconsider its earlier ruling. That takes us back to to the underlying question: how does corrective action impact a size protest? As the Chenega Support Services case demonstrates, the answer is “it depends on the scope of the corrective action.” If the corrective action results in a termination of the original award, it seems clear that a new five-day window opens when a new award is announced. But where, as here, the agency does not terminate the original award while it undertakes a reevaluation, and then confirms the award to the original awardee, there is no new size protest window. View the full article
  11. March has arrived, and soon it will be time for all the March Madness fun. But first, I will be heading to sunny Florida for the APTAC Spring 2018 Training Conference on Monday. If you’re a PTAC counselor, I hope to see you there. In today’s edition of the SmallGovCon Week in Review, an Atlanta-based company that failed to deliver millions of emergency meals to Puerto Ricans struggling to recover from Hurricane Maria may have plagiarized its winning bid, a former quality-control officer who demanded kickbacks from construction businesses he monitored is going to prison, Guy Timberlake takes a look at the use of Product Service codes, and much more. Government contracts guru Guy Timberlake says that “fair opportunity is not the best value in Simplified Acquisitions for agencies or small business concerns.” [linkedin.com] An Atlanta-based contractor has been accused of plagiarizing its bid for a major Puerto Rico food supply contract. [usnews.com] The instigators of a kickback scheme at a South Carolina military base are heading to prison. [postandcourier.com] One commentator says that the Pentagon’s new $1 Billion cloud deal may signal a new era in government buying. [nextgov.com] The GSA says a recent rule change will simplify Schedule buys and reduce the proliferation of multiple-award contracts. [federalnewsradio.com] Two recent DHS procurements show how innovation is happening in government. [federalnewsradio.com] Guy Timberlake reminds contractors that NAICS codes are just part of the story–to truly understand how procurements are classified, you also need to think about Product Service Codes. [govconchannel.com] Congratulations to the 40 companies named as potential winners of the CIO-SP3 Small Business ramp-on. [washingtontechnology.com] View the full article
  12. Under the FAR, unbalanced pricing may increase performance risk and can result in the government paying unreasonably high prices. But the concept of unbalanced pricing is often misunderstood in practice. As the GAO wrote in a recent bid protest decision, unbalanced pricing doesn’t exist merely because some of an offeror’s line item prices are low. Rather, unbalanced pricing requires both understated and overstated line items–that is, some line items appear too high while others appear too low. The GAO’s decision in First Financial Associates, Inc., B-415713, B-415713.2 (Feb. 16, 2018) involved a DHS solicitation to administer the agency’s child case subsidy program. The solicitation was issued as a small business set-aside, and contemplated the award of a contract to the offeror providing the best value considering three factors: technical merit, past performance, and price. The solicitation apparently called for offerors’ pricing proposals to include breakdowns by contract line item numbers. After evaluating proposals, the agency awarded the contract to FEEA Childcare Services, Inc. An unsuccessful offeror, First Financial Associates, Inc., then filed a GAO bid protest. FFA challenged several aspects of the agency’s evaluation. Among its challenges, FFA alleged that FEEA’s pricing was unbalanced because FEEA allegedly had priced some CLINs “extremely low.” The GAO wrote that “balanced pricing exists where the prices of one or more line items are significantly overstated or understated, despite an acceptable total evaluated price (typically achieved through underpricing of one or more other line items.)” To prevail on an allegation of unbalanced pricing, “a protester must show that one or more prices in the allegedly unbalanced proposal are overstated; it is insufficient to show simply that some line item prices in the proposal are understated.” The GAO explained, “[w]hile both understated and overstated prices are relevant to the question of whether unbalanced pricing exists, the primary risk to be assessed in an unbalanced pricing context is the risk posed by overstatement of prices, because low prices (even below cost prices) are not improper and do not themselves establish (or create the risk inherent in) unbalanced pricing.” In this case, “FFA only claims that some of FEEA’s CLIN prices are understated; FFA does not allege that any of the awardee’s CLIN prices are overstated.” Therefore, “FFA provides no basis for us to question the agency’s price evaluation for allegedly failing to identify unbalanced prices.” In the competitive world of government contracts, it’s not unusual for competitors to question one another’s pricing, and “unabalanced pricing” is one of those terms that is often thrown around when a competitor’s pricing appears suspect. But as the First Financial Associates protest demonstrates, a proposal containing understated CLINs alone isn’t unbalanced–rather, unbalanced pricing requires both understated and overstated line items. View the full article
  13. Despite older case law to the contrary, the GAO ordinarily lacks jurisdiction to decide a protest challenging the award of a subcontract, even where the subcontract is alleged to have been made “for” the government, as in the case of some subcontracts awarded by DOE Management and Operation prime contractors. In a recent decision, the GAO confirmed that, except in very narrow circumstances, it won’t decide protests challenging subcontract awards. The GAO’s decision in Peter Vander Werff Construction, Inc., B-415676 (Feb. 6, 2018) involved the award of a subcontract by Lawrence Livermore National Security, LLC. LLNS is a M&O prime contractor to the DOE, responsible for the management and operation of the Lawrence Livermore National Laboratory in California. LLNS’s prime contract included FAR 52.244-5 (Competition in Subcontracting) which specifies that a prime contract shall select subcontractors “on a competitive basis to the maximum extent practicable with the objectives and requirements of the contract.” In March 2017, LLNS issued a competitive solicitation for the award of multiple master task agreements for general construction and design services. LLNS received 32 offers. After evaluating those offers, LLNS made 16 awards. LLNS informed the remaining offerors, including Peter Vander Werff Construction, Inc., that their offers were unsuccessful. PVWC filed a GAO bid protest challenging the evaluation. The DOE moved to dismiss the protest, arguing that the GAO lacked jurisdiction. The GAO wrote that, for several years, it “took jurisdiction over subcontract awards by prime contractors to the federal government where, as a result of the government’s involvement in the award process, or the contractual relationship between the prime contractor and the government, the subcontract, in effect, was awarded on behalf of–i.e., ‘by or for’–the government, and federal procurement laws and regulations otherwise would apply.” But in 1991, the U.S. Court of Appeals for the Federal Circuit issued a decision interpreting jurisdictional language similar to that governing the GAO. In that case, the Federal Circuit held that the General Service Administration’s Board of Contract Appeals lacked jurisdiction over subcontract procurements conducted “for” a federal agency, unless the prime contractor was a “procurement agent” as narrowly defined in other authority. After the Federal Circuit issued its decision, the GAO narrowed its jurisdiction over subcontract protests. Since the 1991 decision, the GAO will only take jurisdiction over a subcontract protest in two instances: first, “upon the written request of the federal agency that awarded the prime contract,” and second, “where we find that a subcontract essentially was awarded ‘by’ the government.” With respect to the second instance, GAO has “considered a subcontract procurement to be ‘by’ the government where the agency handled substantially all of the substantive aspects of the procurement and, in effect, took over the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals.” In contrast, unlike its pre-1991 cases, the GAO will no longer take jurisdiction of a subcontract that was awarded “for” the government. In this case, there apparently was no written request by DOE that the GAO decide this matter. Additionally, the GAO found that this was not a subcontract issued “by” the Government. In that regard, the GAO wrote that “the record does not establish that the agency controlled essentially every meaningful aspect of the procurement.” Instead, “the evaluation and ultimate decision was made by LLNS,” the prime contractor. The GAO dismissed the protest. As the Peter Vander Werff Construction case demonstrates, the GAO’s jurisdiction over subcontract protests is very narrow. Contrary to older case law, the GAO no longer accepts jurisdiction based on the allegation that a subcontract was awarded “for” the government. View the full article
  14. To be eligible for a small business set-aside procurement seeking a manufactured product, an offeror has to either be the product’s manufacturer or otherwise qualify under the nonmanufacturer rule. Determining whether a business qualifies—either as the manufacturer or nonmanufacturer—can be a fact-intensive and confusing task. But it’s a vitally important one, as the penalty for not qualifying can be the loss of an awarded contract. Recently, however, the SBA Office of Hearings and Appeals provided important clarity on how a small business might qualify as a nonmanufacturer. Let’s take a look. Under SBA’s regulations, a firm may qualify as a nonmanufacturer if it meets four criteria: The business does not exceed 500 employees; It is primarily engaged in the retail or wholesale trade and normally sells the type of item being supplied; The business takes ownership or possession of the item(s) with its personnel, equipment, or facilities in a manner consistent with industry practice; and The business will supply the end item of a small business manufacturer, processor, or producer made in the United States (or gets a waiver of this requirement). 13 C.F.R. § 121.406(b)(1). Recently, the OHA considered what it takes to comply with the second of these requirements, when it considered a small business protest alleging the awardee did not normally sell the items procured by the government. At issue in SeaBox, Inc., SBA No. SIZ-5881 (2018) was a Marine Corps procurement seeking ISO dry and refrigerated cargo containers. The solicitation was issued as a total small business set-aside, under a manufacturing NAICS code (specifically, code 332439, for Other Metal Container Manufacturing). After QAF Technologies, Inc. was awarded the contract, SeaBox filed a protest alleging that QAF didn’t normally sell the type of items being procured. SeaBox’s argument was somewhat interesting—though SeaBox acknowledged that QAF sold similar items to the federal government, it said that federal government sales were not sales in “the retail or wholesale trade,” as required under the second nonmanufacturer rule criterion. This argument was rejected by the SBA Area Office, and SeaBox filed an appeal alleging the same at the OHA. But it wasn’t successful at OHA, either. After considering the regulatory history, the OHA concluded that federal government sales qualify as sales within the retail or wholesale trade. What’s more, the regulation doesn’t require a company to sell the exact items procured, but only the type of item being procured. Thus, QAF’s past sales of similar items to the federal government were sufficient to meet the second criterion to the nonmanufacturer rule. The OHA denied SeaBox’s appeal and affirmed that QAF was an eligible small business under the procurement based on its compliance with the nonmanufacturer rule. As mentioned, complying with the manufacturer rule or nonmanufacturer rule is a prerequisite for a small business’s eligibility for a small business set-aside under a manufacturing NAICS code. For help determining if you comply, give me a call. View the full article
  15. After a long week that included two ice storms here in the Midwest, I hope you’re ready for a relaxing weekend. But first, it’s Friday, which means that it’s time for the SmallGovCon Week In Review. In today’s edition, a Utah man pleads guilty to wire fraud and money laundering for his role in a scheme to obtain government construction contracts set aside for SDVOSBs, a former CEO pleads guilty to an $8.1 million “Made In The USA” marketing scheme and government contract fraud, the federal services market has experienced a jolt of dealmaking activity in recent months as companies position themselves to capture new government spending, and much more. SDVOSB fraud: a Utah man has pleaded guilty to wire fraud and money laundering charges. [justice.gov] Speaking of guilty pleas, a former CEO has pleaded guilty in relation to a scheme to sell Chinese-made combat boots as “Made in America.” [justice.gov] Merger mania? Dealmaking accelerates as federal contractors jockey for spending. [standard.net] Are RFIs a waste of time and money? [fcw.com] The GAO has sustained a protest of a $771 million award. [nextgov.com] One commentator says that increases in the micro-purchase and simplified acquisition thresholds are a “win-win.” [Federal News Radio] View the full article