Jump to content

Koprince Law LLC

Members
  • Posts

    1,822
  • Joined

  • Last visited

Everything posted by Koprince Law LLC

  1. Steven Koprince, Govology Legal Analyst and retired founder of Koprince McCall Pottroff (and all around cool dude) will be presenting this webinar providing a big-picture overview of small business certifications in the government marketplace. In this webinar, you will learn about various federal small business certification programs, including Small Business Self Certification, Small Disadvantaged Business (SDB) & 8(a), Service-Disabled Veteran-Owned Small Business (SDVOSB), Veteran-Owned Small Business (VOSB), Historically Underutilized Business Zones (HUBZone), Woman-Owned Small Business (WOSB), and Economically Disadvantaged Woman-Owned Small Business (EDWOSB). Steve will also touch on state and local certification programs and provide information on additional training and resources you can use to develop a deeper understanding and get help with any federal, state, and small business certification program. If interested in this informative webinar, please register here. The post Govology Webinar: An Introduction to Government Small Business Certifications (2023 Update) July 25, 2023, 1:00pm EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  2. Happy Friday! Our SmallGovCon authors and attorneys were busy this week. Aside from our normal updates, Nicole Pottroff and John Holtz presented a 3-Part Series for Govology, this week, on compliant and effective teaming agreements, joint ventures and subcontracts. This is always a popular webinar and there was a lot of great information shared as well as a lot of great questions. If you were not able to attend, please check out Govology’s upcoming webinar events at Govology.com. It’s a wonderful source of helpful information for federal government contractors. This week in federal government contracting, CIO-SP4 is going back to the drawing board and an update on Alliant 3. NITAAC to take corrective action on CIO-SP4 after GAO sustains 125 protests [FedNewsNet] New legislation designed to protect military families from financial fraud [FedNewsNet] Pentagon offers new explanation for why it cancelled huge travel modernization project [FedNewsNet] Navy tech bridges connecting small businesses with its needs [FedNewsNet] Verification of a Firm’s Status as a Service-Disabled Veteran-Owned Small Business Concern[OSD] This memorandum issues the updated Department of Defense (DoD) Other Transactions (OT) Guide and rescinds the version published in November 2018. [OSD] Oversight Committee Passes Bills to Root out Waste, Fraud, and Abuse, Improve Federal Government Efficiency [Oversight] Is GSA’s Alliant 3 vehicle tilted too much to small, very large contractors? [FedNewsNet] ABC (Associated Builders & Contractors) Applauds House Committee’s Passage of the Fair and Open Competition Act [ABC] A look at the Pentagon buying strategy for artificial intelligence [FedNewsNet] GSA debuts new search tool to support Native Governments and Businesses [GSA] CIO-SP4 acquisition arm commits to corrective action after 119 bid protests sustained [FedScoop] Congress to DoD: anticompetitive mergers in the defense industry, and their impact on contracting costs and national security [Congress] The post SmallGovCon Week in Review: July 10-14, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  3. It’s here–the first ever SBA Office of Hearings and Appeals (OHA) HUBZone appeal decision! Sure, it is a very short decision and a dismissal–in fact, one reiterating some of the limitations of the new appeal avenue. But that doesn’t make it any less important. This is still SBA OHA’s first ever HUBZone appeal decision, only made possible by the SBA’s recent issuance of a new rule allowing HUBZone appeals (again, in limited circumstances). Let’s take a closer look. That’s right! The SBA’s OHA has issued its first ever Historically Underutilized Business Zone (HUBZone) appeal decision. OHA’s decision in New Source Corp., SBA No. HUB-101, 2023 (June 27, 2023), was a pretty short read, ultimately resulting in OHA’s dismissal of the appeal. But it will still go down in history as a first, nonetheless. Before we get into the decision, let’s talk a little about recently implemented SBA rule and the new OHA HUBZone appeal avenue it created. We previously blogged on this new SBA rule both here and here. So, I won’t go too far into the weeds since you can read all the juicy details in our prior blogs. But in a nutshell, as of May 2023, OHA has jurisdiction to hear appeals from adverse status determination protests for certified HUBZone small businesses. But notably, this jurisdiction is limited. The new rule expressly limits OHA’s newfound jurisdiction for HUBZone appeals to “[a]ppeals from HUBZone status protest determinations under” SBA’s HUBZone Program regulations. So, OHA still lacks jurisdiction to hear other types of HUBZone appeals, including those from HUBZone certification application denials and HUBZone Program terminations. In fact, OHA’s first official HUBZone appeal decision, issued on June 27, 2023, reiterates OHA’s limitations when it comes to HUBZone appeals. As OHA explains in its decision, the Appellant in New Source Corp. sent OHA an email aiming to “appeal” SBA’s decision to decertify it from the SBA’s HUBZone Program. But OHA found this “appeal email” to be deficient for a number of reasons. So, it ordered the Appellant to show cause why the appeal should not be dismissed. Relying on an important limitation to the new OHA HUBZone appeal process, OHA said: [T]he appeal did not appear to pertain to a HUBZone status protest, nor was the appeal accompanied by a copy of any formal protest determination made by the Director of SBA’s Office of HUBZone (D/HUB) in connection with a HUBZone status protest. Furthermore, Appellant did not represent itself as either the protested concern or the protestor for a HUBZone procurement affected by a HUBZone protest. As a result, OHA apparently lacks subject matter jurisdiction over this dispute. The appeal was also found deficient for: being unsigned; not being served to the D/HUB and other required parties; not alleging any error by the D/HUB; and being sent by the Appellant’s “Marketing Director,” which OHA noted may not even be permitted to represent the Appellant in an OHA appeal. In response to OHA’s show cause notice, the Appellant attempted to correct some of these deficiencies (i.e., providing an official appeal petition signed by its President alleging “negligence” and “lack of assistance and responsiveness from HUBZone support staff”–with some supporting documentation). But it did not address the biggest deficiency: OHA’s lack of subject matter jurisdiction over general HUBZone decertifications. Without subject matter jurisdiction, OHA had to dismiss the appeal. Again, SBA’s new rule provides an avenue for HUBZone appeals strictly limited to appeals from adverse status determination protests for certified HUBZones. And as OHA notes in the excerpt above, this generally requires that an appellant be either the protested concern or the protester in such a status determination protest to have standing for the appeal. So, even though the contents of this decision don’t seem particularly memorable, it is still OHA’s first ever HUBZone appeal decision. And it reiterates an important limitation on OHA’s HUBZone appeal jurisdiction. So for those reasons, we at SmallGovCon are pretty stoked to see it anyway. We are hoping this is the first in a long line of OHA HUBZone appeal decisions that serve to bring more transparency and consistency to SBA’s HUBZone Program. Questions about this post? Email us. Need legal assistance? call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post First OHA HUBZone Appeal Debuts on the Docket first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  4. Federal contractors, be sure to ask your kids or a young person what TikTok is (if you don’t already know), because those providing services to the federal government now have to take steps to ban it from employee’s devices in certain situations. A recent FAR rule has now implemented Congress’s ban on use of TikTok on government devices. The Consolidated Appropriations Act, 2023, enacted the No TikTok on Government Devices Act (the Act) and OMB provided additional implementing guidance. “The rule revises the FAR to implement the prohibition on having or using the social networking service TikTok or any successor application or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited.” TikTok will be banned on: Information technology owned or managed by the Government, Any information technology used or provided by the contractor under a contract, This includes equipment provided by contractor employees, and “applies to devices regardless of whether the device is owned by the Government, the contractor, or the contractor’s employees ( “e.g., employee-owned devices that are used as part of an employer bring your own device (BYOD) program).” However, a “personally-owned cell phone that is not used in the performance of the contract is not subject to the prohibition.” Timing Contracting officers must include new clause FAR 52.204–27, Prohibition on a ByteDance Covered Application on the following timeframe: In new solicitations issued on or after June 2, 2023 In solicitations issued before June 2, 2023, if award of the contract occurs after June 2, 2023, and the clause should be included by amendment by July 3, 2023. Contracting officers must modify existing indefinite-delivery contracts to include the FAR clause by July 3, 2023, for future orders. If exercising an option or modifying a contract or task or delivery order to extend the period of performance, contracting officers must include the clause. Implementation The clause applies to contracts at or below the Simplified Acquisition Threshold and can even apply to purchases below the micro-purchase threshold if the contract may use TikTok such as a social media-related contract. It also applies to contracts for the acquisition of commercial products and commercial services. Interestingly, the government forecasts that the rule will not be difficult for contractors to implement, as it is not very complicated compared to some bans such as the “prohibition on contracting for certain telecommunications and video surveillance services or equipment, which requires reviewing a contractor’s supply chain to uncover any prohibited equipment or services.” For this rule, there is no required supply chain review nor is there any reporting requirement. Rather, the rule requires contractors to update internal policies and IT rules to “include the prohibition on having or using a covered application, and that implementation of the prohibition may also require employee communications or training on this new requirement. It will be particularly important for contractors to clearly explain to their employees when a covered application is prohibited on a personal device used in performance of a Federal contract.” IT Equipment is defined broadly, as equipment “used by a contractor under a contract with the executive agency” that requires use of the equipment “to a significant extent in the performance of a service or the furnishing of a product.” But the ban does not include “equipment acquired by a Federal contractor incidental to a Federal contract.” The ban applies “on any information technology used or provided by the contractor under a contract, including equipment provided by the contractor’s employees, unless an exception is granted in accordance with OMB Memorandum M–23–13.” The clause must be inserted in subcontracts as well. The OMB memo has a few more details on the exceptions. These fall into the categories of national security, law enforcement, and security research. These exceptions must be approved by agency heads. So, contractors must now take steps to bar TikTok from devices that will be used in federal contract performance by updating procedures and policies. Questions about this post? Email us. Need legal assistance? call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Clock Now Ticking on Federal Contractor TikTok Ban first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  5. Happy Friday! We hope you had a nice 4th of July and a great week. It was another scorcher here in Kansas, on the 4th, but thankfully our temperatures are much cooler to finish out the week. Here’s hoping you can find time to rest and relax this weekend and perhaps, read a few articles we thought were interesting from the federal government contracting world. Enjoy! In this week’s edition, the federal fiscal fourth quarter is upon us! Busy federal fourth quarter to bleed into just as crazy first quarter of 2024 [FedNewsNet] DAU trains 3,000 acquisition employees on data skills as DoD seeks greater AI readiness [FedNewsNet] That rumbling you hear is the end of the fiscal year approaching [FedNewsNet] GSA debuts new search tool to support Native Governments and Businesses [GSA] DAF Embracing Secretary Kendall’s 7 Operational Imperatives With 3 Major Contract Opportunities [GovConWire] Leidos, Booz Allen Lose $1.3 Billion Treasury Contract Protest [BLaw] Procurement trends in 2023 [FedNewsNet] Veteran-Owned Small Business and Service-Disabled, Veteran-Owned Small Business-Certification; Correction [FedReg] Technology Modernization Fund awards $50.5M to agencies for cybersecurity, CX investments [FedScoop] White House hosts AI-focused listening session with union leaders [FedScoop] GAO sustains 98 bid protests filed over CIO-SP4 solicitation [FedScoop] White House $3.1 billion homeless program includes help for vets [FedTimes] The post SmallGovCon Week in Review: July 3-7, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  6. Well, summer is certainly here. You only need to step outside to be able to tell. And with the arrival of summer, the long-awaited end to the HUBZone map freeze just occurred on June 30, 2023. The new map took effect the following day, July 1, 2023. If you’re in the HUBZone program, or are considering certification in the HUBZone program, you might have some questions as to what this means for you. In this post, we’ll explore what the changes will bring. In the 2018 National Defense Authorization Act, at Section 1701, Congress included language that provided that no changes should be made to any HUBZone designations for any given area until the results of the 2020 Census were available. In essence, the SBA then issued a rule stating this freeze was to last until December 31, 2021. As you may recall, circumstances made completing the 2020 Census fairly difficult. As such, as we discussed back in May 2021, SBA extended the freeze until June 30, 2023. Well, as of now, the freeze has lifted. With that said, of course, what does this mean in general, and more importantly, what does this mean for you? General Impact For those of you who are unfamiliar with the HUBZone program, the idea behind the program is basically to give a boost to what SBA describes as “historically underutilized business zones in an effort to increase employment opportunities, investment, and economic development in such areas.” In other words, it is tailored to help businesses located in the parts of the country that generally see lower income, higher unemployment, and more generally difficult economic conditions. Of course, whether a certain county or census tract is undergoing such difficult conditions is subject to change over time. As such, HUBZone designation for a county or census tract needs to be allowed to be changed over time to ensure that if an area does improve, it is no longer getting the assistance it no longer needs. As such, SBA will periodically review and update the designations accordingly. The changes mean my business no longer would qualify! What does this mean? If the changes in the HUBZone designations are such that your business no longer meets the HUBZone requirements, either because your principal office is no longer in a HUBZone or because now less than 35% of your employees do not reside in a HUBZone, do not panic. There’s a couple things to consider here. First, as SBA notes, you will keep your HUBZone status regardless until your next recertification date. Second, as stated in 13 C.F.R. § 126.619, if you were a certified HUBZone concern at the time you submitted your initial offer on a contract, you are generally going to be considered a HUBZone concern for the duration of that contract. This also means you can still go for task orders generally for the duration of the underlying contract. The exceptions are 1) if the contracting officer request a new HUBZone certification for a given order under a Multiple Award Contract, and 2) if the Multiple Award Contract is not a HUBZone contract itself, but the order you’re going for is set aside for HUBZone, you must be certified at the time you submit your offer for the order. Exception: The Legacy Employee Rule If the HUBZone map changes mean that less than 35% of your employees reside in HUBZones, you may still be eligible for HUBZone recertification. First, there’s the legacy employee rule under 13 C.F.R. § 126.200. If the following are true: An employee resided in a HUBZone for at least 180 days prior to the company’s certification date (or a recertification date, in case they weren’t HUBZone at certification but resided in a HUBZone later) Said employee continued to live in a HUBZone for at least 180 days immediately after that certification or recertification date The employee has remained continuously employed with the company since that time (working at least 40 hours per month) And the certification date or recertification date in question occurred after December 26, 2019. Then, that employee is considered a HUBZone resident even if they no longer live in a HUBZone. One thing, however, is that you will need to indicate at your recertification that you are using the legacy employee rule if you otherwise would have fewer than 35% of your employees as HUBZone residents. This will require additional documentation to support your position, which SBA runs down here. Exception: The Attempt to Maintain Rule If your business is currently performing a HUBZone contract, there is another rule that may protect you if at least 20% of your employees are still HUBZone residents but less than 35% are. 13 C.F.R. § 126.200(e)(1) notes that “At the time of application, a concern must certify that it will ‘attempt to maintain’ having at least 35% of its employees reside in a HUBZone during the performance of any HUBZone contract it receives.” 13 C.F.R. § 126.103 provides that “[a]ttempt to maintain means making substantive and documented efforts, such as written offers of employment, published advertisements seeking employees, and attendance at job fairs and applies only to concerns during the performance of any HUBZone contract. A certified HUBZone small business concern that has less than 20% of its total employees residing in a HUBZone during the performance of a HUBZone contract has failed to attempt to maintain the HUBZone residency requirement.“ In other words, if at least 20% of your employees are HUBZone residents, SBA may allow you to recertify if you can show that you have been trying to maintain the 35% requirement. Note, this only applies if you are presently performing a HUBZone contract. We discuss this rule more here. Exceptions: Long-Term Investment Rule All that is great, but what if your principal office is now no longer in a HUBZone area? There is a rule that may protect you depending on your circumstances. 13 C.F.R. §126.200(c)(1) provides that if you purchased your principal office or entered a long-term lease for the office in a HUBZone after December 26, 2019, it will be treated as being in a HUBZone for ten years from the certification date or recertification date that follows the execution of the lease or deed so long as you maintain that ownership or lease. We explored this rule more here, and SBA’s FAQ also has details. Conclusion This won’t be the last time the HUBZone map changes. The next major change will be in 2028, and there will be changes in the meantime for things such as expiring redesignated areas and for disaster situations. So, keep an eye on SBA’s HUBZone map, they should provide details if any changes are forthcoming. Questions about this post? Email us Need legal assistance call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post The Thaw: Dealing with the End of the HUBZone Map Freeze first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  7. If you are in to podcasts, law firm blogs, or legal marketing, check out my appearance on the Legally Contented podcast with Wayne Pollock. Here is the YouTube version, and below are links to the audio podcast on your format of choice. In this podcast, we discuss how blogging can make attorneys better attorneys balancing breaking news-type blog posts with substantive blog posts–and lots more. It was a great experience discussing SmallGovCon with Wayne. Hope you enjoy it. https://podcasts.apple.com/us/podcast/legally-contented/id1612322032 https://open.spotify.com/show/3WfCyY0cbL1Mc4SfBWbr30 https://music.amazon.com/podcasts/b370b4d4-59df-47a8-8bff-4f786ed06222/legally-contented The post SmallGovCon Featured on Legally Contented Podcast first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  8. Happy Friday! We hope you have had a productive week. We are having a heat wave here in Kansas, with the heat index getting up to 106 degrees, and we know it’s even higher in other parts of the country. I think I speak for everyone here when I say we are grateful for air conditioning. We hope you are staying cool and healthy in your neck of the woods and looking forward to the weekend. This week in federal government contracting news saw movement on the 2024 NDAA as well as calls for enhanced security on federal cyber projects. Veteran-Owned Small Business and Service-Disabled, Veteran-Owned Small Business —Certification; Correction [FedReg] Former Department of Energy Employee Pleads Guilty to Accepting Bribes from Long Island Businessman in Exchange for Nearly $1 Million in Federal Contracts [DoJ] Reimagining Public Food Procurement in the 2023 Farm Bill [EESI] House, Senate committees approve 2024 NDAA, including 5.2% pay raise [FedNewsNet] White House directs agencies to prioritize ‘secure by design’ in 2025 budgets [FedNewsNet] Treasury Releases Analysis of the Boom in U.S. Construction of Manufacturing Facilities Driven by Invest in America Agenda [DoT] Homeland Security Acquisition Regulation; Safeguarding of Controlled Unclassified Information [FedReg] Transparency in numbers: Federal contractors must be held accountable for their diversity efforts [GovExec] The post SmallGovCon Week in Review: June 26-30, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  9. For large and small contractors alike, teaming agreements, joint venture agreements, and subcontracts can be essential to winning and successfully performing federal government contracts. In this three-part series, government contracts attorneys Nicole Pottroff and John Holtz will explain how to develop, negotiate and administer agreements that are both compliant and effective. The presentations will cover both the key rules (such as flow-downs and ostensible subcontractor affiliation) and best practices for agreements that go beyond the bare minimum legal requirements. Hope you will join us! Register here. The post Govology Webinar: Compliant and Effective Teaming Agreements, Joint Ventures & Subcontracts – 3-Part Series (2023 Update) July 11-13, 2023, 1:00pm EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  10. While every federal government contractor is likely familiar with bid protests, whether directly involved in one or not, it is far less likely that those same contractors are as familiar with NAICS code appeals. This is probably due to the infrequent nature of NAICS code appeals, with roughly 20 being filed each year. However, even if so few are filed annually, they tend to have a relatively high success rate, with appeals decided on the merits being decided in favor of the Appellant about 50% of the time. Below, I will take a look at a recent NAICS code appeal to help demonstrate what the Small Business Administration’s (SBA) Office of Hearings and Appeals (OHA) takes into account when reviewing NAICS code appeals, and why you, as a contractor, should review a solicitation’s classification to potentially give you a leg up. The NAICS code appeal in Laredo Technical Services is, by all means, a relatively straightforward NAICS code appeal, as far at those things go. The solicitation sought a contractor to provide 41 radiology technologists for placement in the Department of Veterans Affairs’ medical facilities. The Contracting Officer assigned NAICS code 561320—Temporary Help Services—to the solicitation, which has a size standard of $34 million. Laredo Technical Services, Inc., SBA No. NAICS-6216 (2023). Laredo Technical Services, Inc., the appellant in this case, challenged the Contracting Officer’s decision to assign NAICS code 561320 to the solicitation, believing that the solicitation should have been assigned NAICS code 621399—Offices of All Other Miscellaneous Health Practitioners—with a size standard of $10 million. Or, in the alternative, NAICS 621512—Diagnostic Imaging Centers—with a size standard of $19 million. So, why is the NAICS code important? Well, to put it simply, each solicitation has a NAICS code, and each NAICS code has a size standard. Those size standards are either based on annual average receipts, which range from $2.25M to $47M, or number of employees, which range from 100 to 1,500. And a business that earns $47M annually, or that has 1,500 employees, is almost guaranteed to have more resources than one who earns $2.25M, or that has 100 employees, making the larger, more profitable business more likely to win awards. One way the SBA works to make federal contracting more equitable among small businesses is by narrowing eligible bidders through size standards. This means that a $47M business cannot compete against a $2M business on a federal contract for corn farming, because the size standard for corn farming contracts is $2.5 million. Thus, the $47M business is deemed too large to compete, and the $2M business is only required to compete with other small businesses that are $2.5M and under. The same logic applies for small businesses that file a NAICS code appeal trying to recategorize the solicitation to a larger NAICS code, allowing a bigger (relatively speaking) small business to be eligible to compete for a solicitation it was initially too large for. Back to the instant size appeal, Laredo claimed that 621399 was the appropriate NAICS code because the procurement was for radiological services on-site within the VA facilities, not radiological centers or laboratories off-site without the VA facilities. Furthermore, the RFP stated that the contractor and contractor’s technologists would not be considered VA employees, but rather independent contractors, and the services sought by the solicitation was for non-personal services. To reach a decision, SBA looked to the three potential NAICS codes mentioned in the appeal, beginning with the NAICS code assigned by the Contracting Officer. SBA stated, “[t]he NAICS code chosen by the CO, 561320, Temporary Help Services, covers establishments primarily engaged in supplying workers to clients’ businesses for limited periods of time to supplement the working force of the client. The individuals provided are employees of the temporary help services establishment. However, these establishments do not provide direct supervision of their employees at the clients’ work sites.” Here, SBA agreed with Laredo that 561320 was not the proper NAICS code for the work anticipated by the solicitation, stating that 561320 is clearly for contractors providing workers for limited periods of time, while the solicitation focused on workers for “up to three years.” Accordingly, SBA then looked to the NAICS codes proposed by Laredo to determine whether either of those best described the “principal purpose of the products or services being required.” First, SBA looked at Laredo’s preferred NAICS code: 621399. Here, SBA noted, “[t]he NAICS code advocated by Appellant, 621399, Offices of All Other Miscellaneous Health Practitioners, is comprised of establishments of independent health practitioners (except physicians; dentists; chiropractors; optometrists; mental health specialists; physical, occupational, and speech therapists; audiologists; and podiatrists). These practitioners operate private or group practices in their own offices (e.g., centers, clinics) or in the facilities of others, such as hospitals or HMO medical centers.” SBA determined that 621399 was not the proper NAICS code either, stating that Laredo’s assertion that the location of performance should be taken into account when determining NAICS codes was incorrect, and that the location of performance was not relevant in making the determination. Finally, SBA looked to the third option: 621512. SBA explained that NAICS code 621512 included “establishments known as diagnostic imaging centers primarily engaged in producing images of the patient generally on referral from a health practitioner…[this includes] ‘CAT (computerized axial tomography) scanner centers’, ‘[c]omputer tomography (CT-SCAN) centers’, ‘[d]iagnostic imaging centers (medical)’, ‘[l]aboratory testing services, medical radiological or X-ray’, ‘[m]agnetic resonance imaging (MRI) centers’, ‘[m]ammogram (i.e., breast imaging) centers’, ‘[m]edical radiological laboratories’, ‘MRI (magnetic resonance imaging) centers’, and ‘[r]adiological laboratory services, medical’.” SBA reasoned that the professional radiology technologists sought by the solicitation would perform “the full range of radiology imaging care,” including x-rays, MRIs, ultrasounds, and CAT scans for VA inpatients and outpatients. Accordingly, the agency was directed to amend the NAICS code from 561320, Temporary Help Services, which has a size standard of $34M, to 621512, Diagnostic Imaging Centers, with a size standard of $19 . As the infamous words of Mick Jagger said, “You can’t always get what you want. But if you try sometimes you’ll find you get what you need.” And what Laredo needed here, was a different NAICS code. Questions about this post, joint ventures, affiliation, or any other government contracting matter? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Recent NAICS Code Appeal Demonstrates Contractor Strategy to Limit Competition first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  11. Koprince McCall Pottroff LLC is a premier small business and federal government contracts firm in Lawrence, Kansas. The management team is pleased to announce that Gregory Weber has been promoted to the role of Senior Associate Attorney. Greg quickly integrated himself into the fabric of our firm, and working with federal contractors has become second nature to him. In response to the announcement, Greg said, “I am thrilled to be given this opportunity to further help our clients and work within the federal contracting community. Koprince McCall Pottroff has a great tradition of excellence and I am proud to be a part of it.” Greg draws on his experience working for a number of large organizations. In those roles, he became adept at communicating complicated legal and regulatory concepts to clients. This skill translated nicely into the federal contracting world. Greg is hardworking to a fault and always puts providing client value and outstanding client communications at the top of his list. He is equally skilled at litigation (including at SBA, ODRA, and the Court of Federal Claims) and transactional matters (including small business, socioeconomic certifications, and teaming relationships). Greg is a great attorney and advocate for the federal contractors that our firm serves. The promotion is well deserved! The post Koprince McCall Pottroff LLC Announces Gregory Weber as Senior Associate Attorney! first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  12. A common path for many federal contractors to bid on and perform a federal contract is through a joint venture (“JV”). Utilizing a JV can provide some great opportunities for two (or sometimes more) businesses to share resources and boost each others’ performance on a contract. Additionally, it can be a great tool for contractors to utilize both JV partners’ experience and to jointly gain more experience. There are even widespread SBA regulations requiring agencies to “consider” both JV partners’ experience in an evaluation. However, there has still been quite a bit of back and forth regarding how agencies are supposed to evaluate a JV’s experience, and specifically what it means to “consider” each JV partners’ individual experience, particularly in situations where only one JV partner submits the experience. In May of 2023, GAO issued a decision that provided at least some clarification on how an agency should consider each JV partner’s experience, and the impact of not doing so. One of the many factors that may appeal to contractors, looking at utilizing a JV for contract proposal and performance, is the ability to work with a JV partner that may have more relevant experience, and thus, open the door for bidding on projects that require more specified prior experience from offerors. But despite SBA’s implementation of widespread joint venture rules regarding the evaluation of a JV’s past performance, (which I will get to shortly), there has still been some debate within the federal contracting industry. There also have been multiple bid protests, that question exactly how an agency’s evaluation of a JV’s experience would need to consider both JV partners’ experience, rather than just the JV itself or just one JV partner. Due to this confusion, GAO in MiamiTSPi, LLC – Reconsideration, decided to quell the waters and provide some guidance about what an agency is expected to analyze when evaluating a JV’s experience. This GAO holding is due to a request for reconsideration, which in turn is based on a previous case where GAO found that the agency did not properly review the experience of a JV. In this reconsideration, GAO upheld the previous decision and articulated the expectations for how experience in a JV is meant to be evaluated. The solicitation at the heart of this issue was an RFQ, for IT services at the USDA’s Farm Loan Program, which anticipated issuing a fixed price task order and award based off a best-value tradeoff, with “similar experience” being the most important factor in the tradeoff. The RFQ told offerors that the agency “would consider the extent of the contractor’s experience in providing like or similar services in accordance with original project deadlines.” Initially, the award on this RFQ was made to a JV called MiamiTSPi, but that award was protested on the basis that “the agency’s evaluation did not comply with applicable SBA regulations, which require the agency to ‘consider work done . . . by each partner to the joint venture as well as any work done by the joint venture previously” citing 13 C.F.R. § 125.8(e). GAO in that initial bid protest found the record showed the JV submitted two projects to demonstrate experience, and both experience examples came only from one party of the JV. GAO sustained the protest because it found that the record did not show “any type of acknowledgement of the fact that the only experience examples submitted” for this procurement were from one of the JV’s partners, thus “indicating that the evaluators never even considered the limited nature of the experience examples.” The JV then filed a request for reconsideration, leading to the GAO reconsideration decision. The request for reconsideration argued that GAO “failed to consider the portion of the SBA regulations that prohibits the agency from negatively evaluating the 8(a) partner of the joint venture for its lack of relevant experience.” In the request for reconsideration of the decision, GAO makes it quite clear what standard agencies must be held to when evaluating a JV’s submitted experience. GAO in its decision points to 13 C.F.R. § 124.513(f) which states “[t]he partners to the joint venture in the aggregate must demonstrate the past performance, experience, business systems, and certifications necessary to perform the contract” and “procuring activity must consider work done and qualifications held individually by each partner to the joint venture as well as any work done by the joint venture itself previously.” The GAO further pushed back on the reconsideration argument, holding that when reading the entirety of 13 C.F.R. § 124.513(f), the rule “directs agencies to ‘consider work done and qualifications held individually by each partner to the joint venture’ and in that consideration, prohibits agencies from requiring the protégé or 8(a) participant partner to individually meet the same criteria as the mentor or non-8(a) partner.” GAO also mentioned that the SBA, in creating these same regulations, explained that the “rules require a small business protégé to have some experience in the type of work to be performed under the contract” but it would be unreasonable for the protégé to be held to the same level of experience of a mentor in a JV. Additionally, GAO explained that while the regulations don’t require a specific degree of consideration, “it is clear that the agency must consider to some degree the experience of both partners of the joint venture.” The GAO, after distinguishing other similar cases, articulated that their holding, in this reconsideration, showed there was no error of law in the underlying bid protest when “concluding that the agency’s evaluation of MiamiTSPi’s quotation was unreasonable and inconsistent with the SBA regulations” as the record showed that the agency did not “consider the experience of each partner to the joint venture in evaluating the experience of the joint venture.” While this reconsideration holding, and underlying bid protest, revolved around SBA’s 8(a) Program regulations, it represents a holding that could impact all small business joint ventures (given the similar regulatory language in SBA’s small business joint venture regulations and other socioeconomic status joint venture regulations). While agencies are generally given deference in their evaluations of an offeror’s experience, in this reconsideration GAO has somewhat carved away at that deference. As you know, the regulatory interpretation of how to “consider” joint venture experience has been somewhat unclear, but through this ruling the GAO has now issued clear guidance in one of the many situations that could arise when a joint venture submits experience in a proposal (i.e., a joint venture has only one partner submit experience, while the other submits no experience). In that specific situation, GAO expects for both joint venture partners to submit experience, and for the agency to evaluate both of those joint venture partners’ experience. Consequently, going forward if a joint venture finds itself in a situation in which it submits a proposal, with only one partner of the joint venture providing experience, it is likely that a bid protest may be on its way. Questions about this post, joint ventures, affiliation, or any other government contracting matter? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GAO: Each JV Partner’s Experience Must Be Considered first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  13. I’m very excited to be speaking at the Procurement & Contracting Symposium held at EPCC Administrative Services Center (ASC) in El Paso, Texas on July 25. The wonderful Pablo Armendariz is putting this one together. I’ll be providing a comprehensive update on the most important government contracting legal changes. It’s going to be a great opportunity for Federal, state, and local government agencies, buyers, prime and subcontractors, suppliers, providers, and the regional business community to meet and participate in informative training sessions as well as receive government contracting guidance, updates, and upcoming forecasts. I hope to see you there! Here is the event link, for additional information. The post Event Announcement: Procurement & Contracting Symposium hosted by Texas El Paso APEX Accelerators, July 25, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  14. Happy Friday and happy Summer Solstice! It’s officially summer and the temperatures here in Lawrence, Kansas sure feel like it. We have been in the 90’s this week and we are certainly grateful for air conditioning (and maybe even looking forward to winter). We hope our readers have some fun summer vacation plans and find time to rest and relax a bit this weekend. Wear your sunscreen and stay hydrated! In federal government news this week, budget talks and the draft NDAA are being worked on, while agencies focus on cybercrime and customer experience, among other things. Agency efforts to cut redundant programs save $600B over 13 years, GAO says [FedNewsNet] Budget talks for 2024 are rocking, raising talk of a government you-know-what [FedNewsNet] DHS launching new ‘customer experience’ directorate this month [FedNewsNet] DOD, GSA, NASA Field Comments on Proposed Information Collection Related to Contract Financing [ExecGov] Defense Bill Calls for Return of Contracting-Out Studies [Fedweek] Procurement Rules Aren’t the Sustainability Answer: Larry Allen [BGov] Smart contractors are preparing for what could be a solid fourth quarter [FedNewsNet] DoD IG calls for full investigation into 21 missing shipping containers in Kuwait [FedNewsNet] Lawmakers float grant program to get service dogs to struggling vets [FedTimes] GAO Sees Need for More Coordination among Agencies on Cybercrime [FedWeek] How to use 8(a) on GSA contracts [GSA] Record $705 Billion In FY 2022 Federal Contracts Awarded, Per 12th Annual BGOV200 Federal Industry Leaders Analysis [PRNewswire] Contract Dollars Rebounded Last Year, 65% Went to 200 Companies [BLaw] House defense bill adds special Ukraine IG, Taiwan cyber cooperation [FedTimes] The post SmallGovCon Week in Review: June 19-23, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  15. SBA recently revised its affiliation regulations in a number of ways, some of which we have already discussed here. We have likely sounded pretty upbeat about most of SBA’s recent updates thus far, as the majority do seem to be a step in the right direction–adding clarity to SBA’s rules and furthering the policies SBA seeks to enforce. Well, not trying to rain on any parades here, but at least one of SBA’s recent regulatory updates, (at least in our humble opinion) has the potential to confuse federal contractors regarding SBA’s affiliation rules. That update revised the language in SBA’s “Two-Year Rule” for small business joint ventures–though, it really didn’t change the substance or effect of the rule, at all. Let’s take a closer look. At this point in the article, you may be (quite reasonably) asking yourself how we got on the topic of SBA’s affiliation rules, given the title of the article is focused on joint ventures (and if you are sitting there wondering what joint ventures and affiliation even are, don’t stress it; here is a Back to Basics blog on joint ventures, and here is one on affiliation, and here is one on the different types of affiliation). Well, we are talking about affiliation here because SBA’s small business joint venture rules pertaining to the required content of a joint venture agreement (and various other socioeconomic categories of small business joint venture rules doing the same) do not actually contain any term limitations for joint ventures. SBA’s “Two-Year Rule” for joint ventures isn’t a actually joint venture rule at all. You guessed it–it is an affiliation rule. All this means is that SBA doesn’t tell joint ventures they can’t continue bidding work after two years–SBA will just find the joint venturers to be affiliates at that point, if they do so (don’t worry, we will talk more specifics of the rule shortly). Unfortunately, that fact alone–that SBA’s term limit for small business joint ventures is essentially buried in SBA’s affiliation rules, rather than in any of SBA’s joint venture rules–leads to confusion. Indeed, many federal contractors participating in small business joint ventures seem to either be completely unaware of the two-year-term limitations or to completely misunderstand them (even prior to the recent update). For a little bit of history on the “Two-Year Rule,” it used to be the “Three-in-Two Rule,” which limited joint ventures to three awards within a two-year period. But a few years ago–in what most everyone in the government contracting world seems to consider an excellent rule revision–SBA did away with the “three” part of the “Three-in-Two Rule” for joint ventures. While this significantly minimized the amount of paperwork and administrative burden on joint venture parties that wanted to perform more than three contracts together, it left in place the two-year term limitation. SBA’s most recent affiliation rule, before this latest change, regarding the two-year term limitation for joint ventures said the following: Once a joint venture receives a contract, it may submit additional offers for a period of two years from the date of that first award. An individual joint venture may be awarded one or more contracts after that two-year period as long as it submitted an offer including price prior to the end of that two-year period. SBA will find joint venture partners to be affiliated, and thus will aggregate their receipts and/or employees in determining the size of the joint venture for all small business programs, where the joint venture submits an offer after two years from the date of the first award. 13 C.F.R. § 121.103(h) (January 5, 2022, to May 30, 2023). Now, this is again just in my humble opinion, but I thought the language from this version of the rule did a pretty decent job of explaining the rule. Just in the first sentence, it tells you that the two-year-clock starts from the “date of that first award” and it is the submission of “additional offers” that is prohibited after that two-year-clock ends. And the sentences that follow the first sentence here just elaborate on that point, explaining that the joint venture can continue to receive awards and perform contracts after that clock runs–it merely cannot submit more bids from that point on. The updated language for SBA’s current “Two-Year Rule” follows: [A] specific joint venture generally may not be awarded contracts beyond a two-year period, starting from the date of the award of the first contract, without the partners to the joint venture being deemed affiliated for the joint venture. However, a joint venture may be issued an order under a previously awarded contract beyond the two-year period. Once a joint venture receives a contract, it may submit additional offers for a period of two years from the date of that first award. An individual joint venture may be awarded one or more contracts after that two-year period as long as it submitted an offer prior to the end of that two-year period. SBA will find joint venture partners to be affiliated, and thus will aggregate their receipts and/or employees in determining the size of the joint venture for all small business programs, where the joint venture submits an offer after two years from the date of the first award. 13 C.F.R. § 121.103(h). Interestingly, in reviewing the history of this rule, it appears that SBA actually tried inserting this language once before for a brief period between the era of the “Three-in-Two Rule” and January 2022–but ended up removing it. But now, its back again. I copied a good portion of the rule into this quote, to make sure that it is clear that a lot of the rule actually stayed the same. But I am a bit concerned that SBA’s added language actually adds more confusion than clarification. Specifically, if anyone were to read just the first sentence copied above and stop there, it could lead to an incorrect application of this rule. It actually says that you “generally” cannot “be awarded contracts” after the two-year clock runs. Yes, it then goes on to make an exception for awards that were bid prior to the expiration of the two-year clock–which, in effect, is basically what the rule already did. It just feels (again, at least to me) like this added language increases the chances that contractors will misinterpret and misapply the rule. But I truly hope I am wrong! Finally, I did just want to note that the new rule–like the old one–still clarifies that joint venture parties are allowed to keep working as a joint venture team once the two years is up. They just need to create a new joint venture (meaning a new agreement and a new entity, with all the registration and filing that entails). Joint ventures provide an incredible opportunity for companies to team up for work they may not otherwise be (1) eligible for, or (2) able to perform on their own. They also give contracting agencies sort of a two-for-one special that can be really beneficial to the government and tax-payers. But they do have a lot of rules that go with them. And some of those rules might not be where you think they are. If you are not careful, you could risk affiliation. Questions about this post, joint ventures, affiliation, or any other government contracting matter? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post SBA Revisions to the “Two-Year Rule” for Joint Ventures: a Reminder to Read the Entire Rule first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  16. Touted as a “game-changer” when it was first introduced in 2016, the U.S. Small Business Administration’s All Small Mentor-Protégé Program isn’t new anymore. Known now as simply the “SBA Mentor-Protégé Program,” it is still extremely powerful for large and small contractors alike. In this course, Koprince McCall Pottroff LLC government contracts attorneys Stephanie Ellis and I will explain the ins and outs of the Mentor-Protégé Program, covering the program’s eligibility requirements, its potent benefits (including the ability to form special mentor-protégé joint ventures), the application process, and common misconceptions and pitfalls. Free Registration Link here. Hope you will join us! The post Event: SBA Mentor Protege Program Webinar hosted by Texas El Paso APEX Accelerators, June 27, 10:00am-11:30am MDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  17. While SBA has taken over SDVOSB certification from the VA (along with some other rule changes), some things remain the same. One thing which we think will never change, is that making sure the language in your agreements is clear, is vital for the federal contractor (and indeed all businesses). While this is obvious for things like operating agreements and bylaws, documentation like meeting minutes should be clear as well. In a recent appeal of a denial of SDVOSB certification, a company had to go through what must have been a frustrating ordeal that might have been prevented with just a little extra language in the meeting minutes, only to have to deal with further frustration due to a couple of details. Perrilliat Enterprises, Inc. (Perrilliat) is a construction contractor in Nevada formed in 2019. At the time it applied for SDVOSB certification, its bylaws provided that “[t]he corporation shall have 1 director and collectively they shall be known as the board of directors.” That director was the service-disabled veteran sole owner of Perrilliat. So far so good, as 13 C.F.R. 128.203 requires that for an SDVOSB corporation, the board must be controlled by one or more service-disabled veterans. It also provided that for a quorum to exist and a company meeting to be held, at least “1 member of the board of directors and 1 officer” had to be present. While the bylaws provided for one director, they established three officers: President, Secretary, and Treasurer. As part of Perrilliat’s SDVOSB application, it provided meeting minutes for “Board Meetings” that occurred on February 28, 2019, and August 30, 2022. For both of these meetings, the minutes noted that three individuals were in attendance: The owner and two other people. Neither of these two other people were service-disabled veterans. At the 2019 meeting, the owner was named the President of Perrilliat and the other two individuals were named the Secretary and the Treasurer. The minutes provided that Perrilliat only has one board member, but did not specify who that individual was. The meeting minutes for the 2022 meeting described that earlier that year a “Board Retreat” was held, with the President/Owner, the Secretary, and the Treasurer in attendance. On March 27, 2023, SBA denied Perrilliat’s SDVOSB application. The reviewer stated that Perrilliat had not shown that the company’s board was fully controlled by service-disabled veterans. The reviewer’s reasoning is that the meeting minutes indicated three people were present at the two meetings, and so these individuals must be the directors of the company. As the bylaws provided that one director and one officer was needed to establish a quorum, the reviewer concluded that “[b]ecause Appellant has ‘three directors and three officers’, only one of whom is a service-disabled veteran, non-qualifying individuals could potentially convene a meeting without” the service-disabled veteran. Additionally, because there were two non-service-disabled veteran directors versus the one service-disabled director/owner, the non-service-disabled veterans could outvote the owner, or at the very least block actions he wanted to take. As you might have guessed by this point, SBA’s Office of Hearings and Appeals (OHA) did agree with Perrilliat that SBA had clearly erred in its evaluation. The meeting minutes did not state that all three individuals present were directors of the company. In fact, they said there was just one director! But even if the board did have three directors in 2019, the 2021 bylaws would have negated that: “According to the Bylaws, Appellant is governed by a Board of Directors comprised of one individual. The Bylaws were signed solely by Stewart Perrilliat — Appellant’s President, owner, and a service-disabled veteran — who represented himself as ‘all the initial directors or incorporators of this corporation.’ The Bylaws further state that one Director and one officer are needed to establish a quorum, and that approval by ‘a majority’ of the Board members is necessary to make decisions. Accordingly, if Stewart Perrilliat is Appellant’s sole Director, it appears that he alone could establish a quorum and unilaterally control Appellant’s Board.” Finally, OHA observed that even disregarding all the above, the service-disabled veteran owner was the sole owner of Perrilliat, and so he might control the board regardless. So, this means Perrilliat got approved for SDVOSB certification then with the decision, right? Unfortunately, this was not the case: “Although Appellant has identified errors in the D/GC’s decision, Appellant has not conclusively shown that it is an eligible SDVOSB. Additional review and clarification is thus appropriate. Notably, Appellant points to no specific evidence that Stewart Perrilliat is Appellant’s sole Director. While Appellant’s Bylaws do state that Appellant’s Board will be comprised of one Director, the identity of that one Director is unspecified. Furthermore, other information in the record appears to contradict Appellant’s claim that its Board consists of only one Director. The minutes of the August 30, 2022 Board meeting, for instance, refer to a ‘Board Retreat earlier this year’, during which the Board ‘[b]rainstormed’ on Appellant’s mission and strategic objectives. Appellant does not attempt to explain how these statements can be reconciled with its contention that its Board is comprised of only one Director.” As a result, the matter was merely sent back to SBA for further review, resulting in additional time spent in review with the SBA’s Veteran Small Business Certification (VetCert) program. Now, SBA clearly made a number of mistakes in its evaluation, and Perrilliat was absolutely right on that. But, even with that all said, just a couple missing details means that, instead of Perrilliat getting its SDVOSB certification there and then, it had to continue the review process. Little things like the meeting minutes not restating that the service-disabled veteran owner was the director and describing a 2022 meeting of the officers as a “Board Retreat” were enough to create a genuine question as to who controlled the company at the time of certification. It seems minor, but it is these little details that make the difference when applying for SDVOSB certification, and indeed any sort of certification with SBA. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Clarity is Key: An Example of Why Clear Language is Important for Showing SDVOSB Control first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  18. Happy Friday! Monday is our newest federal holiday, Junteenth. Courtesy of History.com, Juneteenth (short for “June Nineteenth”) marks the day when federal troops arrived in Galveston, Texas in 1865 to take control of the state and ensure that all enslaved people be freed. The troops’ arrival came a full two and a half years after the signing of the Emancipation Proclamation. Juneteenth honors the end to slavery in the United States and is considered the longest-running African American holiday. On June 17, 2021, it officially became a federal holiday. I hope you will enjoy the activities in your community. In our town of Lawrence, Kansas, there is a parade, a free concert and lots of educational events this weekend. I’m really looking forward to it! GSA published a great press release on Junteenth, that we have included below. Lots of activity in the Federal government world this week. We have included some articles that we think are of interest. Have a great weekend! GSA reflects on Juneteenth amid continued equity push for Black communities [GSA] NAICS Codes & Identifying Bids More Than Meets The Eye [MyGovWatch] Government Efficiency and Effectiveness:Opportunities to Reduce Fragmentation, Overlap, and Duplication and Achieve Billions of Dollars in Financial Benefits [GAO] US Department of Labor Recovers More Than $171K in Back Pay, Benefits for 11 Workers Shortchanged by Florida Construction Subcontractor [DoL] $321 Million FEMA Resource Contract Backed By GAO After Protests [BlmbgLaw] Report: GAO Denies Protest of Army Joint Light Tactical Vehicle Contract Award Decision [GovConWire] FACT SHEET: Biden Administration Celebrates the 75th Anniversary of Women’s Integration into the Armed Forces [WH] Bot brigade marching through Interior to accelerate digital transformation [FedNewsNet] White House extends secure software attestation deadlines, offers clarifying guidance [FedNewsNet] GSA Offers Update on New Pool for 8(a) Vendors Under Multiple Award Schedule [ExecGov] Evolving compliance challenges in the US government contracts market [FinWorld] GSA joins EPA in putting the brakes on how employees use generative AI [FedNewsNet] Residents of Guam still recovering after typhoon [FedNewsNet] Department of Labor to Hold Online Seminars to Educate Current, Prospective Federal Contractors on Prevailing Wage Requirements [DoL] The post SmallGovCon Week in Review: June 12-16, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  19. A recent COFC decision yielded some important insights about government contracting. We already wrote about some joint venture aspects of the decision. But the decision also touched on whether GSA’s solicitation violated federal procurement law by excluding price as an evaluation factor at the indefinite delivery indefinite quantity (IDIQ) level for a procurement. In the SH Synergy, LLC v. United States, No. 22-CV-1466 (Fed. Cl. Apr. 21, 2023) decision, the Court of Federal Claims took a look at, among other things, small business joint ventures’ participation in the Polaris solicitation based on a challenge to the terms of the Polaris solicitation. The decision also examined whether a solicitation can ignore price at the IDIQ level and leave price evaluation solely to the order stage. The short answer–no. Price must be evaluated at the IDIQ level, at least for procurements such as Polaris. “Under the Polaris Solicitations, GSA will award IDIQ contracts to the highest technically rated qualifying (HTRQ) offerors.” Offerors self-score based on four evaluation factors: (1) Relevant Experience; (2) Past Performance; (3) Systems, Certifications, and Clearances; and (4) Risk Assessment. The highest self-scored proposals, after an Acceptability Review, would receive awards. And GSA expected to award certain number of awards for different pools such as WOSB and SDVBOSB. The court noted that, generally, agencies must “include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals.” 41 U.S.C. § 3306(c)(1)(B). But Polaris did not include any cost or price evaluation. GSA based the exclusion of price on 41 U.S.C. § 3306(c)(3), which provides an exception for “certain indefinite delivery, indefinite quantity multiple-award contracts . . . for services acquired on an hourly rate.” 41 U.S.C. § 3306(c)(3). This statute has not been incorporated into the FAR yet, but GSA incorporated it through a GSA class deviation. The court looked closely at the statutory language allowing for an exclusion of price evaluation at the IDIQ level only when an agency is procuring ““task or delivery orders based on hourly rates” under 41 U.S.C. § 3306(c)(3). The court reasoned: by including the phrase “task or delivery orders” immediately before the phrase “based on hourly rates,” Congress has unambiguously expressed its intent to limit the type of task orders eligible for the exception in Section 3306(c)(3) to only those “based on hourly rates.” See 41 U.S.C. § 3306(c)(3). The phrase “based on hourly rates” as used in Section 3306(c)(3) includes the transitive verb form of “base,” which means “to make, form, or serve as a base for[;] . . . to find a base or basis for — usu[ally] used with on or upon.” In turn, the noun form of “base” is defined as “the fundamental part of something.” Something is “fundamental” if it is “of central importance.” (citations omitted) So, time-and-materials and labor-hour contracts are based on hourly rates, but if hourly rates are merely “embedded in the contractor’s bid amount,” such as in a firm fixed price context, that is not enough to meet the statutory language to be “based on hourly rates.” The Polaris solicitation included task order types not based on hourly rates: “Section 3306(c)(3) permits procuring agencies to avoid evaluating price at the IDIQ level only if the IDIQ contracts issued under the procurement ‘feature’ task orders ‘based on hourly rates,’ meaning time-and-materials and labor-hour task orders.” These type of task orders must “make up a featured, or predominant, portion of the task orders issued under the contract.” And “if GSA wishes to rely on Section 3306(c)(3) to avoid evaluating price at the IDIQ level, GSA must amend the Polaris Solicitations’ terms to clearly feature time-and-materials and labor-hour task order.” Therefore, the court ordered GSA to amend the solicitation to either feature hourly-rate based task orders or to evaluate price and cost at the IDIQ level. This case represents an important aspect of procurements, that the Solicitation must comport with applicable law, including statutory law. Here, the exception to evaluating price at the IDIQ level is quite narrow, and Polaris is not allowed to utilize that exception unless it meets the narrow exception. Questions about this post? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Exception to the Rule: Evaluating Price at IDIQ Versus Order Level Is a Limited Exception first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  20. Subcontracting is a hot topic in the federal government contracting world. Large businesses placing bids on federal procurements are often required to have a small business subcontracting plan, while small businesses are limited to exactly how much work they can subcontract out. The FAR and SBA rules contain the details relevant to small businesses’ limitations on subcontracting. These regulations are, in general, pretty straightforward. Well, at least when it comes to total small business set asides for one specific type of work. Further, there are a ton of resources available to help small business federal contractors understand these limits. Just googling “limitations on subcontracting” comes up with webinars, blogs, federal government sites, and even YouTube videos on the topic, but most only focus on the more general limitations. There aren’t nearly as many resources that take on the topic of partial set asides, but these limitations are important as well. In this post, I am going to walk you through how these limitations apply to partial set asides to show that contracts partially set aside for small businesses are not nearly as intimidating as they may seem. Partial Set Asides Partial set asides are essentially exactly what it sounds like: Federal Government contracts in which part, but not all, of the services, supplies, or construction will be performed solely by a small business or a specific category of small business. For a full rundown of when a partial set aside is permitted, look no further than FAR 19.502-3. Here is SBA’s definition: means, for a Multiple Award Contract, a contracting vehicle that can be used when: market research indicates that a total set-aside is not appropriate; the procurement can be broken up into smaller discrete portions or discrete categories such as by Contract Line Items, Special Item Numbers, Sectors or Functional Areas or other equivalent; and two or more small business concerns, 8(a) BD Participants, HUBZone SBCs, SDVO SBCs, WOSBs or EDWOSBs are expected to submit an offer on the set-aside part or parts of the requirement at a fair market price. Partial set-aside (or partially set-aside) means, for a Multiple Award Contract, a contracting vehicle that can be used when: market research indicates that a total set-aside is not appropriate; the procurement can be broken up into smaller discrete portions or discrete categories such as by Contract Line Items, Special Item Numbers, Sectors or Functional Areas or other equivalent; and two or more small business concerns, 8(a) BD Participants, HUBZone SBCs, SDVO SBCs, WOSBs or EDWOSBs are expected to submit an offer on the set-aside part or parts of the requirement at a fair market price. 13 CFR 125.1. For today’s purpose, it is less important to know in what circumstances a partial set aside is permitted, and more important to know what limitations apply. Thankfully, the same rules found in 13 C.F.R. § 125.6 and FAR 19.505 that apply to contracts that are completely set aside for one category of small business or another, such as 8(a) or woman owned small businesses, also apply to contracts that are partially set aside. In such a situation, the limitations of subcontracting will apply only to the portion of the procurement set aside for small businesses. Application The National Park Service (NPS) is in the process of planning a Fourth of July extravaganza held annually at a national park. To fulfill its needs, NPS knows it needs two different contract line items (CLIN): CLIN 1 and CLIN 2. CLIN 1 is set aside for small businesses, but CLIN 2 is something that can only be procured from a large business. NPS needs 500 units of CLIN 1 and 500 units of CLIN 2. Because NPS cannot get all of the CLINs from a small business, NPS makes the decision to procure CLIN 2 from a large business and the request is approved. NPS then awards the contract for 500 of CLIN 1 to Small Business (SB), and the contract for 500 of CLIN 2 to Large Business (LB). Importantly, a “business concern will not have to comply with the limitations on subcontracting (see § 125.6) and the nonmanufacturer rule for any order issued against the Multiple Award Contract if the order is competed and awarded under the portion of the contract that is not set-aside.” 13 C.F.R. § 125.2. Now, the language of 13 C.F.R. § 125.6 states that a small business must agree that, “it will not pay more than 50% of the amount paid by the government to it to firms that are not similarly situated” for services and supplies. Note that this number goes up to a maximum of 75% for specialty construction contractors, and 85% for general construction contractors. Therefore, it is important to know the value of the contract to determine whether SB is compliant with the limitation. Here, CLIN 1, which is awarded to SB is worth $50,000, and CLIN 2, which is awarded to LB is worth $50,000. This makes the total contract value $100,000. SB is able to provide 80% of CLIN 1, or 40% of the overall value of the solicitation, but needs to subcontract the remaining 20% of CLIN 1, or 10% of the overall value of the solicitation to an “other than small business” (OTSB). If SB subcontracts 20% of CLIN 1 from OTSB, is SB in compliance with the limitations on subcontracting? The answer to this question is yes. SB will remain in compliance with the limitations on subcontracting if it subcontracts 20% of CLIN 1, or 10% of the overall solicitation, to OTSB. Remember, the contract for 500 units of CLIN 1 was set aside for small businesses. SB is only subcontracting with OTSB so that it may provide all 500 of CLIN 1. Because the cost for SB to subcontract the additional 20% of CLIN 1 needed was $10,000, or 20% of the overall set aside value of $50,000, SB did not “pay more than 50% of the amount paid by the government to it to firms that are not similarly situated.” Therefore, the small business is in compliance with the limitations on subcontracting and can now provide all 500 of CLIN 1 to NPS. You may be wondering, “how are the limitations on subcontracting met if 60% of the value of the solicitation is paid to businesses that do not qualify as small?” Remember, in the situation of a partial small business set aside, the limitation on subcontracting only applies to the portion of the solicitation that is set aside for small businesses. As you can see, the limitations on subcontracting that apply to contracts partially set aside for small businesses are only slightly more difficult than a total set aside. The calculation is done the same way. The only difference is that the limitation is only applicable to the small business’s contract. Questions about this post? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Limitations on Subcontracting: Partial Set Asides first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  21. Happy Friday, Readers! As temperatures climb in this now official Kansas summer, so does federal government spending. But with more spending, comes more responsibility. A lot has happened this week! The FAR council proposed to ban TikTok for contractors. NASA is planning some extensive tech development, with the help of small businesses. And NOAA issued a massive $8 billion RFP for scientific and professional services acquisition. Enjoy the articles below and your weekend! Now that the debt ceiling debate has been settled, it’s back to business as usual for contractors, right? [FedNewsNet] An update on a contractor cybersecurity rule VA imposed this year [FedNewsNet] NASA Selects Small Business, Research Teams for Tech Development [NASA] Ownership and Control and Contractual Assistance Requirements for the 8(a) Business Development Program; Correction [FAR] NOAA issues final RFP for oceans portion of $8B scientific and professional services procurement [FedScoop] After debt fight, Congress turns its attention to defense budget [FedTimes] NASA Boosts Over 200 Space Sector Small Business With $45 Million Funding [TechTimes] Air Force Offers Insight Into Comprehensive Construction, Engineering Program [GovConWire] NYC Aims to Double Contract Work for Women and Minority-Owned Businesses [Blmbrg] DOD Issues Updated Guidance on Digital Capability Acquisition [ExecGov] The post SmallGovCon Week in Review: June 5-9, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  22. Uncle Sam only wants to do business with ethical contractors — and not all of the government’s ethics rules are intuitive. In this webinar, government contracts attorney, Nicole Pottroff, explains the ins and outs of the key ethics rules contractors should know, including organizational conflicts of interest, contingent fees, collusion, gratuities, the False Claims Act, and the Procurement Integrity Act. The presentation concludes with an in-depth look at what a compliant Ethics Plan and Internal Compliance Program should include. We hope you will join us. Registration link here. The post Event: Ethics in Federal Government Contracting Webinar hosted by Govology, June 15, 1:00pm EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  23. In the world of Federal Government Contracting, it often feels like there are 20 different ways that your business or your business’s awards can be protested. In addition to size protests and bid protests (at both GAO and the COFC), there is also what is commonly referred to as a “status protest.” A status protest, while certainly less common than size protests and bid protests, still presents its own unique factors, procedures, and corresponding risks that contractors should be aware of. In this next installment of our Back to Basics series, we will walk you through a status protest and what impact a status protest may have on a federal contractor’s business. What is a status protest? The best place to start with a discussion regarding status protests is simply “what is a status protest?” Status protests are basically protests in which a business (or in some cases the Contracting Officer (“CO”) or Small Business Administration (“SBA”) itself) has the opportunity to protest another business’s socio-economic contracting program status (SDVOSB, WOSB, HUBZone, etc.). We won’t go too far into the weeds of jurisdiction or standing; but generally, for one business to file a status protest against another business, it will need to be in relation to a specific contract award. And the protester will generally need to be an unsuccessful offeror on that same contract. Basically, the protester will assert that the awardee does not meet the eligibility requirements for a specific socio-economic contracting program set-aside status (importantly, it must be the status the contract is set-aside for), and as such, should not receive the contract award. Often these protests will be confused or lumped in with size protests due to their similarity (and the fact that size protests are often referred to as “size status protests”), but they are completely separate from a size protest. Which statuses can be protested? If a business feels that an awardee doesn’t meet the eligibility or status requirements for the following programs (for a specific contract set aside for that program), then a status protest may be filed: HUBZone WOSB/EDWOSB SDVOSB/VOSB You may have noticed that the SBA’s 8(a) Program is not listed. Well, under 8(a) Program regulations, another business or participant cannot protest the 8(a) status of a business, but it can of course protest the size status of an 8(a) business. However, the SBA or contracting officer (“CO”) can protest the small disadvantaged business (“SDB”) status of a proposed subcontractor or subcontract awardee in certain situations or other businesses can submit information to the SBA or CO trying to persuade them to initiate a SDB status review (discussed further below). Where are status protests filed and who reviews them? Status protests are heard by the SBA either through the relevant contracting program office, or the SBA Office of Hearings and Appeals (“OHA”), depending on the status being protested. For HUBZone status protests, a protester “must submit its written protest to the contracting officer” and “may submit protests by email to hzprotests@sba.gov.” For WOSB/EDWOSB status protests, a protester would deliver their protest “in person, by facsimile, by express delivery service, e-mail, or by U.S. mail” to the contracting officer “if the protestor is an offeror for the specific contract.” For protests of SDVOSB/VOSB status, “[a]ll challenges to the inclusion in the certification database of a VOSB or SDVOSB based on the status of the concern as a small business concern or the ownership or control of the concern, shall be heard by the Office of Hearings and Appeals of the Small Business Administration.” However, SBA still directs protesters to send their status protests to the contracting officer. So in general, to file a status protest, a protester would typically file their status protest with the contracting officer for the contract at issue. That contracting officer then forwards all protests to the appropriate SBA program office within its Office of Government Contracting Business Development, regardless of if the protest was timely or specific–or in the case of an SDVOSB/VOSB status protest, will forward the protest to OHA. In order for the protest to be timely, in a negotiated acquisition, the protest must be received prior to the close of business on the fifth business day after notification of the award was given by the contracting officer to the offerors. For sealed bid acquisitions, the contracting officer must receive the status protest prior to the close of business on the fifth business day after the bid opening. Interestingly, status protests could also be undertaken by the SBA or contracting officer themselves in certain situations. So, a business may not only be protested by another business, but also by the SBA or contracting officer. As hinted above, the 8(a) Program regulations state that “[t]he eligibility of a Participant for a sole source or competitive 8(a) requirement may not be challenged by another Participant or any other party, either to SBA or any administrative forum as part of a bid or other contract protest” but the “size status of the apparent successful offeror for a competitive 8(a) procurement may be protested.” So an 8(a) Program participant technically can’t have it’s status as an 8(a) Participant protested, but can have it’s size protested, through typical size protest means (see our blog post on size protests here). That being said, SBA does state that a business could request the SBA review the small disadvantaged business (“SDB”) status of a business, and if SBA feels there is enough credible information calling into question the SDB status of the subject business, SBA may initiate its own review. To file this type of request, protesters would send their request and supporting information to the SBA Associate Administrator for Business Development. How do status protests work? In general, the goal of each status protest is to examine the eligibility of the protested company under that specific program. So, for example, if someone protested the WOSB status of a program, the appropriate office within the SBA would review aspects of the protested business for continued eligibility for participation in the WOSB program, such as whether the required amount of ownership is held by a woman, and whether the woman owner has the required amount of control. It would function that same way for each respective program (other than the 8(a) Program, who has a different unique process discussed above). The SBA gives itself fifteen (15) business days after it receives the protest to issue a decision. Of course, the SBA can request an extension of this deadline from the contracting officer, as many of these status protests can be fairly complex with them looking at ownership structures, and control of businesses. Also, the contracting officer may still complete award of the contract in the meantime if they determine in writing that there is an “immediate need” to award that contract. But that contracting officer must include a written explanation within the contract file justifying this decision and send a copy of the explanation to the SBA Director for Government Contracting. As these status protests deal with the nature and structure of businesses, they will often involve the SBA requesting intricate business documents like operating agreements, articles of organization, ownership statements, and written responses or explanations to the protest allegations. SBA will analyze these documents, as well as any follow-up communications with the protested business during the fifteen days, compare them with the protest’s allegations and relevant regulations, then decide whether the protested business still meets the eligibility requirements for the respective socio-economic contracting program. Once the SBA comes to its decision, it will notify the contracting officer, protester, and the subject business in writing of its decision. Why does a status protest even matter? While the process seems fairly focused on the award of a contract, it doesn’t only put at risk a singular contract award, it also places the status of a business at risk. Obviously, if a business was awarded a set-aside contract, and the status protest resulted in them not being found eligible for the contract’s socio-economic contracting program set-aside designation, then that contract award is no longer awarded to that business. However, on top of that, each program lists further repercussions. For HUBZone status protests, if a business is found “ineligible” and the status protest is sustained, then “SBA will decertify the concern and remove its designation as a certiied HUBZone small business concern in DSBS.” For EDWOSB/WOSB status protests, if a business is found to be “ineligible” through a status protest, it “will be decertified from the program and may not submit an offer as a WOSB or EDWOSB on another procurement until it is recertified.” For SDVOSB/VOSB status protests, a business found not to qualify for this status through a status protest “may not submit an offer on a future VOSB or SDVOSB procurement until the protested concern reapplies to the Veteran Small Business Certification Program and has been designated by SBA as a VOSB or SDVOSB into the certification database.” While 8(a) Program regulations are not clear on the consequences to a subcontractor not being found to be a SDB, it is likely that similar consequences to the ones articulated in the HUBZone, EDWOSB/WOSB, and SDVOSB/VOSB programs would be incurred by a contractor who represented themselves as an SDB on any prime contract, but was later found not to be an SDB. While depending on the situation, there may be an appeal option or recertification option for a contractor who is found no longer eligible through a status protest, a negative status protest finding will still turn a contractor’s business upside down, as they can no longer hold-themselves out as the status that was protested, nor bid on contracts that are set-aside for that particular status. A negative status protest finding can have far-reaching effects on any contractor found ineligible, and thus, should be taken very seriously, despite it being less common than other protests. If a contractor finds themselves having their status protested, much of the success will depend on how well that business complied with their specific contracting program’s regulations. Often, this is something a skilled federal contracting lawyer can assist with before any protest is even filed. So, if you are wondering about whether your business is in compliance with your contracting program’s status requirements, have received a status protest, feel that an awardee doesn’t meet the proper status requirements, or you just have questions on federal government contracting, make sure to reach out to a skilled federal contracting lawyer, as the negative effects of a status protest can be quite impactful on a business. Questions about this post? Or need help with a government contracting legal issue? Email us. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Back to Basics: Status Protests first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  24. GAO recently sustained a bid protest to a General Services Administration (GSA) acquisition for warehousing and deployment services at the strategic national stockpile–a literal “stockpile” of the nation’s largest supply of critical pharmaceuticals, medical equipment and supplies, and emergency supplies. GSA issued this solicitation and conducted this acquisition on behalf of the Administration for Strategic Preparedness and Response (ASPR), an operating agency of the Department of Health and Human Services (HHS). But according to GAO, in evaluating offerors under its solicitation, here, GSA failed to provide offerors with the meaningful discussions required by the FAR. So, GAO sustained the protest and recommended that GSA: reopen the procurement to conduct meaningful discussions with offerors, accept and evaluate revised proposals after doing so, and make a new award decision on that basis. GAO’s decision in Life Science Logistics, LLC, B-421018.2 (Apr. 19, 2023), involved a solicitation issued by GSA, on behalf of the ASPR agency of the HHS, seeking a contractor to provide a fully-managed service solution to the strategic national stockpile. By way of brief background, the ASPR is the agency that “leads the nation’s medical and public health preparedness for response to, and recovery from, disasters and public health emergencies[.]” A key component of the ASPR’s mission is this strategic national stockpile, “which contains the nation’s largest supply of potentially life-saving pharmaceuticals, medical supplies, medical equipment, and emergency supplies[.]” GSA’s solicitation sought warehousing services and deployment services “for pharmaceutical products and disaster relief supplies and equipment intended to support government disaster relief and preparedness efforts.” Specifically, it sought a contractor to provide ASPR with “the necessary expertise with suitable storage, management of medical products, monitoring, logistics, reporting, and emergency staging for delivery of government-provided medical supplies for a national emergency at Site F.” GSA issued the solicitation under Federal Acquisition Regulation (FAR) parts 12 and 15, contemplating award of a contract with a five-year base performance period and five one-year option periods. The solicitation said award would be made using a best-value tradeoff based on three non-price factors, in descending order of importance: (1) technical approach; (2) management approach; and (3) past performance. And it said that all nonprice evaluation factors, when combined, would be considered significantly more important than price. The solicitation said a proposal receiving a rating of “not acceptable” for any factor would be ineligible for award, and that GSA would not evaluate any price proposals if the corresponding technical proposal failed to receive an overall technical rating of at least “acceptable.” The solicitation said that GSA’s intention was to make this award without conducting discussions but that GSA also “reserved the right to hold discussions if it determined during the evaluation of proposals that discussions were necessary.” GSA received two timely proposals for the solicitation. GSA conducted a conformance check of the two proposals, convened a Q&A session with each offeror, established a competitive range, and held discussions with both offerors. As relevant to the instant protest, GSA’s discussions with the protester only covered GSA’s “concerns regarding potential contamination of [protester]’s proposed site, schedule slippage related to possible excavation, and the rates for two labor categories.” After discussions, GSA reviewed the two offerors’ proposals and discussion question responses and assigned each offeror adjectival ratings. The protester was initially rated: Good for its technical approach; Excellent for its management approach; Acceptable for its past performance; and Good overall. Its evaluated price was $198,444,382. And the awardee was initially rated: Excellent for its technical approach; Excellent for its management approach; Excellent for its past performance; and Excellent overall. And its evaluated price was $236,437,623. Upon the filing of a timely protest at GAO, GSA took voluntary corrective action to amend the solicitation, solicit proposal revisions, conduct a new evaluation, and make a new award decision. So, the initial protest was dismissed accordingly. During its corrective action, GSA issued solicitation amendment 3, revising the solicitation’s statement of work, instructions, and evaluation criteria. Specifically, it “added a requirement to submit standard blueprints for the proposed facility on 24-inch by 36-inch paper, in color, sufficiently detailed to depict the solicitation requirements.” Amendment 3 was also issued with a cover letter stating that GSA was requiring the complete resubmission of all proposals–noting that any prior proposal submissions would not be reviewed as part of GSA’s reevaluation. It also stated that GSA again reserved the right to make award from the revised proposals without discussions. GSA received proposals from the same two initial offerors, and the protester’s revised proposal was not materially different than its initial proposal. GSA again performed a conformance check, evaluated the new proposals, and held virtual Q&A technical clarification sessions with each offeror. But this time around, GSA did not engage in discussions with either offeror. This time, the protester was rated: Not Acceptable for its technical approach; Excellent for its management approach; Acceptable for its past performance; and Not Acceptable overall. And its price was not evaluated based on the assigned ratings from the reevaluation. The awardee, this time around, was rated: Excellent for its technical approach; Excellent for its management approach; Acceptable for its past performance; and Excellent overall. And its evaluated price from the reevaluation was $238,674,507. For its technical approach, GSA assigned the protester’s proposal four significant weaknesses and two weaknesses based on: (1) the security drawings lacking the required specifications and details; (2) failure to provide the necessary access and egress points in the facility; (3) failure to provide multiple routes to the highway system; and (4) failure to provide sufficient accessibility to the parking lots. Specifically, GSA said the protester failed to show adequate understanding the facility space requirements, submitted drawings omitting critical details of the security requirements, and failed to “depict a posture of understanding the complexities of delivering the complex facility conditioning required of ASPR’s mission.” Because its technical approach was found unacceptable, the protester’s price was not evaluated, and GSA did not conduct a best-value tradeoff. Instead, GSA again made the award to the initial awardee. Upon GSA’s re-award of the solicitation to the awardee, the protester filed another timely protest at GAO challenging GSA’s re-evaluation and award decision. Specifically, the protester challenged GSA’s evaluation of its technical proposal, arguing that its initially-submitted and latter technical proposals were not materially different, and “because GSA failed to raise in discussions during the initial evaluation the significant weaknesses that resulted in its proposal being rated as not acceptable in the subsequent evaluation, it did not conduct meaningful discussions.” In response, GSA disputed the assertion that the protester’s latter proposal was “materially unchanged” from its initial proposal. GSA also argued that: it was not required to provide the protester with meaningful discussions because its corrective action evaluation was to be “de novo,” meaning it was to be a new evaluation or an evaluation “from the beginning”; and it had warned offerors via the cover letter to amendment 3 that GSA was not intending to conduct discussions. GAO began its discussion with some long-standing, more general rules regarding agency discussions, rooted in the FAR and GAO precedent, stating: To be meaningful, discussions must lead an offeror into those areas of its proposal that require modification, amplification, or explanation. At a minimum, the agency must discuss all deficiencies, significant weaknesses and adverse past performance information to which the offeror has not had an opportunity to respond. Then, turning to the facts of the instant protest, GAO covered what an agency is required to do in this regard when it requests and re-evaluates revised proposals after a corrective action (or similar agency action), stating: When an agency seeks revised proposals, its reevaluation may identify flaws in a materially-unchanged proposal that the agency would have been required to discuss with the offeror, had the flaws been identified when the proposal was initially evaluated. In that situation, the agency must reopen discussions in order to disclose its concerns, thereby giving all offerors similar opportunities to revise their proposals. GAO elaborated on this requirement, stating: In this context, the requirement to reopen discussions is predicated on the fact that the underlying evaluated concern should have been apparent to the agency when it initially evaluated proposals prior to conducting discussions. For example, we have sustained protests for failing to reopen discussions where the agency’s initial evaluation was inconsistent with evaluation criteria or otherwise inadequate. Then, applying these standards to the case at hand, GAO explained: Here, as discussed above, when GSA evaluated the protester’s [initial] proposal, the agency rated the proposal as good under the technical approach factor and did not assess any significant weaknesses. Then, when the agency evaluated [protester]’s (essentially unchanged) [latter] proposal, [GSA] assessed four significant weaknesses and rated the proposal as not acceptable under the technical approach factor. Despite GSA’s argument that the initial and latter proposals are materially different, it is undisputed that the content giving rise to the significant weaknesses was present in both proposals but overlooked in the prior evaluation. In support of these findings, GAO specifically noted GSA’s failure at the protest hearing to identify any material changes between protester’s initial and latter proposals in regard to several of the specifications. GAO also pointed out GSA’s response to the question of why the issues giving rise to the Not Acceptable rating in the latter proposal were not taken into account in evaluation of the initial proposal–to which GSA responded: “Because we realized that we said that we were going to evaluate it in a specific way, but we weren’t checking for all the details that we should have been.” As such, GAO noted there was no dispute of the fact that the drawings in the protester’s proposal that gave rise to the significant weaknesses were “materially the same in both proposals.” GSA, instead, argued that protester included in its latter proposal an aerial photograph of the site at issue that ultimately resulted in GSA assessing the three significant weaknesses. It was this aerial photo, according to GSA, that made the issues “apparent for the first time.” But GAO was not buying it. GAO explained that GSA had already acknowledged multiple times that the initial proposal drawings showed the same issues and same failures to meet the solicitation’s access/egress requirements. And thus, GAO said that the access/egress-based significant weakness raised by GSA in its reevaluation should have been “apparent without the addition of the aerial photo,” and GAO also said, “the same reasoning applies to the significant weaknesses that pertain to accessibility of the parking lot and the number of routes to the highway system from the site.” GAO then turned to GSA’s second argument–that it was not required to open new discussions after its corrective action “because the corrective action evaluation was a ‘de novo‘ evaluation[.]” In that regard, GAO found “the agency’s attempt to negate its obligation to provide meaningful discussions on this basis unavailing.” GAO further explained: While the agency may have intended to restart the competition entirely anew, this was not conveyed to the offerors. The agency only instructed offerors to submit new proposals and advised that prior proposal submissions would not be reviewed as part of the reevaluation. There was nothing about disregarding the initial round of discussions with [protester], which identified some areas of concern with [protester]’s proposed approach, but not others. As such, because the issues giving rise to the significant weaknesses in the protester’s proposal were apparent in both the initial and latter proposals–but GSA did not advise the protester of the significant weaknesses in its initial proposal–GAO found that GSA’s discussions were not meaningful. And it sustained the protest on that basis, recommending that GSA: reopen the procurement; conduct “appropriate and meaningful discussions” with both offerors; request and evaluate revised proposals; and make a new award decision. * * * Given the amount of discretion GAO typically affords contracting agencies regarding the methods and procedures they choose to utilize in any given evaluation, this GAO decision sets an important boundary on that discretion. Where an agency does decide to conduct discussions with offerors at any time during its evaluation or reevaluation, those discussions must be meaningful–(at a minimum) pointing offerors to any deficiencies, significant weaknesses, or adverse past performance information apparent to the agency at that time. Indeed, even an agency’s corrective action, solicitation of revised proposals, and/or purported “de novo” evaluation of such revised proposals does not relieve agencies of the requirement to make any discussions it conducts meaningful. Questions about this post? Or need help with a government contracting legal issue? Email us. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post GAO Sustains Protest to GSA Strategic National Stockpile Acquisition Based on Agency’s Failure to Conduct Meaningful Discussions first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  25. Happy Friday! We hope you had a great week and can take time to enjoy your weekend. We’ve been receiving a lot of rain here in the Midwest lately. The rain gauge was completely full and topped out at 4 1/2″ in a 12 hour span of time, this past week. Everything outside is looking beautiful and I’m guessing there will be a lot of lawn mowing going on this weekend. We’ve included several articles that hopefully provide some good information concerning federal government contracting this week. Enjoy your weekend! Murky Laws Keep Contractors Wary of Losses in Next Debt Crisis [BlmLaw] President Biden, House Speaker McCarthy Reach Deal on Borrowing Limit [GovConWire] DISA’s plan to solve the facility clearance conundrum for small businesses [FedNewsNet] Biden and McCarthy reach a final deal to avoid US default and now must sell it to Congress [FedNewsNet] Agencies launch initiative to better identify minority-owned contractors [NextGov] GSA, SBA to Boost Contracting Opportunities for 8(a) Firms via Revised Partnership Agreement [GovConWire] What’s in that 99-page debt ceiling deal for contractors? [FedNewsNet] Don’t Miss These 3 Key Cyber Contract Opportunities [GovConWire] Former chief scientist for GTRI pleads guilty to conspiring to defraud Georgia Tech and the CIA [DoJ] GSA and SBA launch initiative to broaden small federal contracting landscape [FedScoop] USDA plots departmentwide cloud move with STRATUS contract [FedScoop] Agencies launch initiative to better identify minority-owned contractors [FCW] The post SmallGovCon Week in Review: May 29- June 2, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
×
×
  • Create New...