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Award to company without a license for the NAICS code

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Contracting officer awarded a contract under NAICS 541110 (office of Lawyers) to company that is not a law firm.  

This company did list 541110 in their SAM profile, however do not hold a professional license in any jurisdiction where they are located.

Can I file a status protest with GAO, or a Size appeal with SBA?

 

 

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I'm interested in this, if for no other reason than I'm curious.  On one side I believe that the companies under this NAICS should be a law firm.  On the other side if the company provides these services via their employees, maybe it doesn't have to be a "law firm" itself.  I would contact your local SBA rep to get their read and then protest (or not) accordingly.  When you find out, please come back and let us know!  

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JAG, from what you have written why would you consider filing a status protest with GAO?  What status are you talking about and why does GAO have jurisdiction to hear such a protest?  Also, file a size protest with the SBA?  You didn't say anything about the contractor not meeting any size standard. 

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6 hours ago, JAG said:

Contracting officer awarded a contract under NAICS 541110 (office of Lawyers) to company that is not a law firm.  

This company did list 541110 in their SAM profile, however do not hold a professional license in any jurisdiction where they are located.

Can I file a status protest with GAO, or a Size appeal with SBA?

 

 

The NAICS Code 541110 does not obligate a firm to possess a professional license. The code simply establishes the small business size standard of $11 million. If you go to the SBA, the SBA will not investigate the firm's possession of a license. It will determine only if the firm meets the $11 million standard.

Did the solicitation require the firm to have a professional license? If it did contain the requirement, you can protest  to the contracting officer or to the GAO.

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Interesting points.  However, this NAICS is specifically for office of lawyers.  You cannot be a lawyer without a license.  Performing legal services without a license is considered practicing law without a license, and illegal.  Secondly, lawyers are not permitted to engage in a business relationship with a non-lawyer where the services offered are legal services.  It's an ethics rule to prevent non-lawyers from influencing the legal advice provided to clients.  It's grounds for disbarment.

Similarly, there is one for CPA's 541221 and Physicians 621111, however their rules are slightly different, with physicians be more closely aligned with lawyers.  CPAs need to own 51%.  Engineers/Architects, as well.  These are highly specialized licenses.

Here, there are other NAICS codes available for non-lawyer legal services (ie paralegals/stenographers).  The contracting officer chose this particular NAICS.  Either they intended to have lawyers perform the services, or they chose the wrong NAICS.  

Additional thoughts?

 

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On 9/7/2017 at 11:54 PM, JAG said:

Additional thoughts?

Quote
How do the NAICS Codes affect Federal Procurement and Regulatory Activities, such as those carried out by the EPA, OSHA, the DoD, and the GSA?

NAICS was developed specifically for the collection and publication of statistical data to show the economic status of the United States.

The NAICS categories and definitions were not developed to meet the needs of procurement and/or regulatory applications.

https://www.naics.com/frequently-asked-questions/

If local, state or federal laws require the firm to possess a license, tell the contracting officer that the firm will not be able to perform the contract. Don't bother mentioning the NAICS code unless the procurement was set aside for small businesses and the firm does not meet the $11 million standard. 

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A different look…..

The question you have raised would possibly relate to the “responsibility” of the contractor to perform the work.  Adding in the mention of “small business” suggests the solicitation/contract was seta-side for small business.   As such a Certificate of Competency  (COC) is thrown in the mix.  References -  both FAR Part 9.1 regarding responsibility and FAR 19.6 regarding COC.    The matter is  whether or not the firm has “the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them” to perform the work.  

However as your original post suggests  a contract has been awarded which constitutes a CO’s affirmative determination of responsibility.  Protesting a CO’s affirmative determination of responsibility and having GAO sustain such a protest is rare.  Reference GAO protest regulations at 4 CFR 21.5(c) as well as go here and read protest decisions related to FAR 9.1 and FAR 19.6  http://www.wifcon.com/pdbyfar.htm  

A realistic view is that it is a done deal and move on…..

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10 hours ago, JAG said:

You cannot be a lawyer without a license.  Performing legal services without a license is considered practicing law without a license, and illegal.  Secondly, lawyers are not permitted to engage in a business relationship with a non-lawyer where the services offered are legal services.  It's an ethics rule to prevent non-lawyers from influencing the legal advice provided to clients.  It's grounds for disbarment.

JAG: 

I concur with napolik and Culham, in part.  In those jurisdiction of which I am aware, law firms (businesses) are not licensed to practice law.  Individuals are licensed.  That stated, if the business is violating that rules for the practice of law applicable to the State or Territory in which they operate, I would recommend advising the contracting officer of your allegation that the business cannot not responsibly perform.  I wouldn't recommend simply recognizing a done deal and moving on.

Additionally, if you believe, or know, that improper conduct is occurring, have you considered reporting the conduct to appropriate prosecutor's office or disciplinary board for the Bar of the State in which the offending business is operating?  Look to your own status.  Might you have a duty to make such a report?

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On 9/7/2017 at 11:03 AM, JAG said:

Contracting officer awarded a contract under NAICS 541110 (office of Lawyers) to company that is not a law firm.  

This company did list 541110 in their SAM profile, however do not hold a professional license in any jurisdiction where they are located.

Can I file a status protest with GAO, or a Size appeal with SBA?

Your first statement is not clear. What do you mean when you say that the CO "awarded a contract under NAICS 541110"? What does "under NAICS 541110" mean?

As for you second statement, does the solicitation expressly require the provision of legal services by an attorney-at-law? If so, at what geographical location?

When you say that the "company... do not hold a professional license in any jurisdiction where they are located," do you mean that none of the owners or employees of the company are licensed to practice law?

Do the jurisdictions in which they are located require the company to have a law license of some kind, or does it require that persons in the company who practice law have a law license?

On 9/7/2017 at 8:54 PM, JAG said:

You cannot be a lawyer without a license.

A lot of people would argue with you about that. I won't, but a lot of people would. Maybe you meant that you cannot practice law without a law license.

If you were to protest, you would protest that (a) the firm is nonresponsible, or (b) that the firm itself does not meet an express requirement of the solicitation that it be licensed, or (c) that the firm's proposal is unacceptable because it does not satisfy a material requirement of the solicitation, or (d) all of the above, depending on the facts.

In re: protests against affirmative determinations of responsibility, see SaxmanOne, LLC, GAO B-414746, Aug. 22, 2107:

Quote

As a general matter, our Office does not review affirmative determinations of responsibility by a contracting officer. 4 C.F.R. §21.5(c) (2017); FCi Fed., Inc., B–408558.4 et al., Oct. 20, 2014, 2014 CPD ¶308 at 7. We will, however, review a challenge to an agency's affirmative responsibility determination where the protester presents specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. 4 C.F.R. §21.5(c); Southwestern Bell Tel. Co., B–292476, Oct. 1, 2003, 2003 CPD ¶177 at 8.

I doubt that inconsistency with the NAICS code would be grounds for protest. But who knows? You'd have to make some kind of argument.

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