March 2024 Newsletter
Koprince McCall Pottroff LLC
Legal Solutions for Government Contractors
Why File: A GAO Pre-Award Protest
?For our third entry in our “Why File” series, we will be covering one of the two big bid protest routes, a “pre-award” Government Accountability Office (GAO) bid protest. Most contractors are fairly familiar with GAO bid protests that occur after an agency makes their award decision (more on this in a later “Why File” post). But contractors may be less familiar with pre-award bid protests at GAO. We will cover some of the most common reasons pre-award protests are filed at GAO, based primarily on contracting regulations and bid protest cases. As always, please keep in mind, despite the commonalities discussed below, the question of whether to protest is highly fact-specific and demands careful consideration. Read More Here
MyGovWatch YouTube Video Available Now!
?Join our attorneys, Nicole Pottroff and John Holtz, on the latest edition of MyGovWatch, now on YouTube. This podcast, hosted by Nick Bernardo, covered a wide variety of current government contracting topics and answered all the right questions. From the migration of the Veteran Small Business Program from the VA to the SBA (and the first appeal reviewing SBA’s SDVOSB “grace period”)–to the most-recently updated size standards and the assignment of (the often incorrect) NAICS codes to federal contracts–all the way to SBA’s 8(a) Program and the effects of the recent federal court decision in Ultima –and everything in between.
?You can watch this informative video here.
OHA Sustains Status Protest: Self-Proclaimed SDVOSB Awardee Not Certified by VetCert, Not Eligible for SBA's Grace Period, and Not Veteran Owned or Controlled
?In Mckenna Brytan Indus. LLC, SBA No. VSBC-334, 2023 (Feb. 8, 2024), the U.S. Small Business Administration (SBA) Office of Hearings and Appeals (OHA) sustained the Service-Disabled Small Business (SDVOSB) status protest of BTNG Enterprises, LLC (BTNG). In its decision, OHA reiterated the two current regulatory options for calling yourself an “SDVOSB” concern: the first, is having your SDVOSB application officially approved by the SBA and your company listed in the SBA’s Veteran Small Business Certification Program (VetCert) data base; and the second, is having submitted your complete application to SBA through VetCert prior to December 31, 2023, and be currently waiting for approval or denial. Here, OHA was unable to conclude that BTNG had done either of those things–despite looking for evidence of eligibility from the SBA and from BTNG itself. Read More Here
Shopping for a New Small Business: How Acquisitions Affect Size Status for Multiple-Award Contracts
?As federal contracts attorneys, we often get questions about what happens in the event of an acquisition of a small business. Reporting requirements, whether before or after an acquisition, tend to vary from one type of small business socioeconomic program to another. And there are other considerations such as whether the small business in question is the one being acquired or the one acquiring another small business and the timing with regard to proposal submission, contract performance, task orders, ?and other variables. Taking those together, and it can be, well, confusing, to say the least. In the case of Forward Slope, Inc., SBA’s Office of Hearings and Appeals (OHA) took a?look at some of these variables to determine how an acquisition can affect the size of a concern awarded a multiple award contract. Read More Here
A Bridge (Not) Too Far: Prohibition on Dividing up Contracts to get Under 8(a) Sole Source Dollar Limit Doesn't Apply to Bridge Contracts
by John Holtz
?Under 13 C.F.R. § 124.506, if an 8(a) contract price would exceed a certain threshold ($7 million for manufacturing contracts, $4.5 million for others), in most cases, the agency must compete the set-aside. ?13 C.F.R. § 124.506(a)(5) is a provision meant to close up what otherwise would be a loophole in the rules. It states that “[a] proposed 8(a) requirement with an estimated value exceeding the applicable competitive threshold amount may not be divided into several separate procurement actions for lesser amounts in order to use 8(a) sole source procedures to award to a single contractor.” But this rule does not apply in all circumstances. In particular, it does not apply to bridge contracts. Read More Here
Each Friday,?SmallGovCon?provides a snapshot of some of the week’s top news and commentary from the government contracting community.
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Agency Could Not Accept Price Above Awardee's FSS Price, GAO Says
by Steven Koprince (guest contributor)
If you feel like prices for just about everything are going up, you’re not alone. I recently got my annual property tax bill, and the first thing I did (after recovering from a brief fainting spell) was to start Googling to find out how much I could get for one of my kidneys on the black market.
I get the feeling that my county tax assessor would consider anything less than a double digit increase to be an embarrassing professional failure. In federal government contracting, however, a contractor may not have the same leeway to raise its prices. In a recent bid protest decision, the GAO held that when an agency sought to procure services using the Federal Supply Schedule, the agency could not agree to pay a price higher than the price set forth in the offeror’s underlying FSS contract. Read More Here
领英推荐
Adverse Inference, the Wrong Way to Lose a Size Protest
by Shane McCall
An adverse inference is a penalty that the Small Business Administration (SBA) can enforce as part of a size protest. During a size protest determination, SBA will ask the protested company lots of questions. Sometimes, a protester will not answer those questions, either on purpose or due to oversight. Depending on the circumstances, SBA can apply an adverse inference if a protested company fails to respond to questions. If SBA applies an adverse inference, that means that the SBA Area Office will determine that the information that was not provided would prove that the company is not a small business. A recent decision reminds us about this penalty. If you are in a similar situation, reach out to a firm like ours to help think of a way to respond to SBA. Read More Here
2024 NDAA will Update DFARS to Require Evaluation of Small Business Affiliate Past Performance
The 2024 NDAA is directing quite a change in past performance evaluations for offerors in Department of Defense acquisitions. Historically, an offeror’s affiliate’s past performance is not automatically considered along with the offeror’s proposal, although an agency could consider it. The 2024 NDAA, though, has actually mandated a change within the DFARS that will up-end this long-held tenet for Department of Defense contracts.
Some background is probably warranted before discussing the change that the 2024 NDAA will cause for DoD acquisitions. We here at SmallGovCon discuss size and affiliation quite often (keep in mind that “affiliation” for federal contracting is different than “affiliation” in private industry). Read More Here
GAO: Brand Name or Equal RFQ Must Explicitly State All Salient Characteristics
Solicitations for brand name or equal products are commonly used by contracting officers to ensure that the products procured via the contract meet minimum requirements. However, as one agency found, the salient characteristics required to meet the minimum requirements must be explicitly stated in the solicitation. And, evaluating the product on any characteristics that are not included in the solicitation, even if incorporated by reference to the name brand item, can lead to an improper exclusion of offerors from competition. Read More Here
UPCOMING EVENTS:
Event: Connecticut APEX Accelerators
When: March 21, 2024 Time: 10:00am-12:00pm CST
Topic: Still a Game Changer: The SBA Mentor-Protégé Program
Registration:?Coming Soon
Q&A: Stephanie Ellis
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When: March 20, 2024 Time: 10:00-11:00am CST
Topic: Small Business Certifications
Registration:?Here
Presenters: Nicole Pottroff & Gregory Weber
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Event: Govology Webinar
When: March 27, 2024 Time: 1:00-2:30pm EST
Topic: Navigating Government Regulations in Solicitations & Contracts
Registration:?Here
Presenter: Steven Koprince
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