Government Contracts Monitor

SBA’s OHA Reaffirms that Prior Favorable Size Determinations Are Not Binding in Subsequent Size Protests.

November 19, 2013

In a recent size appeal SBA’s Office of Hearings and Appeals (“OHA”) reaffirmed that prior favorable size determinations are not binding on either an Area Office or OHA in a subsequent case, and each size protest must be decided based upon the facts and circumstances of the particular protest. Hopefully, this ruling will put to bed the continuing notion of some contractors that they no longer…

Remember: If SBA Delays in Deciding a Size Protest, It May Mean You Lose Even if You Win

November 12, 2013

In the recent case of TrustComm, Inc., B-408456 (Comp. Gen. Sept. 20, 2103), the Government Accountability Office (GAO) provided another reminder that prevailing on a size protest before the Small Business Administration (SBA) may not alter the contract award if SBA’s size protest decision comes too late.

The case involved a 100% small business set-aside for communications equipment for Coast…

GAO Sides with the FAR Council: The Small Business Act’s Set-Aside Provisions Do Not Apply Outside the United States

October 9, 2013

A recent General Accountability Office (GAO) case resolves an ongoing dispute between the Small Business Administration (SBA) and the Office of Federal Procurement Policy (OFPP) concerning the application of set-aside rules outside the United States.  It also offers some interesting insight into the GAO’s approach to resolving inter-agency squabbles concerning statutory interpretation.

In …

Past Performance: Do your Subs and Key Personnel Count or Not?

October 3, 2013

HK Consulting (HK) protested the terms of a Request for Proposals (RFP) alleging it unduly restricted competition.  What was the problem?  The RFP stated that the agency would not consider the past performance of an offeror’s proposed subcontractors or key personnel.  In HK’s view, this past performance criteria was unreasonable and unduly restrictive of competition.  But…

Note to Self: Make Sure You Actually Have a Contract Before You File a Claim

September 30, 2013

A recent Armed Services Board of Contract Appeals (ASBCA) case serves as a reminder of the central role that contract performance can play in determining – or undermining – entitlement under a contractor’s claim.  It also presents a laundry list of ill-advised actions that contractors should avoid.

TTF, L.L.C., ASBCA Nos. 58495, 58516 (Sept. 3, 2013), involved a total HUBZone set-aside for…

FAR Interim Rule Eliminates Size Caps on WOSB Contract Set-Asides

September 6, 2013

As discussed previously here, the U.S. Small Business Administration (“SBA”) issued an Interim Final Rule, effective May 7, 2013, implementing Section 1697(a) of the National Defense Authorization Act for Fiscal Year 2013 (“NDAA”), and eliminating the former statutory caps on the value of contracts that can be set-aside for competition among Women-Owned Small Businesses…

SBA Announces FY12 Small Business Goal Shortfalls; Information You Can Use in Marketing, Whether You Are Small or Large

September 4, 2013

The U.S. Small Business Administration (“SBA”) recently announced its Fiscal Year 2012 (“FY12”) small business goaling results.  To no one’s great surprise, the federal government again fell short, for the seventh straight year, of its goal to award 23% of eligible contracts to small businesses.  Much of the commentary on this shortfall has focused on either bemoaning the fact that…

In Order to Succeed, Protests Relying on a Limitation on Subcontracting Clause Must Show a Lack of Compliance on the Face of the Proposal

August 22, 2013

In two recent protests at the Government Accountability Office (GAO), the protester alleged that the awardee’s quotation violated the applicable limitation on subcontracting because awardee could not or would not perform the required portion of the contract. In both cases, GAO made clear that such protests cannot succeed unless the protester can demonstrate that the quotation shows, on its face,…

SBA’s Final Size and Status Integrity Rule Is More Nuanced but It Still Has Teeth

July 23, 2013

The Small Business Administration (SBA) recently issued a final rule strengthening penalties for small businesses that misrepresent their size and/or special socioeconomic status.  As previously explained here, the proposed rule adopted the aggressive approach manifest in the small business size and status integrity provisions of the Small Business Jobs Act of 2010.  While the new rule largely…

Common Ownership = Common Control = Affiliation

July 10, 2013

In the recent size appeal decision, Marple Fleet Leasing, LLC, SBA No. SIZ-5479 (June 24, 2013), the SBA’s Office of Hearings and Appeals (“OHA”) reiterated the well-established rule that affiliation may be based solely on ownership, even in the absence of any other independent grounds.  If there were any doubt on this point previously (and there shouldn’t have been), there is certainly…

Be Careful What You Say In Your Teaming Agreements About Exclusivity

July 2, 2013

In a rare federal appellate decision involving the interpretation of a government contractor teaming agreement, the U.S. Court of Appeals for the Fifth Circuit upheld the agreement’s exclusivity requirements in X Technologies Inc. v. Marvin Test Systems, Inc., No. 12-50230 (5th Cir. June 11, 2013).

The U.S. Air Force (“USAF”) issued a small business set-aside solicitation for new testing…

Update: The Court of Federal Claims Overturns the VA OSDBU and Affirms Company’s VOSB Status

July 1, 2013

As previously reported here, the Court of Federal Claims has not been happy with the Department of Veterans Affairs Office of Small and Disadvantaged Business Utilization (“OSDBU”).  In January, the Court granted a preliminary injunction to the protestor in KWV, Inc. v. United States, No. 12-882C, re-instating the protestor’s status as a Veteran Owned Small Business…