SmallGovCon Week in Review: October 15-19, 2018

I had a great time last week at the National HUBZone Conference in Chantilly, Virginia. If you were there, please reach out to say hi!

In this week’s edition of SmallGovCon Week In Review, we’ll look at GSA’s new eBuy pilot program, insight into the SBA OIG’s 8(a) eligibility findings, new WHD-compliance tools from the U.S. Department of Labor, the impact of debriefings on bid protests, and much more.

Have a great weekend!

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GAO: No Attorneys’ Fees When Arguing that Corrective Action is a Ruse

When pursuing a bid protest before the Government Accountability Office, it is never a good idea to presume that you’ll get your attorneys’ fees paid by the agency.

If you are fortunate enough to recover attorneys’ fees, GAO’s general standard is to recommend paying the fees associated with all the protest grounds being pursued, whether or not they were meritorious. But although this is the general posture, it is not always the case.

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Federal Circuit Affirms SDVOSB Priority Over AbilityOne

Ever since the Supreme Court’s Kingdomware decision was handed down in 2016, an important question has remained: who has priority at the VA for items on the AbilityOne List?

Yesterday, the Federal Circuit Court of Appeals provided the answer. The VA is required to prioritize service-disabled veteran-owned or veteran-owned small businesses when the Rule of Two is met, even when it buys items on the AbilityOne List.

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Small Business Set-Asides Not Required Under NETCENTS-2, Says GAO

The Air Force’s large NETCENTS-2 IDIQ vehicle did not require orders to be set-aside under the small business pool, except for orders valued between the micro-purchase threshold and simplified acquisition threshold.

In a recent decision, the GAO held that although the NETCENTS-2 contract in question says that Contracting Officers “should” perform a “rule of two” small business set-aside analysis for orders valued over the simplified acquisition threshold, it does not require that such an analysis be performed–meaning that Contracting Officers can validly award such orders to large businesses, even if two or more small business NETCENTS-2 holders exist.

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GAO: Protester Identity Must Match Offeror Identity

In order to protest a procurement at GAO, the protester must be an “interested party.” An interested party is an “actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by the failure to award the contract.”

But does the identity of the protester have to be the same as the offeror under the procurement? GAO recently offered some guidance on that question.

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GAO: Bid Was Responsive Despite Missing Information Regarding Buy American Act Exception

The Buy American Act generally requires construction contractors to use domestically-made materials, unless an exception applies. One important exception allows contractors to use foreign-produced materials when the cost of domestic material is six percent more expensive. To quality under this exception, however, a contractor must provide certain information outlined by the FAR with its bid.

But what if a contractor doesn’t provide every piece of required information? Is its proposal automatically doomed as non-responsive? Not necessarily. A recent case shows that offerors may have some wiggle-room.

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SmallGovCon Week in Review: October 8-12, 2018

As the workweek comes to a close, our thoughts are with everyone who has been affected by Hurricane Michael.

In government contracts news, there was plenty happening this week.  In the latest SmallGovCon Week in Review, three people have been indicted on charges relating to procurement fraud, a new study creates a “sweetheart index” to analyze whether political donations affect government contract awards, IBM is the second company to file a pre-award protest against the Pentagon’s cloud contract, and much more.

Have a great weekend!

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