SBA OHA Decision Highlights Joint Venture “Individual Size Treatment” Rule

Posted on by by Steven Koprince

The SBA misevaluated a joint venture by basing its ineligibility decision on the joint venture’s revenues, rather than determining whether each joint venturer, individually, qualified as a small business, according to a recent decision of the SBA’s Office of Hearings and Appeals.

SBA OHA’s decision highlights what I like to call the “individual size treatment rule,” a special regulation requiring the SBA to deem a joint venture “small” under certain circumstances, even when the combined sizes of the joint venture’s members exceed the applicable size standard.

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FAA ODRA Applies SBA Ostensible Subcontractor Rule

Posted on by by Steven Koprince

The Federal Aviation Administration is exempt from the Small Business Act and the SBA’s size regulations, but this does not mean that the SBA’s ostensible subcontractor affiliation rule does not apply in FAA procurements.

In a recent decision, the FAA’s Office of Dispute Resolution for Acquisition applied the ostensible subcontractor rule–and SBA Office of Hearings and Appeals decisions interpreting that rule–in arriving at the conclusion that a contract awardee was an eligible small business.

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DOT DBE Fraud: Government Announces Two Large Settlements

Posted on by by Steven Koprince

If you are planning to defraud the U.S. Government (and I certainly hope that you are not), your best bet is to avoid the U.S. Department of Transportation’s Disadvantaged Business Entity program.

Yesterday, the Department of Justice announced that a DOT DBE subcontractor had agreed to settle “pass-through” fraud claims for $936,000.  The DOJ’s announcement comes on the heels of a June 6 press release touting a settlement of nearly $3 million, also stemming from alleged DOT DBE fraud.

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Contractor Doesn’t Use Excel, Gets Booted From Competition

Posted on by by Steven Koprince

A prospective contractor was kicked out of a competition for submitting its pricing in PDF format, instead of in Microsoft Excel files, as called for in the solicitation.

In a bid protest filed by the excluded offeror, the GAO held that the procuring agency properly deemed the offeror unacceptable for failing to use Excel.

Somewhere, Bill Gates is smiling.

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BPAs Are Not Contracts–So “Tough Luck” For Terminated BPA Holder

Posted on by by Steven Koprince

A company’s blanket purchase agreement with the U.S. Forest Service was not a “contract,” meaning that the company had no ability to file a complaint with the U.S. Court of Federal Claims for an alleged improper termination of the BPA.

In dismissing the complaint on technical grounds, the Court’s message to the terminated company was, in essence, “tough luck.”

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SBA OHA: Increased Competition Not Part of NAICS Code Decision

Posted on by by Steven Koprince

When designating the NAICS code for a solicitation, the procuring agency should not consider which NAICS code will help increase competition and decrease the risks of unsuccessful performance.

According to a recent decision of the SBA Office of Hearings and Appeals, these factors should play no bearing on an agency’s NAICS code designation.  Instead, in most cases, the agency must select the NAICS code that best describes the principal purpose of the product or service being acquired.

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NAICS Codes and GSA Schedule Orders: An Important Exception

Posted on by by Steven Koprince

A Contracting Officer must designate the NAICS code which best describes the principal purpose of the product or service being acquired, right?

Not always.  As demonstrated in a recent SBA Office of Hearings and Appeals decision, when it comes to picking a NAICS code for a GSA Schedule task order, a Contracting Officer’s choices can be quite limited–and the “best” NAICS code might not be chosen.

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