Agencies Cannot Circumvent AbilityOne by Bundling, GAO Confirms

The FAR mandates that agencies use the AbilityOne program to award contracts for items on the AbilityOne procurement list to qualified nonprofits. The purpose of the program is to increase employment and training opportunities for persons who are blind or have other severe disabilities.

With rare exceptions, when an item is on the AbilityOne procurement list, an agency has no choice–it must purchase through AbilityOne, even where the AbilityOne items are included in the procurement of larger services.  The GAO recently sustained a protest where the GSA awarded a courthouse lease without requiring that the associated custodial services be procured from an AbilityOne nonprofit.

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“Deemed Withdrawal” of Agency-Level Protest Sinks Subsequent GAO Protest

Readers of this blog will know that the GAO interprets its protest timeliness rules quite strictly. A recent GAO case provides us with an opportunity to review a nuanced piece of those timeliness rules. Specifically, how withdrawal of an agency-level protest affects the deadline to file a GAO protest, and what counts as a withdrawal of an agency-level protest versus an “initial adverse agency action.”

In this case, the protester lost its GAO protest rights by trying to pursue its agency-level protest with an inspector general’s office rather than with the contracting officer.

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Nonprofits Not Exempt From Affiliation Rules, Says SBA OHA

A recent SBA Office of Hearings and Appeals decision confirms that there is no exception for nonprofit organizations when it comes to affiliation issues.

In the case, SBA OHA found affiliation between a self-certified small business and a nonprofit organization based on close family members controlling both the business concern and ​the ​nonprofit.​ Adding in the receipts from the affiliated nonprofit made the business in question ineligible for small business status.

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Joint Ventures & OCIs: A Cautionary Tale

For small government contractors, joint ventures can be an important vehicle for successfully pursuing larger and more complex opportunities.  As the SBA’s All Small Mentor-Protege Program enters its second full year, the popularity of joint ventures seems to be increasing significantly.

But joint ventures aren’t immune from the FAR’s rules governing organizational conflicts of interest. In a recent decision, the GAO held that an agency properly excluded a joint venture from competition where one of the joint venture’s members–through its involvement in a second joint venture–had assisted in the preparation of the solicitation’s specifications.

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Federal Court Interprets SDVOSB “Unconditional Ownership” Less Strictly Than SBA

The Court of Federal Claims recently issued an opinion that defines “unconditional ownership” of an SDVOSB in a more relaxed manner than the SBA, creating a split of authority on the issue.

The Court, rejecting SBA precedent, held that certain restrictions on ownership of an SDVOSB by a service-disabled veteran are acceptable under the SBA’s unconditional ownership regulations. In particular, the SDVOSB company can retain a right of first refusal that would allow it to purchase the shares of the veteran upon death, incompetency, or insolvency, and that right does not result in a violation of the unconditional ownership requirement.

With the Court and the SBA’s administrative judges staking out different positions, what should SDVOSBs do?

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Protest Sustained: Unequal Discussions In $283 Million Census Task Order Award

When an agency opens discussions with offerors, those discussions must be fair.

In a recent decision, GAO recommended the reopening of competition for a contract worth up to $283 million based, in part, on a finding that an agency had engaged in misleading and unequal discussions.

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GAO: Email Delivery Receipt Didn’t Confirm Proposal Submission

You might think that if you send an email with the delivery receipt option and the delivery receipt comes back, the email was delivered. But when an offeror submits a proposal by email, does a delivery receipt mean that the agency necessarily received the proposal in its inbox?

At least under the facts of one recent GAO bid protest, the answer was “no.” In that case, the GAO held that an email delivery receipt wasn’t sufficient to demonstrate that the agency received the electronic proposal.

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