SBA Certificate Of Competency Cannot Cure Incomplete Proposal

The SBA’s Certificate of Competency procedures cannot be used to cure a small business’s incomplete proposal.

In a recent bid protest decision, the U.S. Court of Federal Claims held that the procuring agency could not lawfully cure a firm’s omission of mandatory proposal information by submitting the matter to the SBA for a Certificate of Competency.

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SDVOSB Not Required To Inform Agency Of Veteran’s Death, Says Court

A SDVOSB was not required to inform a procuring agency that the service-disabled veteran owner had passed away following submission of the SDVOSB’s proposal, according to a recent decision of the U.S. Court of Federal Claims.

In NEIE, Inc. v. United States, No. 13-164 C (2013), the Court sharply criticized the U.S. Environmental Protection Agency for unjustifiably maintaining that the SDVOSB in question was required to inform the EPA of the veteran’s death, even though there is no such requirement in the regulations and the veteran’s death had no impact on the SDVOSB’s contract eligibility.

The NEIE case is not only a good reminder of when a SDVOSB must be eligible to receive a non-VA SDVOSB set-aside (typically, at the time of the initial priced offer), but a troubling example of an over-zealous procuring agency misinterpreting and misapplying the SDVOSB regulations to the detriment of an eligible SDVOSB.

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Agencies Need Not Mention High Price In Discussions, Says Federal Court

A procuring agency need not inform an offeror, as part of discussions, that the offeror’s price is higher than those of its competitors.  According to a recent ruling of the Court of Federal Claims, the only exception is if the offeror’s price is so high as to preclude award to the offeror–an “unreasonable” price, in FAR parlance.

The Court’s decision in Lyon Shipyard, Inc. v. The United States (Nov. 27, 2013) comes on the heels of a recent GAO decision reaching a similar result.

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SDVOSB Program: VA Must Pay Attorneys’ Fees in Ownership Transfer Case

The U.S. Court of Federal Claims has ordered the VA to pay attorneys’ fees to Miles Construction, LLC stemming from the Court’s February decision that the company’s  “right of first refusal” provision did not render it ineligible for the VA’s SDVOSB program.

In ordering the VA to pay attorneys’ fees, the Court held that the VA’s defense of its broad interpretation of “unconditional ownership” was not substantially justified–but also suggested that the Court might not reach the same result under the SBA’s SDVOSB rules.

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Task Order Procurement Decision Not Protestable, Says Federal Court

The U.S. Court of Federal Claims lacks jurisdiction to hear a challenge to an agency’s decision to procure services by way of a task-order competition under a government-wide acquisition contract.

In MORI Associates, Inc., No. 13-671C (2013), the Court held that it lacked authority to consider whether an agency’s decision to procure services by way of a task order competition under a GWAC–rather than under the GSA Schedule–was improper.

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Agency Erred By Not Clarifying Clerical Error, Says Federal Court

A procuring agency erred by failing to seek clarification of an obvious clerical error in a small business’s proposal, according to a recent ruling by the U.S. Court of Federal Claims.

In BCPeabody Construction Services, Inc., No. 13-378C (2013), the Court held that although procuring agencies have discretion as to whether to clarify clerical mistakes, that discretion is not unlimited–and that failing to clarify an obvious mistake may be an abuse of discretion.  It’s a ruling that should be cheered by small government contractors.

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SmallGovCon Week in Review: September 16-20, 2013

In this week’s SmallGovCon Week In Review, the American Legion asks an appellate court to overturn the infamous Kingdomware SDVOSB decision, the Office of Management and Budget prepares for a potential government shutdown, a blogger writes that despite new rules, small subcontractors may be mistreated by large primes, and much more.

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