Non-Manufacturer Rule Applies Regardless of NAICS Code, Court Rules

The non-manufacturer rule applies only when a set-aside solicitation is designated with a manufacturing NAICS code, right?  Not anymore.

A recent Court of Federal Claims case effectively invalidated SBA’s regulations that limit the application of the non-manufacturer rule to procurements for supplies.  Instead, the Court held, the Small Business Act requires that the non-manufacturer rule apply any time that the Government buys manufactured products–regardless of the NAICS code assigned to the procurement.

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Affiliate’s Schedule Contract Didn’t Count, Says Court

An offeror was not entitled to hold itself out as having a Federal Supply Schedule contract by virtue of its relationship with an affiliated company that held the FSS contract.

In a recent bid protest decision, the Court of Federal Claims held that a FSS award was improper where the awardee’s affiliate–but not the awardee itself–held the proper FSS contract.

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Contracting Officer’s Death Didn’t Waive Claim Requirement

A Contracting Officer’s death did not waive the requirement that a contractor file a claim with the agency before bringing its claim to federal court.

In a recent decision, the Court of Federal Claims held that a contractor was not entitled to forego the claim requirement because of the Contracting Officer’s death–even though the agency did not appoint a replacement.

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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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