Let’s suppose that, under your contract, an agency hasn’t properly paid for your work. Or the agency took actions that caused you damages. Can you run off to the Civilian Board of Contract Appeals to register your complaint and recovery your money?
Yes . . . if you’ve taken an important preliminary step: filing a claim with the contracting officer.
Agencies must draft solicitations and RFPs with enough
detail that prospective offerors can determine if they are qualified to perform
the work as well as be able to submit an educated offer.
But how much detail is the agency required to provide in a
solicitation? In some cases, GAO has allowed fairly generic language to
GAO defers to agencies on many issues related to their procurements. But GAO will intervene when an agency says one thing, in a solicitation, but does another when it evaluates proposals. In other words, GAO will sustain protests when the agencies disregard their own evaluation criteria outlined in a solicitation.
Otherwise, the agency might–even inadvertently–evaluate proposals unequally–a situation that a just and fair procurement system must avoid.
The Small Business Runway Extension Act, signed into law earlier this week, changes the small business size calculation under revenue-based NAICS codes from a three-year to five-year average.
The new law has sparked a great deal of discussion in the government contracting community, with some commentators pointing out that not all small businesses will benefit. But how does the SBA–the agency tasked with implementing the new law–feel?
Well, according to commentary published earlier this year, the SBA thinks the five-year period is a bad idea.
The House and Senate have passed the “Small Business Runway Extension Act of 2018,” which appears poised to become law in the coming days. As my colleague Matt Moriarty has written, the bill would amend the SBA’s small business size rules to use a five-year average, instead of a three-year average, in calculations using receipts-based size standards.
The purpose of the bill is to help contractors avoid becoming “other than small” following a period of quick growth, but not all companies will benefit. For companies with declining revenues, the bill may backfire, causing those companies to be stuck as large businesses longer.
Unless a solicitation for a fixed-price contract provides that the agency can conduct a price realism analysis, it can’t. Even so, agencies sometimes perform this analysis without alerting prospective offerors of the possibility.
If they do, however, the ground is fertile for a protest.
The FAR Council’s proposed update to the limitations on subcontracting, and the DoD’s subsequent FAR deviation, have been met with widespread approval by small contractors.
But for HUBZone Program participants, the proposed rule and DoD deviation contain a glaring problem: a requirement that the HUBZone member of a joint venture take sole responsibility for meeting the applicable limitations on subcontracting. This requirement, which doesn’t apply to joint venturers in other socioeconomic programs, is unfair to HUBZones, and at odds with SBA regulations.