8(a) Program: Is The SBA “Searching For Reasons To Deny” Women?

The SBA’s course of conduct in reviewing the 8(a) applications of companies owned by women “gives the distinct impression that the SBA is simply searching for reasons to deny every claim” of social disadvantage made by women applicants.

These strong words come from a recent SBA Office of Hearings and Appeals decision, in which OHA again overturned the SBA’s denial of a woman-owned business’s 8(a) application.

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Forming Eight JVs Did Not Create Affiliation Between JV Members

An 8(a) protege and its mentor were not affiliated with one another, despite forming eight joint ventures over a four-year period–and winning 15 contracts with those joint ventures.

In a recent size appeal case, the SBA Office of Hearings and Appeals upheld the decision of the SBA Area Office, which found that the mentor and protege were not affiliated despite their substantial history of joint venturing.

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NAICS Code Appeals Allowed On 8(a) Set-Asides, Says SBA OHA

A NAICS code appeal can be filed even after a SBA District Office accepts the procurement for competition in the 8(a) Business Development (BD) Program.

In a recent decision, SBA Office of Hearings and Appeals rejected the argument that acceptance of a procurement into the 8(a) Program results in the approval of the NAICS code assigned to that procurement, thus preventing subsequent NAICS code appeals.  Had SBA OHA reached the opposite conclusion, the decision might have effectively excluded 8(a) contracts from the reach of traditional NAICS code appeals.

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GAO Task Order Protests: Protester’s Price Does Not Establish Jurisdiction

The GAO’s jurisdiction over task order protests turns on whether the award price of the task order exceeds $10 million–not whether the protester’s proposed price exceeds $10 million.

In a recent bid protest decision, the GAO held that it lacked jurisdiction over a task order protest because the award price was under $10 million, even though the protester had proposed a price of approximately $11.4 million.

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Contractor Proposes Unavailable Key Employee, GAO Sustains Protest

A contractor’s proposal to use an unavailable employee to fill a key personnel position caused the GAO to sustain a competitor’s protest.

In a recent bid protest decision, the GAO concluded that a offeror failed to satisfy a material solicitation requirement concerning key personnel where the employee included in the proposal left the offeror’s employment–and the agency knew that the employee was not available to perform the contract.

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8(a) Subcontracting Limitations: Compliance Oversight Lacking

Compliance with the limitations on subcontracting are not adequately being monitored by the contracting officers responsible for 8(a) contracts, according to a recent GAO report.

After reviewing a representative sample of ten 8(a) contracts, the GAO determined that contracting officers effectively monitored subcontracting limit compliance on two of those contracts.  In other cases, agency contracting officers failed to effectively monitor compliance, even in situations presenting a heightened risk of potential violations–such as where ineligible incumbents were serving as subcontractors.

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Thank You, HUBZones!

I am back in Lawrence after a trip to the Washington area, where I spoke at the National HUBZone Conference.  My conference presentation focused on the special rules for joint venturing and teaming on HUBZone set-aside contracts.

Thank you to Mark Crowley and the HUBZone Council for inviting me to be a part of this year’s National HUBZone Conference.  Thank you also to the clients, old friends, and new connections who made the conference especially worthwhile.  And thank you, too, to all those who attended my seminar and asked so many great questions.

After speaking at four government contracts conferences since August, I am beginning to feel a bit like a road warrior.  My next conference travels will take me to Wichita, Philadelphia, and New Mexico.  If we haven’t connected at an event yet this year, I hope to see you there.