The FAR’s threshold for meeting the so-called “Rule of Two” for small business set-asides is “purposefully low,” according to a recent decision of the U.S. Court of Federal Claims.
In Adams & Associates, Inc. v. The United States, No. 12-731C (2013), the Court rejected a challenge to a small business set-aside, holding in part that a contracting officer need not conduct a thorough responsibility evaluation of prospective small business offerors before issuing a set-aside.
As many service-disabled veteran-owned small businesses have discovered, the VA CVE believes that so-called “right of first refusal” provisions prevent veterans from freely selling or transferring their ownership interests. Because such transfer restrictions are commonplace in standard corporate bylaws and operating agreements, countless SDVOSBs have been denied VA CVE verification for including them.
Those days may be over.
In a decision released to the public late last week, the U.S. Court of Federal Claims held that the VA OSDBU had erred by sustaining a SDVOSB eligibility protest on the basis of the company’s right of first refusal provision. That decision, Miles Construction, LLC v. United States, No. 12-597C (2013), also includes other important rulings on the scope of “unconditional” ownership and the VA OSDBU’s evaluation of SDVOSB eligibility protests.
In an important decision impacting many SDVOSB verification applicants, the U.S. Court of Federal Claims has held that the VA’s SDVOSB regulations did not prevent a service-disabled veteran from controlling his company remotely.
In KWV, Inc. v. United States, No. 12-882C (2013), the Court held that a veteran could control his Rhode Island-based construction company by electronic means, even though the veteran spent half of the year residing in Florida.
The government was not required to exercise option years in a “long term” contract to lease aircraft, according to a recent decision of the U.S. Court of Federal Claims.
In Sundowner 102 LLC v. United States, No. 12-304C (2013), the Court held that the use of the words “long term” in a contract did not limit the government’s discretion to decline to exercise option years.
A procuring agency was not required to consider the past performance of an offeror judged to be technically unacceptable, according to a recent bid protest decision of the U.S. Court of Federal Claims.
In The Alamo Travel Group, LP v. The United States, No. 12-764C (2012), the Court rejected an incumbent contractor’s argument that an agency could not properly exclude the incumbent’s proposal without first considering its past performance–which, the incumbent argued, would demonstrate its ability to successfully perform the contract.
The AbilityOne Program cannot be used to award a contract when it is questionable whether the contractor will comply with the requirement that significant portions of the work be performed by the severely disabled, according to a recent decision of the U.S. Court of Federal Claims.
In Systems Application & Technologies, Inc., No. 12-526C (2012), Judge Eric Bruggink, in an opinion brimming with colorful quotes, shot down the Army’s effort to award a contract involving significant degrees of physical labor at a remote location to an erstwhile AbilityOne participant, holding that the prospective awardee had not come close to demonstrating that the work would (or could) be performed by the severely disabled.
For contractors concerned that the AbilityOne program may be subject to misuse, the Systems Application case is confirmation both that questionable practices occur in AbilityOne contracting, and that such practices will not be tolerated by the Court.
A federal judge has denied a large business’s pre-award bid protest, which was based on the large company’s argument that small business set-asides do not constitute a type of competitive procurement.
Although the decision of the U.S. Court of Federal Claims in Res-Care, Inc. v. The United States, No. 12-251C (2012) involved a specific statute applicable to Job Corps Centers, the court’s affirmation of small business set-asides as “competitive” reinforces an important principle underlying FAR Part 19 and other programs benefiting small government contractors.