The Supreme Court’s now-famous Kingdomware decision doesn’t affect the timeliness of SBA size protests of GSA Schedule orders.
In a recent decision, the SBA Office of Hearings and Appeals rejected the notion–based in part on Kingdomware–that an GSA Schedule order is a “contract” for purposes of the SBA’s size protest timeliness rules. Instead, OHA held, the SBA’s existing rules clearly distinguish between contracts and orders, and often effectively do not permit size protests of individual orders.
Super Bowl Sunday is just a few days away. Whether you are a fan of football or are just tuning in for the commercials, I hope you have a relaxing day with friends and family. Next week, I’ll be heading to Orlando for the 2017 National 8(a) Association Small Business Conference where I have been selected as a panelist to discuss “Two is Better than One: JVs, MPs, and Teaming Agreements.” If you are planning to attend the conference I hope you will come say hello at my Koprince Law booth on the exhibit floor.
Before I leave the freezing temperatures of Kansas behind for the sunshine and sand of Florida, we bring you this edition of the SmallGovCon Week In Review. This week, we have articles discussing the role of FOIA under the new Administration, Congress is working to block former President Obama’s “Fair Pay and Safe Workplaces” executive order, a look ahead to what experts are saying may be the most competitive year in federal IT contracts in over a decade, and much more.
Earlier this year, we wrote about an interesting issue brewing in federal contracting: whether the logic behind the Supreme Court’s June 2016 decision in Kingdomware Technologies means that the Small Business Act’s rule of two is mandatory for acquisitions under Federal Supply Schedules. In other words, does the Small Business Act require agencies to set aside orders under the FSS when two or more small business are likely to submit competitive offers?
The SBA believes that the rule of two (see FAR 19.502-2) is mandatory for such orders. GAO has disagreed, saying instead that the Small Business Jobs Act of 2010 and the exclusion of FSS contracts from the application of FAR Part 19 (see FAR 8.405-5(a)(1)(i)) make the small business rule of two discretionary for these orders.
This conflict—GAO believing the Small Business Act’s rule of two is discretionary for orders placed under multiple-award contracts; SBA believing it is mandatory—has existed for several years. But now the SBA is using the Supreme Court’s recent decision to bolster its case: according to a recent SBA internal memorandum, Kingdomware requires the small business rule of two to be given mandatory effect, at least with respect to orders valued between $3,500 and $150,000.
Earlier this year, the United States Supreme Court issued its decision in Kingdomware Technologies v. United States. As we’ve noted, this case was a monumental win for veteran-owned small businesses—it requires the Department of Veterans Affairs to set-aside solicitations for SDVOSBs or VOSBs where two or more such offerors will submit a proposal at a fair and reasonable price, even if that solicitation is issued under the Federal Supply Schedule.
A recent GAO decision suggests, however, that Kingdomware’s impact could be felt beyond the world of VA procurements. Indeed, the Supreme Court’s rationale in Kingdomware might compel every agency to set aside any FSS order (or any other order, for that matter) valued between $3,000 and $150,000.
Fall is officially here, and that means that the leaves are turning color, it’s apple-picking season, and football is a big part of my typical weekend (both on TV, and chasing around my three-year-old son as he scores touchdown after touchdown in our living room).
But for those of us involved in federal government contracts, it’s hard to think of the fall without also thinking of the end of the government’s fiscal year, and all that it entails. In this, the final SmallGovCon Week in Review of the 2016 Fiscal Year, we have stories on a large software vendor pulling out of the GSA schedule, Guy Timberlake’s unvarnished–and very important–commentary on a terrible change being proposed to small business goaling, and more.
Each party to a GSA Schedule Contractor Teaming Arrangement must hold the Federal Supply Schedule contract in question.
As demonstrated by a recent GAO bid protest decision, if one of the parties to the GSA CTA doesn’t hold the relevant FSS contract, the CTA may be found ineligible for award of an order under that contract.
It’s hard to top last week’s government contracting news, which included the major SDVOSB Supreme Court victory in Kingdomware. But with the Fourth of July just a week and a half away, there is still plenty going on in the world of government contracts law.
In this week’s SmallGovCon Week in Review, an SDVOSB’s owner speaks out about his important GAO bid protest win, suspensions and debarments of government contractors dropped in 2015, major changes are coming to the GSA Schedule, HUBZone contract awards decline, and much more.