GAO Puts Substance Over Form in Past Performance Protest

Recently, GAO sustained a bid protest where an agency “unreasonably excluded” a joint venture’s proposal, which included all necessary information listed in the solicitation, from competition.

The GAO held that it was unreasonable for the agency to exclude the joint venture merely because the joint venture’s proposal didn’t include a subcontract number for one of its past performance references. The GAO held, in essence, that the missing information was irrelevant because it had no bearing on the type of work completed.

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8(a) Program: Participant Terminated for Not Paying Subcontractor

An 8(a) Program participant was terminated from the 8(a) Program for failing to pay a subcontractor.

According to the SBA, the non-payment reflected poorly on the 8(a) company’s character–and “good character” is a prerequisite for 8(a) Program participation.

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GAO Confirms: No Protests of Most Subcontract Awards

Despite older case law to the contrary, the GAO ordinarily lacks jurisdiction to decide a protest challenging the award of a subcontract, even where the subcontract is alleged to have been made “for” the government, as in the case of some subcontracts awarded by DOE Management and Operation prime contractors.

In a recent decision, the GAO confirmed that, except in very narrow circumstances, it won’t decide protests challenging subcontract awards.

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FAR & DFARS Have 27 Distinct Definitions of “Subcontract”

The FAR and DFARS have 27 distinct definitions of the term “subcontract,” according to an acquisition reform panel.

In its first report, the Section 809 Panel urges policymakers to adopt a consolidated definition of the term “subcontract,” as well as a common definition of “subcontractor,” a term that has 21 distinct definitions in the FAR and DFARS.

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Compliant, Winning Teams: A Three-Part Webinar

Teaming and joint venturing are essential components of success for many small government contractors, and the emphasis on teaming is increasing in light of the SBA’s proposed rule allowing “similarly situated entities” to join together to pursue prime contracts.  But teaming and joint venturing are not without risks–there are many unique rules that must be followed, and many pitfalls for the unwary.

That is why I am very pleased to announced that I am joining with the Government Contractors Resource Network to present a three-part webinar series on compliant and effective teaming.  Directed at small contractors, this series will begin with an overview of the rules and regulations governing teaming.  The series will continue with a discussion of how to prepare effective and compliant teaming agreements, subcontracts, and joint venture agreements.  The series will wrap up with an in-depth discussion of federal mentor-protege programs, including the SBA’s new proposed “universal” mentor-protege program.

The first webinar will broadcast on June 19, and the others will follow on June 23 and 25.  To register, or for more information, visit the GCRN website.  I hope to see you (virtually, anyway) this summer.