This matter again involves NASA and a particularly interesting government procurement, this time concerning NAICS appeals. NAICS codes, or the North American Industry Classification System codes, are how both businesses are classified by their industry and procurements are classified by what they’re for. If the procurement uses an inappropriate NAICS code, a protestor can appeal this code determination. It is important to note that some NAICS codes have “exceptions” which can affect their corresponding size standards. For example, NAICS code 541330, “Engineering,” has a size standard of $16.5 million, but, if the engineering services are for military equipment and weapons, an exception applies that balloons the size standard to $35.5 million. But, just like regular NAICS codes, these exceptions have to make sense in light of the kind of solicitation in question, leading us to this matter.
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Small Business Being Acquired by a Large Business? For Multiple Award Contracts, the 180-Day Rule Doesn’t Apply to Task Orders, says GAO
You may recall a post of ours back in April 2021, where we discussed a little-known change to SBA’s size determination rules that occurred in October 2020. SBA created an exception, at 13 C.F.R. § 121.404(g)(2)(iii), to the usual “size is determined at offer date” rule. Now, prior to award, when a small business is part of a merger or acquisition after it makes an offer on a solicitation, the business has to recertify its size, and depending on when that acquisition occurred, if the business is now large, it may lose its award.
However, the rule is for better or worse not that straightforward, as a small business learned in a recent GAO decision. Because a part of the rule says that task order awards in such cases may not be treated as small business awards, GAO concluded that such awards are still allowed.
Continue readingFAR Issues Final Rule on Limitations on Subcontracting
It has been a long time coming, but the Department of Defense, in conjunction with the GSA and NASA, are finally issuing a final rule amending the FAR guidance regarding limitations on subcontracting. In this post, we are going to explore just what these changes are and what they mean for government contractors such as yourself. The hope is this brief summary and analysis will provide you some insight as to just what the new rules do.
Continue readingGAO: Non-Procurement Regulations No Grounds for Protest
The grounds for GAO protests are numerous, ranging from vague terms in a solicitation to showing that an awardee’s proposal lacked needed information. However, they are not unlimited. One protester argued that the terms of a solicitation were inconsistent with regulations concerning mortgage insurance. Unfortunately for them, that isn’t something GAO will consider.
Continue readingCBCA Cannot Waive Its Own Filing Deadlines
4 C.F.R. 21.2(b) states that, for GAO protests, GAO has the option to dismiss or not dismiss a protest that is filed late if there is good cause or it is an important issue. In other words, if there’s a good reason, GAO can accept an untimely protest. (Please note that this is not suggesting the filing deadline does not matter, GAO treats it very strictly most of the time and you should treat it as a “drop-dead” deadline).
For this reason, some think this same discretion applies in other protests and appeals regarding government contracts. For the Civilian Board of Contract Appeals (CBCA), it very much does not.
Continue readingGAO: A Higher Past Performance Rating For One Offeror Does Not Mean a Competitor Was Penalized
It seems like it should go without saying, but, just because an offeror with better evaluation ratings is preferred over one with neutral ratings does not mean the latter offeror was penalized for having neutral ratings, or that the neutral rating was a penalty. Nonetheless, in a recent bid protest a company creatively argued that it was penalized for having neutral ratings, and GAO unsurprisingly rejected it.
Continue readingCertificates of Competency: A Little-Known Friend of the Small-Business Contractor
You can’t believe it. You did everything right. The solicitation required that offerors have three distinct licenses. You have two, but one should cover for the license you don’t have. However, the agency says you have to have all three as distinct licenses, and denies your offer. Fortunately, you have a potential savior: The Certificate of Competency (“COC”)
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