Where an agency buys manufactured goods, the FAR’s Rule of Two is satisfied when two or small business manufacturers of the end products exist. It is not enough, as GAO recently held, for two or more small business distributors of manufactured products to exist.
Author Archives: SmallGovCon Contributor
EEOC’s Proposed Pay Disclosure Rule Will Impact Larger Contractors
On January 29, the U.S. Equal Employment Opportunity Commission announced a proposed modification to its Employer Information Report (EEO-1) form that will impact employers—including federal government contractors—with 100 employees or more.
Under the proposed modification, beginning in September 2017, these employers will be required to report their employees’ pay ranges and hours worked, broken down by the gender and race/ethnicity of employees. Contractors with 50 to 99 employers, who must also complete EEO-1s, would be exempt from the new requirement.
GAO: Agency Reasonably Adjusted Sub’s Unsubstantiated Costs
Under a solicitation for a cost-reimbursable contract, an offeror’s proposed costs are not controlling, because the government is on the hook for the contractor’s actual and allowable incurred costs. Before making an award decision, the government must consider whether the proposed costs should be upwardly adjusted.
A recent GAO bid protest decision highlights the need for offerors bidding on cost-reimbursable work to make sure that their proposed costs are realistic and substantiated—including the proposed costs of major subcontractors.
Court: Past Performance Evaluations Must Be Adequately Supported
Past performance evaluations are a vital part of many federal procurements. Generally, the evaluation of an offeror’s past performance is a matter within the discretion of the contracting agency. But if an agency fails to adequately support its past performance evaluation, its findings cannot be upheld.
The United States Court of Federal Claims recently applied this rule, when it sustained a protest to an agency’s past performance evaluation because the evaluation failed to address the stated evaluation factors. In doing so, the Court provided guidance to both offerors and agencies as to a proper past performance evaluation.
GAO To Protesters: Check Your (Spam) Email
GAO’s filing deadlines are strict, and a protest that does not abide by them generally will be dismissed. In All Native, Inc., B-411693 et al. (Oct. 5, 2015), the GAO expanded upon this rule by dismissing a protest where the protester missed a filing deadline by a single day. In doing so, the GAO refused to extend the deadline merely because the GAO’s email setting that deadline apparently ended up in the protester’s “spam” email folder.
GAO: SBA’s Five-Day 8(a) Eligibility Deadline Applies To JVs
Before an agency can award an 8(a) contract, the prospective awardee must first be deemed eligible for award under the 8(a) business development program criteria by the Small Business Administration. The SBA has a tight deadline to make this determination—a mere five days.
But what happens when the SBA’s eligibility evaluation is more complicated than a determination of whether the awardee meets the program’s basic eligibility requirements? The GAO recently addressed this issue in FedServ-RBS JV, LLC, B-411790 (Oct. 26, 2015), where the GAO held that the applicable regulations do not require the agency to stay its proposed award beyond five days pending the SBA’s approval of an 8(a) joint venture agreement. Continue reading
GAO: Rule Of Two Analysis Not Required For Exercise Of “In Scope” Options
The Small Business Act envisions that small businesses will be awarded a “fair proportion” of government contracts. To meet this goal, the FAR instructs agencies to set aside for small businesses acquisitions over $150,000 if there is a reasonable expectation that offers will be received from at least two responsible small businesses, at fair market prices.
While the Rule of Two is powerful, it does not extend to all procurement actions. A recent GAO case illustrates an important exception to the Rule of Two. In Walker Development & Trading Group—Reconsideration, B-411246.2 (Sept. 14, 2015), the GAO held that an agency need not conduct a Rule of Two analysis before exercising an option in accordance with the terms of an existing contract.