In a recent size determination appeal, OHA confirmed that an offeror found technically unacceptable does not have standing to protest an awardee’s size under SBA’s regulations. As such, OHA denied the appeal and affirmed the Area Office’s size determination dismissing the size protest on such grounds.
Continue readingAuthor Archives: Nicole Pottroff
Nicole Pottroff Weighs in on Bias in the Procurement World in Forbes Article
Tuesday, March 29, Forbes.com published a fascinating article written by Dr. Gleb Tsipursky entitled, Prevent Costly Procurement Disasters: 6 Science-Backed Techniques For Bias-Free Decision Making. In the article, I weigh in on the subject of bias in the bid selection process for federal procurements. I discuss some of the ways the ever-developing science behind implicit bias could potentially be utilized in bid protests challenging source selection decisions as biased–which is currently one of the toughest protest challenges to win.
As you can read more about in the article, government officials are presumed to act in good faith and the standards for proving otherwise are difficult to meet (essentially, you need a “smoking gun” to win a protest on bias alone). This article thoroughly discusses the current protest landscape for challenging bias, the ways procurement officials can work to mitigate or eliminate bias in the procurement process, and the potential interplay of the science behind bias in both the procurement and protest processes.
Back to Basics: Teaming Agreements
Teaming agreements are a great tool for establishing the prime-subcontractor relationship to jointly pursue government contracts. They can protect the parties’ rights, set performance expectations, demonstrate regulatory compliance, and reduce the likelihood of disputes down the line. But no matter how common teaming agreements have become, many still find them to be a bit of a mystery. This is probably because teaming agreements are neither required nor defined by SBA’s regulations or the FAR; and they have no regulatory-required content. But that doesn’t stop procuring agencies from requiring submission of teaming agreements with proposed teaming partners (especially where the offeror requests consideration of its proposed subcontractor’s past performance, experience, and/or capabilities). So, it is beneficial to know some of the “basics” of teaming agreements: what they are, why you should have one, and what should be included.
Continue readingSBA Final Rule Updates Employee-Based Size Standards, but not for Nonmanufacturer Rule
This month, SBA issued a final rule updating its size standards for multiple NAICS codes in the manufacturing industries and industries with employee-based size standards in other sectors (except wholesale trade and retail trade). As the final rule explains in great detail, SBA increased some of the NAICS code’s size standards and retained others. Additionally, SBA decided to retain an employee based size standard for the nonmanufacturer rule. Let’s take a closer look.
Continue readingCongressional Research Service Report Discusses Emergency-Related Acquisition Flexibilities, the Good, the Bad, and the Ugly
This Congressional report, issued December 27, 2022, provides a “discussion of acquisition flexibilities federal agencies may use to facilitate the government’s response to and recovery from disasters and emergencies.” The report explains the various types of flexibilities and some of the pros and cons of each. And it concludes by identifying several significant issues related to these acquisition flexibilities. Let’s take a look.
Continue readingFinal FAR Amendment Encourages Procuring Agencies to Engage with Industry
DoD, GSA, and NASA are issuing a final rule that amends the Federal Acquisition Regulations (FAR), effectively implementing a provision of the 2016 National Defense Authorization Act. The rule permits and encourages agency acquisition personnel to engage in responsible and constructive exchanges with the industry, provided that such exchanges remain consistent with the applicable law and refrain from promoting any unfair competitive advantages.
Continue readingAgencies Do Not Have Unlimited Discretion to Cancel Solicitations, Says the COFC
In its recent decision, the Court of Federal Claims decided whether and when an agency can cancel a FAR part 15 procurement and start from scratch. Agencies have historically been afforded extremely broad discretion in cancelling solicitations. But in this case, the court agreed with the protester that cancellation was wrongful. It also laid out the details of a proper versus improper solicitation cancellation quite nicely. Thus, this landmark decision provides crucial guidance on the subject for agencies and federal contractors alike.
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