Should We Discuss This? Agencies Required to Enter into Discussions with All Offerors in Competitive Range

If you google “GAO discussions,” you will likely see a multitude of results talking about “meaningful discussions.” Source selection authorities (SSA) are given a large amount of discretion beyond that. Despite the high level of discretion SSAs have, there are still certain boundaries that they must work within. These boundaries are premised on the fairness principle that is woven throughout the FAR and other procurement rules. In particular, the process of discussions must fit within these boundaries. Discussions allow all offerors that are still being considered for award an equal opportunity to address deficiencies, weaknesses, and adverse past performance information. But what if the contracting agency engages in discussions with only one offeror, who also happens to be the awardee?

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Top of the Class: 8(a) Early Graduation

The SBA’s 8(a) Business Development Program is the crème de la crème of federal government contracting and there is a high bar to entry for admission. Among other things, individuals that are not a member of one of the recognized groups that is automatically presumed to be socially disadvantaged must prove they were socially disadvantaged throughout their life through what is called a social disadvantage narrative. Beyond that, there are a number of other qualifications, such as being economically disadvantaged, a business’s potential for success, and evidence of good character that must also be met. 13 C.F.R. § 124.101. The process is difficult, and once an individual is admitted, they no doubt want to make the most of it.  

Oftentimes, small businesses that participate in the 8(a) SBA’s Business Development Program remain in the Program for the full 9 years that the SBA allows, which culminates in the small business “graduating” from the program. 13 C.F.R. § 124.302. Sometimes, the business grows so successfully that it no longer meets the qualifications of being small, and thus is required to graduate early from the 8(a) Program. So how exactly does that happen? Read on to find out.  

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New Senate Bill Takes Aim at Organizational Conflicts of Interest

These days it often seems like both sides of the congressional aisle cannot agree on anything and bipartisan support is in short supply. However, one thing that Congress can agree on is the fact that organizational conflicts, which can lead to unfair advantages, have no place in Federal contracting. On March 23, 2022, Michigan Senator Gary Peters, with support of three other senators, introduced S. 3905, the Preventing Organizational Conflicts in Federal Acquisition Act (the Act). The bill aims to identify and prevent organizational conflicts of interest (OCI) that have been slipping through the cracks, stating that “[p]rotecting against conflicts of interest in Federal acquisition is vital to the integrity of Government operations.”

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Limitations on Subcontracting Part 1: What They Are and How They Apply

Congratulations! Your woman-owned small business (WOSB), Sun Corp, has just been awarded a contract. This particular contract was set aside for WOSBs, meaning only WOSBs may be considered for award. Small Corp is a relatively new company, and you have determined that you will need some help to successfully complete performance of the contract. As luck would have it, you are acquainted with the owner of Moon Corp, and Moon Corp is in the business of doing the exact type of work that Sun Corp needs help with. While diligently reading through the contract prior to its execution, you notice the following language:

Performance of this contract must comply with the subcontracting limitations set forth in FAR 19.505 and 13 C.F.R. § 125.6.

What do you do?

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Control Matters: For SDVOSB Companies, Pay Attention to Appearances as Well as Realities

The case of Superior Optical Labs, Inc. (Superior) v. United States focuses on the control of a Service-Disabled Veteran Owned Small Business (SDVOSB) and how that control, or more precisely, lack of control, can disqualify an SDVOSB with 69% service-disabled veteran ownership from a solicitation set aside for SDVOSBs. This particular Solicitation was set aside entirely for an SDVOSB to provide prescription eyeglasses and related services through the Veterans Integrated Services Network (VISN). Superior was awarded the contract, which was then protested by PDS Consultants, Inc. (PDS) challenged the SDVOSB eligibility of Superior. In the end, OHA held that Superior did not qualify as a SDVOSB for purposes of the procurement due to a lack of control as required by SBA rules. PDS then challenged OHA’s decision at the Court of Federal Claims.

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Is the End Near? NITAAC Releases CIO-SP4 Amendments 15 and 16

Additional changes to the submission date and the self-scoring requirements for CIO-SP4 offers make up the latest batch of amendments published by the National Institutes of Health Information Technology Acquisition and Assessment Center, leaving offerors hopeful the latest changes will be the last in a long string of amendments. Amendment 15 pushes back the submission date for CIO-SP4 offers and addresses a change to offer modifications. Amendment 16 includes additional changes to submission requirements and removes the iNsight method of calculating Self Scores.

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CIO-SP4 Amendments 12, 13, 14 Update Submission Date and Experience Reporting Method

The National Institutes of Health (NIH) NITAAC has been busy over the past month with three amendments to the CIO-SP4. Amendments 12, 13, and 14 primarily revise submission dates and make changes to the reporting of past experience examples. Below is a summary of the pertinent details from these amendments, as we know this is an important procurement for many contractors.

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