Author Archives: SmallGovConContributor

2018 NDAA: Unsuccessful GAO Protesters May be Liable for Government Costs

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The 2018 National Defense Authorization Act put a new twist on potential costs a contractor may incur in filing a GAO bid protest.

While many federal contractors are familiar with the costs arising from a GAO protest, including their attorneys’ fees and consultant and expert witness fees, and some are lucky enough to recoup such costs upon GAO’s sustainment of a protest, under the 2018 NDAA, some large DoD contractors may also be required to reimburse DoD for costs incurred in defending protests denied by GAO.

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5 Things You Should Know: 8(a) Program Eligibility

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Editor’s Note: You can find our updated post on 8(a) Program Eligibility here.

In a recent post, we discussed the basics about SBA’s 8(a) Business Development Program. This follow-up posts discusses 8(a) eligibility requirements in greater detail.

To qualify for the 8(a) Program, a firm must be a small business that is unconditionally owned and controlled by one or more socially- and economically-disadvantaged individuals who are of good character and citizens of the United States and that demonstrates a potential for success.

What does this really mean? Here are five things you should know about 8(a) Program eligibility.

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GAO Sustains Protest of “Unduly Restrictive” Solicitation Requirement

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GAO typically affords agencies wide discretion to establish technical restrictions within solicitations.

In a recent decision, however, GAO confirmed that such discretion is not unbounded. When an agency’s technical restriction is unduly restrictive of competition, the GAO will sustain a bid protest.

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GAO: 8(a) Sole-Source Set-Aside Proper Notwithstanding Prior Intent

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As a general rule, the SBA is prohibited from accepting a solicitation into the 8(a) Business Development Program if the procuring agency previously expressed publicly a clear intent to award the contract as a small business set-aside.

On its face, this restriction seems clear. In practice, it can be anything but—the inquiry usually focuses on whether the agency’s prior intent was definitive enough to count.

In SKC, LLC, B-415151 (Nov. 20, 2017), GAO provided important clarity about this restriction.

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Economic Dependence Affiliation: A One-Way Street

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Under the SBA’s economic dependence affiliation rule, two companies can be deemed affiliated when one company is responsible for a large portion of the other company’s revenues over time.  But must both companies count one another as affiliates—or does the rule only apply when the recipient’s size is challenged?

A recent SBA Office of Hearings and Appeals case answers these questions: when a company is economically dependent upon another company, it is affiliated with the company on which it depends, but the opposite is not true. In other words, economic dependence affiliation is a one-way street.

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PPQs Submitted Late? “No Problem,” Says GAO–At Least In One Case

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While being fashionably late to a party may give the impression that one is a busy and popular person that was held up with other business, being fashionably late in federal contracting will typically have dire consequences.

However, a recent GAO bid protest decision demonstrates that when providing completed past performance questionnaires, or PPQs, being fashionably late may be acceptable – at least when the references were submitted directly by government officials, rather than the offeror.

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5 Things You Should Know: SDVOSBs and VOSBs

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Editor’s note: For more information, check out our updated post on SDVOSBs here.

You’ve served your country with pride. Now, as a government contractor, it’s only fair that you get your piece of the pie. Here are five things you should know about the government’s contracting programs for veteran-owned small businesses and service-disabled veteran-owned small businesses:

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