Past Performance: Agency Can Consider Whether Prime & Subcontractor Have Worked Together Previously

An agency’s past performance evaluation may consider whether the prime contractor and a proposed subcontractor have worked together previously–even if the solicitation is silent about such consideration.

In a recent bid protest decision, the GAO held that there was nothing improper about an agency’s determination that the awardee’s prior working history with its subcontractor decreased performance risk.

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Event: Three-Part Series on Joint Ventures & Prime/Subcontractor Teams

For small and large businesses alike, joint venturing and prime/subcontractor teaming on federal contracts can bring powerful benefits. But the rules governing teaming and JVs can be complex, and in focusing on compliance, sometimes best practices can get lost in the shuffle.

On April 20 through 22, please join me and Nicole Pottroff for a special, three-part course on joint ventures and prime/subcontractor teaming, hosted by Govology. We’ll cover the key compliance rules in plain English, dispel common myths, and discuss best practices to help your teaming documents go beyond bare-bones compliance. It’s easy to register: just click here.

We hope to see you starting on April 20!

If You Plan to Use the SBA’s Template Joint Venture Agreement, Read This First

If you’re setting up your first joint venture under the SBA’s rules, you may be tempted to download the SBA’s template joint venture agreement and use it as-is.

But, as of the date of this post, the SBA’s template joint venture agreement is outdated–and it also has some other quirks and potential problems you should know about. If you’re planning to use the SBA’s joint venture template, read this first.

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Past Performance Isn’t Always a Required Evaluation Factor, Says GAO

For companies trying to break into the government market for the first time, past performance can seem a bit like the old chicken-and-egg conundrum. Sometimes it can appear like a company can’t win a government contract without a strong record of past performance–but can’t build a past performance record without contracts! And with the government’s continued movement away from lowest-price, technically acceptable evaluations, past performance seems increasingly important.

But that doesn’t mean the government always has to consider past performance as an evaluation factor. Instead, as a recent GAO bid protest decision confirms, procuring agencies have broad discretion to omit past performance in appropriate cases.

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SBA’s Change to Joint Venture Bank Account Rule is Another Trap for the Unwary

If you are part of a joint venture between a small protege and its large mentor under the SBA’s Mentor-Protege Program, heads up: the SBA recently amended its list of mandatory requirements for joint venture agreements to cover what happens to funds left over in the joint venture bank account at the end of a project.

Like the revised recordkeeping rules I discussed in an earlier post, the new required provision only applies to mentor-protege joint ventures pursuing small business set-aside contracts–not to JVs seeking 8(a), SDVOSB/VOSB, WOSB/EDWOSB or HUBZone work. Confusingly (and again, like the recordkeeping rules), SBA’s decision to change only the small business set-aside regulation, 13 C.F.R 125.8, means that the same joint venture agreement may not be valid for both small business set-aside contracts and socioeconomic contracts.

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Event: Special Two-Session 8(a) Course with Jackie Robinson-Burnette

Mention Jackie Robinson-Burnette to anyone who participated in the 8(a) Program between 2014 and 2017, and you’re sure to get a big smile. As the SBA’s Associate Administrator of 8(a) Business Development, and then the Deputy Associate Administrator for Government Contracting and Business Development, Ms. Robinson-Burnette quickly became well-known for working tirelessly on behalf of small businesses, assisting them with a rare blend of knowledge, savvy and empathy.

That is why I am so excited to announce that on April 27 and 28 I will be co-hosting a very special two-day Govology course on the 8(a) Program with the one and only Jackie Robinson-Burnette! Don’t miss this unique chance to learn about 8(a) eligibility, certification growth strategies. To sign up, just click here. See you in April!

GAO: No SBA Certificate of Competency Review Needed for Failure to Adequately Explain Technical Approach

For small businesses, the SBA’s Certificate of Competency process can offer a powerful “second bite at the apple,” essentially allowing a small business to appeal to the SBA if a procuring agency finds the small business non-responsible.

But the SBA CoC process is limited to findings of non-responsibility under FAR Part 9. As GAO recently held, there is no right to appeal to SBA if the proposal was rejected for failing to adequately explain the small business’s technical approach.

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