Author Archives: Steven Koprince

8(a) Mentor Protege Agreements And Shared Employees: A Risk Of Affiliation?

Posted on by

Can an SBA 8(a) program mentor and protege be affiliated, notwithstanding their 8(a) mentor-protege arrangement, if the firms engage in extensive employee sharing?

Maybe.

In a recent decision, the SBA Office of Hearings and Appeals suggested that extensive employee sharing between an 8(a) protege and its mentor might be outside the bounds of protected “assistance” under the 8(a) mentor-protege program.  And in the same case, SBA OHA raised an interesting question: does a mentor-protege relationship protect the mentor from affiliation, as well as the protege?

Continue reading →

SDVOSB Eligibility Not Affected By Ownership Transfer Restriction, Says Federal Court

Posted on by

As many service-disabled veteran-owned small businesses have discovered, the VA CVE believes that so-called “right of first refusal” provisions prevent veterans from freely selling or transferring their ownership interests.  Because such transfer restrictions are commonplace in standard corporate bylaws and operating agreements, countless SDVOSBs have been denied VA CVE verification for including them.

Those days may be over.

In a decision released to the public late last week, the U.S. Court of Federal Claims held that the VA OSDBU had erred by sustaining a SDVOSB eligibility protest on the basis of the company’s right of first refusal provision.  That decision, Miles Construction, LLC v. United States, No. 12-597C (2013), also includes other important rulings on the scope of “unconditional” ownership and the VA OSDBU’s evaluation of SDVOSB eligibility protests.

Continue reading →

VA Refuses To Issue Set-Aside Based On Prospective Offerors’ Experience, Resources

Posted on by

In a troubling case, the VA recently refused to issue a small business set-aside because responses to a Request for Information indicated that prospective small business offerors lacked similar experience with the VA, and did not currently have available the personnel, equipment and facilities necessary to perform the contract.

The GAO, ignoring the recommendation of the SBA, affirmed the VA’s decision to forego a small business set-aside.

Continue reading →

NAICS Code Appeal Cannot Be Based On Sources Sought Notice

Posted on by

A NAICS code appeal cannot be based on a sources sought notice, according to a recent NAICS appeal decision issued by the SBA Office of Hearings and Appeals.

In NAICS Appeal of Integrated Laboratory Systems, Inc., SBA No. NAICS-5406 (2012), SBA OHA held that under the FAR and SBA’s regulations, a viable NAICS code appeal cannot be filed until the solicitation itself is issued.

Continue reading →

SBA Improperly Evaluated Disabled Individual’s 8(a) Program Application, Says SBA OHA

Posted on by

The SBA failed to properly evaluate the 8(a) Program application of a small business owned by a disabled individual, according to a recent decision of the SBA Office of Hearings and Appeals.

SBA OHA’s decision in Striker Electric, SBA No. BDPE-465 (2013) comes on the heels of a December 2012 case in which SBA OHA held that the SBA had improperly evaluated the 8(a) Program application of a woman-owned business.  Together, the two decisions may suggest that SBA OHA is holding the SBA to a higher standard than may previously have been the case when it comes to the SBA’s evaluation of the “social disadvantage” factor.  If so, it is good news indeed for 8(a) applicants.

Continue reading →

GAO Bid Protest Jurisdiction And Contract Modifications

Posted on by

The GAO’s bid protest jurisdiction typically does not extend to reviews of contract modifications.

In a recent GAO bid protest decision, Cornische Aviation & Maintenance, LTD, B-405013.4 (Jan. 25, 2013), the GAO held that the protester’s allegations regarding a contract modification were not within the scope of the GAO’s bid protest function.  The Cornische Aviation GAO bid protest decision demonstrates the GAO’s limited ability (or willingness, depending on one’s point of view) to decide bid protests involving contract modifications.

Continue reading →

CBCA Appeal Dismissed Because Contractor Filed By FedEx, Not USPS

Posted on by

As has been well-documented by news outlets, the U.S. Postal Service plans to end Saturday delivery to save money.  With the USPS facing financial and customer service struggles, it is little wonder that many government contractors rely on rival FedEx to deliver important packages.

But when it comes to filing a contract appeal with the Civilian Board of Contract Appeals, contractors may want to think twice before calling FedEx.  As one unfortunate contractor recently discovered, thanks to an arcane (and in my view, unfair) provision in the CBCA’s rules, a package sent through the USPS is deemed timely filed with the CBCA on the date of its postmark, whereas a package sent by any other means–including FedEx–is not considered filed until it is actually received at the CBCA’s office in Washington, DC.

Continue reading →