Author Archives: Steven Koprince

Ostensible Subcontractor Rule: Lessons Learned From SBA OHA

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Avoiding affiliation under the SBA’s ostensible subcontractor rule can be difficult, especially since the ostensible subcontractor rule itself, 13 C.F.R. § 121.103(h)(4), does not provide many examples of the factors that may cause ostensible subcontractor affiliation.

A recent decision of the SBA Office of Hearings and Appeals, Size Appeal of InGenesis, Inc., SBA No. SIZ-5436 (2013), demonstrates that even when a proposed subcontractor will play a major role in the procurement, ostensible subcontractor affiliation may be avoided if the parties carefully structure their relationship.

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New SBA Mentor-Protege Program: Clearing Up The NDAA Confusion

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True or false: the FY 2013 National Defense Authorization Act requires the SBA to create a mentor-protege program for all small businesses?

Contrary to published information issued by at least three large law firms, the answer is “false.”  In fact, although the NDAA authorizes the SBA to create a mentor-protege program for all small businesses, it does not require the SBA to create such a program.

Moreover, the erroneous statement that the NDAA requires the SBA to adopt a mentor-protege program for all small businesses is just one of three pieces of misinformation being circulated by one or more of these law firms.  Let’s take a quick look at the text of Section 1641 of the NDAA itself and put the confusion to rest.

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A Slap On The Wrist? Contractor Avoids Jail Time For SDVOSB Fraud

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A man who lied about being a service-disabled veteran–and received nearly $6 million in VA SDVOSB set-asides–will not spend a single day in jail.

According to a Department of Justice press release, the man in question, John Witty, was sentenced to a fine, probation, and community service.  Yes, Witty’s wallet will be lighter, and maybe there were extenuating circumstances not evident from the press release–but the lack of jail time seems a tad generous.

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SBA Improperly Denied Woman’s Gender-Based 8(a) Application, Says SBA OHA

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Anyone who works with SBA 8(a) program applications will tell you that it can be very difficult for a woman to demonstrate gender bias to the extent necessary to gain admission to the program.

But for a woman-owned small business business, the road to SBA 8(a) program admission may have just gotten a little easier, as the result of a recent decision by the SBA Office of Hearings and Appeals.  In Strategygen Co., SBA No. BDPE-460 (2012), SBA OHA held that the SBA’s 8(a) admissions office had repeatedly erred in evaluating a woman’s claims of gender bias, and ordered the woman-owned firm admitted to the 8(a) program.

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Ostensible Subcontractor Rule: SBA 8(a) Mentor-Protege “Shield” Does Not Apply

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The SBA 8(a) mentor-protege affiliation “shield” does not prevent a mentor and protege from being affiliated under the so-called ostensible subcontractor rule, according to a recent decision of the SBA Office of Hearings and Appeals.

In Size Appeal of InGenesis, Inc., SBA No. SIZ-5436 (2013), SBA OHA held that the broad exception from affiliation for 8(a) proteges and their mentors does not prevent the SBA from deeming the companies affiliated under the ostensible subcontractor rule.

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GAO: Task Order Discussions Must Identify Weaknesses

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An agency must identify weaknesses or deficiencies in an offeror’s proposal when the agency conducts discussions as part of a task order competition, according to a recent GAO bid protest decision.

In Mission Essential Personnel, LLC, B-407474, B-407493 (Jan. 7, 2013), the GAO held that a procuring agency erred by failing to inform an offeror of two weaknesses or deficiencies in its proposal.  The GAO concluded that discussions must include this information even when the procurement is a task order competition conducted under FAR part 16.

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VA CVE Verification: Federal Court Rules Veteran Can “Control” SDVOSB Remotely

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In an important decision impacting many SDVOSB verification applicants, the U.S. Court of Federal Claims has held that the VA’s SDVOSB regulations did not prevent a service-disabled veteran from controlling his company remotely.

In KWV, Inc. v. United States, No. 12-882C (2013), the Court held that a veteran could control his Rhode Island-based construction company by electronic means, even though the veteran spent half of the year residing in Florida.

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