Author Archives: Steven Koprince

GAO: Small Businesses’ Capabilities Not Part Of Set-Aside Decision

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A procuring agency is not required to evaluate whether potential small business offerors possess the capabilities to meet all of the requirements of a solicitation before issuing the solicitation as a small business set-aside, according to a recent GAO bid protest decision.

In Swank Healthcare, B-407367 (Dec. 12, 2012), the GAO denied a large business’s bid protest, holding that the procuring agency had properly issued a small business set-aside without first considering whether the small businesses it had identified as likely offerors possessed the capabilities to meet all of the requirements of the solicitation.

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Limitations On Subcontracting: Congress Enacts Major Changes

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Congress has enacted major changes to the limitations on subcontracting rules for small government contractors.

The 2013 National Defense Authorization Act, signed into law by President Obama on January 3, contains two important changes to the subcontracting limits.  First, for services contracts, compliance with the limitations on subcontracting will be based on the total amount paid to the small business, not the cost of the contract incurred for personnel.  Second, small businesses will be able to meet their own performance requirements by subcontracting to other small companies.

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Court: Past Performance Evaluations of Technically Unacceptable Offerors Not Required

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A procuring agency was not required to consider the past performance of an offeror judged to be technically unacceptable, according to a recent bid protest decision of the U.S. Court of Federal Claims.

In The Alamo Travel Group, LP v. The United States, No. 12-764C (2012), the Court rejected an incumbent contractor’s argument that an agency could not properly exclude the incumbent’s proposal without first considering its past performance–which, the incumbent argued, would demonstrate its ability to successfully perform the contract.

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GAO: Low Price Not Evidence of Technical Unacceptability

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An awardee’s low price, by itself, is not evidence that the awardee cannot meet the solicitation’s technical requirements, according to a recent GAO bid protest decision.

In Midwest Tube Fabricators, Inc., B-407166, B-407167 (Nov. 20, 2012), the protester argued that the awardee could not meet the solicitation’s requirements at the awarded price.  The GAO dismissed the protest, holding that the protester’s allegation did not present a valid basis of protest.

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Congress Authorizes SBA Mentor-Protege Program For All Small Businesses, Centralizes Oversight

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Congress has authorized the SBA to create a mentor-protege program for all small businesses, not just socioeconomically disadvantaged companies.

This major change was included in the 2013 National Defense Authorization Act and signed into law by President Obama on January 3.  The 2013 NDAA also addresses the recent proliferation of agency mentor-protege programs (and, by extension, the SBA’s refusal to acknowledge an exception from affiliation for participants in most other agencies’ mentor-protege programs) by requiring most procuring agencies to obtain SBA approval for their mentor-protege programs.

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GAO: Q&A Qualified As Solicitation Amendment

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A contractor’s proposal may be rejected for failing to address a requirement contained in a question-and-answer document, so long as the Q&A contains all of the essential elements of a solicitation amendment.

This was the ruling of the GAO in a recent bid protest decision, Energy Engineering & Consulting Services, LLC, B-407352 (Dec. 21, 2012), in which an offeror’s proposal was rejected as technically unacceptable for failing to address a standard imposed in a Q&A.

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SBA 8(a) Termination Appeals: The Importance of Technicalities

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When it comes to SBA 8(a) termination appeals, failing to follow technical filing requirements can be fatal, as one contractor recently learned the hard way.

In James Kelly Construction Co., SBA No. BDPT-459 (2012), the SBA terminated James Kelly Construction Company from the 8(a) program, alleging that the company’s owner owed outstanding taxes.  The company filed a SBA 8(a) termination appeal with the SBA Office of Hearings and Appeals, arguing that the owner did not, in fact, owe taxes.

Unfortunately, the company–which prepared and filed its appeal without a lawyer–failed to include with its appeal a copy of the SBA’s termination determination and the date the determination was received.  Because both of these items are required by regulation, SBA OHA dismissed the company’s SBA 8(a) termination appeal, and subsequently denied the company’s request that SBA OHA reconsider its dismissal.

SBA OHA appeals, including 8(a) termination appeals, come with a variety of technical requirements.  As the James Kelly Construction Co. case demonstrates, meeting those technical requirements is imperative, or the appeal could be lost before SBA OHA ever reaches the merits of the matter.