Author Archives: Steven Koprince

SBA Proposes Eliminating Megawatt Hours Size Standard

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Most government contractors determine their small business size based on average annual receipts or employee counts.  But for companies working in six NAICS codes in NAICS Sector 22, the firm is considered small if: (1) the firm, including its affiliates, is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale; and (2) its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours.  Today, the SBA proposed eliminating this megawatt hours size standard and replacing it with a 500 employee size standard.

In a proposed rule, the SBA stated that significant industry changes have occurred since the megawatt hour standard was adopted in 1974, that the “primarily engaged” requirement could result in some businesses being unfairly deemed large, and that an employee-based size standard is more in keeping with overall SBA size standard policy.  Accordingly, the SBA proposed changing the size standards for all six affected NAICS codes–221111, 221112, 221113, 221199, 221121, and 221122–from 4 million megawatt hours to 500 employees.

In today’s proposed rule, the SBA also proposed three significant size standard increases.  Under the SBA’s proposal, NAICS code 221310 (Water Supply and Irrigation Systems) would jump from $7 million to $25.5 million, NAICS code 221320 (Sewage Treatment Facilities) would increase from $7 million to $19 million and NAICS code 221330 (Steam and Air-Conditioning Supply) would increase from $12.5 million to $14 million.

Today’s proposed changes are part of the SBA’s ongoing review and overhaul of its size standards.  The SBA is accepting comments on today’s rule by September 17.

Contractor Corrects “Weakness”, Loses Contact As A Result

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When, in discussions, a procuring agency tells a contractor that an aspect of the contractor’s proposal is a weakness, the natural response is to correct the problem.  In one recent GAO bid protest decision, however, correcting a weakness may have cost a contractor a $30 million award.

In EMR, Inc., B-406625 (July 17, 2012), the procuring agency informed the contractor that certain labor rates appeared low in comparison to other offerors’ rates, and labeled the low rates a weakness.  In response, the contractor raised the rates in question, thereby increasing its overall price–then narrowly lost out on a low-price, technically acceptable contract.

The GAO’s verdict?  The agency did nothing wrong.

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SBA: Most Construction Size Standards Should Remain As-Is

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The SBA has released its proposed size standard changes under NAICS Sector 23, which covers the construction industry.  The bottom line: if you were hoping for a SBA size standard increase, chances are, you’ll have to hope that the SBA changes its mind between now and the issuance of the final rule.

The SBA proposed only two increases in Sector 23: NAICS code 237210 (Land Subdivision) would jump from a $7 million size standard to a $25.5 million size standard, and NAICS code 237990 (Dredging and Surface Cleanup Activities) would increase from $20 million to $30 million.  The remaining NAICS codes under Sector 23 would retain their current size standards.

The SBA is accepting comments on the proposed Sector 23 size standard rule through September 17.

8(a) Sole Source Contracts: Little Explanation Necessary

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Agencies have broad discretion when it comes to issuing 8(a) sole source contract awards.  Although a procuring agency must provide the SBA with some justification as to why it selected a particular 8(a) company for a sole source contract, that justification can be very brief.  And, as the GAO held in a recent bid protest decision, an 8(a) sole source contract justification need not explain why the 8(a) awardee was superior to another 8(a) company interested in the same contract.

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GAO Sustains An Aldevra Protest (Again)

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The original Rocky was popular with audiences and critics alike, rating as the highest-grossing film of 1976 and picking up three Oscars, including Best Picture.  But by the time the franchise reached Rocky V in 1990, the ongoing sequels had become something of a joke.  In a Washington Post review, critic Desson Howe opened with: “Moments after that brutal bout with Dolph Lundgren in “Rocky IV” — and you did watch “Rocky IV,” didn’t you? — Sly Stallone mistakes his wife for his dead boxing coach. This is not a good sign, even for the Rockster.”

Like the Rocky series, the fight between Aldevra and the VA keeps spawning sequels.  For service-disabled veteran-owned small businesses, the good news is that Aldevra has won yet another GAO bid protest, challenging the VA’s refusal to consider a SDVOSB set-aside before procuring equipment from the GSA Schedule.  The bad news is that the sequels keep coming, with no sign that the VA will back down.

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Agency Awards HUBZone Set-Aside to Federal Prison Industries

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When is a HUBZone set-aside not really a HUBZone set-aside?  According to one GAO bid protest decision, when Federal Prison Industries (also known as UNICOR) submits an offer.

In Tennier Industries, Inc., B-403946.2 (June 29, 2012), the Defense Logistics Agency set-aside a procurement for HUBZone contractors, but awarded the contract to Federal Prison Industries rather than a HUBZone company.  One might think that the GAO would sustain a bid protest.  Instead, the GAO held that the award to FPI was A-OK.

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OMB Pushes Prompt Payment To Small Subcontractors

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Small subcontractors sometimes find themselves facing a cash flow crunch when they take on new work.  Under some subcontract payment clauses, a small subcontractor might not be entitled to payment until 30 days or more after the prime contractor receives payment from the government for the subcontractor’s work.  Even subcontracts with more generous payment terms often require small subcontractors to make significant up-front investments in terms of employee salaries, materials, and the like before receiving payment.

The Office of Management and Budget apparently recognizes that there is a problem, because yesterday OMB issued a memorandum entitled “Providing Prompt Payment to Small Business Subcontractors,” setting forth three steps the government is taking to address the matter.  One of these steps–if it comes to fruition–may even have some “teeth.”

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