Author Archives: Steven Koprince

SDVOSB Eligibility: Lack of VetBiz Verification Irrelevant for Non-VA SDVOSB Set-Asides

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“So what?”

That, in essence, is what the SBA Office of Hearings and Appeals had to say in a recent SDVOSB appeal decision, in which the protester contended that the service-disabled veteran-owned small business in question was not listed in the VA’s VetBiz database.  The SBA OHA decision serves as an important reminder: CVE verification only matters for VA SDVOSB set-asides.  When another agency sets-aside a procurement for SDVOSBs, there is no requirement that the awardee be listed in the VetBiz database.

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Teaming Agreements and the Ostensible Subcontractor Rule: SBA OHA Decision Provides Some Guidance

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Teaming agreements for small business set-aside contracts can be tricky.  On the one hand, unlike 8(a) and SDVOSB joint venture agreements, there are no mandatory provisions.  On the other, if a competitor files an SBA size protest challenging the award, the teaming agreement may be “Exhibit A” in the SBA’s evaluation of whether the team violated the ostensible subcontractor rule.  In other words, mess up the teaming agreement, and you could have a big problem on your hands.

The SBA has never published a road map to a perfect teaming agreement, but a recent SBA OHA decision–which found no ostensible subcontractor rule violation–highlights a few provisions that prime contractors and their subcontractors would be wise to consider including.

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SBA OHA: VA Mentor-Protege Program Does Not Protect Participants From Affiliation

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My parents taught me that it’s not polite to say, “I told you so.”  Mom and Dad are big proponents of being polite, and their lessons (by and large) stuck.  For instance, even in this day and age of abbreviated text messages and quick emails written on handheld devices, I always begin and end every business email with a salutation, and end with “regards,” or something along those lines.  Unnecessary?  Perhaps.  But I like to think I am going the extra mile toward being polite.

Today, however, politeness is going to have to take a little hiatus, because I can’t resist saying, “I told you so.”  For more than a year, I have been warning small government contractors that assistance received from a mentor firm under any federal mentor-protege program other than the SBA 8(a) mentor-protege program or DoD mentor-protege program is probably not shielded from the SBA’s affiliation analysis.

Now, the SBA Office of Hearings and Appeals has confirmed that participating in the VA’s mentor-protege program does not offer any protection from affiliation.

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The Brooks Act, Debriefings, and GAO Bid Protests

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Remember 80s band Nu Shooz?  No?  Even if the name doesn’t right a bell,  I can almost guarantee that you’ve heard the band’s one hit, “I Can’t Wait.”   Go on, take a listen on YouTube, and you’ll see that  I’m right.

While you are busy bopping to that slice of 80s retro-ness, it’s worth knowing that “I Can’t Wait” is the rule when it comes to GAO bid protests based on architect and engineering procurements conducted under the Brooks Act.  According to a recent GAO decision, unlike with a typical competitive procurement under FAR Part 15, an unsuccessful offeror cannot wait to file a GAO bid protest regarding matters of which it is already aware until after it receives a debriefing.  Wait until after the debriefing, and the GAO might dismiss the protest as untimely–just like it recently did in the case of one unlucky protester.

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GAO Protests: VA Awards Set-Aside to Self-Certified Large Company

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“So, are you a small business?”  “Nope.”  “Great.  How would you like a small business set-aside contract?”  “Umm, sure, okay.”

The dialogue above is fictional (and its lack of quality demonstrates why I am a government contracts lawyer, not a Hollywood screenwriter), but it could have occurred in relation to a recent Department of Veterans Affairs procurement.  In that case, a company self-certified that it was not small.  Despite the certification, the VA awarded the company a small business set-aside contract.

Not surprisingly, the GAO had something to say about it.

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SBA Proposal: Allow NAICS Appeals on Unrestricted Procurements

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Size always matters–even on unrestricted procurements.   That’s the message coming from SBA in light of a proposed rule making a number of changes to its size regulations, primarily to address small business set-asides within the context of multiple-award award contracts.  Buried in the proposed regulation is an interesting change: the SBA intends to give the SBA Office of Hearings and Appeals the right to hear challenges to NAICS code designations, even when a procurement is not set-aside for small businesses.

For many years, SBA OHA has dismissed NAICS appeals on unrestricted procurements, stating, in essence, that there is no purpose in appealing the NAICS code when no set-aside is involved.  Although the SBA’s proposed rule doesn’t go into great detail, it seems to me that size can be advantageous, even on an unrestricted procurement.  For instance, a small business generally is exempt from the subcontracting plan requirement, but an “other than small” business typically must submit a subcontracting plan.  Likewise, a HUBZone-certified company will only qualify for the HUBZone price preference if it qualifies as small for the procurement.

Kudos to SBA for recognizing that size always matters, and proposing to amend the NAICS appeal rules accordingly.  Let’s hope that this proposal sticks in the final regulation.

The Small-Business Guide to Government Contracts: Two Weeks to Go

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What are your plans after work on Wednesday, June 6?  Dinner out?  Happy hour?  Collapsing on the couch in front of a Law & Order: SVU marathon with a giant bag of Skittles?  How about ordering a book about legal compliance for small government contractors?  Yes, it’s shameless plug time: two weeks to go until the publication of my book, The Small-Business Guide to Government Contracts.

I wrote the Small-Business Guide to Government Contracts to help small contractors understand their compliance obligations in the federal marketplace.  The book covers rules and regulations from size and affiliation to ethics, wage and hour requirements, and the special compliance requirements of the four major socioeconomic set-aside programs (8(a), SDVOSB, HUBZone, and WOSB).  It even includes some handy-dandy checklists to help contractors track compliance.

Yes, I know you’ve got big plans on June 6.  I’m not going to get between you and your Skittles.  But don’t worry–you can pre-order The Small-Business Guide to Government Contracts today at Amazon or Barnes & Noble.