Unanimity and supermajority voting requirements are one of the most common ways for a service-disabled veteran-owned small business to find itself on the wrong end of an eligibility protest (or, in the case of the VA, a CVE verification denial). Case in point: the decision of the SBA Office of Hearings and Appeals in SDVOSB Appeal of Rush-Link One Joint Venture, SBA No. VET-228 (2012).
Author Archives: Steven Koprince
NAICS Code Appeals: A Quick Timeliness Reminder
If you Google the simple phrase “10 days,” the top result is the IMDb page for the movie How to Lose a Guy in 10 Days. I haven’t seen this 2003 Matthew McConaughey/Kate Hudson romantic comedy, and Lord willing, never will (though I recall that my 80-something grandmother thoroughly enjoyed it).
Even though NAICS code appeals didn’t pop up first on the Google rankings, actors with a penchant for the Texas Longhorns aren’t the only thing that can be lost in 10 days. If you want to file a NAICS code appeal with the SBA Office of Hearings and Appeals, act quickly. Under the SBA OHA regulations, NAICS code appeals must be filed and served within 10 days after the issuance of the solicitation. Any later, and you will lose your right to appeal, as one would-be appellant recently learned.
R U Compliant? FAR Bans Texting While Driving
Working on a government contract? Put down that cell phone, at least when you are in the car. In case you didn’t realize it, the FAR essentially bans texting while driving (although what penalties you might face for violating this policy, if any, are unclear).
Under FAR 23.1105 and FAR 52.223-18, which is to be included in every contract, a government contractor “should” adopt and enforce a policy banning texting whenever an employee is: (1) driving a vehicle owned or rented by the company; (2) driving a vehicle owned by the government; or (3) driving a privately owned vehicle when performing any work on behalf of the government.
Same As It Ever Was: GAO Confirms Reinstatement of $10 Million Task Order Bid Protest Threshold
In 2008, Congress granted GAO the authority to hear bid protests of task orders valued at more than $10 million. After this provision sunset in 2011, the GAO held in Technatomy Corp., B-405130 (June 14, 2011), that it had authority to hear bid protests of task orders of any size.
Congress, apparently, did not approve of GAO’s newfound expansion of its bid protest authority. In December 2011, it passed legislation to reinstate the $10 million threshold. Notably, the amendment applies to task order solicitations issued during that “golden period” between June and December 2011.
SBA Affiliation Rules and Control: The Minority Owner Trap
Does a person who owns a minority share of a company “control” the company under the SBA affiliation rules? Yes, if the company has no majority owner and the minority share owned by the individual in question is the largest, or is similar in size to, the largest other minority shares.
Get all that? An example may help. The decision of the SBA Office of Hearings and Appeals in Size Appeal of Advent Environmental, Inc., SBA No. SIZ-5325 (2012), demonstrates how this rule can be a trap for the unwary.
Mystery, Intrigue and OCIs: Anonymous Source Sinks Contractor’s Bid
It sounds more like a scene from “All the President’s Men” than the factual background of a GAO bid protest. In McTech Corporation, B-406100, B-406100.2 (Feb. 8, 2012), an anonymous caller tipped off a procuring agency that McTech had an apparent organizational conflict of interest, leading to McTech’s exclusion from the competition. The resulting GAO bid protest didn’t bring down a presidential administration, but it does provide a cautionary tale on the intersection of SBA mentor-protégé agreements and OCIs.
SBA Affiliation Rules and the Present Effect Rule: When Does an Agreement Arise?
Under the SBA affiliation rules, the SBA will apply the so-called “present effect rule” when it examines an agreement for a merger or acquisition, including an agreement in principle. Under the present effect rule, such an agreement is presently effective with respect to the question of control–which can present a big problem under the SBA affiliation rules.
For example, if Company A has agreed to purchase Company B, the SBA deems Company A to control Company B from the moment the agreement is reached, even if the deal does not close until months later. This makes Companies A and B affiliates from the date their agreement is reached for purposes of the SBA affiliation rules.
The present effect rule makes sense, but when does an “agreement” arise for purposes of the rule? The SBA Office of Hearings and Appeals examined this issue in Size Appeal of Nuclear Fuel Services, Inc., SBA No. SIZ-5324 (2012). If you are in discussions or negotiations for a merger or acquisition, and are worried about potential affiliation, SBA OHA’s decision will leave you breathing a sigh of relief.