Of all the many “protest” tools available to small government contractors, NAICS code appeals can be one of the most powerful. Unfortunately, many contractors don’t fully understand the NAICS appeal process, or how it can help them reach their procurement goals. The decision of the SBA Office of Hearings and Appeals in NAICS Appeal of 1st American Systems & Services, LLC, SBA No. NAICS-5119 (2010) provides a compelling example of how a savvy small business contractor can use the NAICS appeal process to vastly narrow the competitive playing field.
Author Archives: Steven Koprince
Amended Bylaws Can’t Rescue Ineligible SDVOSB
The regulations governing the SBA’s service-disabled veteran-owned small business program are clear: to qualify as an SDVOSB, a business must ensure that a service-disabled veteran serves as its highest officer.
The SBA will examine a SDVOSB’s bylaws to see whether the provision is met. If not, belatedly amending the bylaws won’t save the business’s eligibility for a contract it bid upon before the amendment, as demonstrated by a SDVOSB appeal decision of the SBA Office of Hearings and Appeals.
Contradictory, Post Hoc Statements Don’t “Fix” Ostensible Subcontractor Rule Problem
When a small government contractor gets its hand caught in the “affiliation” cookie jar, the natural reaction is to scramble to fix the problem, even if it means contradicting the contractor’s own proposal. But don’t expect post hoc efforts at fixing a problem with the SBA affiliation rules to pan out. The SBA’s Office of Hearings and Appeals has held that where a contractor’s after-the-fact statements regarding affiliation contradict its proposal, the language of the proposal governs.
GAO Bid Protests: Email Filings Must Use Correct Address
If there’s anything worse than losing a GAO bid protest, it’s losing a GAO protest on a technicality.
One of the many conveniences GAO offers protesters is the ability to file protest-related documents by email. But protesters must timely file their documents at the email address provided under the GAO’s regulations—protests@gao.gov–or their filings will be disregarded. As one protester learned the hard way, even emailing the document to the individual email address of the GAO attorney deciding the protest isn’t a substitute for using protests@gao.gov.
Large Contractor Downgraded for Inadequate Subcontracting Plan
Many contractors, large and small, will tell you that the government is taking its small business obligations seriously these days. The renewed emphasis on small business can be seen not only at the prime contracting level, where we are finally getting close to the 23% government-wide goal, but also at the subcontracting level.
Contracting agencies are closely scrutinizing large businesses’ subcontracting plans for small and disadvantaged businesses. Case in point: the agency evaluation in L-3 STRATIS, B-404865 (June 8, 2011).
SBA Size Protests, Timeliness, and After Hours Notifications
An SBA size protest on a negotiated procurement must be submitted within five business days “after the contracting officer has notified the protester of the identity of the prospective awardee.” But what happens if the contracting officer’s notice arrives after normal working hours? Does the clock start ticking anyway?
GAO: Oral Advice Doesn’t Alter Solicitation Terms
In negotiated procurements, contractors sometimes enter into discussions with agency representatives. But contractors must understand that oral discussions don’t trump a solicitation’s terms. If a government solicitation includes clear and specific requirements, the agency’s subsequent oral advice to the contrary doesn’t waive or alter the solicitation–a rule confirmed, to one contractor’s detriment, in a recent GAO bid protest decision.