After a participant in the SBA’s 8(a) Program graduates, can its mentor-protégé agreement be reapproved for another full year? Surprisingly, the answer may be “yes.” At least, this is what happened in the Armed Services Board of Contract Appeals’ decision in HMRTECH2 LLC, ASBCA No. 56829 (2009). However, subsequent rule changes indicate that the benefits of any such post-graduation re-approval will be limited to contracts obtained prior to graduation.
Author Archives: Steven Koprince
Proposal Submission: Check Agency Security Requirements
During my first summer in Washington, D.C. many years ago, I spent a hot, sticky Fourth of July on the National Mall, eating picnic food and watching the fireworks. I’m sure a few security personnel were around, but I took no notice of them. Flash forward to another Fourth on the Mall—this one post-9/11. On that Fourth, everyone entering the Mall had to pass through security before celebrating America’s birth. I remember mixed emotions—I was glad that the government was focusing on public safety, but frustrated about standing in a long security line just to reach the Mall.
Security is a reality of life these days, especially when dealing with the government. That’s why if you plan to hand-deliver a proposal to a procuring agency, be sure to check the agency’s security requirements well in advance of your planned delivery time, or the proposal could be rejected as late. One contractor learned this lesson the hard way, as described in the GAO’s bid protest decision in B&S Transport, Inc., B-404648.3 (Apr. 8, 2011).
Quorum Provision Defeats SDVOSB Status
If someone asked me to play a word association game with the phrase “quorum provision,” one of my first responses might be “boring.” After all, who really cares about some arcane paragraph tucked away in a company’s governing documents, describing how many people must attend company meetings?
Well, SDVOSBs should care. If your small business is pursuing service-disabled veteran-owned small business set-aside opportunities, you better make sure your governing documents are airtight. As demonstrated in one recent SBA Office of Hearings and Appeals decision, even something as mundane and boring as a quorum provision can defeat SDVOSB status, if the provision does not allow service-disabled veterans to unconditionally control the company.
Veteran Controls Both 8(a) Company and SDVOSB—By Working 95 Hours Per Week
In the legal profession, some firms are known to encourage a workaholic culture. I have heard tales of associates spending multiple nights sleeping (a couple hours) on office couches, being called away from the Thanksgiving dinner table to work, or awoken by the proverbial “3 a.m. phone call” by a partner demanding immediate attendance at the office. The funny thing is that most of these stories come from the associates themselves—bragging about how much they work!
I work hard for my clients, but with a wonderful wife and daughter in my life, I am of the mind that some of the most important things are found outside the office. However, one small business owner, who was the subject of a recent SBA Office of Hearings and Appeals decision, might feel right at home in one of those workaholic law firms. This business owner was able to convince SBA OHA that he worked full time both for his 8(a) company and his separate service-disabled veteran-owned small business—by putting in a whopping 95 hours per week.
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GAO’s Bid Protest Jurisdiction Encompasses OPIC Procurements
The GAO has ruled that it has jurisdiction over bid protests filed on Overseas Private Investment Corporation (“OPIC”) procurements.
In MFM Lamey Group, LLC, B-402377 (Mar. 25, 2010), the GAO rejected OPIC’s argument that its procurements fall outside GAO’s jurisdiction. GAO has jurisdiction over protests of procurements by a “federal agency.” Although OPIC is a government-owned corporation, not an agency, GAO held that the definition of “federal agency” in the Competition in Contracting Act (“CICA”) includes wholly-owned government corporations, and thus gives the GAO bid protest jurisdiction over OPIC.
Unfortunately for the protester in the MFM Lamey Group case, the jurisdictional victory was the only win it got. After holding that it had jurisdiction, the GAO went on to deny the protest.
Contradictory Discussions Question Should Have Been Protested Pre-Award
Imagine that only days remain until your proposal is due, and your company receives a discussions letter from the agency. Reading the letter, you’re confused—one of the agency’s instructions seems to directly contradict the solicitation. What do you do?
If you’re like most contractors, the last thing on your mind is running to the GAO with a bid protest. After all, you haven’t even submitted your proposal—the last thing you want to do is upset the agency before it even evaluates your offer. So you take your best guess as to what the agency intends and submit your final proposal revision. If the agency makes award to a competitor, you can protest at that time, right?
Wrong, according to a recent GAO bid protest decision.
Agency’s FedBizOpps Slip-Up Leads to Sustained GAO Protest
The GAO has made it clear that contractors are considered to have “constructive knowledge” of items agencies post on the FedBizOpps website. When agencies post on FedBizOpps, though, they must properly classify the posted information, or a GAO bid protest will be sustained, as was the case in TMI Management Systems, Inc., B-401530 (September 28, 2009).