Author Archives: Steven Koprince

SBA Corrects Profit-Splitting Flaw In New Joint Venture Regulations

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The SBA has corrected a flaw in the profit-splitting provisions of its new joint venture regulations.

Under the corrected regulations, which became effective on December 27, all of the SBA’s joint venture regulations–those for small businesses, SDVOSBs, HUBZones, 8(a)s, and WOSBs–will require that each joint venturer receive profits commensurate with the work it performs.  The SBA’s revisions clear up an inconsistency between the 8(a) joint venture regulations and the regulations for the SBA’s other set-aside programs, and eliminates a potential disincentive for joint venturers to avail themselves of the protections of a formal legal entity such as a limited liability company.

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SmallGovCon Week In Review: December 19-23, 2016

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With Christmas just two days away, it is time for  many of us to focus on family and friends and enjoy a few days off. I hope that you have an enjoyable holiday season and are able to surround yourself with those that mean the most to you. Before we take a little break for the holidays we are happy to bring you this final 2016 edition of SmallGovCon Week In Review. (We won’t be publishing a Week in Review next week, but will be back with more in 2017).

As we head into the final week of 2016, we take a look at two separate fraud cases where million dollar fines have been assessed, more predictions of how the incoming Trump Administration will affect government contractors, 2017 is shaping up as a competitive year in IT contracting, and much more.

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New FAR Provisions Require Contractor Privacy Training

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The FAR Council has published a final rule to require that certain contractor employees complete privacy training.

The final rule requires privacy training for contractor employees who handle personally identifiable information, have access to a system of records, or design, maintain, or operate a system of records.

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GAO: Offeror Improperly Excluded For “Neutral” Past Performance

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An agency acted improperly by excluding an offeror from the competitive range simply because the offeror received a “neutral” past performance score.

In a recent bid protest decision, the GAO wrote that the FAR precludes evaluating an offeror unfavorably because of a “neutral” or “unknown” past performance rating–and that the prohibition on unfavorable treatment prevents an agency from excluding an offeror from the competitive range on the basis of a neutral rating.

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SmallGovCon Week in Review: December 12-16, 2016

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This winter’s first polar vortex is upon us, and although much of the country has been getting hit with snow, Kansas has managed to stay mostly snow free with temperatures centered around a balmy 30 degrees. As the vortex sweeps its way out, we are looking to get our first dose of really cold weather with lows in the teens this weekend. Weekends like this are perfect to spend time with family and daydream about being on a beach–or anyplace that does not require 10+ minutes of preparation just to leave the driveway.

While much of the nation prepares to dig itself out from a winter snowstorm, there is still plenty happening in the world of government contracts. In this week’s SmallGovCon Week In Review, the FAR Council issues a rule responding to a judge’s injunction of much of the Fair Pay and Safe Workplaces Executive Order, a Virginia contractor will cough up $1 million to settle bid rigging and kickback allegations, and much more.

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GAO Bid Protest “Sustains” Jump Sharply In FY 2016

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The GAO sustained 22.56% of protests decided on the merits in Fiscal Year 2016–nearly double the 12% sustain rate reported in FY 2015.

According to the GAO’s FY 2016 Bid Protest Annual Report, the GAO sustained 139 of the 616 protests decided on the merits (that is, cases where GAO actually reached a “sustain” or “deny” decision).  The overall effectiveness rate for protesters–a combination of “sustain” decisions, plus the many cases in which agencies took corrective action in response to protests–was 46%, a slight increase over the prior fiscal year.

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Offeror With “Relatively Weak Proposal” Can File Size Protest, Says SBA OHA

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An offeror with a “relatively weak proposal” can nonetheless file a size protest challenging the small business eligibility of the prospective awardee, provided that the protester was not found technically unacceptable or otherwise incapable of being selected for award.

In a recent size appeal decision, the SBA Office of Hearings and Appeals held that the mere fact that the protester was evaluated as “less than satisfactory” on four out of five non-price factors did not justify dismissing the protester’s size protest for lack of standing.

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