We’re back! 2016 has finally arrived and we here at Koprince Law couldn’t be more excited to dive into the new year with our first SmallGovCon Week In Review post. The first week of January brings some new policies and processes for contracting, a look back at the top procurement stories of 2015, and much more.
Author Archives: Steven Koprince
GAO: Subcontract With Incumbent Didn’t Mandate High Past Performance Score
An offeror was not entitled to a high past performance score merely because it proposed a subcontracting relationship with the incumbent prime contractor.
In a recent bid protest decision, the GAO held that an agency had properly assigned the offeror a mere “Satisfactory” past performance score, despite a subcontracting relationship with the incumbent, because the prospective prime contractor had not sufficiently demonstrated its own relevant past performance.
Buy American Act Fraud: Contractor To Pay $3 Million
A government contractor will pay a total of $3 million to resolve civil and criminal allegations that it violated the Buy American Act by using non-compliant foreign materials on federally funded construction projects–and falsified documents in an attempt to hide its violations.
According to a Department of Justice Press release, Novum Structures LLC not only will pay $3 million, but will be debarred from federal contracting.
Nonmanufacturer Rule: Post-Proposal Substitutions Don’t Work
The nonmanufacturer rule requires, among other things, that the prime contractor supply the end items of a small business manufacturer, or obtain a SBA waiver of that requirement. Compliance with the nonmanufacturer rule is determined as of the date of the final proposal–and a subsequent switch in manufacturers won’t be recognized by the SBA.
In a recent decision, the SBA Office of Hearings and Appeals held that the SBA had erred by evaluating a prospective prime contractor’s nonmanufacturer rule compliance because the small business end manufacturer in question had not provided a quotation to the prime until well after the prime’s proposal had been submitted.
WOSB Sole Source Authority Added To FAR
WOSB sole source authority is now part of the FAR.
Effective December 31, 2015, the FAR Council has adopted an interim rule incorporating the WOSB sole source authority adopted in the 2013 National Defense Authorization Act and recently made part of the SBA’s regulations.
SBA Affiliation Rules: Beware Supermajority Voting Requirements
Under the SBA’s affiliation rules, a minority owner may “control” a company where the company’s governing documents impose supermajority voting requirements that require the minority owner’s consent for the company to make ordinary business decisions.
In a recent size appeal decision, the SBA Office of Hearings and Appeals confirmed that supermajority voting requirements may establish control (and affiliation), even where the minority owner does not actually exercise its control.
SDVOSB Protests Versus Bid Protests: SBA OHA Provides Some Clarity
A protest challenging a company’s status as a service-disabled veteran-owned small business is not the same as a protest challenging other aspects of an agency’s award decision (such as the evaluation of the protester’s proposal)–and these differences can determine whether a protest is timely and correctly filed.
In a recent case, the SBA Office of Hearings and Appeals provided some clarity on key differences between SDVOSB protests and bid protests, including important limits on the SBA’s jurisdiction.