Past performance is an important part of the agency evaluation process—we’ve written about it many times before for a reason. Like other evaluation areas, agencies get a great deal of discretion in evaluating past performance. Perhaps a contractor thinks it has a good past performance record and wants the agency to consider it; perhaps the contractor doesn’t want the agency to ignore a poor past performance record of a competitor. How can a contractor tell when the agency made a reasonable decision not to consider some aspect of past performance? A recent COFC decision showed that the agency cannot ignore adverse past performance in some cases. COFC applied the “too close at hand” doctrine—which says agencies may be obligated to consider information it has during an evaluation, even if the offeror didn’t cite to it. Whether or not an agency’s failure to consider particular information is a violation of this rule or not is a fact-specific inquiry.
Continue readingAuthor Archives: Will Orlowski
Minimum Market Research: COFC Confirms that Agency Small Business Market Research was Reasonable
Here at SmallGovCon, we have often discussed the federal government’s small business “Rule of Two” and the basis it provides small business contractors for protesting an agency’s decision not to set aside a procurement for small businesses. One essential component of that rule is a requirement that agencies conduct market research when determining whether or not two or more responsible small businesses are likely to submit offers on the pending solicitation. That market research has always been a loosely-defined, broad concept, one which allows agencies a fair amount of discretion in how they go about assessing the number of potentially-responsible small businesses in a given industry. As a result, agencies have some leeway in how they conduct their market research. Unfortunately, this makes it difficult for contractors to assess what constitutes satisfactory market research—in other words, how can a small business determine whether the agency properly chose an unrestricted procurement?
A potential common-sense approach one might consider would be to look at examples of market research that have been found acceptable under judicial review before. That provides a baseline threshold, and if the agency you are assessing falls short, it might seem reasonable to think that the agency did not carry its burden—i.e., there might be a successful Rule of Two protest basis on hand. This approach was applied by the protester in a recent Court of Federal Claims decision, but as explained below, it was not a successful one. The Court essentially stated that, just because one agency had gone to specific lengths in the past to conduct its market research, this did not mean that other agencies were required to go to similar lengths in order to satisfy their market research requirements. Rather than establish a standard to adhere to, the original agency had instead gone above the minimum.
Continue readingGAO Sides with VA, Joint Venture Must Be SDVOSB Eligible at Time of Award
Here at SmallGovCon, we spend a lot of time studying (and talking about) the various small business federal set-aside programs. As a result, a lot of our focus is dedicated to SBA’s regulations governing these programs—after all, it is the agency that was created by the Small Business Act to issue and implement precisely these regulations. So, it may be tempting for small business federal contractors to focus on those SBA rules and think, so long as they have complied with all the nuances they contain, their business is eligible for these sorts of set-aside contracts.
As one joint venture recently found out the hard way, however, other agencies have their own unique sets of regulations that can impact set-aside contracts as well. One such agency is the Department of Veterans Affairs (VA), which has its own body of rules governing VA procurements—the Veterans Affairs Acquisition Regulation (“VAAR”). One of the programs that the VA implements is the Veterans First Contracting Program (“Vets First”), which interacts quite a bit with SBA’s SDVOSB program. As a result of the overlap, potential offerors on VA contracts set aside for SDVOSBs must ensure they comply with both VA and SDVOSB regulations, and this is where the protester in Potomac Valor Healthcare-2, LLC, B-423195.2 (Aug. 12, 2026) ran into trouble. GAO’s decision in the case sheds some light on the way VA’s specific requirements create additional obligations for SDVOSB joint ventures, and serves as a cautionary tale to other prospective offerors who may find themselves in a similar situation. In short, the protester was SDVOSB compliant and registered in VetCert at the time of offer, but erroneously believed that it did not have to maintain that same level of compliance at the time of award. GAO found that, as the SDVOSB partner of the joint venture was no longer small at the time of award (a fact reflected in VetCert), the JV could not receive the award.
Continue reading