For years, it had been difficult for joint ventures to get Facility Security Clearances to go after DoD contracts where a facility clearance was required. The DoD and many contracting officers had long required that the joint venture entity itself, rather than each individual joint venture member, have the FCL. SBA thought it had fixed this problem when it updated its joint venture rules in November 2020 to eliminate the need for the joint venture to have an FCL, as we wrote at that time. But DoD contracting officers had been ignoring this rule, setting up a showdown at GAO to decide if the SBA’s rule did actually apply to the DoD.Continue reading
You may recall a post of ours back in April 2021, where we discussed a little-known change to SBA’s size determination rules that occurred in October 2020. SBA created an exception, at 13 C.F.R. § 121.404(g)(2)(iii), to the usual “size is determined at offer date” rule. Now, prior to award, when a small business is part of a merger or acquisition after it makes an offer on a solicitation, the business has to recertify its size, and depending on when that acquisition occurred, if the business is now large, it may lose its award.
However, the rule is for better or worse not that straightforward, as a small business learned in a recent GAO decision. Because a part of the rule says that task order awards in such cases may not be treated as small business awards, GAO concluded that such awards are still allowed.Continue reading
Like any other offeror, a joint venture must be registered in the System for Award Management. And, as one joint venture recently learned the hard way, if a JV is not registered in SAM by the award date, the missing registration could prove costly.Continue reading
Given the amount of competition in most solicitations, the ability of a contractor to receive feedback on its proposal can provide valuable information to help the contractor hone its response to best address the key factors sought by the agency in its solicitation. On those rare occasions when an agency reopens its solicitation and provides feedback to the individual offeror’s initial proposal, the contractor is provided such an opportunity–except when the contractor gets left out of the feedback party.
In a recent decision, an agency failed to disclose a flaw it first identified in its reevaluation of a contractor’s unchanged proposal after a corrective action. When the proposals were evaluated after the corrective action, the contractor ended up losing an award for which they were previously selected. As a result, the contractor filed a protest primarily asserting that, because the agency failed to provide feedback on its proposal, the agency’s evaluation of the proposal was unreasonable. GAO sustained the protest.Continue reading
As federal contractors begin to become engaged in multiple programs for a particular agency, the potential for the firm to encounter a situation where it finds itself involved in an organizational conflict of interest (OCI) may increase. This is particularly true with respect to “impaired objectivity” OCI, which is when a firm’s ability to render impartial advice to the government is or might be undermined by the firm’s competing interests. These OCIs often arise in service contracts where the contractor is placed in a position of evaluating its own performance on other contracts.
In a recent case, GAO found that an agency’s award of a contract created an impermissible impaired objectivity OCI for a contractor from two different perspectives for services that the contractor provided in the capacity as both a prime and subcontractor for an agency. The case is Steel Point Solutions, LLC B-419709,B-419709.2 (July 07, 2021).Continue reading
The grounds for GAO protests are numerous, ranging from vague terms in a solicitation to showing that an awardee’s proposal lacked needed information. However, they are not unlimited. One protester argued that the terms of a solicitation were inconsistent with regulations concerning mortgage insurance. Unfortunately for them, that isn’t something GAO will consider.Continue reading
The costs of filing a bid protest can dissuade some protesters from submitting bid protests. One silver lining for protesters is a recommendation for reimbursement of costs upon a sustained decision. However, even when GAO says a protest is “clearly meritorious”, the protest may still be dismissed prior to GAO issuing a decision.
What happens when an agency takes corrective action in the face of a likely sustained GAO decision? One protester recently found out.Continue reading