SBA Proposal: Allow NAICS Appeals on Unrestricted Procurements

Posted on May 24, 2012 by Steven Koprince

Size always matters–even on unrestricted procurements. That’s the message coming from SBA in light of a proposed rule making a number of changes to its size regulations, primarily to address small business set-asides within the context of multiple-award award contracts. Buried in the proposed regulation is an interesting change: the SBA intends to give the SBA Office of Hearings and Appeals the right to hear challenges to NAICS code designations, even when a procurement is not set-aside for small businesses.

For many years, SBA OHA has dismissed NAICS appeals on unrestricted procurements, stating, in essence, that there is no purpose in appealing the NAICS code when no set-aside is involved. Although the SBA’s proposed rule doesn’t go into great detail, it seems to me that size can be advantageous, even on an unrestricted procurement. For instance, a small business generally is exempt from the subcontracting plan requirement, but an “other than small” business typically must submit a subcontracting plan. Likewise, a HUBZone-certified company will only qualify for the HUBZone price preference if it qualifies as small for the procurement.

Kudos to SBA for recognizing that size always matters, and proposing to amend the NAICS appeal rules accordingly. Let’s hope that this proposal sticks in the final regulation.

The FAR’s Limitations on Subcontracting and IDIQ Contracts

Posted on May 16, 2012 by Steven Koprince

Here’s a question I get with some frequency: “do I have to comply with the FAR’s subcontracting limitations for every task or delivery order?” You will be happy to learn that the GAO, at least, has answered this question “no.”

Although the FAR Limitations on Subcontracting clause, FAR 52.219-14, does not address IDIQs, task or delivery orders, the GAO has held that the subcontracting limitation FAR clause “applies to the contract as a whole and does not require that each delivery order placed under the contract satisfy the requirements of the clause.” Spectrum Security Servs., Inc., B-297320.2 (Dec. 29, 2005). According to the GAO in the Spectrum Security Services bid protest, the “contract as a whole” means that where a solicitation provides for the price evaluation of base and option years, the entire contract—both base and all priced options—will be reviewed to determine whether the offer complies with the subcontracting limits.

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R U Compliant? FAR Bans Texting While Driving

Posted on March 12, 2012 by Steven Koprince

Working on a government contract? Put down that cell phone, at least when you are in the car. In case you didn’t realize it, the FAR essentially bans texting while driving (although what penalties you might face for violating this policy, if any, are unclear).

Under FAR 23.1105 and FAR 52.223-18, which is to be included in every contract, a government contractor “should” adopt and enforce a policy banning texting whenever an employee is: (1) driving a vehicle owned or rented by the company; (2) driving a vehicle owned by the government; or (3) driving a privately owned vehicle when performing any work on behalf of the government.

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