A couple of weeks ago, I explored the Court of Federal Claims case of SH Synergy, LLC v. United States. In that blog, linked below, I looked at the first question raised in the protest that centered on the question of whether a mentor with two approved mentor protégé joint ventures with two different protégés under the SBA’s Mentor-Protégé Program is restricted from placing competing offers for a solicitation, in this case GSA’s Polaris solicitation. The answer to that was yes, they are restricted pursuant to 13 C.F.R. § 125.9. Because this decision was chocked full of useful information, and as promised, I’m back to look at the second issue tackled in this mammoth COFC opinion: did the solicitation’s terms, which required mentor-protégé joint ventures, woman-owned small business joint ventures, and service-disabled veteran owned small business joint ventures to be evaluated in the same manner as offerors, generally, violate procurement regulations? As you will see, the answer to that question is also yes, and it appears that this decision has already had an impact on other procurements.
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COFC Confirms: Mentor-Protege JVs from the Same Mentor Can’t Bid Against Each Other
Those who work within the federal government contracting world are likely to have noticed that, lately, many large indefinite delivery, indefinite quantity (IDIQ) contracting vehicles are soliciting offers. However, with large contracting vehicles, which are often worth billions of dollars and promise many awards, there are often many protests. And Polaris, Transformation Twenty-One Total Technology Next Generation 2 (T4NG2), and Chief Information Officer – Solutions and Partners 4 (CIO-SP4), to name just a few of such solicitations, are no exception. Although many bid protests are filed with the Government Accountability Office (GAO), the Court of Federal Claims (COFC) also has jurisdiction over such matters, and COFC decisions are usually more indepth and the review of information from the agency more robust than at GAO.. This post will discuss the first of three main issues SH Synergy, LLC v. United States, and, because there is so much useful information packed into the decision’s 75 pages, we’ll plan a separate post for other issues.
Continue readingThird Time’s the Charm: Protest Sustained by COFC Due to Failure to Conduct Discussions and Flawed Price Reasonableness Evaluation
Proving that an agency acted improperly in its source selection process can be a difficult task for any protester. In theory, for a best value tradeoff decision, the agency’s decision and the process to come to that decision seems easy: the agency does a tradeoff between cost and non-cost factors, and that which is most advantageous to the government is awarded. How hard could it be? And the decisions handed down by the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) seem to confirm that it isn’t that hard, seeing as many cases challenging a best value decision are denied. This is, in large part, due to the discretion agencies are afforded in their source selection decisions. Whether an agency conducts discussions during the source selection process is one of many procurement factors that is left up to the agency’s discretion. But, every so often, a decision comes along to prove that there are limits to an agency’s discretion, and in this case, the agency’s discretion overstepped its bounds with its price reasonableness decision and the unjustified decision to not perform discussions.
Continue readingAgencies Do Not Have Unlimited Discretion to Cancel Solicitations, Says the COFC
In its recent decision, the Court of Federal Claims decided whether and when an agency can cancel a FAR part 15 procurement and start from scratch. Agencies have historically been afforded extremely broad discretion in cancelling solicitations. But in this case, the court agreed with the protester that cancellation was wrongful. It also laid out the details of a proper versus improper solicitation cancellation quite nicely. Thus, this landmark decision provides crucial guidance on the subject for agencies and federal contractors alike.
Continue readingWho You Gonna Call? Your Contracting Officer (Part 3)
In our line of work, we regularly litigate protests, claims, appeals, etc., against the Government. But often, procuring and contracting issues can be resolved without the need for litigation–via a little-known method we like to call “talking things out with your CO.” There are also some important things to keep in mind regarding contract performance communications. This article is the last of three articles aimed at providing helpful tips for communicating with your contracting officer. Part 1, which focused on pre-solicitation and solicitation communications, can be found here. And Part 2, which focused on proposal submission communications, can be found here. This article will focus on contract performance communications.
Continue readingFederal Court Confirms Strict SDVOSB Unconditional Ownership Requirements
As we’ve discussed, the SBA will soon take the reins over from VA to run the certification process for Veteran-Owned Small Businesses (VOSBs) and Service-Disabled, Veteran-Owned Small Businesses (SDVOSBs). Self-certification for SDVOSBs will go away on December 31, 2023, so be sure to get your SDVOSB ownership and control documents up to snuff in order to stay compliant with the SDVOSB rules. One of those rules concerns unconditional ownership by the veteran. A recent federal court case sheds some additional light on that topic, as explored in this post.
Continue readingReminder: If Pricing is Too High, VA Rule of Two Might Not Apply
The VA Rule of Two, while a powerful motivator for setting procurements aside for service-disabled veteran-owned small businesses, does have its limits.
One of those exceptions was discussed in a recent ruling from the United States Court of Appeals for the Federal Circuit. The court confirmed that the VA may convert a service-disabled veteran-owned small business set-aside solicitation to a small business set-aside if the SDVOSB bids it receives are too high in price.
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