Past Performance Isn’t Always a Required Evaluation Factor, Says GAO

Posted on March 30, 2021 by Steven Koprince

For companies trying to break into the government market for the first time, past performance can seem a bit like the old chicken-and-egg conundrum. Sometimes it can appear like a company can’t win a government contract without a strong record of past performance–but can’t build a past performance record without contracts! And with the government’s continued movement away from lowest-price, technically acceptable evaluations, past performance seems increasingly important.

But that doesn’t mean the government always has to consider past performance as an evaluation factor. Instead, as a recent GAO bid protest decision confirms, procuring agencies have broad discretion to omit past performance in appropriate cases.

Small GovCon Week in Review: March 22-26

Posted on March 26, 2021 by Shane McCall

Our hometown Jayhawks basketball team didn’t fare so well in the NCAA tournament. That’s alright; spring is right around the corner. And with it some nice weather across the country. Hope you are able to enjoy the outdoors this weekend.

But before the weekend arrives, this week brought some interesting updates in government contracting, including the details on the regulatory freeze from the Biden administration, IT modernization developments, and preparing for a CMMC assessment.

OHA to Area Office: Prime-Subcontractor Teams are Different than Joint Ventures for Size Purposes

Posted on March 25, 2021 by Shane McCall

The ostensible subcontractor rule says that, for a small business or socioeconomic set-aside such as 8(a), the small business prime contractor must perform the primary and vital parts of the contract and can’t be unduly reliant on a subcontractor. If the small business is found to violate the rule, the size of the small prime contractor and the large subcontractor are grouped for size purposes, which can result in loss of award. But the ostensible subcontractor rule is different from SBA’s joint venture rules, because SBA rules (and other federal law) distinguish between a prime-sub team and a joint venture. In a recent decision, OHA reversed a determination that a small business prime was affiliated with a subcontractor where the Area Office mixed up the analysis of the ostensible subcontractor rule and the joint venture rules.

Event: Understanding & Obtaining HUBZone Certification – Update 2021

Posted on March 25, 2021 by Shane McCall

Live Govology Webinar: April 8, 2021, 1:00-2:30pm EDT Instructors: Steven Koprince & Shane McCall

In late 2019, the SBA issued a final rule, making several changes to the HUBZone program. Join us as we discuss these changes as well as SBA’s related guidance and provide an overview of the HUBZone program’s requirements, including:

Ownership, control, and other HUBZone eligibility criteria.
Benefits: HUBZone set-asides, sole-source contracts, and price preference.
The principal office rule and why it may not be your headquarters.
The 35% employee rule and the “attempt to maintain” standard.
Who qualifies as an employee and what happens if they move.
The clear line of fracture standard.
Annual certification.
Program examinations.
Maintaining compliance in a changing landscape.

If you’re a HUBZone concern trying to navigate these uncharted waters or have thought about obtaining HUBZone certification in the future, this webinar is for you. Register here.

Update: DUNS Not “Done” Until Spring 2022

Posted on March 24, 2021 by Nicole Pottroff

GSA has recently announced that the long anticipated DUNS Number transition to the new Unique Entity ID (UEI) Standard has been pushed back to April 2022.

SBA’s Change to Joint Venture Bank Account Rule is Another Trap for the Unwary

Posted on March 23, 2021 by Steven Koprince

If you are part of a joint venture between a small protege and its large mentor under the SBA’s Mentor-Protege Program, heads up: the SBA recently amended its list of mandatory requirements for joint venture agreements to cover what happens to funds left over in the joint venture bank account at the end of a project.

Like the revised recordkeeping rules I discussed in an earlier post, the new required provision only applies to mentor-protege joint ventures pursuing small business set-aside contracts–not to JVs seeking 8(a), SDVOSB/VOSB, WOSB/EDWOSB or HUBZone work. Confusingly (and again, like the recordkeeping rules), SBA’s decision to change only the small business set-aside regulation, 13 C.F.R 125.8, means that the same joint venture agreement may not be valid for both small business set-aside contracts and socioeconomic contracts.

Small GovCon Week in Review: March 15-19

Posted on March 19, 2021 by Shane McCall

March Madness begins today and as residents of a city where basketball reigns supreme (Lawrence, Kansas) I can tell you that we are all beyond excited about the NCAA tournament. We have our brackets completed and locked in so let the games begin!

We are also seeing signs of Spring as the temperatures are warming, the rain is falling and the plants are starting to look green and bright after a long, cold winter. It’s a season of change which is also true in the world of government contracting with the announcement of a new SBA Administrator. Here are some highlights from this week.