Ostensible Subcontractor Affiliation: Hiring Third-Party Employees OK

Posted on August 8, 2017 by Steven Koprince

Under the SBA’s ostensible subcontractor affiliation rule, hiring incumbent employees can be evidence of affiliation, but the importance of that staffing plan in an affiliation analysis depends on what role the incumbent contractor will play in the awardee’s performance of the contract.

In a recent size appeal decision, the awardee proposed to hire 85% of its personnel from the incumbent contractor, but the incumbent wasn’t proposed as a subcontractor–in fact, the incumbent was the company protesting the awardee’s small business size. Under these circumstances, the SBA Office of Hearings and Appeals held, the awardee’s hiring of incumbent employees did not establish ostensible subcontractor affiliation.

Unequal Evaluation: Incumbent Not Credited For Retaining Its Own Employees

Posted on August 7, 2017 by Steven Koprince

In its evaluation of proposals, a procuring agency gave a challenger a strength for proposing to recruit incumbent employees, but didn’t give the incumbent contractor a strength–even though the incumbent contractor proposed to retain the very same people.

Unsurprisingly, the GAO found that the evaluation was unequal, and sustained the incumbent’s protest.

SmallGovCon Week In Review: July 31-August 4, 2017

Posted on August 4, 2017 by Steven Koprince

Coming off their World Series win last year, my Chicago Cubs are back atop the National League Central division in hopes of repeating as champions. While we still have few months of the regular season left, I’m hoping for a repeat of October 4, 1908, when a whopping 6,210 fans watched the Cubs successfully defend their 1907 title.

But enough baseball for now–this is a government contracts blog, after all. And since it’s Friday, here is the SmallGovCon Week in Review. In this edition, a contractor gets 60 months in jail for paying $3 million in bribes, the Federal Times takes a look at potential bid protest reforms, a commentator takes aim at no-bid contracts, and much more.

8(a) Program: Loan Must Be “Bona Fide” To Reduce Net Worth

Posted on August 3, 2017 by SmallGovCon Contributor

To qualify for the 8(a) program, a disadvantaged individual must fall below certain personal net worth thresholds. Loans can reduce net worth–but not all loans are treated the same.

According to the SBA Office of Hearings and Appeals, if a disadvantaged individual intends to rely on a loan to reduce net worth, the loan better be bona fide.

Excusable Delay: Government’s Failure To Extend Was “Constructive Acceleration”

Posted on August 2, 2017 by SmallGov Contributor

Federal contractors not so infrequently find themselves in a position where they are unable to complete performance of a contract by the agreed-upon deadline. So, what happens when the delay is neither party’s fault, but the government denies extension of the period of performance or provides inadequate extensions?

In IAP Worldwide Services, Inc. (ASBCA Nos. 59397, 59398, and 59399), the Armed Services Board of Contract Appeals found under the legal theory of “constructive acceleration” that the U.S. Army Corps of Engineers was liable for extra costs incurred by IAP due to the Corps insistence of timely contract delivery despite excusable delays.

No Protest Of Terminated Task Order, Court Says

Posted on August 1, 2017 by Steven Koprince

A contractor could not file a valid bid protest challenging an agency’s decision to terminate the contractor’s task order, according to the U.S. Court of Federal Claims.

In a recent decision, the Court agreed with the GAO, which also held that the contractor’s challenge involved a matter of contract administration–something outside the bid protest process.

Small Business Ownership And Control: My Govology Podcast

Posted on July 31, 2017 by Steven Koprince

For small businesses, 8(a)s, SDVOSBs, HUBZones and WOSBs, few legal requirements in the world of government contracts are as important as those surrounding ownership and control. I recently joined host Carroll Bernard of Govology for an in-depth podcast exploring these important requirements, including a discussion of common mistakes and misconceptions.

Follow this link to listen to or download the podcast. And don’t stop there–check out Govology’s other great podcasts with government contracting thought leaders, too.