SBA OHA Sets Low Bar For Common Investments Affiliation

Posted on April 28, 2016 by SmallGovCon Contributor

As few as two common outside investments can result in a presumption of identity of interest, and therefore likely affiliation, according to a recent decision by the Small Business Administration Office of Hearings and Appeals.

OHA’s decision in W. Harris, Government Services Contractor, Inc., SBA No. SIZ-5717 (Mar. 7, 2016), lends some clarity to the SBA’s identity of interest affiliation rule, which provides that businesses or firms are affiliated when they have identical or substantially identical business interests. Although it brings the rule more into focus, the decision in W. Harris could prove troublesome to some small business owners, who may have assumed that a handful of common outside investments would not result in affiliation.

Thank You, Texas!

Posted on April 27, 2016 by Steven Koprince

I am back in Lawrence after a great trip to the Dallas-Fort Worth area for the Alliance Texas procurement conference. At the conference, I was part of a panel discussion on the legal aspects of joint venturing and teaming for small government contractors.

Many thanks to Cathy Doerr and the ShoWorks team for organizing this great event, Stephanie Lewis of the SBA for moderating the panel, and John Ruiz of Miratek for his insightful discussion of his company’s experiences with teaming. And of course, thanks most of all to the small business owners and others who attended the panel and stopped by the Koprince Law trade show booth. I enjoyed meeting everyone.

ShoWorks’ series of Alliance procurement conferences doesn’t end in Texas. Up next: Alliance Baltimore on November 10. As for me, I’ll next be traveling to the Quad Cities for the annual Midwest Small Business Government Contracting Symposium. I hope to see you there!

8(a) Program: Utah SBA Imposes Tough New Restrictions on JVs & MPAs

Posted on April 27, 2016 by Steven Koprince

The SBA’s Utah District Office has imposed tough new restrictions on the approval of 8(a) mentor-protege agreements and joint ventures.

The Utah SBA obviously hopes that these restrictions will lead to more successful 8(a) mentor-protege and joint venture relationships–but I worry that these District-specific restrictions may backfire, and put Utah 8(a)s at a significant competitive disadvantage against 8(a)s serviced by other SBA District Offices.

Exercised Options May Be Protested At GAO–But Agency Discretion Is Broad

Posted on April 27, 2016 by SmallGovCon Contributor

Contrary to a common misconception, GAO has jurisdiction to consider a protester’s challenge to the exercise of an option in a competitor’s contract. But GAO’s review is largely deferential to the agency: it will uphold the exercise of an option unless a protester is able to show the agency failed to follow applicable regulations or otherwise should have conducted a new procurement.

A recent bid protest illustrates this deferential review, as GAO denied a protest challenging the exercise of an option where the agency considered pricing and other factors before exercising its option.

SmallGovCon Week In Review: April 18-22, 2016

Posted on April 22, 2016 by Steven Koprince

Time seems to be flying by, as April already marks the halfway point for the 2016 fiscal year. It won’t be long before procuring agencies are scrambling to get their dollars spent in the fourth quarter.

While contractors work on getting their piece of the annual fourth quarter pie, it’s time for our weekly look at news and notes from the world of federal contracting. In this week’s edition of SmallGovCon Week In Review, we look at key federal spending date for the first two quarters, the GSA’s plans to reopen the dormant Schedule 75, the SBA’s adoption of new regulations for its Surety Bond Guarantee Program, and much more.

GAO: Offeror’s High Labor Hours Need Not Be Raised In Discussions

Posted on April 21, 2016 by Steven Koprince

An agency was not required to inform an offeror that its proposed base year labor hours were too high, even though the offeror proposed more than twice as many labor hours as the awardee.

In a recent bid protest decision, the GAO held that a procuring agency did not act improperly by failing to raise the protester’s high labor hours in discussions, because the protester’s labor hours, while much higher than the awardee’s, were not deemed unacceptably high under the RFQ’s lowest-price, technically acceptable evaluation scheme.

GAO Considers “Intertwined” Protest of Task Order Valued Below Jurisdictional Threshold

Posted on April 20, 2016 by SmallGovCon Contributor

GAO’s bid protest jurisdiction is defined—and limited—by both statute and its regulations. As part of these jurisdictional limits, GAO ordinarily may only consider protests relating to task order procurements if those orders are valued in excess of $10 million.

But despite this rule, GAO recently considered a protester’s challenge to a task order valued at only $8.7 million. It did so after deciding that the challenge was “intertwined” with the protester’s challenge to its own termination for convenience–another matter the GAO only considers in unusual circumstances.