Court: Past Performance Evaluations Must Be Adequately Supported

Posted on December 30, 2015 by SmallGovCon Contributor

Past performance evaluations are a vital part of many federal procurements. Generally, the evaluation of an offeror’s past performance is a matter within the discretion of the contracting agency. But if an agency fails to adequately support its past performance evaluation, its findings cannot be upheld.

The United States Court of Federal Claims recently applied this rule, when it sustained a protest to an agency’s past performance evaluation because the evaluation failed to address the stated evaluation factors. In doing so, the Court provided guidance to both offerors and agencies as to a proper past performance evaluation.

SBA Affiliation Rules: Beware Supermajority Voting Requirements

Posted on December 29, 2015 by Steven Koprince

Under the SBA’s affiliation rules, a minority owner may “control” a company where the company’s governing documents impose supermajority voting requirements that require the minority owner’s consent for the company to make ordinary business decisions.

In a recent size appeal decision, the SBA Office of Hearings and Appeals confirmed that supermajority voting requirements may establish control (and affiliation), even where the minority owner does not actually exercise its control.

SDVOSB Protests Versus Bid Protests: SBA OHA Provides Some Clarity

Posted on December 28, 2015 by Steven Koprince

A protest challenging a company’s status as a service-disabled veteran-owned small business is not the same as a protest challenging other aspects of an agency’s award decision (such as the evaluation of the protester’s proposal)–and these differences can determine whether a protest is timely and correctly filed.

In a recent case, the SBA Office of Hearings and Appeals provided some clarity on key differences between SDVOSB protests and bid protests, including important limits on the SBA’s jurisdiction.

It’s Baaaack: Kingdomware Case Set For Argument On February 22, 2016

Posted on December 23, 2015 by Steven Koprince

The Supreme Court will decide the Kingdomware SDVOSB/VOSB case on its merits after all. According to the Supreme Court’s just-released calendar, the Court will hear oral argument in Kingdomware Technologies v. United States on February 22, 2016.

The Supreme Court’s decision is good news for SDVOSBs and VOSBs, which got a bit of a scare when the Supreme Court abruptly yanked the case from its docket in November. But after Kingdomware and the VA filed briefs agreeing that the case should not be dismissed on a technicality, the Court has decided to move ahead.

I plan to be in the Supreme Court for oral argument on the 22nd, and will update SmallGovCon later that day with my take on the proceedings.

GAO: Agency Cannot Ignore Apparent Conflict

Posted on December 18, 2015 by SmallGovCon Contributor

When a procuring agency knows of an apparent organizational conflict of interest, but makes no effort to resolve the issue, the resulting award is improper.

In a recent GAO bid protest decision, GAO held that it is impermissible for an agency to simply ignore a known conflict (or apparent conflict). Interestingly, GAO never determined whether the conflict helped or hurt the business’s efforts at winning the award. It said essentially that it did not matter. Because a conflict existed, the agency knew about it, and did nothing, the award was flawed.

SmallGovCon Week In Review: December 14-18, 2015

Posted on December 18, 2015 by Steven Koprince

With Christmas just one week away, we are looking forward to gathering with our families and celebrating this holiday season. But even with the holidays approaching, there was no shortage of news this week. In this week’s SmallGovCon Week In Review, Guy Timberlake takes a look at the government contracting landscape in 2016, bid protests continue a slow but steady rise, a brazen contractor seeks $3,160 per hour for his time spent handling a successful protest, and much more.

WOSB Certification: SBA Seeks Public Comments

Posted on December 18, 2015 by Steven Koprince

A year after Congress surprisingly eliminated WOSB self-certification, the SBA is asking for public comment on how to certify WOSBs.

In a notice published today, the SBA states that it intends to draft regulations to address the statutory change, but “seeks to understand what the public believes is the most appropriate way to structure a WOSB/EDWOSB certification program.”