Event: GovCon Legal Update in Washington, DC

Posted on February 27, 2014 by Steven Koprince

As a rare Midwestern government contracts attorney, I am often asked, “when are you next coming to DC?” Well, now I have an answer. I am pleased to announce that I will be presenting a workshop entitled “Government Contracts Legal Update 2014” at the Small Business Leadership Development Conference on March 18.

My workshop will cover recent developments and trends in government contracts law, with a special emphasis on legal developments affecting small businesses. I will also be on hand throughout the day at the Petefish, Immel, Heeb & Hird booth to answer questions about the presentation and discuss other areas of government contracts law.

If you haven’t yet registered for the SBLD Conference, don’t miss out. The event focuses on emerging and small business leaders, and includes networking, educational workshops, and matchmaking sessions. Visit the SBLD Conference website to learn more.

See you March 18!

Discussions: “Significant Weakness” Terminology Not Required

Posted on February 26, 2014 by Steven Koprince

In discussions, a procuring agency is not required to explicitly inform an offeror that its proposal contains a significant weakness, so long as the agency sufficiently identifies the area of concern.

In a recent bid protest decision, the GAO held that the agency had adequately informed the offeror of the agency’s concerns, even though the agency did not specifically identify those concerns as a “significant weakness.”

When Agencies Don’t Return Past Performance Questionnaires: A Cautionary Tale

Posted on February 19, 2014 by Steven Koprince

Past performance evaluations often hinge on government officials completing and returning past performance questionnaires. But what happens when the government doesn’t return those PPQs?

In one case, at least, the answer was “nothing good.” In a recent GAO bid protest decision, only two of six PPQs were returned for the lowest-priced offeror–and that offeror ended up losing the contract to a firm with a higher past performance score.

SBA OHA Lacks Jurisdiction Over Set-Aside Decisions

Posted on February 14, 2014 by Steven Koprince

The SBA Office of Hearings and Appeals does not have jurisdiction to review a contracting officer’s decision not to set aside a procurement for small business.

In a recent decision, SBA OHA dismissed a contractor’s contention that the procuring agency should have set aside a procurement for small business–and rejected the contractor’s underlying legal argument, as well.

Solicitation Improperly Excluded Affiliates’ Past Performance, Says GAO

Posted on February 13, 2014 by Steven Koprince

According to the GAO, a solicitation was unduly restrictive because it prohibited the consideration of the past performance of an offeror’s affiliates–even when the affiliates would contribute to performance of the contract.

The GAO’s bid protest decision in Iyabak Construction, LLC, B-409196 (Feb. 6, 2014) demonstrates that agency restrictions on the consideration of past performance must be reasonable. However, the Iyabak Construction decision should not be interpreted as standing for the principle than an agency can never exclude the past performance of an offeror’s affiliates if those affiliates will contribute to contract performance. Rather, the case suggests that it was the government’s failure to offer a good explanation–not the underlying restriction itself–that led to the “sustain” decision.

SBA OHA: No Automatic Size Recertifications For GSA Schedule Task Orders

Posted on February 11, 2014 by Steven Koprince

Submitting a proposal for a GSA Schedule task order does not result in an automatic recertification of the offeror’s size.

In a recent size appeal decision, the SBA Office of Hearings and Appeals rejected the argument that an offeror recertifies its size merely by submitting a proposal for a GSA task order. Instead, a firm’s size for purposes of a GSA Schedule task order competition is determined based on the underlying GSA Schedule contract, unless the procuring agency requires recertification for the task order.

SBA OHA: 8(a) Mentor-Protege JV Affiliation Exception Applies To Non-8(a) Contracts

Posted on February 10, 2014 by Steven Koprince

The SBA 8(a) mentor-protege joint venture exception from affiliation applies to non-8(a) contracts, so long as the joint venture meets the 8(a) regulatory requirements.

In a recent size appeal decision, the SBA Office of Hearings and Appeals held that the SBA Area Office erred by deeming a mentor and its protege affiliated for purposes of a non-8(a) contract, without considering whether the joint venture qualified for the mentor-protege exception to the ordinary SBA affiliation rules.