GAO: Agency Failed To Identify Proposal Weaknesses In Discussions

Posted on February 20, 2013 by Steven Koprince

A procuring agency failed to conduct meaningful discussions where it merely asked a contractor to clarify its understanding of a certain portion of the solicitation, rather than informing the contractor of specific proposal weaknesses relating to that same portion of the solicitation.

The GAO’s bid protest decision in Nexant, Inc., B-407708, B-407708.2 (Jan. 30, 2013) demonstrates that when an agency has identified specific weaknesses in a contractor’s proposal, discussions must be sufficiently detailed to enable the contractor to understand the agency’s concern and have the opportunity to improve its proposal.

8(a) Mentor Protege Agreements And Shared Employees: A Risk Of Affiliation?

Posted on February 19, 2013 by Steven Koprince

Can an SBA 8(a) program mentor and protege be affiliated, notwithstanding their 8(a) mentor-protege arrangement, if the firms engage in extensive employee sharing?

Maybe.

In a recent decision, the SBA Office of Hearings and Appeals suggested that extensive employee sharing between an 8(a) protege and its mentor might be outside the bounds of protected “assistance” under the 8(a) mentor-protege program. And in the same case, SBA OHA raised an interesting question: does a mentor-protege relationship protect the mentor from affiliation, as well as the protege?

SDVOSB Eligibility Not Affected By Ownership Transfer Restriction, Says Federal Court

Posted on February 18, 2013 by Steven Koprince

As many service-disabled veteran-owned small businesses have discovered, the VA CVE believes that so-called “right of first refusal” provisions prevent veterans from freely selling or transferring their ownership interests. Because such transfer restrictions are commonplace in standard corporate bylaws and operating agreements, countless SDVOSBs have been denied VA CVE verification for including them.

Those days may be over.

In a decision released to the public late last week, the U.S. Court of Federal Claims held that the VA OSDBU had erred by sustaining a SDVOSB eligibility protest on the basis of the company’s right of first refusal provision. That decision, Miles Construction, LLC v. United States, No. 12-597C (2013), also includes other important rulings on the scope of “unconditional” ownership and the VA OSDBU’s evaluation of SDVOSB eligibility protests.

VA Refuses To Issue Set-Aside Based On Prospective Offerors’ Experience, Resources

Posted on February 15, 2013 by Steven Koprince

In a troubling case, the VA recently refused to issue a small business set-aside because responses to a Request for Information indicated that prospective small business offerors lacked similar experience with the VA, and did not currently have available the personnel, equipment and facilities necessary to perform the contract.

The GAO, ignoring the recommendation of the SBA, affirmed the VA’s decision to forego a small business set-aside.

NAICS Code Appeal Cannot Be Based On Sources Sought Notice

Posted on February 14, 2013 by Steven Koprince

A NAICS code appeal cannot be based on a sources sought notice, according to a recent NAICS appeal decision issued by the SBA Office of Hearings and Appeals.

In NAICS Appeal of Integrated Laboratory Systems, Inc., SBA No. NAICS-5406 (2012), SBA OHA held that under the FAR and SBA’s regulations, a viable NAICS code appeal cannot be filed until the solicitation itself is issued.

GAO Bid Protest Jurisdiction And Contract Modifications

Posted on February 12, 2013 by Steven Koprince

The GAO’s bid protest jurisdiction typically does not extend to reviews of contract modifications.

In a recent GAO bid protest decision, Cornische Aviation & Maintenance, LTD, B-405013.4 (Jan. 25, 2013), the GAO held that the protester’s allegations regarding a contract modification were not within the scope of the GAO’s bid protest function. The Cornische Aviation GAO bid protest decision demonstrates the GAO’s limited ability (or willingness, depending on one’s point of view) to decide bid protests involving contract modifications.