CBCA Appeal Dismissed Because Contractor Filed By FedEx, Not USPS

Posted on February 11, 2013 by Steven Koprince

As has been well-documented by news outlets, the U.S. Postal Service plans to end Saturday delivery to save money. With the USPS facing financial and customer service struggles, it is little wonder that many government contractors rely on rival FedEx to deliver important packages.

But when it comes to filing a contract appeal with the Civilian Board of Contract Appeals, contractors may want to think twice before calling FedEx. As one unfortunate contractor recently discovered, thanks to an arcane (and in my view, unfair) provision in the CBCA’s rules, a package sent through the USPS is deemed timely filed with the CBCA on the date of its postmark, whereas a package sent by any other means–including FedEx–is not considered filed until it is actually received at the CBCA’s office in Washington, DC.

Ostensible Subcontractor Rule: Lessons Learned From SBA OHA

Posted on February 8, 2013 by Steven Koprince

Avoiding affiliation under the SBA’s ostensible subcontractor rule can be difficult, especially since the ostensible subcontractor rule itself, 13 C.F.R. § 121.103(h)(4), does not provide many examples of the factors that may cause ostensible subcontractor affiliation.

A recent decision of the SBA Office of Hearings and Appeals, Size Appeal of InGenesis, Inc., SBA No. SIZ-5436 (2013), demonstrates that even when a proposed subcontractor will play a major role in the procurement, ostensible subcontractor affiliation may be avoided if the parties carefully structure their relationship.

New SBA Mentor-Protege Program: Clearing Up The NDAA Confusion

Posted on February 7, 2013 by Steven Koprince

True or false: the FY 2013 National Defense Authorization Act requires the SBA to create a mentor-protege program for all small businesses?

Contrary to published information issued by at least three large law firms, the answer is “false.” In fact, although the NDAA authorizes the SBA to create a mentor-protege program for all small businesses, it does not require the SBA to create such a program.

Moreover, the erroneous statement that the NDAA requires the SBA to adopt a mentor-protege program for all small businesses is just one of three pieces of misinformation being circulated by one or more of these law firms. Let’s take a quick look at the text of Section 1641 of the NDAA itself and put the confusion to rest.

A Slap On The Wrist? Contractor Avoids Jail Time For SDVOSB Fraud

Posted on February 6, 2013 by Steven Koprince

A man who lied about being a service-disabled veteran–and received nearly $6 million in VA SDVOSB set-asides–will not spend a single day in jail.

According to a Department of Justice press release, the man in question, John Witty, was sentenced to a fine, probation, and community service. Yes, Witty’s wallet will be lighter, and maybe there were extenuating circumstances not evident from the press release–but the lack of jail time seems a tad generous.

Ostensible Subcontractor Rule: SBA 8(a) Mentor-Protege “Shield” Does Not Apply

Posted on February 4, 2013 by Steven Koprince

The SBA 8(a) mentor-protege affiliation “shield” does not prevent a mentor and protege from being affiliated under the so-called ostensible subcontractor rule, according to a recent decision of the SBA Office of Hearings and Appeals.

In Size Appeal of InGenesis, Inc., SBA No. SIZ-5436 (2013), SBA OHA held that the broad exception from affiliation for 8(a) proteges and their mentors does not prevent the SBA from deeming the companies affiliated under the ostensible subcontractor rule.

GAO: Task Order Discussions Must Identify Weaknesses

Posted on February 1, 2013 by Steven Koprince

An agency must identify weaknesses or deficiencies in an offeror’s proposal when the agency conducts discussions as part of a task order competition, according to a recent GAO bid protest decision.

In Mission Essential Personnel, LLC, B-407474, B-407493 (Jan. 7, 2013), the GAO held that a procuring agency erred by failing to inform an offeror of two weaknesses or deficiencies in its proposal. The GAO concluded that discussions must include this information even when the procurement is a task order competition conducted under FAR part 16.