“We’ll tell you how we’ll manage the contract–after you award it to us.”
That, in essence, appeared to be the position taken by one contractor recently in response to a Department of Defense solicitation. The contractor in question failed to provide an operations and management plan required by the solicitation, pledging to provide it after award. Not surprisingly, the agency assigned the contractor an “unacceptable” score. And equally unsurprising, the GAO denied the contractor’s bid protest.
Small government contractors sometimes rely on subcontractors to help satisfy experience, certification, past performance, and other solicitation requirements. But if one recent GAO bid protest decision is an indication of things to come, procuring agencies may begin requiring more information up front about major subcontractors–including a copy of the final subcontract agreement itself.
“I’m thinking of a number between one and ten–can you guess what it is?”
It sounds like the beginning of an amateur magic trick, or perhaps a segment on the ever-popular Colbert Report. But in a recent GAO bid protest decision, the stakes of the guessing game were a lot higher. In that case, the agency developed an internal estimate of the staffing needed to successfully complete the contract work, but did not disclose the estimate to offerors–then downgraded two offerors for failing to “guess” the same staffing numbers as the agency.
Unfortunately for the agency, the GAO refused to play along.
More than once, a small government contractor has complained to me that there is “just no way” a particular AbilityOne contract recipient is performing at least 75% of direct labor hours with people who are blind or have other significant disabilities, as is required for a non-profit agency to participate in the AbilityOne Program.
Now those same contractors might be saying “I told you so.” The U.S. Department of Justice announced yesterday that a Texas company has agreed to pay $5 million to resolve False Claims Act allegations that the company failed to comply with the 75% direct hour requirement over a period of six years, but misreported its compliance to the government.
Dividing key contract work among several subcontractors will not necessarily allow a small business to avoid affiliation under the SBA’s ostensible subcontractor rule, according to a recent decision issued by the SBA Office of Hearings and Appeals. In that case, the prime contractor divided the primary and vital contract work among four subcontractors–and according to SBA OHA, was affiliated under the ostensible subcontractor rule with all four subs.
Some folks call it “October,” others prefer the more general “fall.” But in my family, this time of year is better known as “protest season.” So if you’re wondering where SmallGovCon has been the last few days, thank the government and its flurry of spending at the end of the fiscal year, which briefly led to a personal routine consisting almost entirely of of eating, sleeping (when my 1-year old daughter would allow it), and protesting.
While I have been busy protesting, the GAO has continued issuing bid protest decisions. Recently, it held that a large prime contractor was appropriately assigned a “significant weakness” due to the prime’s failure to propose meeting two of five small business subcontracting goals. I, for one, am happy to see another indication of a procuring agency putting teeth behind the small business subcontracting goals.
Michael Jackson famously bought the publishing rights to most of the Beatles’ songs, but purchasing the Beatles’ music didn’t mean that Jackson could claim to have appeared on the Ed Sullivan Show in 1964.
As the GAO recently held, a similar principle applies in government contracting: simply buying another company’s government contract does not necessarily entitle the new contractor to lay claim to the other company’s experience.