File this one in the “A for effort” category. In a GAO bid protest, a contractor recently complained that it was unfairly excluded from a competition because the gloves sought by the agency were not “clothing” covered by a domestic preference law. Not surprisingly, the GAO’s response was, “nice try.”
SBA OHA: Tribal Companies Entitled to Broad Affiliation Exceptions
Indian tribes, their holding companies, and companies owned by those holding companies are entitled to broad exceptions from the ordinary SBA affiliation rules, according to a recent SBA Office of Hearings and Appeals size appeal decision.
SBA OHA’s decision in Size Appeal of Roundhouse PBN, LLC, SBA No. SIZ-5383 (2012), holds that the SBA cannot use non-applicable affiliation rules to circumvent the regulatory exception from affiliation between tribal companies. In its ruling, SBA OHA also sidestepped an interesting tribal size question: did Congress truly intend for some tribal companies to be “small” for 8(a) program purposes, but “other than small” for all other government contracts?
As you can probably tell, the Roundhouse PBN case is not your run-of-the-mill SBA OHA size appeal decision, meaning a slightly longer-than-normal blog post is in order. Let’s dive right in.
Thank You, HUBZones!
Last week, I had the honor of returning to Washington, DC and giving a presentation at the National HUBZone Conference on best practices for remaining HUBZone compliant. The presentation addressed critical ongoing HUBZone compliance issues, including the principal office rule, 35% employee residency rule, and other HUBZone eligibility rules.
Many thanks to Mark Crowley and the HUBZone Council for inviting me to be part of the conference. And a big “thank you” to my engaged audience of HUBZone companies, which asked many great questions and probably could have kept going all morning if there had been time. Finally, thanks to my sister Karen, for allowing me to use her apartment in Van Ness as my personal HUBZone Conference hotel and introducing me to Comet Ping Pong while I was in town.
If your company is HUBZone certified, but you weren’t able to make it to this year’s National HUBZone Conference, never fear. My presentation slides are now up on the Past Presentations page. Enjoy!
SBA OHA: Agencies Cannot Delay NAICS Code Selection
Perhaps the Department of Education took a cue from Congress, which has a reputation for kicking the can down the road, delaying major decisions until after elections (or month-long recesses). In a recent SBA Office of Hearings and Appeals NAICS code appeal decision, ED decided to forego picking a NAICS code until after contract award.
SBA OHA was having none of it, and ED’s own lawyers even agreed–an agency’s NAICS code designation cannot be delayed until contract award.
Federal Court: 8(a) Program Is Constitutional–Kind Of
The good news for 8(a) Program participants (and applicants) is that the United States District Court for the District of Columbia ruled earlier this month that the 8(a) program is constitutional as a whole. The bad news is that the same court found the 8(a) Program unconstitutional as applied to the plaintiff’s specific industry, military simulation and training.
For disadvantaged companies in the military simulation and training industry, the court’s decision in Dynalantic Corporation v. United States, No. 95-2301 (2012) is a major setback. Already, the DoD has apparently suspended 8(a) contract awards under the Simulation, Training and Instrumentation Acquisition Center in the wake of the court’s ruling. For 8(a) companies in other industries, the critical question now is what impact–if any–Dynalantic will have on 8(a) awards in other industries.
DoD Suspends 8(a) Simulation Training Awards
The Department of Defense has apparently suspended all 8(a) contract awards under the Simulation, Training and Instrumentation Acquisition Center in the wake of a federal court decision issued earlier this month.
In a press release, leaders of the Native American Contractors Association and the United States Hispanic Chamber of Commerce blasted the DoD for overreaching in response to Dynalantic Corporation v. United States, No. 95-2301 (2012), in which the United States Court of Appeals for the District of Columbia upheld the constitutionality of the 8(a) Program as a general matter, but found that the 8(a) Program was unconstitutional as applied to the plaintiff’s specific industry, military simulation and training.
I’ll have much more on Dynatlantic and the fallout from the court’s decision after the Labor Day weekend. Unfortunately, for 8(a) companies–especially those doing business with DoD– the holiday weekend begins on a very ominous note.
GAO to VA: Read the Whole Stinkin’ Proposal
If you’re an eight-year-old who has recently begun the literary journey to Hogwarts School of Witchcraft & Wizardry, avert your eyes, because here comes a major spoiler: at the end of the Harry Potter series, a grown-up Harry, now married to his pal Ron’s sister, Ginny, sends his own child off to Hogwarts. Oh, and Ron is married to Hermione, and they also have Hogwarts-bound offspring.
How do I know this culturally valuable information? Because I read to the very end of the last Harry Potter book (yes, I’m one of those people). Contrast this with the VA, which in a recent GAO bid protest case, refused to consider certain information presented by the protester because the information was contained in an exhibit to the proposal, not the narrative section. The GAO’s reaction: “read the whole stinkin’ proposal, VA.”