SBA OIG Issues Report Questioning 8(a) Non-Manufacturer Rule Waiver

Posted on October 31, 2012 by Steven Koprince

The SBA’s waiver of the non-manufacturer rule in connection with an 8(a) sole source contract resulted in a “pass through” award to a large business, according to a report by the SBA Office of Inspector General. As a result, the 8(a) contractor in question received only $153,000 for “minimal” oversight, while the remainder of the $7.78 million 8(a) set-aside contract went to large companies.

The SBA OIG was quick to point out that the arrangement was legal, but questioned whether the pass-through provided appropriate developmental opportunities to the 8(a) contractor–as well as whether taxpayers are well-served by such large percentages of “small business” contracting dollars flowing to large companies.

Some NAVFAC MAC Task Order Awards Flawed, Says DOD IG

Posted on October 29, 2012 by Steven Koprince

Now that the GAO no longer has authority to hear protests of many task order awards valued under $10 million, it is fair to question whether the absence of the self-policing system established by the protest mechanism could contribute to unreasonable or improper task order awards.

According to a report issued by the Department of Defense Inspector General last Friday, at least one agency, the Naval Facilities Engineering Command, has experienced some troubling irregularities in the MAC task order award process, including twice failing to permit all MAC holders to bid on task order competitions.

GSA e-Buy “Purges” May Be Improper, Says Federal Court

Posted on October 26, 2012 by Steven Koprince

The GSA e-Buy website may have improperly failed to preserve critical solicitation records, according to the U.S. Court of Federal Claims.

In Laboratory Corp. of America v. United States, No. 12-622C (2012), the court has asked the government to explain why it should not face sanctions for so-called “spoliation” of evidence, arising from the inability to access archived e-Buy materials. The court also suggested that the procuring agency might have used e-Buy to improperly attempt to modify a solicitation without issuing a formal amendment.

SBA 8(a) Mentor-Protege Joint Ventures: SBA OIG Questions Oversight

Posted on October 25, 2012 by Steven Koprince

SBA 8(a) mentor-protege joint ventures suffer from inadequate oversight and may not adequately benefit 8(a) protege firms, says the SBA Office of Inspector General. In a recently-released report, the SBA OIG criticized the SBA’s oversight of 8(a) mentor-protege joint ventures, finding that there is no way to ensure that 8(a) protege’s substantially benefit from the 8(a) mentor-protege joint venture program.

Some highlights from the 37-page report follow.

HUBZone Price Preference: GAO Confirms Application to GSA Leases

Posted on October 25, 2012 by Steven Koprince

The HUBZone price preference applies to GSA leasehold acquisitions, according to a GAO decision confirming a prior bid protest ruling.

In General Services Administration–Reconsideration, B-406040.2 (Oct. 24, 2012), the GSA asked the GAO to reconsider its decision in The Argos Group, LLC, B-406040 (Jan. 24, 2012), in which the GAO initially held that the HUBZone price evaluation preference applies to GSA lease acquisitions. The GAO–with the SBA’s support–confirmed its prior ruling, holding that the GSA cannot evade the HUBZone price preference when it issues a competitive procurement to acquire a lease.

Teaming Agreements and Proprietary Information: A Cautionary Tale

Posted on October 24, 2012 by Steven Koprince

Are you taking adequate steps to protect your proprietary and confidential information from misuse by teammates?

If your teaming agreement or non-disclosure agreement requires you to mark proprietary information with a “protected” legend, the answer may be “no.” Although many standard teaming agreements and non-disclosure agreements require protective legends in order to protect confidential information, contractors sometimes fail to apply the appropriate legend. And when that happens, at least according to a recent decision of the U.S. Court of Federal Claims, the contractor may have no basis to complain that the teammate stole its confidential information.

Price Realism: Agency Improperly Used Unacceptable Proposals for Comparison

Posted on October 23, 2012 by Steven Koprince

Earlier this week, the International Cycling Union announced that it would strip Lance Armstrong of his seven Tour de France titles, stating that overwhelming evidence existed that Armstrong had won those titles by doping. For cyclists who play by the rules, it is only fair that they not be forced to chase Armstrong’s Tour record, which he apparently achieved in an unacceptable way (and you can count me among those who think Roger Maris and Hank Aaron have pretty strong claims to baseball’s single-season and career home run marks, too).

When it comes to sporting records, comparing a clean athlete to a cheater seems unfair. Similarly, in the government contracting world, using unacceptable proposals as a basis of comparison for other proposals’ price realism is improper, according to a recent GAO bid protest decision. In Lifecycle Construction Services, LLC, B-406907 (Sept. 27, 2012), the GAO sustained the protest because of significant errors in the agency’s evaluation of the protester’s price realism–including comparing that price to the prices of three unreasonably high-priced proposals.