Ostensible Subcontractor Rule: A Look At A Compliant Team

Posted on August 10, 2012 by Steven Koprince

The ostensible subcontractor rule can be challenging, because there is no magic formula for compliance. When a protester raises an ostensible subcontractor rule allegation, the SBA evaluates all aspects of the prime/subcontractor relationship to see whether the ostensible subcontractor rule was violated. If the SBA concludes that the small prime contractor is unduly reliant on it subcontractor, and/or the subcontractor will perform the primary and vital portions of the contract, it will find the prime affiliated with its subcontractor.

Although there is no single recipe for ostensible subcontractor rule success, it can be useful to examine SBA Office of Hearings and Appeals cases to see exactly what sort of prime/sub relationships SBA OHA deems problematic–and which pass muster. Today’s post is in the latter category: a recent SBA OHA decision finding that the ostensible subcontractor rule had not been violated.

What did the prime and subcontractor in that case do right?

No Conflict: GAO Holds Contractor’s Former Employee May Evaluate Proposals

Posted on August 9, 2012 by Steven Koprince

Is it a conflict of interest for a contractor’s former employee to evaluate his old firm’s competitive proposal? Not necessarily, according to the GAO.

In a recent GAO bid protest decision, the agency’s technical evaluation board included a member who had previously worked for the winning offeror. As one might expect, this did not sit particularly well with one of the awardee’s competitors, which filed a GAO bid protest. The GAO’s ruling: there was no conflict of interest.

How Low Can You Go? GAO Denies Price Realism Protest

Posted on August 8, 2012 by Steven Koprince

When is a competitor’s low price simply too low to be realistic? Maybe never, at least when it comes to challenging the low price in a GAO bid protest.

As seen in a recent GAO bid protest decision, when a fixed-price solicitation does not call for a price realism analysis, the procuring agency is not required to conduct one–and a competitor will not succeed in challenging the award on the basis of a supposedly unrealistically low price.

NAICS Code Appeals: Deadline Is Ten Calendar Days, Not Ten Business Days

Posted on August 7, 2012 by Steven Koprince

A federal regulation states that NAICS code appeals are timely if filed within ten business days. So why was one small business’s NAICS code appeal dismissed even though it filed the appeal within the time period called for by the regulation?

According to SBA OHA, the regulation was erroneous, and the actual NAICS code appeal deadline is ten calendar days. I don’t know about you, but to me, the result doesn’t seem particularly fair to the contractor.

NAICS Code Appeals: Sometimes, Filing Is All It Takes

Posted on August 6, 2012 by Steven Koprince

NAICS code appeals can be powerful competitive weapons–either shrinking or expanding the competitive playing field if they are successful. Sometimes, simply filing a NAICS code appeal can convince the procuring agency that the wrong NAICS code was assigned, leading to a successful outcome before the SBA Office of Hearings and Appeals even has the opportunity to rule on the merits.

VA CVE Rejecting 60% Of New SDVOSB Verification Applications

Posted on August 6, 2012 by Steven Koprince

The VA’s Center for Veterans Enterprise is rejecting about 60% of initial SDVOSB verification applications, according to Thomas Leney, the VA OSDBU Executive Director. Leney gave the figure in testimony before the House Veterans Affairs Subcommittees on Oversight and Investigations and Economic Opportunity on Friday, August 3.

In an excellent piece on Federal News Radio’s website, reporters Esther Carey, Ruben Gomez and Jared Serbu offer some other interesting insights from Leney’s testimony–including the incredibly broad definition of “unconditional” ownership and control used by the CVE.

SBA Size Protest Timeliness: Solicitation Doesn’t Extend Filing Deadline

Posted on August 3, 2012 by Steven Koprince

SBA size protests are only timely if received within five business days. The SBA size protest timeliness rule can confuse potential protesters, because it is different than the 10-day rule applicable to most post-award GAO bid protests.

In a recent SBA Office of Hearings and Appeals decision, a would-be protester apparently got tripped up by the different filing periods, incorrectly interpreting a solicitation provision regarding GAO bid protests as establishing an extended SBA size protest filing deadline. SBA OHA held that the protester’s misunderstanding did not entitle it to file a late SBA size protest.