Discussions: Who Needs ‘Em?

Posted on June 20, 2012 by Steven Koprince

The Canadian band Barenaked Ladies (if my blog readership spikes today, I will suspect it’s from folks seeking something else by Googling that term) have a song called “Who Needs Sleep?” As the father of a 10-month old, the chorus–“Who needs sleep? Well you’re never gonna get it”–describes my life pretty accurately.

If BNL had been singing about federal procurements instead of slumber, the band might have used a similar chorus: “Who needs discussions? Well you’re never gonna get ’em.” As a pair of recent GAO bid protest decisions demonstrate, there is generally no requirement that a procuring agency engage in discussions with offerors, and it’s evident why many agencies avoid them: discussions remain fertile ground for sustained GAO bid protests.

SBA Size Protests and the Brooks Act

Posted on June 19, 2012 by Steven Koprince

The so-called “Exception Paradox” is one of those un-winnable logic games. It goes something like this, “if every rule has an exception, then doesn’t the rule that every rule has an exception have an exception, too?”

These are the sorts of brain teasers that sometimes kept me busy in grade school (what can I say, I wasn’t a very cool fourth grader). Fortunately, when it comes to SBA size protests, the SBA Office of Hearings and Appeals has made it easy to understand an exception to one common rule. In a recent decision, SBA OHA held that the ordinary rule governing when an offeror is deemed “small” for a particular federal procurement does not apply to a SBA size protest filed in connection with an architect-engineer competition conducted under the federal Brooks Act and FAR 36.6.

GAO Confirms: AbilityOne Trumps SDVOSB for VA Set-Asides

Posted on June 18, 2012 by Steven Koprince

The VA has been on the receiving end of a number of GAO bid protest decisions, the most recent issued just a few weeks ago, holding that the VA is acting illegally by ordering off the Federal Supply Schedule without first determining whether the procurement at issue can be set-aside for service-disabled veteran owned small businesses. But the GAO’s recommendations, and the outrage from the veteran community (which, in my opinion, is very well-deserved), have not stopped the VA from pushing ahead with its “FSS First” acquisition strategy.

Now, the VA has pushed SDVOSBs even further toward the back of the line. The VA has determined that the Javits-Wagner-O’Day, or JWOD Act, which calls for agencies to make certain purchases from nonprofits listed by the Committee for Purchase for People who are Blind or Severely Disabled (also known as the “AbilityOne” program), trumps SDVOSB set-asides for items on the Committee’s list.

And this time, the VA agrees with the GAO.

FedConnect Mistake Sinks Contractor’s Bid

Posted on June 15, 2012 by Steven Koprince

I’m no technology whiz by any stretch, but when I worked on Capitol Hill before law school, my boss made me the office systems administrator, responsible for troubleshooting computer and tech issues. Occasionally, I had to call in outside help, but most of the time I relied on that old standby, control-alt-delete, to “fix” my colleague’s computers. Once, when I was in a meeting, a colleague called me back to the office in a panic, because the copier wasn’t working. The problem, which I quickly diagnosed: it wasn’t plugged in.

I bring this up because sometimes, even very smart people like my Capitol Hill colleagues are not so great with technology. The same is true in the government contracting arena. No matter how wonderful a proposal a contractor writes, it does no good if technology problems prevent it from reaching the procuring agency on time. As agencies turn more and more to higher-tech methods for obtaining contractor’s proposals, like the FedConnect system, it is critical that contractors understand how the technology works, as one contractor learned the hard way in a recent GAO bid protest decision.

Convictions in Massive DOT DBE Fraud Case Put Spotlight on Illegal Small Business “Pass-Throughs”

Posted on June 14, 2012 by Steven Koprince

“Guilty.”

That was the verdict Pennsylvania jurors handed down on 26 of 30 charges against Joseph W. Nagle, stemming from what an FBI press release called a 15-year scheme to commit fraud within the DOT’s Disadvantaged Business Enterprise program. Nagle, the former president, CEO and part-owner of Schuylkill Products Inc. was convicted of conspiracy to defraud the DOT, 11 counts of wire fraud, six counts of mail fraud, and 11 counts of money laundering, among other charges. Nagle faces the possibility of many years in federal prison and millions of dollars in fines and restitution.

Nagle’s crimes, which involved using a small company as a “front” to pass DBE work through to non-DBE concerns, should serve as a warning that small government contractors can face penalties much more severe than a successful SBA size protest for serving as “pass-throughs” to other businesses.

SBA OHA: Subcontractor Costs Cannot Be Excluded From Receipts

Posted on June 13, 2012 by Steven Koprince

I’m a government contracts lawyer these days, but when I was much younger, I was a would-be prime contractor. During my senior year of high school, I took a part-time job at the Grand Forks Herald, my hometown newspaper in North Dakota. Flush with cash (at least compared to where I’d been before), I then attempted to subcontract my household chores—things like taking out the trash and feeding the dog—to my younger brother.

My parents put the kibosh on that one, explaining that as a member of the family, I needed to personally contribute some labor to it (as a dad now, I can see where they were coming from). But imagine I had been successful, paying Pete, say, $20 weekly to toil on my behalf for the Koprince household. Could I have told the IRS, come tax season, that the money I paid Pete didn’t count toward my income, because I passed it through to him?

“Of course not,” you’re probably saying, and you are right. And, on a much larger scale, the same is true when it comes to a small government contractor’s subcontract costs. As the SBA Office of Hearings and Appeals has held, all of a company’s receipts—with very limited exclusions—count toward its size under a revenue-based SBA size standard. Just because you subcontract a portion of a government contract to another company does not mean that the money you pay your subcontractor doesn’t count toward your own receipts.

GAO Bid Protests: Five Common Mistakes

Posted on June 12, 2012 by Steven Koprince

Those who follow SmallGovCon regularly know that I read a lot of GAO bid protest decisions (and often comment on them here). Reading the decisions—and working on many GAO protests for clients—I see some of the same mistakes repeated over and over.

These common mistakes can, and do, cost a government contractor a shot at a successful GAO protest. So here, in no particular order, are my top five common GAO bid protest mistakes.