GAO Protests: VA Awards Set-Aside to Self-Certified Large Company

Posted on May 25, 2012 by Steven Koprince

“So, are you a small business?” “Nope.” “Great. How would you like a small business set-aside contract?” “Umm, sure, okay.”

The dialogue above is fictional (and its lack of quality demonstrates why I am a government contracts lawyer, not a Hollywood screenwriter), but it could have occurred in relation to a recent Department of Veterans Affairs procurement. In that case, a company self-certified that it was not small. Despite the certification, the VA awarded the company a small business set-aside contract.

Not surprisingly, the GAO had something to say about it.

SBA Proposal: Allow NAICS Appeals on Unrestricted Procurements

Posted on May 24, 2012 by Steven Koprince

Size always matters–even on unrestricted procurements. That’s the message coming from SBA in light of a proposed rule making a number of changes to its size regulations, primarily to address small business set-asides within the context of multiple-award award contracts. Buried in the proposed regulation is an interesting change: the SBA intends to give the SBA Office of Hearings and Appeals the right to hear challenges to NAICS code designations, even when a procurement is not set-aside for small businesses.

For many years, SBA OHA has dismissed NAICS appeals on unrestricted procurements, stating, in essence, that there is no purpose in appealing the NAICS code when no set-aside is involved. Although the SBA’s proposed rule doesn’t go into great detail, it seems to me that size can be advantageous, even on an unrestricted procurement. For instance, a small business generally is exempt from the subcontracting plan requirement, but an “other than small” business typically must submit a subcontracting plan. Likewise, a HUBZone-certified company will only qualify for the HUBZone price preference if it qualifies as small for the procurement.

Kudos to SBA for recognizing that size always matters, and proposing to amend the NAICS appeal rules accordingly. Let’s hope that this proposal sticks in the final regulation.

The Small-Business Guide to Government Contracts: Two Weeks to Go

Posted on May 23, 2012 by Steven Koprince

What are your plans after work on Wednesday, June 6? Dinner out? Happy hour? Collapsing on the couch in front of a Law & Order: SVU marathon with a giant bag of Skittles? How about ordering a book about legal compliance for small government contractors? Yes, it’s shameless plug time: two weeks to go until the publication of my book, The Small-Business Guide to Government Contracts.

I wrote the Small-Business Guide to Government Contracts to help small contractors understand their compliance obligations in the federal marketplace. The book covers rules and regulations from size and affiliation to ethics, wage and hour requirements, and the special compliance requirements of the four major socioeconomic set-aside programs (8(a), SDVOSB, HUBZone, and WOSB). It even includes some handy-dandy checklists to help contractors track compliance.

Yes, I know you’ve got big plans on June 6. I’m not going to get between you and your Skittles. But don’t worry–you can pre-order The Small-Business Guide to Government Contracts today at Amazon or Barnes & Noble.

SBA OHA: Inactive Employees Count for SBA Size Purposes

Posted on May 23, 2012 by Steven Koprince

Back in my undergraduate days at Duke, I attended almost all of the home basketball games. Occasionally, sometime in the second half, with the Blue Devils up 20 points or more, an opposing player would execute an impressive dunk, and proceed to do a little celebration. I, along with my fellow Cameron Crazies, would immediately begin chanting, “scoreboard, scoreboard,” while pointing at the device in question. Our message was, “that’s nice, but it just doesn’t matter.” (Actually, we Crazies sometimes chanted “just doesn’t matter,” too).

“That’s nice, but it just doesn’t matter” is what the SBA’s Office of Hearings and Appeals had to say in a recent size appeal decision involving the question of whether employees who are sick, on vacation, or even comatose count toward a company’s employee-based SBA size standard. SBA OHA’s answer: if they’re on the payroll, they count. Period.

Three Website Mistakes Small Government Contractors Should Avoid

Posted on May 22, 2012 by Steven Koprince

The late, great Whitney Houston famously mused, “How will I know?” Whitney was singing about the uncertainty of love, but small government contractors often ask the same question in a different sense—that is, “How will I know if my competitor is too large for a particular size standard?”

There are plenty of places to research a competitor’s size, but one of the most fruitful may be the competitor’s own website. Of course, small government contractors should be aware that their competitors know how to use Google, too. Often, SBA size protests arise from information a government contractor should have thought twice about posting on its website.

Here are three common website mistakes small government contractors make, sometimes leading to SBA size protests.

Win a GAO Bid Protest? You May be Entitled to Attorneys’ Fees

Posted on May 21, 2012 by Steven Koprince

As a government contracts attorney, there is nothing I enjoy more than winning a victory on behalf of a client–then having the government pick up the tab. It doesn’t happen all the time, of course. The general rule in the United States is that everyone pays his or her own attorneys’ fees. But a recent GAO decision highlights the fact that, under the right circumstances, a successful GAO protester is entitled to recover its attorneys’ fees.

Three Common SBA Size Protest Mistakes

Posted on May 20, 2012 by Steven Koprince

Nobody’s perfect, the old saying goes. While I might beg to differ in the case of my daughter (who, in my unbiased opinion, is perfectly adorable), the saying definitely holds true when it comes to SBA size protests.

I read every published SBA Office of Hearings and Appeals decision (I’m sure you are jealous), and I see many of the same mistakes repeated over and over, Often, these mistakes cost the protester its chance at a successful size protest.

So, without further ado, here are my top three most common SBA size protest mistakes.