R U Compliant? FAR Bans Texting While Driving

Posted on March 12, 2012 by Steven Koprince

Working on a government contract? Put down that cell phone, at least when you are in the car. In case you didn’t realize it, the FAR essentially bans texting while driving (although what penalties you might face for violating this policy, if any, are unclear).

Under FAR 23.1105 and FAR 52.223-18, which is to be included in every contract, a government contractor “should” adopt and enforce a policy banning texting whenever an employee is: (1) driving a vehicle owned or rented by the company; (2) driving a vehicle owned by the government; or (3) driving a privately owned vehicle when performing any work on behalf of the government.

Same As It Ever Was: GAO Confirms Reinstatement of $10 Million Task Order Bid Protest Threshold

Posted on March 7, 2012 by Steven Koprince

In 2008, Congress granted GAO the authority to hear bid protests of task orders valued at more than $10 million. After this provision sunset in 2011, the GAO held in Technatomy Corp., B-405130 (June 14, 2011), that it had authority to hear bid protests of task orders of any size.

Congress, apparently, did not approve of GAO’s newfound expansion of its bid protest authority. In December 2011, it passed legislation to reinstate the $10 million threshold. Notably, the amendment applies to task order solicitations issued during that “golden period” between June and December 2011.

SBA Affiliation Rules and Control: The Minority Owner Trap

Posted on March 2, 2012 by Steven Koprince

Does a person who owns a minority share of a company “control” the company under the SBA affiliation rules? Yes, if the company has no majority owner and the minority share owned by the individual in question is the largest, or is similar in size to, the largest other minority shares.

Get all that? An example may help. The decision of the SBA Office of Hearings and Appeals in Size Appeal of Advent Environmental, Inc., SBA No. SIZ-5325 (2012), demonstrates how this rule can be a trap for the unwary.

Mystery, Intrigue and OCIs: Anonymous Source Sinks Contractor’s Bid

Posted on February 8, 2012 by Steven Koprince

It sounds more like a scene from “All the President’s Men” than the factual background of a GAO bid protest. In McTech Corporation, B-406100, B-406100.2 (Feb. 8, 2012), an anonymous caller tipped off a procuring agency that McTech had an apparent organizational conflict of interest, leading to McTech’s exclusion from the competition. The resulting GAO bid protest didn’t bring down a presidential administration, but it does provide a cautionary tale on the intersection of SBA mentor-protégé agreements and OCIs.

SBA Affiliation Rules and the Present Effect Rule: When Does an Agreement Arise?

Posted on February 4, 2012 by Steven Koprince

Under the SBA affiliation rules, the SBA will apply the so-called “present effect rule” when it examines an agreement for a merger or acquisition, including an agreement in principle. Under the present effect rule, such an agreement is presently effective with respect to the question of control–which can present a big problem under the SBA affiliation rules.

For example, if Company A has agreed to purchase Company B, the SBA deems Company A to control Company B from the moment the agreement is reached, even if the deal does not close until months later. This makes Companies A and B affiliates from the date their agreement is reached for purposes of the SBA affiliation rules.

The present effect rule makes sense, but when does an “agreement” arise for purposes of the rule? The SBA Office of Hearings and Appeals examined this issue in Size Appeal of Nuclear Fuel Services, Inc., SBA No. SIZ-5324 (2012). If you are in discussions or negotiations for a merger or acquisition, and are worried about potential affiliation, SBA OHA’s decision will leave you breathing a sigh of relief.

Subcontractors, NAICS Codes and Small Business Status: The Prime Decides

Posted on February 2, 2012 by Steven Koprince

George W. Bush famously declared himself to be “the decider.” Although some comedians had fun with the phrase, it’s hard to argue with Bush’s underlying assessment; as head of the government, the President has a lot of decisions to make. But when it comes to whether you qualify as “small” for purposes of a federal subcontract, it may surprise you to learn that the government isn’t the decider at all.

For a subcontract, the prime contractor—not the government—decides what NAICS code (and corresponding size standard) applies. The NAICS code the prime contractor selects for your subcontract need not be the same NAICS code assigned to the prime contract as a whole, and you may have the opportunity to lobby the prime contractor to change the NAICS code to one you believe is better-suited for the procurement–and your small business eligibility.

SBA Size Protests and the Ostensible Subcontractor Rule: The Task Order Loophole

Posted on January 26, 2012 by Steven Koprince

The tax code is famous (or infamous) for perceived loopholes, but the IRS isn’t the only regulatory agency with a loophole in its regulations. The SBA’s affiliation rules contain—or at least used to contain (more on that later)—a gaping loophole when it comes to Multiple Award Task Order Contracts, or MATOCs, and the ostensible subcontractor rule.