Large Contractor Downgraded for Inadequate Subcontracting Plan

Posted on June 12, 2011 by Steven Koprince

Many contractors, large and small, will tell you that the government is taking its small business obligations seriously these days. The renewed emphasis on small business can be seen not only at the prime contracting level, where we are finally getting close to the 23% government-wide goal, but also at the subcontracting level.

Contracting agencies are closely scrutinizing large businesses’ subcontracting plans for small and disadvantaged businesses. Case in point: the agency evaluation in L-3 STRATIS, B-404865 (June 8, 2011).

SBA Size Protests, Timeliness, and After Hours Notifications

Posted on June 11, 2011 by Steven Koprince

An SBA size protest on a negotiated procurement must be submitted within five business days “after the contracting officer has notified the protester of the identity of the prospective awardee.” But what happens if the contracting officer’s notice arrives after normal working hours? Does the clock start ticking anyway?

GAO: Oral Advice Doesn’t Alter Solicitation Terms

Posted on June 10, 2011 by Steven Koprince

In negotiated procurements, contractors sometimes enter into discussions with agency representatives. But contractors must understand that oral discussions don’t trump a solicitation’s terms. If a government solicitation includes clear and specific requirements, the agency’s subsequent oral advice to the contrary doesn’t waive or alter the solicitation–a rule confirmed, to one contractor’s detriment, in a recent GAO bid protest decision.

SBA Affiliation Rules: SBA OHA Says Control is the Key

Posted on June 10, 2011 by Steven Koprince

The SBA affiliation regulation, 13 C.F.R. § 121.103, states that all affiliation is premised on the notion of control. In other words, two companies are affiliated when the same person or entity controls or has the power to control both.

The size appeal decision of the SBA’s Office of Hearings and Appeals in Size Appeal of Manroy, USA, LLC, SBA No. SIZ-5244 (2011), explains that when there is no overlapping control, there is no affiliation, even if one or more of the indicia of affiliation described in the regulation might arguably be present.

SBA OHA: Capital Contributions Not a Factor in Determining Affiliation

Posted on June 7, 2011 by Steven Koprince

A small government contractor needs to keep a close eye on its relationships with large businesses, as almost any type of interaction between the companies, such as contracts, bonding assistance, and overlaps in employees or officers may be considered evidence of SBA affiliation in a size appeal. But, at least in one opinion issued by the SBA’s Office of Hearings and Appeals, the capital contributions of a large business member were irrelevant to an affiliation analysis.

8(a) Mentor-Protege Joint Ventures and Subcontracts: An Underused Practice?

Posted on June 6, 2011 by Steven Koprince

The revised 8(a) program regulations adopted in March 2011 contained so many significant changes that some of them seem to have gotten lost in the shuffle. One of these unheralded changes allows a joint venture comprised of an 8(a) mentor firm and its SBA-approved protégé to joint venture as a small business for federal subcontracts. It’s a major change because under the old rule, SBA 8(a) mentor-protege joint ventures could only joint venture as “small” for prime contracts.

So, why aren’t more 8(a) firms taking advantage of this new mentor-protege joint venturing capability?

Illicit Payments to Contracting Officer’s Representative Result in Jail Time, Fines

Posted on June 3, 2011 by Steven Koprince

It should go without saying that making cash payments to a federal contracting official can bring stiff penalties. Yet every now and then we hear about criminal convictions of government contractors who can’t seem to resist the lure of gifts, gratuities, and other illicit payments to government officials.

Speaking of which, here’s one right now…