Is a small business affiliated with its joint venture partner? Forgive the stereotypical lawyerly response, but the answer is “yes and no.” A small business is affiliated with its joint venture partner on a procurement-specific basis, but typically is not affiliated with its joint venture partner on an ongoing basis. The SBA’s Office of Hearings and Appeals succinctly explained the basic rules relating to joint ventures and affiliation in Size Appeal of Innovative Resources, SBA No. SIZ-5238 (2011).
Emailing Your Proposal? Don’t Wait Until The Last Minute
I hate waiting until the last minute to do things. My wife knows that we need to get to the airport with plenty of time to spare before our flight takes off, or I start getting stressed. When I have a filing deadline, I tend to submit my documents well in advance. Sometimes, I have to wait for a client’s sign-off on a final draft, or a last tweak to an exhibit, as the minutes to the deadline tick away. When that happens, people who know me well can see my blood pressure begin to slowly rise.
My way of doing things isn’t everyone’s. For folks who “work best under pressure,” as they say, working right up until a deadline is par for the course. But as one recent GAO bid protest decision highlights, emailing a proposal to a procuring agency at the last minute can be dicey because electronic deliveries are not necessarily instantaneous. Filing shortly before the deadline closes, even by email, may result in a late proposal.
False SDVOSB Certification Results in Criminal Conviction
In this era of enforcement, lost contracts are just the tip of the iceberg when it comes to false certifications of eligibility for the SBA’s and VA’s small business programs. The story of John White and Mitsubishi Construction Corp. should serve as a dire warning about just how serious the consequences of false certifications can be.
8(a) Mentor-Protégé Agreements and Graduation: The Beat Goes On?
After a participant in the SBA’s 8(a) Program graduates, can its mentor-protégé agreement be reapproved for another full year? Surprisingly, the answer may be “yes.” At least, this is what happened in the Armed Services Board of Contract Appeals’ decision in HMRTECH2 LLC, ASBCA No. 56829 (2009). However, subsequent rule changes indicate that the benefits of any such post-graduation re-approval will be limited to contracts obtained prior to graduation.
Proposal Submission: Check Agency Security Requirements
During my first summer in Washington, D.C. many years ago, I spent a hot, sticky Fourth of July on the National Mall, eating picnic food and watching the fireworks. I’m sure a few security personnel were around, but I took no notice of them. Flash forward to another Fourth on the Mall—this one post-9/11. On that Fourth, everyone entering the Mall had to pass through security before celebrating America’s birth. I remember mixed emotions—I was glad that the government was focusing on public safety, but frustrated about standing in a long security line just to reach the Mall.
Security is a reality of life these days, especially when dealing with the government. That’s why if you plan to hand-deliver a proposal to a procuring agency, be sure to check the agency’s security requirements well in advance of your planned delivery time, or the proposal could be rejected as late. One contractor learned this lesson the hard way, as described in the GAO’s bid protest decision in B&S Transport, Inc., B-404648.3 (Apr. 8, 2011).
Quorum Provision Defeats SDVOSB Status
If someone asked me to play a word association game with the phrase “quorum provision,” one of my first responses might be “boring.” After all, who really cares about some arcane paragraph tucked away in a company’s governing documents, describing how many people must attend company meetings?
Well, SDVOSBs should care. If your small business is pursuing service-disabled veteran-owned small business set-aside opportunities, you better make sure your governing documents are airtight. As demonstrated in one recent SBA Office of Hearings and Appeals decision, even something as mundane and boring as a quorum provision can defeat SDVOSB status, if the provision does not allow service-disabled veterans to unconditionally control the company.
Veteran Controls Both 8(a) Company and SDVOSB—By Working 95 Hours Per Week
In the legal profession, some firms are known to encourage a workaholic culture. I have heard tales of associates spending multiple nights sleeping (a couple hours) on office couches, being called away from the Thanksgiving dinner table to work, or awoken by the proverbial “3 a.m. phone call” by a partner demanding immediate attendance at the office. The funny thing is that most of these stories come from the associates themselves—bragging about how much they work!
I work hard for my clients, but with a wonderful wife and daughter in my life, I am of the mind that some of the most important things are found outside the office. However, one small business owner, who was the subject of a recent SBA Office of Hearings and Appeals decision, might feel right at home in one of those workaholic law firms. This business owner was able to convince SBA OHA that he worked full time both for his 8(a) company and his separate service-disabled veteran-owned small business—by putting in a whopping 95 hours per week.
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