Spring is upon us, and for many of us, it evokes thoughts of friendly weather, and new life. In the world of federal contracting, new life is often seen through the forming of new joint ventures. As most contractors and readers of this blog know, there are many requirements placed on a joint venture that intends to bid on set-asides, and most deal with the content of a joint venture agreement between the joint venture members. In a recent case, the SBA Office of Hearings and Appeals (OHA) reviewed a joint venture agreement and addendums. Through its decision, OHA sent a clear warning to the industry to complete and sign both the joint venture agreement and any addendums, and make sure to have all items completed and signed prior to proposal submission deadlines, at the latest, the date of final proposal revisions.
In Focus Revision Partners, SBA No. SIZ-6188, 2023 (Jan. 31, 2023), a size appeal alleged that, among other arguments, an awardee didn’t complete its JVA and addendum on time, nor properly fill it out. As we discussed last year, joint venture regulations can be complicated, and often joint venture agreements may need project specific addendums to ensure compliance with each project specific requirement found in the regulations (all the more reason you should check out our handbook on Joint Ventures, released in fall 2022!). But what happens if you don’t fill out the addendum correctly, or even execute it correctly? OHA’s decision in Focus Revision addresses that very issue.
In this case, FEMA released a 100% small business set-aside RFP for FEMA’s Risk Mapping, Assessment, and Planning program. A mentor-protégé joint venture, NWI&T Atkins SB JV, LLC, bid on and was initially awarded the contract. After award, a size protest was filed by Focus Revision Partners, claiming that the awardee’s MPA was not properly updated after a name change of one of the protégé making the MPA invalid, and that the JVA itself is deficient, as it likely has an employee of the mentor as the Responsible Manager and the mentor would do more work than is allowed under the regulations. After going through a typical reply and response cycle, as well as reviewing the JVA, the SBA Area Office disagreed with the protestor and held that the awardee was small for the size applied to the RFP. The protestor then filed an appeal, in which the OHA was able to lay out exactly what will be expected from a JVA and any addendum.
In the Appeal the protestor once again argued that the awardee JV’s protégé member would not perform the required amount of work, and that the MPA was invalid due to the name change, but OHA’s focus seemed to turn to whether the JVA is deficient. The protestor’s initial argument on appeal related to the JVA was that the JVA did not properly itemize major equipment, facilities, and other resources, and didn’t properly name a protégé employee as the Responsible Manager. The protestor subsequently filed a supplemental appeal stating that the JVA addendum was submitted two weeks after the final proposal revisions were completed, and as such should not have been considered. Additionally, the protestor argued that the JVA required a signature of any addendum, and since the addendum was not signed, then it was not a valid addendum (regardless of how deficient its contents were). The awardee and SBA Area Office both submitted arguments against these allegations stating in numerous ways that the JVA was proper, the MPA did not need updating, and there were no clear errors of fact or law (which is the standard for OHA appeals).
As alluded to earlier, OHA focused on the joint venture documents themselves. OHA stated that as an initial matter the JVA itself, without the addendum, was not sufficient to meet the level of contract specific detail required by 13 C.F.R. § 125.8(b). This regulation lays out very specific requirements for what must be included in a JVA for parties to a mentor-protégé joint venture, including: 1) “Itemizing all major equipment, facilities, and other resources to be furnished by each party to the joint venture, with a detailed schedule of cost or value of each, where practical”; 2) “specifying the responsibilities of the parties with regard to negotiation of the contract, source of labor, and contract performance, including ways that the parties to the joint venture will ensure that the joint venture and the small business partner(s) to the joint venture will meet the performance of work requirements”; and 3) “designating a named employee of the small business managing venturer as the manager with ultimate responsibility for performance of the contract (the “Responsible Manager”)” among a multitude of other requirements. Of course many contracts are indefinite in nature, and thus it would be hard to be extremely specific, but the regulations take that into account, requiring “general descriptions” of how JV members will address these requirements based on what is known about the contract. After review, OHA found that the JVA itself didn’t even meet these standards.
The JVA was drafted years before the RFP at issue was published, so it stated generally that a “contract” will be pursued, did not name specifics of the current RFP, did not name a Responsible Manager, nor itemize items or duties. This was recognized by the joint venture members and as such within the JVA called for addendums to the JVA to be executed for each contract that would address these requirements. So, for this case, the JVA addendum would be the turning point on if the JVA itself was sufficient.
Firstly, OHA determined that the JVA required any addendum or amendment to be signed. Upon review, the JVA addendum was not signed by either member of the awardee JV, nor were there indications that the addendum was jointly approved. On top of this OHA found that the the addendum should not have been considered because it was created after the date of the final proposal revisions, which is the relevant date for determining JV compliance under 13 C.F.R. § 121.404(d). FEMA requested final proposal revisions on Sept. 7, 2021, the awardee submitted the revised technical and business proposals on Sept. 10, 2021, and the JVA addendum was not provided until Sept. 24th, nine days after a pre-award notification was issued. Consequently, OHA held that the JVA addendum should not have been accepted, as allowing a protested business to change its proposal after an award has been announced, and after a size protest filing “could essentially render SBA’s size protest process” as null, with protested firms simply submitting unsolicited final proposal revisions to cure alleged defects.
OHA did not stop there, and decided to review how the JVA addendum itself was still deficient, even if it would have been submitted on time. The addendum, like the JVA, continued to not reflect the required amount of detail required by regulation. The addendum simply affirmed that each JV member would “provide the needed equipment and facilities” required to perform the RFP, but does not seem to go into deeper detail. Similarly, the addendum also doesn’t describe sources of labor or performance, but rather just states that the protégé will do more than administrative or ministerial activities for the RFP. The awardee argued that the contract was indefinite in nature and much detail wasn’t needed, but OHA in citing the regulations discussed earlier in this blog, held that these broad statements in the addendum do not raise to the level of “general description” required. Therefore, with all this in mind, OHA found that the awardee did not provide sufficient detail to meet the requirements placed on Mentor-Protégé JVs found in 13 C.F.R. § 125.8(b), and therefore was not an eligible small business for the RFP.
There is a lot for contractors to learn from this case, but likely the most important is to not forget to fill every little thing out in your JVA and addendums. It is very common for contractor’s to utilize JVAs that have contract specific addendums. Drafting the JVA in this manner will mean that the contract-specific items must be included in the addendum. However, that addendum will do no good unless it is detailed enough, executed properly, and completed prior to the bid.
Another great tip for contractors from this case is that even when a contract feels pretty non-descript and indefinite, you need to do all you can to be as specific as possible when filling out equipment, facilities, sources of labor etc. on your JVA or addendum. While it may seem like you are, to some extent, guessing at future items that will be needed, simply contemplating the needs of the contract and anticipating what might be needed to achieve it, could go a long way for helping you determine what “general descriptions” could be utilized for the required items. Finally, as with most legal documents, make sure they are properly executed within the terms of the agreement, and done in time for any sort of proposal deadlines. Of course much of this can be avoided or talked through with solid legal counsel, so if you ever have questions about your JVA, or forming a JV for bidding on federal contracts, give us a call!
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