The CIO-SP4 is a big deal for many small and large federal contractors. And lately it’s been a bit of a moving target as to how NITAAC will evaluate the experience of companies working together in prime-sub, mentor-protégé, and joint-venture relationships. We wrote about some of the issues with past performance and other recent changes. One change that caught my eye puts a restriction on the number of experience examples a large business mentor can provide. But should it?

The Chief Information Officer – Solutions and Partners 4 (CIO-SP4) Solicitation includes specific language relating to mentors that was recently amended in section L.5.2.1. This language limits the number of experience examples from a large business mentor, but the current language appears to violate SBA rules on joint venture past performance.

Section L.5.2.1 states in relevant part that “for mentor-protégé arrangements, large business is limited to one example for each task area.” However, SBA rules that were enacted in 2020 require that “[a] procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.” 13 C.F.R. § 125.8(e).

Here, the Solicitation language contradicts this SBA requirement by having the effect of requiring the protégé firm to meet the evaluation criteria in a different, more restrictive manner than other offerors. Here, the rule would require the protégé to have twice as many past performance examples as the mentor (2 for the protégé and 1 for the mentor). If only 1 can be submitted from the large business mentor, it severely limits the benefit of a mentor-protégé relationship. The protégé appears to be required to meet the experience requirements in the same manner as other offerors, without giving effect to the mentor-protégé relationship, in violation of SBA rules.

In a recent GAO decision, an RFP required each member of a mentor-protégé joint venture to submit work examples. Innovate Now, LLC, B-419546 (Apr. 26, 2021). GAO found the RFP violated the SBA rule because “[a]ll offerors-including the protégé member of a mentor-protégé joint venture-must meet exactly the same evaluation requirements.” SBA’s commentary on its own rule stated: “it is unreasonable to require the protégé concern itself to have the same level of past performance and experience (either in dollar value or number of previous contracts performed, years of performance, or otherwise) as its large business mentor. The reason that any small business joint ventures with another business entity … is because it cannot meet all performance requirements by itself and seeks to gain experience through the help of its joint venture partner.” It’s possible that GAO would find the same flaw with the current mentor experience limit in section L.5.2.1 of CIO-SP4.

Unfortunately, NITAAC has not addressed this concern. Here’s hoping that they do, and allow additional mentor experience examples. Otherwise, offerors may be left finding it necessary to protest the solicitation, or risk losing out on some of the benefits of the Mentor-Protégé relationship.

Need help with a government contracting legal matter? Email us or give us a call at 785-200-8919.

Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.