Past performance is an important part of the agency evaluation process—we’ve written about it many times before for a reason. Like other evaluation areas, agencies get a great deal of discretion in evaluating past performance. Perhaps a contractor thinks it has a good past performance record and wants the agency to consider it; perhaps the contractor doesn’t want the agency to ignore a poor past performance record of a competitor. How can a contractor tell when the agency made a reasonable decision not to consider some aspect of past performance? A recent COFC decision showed that the agency cannot ignore adverse past performance in some cases. COFC applied the “too close at hand” doctrine—which says agencies may be obligated to consider information it has during an evaluation, even if the offeror didn’t cite to it. Whether or not an agency’s failure to consider particular information is a violation of this rule or not is a fact-specific inquiry.
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News Flash: SBA Releases Final HUBZone Rule Update, Other Small Business Changes
SBA has released the final rule for the HUBZone Program Updates and Clarifications, and Clarifications to Other Small Business Programs on December 17, 2024. As we have discussed, this rule made a lot of changes to the HUBZone program. But it also updated a lot of other small business rules. Below are the details on some of these significant changes. This rule will be effective on January 16, 2025.
Continue readingSBA Proposed Rule: Joint Venture Past Performance
How agencies evaluate past performance of joint ventures has been a somewhat confusing topic for federal contractors over the past few years. We’ve written about many of the key aspects of the evolution of this rule on SmallGovCon, from the earlier final rule to recent decisions interpreting that rule. The proposed rule would clarify how SBA thinks agencies should review past performance for joint ventures, but it also invites comment from contractors. This is an area where input from the federal contracting community could really have an impact on the final version of SBA’s rule.
Continue readingSBA Final Rule Eases Use of Small Business Joint Venture and Subcontractor Past Performance
SBA has issued a final rule that should help small businesses demonstrate their past performance more easily. Perhaps most importantly, the rule will allow for a small business to receive a written performance record, similar to CPARS, showing its performance as a subcontractor to a large business prime. The new rule will also allow a small business to better utilize its past performance that it carried out as a member of a joint venture.
Continue readingBack to Basics: Joint Ventures
Many of our readers are familiar with a number of the nuances of joint ventures. In fact, in the past few years, many of you have utilized this nifty little concept! That said, for those of you newer to the government contracting business (and as a refresher for those who have been in this for a while), here is a short rundown of the basics of joint ventures in government contracting.
Continue readingThe SBA Proposes New Rules to Help Small Businesses in Obtaining Past Performance
The SBA proposes to amend its regulations to implement new provisions of the National Defense Authorization Act (NDAA) for fiscal year 2021 that provides small business contractors with new tools to establish past performance when bidding on prime contracts for Government procurements. The proposed rules would add two new methods for small businesses to obtain qualifying past performance. One proposed rule would allow a small business with no relevant past performance of its own to use the past performance of a joint venture in which it took part. The second proposed rule would require prime contractors to provide, to small businesses that served as a first-tier subcontractor, a record of the business’s past performance for use by the small business in future proposals.
The proposed rules are here.
Continue readingPicking Your Team: Joint Ventures Versus Prime/Subcontractor Teams (Part Two, Past Performance)
Federal contractors often ask: “Is it better to team up for government work with a prime-sub arrangement or with a joint venture?” Well, (spoiler alert) the answer is: it depends. But I won’t leave you with just that. This three-part series will provide insight on some of the major differences between these two types of “teams” that offerors should consider when making the decision between a joint venture or prime/subcontractor team in competing for and performing federal contracts. While this series will not provide a comprehensive list of all the differences between these two types of teams, it will cover some of the big ones that seem to come up more frequently in this decision-making process. The focus of the first article in this three-part series was work share considerations. This second article will focus on evaluations of a team’s past performance.
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