GAO: Ostensible Subcontractor Rule Not Part of Set-Aside Decision

When deciding whether to set aside a solicitation for small businesses, procuring agencies need not consider whether prospective small business offerors can perform the contract without violating the SBA’s ostensible subcontractor rule.

This was the ruling of the GAO in a recent bid protest decision, in which the GAO held that a procuring agency had properly set aside a contract for small businesses without prior consideration of the ostensible subcontractor rule.  The GAO’s decision aligns with the one discussed in yesterday’s post, in which the GAO held that an a procuring agency need not consider the individual capabilities of potential small business offerors to meet all solicitation requirements before setting aside a solicitation.

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GAO: Small Businesses’ Capabilities Not Part Of Set-Aside Decision

A procuring agency is not required to evaluate whether potential small business offerors possess the capabilities to meet all of the requirements of a solicitation before issuing the solicitation as a small business set-aside, according to a recent GAO bid protest decision.

In Swank Healthcare, B-407367 (Dec. 12, 2012), the GAO denied a large business’s bid protest, holding that the procuring agency had properly issued a small business set-aside without first considering whether the small businesses it had identified as likely offerors possessed the capabilities to meet all of the requirements of the solicitation.

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GAO: Protest of Unlicensed Awardee Not Allowed

What do you do if a federal agency awards a contract to one of your competitors, but the competitor in question does not possess certain licenses required by the solicitation?  At least in one recent GAO bid protest decision, the answer appears to be, “not much.”

In SIMMEC Training Solutions, B-406819 (Aug. 20, 2012), the protester complained–correctly–that the prime contractor lacked two required licenses.  The GAO ruled against the protester anyway, holding that it lacked jurisdiction to consider the licensing challenge.

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