A procuring agency appropriately refused to give an 8(a) participant the highest-possible past performance score, despite the 8(a) company’s plan to subcontract to the successful incumbent contractor.
In a recent GAO bid protest decision, the GAO held that in evaluating past performance, the agency properly focused on the experience of the 8(a) prime, which was required to perform at least 51% of the contract work and manage the contract.
Interested in creating compliant and effective joint venture agreements, teaming agreements, and subcontracts? Join me this Friday, March 15, for a free webinar sponsored by Powering Up! Small Business Teams.
The webinar will cover mandatory provisions to include in joint venture agreements under the 8(a), WOSB and SDVOSB programs, required subcontract “flow downs” and other small business teaming requirements. In addition, we will go beyond the minimum legal requirements and discuss best practices for thorough and effective teaming documents–topics such as dispute resolution, termination, exclusivity, non-disclosure of confidential information, and more.
To register for Friday’s free webinar, or find out more information, visit the webinar’s registration page. And if you’re interested in learning more about the ins and outs of small business teaming, mark your calendar for the upcoming teaming webinars in the Powering Up! webinar series.
The SBA 8(a) mentor-protege affiliation “shield” does not prevent a mentor and protege from being affiliated under the so-called ostensible subcontractor rule, according to a recent decision of the SBA Office of Hearings and Appeals.
In Size Appeal of InGenesis, Inc., SBA No. SIZ-5436 (2013), SBA OHA held that the broad exception from affiliation for 8(a) proteges and their mentors does not prevent the SBA from deeming the companies affiliated under the ostensible subcontractor rule.
It sounds like a tale from Bizarro World: under a recent Department of Homeland Security solicitation, a small business received a “Neutral” score for the small business participation factor, while its large competitor was awarded a “Good” score for the same factor.
One might think that the GAO would sustain a bid protest, especially because the small business in question planned to self-perform nearly two-thirds of the contract work. Think again. The GAO denied the protest, holding that under the solicitation, offerors could only receive small business participation credit for subcontracting to small businesses, not for self-performing at the prime contract level.
Congress has enacted major changes to the limitations on subcontracting rules for small government contractors.
The 2013 National Defense Authorization Act, signed into law by President Obama on January 3, contains two important changes to the subcontracting limits. First, for services contracts, compliance with the limitations on subcontracting will be based on the total amount paid to the small business, not the cost of the contract incurred for personnel. Second, small businesses will be able to meet their own performance requirements by subcontracting to other small companies.
The United States Court of Federal Claims has denied a challenge to the Transportation Security Administration’s establishment of a 40% small business subcontracting goal–measured by total contract price, not total subcontracting dollars.
In Firstline Transportation Security v. The United States, No,. 12-601C (2012), Judge Thomas Wheeler rejected arguments that the TSA’s 40% small business subcontracting goal was unreasonable, contrary to the FAR, and improperly established a partial small business set-aside.
Small government contractors sometimes rely on subcontractors to help satisfy experience, certification, past performance, and other solicitation requirements. But if one recent GAO bid protest decision is an indication of things to come, procuring agencies may begin requiring more information up front about major subcontractors–including a copy of the final subcontract agreement itself.