Congress Requires Large Primes to Provide Past Performance Reviews to Small Subcontractors–And Agencies to Consider Them

Breaking into the federal government contracting marketplace can be challenging, and many small businesses choose to start as subcontractors. But when those companies later bid on prime contracts, they sometimes find that they cannot get past performance reviews for their subcontract work, or that the government won’t consider such reviews.

Now, Congress has stepped in. A provision in the 2021 National Defense Authorization Act will require large prime contractors to provide small businesses with past performance reviews in certain cases, and will require agencies to consider them.

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SBA Clarifies How to Calculate Joint Venture Receipts for Small Business Size Purposes

In many industries, small business status under SBA’s government contracting rules depends on a company’s average annual receipts. But if a company is a member of a joint venture, it can be confusing figuring out which joint venture receipts count toward the company’s small business size.

Fortunately, in its recent new rule, SBA has provided two important clarifications. Let’s take a look.

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Room for Improvement: GAO Reviews Agency Oversight of Small Business Subcontracting Plans

Recently, GAO published a report on small business subcontracting plan compliance, concluding that agency oversight of these plans need improvement.

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8(a) Program: Participant Terminated for Not Paying Subcontractor

An 8(a) Program participant was terminated from the 8(a) Program for failing to pay a subcontractor.

According to the SBA, the non-payment reflected poorly on the 8(a) company’s character–and “good character” is a prerequisite for 8(a) Program participation.

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FAR & DFARS Have 27 Distinct Definitions of “Subcontract”

The FAR and DFARS have 27 distinct definitions of the term “subcontract,” according to an acquisition reform panel.

In its first report, the Section 809 Panel urges policymakers to adopt a consolidated definition of the term “subcontract,” as well as a common definition of “subcontractor,” a term that has 21 distinct definitions in the FAR and DFARS.

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NHO Prime Gets “Experience” Weakness Despite Experienced Affiliate

An agency was allowed to assign a Native Hawaiian-owned prime contractor a weakness for its experience because the NHO prime lacked relevant experience–even though the prime’s proposal indicated that it would rely in part on the resources of an experienced NHO sister company.

A recent GAO bid decision demonstrates that while a procuring agency is entitled to consider the experience and past performance of a prime contractor’s affiliates under certain circumstances, the agency is not precluded from considering the prime’s own experience (or lack thereof).

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Agency Insists On Subcontract With OEM; GAO Agrees

Subcontracting is a way of life for many federal government contractors; however, the identification and selection of such subcontractors is usually left up to the reasonable discretion of the prime contractor. So what happens when a solicitation prescribes that a particular subcontractor be retained, but that subcontractor won’t assist in bid preparation efforts?

Well, in one recent case, the prospective prime contractor was out of luck.

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