Small Business Being Acquired by a Large Business? For Multiple Award Contracts, the 180-Day Rule Doesn’t Apply to Task Orders, says GAO

You may recall a post of ours back in April 2021, where we discussed a little-known change to SBA’s size determination rules that occurred in October 2020. SBA created an exception, at 13 C.F.R. § 121.404(g)(2)(iii), to the usual “size is determined at offer date” rule. Now, prior to award, when a small business is part of a merger or acquisition after it makes an offer on a solicitation, the business has to recertify its size, and depending on when that acquisition occurred, if the business is now large, it may lose its award.

However, the rule is for better or worse not that straightforward, as a small business learned in a recent GAO decision. Because a part of the rule says that task order awards in such cases may not be treated as small business awards, GAO concluded that such awards are still allowed.

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GAO: Small Business Rule of Two Doesn’t Require Set-Aside for Task Order

Generally, the small business Rule of Two requires an agency to set aside contracts for small business, assuming that there are at least two small businesses with competitive prices who will bid on the contract. But does the small business Rule of Two apply to orders under a multiple award contract? In a recent decision, GAO affirmed the answer is no–application of the small business Rule of Two for orders under a multiple-award contract is discretionary.

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GAO Clarifies Increase-the-Scope Exception For Task Order Jurisdiction

GAO may only consider protests to civilian agency task or delivery orders under $10,000,000 if the protests allege that the order increases the scope, period, or maximum value of the underlying contract. GAO recently dismissed a case for lack of jurisdiction where the protester relied on the underlying contract’s ordering clause to argue that the agency’s amendment to the evaluation scheme was “out of scope.” Let’s take a look.

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YouTube Tuesday: GAO Task Order Jurisdiction

If you’re contemplating a bid protest at the Government Accountability Office, meeting its task order jurisdiction threshold might be a box you need to check! Join me as I explain the details of GAO’s task order jurisdiction.

Got questions? For more information, email us at info@koprince.com, or call (785) 200-8919.

Unreasonable Cost Adjustment Leads to Sustained Protest

Of late the pages of this blog have been entirely coronavirus and COVID-19 obsessed—and for good reason. But that does not stop the Government Accountability Office from deciding bid protests.

With all that’s been going on, writing about a GAO decision regarding run-of-the-mill unreasonable cost realism evaluation is downright refreshing.

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COFC: No Jurisdiction Over Bundling of Contracts into Task Order

When considering where to file a bid protest, you have options at the agency level, Government Accountability Office, and Court of Federal Claims. But not all options are available for protests of task and delivery order awards. The Court of Federal Claims recently reminded a protester that it lacks jurisdiction over task and delivery orders, even where an agency is proposing to bundle multiple separate contracts into one task order.

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SBA Proposes to Change When Companies Need to Recertify Size and Status for Orders

SBA recently proposed changes to a number of its small business rules, as we’ve written about in earlier posts. The same proposed rule includes a small but significant change to when a business has to recertify its size and status for orders under multiple award contracts.

Based on the number of times we’ve written about size and status protests for orders under multiple award contracts (see the related content at the bottom of this post for a sampling), this is an area in need of clarity.

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