Faulty joint venture results in disqualifying affiliation

An 8(a) program protege was deemed affiliated with its mentor–and ineligible for a small business set-aside contract–because the joint venture agreement between the mentor and protege failed to comply with certain mandatory 8(a) joint venture requirements.

In a recent decision, the SBA Office of Hearings and Appeals concluded that an 8(a) mentor-protege joint venture was not entitled to take advantage of the special exception from affiliation because of the flaws in its joint venture agreement.  OHA’s decision is an important reminder to 8(a) mentors and proteges of the critical importance of strictly complying with the 8(a) joint venture regulation.

OHA’s decision in Kisan-Pike, A Joint Venture, SBA No. SIZ-5618 (2014) involved an Army Corps of Engineers solicitation for the design and construction of an Army Reserve Center.  The solicitation was issued as a small business set-aside.

Kisan-Pike, A Joint Venture, submitted a proposal.  Kisan-Pike was a joint venture between Kisan Engineering Company, P.C., an 8(a) program participant, and its large business mentor, The Pike Company, Inc.  Kisan and Pike had an active, approved 8(a) mentor-protege agreement at the time that Kisan-Pike submitted its proposal.  Kisan-Pike self certified as a small business based on the special exception from affiliation available to 8(a) mentor-protege joint ventures.

Keep reading this article at: http://smallgovcon.com/sbaohadecisions/8a-mentor-protege-jvs-faulty-jv-agreement-results-in-affiliation

Done deal? VA could finally have a contractor to help verify veteran-owned small businesses

It appears the Department of Veterans Affairs will move forward with a new contract supporting its program for verifying veteran-owned small businesses, more than a year after the VA ended the old contract and following a number of bizarre delays spurred by legal and regulatory wrangling.

CVE logoThe Small Business Administration has determined that Loch Harbour Group in Alexandria does indeed qualify to perform the work as a small business, according to the company’s attorney in the matter. That determination came after the VA filed a size protest that could have prevented the contractor from landing the work.

“It was a lot of work, on both sides, but it appears that the issues between Loch Harbour and the government have finally been resolved and they can move forward working together to do the important work of verification,” which is required to bid on work set aside by the VA, said Lee Doughterty, a principal at the Vienna office of law firm Offit Kurman who represents Loch Harbour.

Keep reading this article at: http://www.bizjournals.com/washington/blog/fedbiz_daily/2014/12/done-deal-va-could-finally-have-a-contractor-to.html

Agencies awarding SBIR contracts to businesses owned by venture capital firms

Two of the agencies participating in a Small Business Administration innovation program opted to open the program to small businesses that are majority-owned by venture capital firms, says a Nov. 20 Government Accountability Office report.

The Health and Human Services Department and the Energy Department opted to open part of their Small Business Innovation Research programs to small businesses that are majority-owned by multiple venture capital or similar firms, allowing such companies to apply for and receive SBIR awards, the report says.

Specifically, HHS’s National Institutes of Health and the DOE’s Advanced Research Projects Agency allowed such companies to participate.

For fiscal 2013 and fiscal 2014, NIH and ARPA together received 20 applications from majority-owned portfolio companies and made 12 SBIR awards to them, totaling about $7.9 million, the report says.

Keep reading this article at: http://www.fiercegovernment.com/story/gao-2-agencies-awarding-sba-contracts-businesses-owned-venture-capital-firm/2014-11-25

Inspector general releases report on critical risks facing the SBA

The Office of Inspector General of the U.S. Small Business Administration (SBA) has issued its semi-annual report focusing on the most critical risks facing the SBA, including several aspects of government procurement.

SBA - IGCovering the period April through September 2014, the OIG’s report covers key SBA programs and operations, including financial assistance, government contracting and business development, financial management and information technology, disaster assistance, management challenges, and security operations.

Of particular interest to the government contracting community are findings such as:

  • Over $400 million in federal contracts that were awarded to ineligible firms, which may have contributed to the overstatement of small business goaling dollars for the Small Disadvantaged Business and the HUBZone Business Preference Programs in FY 2013.
  • The owner of a Colorado real estate firm and 5 family members were charged in a 37-count indictment by a state grand jury in connection with a $2,323,000 SBA-guaranteed loan to refinance an office building and other existing debt.
  • Sixteen cases of contract-related bribery and/or fraud were identified in connection with contracts or subcontracts set-aside for 8(a), HUBZone, veterans, or other categories of small business.
  • The OIG was unable to determine if the SBA appropriately issued waivers to the non-manufacturer rule because of a lack of established procedures, missing files, and other deficiencies.

The OIG’s full report can be downloaded here: SBA OIG Semi-Annual Report to Congress – Fall 2014

VA demands review of company’s small business status, days after awarding it a contract

Days after the Department of Veterans Affairs awarded a contract to manage its verification program for veteran-owned small businesses, it’s questioning the winner’s own status as a small business.

The VA filed a size protest with the Small Business Administration against Loch Harbour Group Inc. of Alexandria, less than a week after awarding the company a $39.9 million contract to manage the VA’s Center for Veterans Enterprise, said Lee Doughterty, a principal at the Vienna office of law firm Offit Kurman who represents Loch Harbour.

That contract, which was set aside for veteran-owned small businesses and involves processing contractor applications to be verified as veteran-owned, was originally awarded to Monterey Consultants Inc. of Dayton, Ohio. The VA terminated the Monterey award in November, opting to take corrective action in response to a protest filed by Loch Harbour in the U.S. Court of Federal Claims.

“It is a terrible tactical move,” said Dougherty, who added that Loch Harbour was deemed qualified to compete for the work during the contract evaluation process. “The retaliation taken by the program and contracting officer is absolutely inappropriate and a gross violation.”

Keep reading this article at: http://www.bizjournals.com/washington/blog/fedbiz_daily/2014/12/va-demands-review-of-companys-small-business.html?page=all

GAO sustains protest resulting from agency’s failure to make referral to SBA

A procuring agency erred by essentially assigning a small business a failing past performance score without referring the matter to the SBA.

In a recent bid protest decision, the GAO held that the assignment of a failing past performance score under a past/fail system constituted a non-responsibility determination–and that the SBA was entitled to review the agency’s determination under the SBA’s Certificate of Competency procedures.

The GAO’s decision in FitNet Purchasing Alliance, B-410263 (Nov. 26, 2014) involved a Bureau of Indian Affairs solicitation for gym floor racks, covers, and accessories.  The solicitation was posted on the FedBid reverse auction website and was set aside for small businesses.

FitNet Purchasing Alliance submitted the lowest price.  However, the Contracting Officer elected to make award to the second-lowest bidder, Nationwide Supplies.  A single-page document in the agency’s file stated that the Contracting Officer had declined FitNet’s bid because of adverse past performance information about FitNet.  The agency’s file did not mention Nationwide’s past performance, or indicate that the Contracting Officer had considered Nationwide’s past performance in making the award decision.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/agency-doesnt-request-sba-coc-gao-sustains-protest/


Federal claims court invalidates key component of SBA’s nonmanufacturer rule

It has been the common understanding within the SBA, and the small business government contracting community as a whole, that the SBA’s nonmanufacturer rule applies only to contracts for the provision of supplies (i.e., goods) and not to service contracts, regardless of
whether or not such service contracts have a supply component. The SBA memorialized this understanding in a 2011 rulemaking. According to 13 C.F.R. § 121.406(b)(3), the nonmanufacturer rule does not apply to procurements that are assigned a services, construction, or specialty trade construction code.

The U.S. Court of Federal Claims (COFC) recently turned this common understanding about the nonmanufacturer rule on its head. In its September 19, 2014, decision in Rotech v. United States, COFC No. 14-502C (2014), the COFC invalidated 13 C.F.R § 121.406(b)(3).

Keep reading this article by clicking here  (pdf file).

Step-by-step instruction on 8(a) certification on Jan. 15th

The Georgia District Office of the U.S. Small Business Administration (SBA), along with the Office of Minority Development of the University of Georgia’s Small Business Development Center, is presenting a three-hour seminar on the 8(a) certification process on Thursday, January 15, 2015 in Atlanta.

The SBA’s 8(a) Business Development program is a part of the federal government’s effort to promote equal business access for socially and economically disadvantaged individuals, including Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, subcontinent Asian Americans, and in in some cases, women business owners. Companies with an 8(a) certification can benefit from the wide-range of services offered including government contracting opportunities, access to capital, management and technical assistance, and more.

The Jan. 15th  seminar is being held at the Georgia District office of the SBA, 233 Peachtree Street, Suite 1900, Peachtree Center – Harris Tower, Atlanta, GA, 30303.

There is no cost associated with this event, and advance registration is required.  To register, visit: http://events.sba.gov/eventmanagement/EventRegistration.aspx?id=5f3635bc-586c-e411-8238-02bfa56e2a24.

GAO says SBA needs to monitor WOSB certifiers and improve annual eligibility examinations

In a November 7, 2014 report the U.S. Government Accountability Office (GAO) found that the SBA performs minimal oversight of third-party certifiers of women-owned small businesses and has yet to develop procedures that provide reasonable assurance that only eligible businesses obtain contracts set-aside for women-owned small businesses.


Businesses have two options to certify their eligibility for the federal government’s women-owned small business (WOSB) program. Whether self-certifying at no cost or using the fee-based services of an approved third-party certifier, businesses must attest that they are a WOSB or an economically disadvantaged women-owned small business (EDWOSB). Businesses also must submit documents supporting their attestation to a repository the Small Business Administration (SBA) maintains (required documents vary depending on certification type), and, if they obtain a third-party certification, to the certifier.


In its examination of the certification process, the GAO found that:

  • SBA generally has not reviewed certifier performance or developed or implemented procedures for such reviews, including determining whether certifiers inform businesses of the no-cost self-certification option, a requirement in the agency’s agreement with certifiers.
  • SBA also has not completed or implemented procedures to review the monthly reports that third-party certifiers must submit.

In its report, the GAO says that without ongoing monitoring and oversight of the activities and performance of third-party certifiers, the SBA cannot reasonably assure that certifiers fulfill the requirements of the agreement.

This finding is bolstered by the fact that, in 2012 and 2013, the SBA found that more than 40 percent of businesses (that previously received contracts) it examined for program eligibility should not have attested they were WOSBs or EDWOSBs at the time of the SBA’s review. SBA officials speculated about possible reasons for the results, including businesses not providing adequate documentation or becoming ineligible after contracts were awarded, but the SBA has not assessed the results of the examinations to determine the actual reasons for the high numbers of businesses found ineligible. The SBA also has not completed or implemented procedures to conduct eligibility examinations. According to federal standards for internal control, agencies should have documented procedures, conduct monitoring, and ensure that any review findings and deficiencies are resolved promptly. As a result of inadequate monitoring and controls, potentially ineligible businesses may continue to incorrectly certify themselves as WOSBs, increasing the risk that they may receive contracts for which they are not eligible.

The GAO finds that the WOSB program has had a limited effect on federal contracting opportunities available to WOSBs. Set-aside contracts under the program represent less than 1 percent of all federal contract obligations to women-owned small businesses. The Departments of Defense and Homeland Security and the General Services Administration collectively accounted for the majority of the $228.9 million in set-aside obligations awarded under the program between April 2011 and May 2014. Contracting officers, business owners, and industry advocates with whom GAO spoke identified challenges to program use and suggested potential changes that might increase program use, including allowing sole-source contracts rather than requiring at least two businesses to compete and expanding the list of 330 industries in which WOSBs and EDWOSBs were eligible for a set-aside.

A summary of the GAO’s report can be downloaded at: http://www.gao.gov/assets/670/666430.pdf

The full report can be downloaded at: http://www.gao.gov/assets/670/666431.pdf 

California company’s sales tactics raise red flags among veteran-owned contractors

Some in the veteran-owned contracting community are voicing concerns about implications made by a California company that its new offering provides a competitive advantage that doesn’t actually exist.

Los Angeles-based Dun & Bradstreet Credibility Corp., which did not respond to a request for comment, launched 10 Veteran VERIFIED, “a proprietary business verification and authentication service that verifies both military service and veteran business ownership,” according to the company’s press release.

“Once the verification process is completed, a military serviceperson can showcase his or her veteran status sticker in storefronts; a point of sale; on the business website; or through social media.”

What caught the attention of some in the contracting community, however, are claims that the verification could improve a company’s chances of landing contracts.

Keep reading this article at: http://www.bizjournals.com/jacksonville/news/2014/11/14/california-companys-sales-tactics-raise-red-flags.html?page=all