Wouldn’t you like to know five things about size protests and appeals?
Click here to read the answers to these questions: http://smallgovcon.com/five-things/size-protests-and-appeals/
As the incumbent contractor, you’re excited to bid on the successor contract. The day it’s posted, you dash to fbo.gov, pull up the solicitation, and breathe a sigh of relief: the contract is still exclusively a small business set-aside.
But wait! Under the assigned NAICS code your business doesn’t fall below the size standard.
Can the agency change the NAICS code from one iteration of the contract to another? Sure, so long as the selected NAICS code meets the regulatory standard.
In NAICS Appeal of STG, Inc., SBA No. NAICS-5936 (2018), OHA considered a solicitation, issued by the Department of the Army, for “[n]on-personal information technology (IT) services and support requirements.” The contracting officer assigned the procurement NAICS code 541513, Computer Facilities Management Services, which carries a $27.5 million size standard. STG, the incumbent contractor, disagreed with that selection. It contended that the NAICS code, assigned to the existing contract, was the correct one, namely NAICS code, 517110 (now NAICS code 517311), Wired Telecommunications Carriers, with a 1,500-employee size standard.
Keep reading this article at: http://smallgovcon.com/uncategorized/yes-an-agency-can-change-the-naics-code-from-one-iteration-of-a-contract-to-the-next/
Note: Author of “The Small Business Guide to Government Contracts,” Steven J. Koprince blogged recently about a recent ruling by the Armed Services Board of Contract Appeals (ASBCA) that the government breached a contract when it waited more than three months to respond to a contractor’s request to amend the contract’s scope of work. Here is his writing, along with a link to his post:
Here’s a situation my colleagues and I see with some frequency: a contractor, in the course of working on a government contract, submits a request of some sort to the agency. Then waits for a response. And waits some more. Meanwhile, the government’s delay in responding prevents the contractor from moving forward with some aspect of the project, causing the contractor to incur costs.
For contractors faced with this type of government inaction, a recent decision by the Armed Services Board of Contract Appeals is welcome news. In that case, the ASBCA held that the government breached its implied duty of good faith and fair dealing by waiting more than three months to respond to the contractor’s request to amend the Statement of Work – allowing the contractor to “twist in the wind” during that period.
The ASBCA’s decision in Relyant, LLC, ASBCA No. 59809 (2018) involved an Army contract for the acquisition of pre-fabricated relocatable buildings (abbreviated “RLBs” in the decision) for use at two different sites in Afghanistan.
The solicitation’s Statement of Work included certain specifications for the RLBs. Among those specifications, the SOW required the installation of gypsum interior drywall to the interior of the shipping containers that would cover fiberglass insulation. But in its proposal, Relyant, LLC proposed a different configuration: the use of a “sandwich panel,” including Styrofoam as the insulator instead of separate insulation and drywall.
Keep reading this article at: http://smallgovcon.com/claims-and-appeals/governments-delayed-response-breached-contract-says-asbca/
The Small Business Administration (SBA) issued a Direct Final Rule on March 26, 2018 that appears to address a specific holding of SBA’s Office of Hearings and Appeals (OHA) related to small business recertification rules.
This rule went into effect on May 25, 2018.
In the recently issued Analytic Strategies, Inc., SBA No. VET-268, decision, OHA held that a service-disabled veteran-owned small business concern (SDVO SBC) that recertifies its status pursuant to an acquisition or merger remains eligible for set-aside task orders under an indefinite delivery, indefinite quantity contract (IDIQ), unless the contracting officer specifically requires recertification in connection with a specific task order. This holding affirmed the widely understood interpretation of the regulations. SBA opposed this interpretation of the rule in Analytic Strategies. For more information on this case, see an earlier blog post on Analytic Strategies.
In March 2018, SBA announced what it terms as a “technical correction” under a Direct Final Rule that may be an attempt to cast doubt on the Analytic Strategies decision. This new rule, however, may prove too much as it would apply to many of the small business programs administered by SBA and not just SDVO SBCs. On the other hand, if SBA’s goal was to make contractors that have recertified their status ineligible for future set aside task orders, it is not clear this rule does it.
Keep reading this article at: http://www.mondaq.com/article.asp?articleid=701646
The federal government sets aside many contracts for small businesses, but not all small business set-asides are created equal.
Instead, different size standards define small business status for different procurements. The size standards vary from industry to industry, so a given firm may be a small business for one procurement at the same time it may be other-than-small for a different procurement for seemingly similar goods or services.
To keep order, the Small Business Administration (SBA) maintains a manual of industrial codes – called North American Industry Classification System (NAICS) codes – that are assigned to particular classes of manufacturing and service industries. Each NAICS code is associated with a particular size standard that changes over time. Some size standards are based on a firm’s revenues and are expressed as dollar values – a firm is small if its average annual receipts do not exceed the specified number of dollars. Others are based on the size of a firm’s workforce – a firm is small if its average number of employees does not exceed the figure associated with the particular NAICS code in question.
For each procurement in excess of the micro-purchase threshold (currently $3,500 for most acquisitions), the contracting officer, per FAR 19.303, must designate within the solicitation a single NAICS code that best corresponds to the goods or services the agency is soliciting. The chosen NAICS code establishes the size standard for that procurement. If the procurement is a small business set-aside, the size standard can determine (in large part) whether a particular offeror is eligible for award.
Keep reading this article at: http://www.mondaq.com/article.asp?articleid=629604
An offeror with a “relatively weak proposal” can nonetheless file a size protest challenging the small business eligibility of the prospective awardee, provided that the protester was not found technically unacceptable or otherwise incapable of being selected for award.
In a recent size appeal decision, the SBA Office of Hearings and Appeals held that the mere fact that the protester was evaluated as “less than satisfactory” on four out of five non-price factors did not justify dismissing the protester’s size protest for lack of standing.
OHA’s decision in Size Appeal of TMC Global Professional Services, SBA No. SIZ-5792 (2016) involved a DOE NNSA solicitation for the Design, Integration, Construction, Communication, and Engineering 2 (DICCE2) procurement in support of DOE’s nuclear smuggling detection and deterrence efforts. The solicitation was issued as a small business set-aside under NAICS code 237990 (Other Heavy and Civil Engineering Construction), with a corresponding $36.5 million size standard.
Keep reading this article at: http://smallgovcon.com/sba-size-protests/offeror-with-relatively-weak-proposal-can-file-size-protest-says-sba-oha/
The prime contractor’s management of a contract wasn’t enough to avoid ostensible subcontractor affiliation where the subcontractor would provide the labor, equipment, and facilities for performing the work.
In a recent size appeal decision, the SBA Office of Hearings and Appeals confirmed that, where the subcontractor will provide the goods or services that the agency “actually seeks to acquire,” the subcontractor may be deemed an ostensible subcontractor under the SBA’s affiliation rules.
OHA’s decision in Size Appeal of Hamilton Alliance, Inc., SBA No. 5698 (2015) involved a NAVFAC solicitation seeking a contractor to provide refuse collection and processing, as well as the collection, processing and sale of recyclable waste. Under the solicitation’s Performance Work Statement, the contractor was to be responsible for providing all labor, supplies, materials, equipment, transportation, facilities, supervision and management necessary to collect and process refuse and recyclable waste. The solicitation was a SDVOSB set-aside under NAICS code 562119 (Other Waste Collection), with a corresponding $38.5 million size standard.
Keep reading this article at: http://smallgovcon.com/sbaohadecisions/ostensible-subcontractor-rule-management-alone-wasnt-enough/
An 8(a) mentor-protégé agreement, which expired one year after its approval by the SBA, did not protect the 8(a) protégé and its mentor from affiliation–and meant that their 8(a) mentor-protégé joint venture was an ineligible large business.
A recent size appeal decision of the SBA Office of Hearings and Appeals is a cautionary tale for 8(a) protégé and their mentors, and highlights the importance of securing timely SBA reauthorization of 8(a) mentor-protégé agreements.
OHA’s decision in Size Appeal of North Star Magnus Pacific Joint Venture, SBA No. SIZ-5715 (2016) involved a joint venture between North Star Construction and Engineering, an 8(a) program participant, and North Star’s mentor, Magnus Pacific Corp.
On July 5, 2014, the SBA approved a mentor-protégé agreement between North Star and Magnus Pacific. The mentor-protégé agreement stated that the initial period of the agreement was one year. North Star, the protégé, was required to request continuance of the mentor-protégé agreement within 60 days prior to its expiration. The SBA’s letter approving the mentor-protégé agreement similarly stated, “[t]his agreement shall expire after one year, unless SBA approves an extension.” The letter reiterated that North Star was to request an extension within 60 days prior to expiration.
Keep reading this article at: http://smallgovcon.com/sbaohadecisions/expired-8a-mentor-protege-agreement-sinks-jvs-eligibility/
After filing a claim under the Contract Disputes Act (CDA), the contracting officer may notify you that a final decision will be issued within “X” days after certain pre-conditions are met, such as:
Are you required to cooperate? For claims over $100,000, the CDA requires a contracting officer, within 60 calendar days, to either issue a final decision or notify the contractor of the date by which a final decision will be issued. The Armed Services Board of Contract Appeals (ASBCA) recently held that a conditional final decision date, as described above, does not comply with this CDA requirement. Thus, in such instances, a contractor may file an Appeal on a deemed denial basis without waiting for a final decision.
Keep reading this article at: http://www.mondaq.com/article.asp?articleid=468776
Under the Small Business Administration’s affiliation rules, a minority owner may “control” a company where the company’s governing documents impose supermajority voting requirements that require the minority owner’s consent for the company to make ordinary business decisions.
In a recent size appeal decision, the SBA Office of Hearings and Appeals (OHA) confirmed that supermajority voting requirements may establish control (and affiliation), even where the minority owner does not actually exercise its control.
OHA’s decision in Size Appeal of Potomac River Group, LLC, SBA No. SIZ-5689 (2015) involved a DoD solicitation for assistance in performing security interviews and polygraph examinations. The solicitation was issued as a small business set-aide under NAICS code 561611 (Investigation Services).
After evaluating competitive proposals, the agency identified Potomac River Group, LLC as the apparent successful offeror. An unsuccessful competitor subsequently filed a size protest challenging PRG’s small business eligibility.
Keep reading this article at: http://smallgovcon.com/sbaohadecisions/sba-affiliation-rules-beware-supermajority-voting-requirements
