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GAO rules that DoD may not require small business Joint Venture itself hold facility security clearance

December 14, 2021 By Nancy Cleveland

In an August 27, 2021 decision, GAO sided with protester InfoPoint LLC (“InfoPoint”), and the Small Business Administration (“SBA”) which was invited to submit comments, in finding that a Department of Defense (“DoD”) solicitation provision requiring a small business joint venture offeror to itself hold a facility clearance was inconsistent with the National Defense Authorization Act for Fiscal Year 2020 (“2020 NDAA”) and SBA’s regulation at 13 C.F.R. §121.103.

GAO ruled that the 2020 NDAA “clearly and unambiguously prohibits DoD agencies, like the Air Force here, from issuing solicitations that require a joint venture, rather than the members of the joint venture, hold the required facility clearance.”

Continue reading at: Crowell & Moring

Filed Under: Contracting Tips Tagged With: facility security clearance, Joint Ventures, small business

Five things you should know about past performance when teaming

May 7, 2021 By Nancy Cleveland

The government’s hard shift away from lowest-price, technically acceptable evaluations has magnified the importance of past performance in many competitive acquisitions.  For start-ups and other companies new to the federal marketplace, past performance requirements can present a significant barrier to success.

Oftentimes, companies with little or no past performance of their own can offer the past performance of another entity, such as a subcontractor or joint venture partner.  But the rules surrounding the use of another entity’s past performance are often misunderstood–and recently, the rules have evolved quickly.

Here are five things you should know about using the past performance of a subcontractor, joint venture partner, or affiliate.

Continue reading at:  SmallGovCon

Filed Under: Contracting Tips Tagged With: Joint Venture Agreements, Joint Ventures, subcontractor

GAO holds solicitation requirement violates SBA’s regulations regarding small business mentor-protégé joint ventures

May 7, 2021 By Nancy Cleveland

In a recent decision, the Government Accountability Office (GAO) sustained a protest challenging the terms of a solicitation, as the solicitation impermissibly required that a protégé and mentor in a joint venture have the same level of experience as other offerors.  This is an important decision for companies that are parties to a joint venture, and a reminder to carefully review a solicitation’s requirements before submitting a proposal.

As relevant background, the Small Business Administration (SBA) revised its regulations in November 2020.  Prior to November 2020, SBA’s regulations provided that, in evaluating proposals submitted by a joint venture, agencies must consider the past performance of the joint venture entity itself and each party to the joint venture.  Effective November 16, 2020, this provision was expanded to include capabilities, experience, business systems, and certifications.  SBA explained that while a small business protégé should have some experience in the type of work to be performed, “it is unreasonable to require the protégé concern itself to have the same level of past performance and experience (either in dollar value or number of previous contracts performed, years of performance, or otherwise) as its large business mentor.”  Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments, 85 Fed. Reg. 66146, 66167 (Nov. 16, 2020).

Continue reading at:  JD Supra

See also, this Small GovCon article:  https://smallgovcon.com/gaobidprotests/gao-solicitation-cannot-require-a-protege-have-the-same-experience-as-its-mentor/

Filed Under: Contracting News Tagged With: GAO, joint venture, Joint Ventures, SBA Mentor-Protégé Program

Roadmap to Joint Venture agreements: legal and accounting considerations

April 7, 2021 By Nancy Cleveland

Piliero Mazza and Baker Tilly recently gave a helpful webinar on Joint Venture Agreements.  Joint ventures (JVs) can be a powerful tool to improve a government contractor’s odds of winning federal contracts.  With the SBA’s Mentor Protégé Program facilitating JVs and large multiple award contracts making many firms form JVs, an understanding of how JVs work from a legal and accounting perspective is a must.

Watch the webinar on-demand at:  JD Supra

Filed Under: Contracting Tips Tagged With: joint venture, Joint Venture Agreements, Joint Ventures, JV, mentor-protege

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