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Offeror with ‘relatively weak proposal’ can file size protest, says SBA’s OHA

December 29, 2016 By Andrew Smith

SBA sealAn 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/

Filed Under: Contracting Tips Tagged With: appeal, best value, DOE, offer, OHA, SBA, size standards, small business

The ‘nudum pactum’ mistake

December 3, 2015 By Andrew Smith

One of the three basic requirements for a contract to be enforceable is consideration, which usually means a promise to pay money, but could mean that another valuable item would be provided instead (as in a trade, for example, of one valuable car for another valuable car).

Nudum PactumIn federal procurement contracts, the courts have said that to be a valid contract, the transaction “must show a mutual intent to contract including an offer, an acceptance and consideration.” If there’s no consideration, is it a contract?  The answer is simple: it’s a “nudum pactum” and there is no valid contract.

A nudum pactum is defined as a “bare agreement,” a promise or undertaking without any consideration for it. Where there is a nudum pactum, the contract is neither valid nor enforceable.

Keep reading this article at: http://federalnewsradio.com/commentary/2015/11/nudum-pactum-mistake/

Filed Under: Contracting Tips Tagged With: acceptance, Anti-Deficiency Act, consideration, contract formation, contract funding, funding, nudum pactum, offer

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