Federal Contractors Can Now Protest Civilian Task Orders Over $10 Million

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We’ve talked before about protests, and when and how to do them, risk factors and warnings, etc., as well as some of the issues and processes. The perception is that there are a lot of protests, and that if YOUR contract award is protested, that’s clearly one too many…

One area that has expanded lately is the use of Multiple-Award (MA) IDIQ contracts, and the task orders underneath them have often been quite large. Originally, you could only protest contracts, but the task orders were immune to protests. Then, the GAO Civilian Task and Delivery Order Protest Authority Act of 2016 (H.R. 5995) became law on December 14, 2016.

Now, a contractor can protest “the issuance or proposed issuance of a civilian federal agency’s task or delivery order contract,” if the value of that order exceeds $10 million.

According to GAO statistics, for FY 2012 there were 2,475 protests filed with the GAO (U.S. General Accountability Office). In 2016 that rose to 2,789, so up a little bit more than 10% over four years. In 2012, protests were sustained, that is to say the protest was accepted, about 18% of the time. In 2016, that was up to 22.5%.

The three most common reasons to protest an order are:

  1. Brand name solicitation – The order references a brand name instead of the generic equivalent (e.g., Pepsi instead of cola).
  2. Out of scope modification – The agency adds work or changes a particular solicitation in a way that is out of the scope of that function. If the winning contractor got more work out of the original task order, the losing contractors were essentially shut out of bidding for those additional tasks.
  3. New information – The third most common reason to protest is new information that leads you to believe that the evaluation was unfair and that the losing contractor was “done wrong” by the government agency for not choosing them.

That third point is a big part of what protests normally come down to, i.e., “I don’t think you evaluated me (and/or the winner) fairly.” That may refer to evaluating price, technical proposal, or past performance.

Two other elements of protests are size standards, i.e., “I think these guys are too big for that NAICS code, even though they won the job,” and OCI (organizational conflict of interest), i.e., “I think the other company won because they were too close to the customer and learned secret information that helped them win.”

Without getting into the weeds, protesting when the evaluation is truly egregious is definitely a risk-reward kind of calculation, as the risks and legal costs can be quite high.


Employee Count NAICS Code Changes from SBA

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This is a guest post from Deltek’s GovWin IQ.

Deltek recently published an in-depth GovWin IQ analysis of the 2017 updates to NAICS code employee count size standards. SBA uses these standards to determine whether a business qualifies as a small business and is eligible for its set aside programs.

Here is a summary of those changes, reprinted with permission from the GovWin IQ report:

1. SBA increases small business size standards for NAICS Sector 31-33, Manufacturing

The SBA has issued a final rule to do the following:

  • Increase small business size standards for 209industries in NAICS Sector 31-33, Manufacturing.
  • Modify the size standard for NAICS 324110, Petroleum Refiners, by
    • increasing the refining capacity component of the size standard to 200,000 barrels per calendar day for businesses that are primarily engaged in petroleum refining; and by eliminating the requirement that 90percent of the output to be delivered be refined by the successful bidder from either crude oil or bona fide feed stocks.
  • Update footnote 5 to NAICS 326211 to reflect current Census Product Classification Codes 3262111 and 3262113.

SBA estimates that about 1,250 additional firms will become small because of revised size standards for the 209 industries in NAICS Sector 31-33.

2. SBA increases employee based size standards for industries in NAICS Sector 42, Wholesale Trade, and NAICS Sector 44 45, Retail Trade

The SBA has issued a final rule that:

  • Increases employee based size standards for 46 industries in North American Industry Classification System (NAICS) Sector 42, Wholesale Trade; Increases the employee-based size standard for one industry in NAICS Sector 44-45, Retail Trade; Retains the current size standards in the remaining industries in those sectors; Retains the current 500-employee size standard for Federal procurement of supplies under the non-manufacturer rule (13 CFR 121.406).

SBA reviewed all 71 industries in NAICS Sector 42 and two industries in NAICS Sector 44-45 that have employee-based size standards as part of its ongoing comprehensive size standards review as required by the Small Business Jobs Act of 2010.

Nearly 4,000 more firms in Sectors 42 and 44-45 will become small and therefore eligible for financial assistance under the revised employee based size standards. These revisions do not affect federal procurement programs. Newly eligible small businesses will generally benefit from a variety of Federal regulatory and other programs that use SBA’s size standards. Such benefits may include, but are not limited to, reduced fees, less paperwork, or exemption from compliance or other regulatory requirements.

3. SBA updates employee-based small business size standards for industries that are not part of Manufacturing (NAICS Sector 31-33), Wholesale Trade (NAICS Sector 42), or Retail Trade (NAICS Sector 44-45)

The SBA has issued a final rule to modify employee-based small business size standards for 36 industries and “exceptions” in SBA’s table of size standards that are not part of NAICS Sector 31-33 (Manufacturing), Sector 42 (Wholesale Trade), or Sectors 44-45 (Retail Trade). Specifically, the rule

  • Increases 30 size standards for industries and three “exceptions.”
  • Decreases size standards from 500 employees to 250 employees for three industries, namely NAICS 212113 (Anthracite Mining); NAICS 212222 (Silver Ore Mining), and NAICS 212291 (Uranium-Radium-Vanadium Ore Mining).
  • Maintains the Information Technology Value Added Resellers (ITVAR) “exception” under NAICS 541519 (Other Computer Related Services) as follows:
    • It retains the 150-employee size standard; and it amends footnote 18 to SBA’s table of size standards by adding the requirement that the supply component of small business set-aside ITVAR contracts (e., computer hardware and software) must comply with the nonmanufacturing performance requirements or nonmanufacturer rule.
    • Eliminates the Offshore Marine Air Transportation Services “exception” under NAICS 481211 (Nonscheduled Chartered Passenger Air Transportation), and NAICS 481212 (Nonscheduled Chartered Freight Air Transportation).
  • Eliminates the Offshore Marine Services “exception” for industries in NAICS Subsector 483 (Water Transportation), and their $30.5 million receipts-based size standards.
  • Removes footnote 15 (the “exception” to Subsector 483) from the table of size standards.

SBA estimates that about 375 additional firms may become small because of increased size standards for the 30 industries and three “exceptions” covered by this rule.

The revised size standards were effective as of February 26, 2016.

Source: SBA website; SBA’s final rule RIN3245-AG51 Regulations.gov (effective February 26, 2016)

This is essential information for small businesses looking to do contract work with the federal government. For more up-to-the-minute intelligence about the federal contracting landscape, check out Deltek’s GovWin IQ.


Restrictions for LPTA Procurements in NDAA FY17

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Contractors have complained for awhile about the government’s overuse of lowest-price, technically acceptable (LPTA) contracts. NDAA FY17 severely limits the use of LPTA evaluations in DoD procurements.

To use an LPTA methodology, the following criteria must now be met:

  • DoD is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;
  • DoD would receive little or no additional value from a proposal that exceeded the minimum technical or performance requirements set forth in the solicitation;
  • Little or no specialized judgment would be required by the contract selection authority to discern the differences between competitive proposals;
  • The source selection authority is confident the bids from the non-lowest price offeror(s) would not produce benefits of additional significant value or benefit to the Government;
  • The Contracting Officer includes written justification for use of the LPTA scheme in the contract file; and
  • DoD determines that the lowest price reflects full life-cycle costs, including costs for maintenance and support.

The NDAA also cautions against the use of LPTA for these three types of contracts:

  1. Contracts that predominately seek knowledge-based professional services (like information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, and audit or audit readiness services);
  2. Contracts seeking personal protective equipment; and
  3. Contracts for knowledge-based training or logistics services in contingency operations or other operations outside the U.S. (including Iraq and Afghanistan).

As a final tool to gauge compliance, Congress mandated that the DoD publish annual reports for the next four years that explain the rationale for all LPTA contracts exceeding $10 million.


New Small Business Prototyping Program in NDAA FY17

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The National Defense Authorization Act (NDAA) for fiscal year 2017 passed Congress and was signed by the President. As I shared in a previous post, there were several items affecting small business owners.

The Act establishes something called the “Nontraditional and Small Contractor Innovation Prototyping Program.” At SmallGovCon, Ian Patterson notes this is good news for small businesses looking to break into Department of Defense contracting.

The program, which is funded with $250 million from the rapid prototyping fund established by last year’s NDAA, is intended to “design, develop, and demonstrate innovative prototype military platforms.”

In addition, Congress authorized $50 million for some specific projects, including:

  • Swarming of multiple unmanned air vehicles
  • Swarming of multiple unmanned underwater vehicles
  • Unmanned, modular fixed-wing aircraft
  • Vertical takeoff and landing tiltrotor aircraft
  • Integration of a directed energy weapon on an air, sea, or ground platform
  • Commercial small synthetic aperture radar (SAR) satellites with on-board machine learning
  • Active protection system to defend against rocket-propelled grenades and anti-tank missiles
  • Defense against hypersonic weapons, including sensors
  • Other weapon systems the Secretary designates

“In addition to sounding like something out of a science fiction movie,” Patterson writes, “these categories provide insight into some of Congress’s (and DoD’s) prototyping priorities–particularly those in which small and nontraditional contractors are expected to be able to play an important role.”

If one of these projects is a fit for your company, take note!

The program is structured to run through September 30, 2026.


NDAA FY17 – What’s Ahead for Small Business

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The National Defense Authorization Act (NDAA) for fiscal year 2017 passed Congress and was signed by the President in December 2016.

The committee report passed both Chambers of Congress, resolving differences with the White House. According to Chairman of the House Small Business Committee Steve Chabot (R-OH), these common-sense contracting and acquisition reforms will open new doors for small businesses in the coming year and set the stage for additional reforms in the new Congress.

Here is a summary of what’s ahead for small business:

Small business goals and transparency

  • Amends the Small Business Act to ensure that the goals established by the Act are measured against the total contract dollars spent that year rather than allowing SBA to exclude up to 20 percent of all spending
  • Ensures that the goals established by the Act are measured against the total contract dollars spent that year rather than allowing SBA to exclude up to 20 percent of all spending
  • Amends the Small Business Act to require the SBA to annually share a list of regulatory changes affecting small business contracting with the entities responsible for training contracting personnel

Duties of the OSDBU and contracting officers

  • Rewords section 15(a) of the Small Business Act as plain English so that small businesses and contracting agencies will better understand the current requirements of the law
  • Amends section of the Small Business Act to remedy an internal SBA decision that prevents SBA’s procurement center representatives from reviewing consolidated contracts if the contract was set aside or partially set aside for small businesses, even if the acquisition strategy harmed the ability of small businesses to compete for contracts
    • Allows procurement center representatives (PCRs) to review those contracts, which should improve opportunities for small firms
    • This provision was amended to include contracts awarded and performed overseas as being exempt from small business goaling (this amendment covered a tiny fraction of contracts that weren’t otherwise already exempt)
  • Allows the Offices of Small and Disadvantaged Business Utilization (OSDBU) to review agency purchases made using government credit cards to ensure compliance with the Small Business Act
    • Last year that in one agency over $6 billion in such purchases were made without regard to statutory requirements
  • Increased micro-purchase threshold
    • The micro-purchase threshold will be $5,000, which is a $1,500 increase over all civilian agency thresholds
    • This allows agencies to purchase small ticket items without having to go to the time, trouble and expense of competitively bidding each purchase

Subcontracting

  • Ensures that subcontracting goals are accurately reported and implement GAO recommendations on how goals are set

Mentor-Protégé

  • Adds a new paragraph to the Small Business Act creating a pilot program that allows small businesses to apply for past performance credit for work performed as a first-tier subcontractor
  • Amends section 831 of National Defense Authorization Act for Fiscal Year 1991 to allow the Department of Defense to rely upon SBA’s Office of Hearings and Appeals to make size determinations

Small Business Innovation Research (SBIR)/Small Business Technology Transfer (STTR)

  • Institutes a 5-year SBIR/STTR reauthorization, instead of a yearly reauthorization
    • The extension of these programs to 2022 will prevent these popular programs from expiring

SDVOSB definitions unified

  • Unifies the definitions and regulations applicable to the government-wide and Department of Veterans Affairs-specific contracting programs for veterans and service-disabled veterans and moves appeals from the VA’s program to the Office of Hearings and Appeals at the SBA

Cybersecurity for small businesses

  • The conference report also includes a bill to provide cybersecurity resources to small businesses through Small Business Development Centers
    • This bill gives small businesses access to tools, resources, and expertise to help protect their sensitive electronic data from cyber threats
    • The bill calls for SBA and DHS to work with Small Business Development Centers to provide assistance to small businesses

New small business prototyping program

Restrictions for LPTA procurements

Stay tuned for further discussion!


SDVOSB Programs: 2017 NDAA Sharply Curtails VA’s Authority

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This is a guest post by Steven Koprince of SmallGovCon. Please note that this blog post was originally published on December 5, 2016, before the Act was signed by the President on December 23, 2016.

The 2017 National Defense Authorization Act will essentially prevent the VA from developing its own regulations to determine whether a company is a veteran-owned small business.

Yes, you heard me right. If the President signs the current version of the 2017 NDAA into law, the VA will be prohibited from issuing regulations regarding the ownership, control, and size status of an SDVOSB or VOSB–which are, of course, the key components of SDVOSB and VOSB status. Instead, the VA will be required to use regulations developed by the SBA, which will apply to both federal SDVOSB programs: the SBA’s self-certification program and the VA’s verification program.

In my experience, the typical SDVOSB believes that VA verification applies government-wide, and relies on that VetBiz “seal” as proof of SDVOSB eligibility for all agencies’ SDVOSB procurements. But contrary to this common misconception, there are two separate and distinct SDVOSB programs. The SBA’s self-certification program (which is the “original” SDVOSB set-aside program) is authorized by the Small Business Act, which is codified in Title 15 of the U.S. Code and implemented by the SBA in its regulations in Title 13 of the Code of Federal Regulations. The VA’s separate program is codified in Title 38 of the U.S. Code and implemented by the VA in its regulations in Title 38 of the Code of Federal Regulations.

There are some important differences between the two programs. For example, the VA requires that the service-disabled veteran holding the highest officer position manage the company on a full-time basis; the SBA’s regulations do not. Following a 2013 Court of Federal Claims decision, the VA allows certain restrictions of a veteran’s ability to transfer his or her ownership, but that decision doesn’t necessarily apply to the SBA, which has held that “unconditional means unconditional,” as applied to transfer restrictions. And of course, the VA’s regulations require formal verification; the SBA’s call for self-certification.

Despite these important differences, the two programs are largely similar in terms of their requirements. However, last year, the VA proposed a major overhaul to its SDVOSB and VOSB regulations. The VA’s proposed changes would, among other things, allow non-veteran minority owners to exercise “veto” power over certain extraordinary corporate decisions, like the decision to dissolve the company. The SBA has not proposed corresponding changes. In other words, were the VA to finalize its proposed regulations, the substantive differences between the two SDVOSB programs would significantly increase, likely leading to many more cases in which VA-verified SDVOSBs were found ineligible for non-VA contracts.

That brings us back to the 2017 NDAA. Instead of allowing the VA and SBA to separately define who is (and is not) an SDVOSB, the 2017 NDAA establishes a consolidated definition, which will be set forth in the Small Business Act, not the VA’s governing statutes. (The new statutory definition itself contains some important changes, which I will be blogging about separately).

The 2017 NDAA then amends the VA’s statutory authority to specify that “[t]he term ‘small business concern owned and controlled by veterans’ has the meaning given that term under . . . the Small Business Act.” A similar provision applies to the term “small business concern owned and controlled by veterans with service-connected disabilities.”

Congress doesn’t stop there. The 2017 NDAA further amends the VA’s statute to specify that companies included in the VA’s VetBiz database must be “verified, using regulations issued by the Administrator of the Small Business Administration with respect to the status of the concern as a small business concern and the ownership and control of such concern.” At present, the relevant statutory section merely says that companies included in the database must be “verified.” Finally, the 2017 NDAA states that “The Secretary [of the VA] may not issue regulations related to the status of a concern as a small business concern and the ownership and control of such small business concern.”

So there you have it: the 2017 NDAA consolidates the statutory definitions of veteran-owned companies, and calls for the SBA–not the VA–to issue regulations implementing the statutory definition. The 2017 NDAA requires the VA to use the SBA’s regulations, and expressly prohibits the VA from adopting regulations governing the ownership and control of SDVOSBs. These prohibitions, presumably, will ultimately wipe out the two regulations with which many SDVOSBs and VOSBs are very familiar–38 C.F.R. 74.3 (the VA’s ownership regulation) and 38 C.F.R. 74.4 (the VA’s control regulation).

Because both agencies will be using the SBA’s rules, the SBA Office of Hearings and Appeals will have authority to hear appeals from any small business denied verification by the VA. This is an important development: under current VA rules and practice, there is no option to appeal to an impartial administrative forum like OHA. Intriguingly, the 2017 NDAA also mentions that OHA will have jurisdiction “[i]f an interested party challenges the inclusion in the database” of an SDVOSB or VOSB. It’s not clear whether this authority will be limited to appeals of SDVOSB protests filed in connection with specific procurements, or whether competitors will be granted a broader right to protest the mere verification of a veteran-owned company.

So when will these major changes occur? Not immediately. The 2017 NDAA states that these rules will take effect “on the date on which the Administrator of the Small Business Administration and the Secretary of Veterans Affairs jointly issue regulations implementing such sections.” But Congress hasn’t left the effective date entirely open-ended. The 2017 NDAA provides that the SBA and VA “shall issue guidance” pertaining to these matters within 180 days of the enactment of the 2017 NDAA. From there, public comment will be accepted and final rules eventually announced. Given the speed at which things like these ordinarily play out, my best guess is that these changes will take effect sometime in 2018, or perhaps even the following year.

The House approved the 2017 NDAA on December 2. It now goes to the Senate, which is also expected to approve the measure, then send it to the President. In a matter of weeks, the 180-day clock for the joint SBA and VA proposal may start ticking–and the curtain may start to close on the VA’s authority to determine who owns or controls a veteran-owned company.


This post originally appeared on the SmallGovCon blog http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/sdvosb-programs-2017-ndaa-sharply-curtails-vas-authority/ and was reprinted with permission.


2017 NDAA Modifies Ownership and Control Criteria for SDVOSBs

Steven Koprince

Steven Koprince

The 2017 National Defense Authorization Act makes some important adjustments to the criteria for ownership and control of a service-disabled veteran-owned small business.

The 2017 NDAA modifies how the ownership criteria are applied in the case of an ESOP, specifies that a veteran with a permanent and severe disability need not personally manage the company on a day-to-day basis, and, under limited circumstances, permits a surviving spouse to continue to operate the company as an SDVOSB.

As I discussed in a separate blog post last week, the SBA and VA currently operate separate SDVOSB programs, and each agency has its own definition of who qualifies as an SDVOSB. The 2017 NDAA consolidates these definitions by requiring the VA to use the SBA’s criteria for ownership and control.

In addition to consolidating the statutory definitions, the 2017 NDAA makes three important changes to the ownership and control criteria themselves.

First, the 2017 NDAA specifies that stock owned by an employee stock ownership plan, or ESOP, is not considered when the SBA or VA determines whether service-connected veterans own at least 51 percent of the company’s stock. This portion of the 2017 NDAA essentially overturns a 2015 decision by the SBA Office of Hearings and Appeals, which held that a company was not an eligible SDVOSB because the service-disabled veteran did not own at least 51% of the company’s ESOP class of stock. (The Court of Federal Claims ultimately upheld OHA’s decision later that year).

Second, the 2017 NDAA continues to provide that “the management and daily business operations” of an eligible SDVOSB ordinarily must be controlled by service-disabled veterans. However, the 2017 NDAA states that if a veteran has a “permanent and severe disability,” the “spouse or permanent caregiver of such veteran” may run the company. This provision is very similar to the one currently used by the SBA in its regulations; the VA does not currently have a provision whereby a spouse or permanent caregiver may operate an SDVOSB.

But Congress goes a step beyond the SBA’s current regulations. In a separate paragraph, the 2017 NDAA states that a company may qualify as an SDVOSB if it is owned by a veteran “with a disability that is rated by the Secretary of Veterans Affairs as a permanent and total disability” and who is “unable to manage the daily business operations” of the company. In such a case, the statute does not specify that the company must be run by the spouse or permanent caregiver. In other words, for veterans with permanent and total disabilities, the statute appears to allow control by others, such as (perhaps) non-veteran minority owners. Historically, the SBA and VA have been very skeptical of undue control by non-veteran minority owners, so it will be interesting to see how the agencies interpret and apply this new statutory provision.

Third, the 2017 NDAA states that a surviving spouse may continue to operate a company as an SDVOSB when a veteran dies, provided that: (1) the surviving spouse acquires the veteran’s ownership interest; (2) the veteran had a service connected disability “rated as 100 percent disabling” by the VA, or “died as a result of a service-connected disability” and (3) immediately prior to the veteran’s death, the company was verified in the VA’s VetBiz database. When the three conditions apply, the surviving spouse may continue to operate the company as an SDVOSB for up to ten years, although SDVOSB status will be lost earlier if the surviving spouse remarries or relinquishes ownership in the company.

This provision is very similar to the one currently found in the VA’s regulations. At present, the SBA does not have any provisions whereby a surviving spouse can continue to operate an SDVOSB.

That said, the statutory provision–just like the current VA regulation–is quite narrow. In my experience, there is a common misconception that a surviving spouse is always entitled to continue running a company as an SDVOSB. In fact, a surviving spouse is only able to do so when certain strict conditions are met. In many cases, the veteran in question was not 100 percent disabled and didn’t die as a result of a service-connected disability (or the surviving spouse is unable to prove that the service-connected disability caused the veteran’s death). And in those cases, the surviving spouse is unable to continue claiming SDVOSB status, both under the VA’s current rules and the 2017 NDAA.

2017 NDAA: The National Defense Authorization Act for Fiscal Year 2017 has been approved by both House and Senate, and will likely be signed into law soon. It includes some massive changes as well as some small but nevertheless significant tweaks sure to impact Federal procurements in the coming year. For the next few days, SmallGovCon will delve into the minutia to provide context and analysis so that you do not have to. Visit smallgovcon.com for the latest on the government contracting provisions of the 2017 NDAA.


This post originally appeared at http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/sdvosb-programs-2017-ndaa-modifies-ownership-control-criteria/#sthash.YtzkeoT5.dpuf and was reprinted with permission.


 


Thoughts on the Incoming Administration

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As I write this post, we have a new administration that will be sworn in shortly. As you read this post, this has already happened. There is a lot more to come in terms of making sure all the cabinet positions get appointed and that people fill the government activities all the way down the line. This is obviously a big deal, since they have 4,000 positions to fill, and got 86,000 online applications and 4,000 referrals.

So in the meantime, I thought I would offer a few words for all of us to think about what we’re doing here. This new administration has established some specific priorities, and we can expect there will be as slight shift in priority from the civil sector over to homeland security and defense.

There may be some serious chaos as they get themselves sorted, get people in place, and get everything built. As with any major change, it’s bound to be unsettling and difficult. Probably the worst effect will be that the usual slippage in awards and RFP release that we ordinarily see in the federal procurement process will be exacerbated by the actual transition.

I’m convinced that overall this change can be very good for all of us in federal contracting. Although defense contractors and homeland security may do slightly better in the long run, there’s going to be a lot of activity across the board, and an uptick in that attention.

Interestingly enough, I had certainly hoped that the latest NDAA had done away with LPTA pricing (watch for future posts about what NDAA 2017 means for small business), but recent presidential direct intervention in cost overrun decisions on weapons systems tells me that we may see some LPTA activity erupt as everybody sorts out what this administration is looking for.

Hang in there, this is a natural course of events. There’s nothing unusual or worse about this group of folks from the last group of folks. And we’ll be doing this together. And I will keep blogging and tell you everything I can about what I know. And hopefully we’ll all prosper together.


Recovering Your Bid Protest Costs

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This is a guest post by Jerry Miles of Deale Services LLC.

After all of your hard work winning a bid protest, a recent Government Accountability Office (“GAO”) opinion suggests that the work is not yet over. More than that, it suggests that you should have started your work early on in the bid protest process.

In Cascadian American Enterprises—Costs, B-412208.6, July 5, 2016, the GAO addressed this issue head on, to disastrous effect on the contractor. CAE was a small business which won a protest against the Army Corps of Engineers in a small business set-aside procurement.

To support its request to the GAO to recommend the amount it should be reimbursed by the agency, CAE attached a one-page invoice, with three line items, in the amount of $53,160. This included “234 hours for ‘Protest Sept. 30, 2015-Feb. 5, 2016,’ at a rate of $150 per hour for a total of $35,100, and 120 hours for ‘Response to Agency Report,’ at a rate of $150 per hour for a total of $18,000. Id. The third line item was for “Miscellaneous material costs [for $60].”

Several times, the agency responded that the request for reimbursement was not adequately documented to allow the agency to determine its reasonableness and made request for more information and an explanation of the hours expended on the protest. CAE responded to each request with slightly more detail.

The GAO reiterated previous rulings that “a protester seeking to recover its protest costs must submit evidence sufficient to support its claim that those costs were incurred and are properly attributable to filing and pursuing the protest.”

Noting that the burden of proof is on the protester, the GAO states that “[at] a minimum, claims for reimbursement must identify and support the amounts claimed for each individual expense (including cost data to support the calculation of claimed hourly rates), the purpose for which that expense was incurred, and how the expense relates to the protest before our Office.”

In denying the claim for reimbursement, the GAO noted that, even though CAE was a sole proprietorship, “CAE has nonetheless failed to provide any documentation or detail sufficient to support the claimed 321 hours spent on the protest.” GAO further noted that “CAE’s owner asserts that he ‘did not take any notes about the time spent on which day doing what’ and therefore provides mostly generalized statements.” In addition, the GAO stated that the claim failed to provide cost data to “establish that the claimed hourly rates reflect actual rates of compensation.”

Takeaways from this decision

Beginning with the moment you start to consider protesting a procurement, take contemporaneous notes regarding all protest-related tasks you perform so that you can provide substantiation of the hours you claim to have worked on the protest. This should not only be done by you and, of course, by your attorneys, but also all others working on the matter.

Include specific cost data in your claim. That is, include support for the cost of each expense and demonstrate support for your hourly rates expended on the protest. Notate how each expense relates to the claim for reimbursement.

This post originally appeared on the Deale blog at http://www.dealeservices.com/uncategorized/bid-protest-recovering-protest-costs/ and was reprinted with permission.


Sole Source Contracts for Women-Owned Small Businesses

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As GSA Interact reported on their blog, several new FAR rules will impact small business.

According to the Federal Register, “DoD, GSA, and NASA have adopted as final, with a minor edit, an interim rule amending the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the Small Business Administration (SBA) that provide for authority to award sole source contracts to economically disadvantaged women-owned small business concerns and to women-owned small business concerns eligible under the Women-Owned Small Business (WOSB) Program.”

The Federal Register also notes that the rule puts the WOSB Program “on a level playing field with other SBA Government contracting programs with sole source authority and provided an additional, needed tool for agencies to meet the statutorily mandated goal of 5 percent of the total value of all prime contract and subcontract awards for WOSBs.” 

Of all the SBA contracting programs, the 8(a) set-aside rules were always the best for sole sourcing. Fundamentally, if a KO (contracting officer) was willing (at the program office’s behest) to accept/write a Justification and Approval (J&A), the sole source went through. As well, many times this same authority was extended to 8(a) companies on multiple-award vehicles, so that the covered programs could use the vehicle to do sole sourcing as well.

This new regulation and FAR/DFAR change creates a similar dynamic for EDWOSBs – which is huge, because there are many EDWOSB companies ready for this, and because the 8(a) sole sourcing has come under pressure, particularly after some of the issues that arose in large sole sourcing for Alaskan Native Companies (ANCs) and some less than ethical/legal behavior by companies trying to take advantage of the program. In fact, the 8(a) program seems to have largely been replaced with “small disadvantaged” status, much to the chagrin of many of my friends who have 8(a) status.

This is definitely a major change, considering the 328 EDWOSBs and 974 WOSBs who could have received sole source awards between April 1, 2011 (the implementation date of the WOSB Program) and September 1, 2015.


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