A BUSINESS CONTROLLED BY A MAN IS NOT “WOMAN-OWNED”

The Small Business Administration (“SBA”) Office of Hearings and Appeals (“OHA”) recently considered whether a business was a “Women-Owned Small Business” (“WOSB”). One section of the SBA rules on WOSBs is 13 CFR § 127.201, and this requires that one or more women must unconditionally and directly own at least 51 percent of the concern. In addition, the SBA rules require that the management and daily business operations of the concern must be controlled by one or more women, 13 CFR § 127.202(a), and a woman must hold the firm’s highest officer position. 13 CFR § 127.202(b). Although a woman met the 51 percent ownership requirement, she did not have control of the company, and OHA ruled that the concern was not a WOSB under … Continue reading

HOW MANY MISTAKES CAN A DEFENSE LOGISTICS AGENCY CONTRACTING OFFICER MAKE?

A Defense Logistics Agency (“DLA”) contracting officer (“CO”) terminated a contract to provide jet fuel to Bagram airfield in Afghanistan, (including construction of a pipeline). The termination, however, was so erroneous that the Armed Services Board of Contract Appeals (“ASBCA”) cited numerous reasons for converting the default to a termination for convenience of the government. Asia Commerce Network, ASBCA No. 58623, October 4, 2017 (hereafter “ACN”) Probably the most important error was the CO’s waiver of the delivery date, and failure to establish a new delivery date. The CO issued a cure notice in October 2012 and ACN explained that the delays cited in the cure notice were beyond its control. The CO requested revised milestones, recognizing delays that were beyond the contractor’s control. ACN … Continue reading

U.S. MINT NOT SUBJECT TO GOVERNMENT ACCOUNTABILITY OFFICE BID PROTEST JURISDICTION

The Government Accountability Office (“GAO”) recently confirmed that it has no bid protest jurisdiction over procurements made by the United States Mint. A-Z Cleaning Solutions, B-415228, Nov. 6, 2017. GAO reiterated the fact that under the Competition in Contracting Act (“CICA”), it has jurisdiction to resolve bid protests, solicitations and contract awards that are issued by a “Federal Agency.” 31 U.S.C. § 3552(1). Federal Agencies include executive agencies or independent establishments in the executive branch. 40 U.S.C. § 102(4), (5). However, when Congress established the U.S. Mint Public Enterprise Fund to finance operations of the Mint, it included a proviso stating that “provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out … Continue reading

INFORMATIONAL DEFICIENCIES IN A PROPOSAL

Do you think it is proper for an agency to eliminate a proposal from consideration under the following circumstances: Nothing in the evaluation criteria of the Request for Proposals (“RFP”) stated that proposals would be eliminated because they contained “informational deficiencies” (i.e., the proposal did not comply strictly with the solicitation’s proposal preparation instructions). The agency intended to evaluate proposals taking into consideration technical (most important), past performance, cost/price, and small business participation (least important). The agency asserted that it was confused as to the identity of the offeror because it could not locate the firm’s representations and Certifications in the System for Award Management (“SAM”) database. However, the offeror’s profile was located in the SAM database by the use of its contractor and government … Continue reading

A RARE CASE OF THE COURT WAIVING A MINOR INFORMALITY IN A LATE OFFER

As readers of this blog know well, the general rule in the submission of proposals in a negotiated procurement is found in Federal Acquisition Regulation (“FAR”) 15.208, which states that “[a]ny proposal, modification or revision that is received at the designated Government office after the exact time specified for receipt of proposals is “late” and will not be considered [except for some very specific exceptions]. The rule is repeated in FAR 52.212-1, Instructions to Offerors-Commercial items, a clause which is required to be in all commercial item solicitations. Generally, late proposals are carefully scrutinized and routinely not considered. But recently, the Court of Federal Claims, relying on another provision in FAR 52.212-1, waived a lateness in part of a proposal as a “minor informality,” thereby … Continue reading

THE EMAIL MISTAKE-REDUX

This blog has previously noted the importance of confirming that any proposal submitted by email has been received either through a return email or a telephone call to the intended recipient. See blog on this site “Protester Has Burden of Showing Timely Electronic Delivery” (Oct. 19, 2017). Follow this sequence from a recent Government Accountability Office (“GAO”) bid protest to see how strange the whole email process can get. This protest concerned an Air Force (“USAF”) cyber security/cloud migration contract, ManTech Adv. Sys. Int’l Inc., B-414985, Oct. 20, 2017. The solicitation stated that proposals must be submitted electronically via email to the contract specialist at CSIACTAT@us.af.mil no later than 1:00 pm Eastern time on July 17, 2017. 1:25 pm-ManTech sent its proposal via email to … Continue reading

GAO SUSTAINED PROTESTS DECREASE SIGNIFICANTLY IN 2017

The Government Accountability Office (“GAO”) released its annual bid protest report to the Congress for fiscal year 2017 on November 13, 2017 (B-158766). The GAO actually received 2,672 protests in FY2017, but dismissed or immediately denied nearly 80 percent of them, while actually considering and issuing decisions on only 581protests, known as “merit decisions.” The GAO sustain rate decreased six percent, from an unusually high 23 percent in 2016 to 17 percent in 2017. The actual number of sustained protests declined from 139 in 2016 to 99 in 2016. All of this took place while the number of actual bid protest decisions decided on the merits remained about the same (616 in 2016 and 581 in 2017). The GAO bid protest statistics for fiscal years … Continue reading

HOW TO SIGN YOUR CLAIM AND CERTIFICATION

The Contract Disputes Act of 1978 (“CDA”) contains a few simple requirements for claims over $100,000, including certification. Yet to this day contractors have consistently violated the certification requirements and, as a result, had their claims dismissed by the Boards and Courts. This happened most recently in NileCo Gen’l Contracting, LLC, ASBCA No. 60912, Sept. 22, 2017. It seems as if a technology-crazed world sometimes refuses to use the most low-tech machine of all—the pen—because the pen is just not electronically convenient. Hopefully, government contractors will read this blog. The CDA states that each claim for more than $100,000 must be certified to state that: The claim is made in good faith; The supporting data are accurate and complete to the best of the contractor’s … Continue reading

AFTER THE AFTERTHOUGHTS: REAs VERSUS CLAIMS

On November 14, 2017, a PCI Consultant posted a blog article about Requests for Equitable Adjustments (“REA”) versus claims. It seems to me that the original discussion and the blog overlooked an important problem in contract administration today—the failure of contracting officers (“CO”) to do their duty to review and engage in negotiations on both REAs and claims. The blog said: On September 28, 2017, Professor Ralph Nash and Tim Sullivan hosted a virtual classroom on the topic of Requests for Equitable Adjustments and Claims. Following the virtual classroom, I interviewed Professor Nash to ask questions related to the discussion during the training. Question: I would assert that if examined just from the perspective of reading case law on the issue, the difference between an … Continue reading

GAO DISMISSES PROTESTS IF YOU DON’T FILE TIMELY COMMENTS ON THE AGENCY REPORT

The Government Accountability Office (“GAO”) adheres strictly to its own rules, even if they result in a dismissal of a protest where the protester has made a procedural error. In two recent cases, the GAO dismissed protests where the protesters failed to timely file comments on the agency reports, and never requested an extension of time to file those comments. In two cases, GAO confirmed its strict adherence to the bid protest rules. In PennaGroup, LLC, B-41480.2 et al, August 25, 2017, the GAO dismissed a protest where the protester did not file comments or request an extension of time to file comments by the due date established in the GAO “development letter” (the letter GAO sends out scheduling the agency report, protester comments, and … Continue reading