2015 GAO Bid Protest Annual Report: Sustain Rate at Five Year Low, But Effectiveness Rate Up

By Megan Connor Last week, GAO released its annual report to Congress, which included data concerning its protest filings for Fiscal Year 2015. Based on the data, GAO sustained the fewest protests in 2015 than in any prior year going back to 2011. In 2015, GAO received 2,639 cases, of which 2,496 were protests (versus requests for reconsideration or cost claims). Only 587 protests reached a decision on the merits and, of these, only 68 protests were sustained. This means that, roughly speaking, about 3 . . . Read More

How Can You Tell If a Protest Debriefing Is Required?

By Michelle Litteken We are often contacted by a contractor soon after the company learns that its proposal was not selected for award, with the contractor is considering whether to file a bid protest. When a contractor is deciding whether or not to file a protest at the Government Accountability Office (“GAO”), one of the first questions that needs to be asked is whether a debriefing is required. Although that question seems straightforward, the determination can be complicated.  You may . . . Read More

Small Business Subcontracting Plans: End of Year Roundup

If you have been following the latest news on subcontracting plan requirements, you will know that the landscape has been rapidly shifting over the past year. In response to various statutory mandates from Congress, both SBA and the FAR Councils have recently introduced proposed rules which will change the already complex existing regulatory web. The end of the changes are not in sight, as Congress continues to propose new legislation addressing subcontracting plans and agencies themselves are taking the initiative . . . Read More

Small Business Goodies in the National Defense Authorization Act

Often the House and Senate Small Business Committees utilize the annual National Defense Authorization Act (NDAA) to effectuate changes for small business. The NDAA must pass each year, so it is a useful vehicle upon which to attach small business provisions that may otherwise need to move through multiple congressional committees before becoming law. The NDAA for fiscal year 2016 moved through both the House and Senate and went before the conference committee. On October 7, 2015, the Senate approved . . . Read More

Negotiating the Security Deposit Provision of Your Office Lease

An important provision of an office lease is the security deposit provision. While it is beneficial to a landlord to maximize the size of the security deposit it receives from a tenant in order to ensure the tenant’s faithful performance of the terms of the office lease, transferring a cash security deposit to a landlord has real-world costs to the tenant. These costs include eliminating the potential use of the security deposit cash for other business purposes and putting the . . . Read More

Timing Matters, Not Just Size When Protesting Long Term Contracts

Operating in a very competitive market, many small businesses are increasingly filing size protests to eliminate competitors against which they have lost contracts. These protests are not only filed on small business set asides but also 8(a), HUBZone, WOSB and SDVOSB set asides, as those procurements require that offerors qualify as small under the relevant size standard. Most small businesses know that size protests must be filed very quickly after receipt of a notice of proposed or actual award to . . . Read More

Five Things That Shouldn’t Keep You From Buying or Selling a Company

There may be several reasons holding you back from buying another company or from selling your own business. However, there’s a new normal in the government contracting space. With increased competition for work, a tight economy, and stricter and more costly regulations requiring compliance, strategic acquisitions as a pathway to faster and more significant growth should be part of the long term strategy considerations for government contractors of all sizes. The flip side, of course, is that you may be . . . Read More

Constitutionality of 8(a) Program Reaffirmed

Earlier this year, a judge of the U.S. District Court for the District of Columbia reaffirmed the facial constitutionality of the 8(a) Program in response to a challenge by a small business owner, and he also rejected an argument that the program is unconstitutional because it violated the “non-delegation” doctrine. The case is Rothe Development, Inc. v. Department of Defense, No. 12-CV-0744, 2015 WL 3536271 (D.D.C. June 5, 2015). This is the second recent constitutional challenge to the 8(a) Program . . . Read More

OHA Clarifies Non-Manufacturer Rules For Procurements Conducted Under Simplified Acquisition Procedures

Last month, the SBA Office of Hearing and Appeals (“OHA”) issued a decision which has clarified that, as in the past, for procurements conducted under simplified acquisition procedures, offerors who wish to qualify as a small business under the non-manufacturer rule do not have to supply the end item of a small business. This holding arose from a change in SBA regulations which—intentionally or not—created an ambiguity with regard to the ability of an offeror to offer the end item . . . Read More

Improvements Noted in the VA’s CVE Verification Process

By Alex Levine A new report by the U.S. Government Accountability Office (GAO) notes measurable improvement in the processes used by the Department of Veterans Affairs (VA) to verify Service-Disabled, Veteran-Owned Small Businesses (SDVOSBs) and Veteran-Owned Small Businesses (VOSBs). The report updates a 2013 GAO report, which had found numerous programmatic inefficiencies in the process used by the VA stemming from the VA’s failure to prioritize comprehensive, long-term strategic planning. According to the report, since that time, the VA has . . . Read More