GSA Announces OASIS+ Solicitation Release, Congress Turns Focus to FY24 Appropriations, and More
Far & Beyond: Introducing the Defense Civilian Training Corps
Guest Blogger: Karen DaPonte Thornton, Research Fellow, Acquisition Innovation Research Center
The comments in this blog post are the author’s own.
This week, the Department of Defense launched the Defense Civilian Training Corps, a scholarship for service program designed to modernize the civilian acquisition workforce in partnership with higher education. DCTC complements existing scholarship programs that recruit and develop exceptional STEM and Cyber civilian talent within their academic fields, and the Senior Reserve Officer Training Corps (SROTC), which attracts top talent for the military officer ranks. To improve the collective speed and agility in delivering improved capabilities to the military, DCTC will improve acquisition workforce readiness to innovate as a team across disciplines.
The four host universities [North Carolina A&T (HBCU), Purdue University, University of Arizona (Minority Serving Institution), and Virginia Tech University], are currently creating a pilot cohort of scholars with diverse interests across the STEM disciplines, as well as public policy, business administration, finance, political science, and more. Beginning this fall, DCTC Scholars will engage in multidisciplinary experiential learning in the classroom, studying emerging and current complex DoD development, acquisition, and sustainment challenges. The critical skills students will develop are directly tied to the National Defense Strategy. In the summer, each university cohort will participate in multidisciplinary team internships and challenge projects sponsored by DoD organizations. Through the DCTC targeted education, internships and challenge projects, DCTC participants will understand and practice their role within the larger mission context. Upon graduation, DCTC Scholars will be hired and be able to immediately start work in DOD organizations where they will have an immediate impact as a result of their DCTC experiential learning.
DCTC will enable the DoD to strengthen its DoD civilian workforce pipeline, strategically building talent pools to reflect the DoD’s demand signals for talent and skills for the future. DCTC plans to pilot cohort-hiring, a best practice in the private sector, in which post-graduate DCTC alumni will experience the culture of continued networking as a team and a career pathway that includes a combination of training, mentorship, and rotational job experiences. Development of an innovative workforce will require a combined effort of the entire national security ecosystem to achieve the flow of new ideas and collaborative mindset necessary to outpace near-peer adversaries. DCTC is an opportunity for an exciting collaboration across government, industry, and academia. To learn more visit https://dctc.mil/
With Debt Deal Concluded, Congress Attending to FY24 Appropriations and NDAA
Last Saturday, the President signed the bipartisan debt deal, suspending the debt ceiling until January 2025 in exchange for spending caps on the fiscal year 2024 and 2025 Federal budgets. With a possible default now firmly in the rearview mirror, Congress’s next major action to secure Government funding will be to mark up the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024, the yearly must-pass bill responsible for funding national defense and a raft of Congressional authorizations related to national security. The House Armed Services Committee’s seven subcommittees will markup the bill, introduced in April, on June 13 and 14. A full committee markup is expected on June 21. The timeline is murkier for the passage of the 12 regular appropriations bills that Congress must pass by the beginning of the next fiscal year on October 1. According to sources on the Hill, it already appears likely that Congress will need to pass a continuing resolution by the October deadline in order to fund the Government in FY 2024.
Join the Joseph P. Caggiano Memorial Golf Tournament in Support of Veterans, August 16
Join the Coalition for Government Procurement for a fun day of golf with fellow members in support of our nation’s veterans at the 10th Annual Joseph P. Caggiano Memorial Golf Tournament! The golf tournament will take place on August 16 at the stunning Whiskey Creek Golf Club in Ijamsville, Maryland. This event honors our friend and colleague, Joe Caggiano, a Navy veteran and longtime expert in the Federal contracting marketplace.
Over the years, tournament proceeds have supported a number of initiatives aiding our veterans, including The Coalition for Government Procurement Endowed Scholarship Fund for a qualified veteran concentrating their studies in the field of U.S. government procurement at The George Washington University Law School
Paws for Purple Hearts
We are pleased to share that the proceeds from this year’s tournament will not only contribute to the scholarship fund, but also will support a new charity organization: Paws for Purple Hearts! Paws for Purple Hearts strives to improve the lives of veterans and wounded service members facing mobility challenges and trauma-related conditions by providing the highest quality assistance dogs and canine-assisted therapeutic programs. In addition, Paws for Purple Hearts builds public awareness about the important role dogs play in helping veterans and service members along the road to recovery.
Learn more about this wonderful organization by visiting pawsforpurplehearts.org, and don’t miss the opportunity to meet some of the service dogs at the Joseph P. Caggiano Memorial Golf Tournament!
Become a Sponsor
Several sponsorship opportunities are available for the Joseph P. Caggiano Memorial Golf Tournament. These opportunities include:
- Title Sponsorships (2 available)
- Reception Sponsorships (3 available)
- Luncheon Sponsorships (2 available)
- All-Day Beverage Cart Sponsorships (4 available)
- Longest Drive/Closest to the Pin Sponsorship (1 available)
- Hole Sponsorships with 4 Players OR Hole Sponsorships (no players) (11 available)
- Veranda Club Sponsorships (unlimited)
- Golf Foursomes (unlimited)
- Single Golfer (unlimited)
Thank you to our current sponsors:
For more details on the complete list of sponsorship packages and their corresponding benefits, click here. To secure your sponsorship, or if you have any questions, please contact Heather Tarpley at htarpley@thecgp.org.
To register for the Joseph P. Caggiano Memorial Golf Tournament, click here.
Coalition Releases FY22 Federal Market Report
As part of the Coalition for Government Procurement’s continuing effort to provide value to our members, we would like to present our 2022 Federal Market Report. The report provides insights into the Federal market, including contract compliance, trends on the GSA and VA Schedules, government-wide contract vehicles, the Federal healthcare market, and more.
If you have any questions regarding the report, please contact Michael Hanafin at mhanafin@thecgp.org. We encourage members to share their thoughts on future topics for this report.
White House Sustainability Plans Survive Debt Deal Cuts
Federal News Network reports that in last week’s debt ceiling deal, the Biden administration maintained all funding appropriated in last year’s Inflation Reduction Act (IRA) dedicated to reducing greenhouse gas emissions in Federal buildings and vehicles. At a conference on Wednesday, Heather Boushey, who serves on the White House Council of Economic Advisers, said that there was “no paring back” of sustainability funds in the deal, which will institute caps on non-defense discretionary spending for two fiscal years in exchange for raising the debt ceiling through 2025. At the same event, Brenda Mallory, Chair of the White House Council on Environmental Quality, mentioned that the U.S. Postal Service plans to use the IRA to procure 66,000 electric vehicles by 2028. Per the Federal Sustainability Plan released in late 2021, the entire Federal government hopes to achieve one-hundred percent zero-emission vehicle acquisition by 2035. Independent research indicates that the Federal government could save $6 billion over 15 years if it adopted an all-electric fleet and decrease annual greenhouse gas emissions by 1.7 million metric tons.
GAO Recommends Reforms to HHS to Improve Public Health Emergency Response
In 2022, the Government Accountability Office (GAO) added the Department of Health and Human Services (HHS) leadership and coordination of the nation’s preparation and response to public health emergencies to GAO’s High-Risk List. GAO made this designation after observing system deficiencies that impacted the nation’s response to the COVID-19 pandemic as well as past emergencies such as the H1N1 influenza pandemic, Zika, and Ebola as well as various hurricanes. GAO found that HHS efforts fell short in five key areas.
- Clear roles and responsibilities
- Complete and consistent data
- Clear and consistent communication
- Transparency and accountability
- Understanding key partners capabilities and limitations
On June 7, GAO testified before the House Energy and Commerce Subcommittee on Oversight and Investigations on HHS leadership and coordination of public health emergencies and areas for reform. GAO identified that according to leading practices, agencies can reform if they have clear goals, follow a process to develop proposed reforms, allocate implementation resources, and consider workforce needs during and after the reform. Consistent with GAO’s recommendations, the Administration for Strategic Preparedness and Response (ASPR) and the Centers for Disease Control and Prevention (CDC) are undergoing reforms to be better prepared to respond to public health emergencies in the future.
FAR Interim Rule Banning TikTok from Federal Devices
The FAR Council released an interim rule that would update the FAR “to implement the prohibition on having or using the social networking service TikTok or any successor application or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited.” The TikTok prohibition applies to devices used by Federal employees or contractors in the performance of a Federal contract or Federal work. Personal devices not used in the performance of the contract are not covered by the rule. Contracting officers are required to include the prohibition for solicitations issued on or after June 2. The rule follows legislation in the December omnibus spending ball that called for the Office of Management and Budget to “develop standards and guidelines for executive agencies requiring the removal of any covered application from information technology,” which the agency released in February.
CRS Publishes Overview of Small Business Contracting
The Congressional Research Service (CRS) published a new report; An Overview of Small Business Subcontracting. The report provides an overview of subcontracting opportunities for small businesses including a guide to agency directories and databases along with agency resources designed to assist subcontractors. Additionally, the report discusses the following issues that Congress may have interest in addressing:
- Contractor compliance – how well prime contractors comply with existing subcontracting policy and how well agencies are implementing the applicable acquisition and small business regulations
- Subcontracting Data Reporting – the general lack of available data on subcontract awards and subcontractor firms
- Issues for Subcontractors – such as legal and payment protections “because they may prevent potential subcontractors from entering the federal contracting market, or negatively affect subcontractor performance on federal contracts.”
Off The Shelf: A Deep Dive into Best-in-Class IDIQs
On this week’s Off The Shelf, Brain Friel, co-founder of consultancy BD Squared, joins Coalition President Roger Waldron to chat about Best-in-Class Indefinite Delivery Indefinite Quantity Contracts. Friel provides updates on the major IT/professional services vehicles OASIS+, NITAAC CIO-SP4, and NASA SEWP VI, and directs listeners attention to the major new FBI Federal Supply Schedule Blank Purchase Agreement FBI IT-SSS 2. He also explains the recent Polaris bid protest decision regarding the applicability of Section 876 to IDIQ contracts and projects how it will affect Polaris and GSA’s soon-to-launch OASIS+ follow-on contract. To listen, click here, or search “Off the Shelf” wherever fine podcasts are distributed.
Coalition Imaging Equipment Committee Meeting with DLA Document Services
On June 8, the Coalition’s Imaging Equipment Committee hosted Terra Nguyen, the Defense Logistics Agency (DLAP Director of Document Services. Terra provided an overview of the Equipment Management Solutions group as well as her thoughts on industry challenges and the future of print. Additionally, the Coalition provided an update on relevant policy areas such as CMMC, the removal of the “highly competitive pricing” language in the MAS solicitation, and upcoming sustainability requirements for contractors. To view Terra’s slides click here. To view the Coalition’s slides click here. If you have any questions regarding the Imaging Committee, please contact Joseph Snyderwine at JSnyderwine@thecgp.org.
Listen to the Latest Coalition Webinars and Trainings
As we pass the midway point of 2023, the Coalition would like to share a recap of this year’s webinars and trainings to date, along with the recordings. Be sure to check the calendar for all upcoming Coalition events as well!
- Overview of the NDAA for Fiscal Year 2023: On January 24, Moshe Schwartz, President of Etherton and Associates, Inc. presented on the most relevant trends and themes in the FY 2023 NDAA for Coalition members—acquisition, industrial base, cybersecurity provisions, and how the NDAA may impact the Administration’s policy goals. Additionally, Schwartz identified potential future areas of focus and change in acquisition and industrial base policy. To view the recording, click here.
- Small Business Regulation: 2022 Year in Review: On February 1, the Small Business Committee hosted a year in review presentation featuring Ken Dodds, Government Contracting Industry Expert at Live Oak Bank, David Black, Partner at Holland and Knight, and Jon Williams, Partner at PilieroMazza. To view the recording, click here.
- The Cost of Security – Cost Accounting Considerations for CMMC: On February 2, the Coalition hosted Chess Consulting Senior Manager Mike Tomaselli for a discussion on government contract cost accounting standards and principles, including allowability and allocability, that can be applied to CMMC costs with an eye towards compliance and competitiveness. To view the recording, click here.
- FCA in 2023: Key Developments and Risk Mitigation Strategies: On February 16, the Coalition hosted Perkins Coie LLP Partners Alexander Canizares and Barak Cohen, who provided a practical overview of key considerations for government contractors related to the False Claims Act (FCA), trends in FCA enforcement, and how to manage effectively risks related to whistleblower allegations and qui tam lawsuits. To view the recording, click here.
- All-Member Briefing on FY 2023 NDAA: Healthcare Focus: On March 15, the Coalition hosted a virtual all-member meeting with Moshe Schwartz, President of Etherton and Associates. During the presentation, Schwartz provided updates on the NDAA related to supply chains, healthcare, biotech, and pharmaceuticals. Schwartz also addressed key FY 2023 appropriations in these areas. To view the recording, click here.
- Domestic and Foreign Sourcing Requirements: On May 25, the Coalition hosted a webinar with Covington attorneys Mike Wagner and Jen Bentley. During the webinar, they provided an overview of key considerations for government contractors who need to comply with various domestic content regimes. Listen to the recording here.
- Software Supply Chain Requirements: On June 1, the Coalition hosted Crowell & Moring attorneys Michael Gruden, Alexander Urbelis, and Alexis Ward for a webinar on OMB’s forthcoming self-attestation requirements and deadlines approaching this summer. They also providde practical insights in implementing the new software security standard, NIST SP 800-218, Secure Software Development Framework, required by the attestations. To view the recording, click here.
DHA CIO Provides Update on MED-COI Transition
At the annual Healthcare Information and Management Systems Society (HIMSS) Global Health Conference & Exposition in Chicago, Pat Flanders, Chief Information Officer for the Defense Health Agency (DHA), presented on the DHA’s transition to the Medical Community of Interest (MED-COI). The MED-COI is the realization of efforts to consolidate the Military Health System’s (MHS) four medical networks into a single, modern network. MED-COI was designed to standardize the enterprise health IT infrastructure, enhance cyber security, and fulfill the technical requirements of MHS GENESIS, the new electronic health record for MHS.
In his presentation, Flanders noted that in the transition to the new system there were five keys to success:
- Defining responsibilities and determining what is enterprise IT
- Including all parties in communication
- Raising awareness to the visibility of resources
- Demanding deliberate design and configuration management
- Investing in his people
Flanders emphasized efforts focusing on creating a single organization responsible for specific areas such as network monitoring and protection within a greater organization. Additionally, Flanders discussed the system’s compliance with the Department of Defense (DoD) Zero Trust Reference Architecture and the role it played in the design of access points for the network. Over the next twelve months, DHA plans to continue working on enterprise systems, rolling out MHS Genesis, and sunset MILCLOUD2, the DoD’s former cloud infrastructure service, all while working to align with “Zero Trust” principles.
MAS Update with the Gormley Group, June 13
On June 13, the IT/Professional Services Committees, in conjunction with LMI, will be hosting a wide-ranging Multiple Award Schedule (MAS) Update featuring the Gormley Group from 10:00 – 11:00 AM (ET).
The update will highlight key trends in MAS contract administration including current trends in price negotiations and processing of modifications. Senior Consultant Sean Nulty and Managing Principal Consultant Sonia Pesantes will answer your questions regarding GSA’s Federal Acquisition Service’s (FAS’s) evolving approach to price negotiations, modifications, Economic Price Adjustments (EPA), the use of the 4P tool, and more! This don’t miss meeting will provide members with the latest information impacting the management of their MAS contracts.
Coalition Meeting, Tuesday, June 13 at 11 AM (ET)
LMI
7940 Jones Branch Dr.
Tysons, VA 22101
To register for the meeting click here. Members are encouraged to attend in person, there is also a virtual option. If you have any issues with registration, please contact Erin Cartwright at ecartwright@thecgp.org.
All Member with GSA on GSS Hot Topics, June 28
On June 28 from 9:30-11 am EST, the Coalition is hosting a virtual all-member meeting with Erv Koehler, GSA FAS Assistant Commissioner of the Office of General Supplies and Services (GSS). During the meeting, Mr. Koehler will discuss the current priorities and initiatives of GSS such as their use of Demand Data, the Pricing Model, and a new Modification process.
To register for the meeting, click here.
If you are experiencing registration issues, please contact Erin Cartwright at ECartwright@thecgp.org.
Legal Corner: Lapse in SAM Registration Disqualifies Government Contractor from Contract Award
The Legal Corner provides the legal community with an opportunity to share insights and comments on legal issues of the day. The comments herein do not necessarily reflect the views of The Coalition for Government Procurement.
The Court of Federal Claims (COFC) recently interpreted FAR Clause 52.204-7, which requires offerors to register in the System for Award Management (SAM), to indicate that even a slight lapse in a contractor’s SAM registration status could disqualify them from potential award.
The Case Before the Court
COFC recently granted a preliminary injunction in Myriddian, LLC v. U.S., No. 23-443 (Fed. Cl. May 23, 2023) staying performance of a contract solicited by the Department of Health and Human Services (HHS) to provide methodologies that ensure consistent coding of Medicare and Medicaid claims under the National Correct Coding Initiative program. The solicitation indicated the procurement was a negotiated procurement under FAR Part 15 and required all offerors to comply with its terms and conditions to be eligible for award. Most importantly, the solicitation included FAR 52.204-7, which reads, “an Offeror is required to be registered in SAM when submitting an offer or quote, and shall continue to be registered until time of award, during performance, and through final payment of any contract, basic agreement, basic ordering agreement, or blanket purchasing agreement resulting from this solicitation.”
In November 2022, offerors, including Cloud Harbor Economics, LLC (Cloud Harbor) and Myriddian, LLC (Myriddian), submitted their proposals. Cloud Harbor was determined to be the best value and was awarded the contract in March 2023. Myriddian promptly protested the award claiming Cloud Harbor was ineligible to receive the award because it failed to comply with the mandatory solicitation requirement outlined in FAR Clause 52.204-7.
Cloud Harbor was registered in SAM when it submitted its proposal in November 2022 and when HHS made the award decision on March 9, 2023. However, Cloud Harbor’s registration lapsed for a brief 17-day period from February 12, 2023 to March 1, 2023. Myriddian argued that the language in FAR Clause 52.204-7 requires an offeror maintain an active registration in SAM continuously throughout the entire procurement process. Any lapse in registration violates this requirement. Consequently, Myriddian argued Cloud Harbor was ineligible for the award because it did not comply with the solicitation requirements when it let the registration lapse.
The Court agreed, denying HHS’s arguments that the lapse was correctable and non-fatal. Specifically, it interpreted FAR Clause 52.204-7 as mandatory and non-waivable. Therefore, it was irrelevant that Cloud Harbor reactivated its registration prior to the contract award because it already violated the FAR 52.204-7 by allowing its registration to lapse. Myriddian was granted the injunction, and the Court ordered a stay of performance on the contract until resolution of the bid protest.
Key Takeaways
- Don’t let your SAM registration lapse. COFC’s interpretation of FAR Clause 52.204-7 in Myriddian, LLC v. U.S. emphasizes the importance of maintaining a current SAM registration. Allowing your registration to lapse for any amount of time when you are in the process of bidding on—or while performing—a government contract may deem you ineligible for award or in violation of the contract.
- Consider government processing time. In addition to maintaining an active registration, FAR Clause 52.204-7(d) warns offerors to consider the processing time associated with registering in SAM. This notice indicates that offerors should not submit proposals until their registration is complete and that a delay in receiving registration confirmation from the government will not be a valid excuse for failure to have an active registration at the time of proposal submission.
- FAR 52.204-7 is mandatory in most awards. The requirement to maintain an active SAM registration is a mandatory clause in most solicitations and awards. There are a few circumstances where the clause may not be included, such as in contracts where the work will be performed completely outside of the United States or in certain high stake military operations. However, even in these situations, FAR 52.204-7—though not mandatory—may still be included.
If you have questions about SAM or any other government contract matter, please contact Cy Alba, the author of this blog, or another member of PilieroMazza’s Government Contracts practice group.
Healthcare Corner: VA deputy secretary nominee seeks ‘boots on the ground’ approach to fix EHR rollout
The Biden administration’s pick to serve as the second-in-command at the Department of Veterans Affairs expects to make the rollout of a new Electronic Health Record and toxic-exposure legislation her top priorities, if confirmed.
VA Chief of Staff Tanya Bradsher, President Joe Biden’s nominee to serve as deputy VA secretary, told the Senate VA Committee on Wednesday that the VA will only resume go-lives of the Oracle-Cerner EHR “when it is fully ready,” and shows improvement at the five VA sites already using it.
“We simply have to have an electronic health care record that our veterans can rely on,” Bradsher said.
Bradsher said her top priorities for the new job include holding Oracle-Cerner accountable for the successful rollout of the new EHR, as well as encouraging eligible veterans to apply for health care and benefits under the PACT Act.
The PACT Act expands VA health care and benefits eligibility for veterans exposed to toxic substances during their military service.
The VA is currently in a “reset” period with EHR go-lives, and won’t schedule new EHR deployments until the department is confident that the system shows improvement at the five current sites using the system. However, Bradsher said the VA needs to do more to improve EHR functionality for VA employees already using the Oracle-Cerner system.
“Our clinicians have not seen the results of their comments come back and executed within the electronic health care record,” Bradsher said.
Bradsher said she’d take a “boots-on-the ground” approach to the EHR rollout and would rely on feedback from the five VA sites already using the Oracle-Cerner system.
“We have the opportunity now, with the reset of the five sites, to make sure that we’re able to incorporate those recommendations enterprise-wide, because we can’t have five different records. We need to have enterprise-wide changes, and ensure that we hold Cerner-Oracle accountable so that those changes actually happen,” Bradsher said.
Sen. Patty Murray (D-Wash.) said she continues to hear from veterans and VA employees at VA medical centers in Spokane and Walla Walla, Washington, who feel that their feedback on the new EHR “is not being taken into account or even heard.”
“As you know, it has really put a strain on our providers and on our veterans,” Murray said.
The VA recently renewed its multibillion-dollar contract with Oracle-Cerner, with new terms meant to hold the vendor accountable for persistent outages.
If the new contract terms had been in place since the original contract was signed in 2018, the VA said it would have recovered 30 times as much money back from Oracle-Cerner for EHR system outages.
“We have the ability to hold Oracle-Cerner accountable in ways that the previous contract did not,” Bradsher said, adding that the new contract holds the vendor to a higher standard for keeping the system up and running.
“The changes that we will make don’t just benefit VA, they’ll also benefit DoD and being able to ensure especially with the outages we’ve had definitely some issues with consistency and keeping the system up,” she added.
If confirmed, Bradsher would be one of the most senior VA officials to oversee the VA’s troubled rollout of the multi-billion-dollar EHR from Oracle-Cerner. She’d also be the first woman to serve as VA deputy secretary.
Former VA Deputy Secretary Donald Remy stepped down in April.
Committee Chairman Jon Tester (D-Mont.) told Bradsher the EHR would “take up a good portion of your time,” but said she’d also lead over several other critical management responsibilities at VA.
Bradsher further said she’s focused on rebuilding trust with and reaching out to “untethered veterans,” who have never opted into VA care or benefits.
“I’ve seen what it looks like when one of my fellow soldiers transitions out of the military and gets the support they deserve from the VA, how they live happier, healthier and more fulfilled lives,” she said. “ I’ve also seen what it looks like when that doesn’t happen.”
Bradsher said her own father, also a veteran, struggled to find support from the VA system, and “because of that, never quite found his way,” after 22 years of honorable service.
The VA estimates that about 3 million veterans are eligible for health care and benefits under the PACT Act. More than 84,000 veterans so far have enrolled in VA health care under the PACT Act.
Bradsher said she’s spoken to VA employees who are veterans, but didn’t realize they are eligible for health care and benefits under the PACT Act.
“It can’t just be through just [military service organizations] and [veteran service organizations]. We’re going to have to get creative, and we’re going to have to reach the veterans where they are,” she said.
Since President Joe Biden signed the PACT Act into law last August, the VA has held hundreds of events across the country to get the word out to eligible veterans.
By Ken Dodds, Live Oak Bank
The following blog does not necessarily represent the views of The Coalition for Government Procurement.
Polaris
The Court of Federal Claims’ (COFC) decision concerning GSA’s Polaris solicitation will require GSA to address price in its evaluation.[1] COFC’s decision also addressed areas of relevance for mentor protégé joint ventures. SBA’s rules provide, “[a] mentor that has more than one protégé cannot submit competing offers in response to a solicitation for a specific procurement through separate joint ventures with different protégés.”[2] COFC upheld GSA’s decision to prohibit offers from joint ventures involving the same mentor from competing for the small business pool. COFC rejected the plaintiffs’ argument that the self-scoring evaluation method was not a competition and the argument that the real competition would occur at the task order level. SBA’s rules also provide that with respect to evaluating experience, “[a] procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.”[3] GSA’s Polaris solicitation provided that proteges must submit at least one relevant experience project, but other offerors had to submit at least three relevant experience projects. GAO and SBA appeared to be comfortable with agencies complying with SBA’s rule by requiring the protégé to submit a minimum number of examples of experience and limiting the experience examples that could be submitted by the mentor.[4] However, COFC found that reducing the number of experience examples was not sufficient and that evaluating the protégé’s experience example in the same manner as other offerors violated SBA’s regulations. COFC suggested that GSA could comply with SBA’s regulation by awarding protégés the maximum points for smaller contracts, awarding a point premium for protégé projects or allowing protégés to submit experience examples in addition to those required by the solicitation. COFC’s decision will likely result in increasing the importance of the mentor’s experience, to the detriment of other small business competitors without mentors.
Recertification not Required
The contracting agency awarded the mentor protégé joint venture a CIO SP3 contract as a HUBZone small business concern in September 2018. The procuring agency issued the HUBZone set-aside task order solicitation under CIO SP3 on July 6, 2022. A protester filed a size protest, contending that the mentor was acquired on December 1, 2021. The protester alleged that the mentor and protégé failed to inform SBA and that the acquisition of the mentor triggered recertification. The Area Office dismissed the size protest as untimely, finding that the procuring agency did not request size recertifications in connection with the task order solicitation. In the size appeal decision, OHA explained size under a long-term contract where size was relevant at the time of offer can only be protested within 5 days of contract award, within 5 days of the exercise of an option, or within 5 days of an order if the contracting officer requested a size recertification in connection with the order. Here, size was relevant at the time of award of the CIO SP3 contract and the contracting officer did not request a size recertification in connection with the order. A procuring agency’s inclusion of standard FAR clauses such as FAR 52.204-8 (Annual Representations and Certifications) in a task order solicitation does not constitute a request for size recertification. Even if there was a requirement for the joint venture to recertify under SBA’s rules because of the acquisition of the mentor, that does not alter the size protest timeliness rules. OHA denied the appeal and did not need to address the joint venture’s argument that in the context of a mentor protégé joint venture, it is the size of the protégé that matters because a mentor can be a large business, and therefore there was no need to recertify due to the acquisition of the mentor.[5]
Do you have a topic you wish to have covered or a question on how Live Oak Bank can support your business? Email me at ken.dodds@liveoak.bank.
[1] SH Synergy, LLC v. United States, 2023 WL 3144150 (April 28, 2023).
[2] 13 CFR 125.9(b)(3)(i).
[3] 13 CFR 125.8(e).
[4] See Excalibur Consulting Services, LLC, B- 421190.2, B- 421190.3, B- 421190.4, May 5, 2023, 2023 WL 3378222 (solicitation required protégé to provide one of three examples of experience); AttainX, Inc., B- 421216, B- 421216.2, Jan. 23, 2023, 2023 CPD 45 (protest sustained where agency did not consider experience of managing member of joint venture when joint venture did not have experience); Veterans Care Medical Equipment, LLC, B- 420726, B- 420726.2, July 29, 2022, 2022 CPD 206 (protest denied where agency reasonably evaluated protégé’s two experience examples and mentor’s three experience examples); Precise Federal Consulting, LLC, B- 419956.28, B-419956.29, July 8, 2022, 2022 CPD 178 (CIO SP4 corrective action which established minimum experience examples for protégé and maximum experience examples for mentor); Ekagra Partners, LLC, B- 408685.18, Feb. 15, 2019, 2019 CPD 83 (denying protest under prior version of SBA rule, where solicitation limited number of experience examples submitted by mentor and requiring minimum number from protégé).
[5] Computer World Services Corporation, SBA No. SIZ-6208 (April 25, 2023).