Government Contracts Brief – Week of March 2, 2020

BPA’s Against FSS Contracts Must Consider Price

GAO recently sustained a protest that is a good reminder that when establishing a BPA against an FSS contract, the agency must consider price. While a Schedule contract satisfies an agency’s requirement for full and open competition, FAR subpart 8.4 requires that an evaluation of lowest cost to the government must ensue. According to GAO, while other methods may be used in conducting the procurement, at minimum price must be considered. For contractors, if price is not an evaluation criterion on an order or BPA against a contract in the FSS program, you may have grounds for a successful protest. Noble Supply & Logistics, Inc., B-418141, January 16, 2020.

Obtaining Confidential Information Privately Does Not Create An OCI

The FAR outlines three types of OCI’s: biased ground rules, unequal access to non-public information, and impaired objectivity. As a recent GAO decision points out, in order to demonstrate an unequal access to non-public information conflict, a party alleging an OCI must show that the “conflicted” party obtained that nonpublic information as part of its performance of a government contract. Meaning, if one company obtains confidential information that may give it an unfair competitive advantage from the competing company – with no government involvement – then the matter is a dispute between private parties and will not be considered by GAO. Absolute Business Solutions, Inc., B-418184, January 21, 2020.

Mentor-Protege Overview

The Mentor-Protégé programs within the federal government encourage the partnering of large, sophisticated contactors with small businesses in order to facilitate development of the small contractor. The mentors are able to, among other things, receive credit toward subcontracting goals and along with its protégé compete for set-aside contracts. The benefits for protégés include finance or technical assistance in obtaining or performing contracts. The SBA’s All Small Business Mentor-Protégé Program is the most widely used. The participants must develop the relationship themselves and then seek approval of the arrangement by the SBA. To qualify, protégés must be a small business, have a proposed mentor, organized as a for-profit entity, and have no more than two mentors in its lifetime. Mentors must be a for-profit entity with no more than three protégés at a time. The parties may also form a joint venture to compete together for contracts reserved for small businesses; however, the SBA has specific requirements and rules for this course of action beyond those for the mentor-protégé relationship.

 

Attorney Kristi Morgan AronicaOur government contracts briefs, reports, and articles are published by Attorney Kristi Morgan Aronica. She serves as counsel to government contractors and subcontractors throughout Texas and nationally.