Legal Information & Resources for Federal Construction Contractors
By: Edward T. DeLisle & Lori Wisniewski Azzara
On March 4, 2010, the Small Business Administration released a proposed rule that, if adopted, would significantly expand federal contracting opportunities for eligible women-owned small businesses (“WOSB”). The SBA conducted a study that identified 83 industries, based upon the NAICS code, in which WOSBs are either “underrepresented&rdquo…
By: Lane F. Kelman
On May 3, 2010, the SBA’s definition of the term "employee" of a Historically Underutilized Business Zone ("HUBZone") was amended. The new definition establishes a more definitive but stringent reading of when a person is considered an employee for HUBZone eligibility purposes. (See the SBA’s HUBZone regulations). The construction industry…
By: Edward T. DeLisle
On April 26, 2010, President Obama issued an executive order to study the way in which the government provides assistance to veteran-owned and service-disabled, veteran-owned businesses. This executive order could not have come at a better time. It appears that the government has a two-fold problem: achieving federally mandated goals for…
A Final Rule governing Service Disabled Veteran-Owned small Business Concerns (“SDVOSB”) was published in the Federal Register on February 8, 2010. This law requires the Department of Veterans Affairs (“VA”) to verify ownership and control of veteran-owned small businesses, including service-disabled veteran-owned small businesses. The final rule also defines the eligibility requirements for businesses…
By: Michael H. Payne and Edward T. DeLisle
In order to qualify as a Historically Underutilized Business Zone (“HUBZone”) contractor, a firm must be a “small business” based on the size standards provided by the North American Industry Classification System (NAICS); the firm must be at least 51% owned and controlled by citizens of…
By: Edward T. DeLisle
In recent testimony provided to the House of Representative’s Committee on Small Business, a disturbing fact was revealed: millions of dollars earmarked for Service-Disabled Veteran-Owned Businesses (“SDVOSBs”) have been paid to companies that do not qualify for the program. Compounding the problem is the fact that insufficient fraud-prevention programs exist to…
A protest was filed recently in the United Stated Court of Federal Claims by our firm on behalf of a small business construction contractor challenging a solicitation issued by the Fort Worth District of the U.S. Army Corps of Engineers. The solicitation, No. W9126G-07-R-0123, is one of four similar solicitations for the construction of military projects…
A recent Government Accountability Office decision, Tessa Structures, LLC, B-298835, highlights the difference between responsiveness and responsibility determinations and the obligation of an agency to refer responsibility determinations to the Small Business Administration (SBA). The protestor, a small business, responded to a Federal Highway Administration solicitation seeking bids for bridge painting. As part of its bid, each prospective contractor was required to state the number of days of performance, not to exceed 305 days. The protestor, Tessa Structures, submitted the low bid and stated that it would perform in 120 days.
The FHWA reviewed Tessa’s bid and requested that Tessa explain how it would perform in 120 days. Tessa advised the FHWA that it planned to begin at the end of August and complete before Christmas; significantly, as discussed below, Tessa did not include its assumption that it would receive notice to proceed by August 28 with its bid. The FHWA believed that Tessa’s plan to begin at the end of August was contrary to the solicitation because the agency reserved the right to issue a notice to proceed as late as October 24th. The FHWA rejected Tessa’s bid as non-responsive, based upon Tessa’s 120 day performance period and its assumption regarding the notice to proceed, without seeking any input from the SBA.
The GAO determined that Tessa’s bid with a 120 day planned performance period was improperly rejected by the FHWA because the issue of performing within a set period of time was a matter of responsibility, not responsiveness. The GAO found that because the solicitation specified only a maximum performance period, (305 days) and no minimum period, Tessa could properly bid to perform in a shorter period. Furthermore, Tessa did not insert anything in its bid that restricted or qualified its performance in contravention of the solicitation. Of particular importance to the GAO was the fact that Tessa did not insert its assumption about the issuance of the notice to proceed in its bid, and, therefore, did not contravene the solicitation’s notice to proceed requirements. Had Tessa provided these assumptions in its bid, it most likely would have been found non-responsive. Continue Reading Agency Confuses Responsiveness with Responsibility
A recent Court of Federal Claims case, Diversified Maintenance Systems, Inc., December 4, 2006, reinforces the necessity for contracting officers to refer all protests regarding a company’s HUBZone status to the Small Business Administration (SBA). In Diversified, the agency set aside a procurement for HUBZone businesses only. All but two of the seven offerors were disqualified for various reasons. The agency awarded a contract to Cadence Contract Services and the other offeror, Diversified, immediately submitted a protest to the contracting officer, challenging the HUBZone status of the awardee.
Diversified’s protest alleged that the awardee’s office in Utah was not located in a certified HUBZone and that Utah’s records did not list a HUBZone company by that name at that address. The contracting officer denied the protest, stating that the awardee’s address in New York was in a HUBZone and that he had verified the HUBZone eligibility of the offeror at the New York address by checking the SBA’s website. Diversified then filed its protest with the Court of Federal Claims. After the litigation began, the government conceded to the Court that the contracting officer had failed to submit the offeror’s protest to the SBA, as required. Consequently, the government requested that the protest be submitted to the SBA. Continue Reading A HUBZone Protest Must Be Referred to the SBA
The Office of Federal Contract Compliance Programs (OFCCP) has published a Technical Assistance Guide designed to help federal government construction contractors and subcontractors comply with the federal laws and regulations that prohibit government contractors from discriminating in employment, and require that they undertake affirmative action to ensure equal employment opportunity in their workforces. It is intended for government contractors who have construction contracts and/or subcontracts. The obligations of government contractors and subcontractors who hold non-construction contracts differ in significant ways and are covered in a separate guide.
This Guide does not create new legal requirements or change current legal requirements. Instead, it reflects the views of OFCCP and is intended to serve as a basic resource document on OFCCP-administered laws. The legal requirements related to equal employment opportunity that apply to Federal supply and service contractors are contained in the statutes, executive orders, and regulations cited in the Guide. Every effort has been made to insure that the information contained in the Guide is accurate and up to date.Continue Reading Technical Assistance Guide for Federal Construction Contractors
