GAO does not administer the requirements to stay award or suspend contract performance under CICA. 31 U.S.C. secs. 3553(c), (d); 4 C.F.R. sec. 21.6. The only time we consider an agency’s override of a CICA stay is in the context of recommending a course of action where we sustain a protest, see, e.g., Exelis Systems Corporation, B 407111.5 et al., May 20, 2013, 2013 CPD ¶ 123 at 14-16, but we have made no conclusions on your protests at this point. Otherwise, whether or not to suspend or proceed with contract award or performance is left to the procuring agency’s discretion under CICA. See 31 U.S.C. secs. 3553(c), (d).

Pedro Briones, as stated to Mssrs. Bob Freeman of Nexagen & Michael Lin of LinTech regarding the GSA override of CICA Stay provision on B-408685.15 & B-408685.17. A ruling on both Protests by GAO is expected in late July.

Two firms, Nexagen, Inc. and LinTech Global, Inc., have filed Procurement Integrity Act (PIA) Violation Protests at GAO, B-408685.15 & B-408685.17, alleging un-redacted source selection material was released publicly by GSA OASIS contracting officer Tommy Thomas. These firms have posited that it was as a result of GSA’s disclosure that several firms became apparent awardees.

They are requesting that GSA cancel solicitation no. GS00Q-13-DR-0002, and all awards made to date, in order that the solicitation may be re-competed.

Yet, according to its website post dated June 25, 2014: : https://interact.gsa.gov/document/gsa-issues-notice-proceed-oasis-small-business-sb , On June 20, GSA issued the Notice to Proceed (NTP) for OASIS Small Business (SB).

The Procurement Integrity Act, 41 U.S.C. § 423(a) (2006), prohibits any present or former official of the United States, with respect to a federal agency procurement, from “knowingly” disclosing contractor bid or proposal information or source selection information before the award of a federal agency procurement contract to which the information relates. The statute defines source selection information to include bid and proposal prices, source selection and technical evaluation plans, technical and cost/price evaluations of proposals, competitive range determinations, rankings of bids/proposals, and reports/evaluations of source selection panels, boards, or advisory councils. 41 U.S.C. § 423(f)(2). Ref Case(s): Kellogg Brown & Root Services, Inc., B-400787.2; B-400861.

The Voice of Small Business in America (VSBA): http://linkd.in/OneVoice has confirmed that both Protesters did file not later than 10 days after the basis of the protest is known or should have been known or within 10 days of debriefing as required by 4 C.F.R. § 21.2(a)(2).

Under CICA Stay, 31 U.S.C. 3553(c) and (d), an Agency may not award a contract after notice of pending protest, and the Head of Procuring agency must notify GAO if it intends to override the Stay.

Apparently, neither the GAO nor the GSA advised the Protesters of this intent to override.

Stay tuned, more to come.

Submitted to:
House Oversight and Government Reform Committee
Senate Homeland Security and Government Affairs Committee

I am a small business and government contracts consultant dedicated to helping small firms successfully navigate the federal marketplace. In addition to providing small businesses with guidance on complying with the Federal Acquisition Regulation and other key government contracts rules, my firm, Aljucar, Anvil-incus & Co. prepares and manages teaming, joint venture and mentor-protégé arrangements with large-cap firms. As a result of the above stated, my firm sometimes must defend its interest by GAO bid protest.

SUMMARY OF INQUIRY

The GAO is not a court of law. Therefore, by what [specific] legal or regulatory authority is the agency able to establish legal precedent? [NOTE]: This same inquiry was made to the Office of the Comptroller General on June 3, 2014 without response.

BACKGROUND

The GAO has presumed to create “impromptu” rules to supplement the Code of Federal Regulations (CFR) §21 by virtue of its case precedent. I am requesting your assistance in determining on whose specific authority and/or by what specific law or regulation citation the GAO is able create impromptu rules to supplement the Code of Federal Regulations §21 by virtue of its own legal precedent in doing so. We have combed the laws incepting the agency and those governing its operations, and can find no requisite anywhere in CFR §21 that authorizes GAO attorney’s or management to append regulation and create rules by virtue of legal precedent.

Examples of rule supplements by GAO include the filing of “Motions” and the requirement for “Comments” on an Agency Report during a bid protest proceeding.

MOTIONS – GAO regulations [explicitly] state that [n]o formal briefs or other technical forms of pleadings or motions are required. This is all consistent with Congresses ‘mandate that the Comptroller General “provide for the inexpensive and expeditious resolution of protests” to “the maximum extent practicable.” However, federal agencies consistently file “Motions to Dismiss” during bid protests which are accepted and acted upon by GAO.

COMMENTS – It has been confirmed that there is no federal law or regulation that defines “comments on a report” in the context of a GAO protest by the agency’s Chief Quality Officer, Mr. Timothy Bowling and its Head of Procurement Law, Mr. Ralph White (see attached). However, according to Mr. White:

“The [definition] of “comments on a report” is not based on a specific regulation, but rather on long-standing [legal] precedent in connection with bid protests before GAO.”

The GAO has taken this position despite the agency NOT being a court of law. Indeed, the agency does not employ procedures that include discovery and evidentiary rules; it does not employ appellate review; and, it does not have the power to enforce its judgments.

Therefore I am respectfully requesting to know if this is truly Congress’ intent and if so by what [specific] law or regulation this authority to establish enforceable legal precedent is codified. Your time in consideration and response to this inquiry is greatly appreciated.

Thank you,

Rudy Sutherland

Tuesday, June 03, 2014

It is rare that an industry peer accuses a competitor of unethical behavior, on the border line of fraud; but that is exactly what happened this week. PaySimple (www.paysimple.com), established in 2005, was called out by Wells Fargo Bank executives for its questionable business practices towards Small Businesses in the processing and remittance of credit payments. It seems the company makes a practice of:

  1. debiting Smalls bank accounts without notice and sending invoices weeks later,
  2. charging and escalating fees without notice, and
  3. holding customer credit-card remittances in order to make money on the Federal Reserve overnight rate.

Wells Fargo has stated that it does not use nor recommend this company and its affiliates (discussed below).

PaySimple, whose competitors are PayPal™ and Authorize.net®, is a Denver, Colorado-based financial services provider that supplies merchant accounts along with several other services. The company specializes in providing merchants an integrated system that allows them to send electronic invoices and collect payments via credit/debit card, e-checks, and ACH transfers through customizable payment pages. In short, the company is a software company, NOT a credit card processor.

It would appear that PaySimple is a glorified software developer “front” for the credit card processor, North American Bancard or “NAB” (www.nabancard.com) a large merchant account provider based in Troy, Michigan that has an unusually high number of complaints filed against it by Small Businesses. At the recommendation of some in our group membership, we used the services and software interface of PaySimple with controversial results.

Although the software is very intuitive and user friendly, this did not mask the less than scrupulous business practices of NAB, its credit card processor. NAB has a long history, upon cancellation attempts, of trying to take money out of Small Business customer accounts with claims that they “never received” a request to cancel and putting extended holds, sometimes up to 21-days, on credit card payments for no apparent reason whatsoever.

Furthermore, our research has shown NAB has extensive complaints filed against it at the Federal Trade Commission by Small Businesses and a multiple of Attorneys General across the country. Because of this fact, we fully understand why the company needed a front like PaySimple to mask its poor business practices. This stated, and while PaySimple may be a very attractive and intuitive front-facing interface, we strongly encourage our membership to consider its competitors, PayPal™ and Authorize.net®.

We sincerely hope that PaySimple and NAB recognize the simple fact that, no matter how much lipstick you put on a pig, at the end of the day – it’s still a pig.

Change your business practices or face certain extinction.

One Voice…

R. Sutherland | http://linkd.in/OneVoice 

May 28, 2014

Two firms have filed Procurement Integrity Act (PIA) Violation Protests at GAO, B-408685.15 & B-408685.17, alleging un-redacted source selection material was released publicly by GSA OASIS contracting officer Tommy Thomas. These firms have posited that it was as a result of GSA’s disclosure that several firms became apparent awardees.

They are requesting that GSA cancel solicitation no. GS00Q-13-DR-0002, and all awards made to date, in order that the solicitation may be re-competed.

The Procurement Integrity Act, 41 U.S.C. § 423(a) (2006), prohibits any present or former official of the United States, with respect to a federal agency procurement, from “knowingly” disclosing contractor bid or proposal information or source selection information before the award of a federal agency procurement contract to which the information relates. The statute defines source selection information to include bid and proposal prices, source selection and technical evaluation plans, technical and cost/price evaluations of proposals, competitive range determinations, rankings of bids/proposals, and reports/evaluations of source selection panels, boards, or advisory councils. 41 U.S.C. § 423(f)(2).

Ref Case(s): Kellogg Brown & Root Services, Inc., B-400787.2; B-400861.

More to come.

Sunday, May 25, 2014

TIMELINESS

On September 21, 2013, Aljucar, Anvil-Incus & Co. (AA-I & Co.) filed a timely protest with U.S. General Accountability Office (GAO), which raised a number of arguments in our protest including that the solicitation did not allow newly-formed joint venture offerors to satisfy the experience requirements through the experience of the individual members of the joint venture; that the RFP improperly provided for an initial pass/fail evaluation of experience; that issuance of two OASIS solicitations would not provide meaningful opportunities for small businesses; and, that using two separate solicitations for set-aside versus unrestricted competitions was improper since the scope of work for the two solicitations was the same. Due to precedent at GAO, the Agency only addressed the argument regarding the RFP not allowing newly-formed joint ventures to satisfy the solicitation’s experience requirements through the experience of individual joint venture members, while the remaining arguments were considering abandoned without address. Thusly, on January 2, 2014, GAO denied the protest. The apparent awardees for GSA OASIS Unrestricted were released to FBO.gov on May 19, 2014 ref: https://www.fbo.gov/notices/9894b0308c12f4ede7ccb259264473e3 . Because this protest filing will be within 10 days of this public release; it will be timely.

INTERESTED PARTY

Summary

AA-I & Co. is a Protestor wishing to bring about a re-solicitation on which it intends to bid and therefore has the necessary status, even though it failed to bid in response to the original solicitation but did protest before the close of the proposal period for the original solicitation. Protester expected to bid prior to the close of the solicitation period, but was prevented from doing so on the basis of improper agency action. AA-I & Co. would be a prospective bidder on a re-solicitation and, therefore, is an interested party. See IHS Global, Inc. v. United States.

Prospective Offeror

The Federal Circuit’s long-standing and well-established interpretation of § 1491(b)(1) that an “interested party” under that provision may be either an “actual or prospective bidder” applies here. Moreover, “when the government’s actions wrongfully prevent a bidder from qualifying for or bidding on a solicitation, the government cannot use the contractor’s failure to qualify or bid on the solicitation as grounds for finding a lack of standing.” Reilly v. United States, 104 Fed. Cl. 69, 76 (Fed. Cl. 2012) (quoting KSD, Inc. v. United States, 72 Fed. Cl. 236, 247 (Fed. Cl. 2006)); see also, e.g., Infrastructure Defense Techs., LLC v. United States, 81 Fed. Cl. 375, 385 (Fed. Cl. 2008); accord Science Applications Int’l Corp. v. United States, 102 Fed. Cl. 644, 650 (Fed. Cl. 2011) (the prejudice component of standing requires only that a bidder “ha[ve] been prevented from bidding or proposing due to some infraction other than the terms of the solicitation itself … or [be an entity that] would be in contention absent the … violation of applicable procurement regulations”) (quoting Textron, Inc. v. United States, 74 Fed. Cl. 277, 285 (Fed. Cl. 2006)). Protester expected to bid prior to the close of the solicitation period, but was prevented from doing so on the basis of improper agency action.

AA-I & Co. would be a prospective bidder on a re-solicitation and, therefore, is an interested party. See IHS Global, Inc. v. United States.


Public input is welcome at http://www.boston-warwick.com/

PURPOSE OF THE PETITION:

To create a Public Law that establishes the Small Business Administration Advisory Committee on Small Business Affairs to serve as an independent source of advice and policy recommendations to the Administrator of the Small Business Administration (SBA), the Congress, the President and other US Policy Makers.

If you are interested in being part of this once in a lifetime effort, please email your firms name in support to: bizevangelist@vsbaonline.com. The actual online petition will be published to the Voice of Small Business in America | http://linkd.in/OneVoice  NLT April 15, 2014.

BACKGROUND:

I have been actively advocating for small business government contractors for more than a decade now and am convinced that we are a fragmented lot by a design that we neither created nor signed up for.

It should come as no surprise that there are 10’s maybe 100’s of small business government contractor advocacy organizations all across the nation. While each of these organizations pursues its own agenda on individual issues, none is ever able to reach critical mass at a meta-level and none has the ability to represent the consensus of what the small business government contractor community wants. Indeed, by virtue of the very model which makes the not-for-profit, membership organization possible; ‘divide and conquer’ becomes an institutionalized profit generating tool for large corporations to exploit at will. In capitalism, as in any competitive venue, the few can always conquer the many when the many operate in a chaotic manner.

The net result of our fragmented approach to date is the perpetuation of the following:

Large businesses are receiving small business procurement awards and agencies are receiving credit for these awards; misleading data has created the false impression that agencies are meeting their small business subcontracting goals; agencies know there are problems with the data reported by large contractors but do not take adequate corrective action; agencies award noncompetitive 8(a) contracts to ANC firms and these firms in turn subcontract with large companies; many Smalls are grown in a “farm system fashion” by larger businesses and win contracts while no longer meeting small business size standards – with no penalty; on multiple award contracts, task orders intended for the smallest contractors are issued to larger, agency incumbent contractors… then, there is bundling and consolidation…

All the while, the SBA’s oversight has fallen short including not adhering to a legislative and regulatory requirement to ascertain whether Smalls, are likely to suffer, a substantial unfair competitive disadvantage within an industry; but focusing rather on the hawking of debt in the form of loans on Smalls as if somehow economic infusion can counterbalance a lack of legislative will and institutionalized bias. In sum, right now, our collective Voice is faint and waning, and without stronger oversight, there is potential for continued abuse and unintended consequences to our collective detriment.

SOLUTION

Therefore, I propose that we petition the Congress and the White House to create a Public Law that establishes the Small Business Administration Advisory Committee on Small Business Affairs to serve as an independent source of advice and policy recommendations to the Administrator of the Small Business Administration (SBA), the Congress, the President and other US Policy Makers.

This Advisory Committee will be fashioned in the same manner as the one formed for Veterans in Public Law 106–50, SEC. 203.The Committee shall be composed of 15 members, of whom eight shall be small business concerns (within the meaning of the term under section 3 of the Small Business Act (15 U.S.C. 632)); and seven shall be representatives of small business organizations across the country.

We are now 15,000+ strong, let’s make it count.

One Voice… R. Sutherland

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