8-PAC is Expanding the Conversation between 8(a), Woman, and Veteran Owned Small Business…
The 8-PAC News Aggregator was founded for the purpose of aggregating the most relevant information to keep 8(a), Woman, and Veteran owned small business owners informed and to promote broader conversation in order to strengthen our collective Voice.
It’s what we do. It’s who we are.
On September 19, 2007, we created the 8-PAC Small Business Discussion Group on LinkedIn to serve as the framework and archive for our many discussions. Almost two years later, the outcome has exceeded our initial expectations.
In response to the many requests for delineation of discussion by specific group; we have created three independent Sub-discussion groups to eliminate the overlap of perspective; one for 8(a), Woman, and Veteran owned small business owners, respectively. The main discussion group will continue to be used for the purpose of general dialogue.
I sincerely hope that this step increases the flexibility of communication between and about each of our constituent groups.
If you are a small business owner, and want to talk with other folk just like yourself, from across the US and even beyond our borders; simply go to the following respective links:
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Veteran Owned Business Discussion Group: http://tinyurl.com/nk2e83
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Woman Owned Business Discussion Group: http://tinyurl.com/l5o6rj
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8(a) & Small Disadvantaged Business Discussion Group: http://tinyurl.com/mgt9l5
and sign-up. You will get as good as you give and perhaps develop a few relationships along the way.
Again, it’s what we do. It’s who we are.
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- Rudy Sutherland
8(a) Serial Entrepreneur & Small Business Evangelist
It is a known fact that Large Firms, or “Bigs“, lobby politicians and government agencies for specific contract opportunities well in advance of their being put out on the street. In the case of “in-motion” solicitations that are about to expire; they may request that certain capability be added to the next-generation version that is unique to their capability. Alternatively, in the case of first-generation solicitations; Bigs may actually help to draft to solicitation instrument.
I have received many requests to better understand the scarce offensive tools that may be used by small businesses “Littles” to question the language of a solicitation that they feel is “apparently” worded for a specific Big and prejudices their ability to compete fairly. The sober truth is, under current rules and regulations; there is very little that can be done. However, the little that can be done just might benefit you.
The laws and regulations that govern contracting with the federal government are designed to ensure that federal procurements are conducted fairly and, whenever possible, in a way that maximizes competition. On occasion, however, bidders or others interested in government procurements may have reason to believe that a contract has been or is about to be awarded improperly or illegally, or that they have been unfairly denied a contract or an opportunity to compete for a contract. A major avenue of relief for those concerned about the propriety of an award has been the General Accounting Office (GAO), which for almost 75 years has provided an objective, independent, and impartial forum for the resolution of disputes concerning the awards of federal contracts.
Although most protests challenge the acceptance or rejection of a bid or proposal and the award or proposed award of a contract, GAO considers protests of defective solicitations (e.g., allegedly restrictive specifications, omission of a required provision, and ambiguous or indefinite evaluation factors), as well as certain other procurement actions (e.g., the cancellation of a solicitation). The termination of a contract may be protested if the protest alleges that the termination was based on improprieties in the award of the contract. 4 C.F.R. § 21.1(a). Where the agency involved has agreed in writing, GAO will consider protests concerning (1) awards of subcontracts by or for a federal agency, (2) sales by a federal agency, and (3) procurement actions by government entities which do not fall within the strict definition of federal agencies in 4 C.F.R. § 21.0(c). 4 C.F.R. § 21.13(a).
4 C.F.R. § 21
There are some matters that cannot be protested to GAO. The most common grounds for dismissal of a protest in whole or in part are set forth in 4 C.F.R. § 21, as illustrated below. The regulations governing the bid protest process appear in Part 21 of Title 4 of the Code of Federal Regulations. Those regulations, which are applicable to new protests filed on or after August 8, 1996, are reprinted below.
NOTE: It is incumbent, and a competitive advantage, for every small business to be quite familiar 4 C.F.R. § 21; in its entirety.
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BID PROTEST REGULATIONS
§ 21.0 DEFINITIONS.
(a) Interested party means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.
(b) Intervenor means an awardee if the award has been made or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.
(c) Federal agency means any executive department or independent establishment in the executive branch, including any wholly owned government corporation, and any establishment in the legislative or judicial branch, except the Senate, the House of Representatives, and the Architect of the Capitol and any activities under his direction.
(d) Contracting agency means a Federal agency which has awarded or proposes to award a contract under a protested procurement.
(e) Days are calendar days. In computing any period of time described in Subchapter V, Chapter 35 of Title 31, United States Code, including those described in this part, the day from which the period begins to run is not counted, and when the last day of the period is a Saturday, Sunday, or Federal holiday, the period extends to the next day that is not a Saturday, Sunday, or Federal holiday. Similarly, when the General Accounting Office (GAO), or another Federal agency where a submission is due, is closed for all or part of the last day, the period extends to the next day on which the agency is open.
(f) Adverse agency action is any action or inaction by a contracting agency which is prejudicial to the position taken in a protest filed with the agency, including a decision on the merits of a protest; the opening of bids or receipt of proposals, the award of a contract, or the rejection of a bid despite a pending protest; or contracting agency acquiescence in continued and substantial contract performance.
(g) A document is filed on a particular day when it is received by GAO by 5:30 p.m., eastern time, on that day. A document may be filed by hand delivery, mail, or commercial carrier; parties wishing to file a document by facsimile transmission or other electronic means must ensure that the necessary equipment is operational at GAO’s Procurement Law Control Group.
§ 21.1 FILING A PROTEST.
(a) An interested party may protest a solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services; the cancellation of such a solicitation or other request; an award or proposed award of such a contract; and a termination of such a contract, if the protest alleges that the termination was based on improprieties in the award of the contract.
(b) Protests must be in writing and addressed as follows: General Counsel, General Accounting Office, 441 G Street, NW., Washington, DC 20548, Attention: Procurement Law Control Group.
(c) A protest filed with GAO shall:
- Include the name, address, and telephone and facsimile numbers of the protester,
- Be signed by the protester or its representative,
- Identify the contracting agency and the solicitation and/or contract number,
- Set forth a detailed statement of the legal and factual grounds of protest including copies of relevant documents,
- Set forth all information establishing that the protester is an interested party for the purpose of filing a protest,
- Set forth all information establishing the timeliness of the protest,
- Specifically request a ruling by the Comptroller General of the United States, and
- State the form of relief requested.
(d) In addition, a protest filed with GAO may:
- Request a protective order,
- Request specific documents, explaining the relevancy of the documents to the protest grounds, and
- Request a hearing, explaining the reasons that a hearing is needed to resolve the protest.
(e) The protester shall furnish a complete copy of the protest, including all attachments, to the individual or location designated by the contracting agency in the solicitation for receipt of protests, or if there is no designation, to the contracting officer. The designated individual or location (or, if applicable, the contracting officer) must receive a complete copy of the protest and all attachments not later than 1 day after the protest is filed with GAO. The protest document must indicate that a complete copy of the protest and all attachments are being furnished within 1 day to the appropriate individual or location.
(f) No formal briefs or other technical forms of pleading or motion are required. Protest submissions should be concise and logically arranged, and should clearly state legally sufficient grounds of protest. Protests of different procurements should be separately filed.
(g) Unless precluded by law, GAO will not withhold material submitted by a protester from any party outside the government. If the protester believes that the protest contains information which should be withheld, a statement advising of this fact must be on the front page of the submission. This information must be identified wherever it appears, and the protester must file a redacted copy of the protest which omits the information with GAO and the agency within 1 day after the filing of its protest with GAO.
(h) Parties who intend to file documents containing classified information should notify GAO in advance to obtain advice regarding procedures for filing and handling the information.
(i) A protest may be dismissed for failure to comply with any of the requirements of this section, except for the items in paragraph (d) of this section. In addition, a protest shall not be dismissed for failure to comply with paragraph (e) of this section where the contracting officer has actual knowledge of the basis of protest, or the agency, in the preparation of its report, was not prejudiced by the protester’s noncompliance.
§ 21.2 TIME FOR FILING.
(a)(1) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation.
(2) Protests other than those covered by paragraph (a)(1) of this section shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.
(3) If a timely agency-level protest was previously filed, any subsequent protest to GAO filed within 10 days of actual or constructive knowledge of initial adverse agency action will be considered, provided the agency-level protest was filed in accordance with paragraphs (a)(1) and (a)(2) of this section, unless the contracting agency imposes a more stringent time for filing, in which case the agency’s time for filing will control. In cases where an alleged impropriety in a solicitation is timely protested to a contracting agency, any subsequent protest to GAO will be considered timely if filed within the 10-day period provided by this paragraph, even if filed after bid opening or the closing time for receipt of proposals.
(b) Protests untimely on their face may be dismissed. A protester shall include in its protest all information establishing the timeliness of the protest; a protester will not be permitted to introduce for the first time in a request for reconsideration information necessary to establish that the protest was timely.
(c) GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest.
§ 21.3 NOTICE OF PROTEST, SUBMISSION OF AGENCY REPORT, AND TIME FOR FILING OF COMMENTS ON REPORT.
(a) GAO shall notify the contracting agency by telephone within 1 day after the filing of a protest, and, unless the protest is dismissed under this part, shall promptly send a written confirmation to the contracting agency and an acknowledgment to the protester. The contracting agency shall immediately give notice of the protest to the contractor if award has been made or, if no award has been made, to all bidders or offerors who appear to have a reasonable prospect of receiving an award. The contracting agency shall furnish copies of the protest submissions to those parties, except where disclosure of the information is prohibited by law, with instructions to communicate further directly with GAO. All parties shall furnish copies of all protest communications to the contracting agency and to other participating parties. All protest communications shall be sent by means reasonably calculated to effect expeditious delivery.
(b) A contracting agency or intervenor which believes that the protest or specific protest allegations should be dismissed before submission of an agency report should file a request for dismissal as soon as practicable.
(c) The contracting agency shall file a report on the protest with GAO within 30 days after the telephone notice of the protest from GAO. The report provided to the parties need not contain documents which the agency has previously furnished or otherwise made available to the parties in response to the protest. At least 5 days prior to the filing of the report, in cases in which the protester has filed a request for specific documents, the agency shall provide to all parties and GAO a list of those documents, or portions of documents, which the agency has released to the protester or intends to produce in its report, and of the documents which the agency intends to withhold from the protester and the reasons for the proposed withholding. Any objection to the scope of the agency’s proposed disclosure or nondisclosure of documents must be filed with GAO and the other parties within 2 days of receipt of this list.
(d) The report shall include the contracting officer’s statement of the relevant facts, including a best estimate of the contract value, a memorandum of law, and a list and a copy of all relevant documents, or portions of documents, not previously produced, including, as appropriate: the protest; the bid or proposal submitted by the protester; the bid or proposal of the firm which is being considered for award, or whose bid or proposal is being protested; all evaluation documents; the solicitation, including the specifications; the abstract of bids or offers; and any other relevant documents. In appropriate cases, the contracting agency may request that the protester produce relevant documents, or portions of documents, that are not in the agency’s possession.
(e) Subject to any protective order issued in the protest pursuant to § 21.4, the contracting agency shall simultaneously furnish a copy of the report to the protester and any intervenors. The copy of the report filed with GAO shall list the parties who have been furnished copies of the report. Where a protester does not have counsel admitted to a protective order and documents are withheld from the protester in accordance with this part, the agency shall provide documents adequate to inform the protester of the basis of the agency’s position.
(f) The contracting agency may request an extension of time for the submission of the list of documents to be provided by the agency pursuant to § 21.3(c) or for the submission of the agency report. Extensions will be granted on a case-by-case basis.
(g) The protester may request additional documents after receipt of the agency report when their existence or relevance first becomes evident. Except when authorized by GAO, any request for additional documents must be filed with GAO and the contracting agency not later than 2 days after their existence or relevance is known or should have been known, whichever is earlier. The contracting agency shall provide the requested documents, or portions of documents, and a list to GAO and the other parties within 2 days or explain why it is not required to produce the documents.
(h) Upon the request of a party, GAO will decide whether the contracting agency must provide any withheld documents, or portions of documents, and whether this should be done under a protective order. When withheld documents are provided, the protester’s comments on the agency report shall be filed within the original comment filing period unless GAO determines that an extension is appropriate.
(i) Comments on the agency report shall be filed with GAO within 10 days after receipt of the report, with a copy provided to the contracting agency and other participating parties. The protest shall be dismissed unless the protester files comments or a written statement requesting that the case be decided on the existing record, or requests an extension of time within the 10-day period. Unless otherwise advised by the protester, GAO will assume the protester received the agency report by the due date specified in the acknowledgment of protest furnished by GAO. Upon a showing that the specific circumstances of a protest require a period longer than 10 days for the submission of comments, GAO will set a new date for the submission of comments. Extensions will be granted on a case-by-case basis.
(j) GAO may request or permit the submission of additional statements by the parties and by other parties not participating in the protest as may be necessary for the fair resolution of the protest. The agency and other parties shall not submit any additional statements unless the statements are specifically requested by GAO or submitted after permission has been granted by GAO.
§ 21.4 PROTECTIVE ORDERS.
(a) At the request of a party or on its own initiative, GAO may issue a protective order controlling the treatment of protected information. Such information may include proprietary, confidential, or source-selection-sensitive material, as well as other information the release of which could result in a competitive advantage to one or more firms. The protective order shall establish procedures for application for access to protected information, identification and safeguarding of that information, and submission of redacted copies of documents omitting protected information. Because a protective order serves to facilitate the pursuit of a protest by a protester through counsel, it is the responsibility of protester’s counsel to request that a protective order be issued and to submit timely applications for admission under that order.
(b) If no protective order has been issued, the agency may withhold from the parties those portions of its report which would ordinarily be subject to a protective order. GAO will review in camera all information not released to the parties.
(c) After a protective order has been issued, counsel or consultants retained by counsel appearing on behalf of a party may apply for admission under the order by submitting an application to GAO, with copies furnished simultaneously to all parties. The application shall establish that the applicant is not involved in competitive decision-making for any firm that could gain a competitive advantage from access to the protected information and that there will be no significant risk of inadvertent disclosure of protected information. Objections to an applicant’s admission shall be raised within 2 days after receipt of the application, although GAO may consider objections raised after that time.
(d) Any violation of the terms of a protective order may result in the imposition of such sanctions as GAO deems appropriate, including referral to appropriate bar associations or other disciplinary bodies and restricting the individual’s practice before GAO.
§ 21.5 PROTEST ISSUES NOT FOR CONSIDERATION.
GAO shall summarily dismiss a protest or specific protest allegations that do not state a valid basis for protest, are untimely (unless considered pursuant to § 21.2(c)), or are not properly before GAO. A protest or specific protest allegations may be dismissed any time sufficient information is obtained by GAO warranting dismissal. Where an entire protest is dismissed, no agency report shall be filed; where specific protest allegations are dismissed, an agency report shall be filed on the remaining allegations. Among the protest bases which shall be dismissed are the following:
(a) Contract administration. The administration of an existing contract is within the discretion of the contracting agency. Disputes between a contractor and the agency are resolved pursuant to the disputes clause of the contract and the Contract Disputes Act of 1978. 41 U.S.C. 601-613.
(b) Small Business Administration issues.
(1) Small business size standards and standard industrial classification. Challenges of established size standards or the size status of particular firms, and challenges of the selected standard industrial classification may be reviewed solely by the Small Business Administration. 15 U.S.C. 637(b)(6).
(2) Small Business Certificate of Competency Program. Any referral made to the Small Business Administration pursuant to sec. 8(b)(7) of the Small Business Act, or any issuance of, or refusal to issue, a certificate of competency under that section will not be reviewed by GAO absent a showing of possible bad faith on the part of government officials or a failure to consider vital information bearing on the firm’s responsibility. 15 U.S.C. 637(b)(7).
(3) Procurements under sec. 8(a) of the Small Business Act. Under that section, since contracts are entered into with the Small Business Administration at the contracting officer’s discretion and on such terms as are agreed upon by the procuring agency and the Small Business Administration, the decision to place or not to place a procurement under the 8(a) program is not subject to review absent a showing of possible bad faith on the part of government officials or that regulations may have been violated. 15 U.S.C. 637(a).
(c) Affirmative determination of responsibility by the contracting officer. Because the determination that a bidder or offeror is capable of performing a contract is based in large measure on subjective judgments which generally are not readily susceptible of reasoned review, an affirmative determination of responsibility will not be reviewed absent a showing of possible bad faith on the part of government officials or that definitive responsibility criteria in the solicitation were not met.
(d) Procurement integrity. For any Federal procurement, GAO will not review an alleged violation of subsections (a), (b), (c), or (d) of sec. 27 of the Office of Federal Procurement Policy Act,
41 U.S.C. 423, as amended by sec. 4304 of the National Defense Authorization Act for Fiscal Year 1996,
Pub. L. 104-106, 110 Stat. 186, February 10, 1996, where the protester failed to report the information it believed constituted evidence of the offense to the Federal agency responsible for the procurement within 14 days after the protester first discovered the possible violation. The provision in paragraph (d) of § 21.5 will apply not later than January 1, 1997.
(e) Protests not filed either in GAO or the contracting agency within the time limits set forth in § 21.2.
(f) Protests which lack a detailed statement of the legal and factual grounds of protest as required by § 21.1(c)(4), or which fail to clearly state legally sufficient grounds of protest as required by § 21.1(f).
(g) Procurements by agencies other than Federal agencies as defined by sec. 3 of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 472. Protests of procurements or proposed procurements by agencies such as the U.S. Postal Service, the Federal Deposit Insurance Corporation, and nonappropriated fund activities are beyond GAO’s bid protest jurisdiction as established in
31 U.S.C. 3551-3556.
(h) Subcontract protests. GAO will not consider a protest of the award or proposed award of a subcontract except where the agency awarding the prime contract has requested in writing that subcontract protests be decided pursuant to § 21.13.
§ 21.6 WITHHOLDING OF AWARD AND SUSPENSION OF CONTRACT PERFORMANCE.
Where a protest is filed with GAO, the contracting agency may be required to withhold award and to suspend contract performance. The requirements for the withholding of award and the suspension of contract performance are set forth in 31 U.S.C. 3553(c) and (d).
§ 21.7 HEARINGS.
(a) At the request of a party or on its own initiative, GAO may conduct a hearing in connection with a protest. The request shall set forth the reasons why a hearing is needed to resolve the protest.
(b) Prior to the hearing, GAO may hold a pre-hearing conference to discuss and resolve matters such as the procedures to be followed, the issues to be considered, and the witnesses who will testify.
(c) Hearings generally will be conducted as soon as practicable after receipt by the parties of the agency report and relevant documents. Although hearings ordinarily will be conducted at GAO in Washington, DC, hearings may, at the discretion of GAO, be conducted at other locations, or by telephone.
(d) All parties participating in the protest shall be invited to attend the hearing. Others may be permitted to attend as observers and may participate as allowed by GAO’s hearing official. In order to prevent the improper disclosure of protected information at the hearing, GAO’s hearing official may restrict attendance during all or part of the proceeding.
(e) Hearings shall normally be recorded and/or transcribed. If a recording and/or transcript is made, any party may obtain copies at its own expense.
(f) If a witness whose attendance has been requested by GAO fails to attend the hearing or fails to answer a relevant question, GAO may draw an inference unfavorable to the party for whom the witness would have testified.
(g) If a hearing is held, no separate comments on the agency report should be submitted unless specifically requested by GAO. Each party shall file with GAO, within 5 days after the hearing was held or as specified by GAO, a single document expressing any comments on both the hearing and agency report, with copies furnished to the other parties. By the due date, if the protester has not filed comments or a written statement requesting that the case be decided on the existing record, GAO shall dismiss the protest.
(h) In post-hearing comments, the parties should reference all testimony and admissions in the hearing record that they consider relevant, providing specific citations to the testimony and admissions referenced.
§ 21.8 REMEDIES.
(a) If GAO determines that a solicitation, cancellation of a solicitation, termination of a contract, proposed award, or award does not comply with statute or regulation, it shall recommend that the contracting agency implement any combination of the following remedies:
(1) Refrain from exercising options under the contract;
(2) Terminate the contract;
(3) Recompete the contract;
(4) Issue a new solicitation;
(5) Award a contract consistent with statute and regulation; or
(6) Such other recommendation(s) as GAO determines necessary to promote compliance.
(b) In determining the appropriate recommendation(s), GAO shall, except as specified in paragraph (c) of this section, consider all circumstances surrounding the procurement or proposed procurement including the seriousness of the procurement deficiency, the degree of prejudice to other parties or to the integrity of the competitive procurement system, the good faith of the parties, the extent of performance, the cost to the government, the urgency of the procurement, and the impact of the recommendation(s) on the contracting agency’s mission.
(c) If the head of the procuring activity determines that performance of the contract notwithstanding a pending protest is in the government’s best interest, GAO shall make its recommendation(s) under paragraph (a) of this section without regard to any cost or disruption from terminating, recompeting, or reawarding the contract.
(d) If GAO determines that a solicitation, proposed award, or award does not comply with statute or regulation, it may recommend that the contracting agency pay the protester the costs of:
(1) Filing and pursuing the protest, including attorneys’ fees and consultant and expert witness fees; and
(2) Bid and proposal preparation.
(e) If the contracting agency decides to take corrective action in response to a protest, GAO may recommend that the agency pay the protester the costs of filing and pursuing the protest, including attorneys’ fees and consultant and expert witness fees. The protester shall file any request that GAO recommend that costs be paid within 15 days after being advised that the contracting agency has decided to take corrective action. The protester shall furnish a copy of its request to the contracting agency, which may file a response within 15 days after receipt of the request, with a copy furnished to the protester.
(f)(1) If GAO recommends that the contracting agency pay the protester the costs of filing and pursuing the protest and/or of bid or proposal preparation, the protester and the agency shall attempt to reach agreement on the amount of costs. The protester shall file its claim for costs, detailing and certifying the time expended and costs incurred, with the contracting agency within 60 days after receipt of GAO’s recommendation that the agency pay the protester its costs. Failure to file the claim within that time may result in forfeiture of the protester’s right to recover its costs.
(2) The contracting agency shall issue a decision on the claim for costs as soon as practicable after the claim is filed. If the protester and the contracting agency cannot reach agreement within a reasonable time, GAO may, upon request of the protester, recommend the amount of costs the agency should pay in accordance with 31 U.S.C. 3554(c). In such cases, GAO may also recommend that the contracting agency pay the protester the costs of pursuing the claim for costs before GAO.
(3) The contracting agency shall notify GAO within 60 days after GAO recommends the amount of costs the agency should pay the protester of the action taken by the agency in response to the recommendation.
§ 21.9 TIME FOR DECISION BY GAO.
(a) GAO shall issue a decision on a protest within 100 days after it is filed.
(b) In protests where GAO uses the express option procedures in § 21.10, GAO shall issue a decision on a protest within 65 days after it is filed.
(c) GAO, to the maximum extent practicable, shall resolve a timely supplemental protest adding one or more new grounds to an existing protest, or a timely amended protest, within the time limit established in paragraph (a) of this section for decision on the initial protest. If a supplemental or an amended protest cannot be resolved within that time limit, GAO may resolve the supplemental or amended protest using the express option procedures in § 21.10.
§ 21.10 EXPRESS OPTIONS, FLEXIBLE ALTERNATIVE PROCEDURES, ACCELERATED SCHEDULES, SUMMARY DECISIONS, AND STATUS AND OTHER CONFERENCES.
(a) At the request of a party or on its own initiative, GAO may decide a protest using an express option.
(b) The express option will be adopted at the discretion of GAO and only in those cases suitable for resolution within 65 days.
(c) Requests for the express option shall be in writing and received in GAO not later than 5 days after the protest or supplemental/amended protest is filed. GAO will promptly notify the parties whether the case will be handled using the express option.
(d) When the express option is used, the following schedule applies instead of those deadlines in § 21.3 and § 21.7:
(1) The contracting agency shall file a complete report with GAO and the parties within 20 days after it receives notice from GAO that the express option will be used.
(2) Comments on the agency report shall be filed with GAO and the other parties within 5 days after receipt of the report.
(3) If a hearing is held, no separate comments on the agency report under paragraph (d)(2) of this section should be submitted unless specifically requested by GAO. Consolidated comments on the agency report and hearing shall be filed within 5 days after the hearing was held or as specified by GAO.
(4) Where circumstances demonstrate that a case is no longer suitable for resolution using the express option, GAO shall establish a new schedule for submissions by the parties.
(e) GAO may use flexible alternative procedures to promptly and fairly resolve a protest, including establishing an accelerated schedule and/or issuing a summary decision.
(f) GAO may conduct status and other conferences by telephone or in person with all parties participating in a protest to promote the expeditious development and resolution of the protest.
§ 21.11 EFFECT OF JUDICIAL PROCEEDINGS.
(a) A protester must immediately advise GAO of any court proceeding which involves the subject matter of a pending protest and must file with GAO copies of all relevant court documents.
(b) GAO will dismiss any protest where the matter involved is the subject of litigation before a court of competent jurisdiction, or where the matter involved has been decided on the merits by a court of competent jurisdiction. GAO may, at the request of a court, issue an advisory opinion on a bid protest issue that is before the court. In these cases, unless a different schedule is established, the times provided in this part for filing the agency report (§ 21.3(c)), filing comments on the report (§ 21.3(i)), holding a hearing and filing comments (§ 21.7), and issuing a decision (§ 21.9) shall apply.
§ 21.12 DISTRIBUTION OF DECISIONS.
(a) Unless it contains protected information, a copy of a decision shall be provided to the protester, any intervenors, the head of the contracting activity responsible for the protested procurement, and the senior procurement executive of each Federal agency involved; a copy shall also be made available to the public. A copy of a decision containing protected information shall be provided only to the contracting agency and to individuals admitted to any protective order issued in the protest. A public version omitting the protected information shall be prepared wherever possible.
(b) Decisions are available from GAO by electronic means.
§ 21.13 NONSTATUTORY PROTESTS.
(a) GAO will consider protests concerning awards of subcontracts by or for a Federal agency, sales by a Federal agency, or procurements by agencies of the government other than Federal agencies as defined in § 21.0(c) if the agency involved has agreed in writing to have protests decided by GAO.
(b) The provisions of this part shall apply to nonstatutory protests except for the provision of § 21.8(d) pertaining to recommendations for the payment of costs. The provision for the withholding of award and the suspension of contract performance, 31 U.S.C. 3553(c) and (d), also does not apply to nonstatutory protests.
§ 21.14 REQUEST FOR RECONSIDERATION.
(a) The protester, any intervenor, and any Federal agency involved in the protest may request reconsideration of a bid protest decision. GAO will not consider a request for reconsideration that does not contain a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law made or information not previously considered.
(b) A request for reconsideration of a bid protest decision shall be filed, with copies to the parties who participated in the protest, not later than 10 days after the basis for reconsideration is known or should have been known, whichever is earlier.
(c) GAO will summarily dismiss any request for reconsideration that fails to state a valid basis for reconsideration or is untimely. The filing of a request for reconsideration does not require the withholding of award and the suspension of contract performance under 31 U.S.C. 3553(c) and (d).
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Call me if you need me, but not until you are familiar with the above.
- Rudy Sutherland
8(a) Serial Entrepreneur & Small Business Evangelist
It is a known fact that Large Firms, or “Bigs”, lobby politicians and government agencies for specific contract opportunities well in advance of their being put out on the street. In the case of “in-motion” solicitation that are about to expire; they may request that certain capability be added to the next-generation version that is unique to their capability. Alternatively, in the case of first-generation solicitations; Bigs may actually help to draft to solicitation instrument.
I have received many requests to better understand the scarce offensive tools that may be used by small businesses “Littles” to question the language of a solicitation that they feel is “apparently” worded for a specific Big and prejudices their ability to compete fairly. The sober truth is, under current rules and regulations; there is very little that can be done. However, the little that can be done just might benefit you.
The laws and regulations that govern contracting with the federal government are designed to ensure that federal procurements are conducted fairly and, whenever possible, in a way that maximizes competition. On occasion, however, bidders or others interested in government procurements may have reason to believe that a contract has been or is about to be awarded improperly or illegally, or that they have been unfairly denied a contract or an opportunity to compete for a contract. A major avenue of relief for those concerned about the propriety of an award has been the General Accounting Office (GAO), which for almost 75 years has provided an objective, independent, and impartial forum for the resolution of disputes concerning the awards of federal contracts.
Although most protests challenge the acceptance or rejection of a bid or proposal and the award or proposed award of a contract, GAO considers protests of defective solicitations (e.g., allegedly restrictive specifications, omission of a required provision, and ambiguous or indefinite evaluation factors), as well as certain other procurement actions (e.g., the cancellation of a solicitation). The termination of a contract may be protested if the protest alleges that the termination was based on improprieties in the award of the contract. 4 C.F.R. § 21.1(a). Where the agency involved has agreed in writing, GAO will consider protests concerning (1) awards of subcontracts by or for a federal agency, (2) sales by a federal agency, and (3) procurement actions by government entities which do not fall within the strict definition of federal agencies in 4 C.F.R. § 21.0(c). 4 C.F.R. § 21.13(a).
4 C.F.R. § 21
There are some matters that cannot be protested to GAO. The most common grounds for dismissal of a protest in whole or in part are set forth in 4 C.F.R. § 21, as illustrated below. The regulations governing the bid protest process appear in Part 21 of Title 4 of the Code of Federal Regulations. Those regulations, which are applicable to new protests filed on or after August 8, 1996, are reprinted below.
It is incumbent, and a competitive advantage, upon all small business to be quite familiar 4 C.F.R. § 21, in its entirety.
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BID PROTEST REGULATIONS
§ 21.0 DEFINITIONS.
(a) Interested party means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.
(b) Intervenor means an awardee if the award has been made or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.
(c) Federal agency means any executive department or independent establishment in the executive branch, including any wholly owned government corporation, and any establishment in the legislative or judicial branch, except the Senate, the House of Representatives, and the Architect of the Capitol and any activities under his direction.
(d) Contracting agency means a Federal agency which has awarded or proposes to award a contract under a protested procurement.
(e) Days are calendar days. In computing any period of time described in Subchapter V, Chapter 35 of Title 31, United States Code, including those described in this part, the day from which the period begins to run is not counted, and when the last day of the period is a Saturday, Sunday, or Federal holiday, the period extends to the next day that is not a Saturday, Sunday, or Federal holiday. Similarly, when the General Accounting Office (GAO), or another Federal agency where a submission is due, is closed for all or part of the last day, the period extends to the next day on which the agency is open.
(f) Adverse agency action is any action or inaction by a contracting agency which is prejudicial to the position taken in a protest filed with the agency, including a decision on the merits of a protest; the opening of bids or receipt of proposals, the award of a contract, or the rejection of a bid despite a pending protest; or contracting agency acquiescence in continued and substantial contract performance.
(g) A document is filed on a particular day when it is received by GAO by 5:30 p.m., eastern time, on that day. A document may be filed by hand delivery, mail, or commercial carrier; parties wishing to file a document by facsimile transmission or other electronic means must ensure that the necessary equipment is operational at GAO’s Procurement Law Control Group.
§ 21.1 FILING A PROTEST.
(a) An interested party may protest a solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services; the cancellation of such a solicitation or other request; an award or proposed award of such a contract; and a termination of such a contract, if the protest alleges that the termination was based on improprieties in the award of the contract.
(b) Protests must be in writing and addressed as follows: General Counsel, General Accounting Office, 441 G Street, NW., Washington, DC 20548, Attention: Procurement Law Control Group.
(c) A protest filed with GAO shall:
(1) Include the name, address, and telephone and facsimile numbers of the protester,
(2) Be signed by the protester or its representative,
(3) Identify the contracting agency and the solicitation and/or contract number,
(4) Set forth a detailed statement of the legal and factual grounds of protest including copies of relevant documents,
(5) Set forth all information establishing that the protester is an interested party for the purpose of filing a protest,
(6) Set forth all information establishing the timeliness of the protest,
(7) Specifically request a ruling by the Comptroller General of the United States, and
(8) State the form of relief requested.
(d) In addition, a protest filed with GAO may:
(1) Request a protective order,
(2) Request specific documents, explaining the relevancy of the documents to the protest grounds, and
(3) Request a hearing, explaining the reasons that a hearing is needed to resolve the protest.
(e) The protester shall furnish a complete copy of the protest, including all attachments, to the individual or location designated by the contracting agency in the solicitation for receipt of protests, or if there is no designation, to the contracting officer. The designated individual or location (or, if applicable, the contracting officer) must receive a complete copy of the protest and all attachments not later than 1 day after the protest is filed with GAO. The protest document must indicate that a complete copy of the protest and all attachments are being furnished within 1 day to the appropriate individual or location.
(f) No formal briefs or other technical forms of pleading or motion are required. Protest submissions should be concise and logically arranged, and should clearly state legally sufficient grounds of protest. Protests of different procurements should be separately filed.
(g) Unless precluded by law, GAO will not withhold material submitted by a protester from any party outside the government. If the protester believes that the protest contains information which should be withheld, a statement advising of this fact must be on the front page of the submission. This information must be identified wherever it appears, and the protester must file a redacted copy of the protest which omits the information with GAO and the agency within 1 day after the filing of its protest with GAO.
(h) Parties who intend to file documents containing classified information should notify GAO in advance to obtain advice regarding procedures for filing and handling the information.
(i) A protest may be dismissed for failure to comply with any of the requirements of this section, except for the items in paragraph (d) of this section. In addition, a protest shall not be dismissed for failure to comply with paragraph (e) of this section where the contracting officer has actual knowledge of the basis of protest, or the agency, in the preparation of its report, was not prejudiced by the protester’s noncompliance.
§ 21.2 TIME FOR FILING.
(a)(1) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation.
(2) Protests other than those covered by paragraph (a)(1) of this section shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.
(3) If a timely agency-level protest was previously filed, any subsequent protest to GAO filed within 10 days of actual or constructive knowledge of initial adverse agency action will be considered, provided the agency-level protest was filed in accordance with paragraphs (a)(1) and (a)(2) of this section, unless the contracting agency imposes a more stringent time for filing, in which case the agency’s time for filing will control. In cases where an alleged impropriety in a solicitation is timely protested to a contracting agency, any subsequent protest to GAO will be considered timely if filed within the 10-day period provided by this paragraph, even if filed after bid opening or the closing time for receipt of proposals.
(b) Protests untimely on their face may be dismissed. A protester shall include in its protest all information establishing the timeliness of the protest; a protester will not be permitted to introduce for the first time in a request for reconsideration information necessary to establish that the protest was timely.
(c) GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest.
§ 21.3 NOTICE OF PROTEST, SUBMISSION OF AGENCY REPORT, AND TIME FOR FILING OF COMMENTS ON REPORT.
(a) GAO shall notify the contracting agency by telephone within 1 day after the filing of a protest, and, unless the protest is dismissed under this part, shall promptly send a written confirmation to the contracting agency and an acknowledgment to the protester. The contracting agency shall immediately give notice of the protest to the contractor if award has been made or, if no award has been made, to all bidders or offerors who appear to have a reasonable prospect of receiving an award. The contracting agency shall furnish copies of the protest submissions to those parties, except where disclosure of the information is prohibited by law, with instructions to communicate further directly with GAO. All parties shall furnish copies of all protest communications to the contracting agency and to other participating parties. All protest communications shall be sent by means reasonably calculated to effect expeditious delivery.
(b) A contracting agency or intervenor which believes that the protest or specific protest allegations should be dismissed before submission of an agency report should file a request for dismissal as soon as practicable.
(c) The contracting agency shall file a report on the protest with GAO within 30 days after the telephone notice of the protest from GAO. The report provided to the parties need not contain documents which the agency has previously furnished or otherwise made available to the parties in response to the protest. At least 5 days prior to the filing of the report, in cases in which the protester has filed a request for specific documents, the agency shall provide to all parties and GAO a list of those documents, or portions of documents, which the agency has released to the protester or intends to produce in its report, and of the documents which the agency intends to withhold from the protester and the reasons for the proposed withholding. Any objection to the scope of the agency’s proposed disclosure or nondisclosure of documents must be filed with GAO and the other parties within 2 days of receipt of this list.
(d) The report shall include the contracting officer’s statement of the relevant facts, including a best estimate of the contract value, a memorandum of law, and a list and a copy of all relevant documents, or portions of documents, not previously produced, including, as appropriate: the protest; the bid or proposal submitted by the protester; the bid or proposal of the firm which is being considered for award, or whose bid or proposal is being protested; all evaluation documents; the solicitation, including the specifications; the abstract of bids or offers; and any other relevant documents. In appropriate cases, the contracting agency may request that the protester produce relevant documents, or portions of documents, that are not in the agency’s possession.
(e) Subject to any protective order issued in the protest pursuant to § 21.4, the contracting agency shall simultaneously furnish a copy of the report to the protester and any intervenors. The copy of the report filed with GAO shall list the parties who have been furnished copies of the report. Where a protester does not have counsel admitted to a protective order and documents are withheld from the protester in accordance with this part, the agency shall provide documents adequate to inform the protester of the basis of the agency’s position.
(f) The contracting agency may request an extension of time for the submission of the list of documents to be provided by the agency pursuant to § 21.3(c) or for the submission of the agency report. Extensions will be granted on a case-by-case basis.
(g) The protester may request additional documents after receipt of the agency report when their existence or relevance first becomes evident. Except when authorized by GAO, any request for additional documents must be filed with GAO and the contracting agency not later than 2 days after their existence or relevance is known or should have been known, whichever is earlier. The contracting agency shall provide the requested documents, or portions of documents, and a list to GAO and the other parties within 2 days or explain why it is not required to produce the documents.
(h) Upon the request of a party, GAO will decide whether the contracting agency must provide any withheld documents, or portions of documents, and whether this should be done under a protective order. When withheld documents are provided, the protester’s comments on the agency report shall be filed within the original comment filing period unless GAO determines that an extension is appropriate.
(i) Comments on the agency report shall be filed with GAO within 10 days after receipt of the report, with a copy provided to the contracting agency and other participating parties. The protest shall be dismissed unless the protester files comments or a written statement requesting that the case be decided on the existing record, or requests an extension of time within the 10-day period. Unless otherwise advised by the protester, GAO will assume the protester received the agency report by the due date specified in the acknowledgment of protest furnished by GAO. Upon a showing that the specific circumstances of a protest require a period longer than 10 days for the submission of comments, GAO will set a new date for the submission of comments. Extensions will be granted on a case-by-case basis.
(j) GAO may request or permit the submission of additional statements by the parties and by other parties not participating in the protest as may be necessary for the fair resolution of the protest. The agency and other parties shall not submit any additional statements unless the statements are specifically requested by GAO or submitted after permission has been granted by GAO.
§ 21.4 PROTECTIVE ORDERS.
(a) At the request of a party or on its own initiative, GAO may issue a protective order controlling the treatment of protected information. Such information may include proprietary, confidential, or source-selection-sensitive material, as well as other information the release of which could result in a competitive advantage to one or more firms. The protective order shall establish procedures for application for access to protected information, identification and safeguarding of that information, and submission of redacted copies of documents omitting protected information. Because a protective order serves to facilitate the pursuit of a protest by a protester through counsel, it is the responsibility of protester’s counsel to request that a protective order be issued and to submit timely applications for admission under that order.
(b) If no protective order has been issued, the agency may withhold from the parties those portions of its report which would ordinarily be subject to a protective order. GAO will review in camera all information not released to the parties.
(c) After a protective order has been issued, counsel or consultants retained by counsel appearing on behalf of a party may apply for admission under the order by submitting an application to GAO, with copies furnished simultaneously to all parties. The application shall establish that the applicant is not involved in competitive decision-making for any firm that could gain a competitive advantage from access to the protected information and that there will be no significant risk of inadvertent disclosure of protected information. Objections to an applicant’s admission shall be raised within 2 days after receipt of the application, although GAO may consider objections raised after that time.
(d) Any violation of the terms of a protective order may result in the imposition of such sanctions as GAO deems appropriate, including referral to appropriate bar associations or other disciplinary bodies and restricting the individual’s practice before GAO.
§ 21.5 PROTEST ISSUES NOT FOR CONSIDERATION.
GAO shall summarily dismiss a protest or specific protest allegations that do not state a valid basis for protest, are untimely (unless considered pursuant to § 21.2(c)), or are not properly before GAO. A protest or specific protest allegations may be dismissed any time sufficient information is obtained by GAO warranting dismissal. Where an entire protest is dismissed, no agency report shall be filed; where specific protest allegations are dismissed, an agency report shall be filed on the remaining allegations. Among the protest bases which shall be dismissed are the following:
(a) Contract administration. The administration of an existing contract is within the discretion of the contracting agency. Disputes between a contractor and the agency are resolved pursuant to the disputes clause of the contract and the Contract Disputes Act of 1978. 41 U.S.C. 601-613.
(b) Small Business Administration issues.
(1) Small business size standards and standard industrial classification. Challenges of established size standards or the size status of particular firms, and challenges of the selected standard industrial classification may be reviewed solely by the Small Business Administration. 15 U.S.C. 637(b)(6).
(2) Small Business Certificate of Competency Program. Any referral made to the Small Business Administration pursuant to sec. 8(b)(7) of the Small Business Act, or any issuance of, or refusal to issue, a certificate of competency under that section will not be reviewed by GAO absent a showing of possible bad faith on the part of government officials or a failure to consider vital information bearing on the firm’s responsibility. 15 U.S.C. 637(b)(7).
(3) Procurements under sec. 8(a) of the Small Business Act. Under that section, since contracts are entered into with the Small Business Administration at the contracting officer’s discretion and on such terms as are agreed upon by the procuring agency and the Small Business Administration, the decision to place or not to place a procurement under the 8(a) program is not subject to review absent a showing of possible bad faith on the part of government officials or that regulations may have been violated. 15 U.S.C. 637(a).
(c) Affirmative determination of responsibility by the contracting officer. Because the determination that a bidder or offeror is capable of performing a contract is based in large measure on subjective judgments which generally are not readily susceptible of reasoned review, an affirmative determination of responsibility will not be reviewed absent a showing of possible bad faith on the part of government officials or that definitive responsibility criteria in the solicitation were not met.
(d) Procurement integrity. For any Federal procurement, GAO will not review an alleged violation of subsections (a), (b), (c), or (d) of sec. 27 of the Office of Federal Procurement Policy Act,
41 U.S.C. 423, as amended by sec. 4304 of the National Defense Authorization Act for Fiscal Year 1996,
Pub. L. 104-106, 110 Stat. 186, February 10, 1996, where the protester failed to report the information it believed constituted evidence of the offense to the Federal agency responsible for the procurement within 14 days after the protester first discovered the possible violation. The provision in paragraph (d) of § 21.5 will apply not later than January 1, 1997.
(e) Protests not filed either in GAO or the contracting agency within the time limits set forth in § 21.2.
(f) Protests which lack a detailed statement of the legal and factual grounds of protest as required by § 21.1(c)(4), or which fail to clearly state legally sufficient grounds of protest as required by § 21.1(f).
(g) Procurements by agencies other than Federal agencies as defined by sec. 3 of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 472. Protests of procurements or proposed procurements by agencies such as the U.S. Postal Service, the Federal Deposit Insurance Corporation, and nonappropriated fund activities are beyond GAO’s bid protest jurisdiction as established in
31 U.S.C. 3551-3556.
(h) Subcontract protests. GAO will not consider a protest of the award or proposed award of a subcontract except where the agency awarding the prime contract has requested in writing that subcontract protests be decided pursuant to § 21.13.
§ 21.6 WITHHOLDING OF AWARD AND SUSPENSION OF CONTRACT PERFORMANCE.
Where a protest is filed with GAO, the contracting agency may be required to withhold award and to suspend contract performance. The requirements for the withholding of award and the suspension of contract performance are set forth in 31 U.S.C. 3553(c) and (d).
§ 21.7 HEARINGS.
(a) At the request of a party or on its own initiative, GAO may conduct a hearing in connection with a protest. The request shall set forth the reasons why a hearing is needed to resolve the protest.
(b) Prior to the hearing, GAO may hold a pre-hearing conference to discuss and resolve matters such as the procedures to be followed, the issues to be considered, and the witnesses who will testify.
(c) Hearings generally will be conducted as soon as practicable after receipt by the parties of the agency report and relevant documents. Although hearings ordinarily will be conducted at GAO in Washington, DC, hearings may, at the discretion of GAO, be conducted at other locations, or by telephone.
(d) All parties participating in the protest shall be invited to attend the hearing. Others may be permitted to attend as observers and may participate as allowed by GAO’s hearing official. In order to prevent the improper disclosure of protected information at the hearing, GAO’s hearing official may restrict attendance during all or part of the proceeding.
(e) Hearings shall normally be recorded and/or transcribed. If a recording and/or transcript is made, any party may obtain copies at its own expense.
(f) If a witness whose attendance has been requested by GAO fails to attend the hearing or fails to answer a relevant question, GAO may draw an inference unfavorable to the party for whom the witness would have testified.
(g) If a hearing is held, no separate comments on the agency report should be submitted unless specifically requested by GAO. Each party shall file with GAO, within 5 days after the hearing was held or as specified by GAO, a single document expressing any comments on both the hearing and agency report, with copies furnished to the other parties. By the due date, if the protester has not filed comments or a written statement requesting that the case be decided on the existing record, GAO shall dismiss the protest.
(h) In post-hearing comments, the parties should reference all testimony and admissions in the hearing record that they consider relevant, providing specific citations to the testimony and admissions referenced.
§ 21.8 REMEDIES.
(a) If GAO determines that a solicitation, cancellation of a solicitation, termination of a contract, proposed award, or award does not comply with statute or regulation, it shall recommend that the contracting agency implement any combination of the following remedies:
(1) Refrain from exercising options under the contract;
(2) Terminate the contract;
(3) Recompete the contract;
(4) Issue a new solicitation;
(5) Award a contract consistent with statute and regulation; or
(6) Such other recommendation(s) as GAO determines necessary to promote compliance.
(b) In determining the appropriate recommendation(s), GAO shall, except as specified in paragraph (c) of this section, consider all circumstances surrounding the procurement or proposed procurement including the seriousness of the procurement deficiency, the degree of prejudice to other parties or to the integrity of the competitive procurement system, the good faith of the parties, the extent of performance, the cost to the government, the urgency of the procurement, and the impact of the recommendation(s) on the contracting agency’s mission.
(c) If the head of the procuring activity determines that performance of the contract notwithstanding a pending protest is in the government’s best interest, GAO shall make its recommendation(s) under paragraph (a) of this section without regard to any cost or disruption from terminating, recompeting, or reawarding the contract.
(d) If GAO determines that a solicitation, proposed award, or award does not comply with statute or regulation, it may recommend that the contracting agency pay the protester the costs of:
(1) Filing and pursuing the protest, including attorneys’ fees and consultant and expert witness fees; and
(2) Bid and proposal preparation.
(e) If the contracting agency decides to take corrective action in response to a protest, GAO may recommend that the agency pay the protester the costs of filing and pursuing the protest, including attorneys’ fees and consultant and expert witness fees. The protester shall file any request that GAO recommend that costs be paid within 15 days after being advised that the contracting agency has decided to take corrective action. The protester shall furnish a copy of its request to the contracting agency, which may file a response within 15 days after receipt of the request, with a copy furnished to the protester.
(f)(1) If GAO recommends that the contracting agency pay the protester the costs of filing and pursuing the protest and/or of bid or proposal preparation, the protester and the agency shall attempt to reach agreement on the amount of costs. The protester shall file its claim for costs, detailing and certifying the time expended and costs incurred, with the contracting agency within 60 days after receipt of GAO’s recommendation that the agency pay the protester its costs. Failure to file the claim within that time may result in forfeiture of the protester’s right to recover its costs.
(2) The contracting agency shall issue a decision on the claim for costs as soon as practicable after the claim is filed. If the protester and the contracting agency cannot reach agreement within a reasonable time, GAO may, upon request of the protester, recommend the amount of costs the agency should pay in accordance with 31 U.S.C. 3554(c). In such cases, GAO may also recommend that the contracting agency pay the protester the costs of pursuing the claim for costs before GAO.
(3) The contracting agency shall notify GAO within 60 days after GAO recommends the amount of costs the agency should pay the protester of the action taken by the agency in response to the recommendation.
§ 21.9 TIME FOR DECISION BY GAO.
(a) GAO shall issue a decision on a protest within 100 days after it is filed.
(b) In protests where GAO uses the express option procedures in § 21.10, GAO shall issue a decision on a protest within 65 days after it is filed.
(c) GAO, to the maximum extent practicable, shall resolve a timely supplemental protest adding one or more new grounds to an existing protest, or a timely amended protest, within the time limit established in paragraph (a) of this section for decision on the initial protest. If a supplemental or an amended protest cannot be resolved within that time limit, GAO may resolve the supplemental or amended protest using the express option procedures in § 21.10.
§ 21.10 EXPRESS OPTIONS, FLEXIBLE ALTERNATIVE PROCEDURES, ACCELERATED SCHEDULES, SUMMARY DECISIONS, AND STATUS AND OTHER CONFERENCES.
(a) At the request of a party or on its own initiative, GAO may decide a protest using an express option.
(b) The express option will be adopted at the discretion of GAO and only in those cases suitable for resolution within 65 days.
(c) Requests for the express option shall be in writing and received in GAO not later than 5 days after the protest or supplemental/amended protest is filed. GAO will promptly notify the parties whether the case will be handled using the express option.
(d) When the express option is used, the following schedule applies instead of those deadlines in § 21.3 and § 21.7:
(1) The contracting agency shall file a complete report with GAO and the parties within 20 days after it receives notice from GAO that the express option will be used.
(2) Comments on the agency report shall be filed with GAO and the other parties within 5 days after receipt of the report.
(3) If a hearing is held, no separate comments on the agency report under paragraph (d)(2) of this section should be submitted unless specifically requested by GAO. Consolidated comments on the agency report and hearing shall be filed within 5 days after the hearing was held or as specified by GAO.
(4) Where circumstances demonstrate that a case is no longer suitable for resolution using the express option, GAO shall establish a new schedule for submissions by the parties.
(e) GAO may use flexible alternative procedures to promptly and fairly resolve a protest, including establishing an accelerated schedule and/or issuing a summary decision.
(f) GAO may conduct status and other conferences by telephone or in person with all parties participating in a protest to promote the expeditious development and resolution of the protest.
§ 21.11 EFFECT OF JUDICIAL PROCEEDINGS.
(a) A protester must immediately advise GAO of any court proceeding which involves the subject matter of a pending protest and must file with GAO copies of all relevant court documents.
(b) GAO will dismiss any protest where the matter involved is the subject of litigation before a court of competent jurisdiction, or where the matter involved has been decided on the merits by a court of competent jurisdiction. GAO may, at the request of a court, issue an advisory opinion on a bid protest issue that is before the court. In these cases, unless a different schedule is established, the times provided in this part for filing the agency report (§ 21.3(c)), filing comments on the report (§ 21.3(i)), holding a hearing and filing comments (§ 21.7), and issuing a decision (§ 21.9) shall apply.
§ 21.12 DISTRIBUTION OF DECISIONS.
(a) Unless it contains protected information, a copy of a decision shall be provided to the protester, any intervenors, the head of the contracting activity responsible for the protested procurement, and the senior procurement executive of each Federal agency involved; a copy shall also be made available to the public. A copy of a decision containing protected information shall be provided only to the contracting agency and to individuals admitted to any protective order issued in the protest. A public version omitting the protected information shall be prepared wherever possible.
(b) Decisions are available from GAO by electronic means.
§ 21.13 NONSTATUTORY PROTESTS.
(a) GAO will consider protests concerning awards of subcontracts by or for a Federal agency, sales by a Federal agency, or procurements by agencies of the government other than Federal agencies as defined in § 21.0(c) if the agency involved has agreed in writing to have protests decided by GAO.
(b) The provisions of this part shall apply to nonstatutory protests except for the provision of § 21.8(d) pertaining to recommendations for the payment of costs. The provision for the withholding of award and the suspension of contract performance, 31 U.S.C. 3553(c) and (d), also does not apply to nonstatutory protests.
§ 21.14 REQUEST FOR RECONSIDERATION.
(a) The protester, any intervenor, and any Federal agency involved in the protest may request reconsideration of a bid protest decision. GAO will not consider a request for reconsideration that does not contain a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law made or information not previously considered.
(b) A request for reconsideration of a bid protest decision shall be filed, with copies to the parties who participated in the protest, not later than 10 days after the basis for reconsideration is known or should have been known, whichever is earlier.
(c) GAO will summarily dismiss any request for reconsideration that fails to state a valid basis for reconsideration or is untimely. The filing of a request for reconsideration does not require the withholding of award and the suspension of contract performance under 31 U.S.C. 3553(c) and (d).
The following are the fundamentals of Small Business Enterprise with focus on the State of Texas, the epicenter of our political activity for the next federal, state, and local election cycles. This post will establish abaseline for a series of posts to follow that will be geared around developing a framework for 8-PACs’ go-forward political posture and rationale.
Small Business and Politics
Small business people are voters. The power of over 26 million potential voters resides in an enormous small business community of intelligent people. Texas has over 1.5 million small businesses. Even the smallest enterprise has at least one owner. Many include partners, shareholders, spouses, and other family members, all of whom depend on small businesses for a living. In Texas, almost 5 million employees and their families depend on small business jobs. Many are as concerned as their employers about ill-conceived laws and unnecessary or inappropriate government regulations, paperwork, inspections, taxes, and fees.
Small businesses and our employees form a true cross section of the US citizenry, representing every race, creed, age, national origin, political persuasion, and financial status.
Small Business and Society
Small business is the glue that binds capitalism with ethics. Small business integrates the moral and economic values that make capitalism work in a socially acceptable way in modern society. Small business owners form the backbone of their local communities: they work in their businesses; we live near our businesses; we participate in community activities; we support local charities; we share community concerns about the environment, crime, etc. Most of us maintain a high level of business ethics in the course of providing jobs to our employees, and goods and services to our customers.
Forming a small business provided many of us with our only opportunity to rise above the poverty level. No government programs have matched the success of small business in accomplishing this objective.
Small businesses are also the most efficient and effective training ground for young people and unskilled workers. Government job training programs cannot replace this diversified on-the-job experience.
As it pertains to Texas…
Entrepreneurs, innovators, and small businesses are key players in the economy of Texas. We make up most of the employer firms in the state, and our contribution is indispensable. Our diverse composition and the spectrum of opportunities we offer are captured in this Small Business Profile, using the most current federal data available.
Number of Businesses
The state had an estimated total of 1,988,900 small businesses based on the most recent data. Firms with employees numbered 412,520 in 2005, of which an estimated 98.7 percent or 407,157 were small firms (fewer than 500 employees). Self-employment (including incorporated) decreased by 4.8 percent, from 1,200,306 in 2004 to 1,142,150 in 2005. In 2004, non-employer firms increased by 5.4 percent and numbered 1,581,734. (Sources: U.S. Dept. of Labor, Employment and Training Administration; U.S. Dept. of Commerce, Census Bureau; U.S. Dept. of Labor, Bureau of Labor Statistics.)
Women-Owned Firms
Firms owned by women increased 23 percent between 1997 and 2002, from 381,453 to 468,705; they represented 27.0 percent of the state’s total businesses in 2002. These firms (with and without paid employees) generated $65.8 billion in revenues in 2002. Of the total number of women-owned firms, 13.5 percent or 63,312 firms were employer firms. In 2005, self-employed women totaled 358,961, a decrease of 8.6 percent from 2004, and they represented 31.4 percent of self-employed persons in the state. (Sources: U.S. Dept. of Labor, Bureau of Labor Statistics; U.S. Dept. of Commerce, Census Bureau.)
Minority-Owned Firms
In 2002, Asian-owned firms totaled 77,980 and generated $20.6 billion in receipts; Black- owned firms numbered 88,769 and generated $6.4 billion in receipts; and Hispanic-owned businesses totaled 319,339 and created $42.2 billion in receipts. American Indian- and Alaska Native-owned firms numbered 16,204, and they generated
$3.1 billion in receipts; the number of Native Hawaiian- and other Pacific Islander-owned firms was 1,391, and they generated $78 million in receipts in 2002. (Source: U.S. Dept. of Commerce, Census Bureau.)
All You Wanted to Know About Sonia Sotomayor 
(Click Above to Download)
The U.S. Senate Judiciary Committee has made Judge Sonia Sotomayor’s questionnaire available.
The questionnaire was returned just 9 days after Sotomayor was nominated to the Supreme Court by President Obama. “For context, this is the swiftest questionnaire completion in recent history. Based on the time between a nominee’s designation and when they returned their questionnaire, it took Chief Justice Roberts 13 days, Justice Ginsburg 15 days and Justice Alito 30 days to complete their questionnaires.”
Of course, the speed in returning the questionnaire is no mistake. The White House wants to pressure on the Senate to act swiftly on the nomination as well. Reading her questionnaire carefully, you will notice that Judge Sonia Sotomayor was contacted by the White House regarding a Supreme Court seat days before Justice David Souter announced his retirement.
The White House first called her on April 27 but Souter did not announce his intention to resign until May 1.
Since posting the below facts in regards to the plight of Black-male owned business attempting to do business in leadership disciplines with the Houston Metropolitan (METRO) Transit Authority, we have received many direct responses from various constituents and constituency representatives of women-owned, veteran owned, and majority owned businesses. Some outside conversators offering discrete, but subtle support; while others offer heated disdain for the implicative notion of the stated facts.
We will honor our long-standing policy of discretion; however, we do feel it necessary to ask those who feel outrage at our proxy statements to take a deep breath and calm down.
The numbers don’t lie.
But let’s distill it down even further; 8-PAC has a history of siding with the tenets of capitalism over socialistic banter at every turn. Our carefully selected posts and editorials are here for all to see. From the establishment of the 8-PAC discussion group to the creation and production of the Wilfong Hour; all along, our mantra has been the connection of small business through conversation.
However, we find it interesting that some within our ranks would now question our motive. It seems that as long as we only discuss the general categories of general small business, women, and veterans all is fine; however, when we peel back the onion further to expose a disproportionally affected group – the walk-back begins.
Well, let me clear the noise; our motive is purely centered on profit. We are a firebrand for those firms that are functionally operating on the brink of bankruptcy to become extraordinary candidates to drive future prosperity… they just happen to be Black-male owned businesses.
Is that cool?
Where the numbers show that veterans and woman are strategically being buoyed to containment, marginalization, and ultimately dismissed to the nuisance; we are on record with support to the affirmative. Now, we need reciprocity for your brethren in the cause of level capitalism for all.
General George Patton once said, “Opportunities do not come to those who wait. They are captured by those who attack” – This is the New Normal for us and a warning to those who ere to political motives.
Like it or not, Capitalists come in all shades, hues, and colors – but the game goes to those who know best how to make a dollar out of 15 cents. To quote from my Chicago roots, “that’s the set we rep… what you holdin’”?
###
- Rudy Sutherland, 8-PAC Editor
8(a) Serial Entrepreneur & Small Business Evangelist
UPDATE: on CALL TO ACTION: Houston METROPOLITAN TRANSIT AUTHORITY by the Numbers
May 22, 2009
On yesterday, I summarily spoke before the Houston METRO board of directors in regards to the undeniable evidence of its anemic procurement activity with local, Black-male owned businesses. The goal was to find out if, in light of this evidence, President Frank Wilson would adjust his rhetoric to bring it more in line with the reality established by the numbers. The crux of my statement was as follows:
“As a member and advocate for the race-gender group of Black-male owned small business, I speak for us in the aggregate when I say that, based upon the preponderance of the evidence; Black-male owned small businesses are currently, and have been historically, adversely affected by the manner and methods by which procurement is conducted by the Authority.
Empirical predicate can be found in the reports and records of the Authority itself, and those of the Federal Transit Administration, which clearly establish that over the last 10 YEARS, Zero percent of the more than ~ $500M in contract spend by the Authority has gone to Black-male owned small business in the form of Prime Contracts, in particular Professional Services. This has occurred despite the fact that there is an ample pool of ready, willing, and able Black-Male owned businesses in our community that provide Professional Services within the verticals historically and currently procured by the Authority.
In light of the aforementioned, I pose the following question to the Authority Board of Directors and METRO President, Mr. Frank Wilson in particular; “Mr. President, how does this fact reconcile with your statement at the last Board meeting that METRO has a proud record of issuing PROFESSIONAL SERVICES Prime-Contracts to Black-Male owned businesses?”
Please advise.”
The response to this question came, not from the President, but from the Chairman, Mr. David S.Wolff (pictured above). His was a request for offline review of the facts with senior management personnel, Mr. Paul L. Como, Vice President – Procurement & Materials; and, Ms. Deborah A. Richard, Vice President – Administrative Services.
Stay tuned for the outcome of those discussions.
###
- Rudy Sutherland, 8-PAC Editor
8(a) Serial Entrepreneur & Small Business Evangelist
“[Houston] METRO has a proud record of issuing PROFESSIONAL SERVICES Prime-Contracts to Black-Male owned businesses.” – Frank Wilson, President of the Houston Metropolitan Transit Authority
BACK-STORY: As many of you are aware, I went before the Board of Directors of the Houston Metropolitan (METRO) Transit Authority to voice my concerns, and those shared by others in our group, regarding ineffectiveness of the agency’s Race-Neutral approach and overall Procurement Policy {Ref: http://tinyurl.com/cejbm5 }. Specifically, our contention was that our research of current information indicates that, over the last 10 years, an average of less than 1% of PROFESSIONAL SERVICES Prime Contracting opportunities have been awarded to Black-Male owned businesses located and registered in the Houston Metropolitan area.
Let me emphasize that there is an ample pool of ready, willing, and able Black-Male owned businesses that provide Professional Services within the verticals historically and currently procured by Houston METRO.
However, when this claim was made to the METRO Board of Directors, including Chairman, Mr. David S. Wolff; Vice Chairman, Mr. Gerald B. Smith; and President Mr. Frank Wilson; Mr. Wilson stated in defense of METRO’s accomplishments to date that:
“METRO has a proud record of issuing PROFESSIONAL SERVICES Prime-Contracts to Black-Male owned businesses.”
On that same day, I wrote that detail statistics and a formal report from the FTA will be posted regarding this story within 30 days; and that further analysis would follow. What follows is the detail statistics from METRO’s own records as verified against FTA records – the FTA report will be provided in a separate post.
NOTE: I am no bleeding-heart liberal; I am, and always have been, an unapologetic capitalist. However, the numbers don’t lie. Moreover, our research shows that the following numbers are correlative to other transit authorities across the country. We are therefore enlisting our colleagues in the Veteran and Woman – owned business communities to lock arms with the Black-Male Owned business community as we attempt to level the playing field between this group and Large-Cap firms who dominate the PPROFESSIONAL SERVICES arena in the Transit-Industry Vertical; starting with Houston METRO.
###
FRAMEWORK: Houston METRO does not maintain records prior to 2004; therefore, for the purpose of consistency the scope of our analysis is 2004 thru 2008. Houston METRO reports bi-annually to the FTA in regards to such statistics; June 1 and December 1. Metro has maintained a cumulative Race-Neutral goal of awarding 21% of its contracts to Minority and Non-Minority Woman-owned businesses from 2004 thru 2008.
|
2004 |
||
| Total Contracts Awarded | ||
| Jun 1 | $ 31,443,874 | |
| Dec 1 | $ 27,562,670 | |
| Total | $ 59,006,544 | |
| Black Male-Owned Business | ||
| Percentage | Prime |
0% |
|
2005 |
||
| Total Contracts Awarded | ||
| Jun 1 | $ 13,204,244 | |
| Dec 1 | $ 75,305,997 | |
| Total | $ 88,510,241 | |
| Black Male-Owned Business | ||
| Percentage | Prime |
0% |
|
2006 |
||
| Total Contracts Awarded | ||
| Jun 1 | $ 15,581,382 | |
| Dec 1 | $ 70,605,348 | |
| Total | $ 86,186,730 | |
| Black Male-Owned Business | ||
| Percentage | Prime |
0% |
|
2007 |
||
| Total Contracts Awarded | ||
| Jun 1 | $ 5,467,720 | |
| Dec 1 | $ 78,065,750 | |
| Total | $ 83,533,470 | |
| Black Male-Owned Business | ||
| Percentage | Prime |
0% |
|
2008 |
||
| Total Contracts Awarded | ||
| Jun 1 | $ 67,527,000 | |
| Dec 1 | $ 2,835,000 | |
| Total | $ 70,362,000 | |
| Black Male-Owned Business | ||
| Percentage | Prime |
0% |
| Five-year Total | ||
| Total Contracts Awarded | $ 387,598,985 | |
| Black Male-Owned Business | ||
| Percentage | Prime |
0% |
As always, if you are apprehensive in sharing your thoughts and concerns as a comment on the blog, please email me in confidence @ 8vsb@aljucar.com.
Rudy Sutherland, 8-PAC Editor
8(a) Serial Entrepreneur & Small Business Evangelist
SHOW US THE MONEY! Committee Approves Jobs Creating Small Business Assistance Bill
(WASHINGTON, D.C.) —Lawmakers with the House Committee on Small Business today approved bipartisan legislation modernizing key job-creating entrepreneurial development programs within the Small Business Administration (SBA). Members of the Committee said the bill, H.R. 2352, the “Job Creation through Entrepreneurship Act of 2009”, represents a major effort to give established small businesses and entrepreneurial start-ups the needed tools and resources to thrive, create jobs and drive economic growth.
“Challenging times in previous downturns produced some of our most innovative entrepreneurs who opened new markets and created the jobs that returned us to prosperity,” said Rep. Nydia M. Velázquez (D-NY), the Chairwoman of the House Small Business Committee. “These programs can make the difference for today’s new wave of innovative entrepreneurs to succeed and create the jobs we need to bring our economy back on track.”
The legislative package, comprised of seven bipartisan bills, marks the first overhaul of the SBA’s entrepreneurial development programs in a decade. The measure expands proven programs like Small Business Development Centers (SBDCs), Women’s Business Centers (WBCs) and the Service Corps of Retired Executives (SCORE) and improves cross-program coordination for maximum benefit. The bill also creates new support services for veteran-owned and Native American-owned small businesses. In addition, new online learning programs are included in the bill to help entrepreneurs in rural regions and underserved communities. In addition, the bill creates a grant program for SBDCs specifically designed to assist small firms in securing capital and credit such as the $21 billion in new small business lending generated under the American Recovery and Reinvestment Act. The bipartisan measure was sponsored by Rep. Heath Shuler, (D-NC), the Chairman of the Committee’s Subcommittee on Rural Development, Entrepreneurship and Trade.
“As a small business owner myself, I know these programs provide the counseling and technical resources that can make the difference for an entrepreneur trying to get off of the ground,” said Shuler. “Businesses that take advantage of these resources are twice as likely to succeed. Entrepreneurial development programs mean more successful small businesses, which translates into more jobs.”
Rep. Ann Kirkpatrick (D-AZ) authored the measures to increase opportunities for Native American small business owners. She said that by establishing an Office of Native American Affairs, the legislation would promote entrepreneurship within that community.
“Small businesses are the engine of our economy, and we need to help them lift us out of this economic downturn,” said Kirkpatrick. “By expanding assistance to entrepreneurs in tribal areas, we are going to create jobs and get folks back to work where they need new economic opportunities most.”
Economists estimate that every dollar invested in these initiatives returns $2.87 to the economy. Velázquez touted the job creating potential of the expanded programs and new initiatives in the bill, saying in 2008 alone the SBA’s entrepreneurial development programs helped generate 73,000 new jobs and infused $7.2 billion into the economy.
“With such a strong return on taxpayers’ investment, bolstering entrepreneurial development programs not only helps our small businesses succeed, but it is a wise investment for taxpayers,” Chairwoman Velázquez said. “America’s small businesses are ready to get back to work, and I look forward to working with my colleagues on both sides of the aisle to pass this important bipartisan legislation to help them do so.”
The “Job Creation through Entrepreneurship Act of 2009”, is comprised of seven measures that were approved by the Committee’s Subcommittee on Rural Development, Entrepreneurship and Trade on April 30. Those bills, sponsored by five Republicans and two Democrats, include:
- H.R. 1803, the Veterans Business Center Act of 2009, introduced by Rep. Glenn Nye (D-VA)
- H.R. 1834, The Native American Business Development Enhancement Act of 2009, introduced by Rep. Ann Kirkpatrick (D-AZ)
- H.R. 1807, the Educating Entrepreneurs through Today’s Technology Act, introduced by Rep. Glenn Thompson (R-PA)
- H.R. 1838, the Women’s Business Center Act, introduced by Rep. Mary Fallin (R-OK)
- H.R. 1839, the SCORE Act, introduced by Rep. Vern Buchanan (R-FL)
- H.R. 1842, the Expanding Entrepreneurship Act of 2009, introduced by Rep. Blaine Luetkemeyer (R-MO)
- H.R. 1845, The Small Business Development Center Modernization Act of 2009, introduced by Rep. Aaron Schock (R-IL)
Prior to approving H.R. 2352, the Committee passed three amendments to the measure. The first, authored by Rep. Kathy Dahlkemper (D-PA), would enable National Guard members and reservists to utilize the Veteran Business Center services included in the measure. The second amendment, offered by Rep. Steve King (R-IA), would establish a peer-to-peer technical assistance initiative as part of a distance learning program. Finally, the Committee agreed to an amendment by Rep. Debbie Halvorson (D-IL). Halvorson’s amendment makes surviving spouses of veterans eligible for the veteran business programs.
All three amendments were approved on voice vote, after which the Committee passed the bill on voice vote. H.R. 2352 will now need to be considered by the entire U.S. House.
# # #
David Woroner, of Survival Consultants International,LLC. in the West Palm Beach, Florida Area posted the following question to the 8-PAC Small Business Discussion Group:
“Can someone explain to me, why, if I have spent a lot of money, time effort, energy and patenting a “specific” technology, that every time I approach one branch or another, they simply think I’m going to sign over the “rights” to said technology, no contracts, no anything……..?” I got soured with the Govt. after they had the gall to first put us through the “wringer” and when we came out the other side up to snuff, they still wanted all the rights.
Dave – Thank you for your question. Since you represent a very important subset of the small business community – “real inventors”, and one that this question is not necessarily relevant to; I want to respond to you directly.
I think if you research it a little, you will discover that the government has been fairly transparent in it’s motives to date; As the largest global purchaser of products and services, it leverages it’s capacity to obtain tangible and intangible assets as cheaply as the market will bare in order to bolster it’s own balance sheet. And further, you should be happy that it takes this position because, after all; the government represents you.
In other words, since you are trying to sell your capability to yourself; would you expect anything less? After all, what type of commercial “being” would you be if you did not drive a hard bargain – can anyone say “GSA Schedule?”.
I am being somewhat antagonistic, but I hope you see my point.
My advice: When negotiating the sale of intellectual property (patent) based assets with the US Government – seek representation by a law firm with a DC address.
###
Rudy Sutherland, 8-PAC Editor
Entrepreneur & Small Business Evangelist
Author, Greg Barr
Although the country’s gross domestic product will continue to shrink in the second half of the year, a modest rebound is expected in 2010, according to an economic report.
Despite the prospects for an end to the recession, Gault points out that a rapid recovery is not in the cards, after such an extreme global financial shock.
“It remains premature to suppose that the financial system has been ‘fixed.’ We expect a 3.1 percent decline in GDP for the year, less severe than our April forecast of 3.5 percent, followed by a 1.5 percent rebound in 2010,“ the report said.
Gault noted that consumer spending beat forecasts in the first quarter by gaining 2.2 percent, following its 4 percent plunge in the second half of 2008, but spending will likely remain flat, at best, through the end of 2009.
As for the housing market, Gault notes that despite the fact that residential construction had its steepest decline so far during this downturn in the first quarter, the outlook is improving.
“Most key indicators of housing activity (home sales, housing starts and permits) are showing signs of stabilization, based upon dramatically improved affordability — for those who can qualify for credit. Even though there will be a delay after housing starts hit bottom until residential construction spending starts to rise, the latter should occur by year-end,” he wrote.
Regarding the energy sector, Gault said drilling activity has not yet finished its downward trend, but is close to the bottom.
Like the rest of the economy’s prospects when the slow recovery begins in 2010, Gault does not expect energy prices to spike quickly as some recent reports have suggested. Oil prices will average $46 a barrel this year, he suggests, rising only to an average of $54 in 2010 and would not move past $75 until 2012.
Agenda Item No. 3
8-PAC implores the President of the United States and Congress to amend Public Law 106-50, “the Veteran Entrepreneurship and Small Business Development Act”, to INCREASE the annual percentage of prime contracts for serviced disabled veteran-owned small business to not less than 10%.
Agenda Item No. 2
8-PAC implores the President of the United States and Congress to amend Public Law 103-355, Section 7106, “the Federal Acquisition Streamlining Act”, to INCREASE the annual percentage of prime contracts for women-owned business to not less than 15%.
Agenda Item No. 1
8-PAC implores the President of the United States and Congress to amend Public Law 100-656, Section 502, “the Business Opportunity Development Reform Act of 1988″, (codified as 15 U.S.C. Section 644(g)(1)) to change the language of the law from “goal” to “maximum practical utilization” and INCREASE the annual percentage of prime contracts for small business to not less than 35%; and the annual percentage prime contracts for small disadvantaged business to not less than 20%.
Weekend Edition: Seven Ways to Stimulate the Economy by Updating the Internal Revenue Code
The U.S. tax code is more than 54,000 pages long, much of it dates back 40 years, and it has become nearly impossible for the average person to understand. A broad array of experts agree that comprehensive reform is needed, but a top-to-bottom restructuring of the Code would be arduous and time consuming.
The House Committee on Small Business believes a targeted modernization of particularly outdated provisions can be accomplished in a short period of time—and without delay. Descriptions of seven such provisions—and recommendations on how to modify them—are the core of this report.
This Report by the Committee on Small Business of the U.S. House of Representatives highlights the following seven proposed solutions:
- Simplify the “Home Office” deduction provisions. Allow for a reasonable standardized deduction for people using their home as part of their business.
- Allow taxpayers who can prove substantial business use of electronic equipment to deduct a greater portion of the cost without having to keep detailed records.
- Allow a small business person who uses an automobile for work-related purposes over 75% of the time to recover the true cost of the vehicle (with a price of at least $25,000) during the standard 5- year recovery period. Continue to adjust the price for inflation.
- Allow small firms to use shorter depreciation schedules–that are in line with today’s technological and market realities.
- Allow self-employed entrepreneurs to deduct cost of health insurance premiums in the same manner as large firms.
- Raise the small business limit for deduction of business meals and entertainment to 80% or 100%.
- Restore incentives to prompt those with capital to invest their money in U.S. small businesses.
Download: Small Business Committee Tax Report
The following is an example of the complexity the current IRS Tax Framework:
Houston Area lawmakers want $2 billion in earmarks, ZERO for small business
(WASHINGTON) — Houston-area lawmakers are asking Congress to spend almost $2 billion next year for favored Texas projects ranging from a $150 million investment in Houston-area light rail and buses, to $5 million for preservation of the battleship USS Texas.
The 207 publicly disclosed earmarks have been posted on lawmakers’ Web sites early in the budget process in the latest sign of attempted spending reform in the nation’s capital.
The earmarks by Texas’ lawmakers and other House members across the country give voters an early glimpse into lawmakers’ spending priorities.
The various bids for federal spending run the gamut.
Reps. Gene Green, D-Houston, and Ted Poe, R-Humble, joined forces across party lines to ask Congress for the $5 million contribution to a $29 million effort to put the USS Texas on dry land to help preserve the World War I-era dreadnought and tourist attraction.
Rep. Pete Olson, R-Sugar Land, is looking for $2 million to bring a state-of-the-art wireless network to the Ellington Field Air National Guard fighter squadron that counted George W. Bush among its pilots 40 years ago.
For flood control along Brays Bayou, Rep. John Culberson, R-Houston, wants almost $29 million. He’s also asked for another $6 million to bolster Texas’ border sheriffs’ efforts against “illegal crossings” by undocumented immigrants.
The lawmakers’ wish lists are separate from the line-by-line spending requests due from President Obama in early May for the fiscal year that begins Oct. 1.
Obama has made earmark reform a hallmark of his new administration to combat projects that he says “have been inserted at the 11th hour, without review, and sometimes without merit, in order to satisfy the political or personal agendas of a given legislator, rather than the public interest.”
A different outcome?
The process has been thrown open to greater scrutiny, but the spending may end up being the same as lawmakers fight for their district’s share of federal largesse.
“During these serious economic times, it is important to protect the integrity of the process and to assure the proper use of taxpayers’ money,” said Rep. Sheila Jackson Lee, D-Houston. But the veteran lawmaker emphasizes she will continue to take steps to “ensure that much-needed dollars are brought back to the people of the 18th Congressional District.”: : NOTHING FOR SMALL BUSINESS.
In fact, Jackson Lee is pressing for $150 million for Houston-area light rail and replacement buses — and $88 million to dredge and maintain the Houston Ship Channel.
Hurricane evacuation improvements are on the list of Rep. Ron Paul, R-Lake Jackson, who wants at least $63.5 million to rebuild the Bluewater highway hurricane evacuation route between Brazoria and Galveston counties and to fix a “pinch point” along the hurricane evacuation route in Baytown at the intersection of Highway 146 and Spur 330.
“Not only do these intersections create a bottleneck for evacuees, they also make it difficult for local emergency personnel to cross while preparing for and responding to an approaching emergency,” Paul argued in his request.
The largest requests — 40 all together — come from Rep. Al Green, D-Houston. His $464 million projects list includes $89 million for dredging and maintenance of the Ship Channel and $15 million for a wind energy center at University of Houston: NOTHING FOR SMALL BUSINESS.
Only Rep. Michael McCaul, R-Austin, publicly announced that he won’t be requesting earmarks this year because the practice has been so “susceptible to waste, fraud and abuse.”
There’s no guarantee that the House Appropriations Committee will approve the requests — or that the committee’s approval assures eventual approval by the full House or Senate.
Major market decline forecasted for the solar industry in 2009, according to iSuppli
(PV-Tech) Market research firm iSuppli Corp. now expects a major decline in the photovoltaics industry in 2009, due to massive overcapacity, plunging prices and weak demand for solar as a consequence of the global economic recession. Worldwide PV system installations are forecasted to decline to 3.5GW in 2009, down 32% from 5.2GW in 2008. A 12% reduction in the average price per solar watt will also impact global PV revenues, which will drop by a massive 40.2% to $18.2 billion, down from $30.5 billion in 2008.
The 500MW cap imposed in Spain, prompted by the massive 2.5GW-plus growth seen in Spain last year, is a key contributor to the decline in installations as emerging markets are not expected to fill the void for 2009. Indeed, Dr. Henning Wicht, Senior Director and Principal Analyst for iSuppli, believes the impact will continue into 2010, limiting global revenue growth to 29.2% for the year.
“For years, the PV ind
ustry enjoyed vigorous double-digit annual growth in the 40 percent range, spurring a wild-west mentality among market participants,” said Dr. Henning Wicht, senior director and principal analyst for iSuppli. “An ever-rising flood of market participants attempted to capitalize on this growth, all hoping to claim a 10 percent share of market revenue by throwing more production capacity into the market. This overproduction situation, along with a decline in demand, will lead to the sharp, unprecedented fall in PV industry revenue in 2009.”
The good times are expected to return, but not until 2011 and beyond. Revenue growth of 57.8% is expected in 2011, followed by similar levels through 2013 as both demand and supply become more balanced. Wicht noted that there would be fewer new entrants into the market place and a slowdown in new capacity coming on stream.
“PV remains at
tractive because it continues to demonstrate a favorable Return on Investment (RoI),” noted Wicht. “Furthermore, government incentives in the form of above-market feed-in-tariffs and tax breaks will remain in place, making the RoI equations viable through 2012. Cost reductions will lead to attractive RoI and payback periods even without governmental help after 2012.”
Lower prices due to productivity drives and lower polysilicon prices will contribute to overall cost per watt reductions further opening new markets, Wicht said.
Overall, the shakeout could be good for the industry as it would then have a more mature and orderly supply chain.
(Business Journal) The U.S economy shrank at a greater-than-expected 6.1 percent, the second-consecutive quarter with a decline of more than 6 percent as the nation remains firmly in the grasp of the global recession.
The current quarter coupled with the 6.3 percent decline in fourth-quarter 2008 – the biggest drop in 25 years – created the worst economy over a six-month period in 50 years, according to the U.S. Commerce Department. Thomson Reuters analysts expected the economy to shrink 5 percent in the first quarter, according to Associated Press.
Businesses cut expenses, from buying equipment to software, and U.S. exports dropped to the lowest level in four decades during the January through March quarter, giving little hope that the recession will ease this year.
The announcement comes after consumer confidence increased 2.2 percent, the biggest jump since 2007, a bit of optimism dashed by these economic figures.
Author, Kent Hoover
(American City Business Journals) The Small Business Administration has implemented only two of the eight provisions that were included in the economic stimulus bill to boost lending to small firms.
On March 16, the SBA eliminated fees on the agency’s 7(a) and 504 loans, and increased the maximum government guarantee on 7(a) loans from 85 percent to90 percent. The actions have stimulated SBA lending; the agency is approving28 percent more loans each week than it was before the changes.
“We feel encouraged by these types of numbers,” said SBA spokesman Michael Stamler.
Year-to-date lending numbers, however, remain far below last year’s levels. Through April 17, the number of 7(a) loans made this fiscal year was down 55 percent, and 504 loans were down 47 percent. SBA’s fiscal year began Oct. 1.
Part of the reason for this decline was last fall’s collapse of the secondary market for SBA loans. Many lenders depend on selling their existing SBA loans on the secondary market in order to free up capital to make new loans.
In June, the agency plans to implement two programs that aim to revive the secondary market. The agency will make loans to broker-dealers who purchase the guaranteed portion of 7(a) loans from lenders, and then pool and sell them to investors. The agency also will guarantee pools of first-lien 504 loans sold on the secondary market.
In the 504 program, which is used to finance real estate and other fixed assets, a third-party lender provides 50 percent or more of the financing through a first lien mortgage. A nonprofit certified development company provides up to 40 percent of the financing through an SBA-guaranteed loan, and the borrower contributes at least 10 percent of the financing.
The American Recovery and Reinvestment Act called for the SBA to implement both of these secondary market provisions in March, but agency officials told the Government Accountability Office (GAO) that wasn’t possible because creating regulations for new programs like these is complicated and time-consuming. The GAO report also noted the SBA is hampered by lack of sufficient staff.
Judging the effectiveness of the SBA’s programs will be difficult because of related efforts by the Treasury Department and the Federal Reserve to boost the secondary market for SBA loans. The Treasury Department announced plans March 16 to purchase up to $15 billion in SBA-backed securities, and the Fed has created a loan program designed to encourage private-sector investors to purchase these securities. So far, however, no investors have used the Fed program to buy SBA-backed securities.
The SBA also missed its deadline for creating a new temporary loan program that would provide up to $35,000 to small businesses that are having trouble making payments on existing loans. SBA Administrator Karen Mills, who was confirmed by the Senate April 3, told senators that implementing this zero-interest, deferred-payment loan program would be her “absolute first priority.”
Stamler said these “business stabilization” loans will become available sometime in May.
In an April 15 letter to the GAO, Mills said SBA’s senior managers are working to implement the agency’s economic stimulus programs “with both urgency andappropriate care.”
“The need to act with speed is being balanced with the need to assure that significant risks to the agency that might arise through Recovery Act projects are systematically and effectively identified, evaluated and addressed where appropriate,” Mills wrote. “In doing so, we believe we are fulfilling our responsibility to small businesses, to our lending partners, and to the taxpayers.”
Rep. Nydia Velazquez, D-N.Y., who chairs the House Small Business Committee, said the SBA should implement the new programs swiftly.
###
Hoover is Washington bureau chief for American City Business Journals.
April 25, 2009
Is he just selling Gold as means of portfolio mix, or is he on to something?
“Withholding SBIR funds from firms that accept venture capital penalizes a whole class of small businesses that are doing promising work and contributing to our economic recovery.” – Chairwoman, Nydia M. Velázquez – Committee on Small Business
(WASHINGTON, D.C.) -The nation’s economic recovery and a resumption of steady job growth will require continued advances in technology and innovation, Members of Congress heard today during a House Small Business Committee hearing. As the nation continues struggling with economic recession, entrepreneurs and representatives from government agencies described how small firms are engaged in the scientific research that can create new products and spur job growth.
“Small businesses continue to be leaders in innovation and the development of new products,” said Committee Chairwoman Nydia M. Velázquez (D-NY). “We need to promote policies that support this kind of growth and development, so that small firms keep generating the new ideas that create new jobs.”
As one of the programs that has been central to small business’ participation in the high-tech field, much of Wednesday’s hearing focused on needed changes to the Small Business Innovation Research (SBIR) program. Coordinated by the Small Business Administration (SBA), the Small Business Innovation Research program ensures that a small percentage of federal agencies’ research budgets, about 2.5%, is reserved for contracts or grants to small firms. Witnesses at today’s hearing said SBIR programs in eleven federal agencies have generated more than 84,000 patents and millions of jobs. Federal officials testifying before the Committee credited the program with advances in state of the art lithium ion batteries for hybrid engine technology, life-saving therapies and drugs, and game-changing defense systems like predatory drones, which have been utilized in both Iraq and Afghanistan.
“Over the past twenty years, the SBIR has helped spur new ideas, supported innovation and fostered small business growth,” said Velázquez. “Even with this success, the SBIR is not keeping pace with many of our most promising entrepreneurs and the program will need to be modernized to maximize its job creating potential.”
During the hearing, Members of Congress and witnesses touched on a number of ways to improve the SBIR program. Part of the discussion focused on the need to ensure that more recipients of SBIR funding produce technological advances that are commercialized and brought to market. In addition, given the difficulty that small firms and businesses encounter in acquiring capital, the hearing explored what role venture capital should be allowed to play for SBIR funding recipients.
“In this economic climate, small firms need all the help they can get raising capital,” said Velázquez. “Withholding SBIR funds from firms that accept venture capital penalizes a whole class of small businesses that are doing promising work and contributing to our economic recovery.”
Eight years have passed since the SBIR initiative was reauthorized by Congress and, although the House Small Business Committee passed legislation in the previous Congress to modernize SBIR, the Senate did not pass the bill. In March, Congress temporarily extended SBIR until the end of July.
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