Cultivating The Leader Within - Minority Enterprise Executive Council

Q: I’ve heard that the rules for SBA
8(a) mentor-protégé joint ventures are
different. Is that true
A: Yes, joint ventures between an SBAapproved
mentor and 8(a) protégé team
are permitted to pursue small-business
contract awards, regardless of the
mentor’s size, as long as the protégé is
small under the applicable size standards.
Protests
As a business owner you can be on either
side of the protest issue and you need
to be prepared for both possibilities. The
“urban legend” is that all protests are bad
no matter what side you are on and that
is simply not true. Protests, unfortunately
or not, are a way of life in the world of
federal contracting and, in fact, some
companies consider filing protests as part
of their normal business strategy. Since it
is important not to live in fear of protests
the comments below by Terry Murphy,
Chairman of the Kaufman & Canoles
Government Contracts and Construction
Practice Group, should take away some
of the mystery surrounding this issue.
When asked about protests in general
Terry said:“One of the most important
differences between commercial and
government contracting is the ability of
an unsuccessful contractor to protest the
award of a contract. Some contractors
say it is never wise to file a protest
as it may alienate your Government
customer. Nevertheless, in this era
of declining budgets, bid protests are
a course of doing business if you are
a government contractor. A protest
handled professionally and efficiently,
without emotion, is a necessary option
to be considered by all contractors.”
Q: What are some of the common
protest areas
A: Common protest issues involve
challenges to the Government’s failure
to follow the evaluation criteria either
through an unreasonable evaluation of
the contractor’s proposal or a challenge
of the evaluation of the successful
offeror’s proposal.
Q: I’ve been told that the timeliness of your
protest action is critical. Is that the case
A: Yes, a key issue in filing a bid protest
involves timeliness. Pre-award protests
challenging a request for proposal
must be filed prior to the submission
of your offer or it will be untimely. There
also are very short deadlines for a postaward
protest depending on the place
the protest is filed.
Q: How do you make the right business
decision when it comes to protests
A: A contractor should weigh the
likelihood of success and costs before
filing a protest. An often overlooked
consequence for new contractors who
are still euphoric over the award of a new
contract is the surprise that their award
has been protested (and is subject to a
stop work order). In other words, the
successful contractor is dragged into
a protest it did not file. A successful
awardee should always then consider
“intervening” or filing to become a
party to the protest to work with the
agency to preserve the contract award.
Ethics
Another regulatory area is ethics,
both business and personal. Almost
every solicitation issued by the federal
government requires that you address
any business (organizational) “conflicts
of interest” (OCI) and, now, there are
new regulations pertaining to “personal
conflicts of interest” (PCI). Pat O’Donnell,
whose practice focuses on the ethics
rules in government contracting, lays
out how both of these ethical areas are
addressed by the government and what
you can do to mitigate any concerns about
not complying with these regulations.
Q: Where can I learn about the regulatory
details about conflicts of interest
A: FAR Subpart 9.5 (https://www.
acquisition.gov/far) addresses
organizational conflicts of interest. These
regulations are specifically designed to
maintain competitive fairness and to avoid
situations in which a contractor’s advice
to the government may be biased. Also,
as of November 2, 2011, a new rule (FAR
Subpart 3.1101 and FAR 52.203-16(a))
addresses personal conflicts of interest
for government contractors and their
employees performing procurement
related functions.
Q: What is meant by an organizational
conflict of interest
A: Organizational Conflicts of Interest
(OCI’s) fall primarily into two categories:
the existence of conflicting roles that
might bias a contractor’s judgment
and unfair competitive advantage due
to obtaining proprietary information
without proper authorization or
obtaining source selection information
not available to all competitors.
Q: How is the area of personal conflicts
of interest different
A: The new rule regarding Personal Conflicts
of Interest (PCI’s) applies to government
contractors (and their employees) who
perform work related to “acquisition
functions closely associated with inherently
governmental functions” such as:
• Planning acquisitions
• Determining what supplies or
services will be acquired by the
Government
• Drafting statements of work
• Developing or approving contract
documents or evaluation criteria
• Evaluating proposals or contract
performance
• Awarding contracts
• Administering or terminating
contracts
In closing Pat said: Contractors
must implement a system whereby
employees who perform such functions
disclose personal conflicts that might
impair their ability to act impartially and
in the best interest of the Government.
As with all contractor business ethics
requirements, the contractor must
train its employees on identifying and
disclosing potential personal conflicts of
interest. Also, contractors are required
to self-report employee violations.”
As you can see from above, there are many
important issues that you must consider
and educate yourself about as you work to
move your business to the next level. The
wrong approach would be to ignore these
issues or hope they don’t impact your
business. You need to proactive learning
about affiliation, protests, and ethics and
seeking professional advice when needed.
None of these concerns should be “show
stoppers” for you moving down your path
to greater federal contracting success.
Now that you know about these issues
take the time to dig deeper and learn
more. It is time well spent. You will be a
better contractor and teaming partner, and
the unknown perceived dangers will be
out of the shadows and in the light for you
to address.
10 Minority Enterprise Advocate • March – April 2012