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The Government Accountability Office sustained a protest (Innovate Now, LLC, B-419546, April 26, 2021) against an Air Force solicitation that required the protégé member of any mentor-protégé joint venture offeror to meet the same experience requirements as all other offerors.  Specifically, the RFP required that a joint venture offeror must provide a minimum of at least one work sample from each member of the joint venture that reflected a federal contract performed by the entity as a prime contractor on a non-fixed price basis for at least six months within the last five years.  The protester argued that the language directly violated the past performance, experience, and capabilities evaluation criteria for small business joint ventures in 13 C.F.R. § 125.8(e).  That provision explains that “a procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.”  SBA, whose opinion GAO solicited, agreed with the protester, noting that while 13 C.F.R. § 125.8(e) does not mandate a particular level or type of experience and provides agencies with the flexibility to determine the appropriate criteria, protégés must be held to a different experience standard from mentors and other offerors.  The underlying rationale for SBA’s rule, and the mentor-protégé relationship, is that a protege may not be able to meet all performance requirements by itself and therefore can gain experience through the help of its mentor and joint venture partner.  Ultimately, GAO ruled that the RFP’s experience requirement violates the express prohibition in SBA’s regulations

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Photo of Olivia Lynch Olivia Lynch

Olivia L. Lynch is a partner in Crowell & Moring’s Government Contracts Group in the Washington, D.C. office.

General Government Contracts Counseling. Olivia advises government contractors on navigating the procurement process, compliance and ethics, commercial item contracting, accessibility, supply chain assurance, and…

Olivia L. Lynch is a partner in Crowell & Moring’s Government Contracts Group in the Washington, D.C. office.

General Government Contracts Counseling. Olivia advises government contractors on navigating the procurement process, compliance and ethics, commercial item contracting, accessibility, supply chain assurance, and various aspects of state and local procurement law.

Photo of Amy Laderberg O'Sullivan Amy Laderberg O'Sullivan

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and counseling for corporate clients of all sizes and levels of experience as government contractors. On the litigation side, she has represented corporate clients in bid protests (agency level, GAO, ODRA, Court of Federal Claims, Court of Appeals for the Federal Circuit, as well as state and local bid protests in numerous jurisdictions), size and status protests before the U.S. Small Business Administration, claims litigation before the various Boards of Contract Appeals, Defense Base Act claims litigation at the Administrative Law Judge and Benefits Review Board levels, civil and criminal investigations, and she has been involved in complex commercial litigation.

Photo of Michael Samuels Michael Samuels

Michael Samuels is a counsel in Crowell & Moring’s Government Contracts Group. His practice involves counseling and representing government contractors on a wide range of issues.

Photo of Zachary Schroeder Zachary Schroeder

Zachary Schroeder is an associate in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group.

Zach represents contractors in both litigation and counseling matters. His practice focuses on representing contractors in bid protests before the Government Accountability Office…

Zachary Schroeder is an associate in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group.

Zach represents contractors in both litigation and counseling matters. His practice focuses on representing contractors in bid protests before the Government Accountability Office (GAO), the U.S. Court of Federal Claims, and the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition (ODRA). His practice also includes federal regulatory and ethics compliance, as well as various aspects of state and local procurement law, including representing contractors in size protests and affiliation matters. In the transactional context, Zach has performed government contracts diligence for government contractors in a range of industries.