Crowell & Moring is pleased to announce its 2023 Bid Protest Sustain of the Month Series. All through 2023, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month. Below, Crowell Partner Cherie Owen kicks off the series with a discussion of an interesting and controversial decision relating to the evaluation of small business joint venture experience.
The first month of 2023 brought 3 publicly released GAO sustain decisions, but the AttainX, Inc. decision is arguably the most notable and the most controversial. As we discussed in detail in “When it Comes to Joint Venture Experience, Perfection May Be Hard to Attain(X),” GAO sustained a challenge to an 8(a) joint venture’s experience evaluation, finding that the agency failed to evaluate the risk associated with the fact that the awardee’s only examples of prior experience were not performed by the joint venture proposed as the prime contractor nor performed individually by the “managing member” of the joint venture. Noting that the “managing member” firm would be required to perform at least 40 percent of the work under the awarded contract, GAO faulted the agency for its failure to consider the extent of experience submitted by each member of the joint venture, citing SBA’s regulations (13 C.F.R. § 125.8(e)) requiring agencies to “consider work done and qualifications held individually by each partner to the joint venture as well as any work done by the joint venture itself previously.” In GAO’s view, the requirement to consider work done “individually by each partner to the joint venture” requires agencies to consider downgrading joint ventures that could not demonstrate previous experience by every partner to the joint venture or work by the joint venture itself. However, this interpretation of SBA’s regulations is arguably inconsistent with the Small Business Act itself, which provides that “the agency shall consider the capabilities and past performance of each member of the joint venture as the capabilities and past performance of the joint venture.” 15 U.S.C. §644(q)(1)(C). This decision is concerning for many small business joint ventures and, if followed, could significantly weaken the advantages associated with the mentor-protégé program. MiamiTSPi, LLC has filed a request for reconsideration, which is currently pending at GAO.