Highly Anticipated Report on Bid Protests is Finally Here!RAND Corporation recently issued its much-anticipated report on the prevalence and impact of bid protests. The report, which was issued at the direction of Congress, contains a plethora of important—and interesting—findings, including:

  • Despite a “steady increase” in bid protests filed between fiscal years 2008 and 2016, “[t]he share of contracts protested remains very small—less than 0.3 percent.”
  • A “concern” shared by federal contractors “was the quality of post-award debriefings.” According to the report, “[t]he worst debriefings were characterized as skimpy, adversarial, or evasive and failed to provide reasonable responses to relevant questions.”
  • “[S]mall protest rates per contract imply that bid protests are exceedingly uncommon for DoD procurements.”
  • “Task-order protests have a slightly higher effectiveness rate than other types of protests.”
  • “The stability of the bid protest effectiveness rate over time—despite the increase in protest numbers—suggests that firms are not likely to protest without merit.”
  • “Cases in which legal counsel is required (i.e., a protective order was issued by GAO) have higher effectiveness and sustained rates.”

A complete copy of the report is available here. If you have any questions about any of the topics discussed in the report, please do not hesitate to contact Aron Beezley.

All Small Mentor-Protégé Program Year-End Report: Fast Figures Small and Large Businesses Need to KnowThe Small Business Administration (SBA) started accepting applications for the new All Small Mentor-Protégé Program (ASMPP) in October 2016, but SBA has seen a surge in applications in 2017.

Under the ASMPP, any small business—including Historically Underutilized Business Zone (or HUBZone) small businesses, 8(a) small businesses, veteran-owned and service-disabled veteran-owned small businesses (VOSBs/SDVOSBs), woman-owned and economically disadvantaged woman-owned small businesses (WOSBs/EDWOSBs)—may enter into an agreement with a large business under which the large business will provide mentorship and assistance. In return, the large and small businesses are permitted to joint venture to perform federal small business set-aside contracts.

Previously, we provided a mid-year report on fast figures about the ASMPP that both large and small businesses need to know. Here is our year-end update to those figures:

356  SBA reports that, as of Dec. 1, 2017, it has approved 356 different ASMPP agreements.
1,116 As of Dec. 1, 2017, there have been more than 1,116 views of the new SCORE-SBA ASMPP Webinar.
16 SBA reports that, as of Dec. 8, 2017, 16 8(a) Mentor-Protégé Program participants transferred to the new ASMPP.
64 SBA reports that at least 64 of the 356 SBA-approved ASMPP agreements were approved under the protégé’s secondary—rather than primary—North American Industry Classification System (or NAICS) code.
72 SBA reports that, as of Dec. 8, 2017, 72 ASMPP applications were declined by SBA.
112 SBA reports that at least 112 of the ASMPP participants are 8(a) firms.
110 SBA reports that at least 110 of the ASMPP participants are SDVOSBs.
47 SBA reports that at least 47 of the ASMPP participants are HUBZone companies.
54 SBA reports that at least 54 of the ASMPP participants are EDWOSBs.
65 SBA reports that 65 of the ASMPP participants are small businesses without any other set-aside status.
42 SBA reports that ASMPP participants are based or incorporated in 42 different U.S. states/territories/districts.

If you have any questions about the ASMPP or any related issues, please feel free to contact Aron Beezley or Frederic Smith.

How to Manage Offsite Issues on a Construction ProjectLarge projects tend to generate complaints from neighboring residents and businesses during construction. How a contractor deals with those complaints can be critical to a project’s overall success. Concerns can vary from minor noise complaints to more serious trespass and nuisance complaints regarding hazardous and non-hazardous construction materials. Regardless of the nature of the complaint or issue, a knowledgeable contractor can likely avoid or mitigate any potential fallout by being proactive and following these tips:

Don’t ignore complaints.

If you receive a complaint from a neighboring resident or business, make an effort to investigate and resolve the issue promptly. You shouldn’t admit fault, but you should try and work with your neighbor to find an amicable solution. This approach can help avoid turning a minor issue into a major problem.

For example, consider receipt of a noise complaint from a resident in a neighboring community. The neighbor is bothered by early morning jack hammering from your construction site. If you ignore that complaint, your neighbor may get frustrated and get folks from his or her neighborhood to file a formal complaint with the local municipality, which could result in the city imposing new restrictions on working hours for your project. The resulting productivity impact and delays could be difficult to overcome. In contrast, if you talk with the neighbor and work out a solution such as rescheduling the noisy work for later in the day once he or she goes to work, you might only have to deal with a minor disruption to your work.

Put relevant parties on notice.

If you receive a complaint from a neighbor regarding anything going on at your construction site that could adversely affect the schedule or cost or result in liability to third parties, put the relevant parties on notice. If an owner-provided civil grading plan results in flooding and erosion into a parking lot of a nearby business, put the owner and AE on notice immediately upon learning of the issue. If a neighbor complains that his or her sidewalk or driveway was damaged by heavy equipment from your jobsite and you know that equipment likely belongs to a subcontractor, put your subcontractor on notice of the complaint. In the above examples, you should also consider putting your insurer on notice of any potential claim along with any subcontractor or owner insurers under whose policies you have been named an additional insured.

You never know when a minor concern might become more serious. If you haven’t notified the responsible party in advance and given them an opportunity to investigate or remedy the issue, that party may be able to shirk responsibility later on when the potential liability becomes greater.

If you decide to make a payment or otherwise remediate an issue, get a release.

In certain circumstances, it may be beneficial for you to go ahead and make a payment or remediate an issue with a neighbor to avoid escalating a dispute. For example, a neighboring resident complains that he got a flat tire from a pothole on the road adjacent to your jobsite, and he claims your trucks and other equipment caused the pothole. He’s threatening to sue and to report you to the city, county or state department of transportation. In that situation, you may decide it’s better to pay the neighbor some marginal sum to avoid a potential lawsuit.

When you make such a payment, be sure to get a complete release of past and future claims from the complainant. You do not want to find yourself dealing with a repeat customer who comes back a few weeks later with a different, potentially frivolous complaint or who now claims the initial damages are worse than originally anticipated (e.g., that flat tire has now become a broken axle). You may want to talk with a lawyer to help you draft some appropriate language for the release to make sure you are adequately protected.

The above tips are not comprehensive, and, as with any construction job, there are unique circumstances which may warrant or require a different approach. However, keeping these thoughts in mind and making sure your onsite project folks are educated on the same can help you avoid or reduce potential liability from a variety of offsite incidents.