Short Take: GAO Refuses to Read Limitations on Subcontracting Clause into Solicitation
February 3, 2016
By: Eric Whytsell
Small businesses and their teaming partners often spend a significant amount of time figuring out how best to comply with FAR 52.219-14, Limitations on Subcontracting. This should come as no surprise, since the clause imposes strict requirements concerning the amount of set-aside contract work that must be performed by the prime contractor and failure to comply can render a proposal nonresponsive.
The recent decision of the Government Accountability Office (GAO) in NCS/EML JV, LLC, B-412277 et al., (January 14, 2016), may provide some relief, at least in certain cases. In this post-award protest, the protester argued, among other things, that the awardee’s offer failed to comply with FAR 52.219-14. The GAO dismissed this aspect of the protest, however, noting that, despite being set aside for small businesses, the RFP did not incorporate the limitations on subcontracting clause. According to the GAO, this lack rendered the protest ground factually and legally insufficient.
In response to the protester’s argument that the clause should be included by operation of law pursuant to the Christian doctrine, the GAO pointed out that the Christian doctrine provides only for incorporation by law of certain mandatory contract clauses into otherwise validly awarded government contracts. As noted in numerous GAO decisions, the doctrine does not stand for the proposition that provisions are similarly incorporated, by law, into solicitations.
So, the next time you’re reviewing a set-aside solicitation, make sure it actually contains FAR 52.219-14 before you start spending time on how to comply with the clause.
Eric Whytsell is responsible for the contents of this Short Take.
© Jackson Kelly PLLC 2016