The common theme of this month’s Law360 Bid Protest Roundup is a seemingly hot topic these days: joint ventures. One recent Government Accountability Office (“GAO”) decision and one recent U.S. Court of Federal Claims (“COFC”) decision both touch upon past performance issues related to joint ventures. The third decision, also a COFC decision, focuses on the requirement that joint ventures must be registered in SAM.gov at the time of proposal submission.
AttainX, Inc. 
In AttainX, Inc., the GAO addresses how agencies must evaluate the prior experience and past performance of joint venture members when a joint venture competes for small business set-asides. AttainX, Inc. protested the award of a task order to MiamiTSPi, LLC under the General Services Administration (“GSA”)’s 8(a) STARS III government-wide acquisition contract. MiamiTSPi was an 8(a) small business joint venture, comprising an 8(a) small business (as the managing member and majority owner) and a non-8(a) small business. Among other grounds, AttainX protested the GSA’s evaluation of the awardee’s experience as unreasonable.
The solicitation provided for the evaluation of vendors’ similar experience, requiring vendors to submit a minimum of two similar experience examples “that reflect and identify experience on [current or recent] projects.” For each project example submitted, “the contractor shall explain in a detailed narrative how the characteristics of the selected contract relate to the overall project for which they are being considered.” MiamiTSPi submitted examples from the non-8(a) member and the non-8(a) member’s separate joint venture. AttainX argued that the GSA assigning MiamiTSPi an “acceptable” rating for similar experience was unreasonable because the awardee did not submit examples from its 8(a) member.
Although nothing in the solicitation required each member of joint ventures to submit experience examples, the GAO found that the Small Business Administration (“SBA”)’s regulations require 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.” 13 C.F.R. § 125.8(e). This language has traditionally been interpreted to mean that an agency cannot negatively evaluate a joint venture for past performance or past experience if the joint venture itself does not have relevant past performance, but instead must consider the experience of the members to the joint venture. However, the GAO stated this language “require(s) the agency to evaluate each joint venture member individually when the joint venture itself does not demonstrate it has the required experience.” (emphasis added). Thus, because MiamiTSPi did not submit any experience for the joint venture itself or the managing member, and the underlying evaluation record did not demonstrate that the GSA had considered this lack of experience, the GAO sustained AttainX’s protest ground that the GSA’s evaluation of MiamiTSPi’s proposal was unreasonable.
This case will have major implications on small business joint ventures, especially mentor protégé joint ventures where the managing member (the protégé) oftentimes relies on the mentor’s past experience to qualify for contracts it otherwise would not qualify for on its own. In adopting the provision that agencies must consider the experience of the members if the joint venture does not have any experience, SBA’s intent was to ensure that small business joint ventures, and thus the small business members thereof, were not shut out from gaining experience it otherwise would not have been able to obtain. That said, SBA has also explained that its rules require a small business protégé to have some experience in the type of work to be performed under the contract. It is important to remember, though, SBA’s regulations also provide 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.” Moreover, GAO held that the agency was required to consider each joint venture member’s experience (or lack thereof) where the joint venture does not have experience itself. It did not go as far as holding that each member is required to have experience to be eligible for award.
AccelGov, LLC v. United States 
AccelGov, LLC v. United States is a recent COFC case involving two joint venture members competing against each other for follow-on work to a task order their joint venture had previously performed.
AccelGov, LLC (“AccelGov”) protested the GSA’s decision to award an information technology contract to Technical and Management Resources, Inc. (“TMR”). AccelGov is a joint venture comprising 22nd Century Technologies, Inc. (“22nd Century”), Agovx, and other unnamed member(s). 22nd Century and TMR were members of the incumbent joint venture contractor, Advance Alliant Solutions Team (“AAST”). Although TMR was the managing partner of AAST, 22nd Century served as the lead for performance of the incumbent work, providing most of the personnel and managing most of the billable work. In fact, of the approximately $27 million earned on the incumbent contract, TMR only earned about $2 million.
In its proposal for the present solicitation, TMR listed the incumbent contract as one of its three examples of its prime contractor past experience. TMR stated that it was the managing partner of AAST and managed the contract but did not disclose that 22nd Century served as the lead for the contract performing most of the work. AccelGov, which had also listed the incumbent contract as past experience in its quote, asserted TMR made material misrepresentations about its past experience. Related to this protest ground, AccelGov filed a motion seeking to supplement the Administrative Record through interrogatories to TMR to establish TMR’s alleged material misrepresentation. The Court, interestingly, granted this request.
Unfortunately for AccelGov, though, the Court ultimately found on the merits that GSA had rationally assigned AccelGov several weaknesses, leaving AccelGov unable to establish prejudice even if TMR made a material misrepresentation.
Although the Court did not decide on the merits of AccelGov’s misrepresentation protest ground, this case serves as a warning to joint venture members to pay close attention to how they describe their past performance stemming from their joint ventures. This is especially true when competing against the other member of that joint venture. The fact that the Court granted AccelGov’s request to supplement the record with interrogatories to establish the misrepresentation, which is not common, shows that these material misrepresentation protest grounds are not ones the Court will take lightly.
Thalle/Nicholson Joint Venture v. United States 
Thalle/Nicholson Joint Venture (“Thalle/Nicholson”) protested the United States Army Corps of Engineers (“USACE”)’s decision to award a contract to Shimmick Construction Company (“Shimmick”). Specifically, it challenged USACE’s determination that Thalle/Nicholson’s proposal was ineligible for award due to its failure to register in the System for Award Management (“SAM”).
FAR 52.204-7, incorporated into the solicitation by reference, requires offerors “to be registered in SAM when submitting an offer or quotation, and shall continue to be registered until time of award.” The solicitation also required offerors to meet all solicitation requirements, “including terms and conditions, representations and certifications, and technical requirements.” It warned offerors that “failure to meet a requirement may result in an offer being ineligible for award.”
Thalle/Nicholson, a joint venture between Thalle Construction Co., Inc. and Nicholson Construction Co., submitted its proposal on November 3, 2021. Although the joint venture was not itself registered in SAM at that time, both of its members were. As such, the proposal included a statement that each member of the joint venture “completed representations and certifications in SAM,” and attached individual proof of each member’s SAM registration. During discussions, USACE issued Evaluation Notices (“ENs”) to all offerors, including Thalle/Nicholson. However, these ENs did not mention any deficiencies related to Thalle/Nicholson’s SAM registration (or lack thereof). Then, a week after the Source Selection Evaluation Board (“SSEB”) issued a revised SSEB Report, USACE called Thalle/Nicholson to inquire about the joint venture’s SAM registration status. Thalle/Nicholson confirmed the joint venture was not registered in SAM, but informed USACE it would register the joint venture if USACE confirmed an award to Thalle/Nicholson. The following week, USACE notified Thalle/Nicholson its proposal was ineligible for award, citing FAR 52.204-7.
In its protest, Thalle/Nicholson argued that failure to be registered in SAM was not a reasonable basis for elimination from competition, and that USACE, in effect, made an impermissible responsibility determination. The Court disagreed, explaining that the unambiguous language of FAR 52.204-7 required Thalle/Nicholson to be registered in SAM when it submitted its offer. Moreover, the solicitation expressly informed offerors that failure to meet solicitation requirements could result in “an offer being ineligible for award.” The Court also rejected the joint venture’s argument that “SAM registration relates to responsibility, not responsiveness,” and indicated that even if it adopted Thalle/Nicholson’s position, “the only remedy for non-compliance with the SAM registration requirements . . . would be for the offeror to provide information that demonstrates it was registered in SAM when it submitted its offer.” This, Thalle/Nicholson could not do.
Similarly, the Court denied Thalle/Nicholson’s argument that USACE improperly failed to have informed the joint venture of the SAM registration issue during discussions. While it agreed with the protester that USACE should have raised the issue during discussions, the Court found Thalle/Nicholson could not establish prejudice by this failure because Thalle/Nicholson could not have remedied its non-compliance (i.e., not being registered at the time of proposal submission).
Thalle/Nicholson is a hard lesson learned in the strict requirement of FAR 52.204-7. Although members of a joint venture may individually be registered in SAM, this is insufficient if the joint venture itself is not also registered. This is an especially important lesson during times such as these, where many contractors are experiencing delays registering in SAM. Joint ventures should take care to register in SAM well in advance of submitting their proposals, as a failure to do so will lead to a rejection of their proposals.
MoFo law clerk Thomas Lee contributed to this article.