WT Business Beat

By Nick Wakeman

Blog archive
Nick Wakeman

Lack of final rule nixes bid protests

In the Runway Extension Act, Congress changed how a small business status is calculated. Instead of a three-year period, Congress said the Small Business Administration should use a five-year period for determining size according to revenue.

Pretty straightforward there, and I’ve heard different arguments on both sides that this will either help or hurt small businesses. Now that question has reared its head in a new Government Accountability Office decision.

That question at GAO involved when the regulation took effect. Two companies, TechAnax and Rigil Corp., protested the on-ramp solicitation for the governmentwide OASIS professional services contract because GSA used the old, three-year calculation rather than the five-year calculation.

GSA said it used the old calculation because SBA has not issued a final rule on how it will implement the change. SBA has issued draft rules but not a final rule, and has told agencies to use the old rule until the final rule is published.

TechAnax and Rigil argued that the five-year calculation went into effect the day the act was signed into law.

GAO sided with SBA and GSA, and said that the Small Business Act requires new regulations be finalized before the Runway Extension Act is implemented.

GAO also said that it is agreeing with SBA’s and GSA’s “interpretation” of the Small Business Act.

I bring this up because I had a brief conversation a few months back with an executive complaining that SBA was wasting everyone's time. The change in the Runway Extension Act is very simple -- switch the "three" to a "five" and the rest of the regulations stay the same.

There was no reason for SBA to wait to implement the law. It didn’t need a final rule. In fact, the act doesn’t ask SBA to write new regulations. It just says to strike "three" and insert "five."

What I find interesting here is that you can make a reasonable argument for both positions. GAO had to pick one and they support that decision it well. Some other authority, such as the U.S. Court of Federal Claims, could make the opposite finding and it would be just as reasonable.

A court decision in favor of TechAnax and Rigil could have broader implications on the role of rulemaking and when acts of Congress take effect. That’s a bit outside of my expertise, but it’s an interesting question to ponder.

Posted by Nick Wakeman on Aug 26, 2019 at 1:12 PM


Reader Comments

Please post your comments here. Comments are moderated, so they may not appear immediately after submitting. We will not post comments that we consider abusive or off-topic.

Please type the letters/numbers you see above

What is your e-mail address?

My e-mail address is:

Do you have a password?

Forgot your password? Click here
close

Trending

  • POWER TRAINING: How to engage your customers

    Don't miss our Aug. 2 Washington Technology Power Training session on Mastering Stakeholder Engagement, where you'll learned the critical skills you need to more fully connect with your customers and win more business. Read More

  • PROJECT 38 PODCAST

    In our latest Project 38 Podcast, editor Nick Wakeman interviews Tom Romeo, the leader of Maximus Federal about how it has zoomed up the 2019 Top 100. Read More

contracts DB

Washington Technology Daily

Sign up for our newsletter.

Terms and Privacy Policy consent

I agree to this site's Privacy Policy.