“To recap, there may not be a 100% certain answer as to whether you will get better treatment of each team members’ past performance when bidding as a joint venture or prime-sub team in every situation. But we do know a few things from SBA’s regulations and the FAR:
- An agency must consider each joint venturers’ past performance to some extent–both for joint ventures made up only of small businesses and for mentor-protégé joint ventures that include a large business venturer;
- An agency may consider the past performance information of any subcontractor (large or small). where the agency finds that it is relevant to the current contract and the subcontractor will perform ‘major or critical aspects’ of the contract; and
- An agency must consider a small business first-tier subcontractor’s past performance information if they are specifically identified in the proposal of a small business prime offeror that does not, on its own, have the past performance history ‘necessary for award.’
Unfortunately, there is even less certainty (at this time) in the answer as to which is more valuable moving forward: experience gained as a joint venture member or as a subcontractor. But the 2021 NDAA does tell us that, at some point, we can expect some new SBA rules requiring:
- Agencies to consider any past performance gained as a joint venture member if the individual small businesses offeror does not have a record of relevant past performance of its own; and
- Agencies to consider any past performance gained as a small business subcontractor on a prior contract where the prime was a large business.
Thus, even with this limited list of things we do know, there are some helpful takeaways. First, there are some requirements an agency must follow in certain teaming situations–and, if these situations apply to you, it may provide some crucial considerations in ‘choosing your team.’ Second, it is important to read your solicitation, first and foremost, to determine what the agency’s specific evaluation plan is for you and your team. But even then, the items discussed herein may still provide you with a basis to push back on unfair terms in the solicitation or unfair evaluation findings–even if it is simply a policy argument about Congressional intent and the direction these policies are moving. And the final takeaway here is to keep an eye on these questions and topics moving forward, watching out for the new rules that are sure to come, as well as future SmallGovCon blogs on the subject that may provide relevant updates and more helpful information…” Read the full article here.
Source: Picking Your Team: Joint Ventures Versus Prime/Subcontractor Teams (Part Two, Past Performance) – By Nicole Pottroff, November 17, 2021. SmallGovCon.
