In the age of best value procurements, having good past performance can be the difference between an award and a lost opportunity.
Joint venturers provide a great way for small businesses to augment their past performance and increase their competitiveness. Under SBA’s joint venture regulations, in fact, the joint venture can be credited with not only its own past performance, but also with that of the members.
In the 2021 National Defense Authorization Act, Congress has provided another important small business contracting tool: SBA must allow a small business to claim past performance credit for the work they perform through a joint venture.
Importantly, this new requirement is not unlimited. The NDAA states that a small business concern with no relevant past performance of its own can elect to use the past performance of a joint venture in which it participated. Moreover, the small business must inform the contracting officer of the duties and responsibilities it carried out as part of the joint venture—presumably because the credit will be limited to only similar requirements under future procurements.
In some cases, moreover, small businesses will also be able to claim past performance credit for work they performed under “covered contracts”—in general, contracts performed by a large business submit to the subcontracting plan requirement.
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Keep in mind that the NDAA, as it currently exists, is not yet finalized. The Conference Report still needs to be passed by both the House and Senate, and then signed by the President. Hopefully this happens soon. Once it does, the SBA will have 120 days to update its regulations.
We’ll keep you posted on any developments. But if you have questions about small business federal contracting, please give us a call.