BLOG: SBA Issues Proposed Rule Changing Receipts Calculation to 5 Years, Implementing Small Business Runway Extension Act
On June 24, 2019, the Small Business Administration (SBA) published its long-awaited proposed rule changing the period of measurement for a receipts-based size calculation from three years to five years. This change was prompted by the Small Business Runway Extension Act (the Runway Act), which became law on December 17, 2018. SBA was slow to implement this change because SBA believes that the Runway Act amended a section of the Small Business Act that does not apply to SBA. “Nevertheless,” SBA says, . . . Read More
BLOG: What Will Happen to the DoD’s Mentor-Protégé Program?
As many of our clients know, there are several mentor-protégé programs run either by the SBA or specific agencies that are intended to help small businesses develop and enhance their ability to serve as a prime contractor or subcontractor in federal contracts. For example, the SBA has the 8(a) mentor-protégé program and the all-small mentor-protégé program, and it also approves agency mentor-protégé programs, such as the Department of Homeland Security’s program, which is designed to help small businesses obtain and . . . Read More
BLOG: Halting Employee’s Right to Report Cybersecurity Noncompliance Can Land Government Contractors in Hot Water
Last week signaled a potential rude awakening for government contractors subject to cybersecurity requirements. A California U.S. district court ruled that allegations against Aerojet Rocketdyne could progress following a former employee’s complaint that the company terminated his employment after he disclosed cybersecurity failures to the company’s board of directors and refused to sign documents indicating that the company was compliant. Among the employee’s chief allegations is a charge that the company violated the False Claims Act by falsely representing its . . . Read More
BLOG: Challenging a Negative CPARS: What Remedies Are Available?
As any experienced government contractor knows, poor performance under a federal contract can have significant consequences. Not only can it lead to contract termination and damages, but it can also affect a contractor’s ability to obtain future work, as agencies are generally required to consider past performance information posted on the Contractor Performance Assessment Reporting System (“CPARS”) when making source selection decisions. Because a CPARS rating is generally valid for 3 years (6 years for construction/architect-engineer contracts), a contractor may . . . Read More
BLOG: Justice Department Issues New False Claims Act Guidance on Cooperation Credit That May Reduce FCA-Defendant Liability
Last week, on May 7, 2019, the U.S. Department of Justice (“DOJ”) announced the issuance of formal guidance to clarify the manner in which the DOJ allocates credit to defendants who cooperate with government investigations in False Claims Act (“FCA”) matters. In a press release from the Office of Public Affairs, the DOJ explained that it “has taken important steps to incentivize companies to voluntarily disclose misconduct and cooperate with [DOJ] investigations[.]” Specifically with regard to the FCA, the DOJ . . . Read More
BLOG: SBA Proposes to Implement Certification Requirement for WOSB/EDWOSBs and Revise Economic Disadvantage Criteria for 8(a) Eligibility
A few years ago, we wrote about how through the 2015 NDAA, Congress directed SBA to end self-certification for WOSBs and EDWOSBs and implement a certification process. On May 14, 2019, SBA issued the proposed rule which, if finalized, would implement a certification requirement for WOSBs and EDWOSBs. In this proposed rule, SBA has also proposed revising the economic disadvantage criteria for 8(a) companies, particularly for initial eligibility purposes, and to make these consistent between the 8(a) and EDWOSB programs. WOSB/EDWOSB . . . Read More
BLOG: CVE Denies SDVOSB Verification Application Based on Outdated VIP Profile
SDVOSBs participating in the VA’s Veterans First Contracting Program are required to maintain a Vendor Information Page (“VIP”) profile which contains a significant amount of information about the company, such as ownership structure, financial data, and capabilities. Making sure this information is current and accurate is critical to your verified SDVOSB status, as a recent OHA decision demonstrates. In CVE Appeal of Supreme Cleaning, Inc., SBA No. CVE-114 (2019), the appellant, Supreme Cleaning, Inc. (“Supreme Cleaning”), appealed the VA Center for . . . Read More
BLOG: Federal Appeals Court Gives $34 Million False Claims Act Pay Day to Whistleblower and Takes it From Another
“It was the best of times, it was the worst of times . . . .” Charles Dickens was not thinking of the False Claims Act when he wrote “A Tale of Two Cities,” but the First Circuit Court of Appeals was when it decided United States ex rel. McGuire v. Millenium Laboratories, Inc.earlier this week. With the decision, a three judge panel of that Court moved over $34 million in relator fees from one whistleblower to another, highlighting the risks—for both . . . Read More
BLOG: SBA Adopts New Size Standard Methodology and Says Updates to Size Standards Coming in “Near Future”
Earlier this month, SBA published its final rule adopting a revised size standards methodology. My colleagues, Jon Williams and Tim Valley, previously described the proposed changes to the methodology in a blog last year. The final methodology white paper adopts all the changes SBA proposed with minor revisions. SBA is moving from an “anchor” approach to a “percentile” approach. Under the anchor approach, SBA generally evaluated the characteristics of individual industries relative to the average characteristics of industries with an anchor size standard ($7.5 million and . . . Read More
BLOG: An Agency’s Corrective Action Decision Is Not Immune to Protest—What Does It Take to Win?
Corrective action is a common outcome of a bid protest. Indeed, the U.S. Government Accountability Office (GAO) reported that 29% of the protests filed in FY 2018 resulted in corrective action. If you are a protester, that may be great news. In the case of a post-award protest, it likely means that you have another shot at award. However, if you are an intervenor, it means the agency chose not to defend your award, and you could lose the contract. . . . Read More