President Trump Signs Small Business Runway Extension Act of 2018 into Law
On December 17, 2018, President Trump signed the Small Business Runway Extension Act (H.R. 6330) into law . As we discussed in our previous blog , the Small Business Act previously measured a company’s size under the prescribed size standards on a basis of the company’s average annual receipts from the previous three years; the new law extends this time to the previous five years. The change was designed to reduce the impact of rapid-growth years and resulting spikes in revenue that could prematurely eject a . . . Read More
Key Considerations for Government Contractors Facing a Government Shutdown
A government shutdown is looming once again. Congress has already passed five of the twelve FY 2019 funding bills, which fund 70% of the government through September 2019, through two vehicles. H.R. 6157 includes funding for the Departments of Defense, Labor, Health and Human Services, Education, and related agencies. H.R. 5895 provides funding for the Departments of Energy, the Interior (Bureau of Reclamation only), Veterans Affairs, and related and independent agencies, as well as the Army Corps of Engineers civil works projects, and the . . . Read More
Congress Passes New Receipts Calculation for Determining the Size of Small Businesses
On December 6, 2018, the Senate passed the Small Business Runway Extension Act (HR 6330) , which amends the Small Business Act by changing the time period for determining a company’s size based on average annual receipts. Initially, the Small Business Act required a company’s compliance with the size standards to be prescribed on the basis of the company’s average annual receipts from the previous three years; the Small Business Runway Extension Act extends this time to the previous five years. The House passed the bill on . . . Read More
SBA Proposes Significant Changes to Its Small Business Regulations
On December 4, 2018, the U.S. Small Business Administration (“SBA”) issued a proposed rule (“Rule”) to implement several provisions of the National Defense Authorization Acts (“NDAA”) of 2016 and 2017 and the Recovery Improvements for Small Entities After Disaster Act of 2015 (“RISE Act”), as well as other clarifying amendments. The Rule will likely garner a lot of attention in the coming weeks, as it proposes a number of sweeping amendments that could have a significant impact on small business government contracting. . . . Read More
Important Changes Governing Limitations on Subcontracting Immediately Affecting All DoD Procurements
In a welcome step towards regulatory conformity, on December 4, 2018, the FAR Council finally issued its proposed rule to bring the FAR into compliance with the statutory requirements of § 1651 of the NDAA for FY 2013, which governs limitations on subcontracting. The proposed rule will conform the FAR’s limitations on subcontracting clause, FAR 52.219-14, with how SBA performs the calculation, codified at 13 C.F.R. § 125.6. The proposed rule signals an end to two years of relative uncertainty for contractors . . . Read More
Limitations on LPTA Coming to DFARS
On December 4, 2018, DOD issued a proposed rule amending the DFARS to impose limits on the use of the lowest price technically acceptable (“LPTA”) source selection process. These changes are driven by the National Defense Authorization Acts (“NDAA”) for Fiscal Years 2017 and 2018. Notably, the 2018 NDAA directed similar changes to the FAR, but there is no proposed change to the FAR yet. DOD proposes adding a new DFARS section, 215.101-2-70, to address the limitations and prohibitions on the use . . . Read More
Avoiding Flat Tires When Acquiring IDIQ Contract Vehicles
With proposals costing hundreds of thousands of dollars and many IDIQs having 50 or more awardees, it can easily happen that some contractors who win a spot on a contract are unable to capitalize on it and simply stop trying to capture task orders. Whether it was because the initial win was based on sheer luck or perhaps because of a tragic, unforeseeable change in circumstances, making it impossible to bid or even keep the company doors open, a contractor . . . Read More
Three Indicators You Need an OCI Mitigation Plan
The risk of an organizational conflict of interest (“OCI”)—either perceived or actual—strikes fear in the heart of many a government contractor. An OCI may result in disqualification from a procurement, an adverse bid protest decision, or termination of a contract. Although that can be unnerving, in many cases, an OCI is mitigatable if the contractor implements measures to avoid, neutralize, or mitigate the conflict. At the same time, it is critical to implement a mitigation plan early on. For this . . . Read More
Big Changes Are Coming for SBA’s HUBZone Program
For the first time in 20 years, SBA is proposing an extensive overhaul of its regulations for the HUBZone program. SBA recognizes the difficulty firms face getting into and staying in the HUBZone program, so they are revising the HUBZone rules to provide greater certainty to HUBZone applicants and participants. The proposed rule would reduce the regulatory burdens imposed on HUBZone small business concerns and on government agencies by eliminating ambiguities in the regulations and making it easier for HUBZone . . . Read More
Federal Circuit Confirms That VA Rule of Two Analysis Is Required for All Types of VA Procurements
Last year, I wrote about a decision of the U.S. Court of Federal Claims (“COFC”) in which it held that the U.S. Department of Veterans Affairs (“VA”) must perform a “Rule of Two” analysis to determine whether at least two veteran-owned small businesses (“VOSB”) are capable of performing the work at issue before procuring the work through a non-VOSB set-aside solicitation, including through the AbilityOne Program. That case, PDS Consultants, Inc. v. United States, was appealed by VA and the awardee of . . . Read More