HUBZone Definition of “Employee” Not So Black-and-White
In a recent decision, HUBZone Appeal of Q Services, Inc., the Small Business Administration (“SBA”) clarified that the number of hours worked by a person does not bar SBA from examining the totality of the circumstances to determine whether that individual qualifies as an employee for HUBZone program eligibility purposes. Under SBA’s HUBZone regulations, if a person works a minimum of 40 hours per month (whether employed on a full-time, part-time, or other basis), that individual will be treated as . . . Read More
The Risk of Certifying as Small Without Tax Returns
We are regularly contacted at this time of year, before tax returns are due, by companies that wish to pursue small business set-aside contracts but have not yet filed their tax returns. These inquiries stem from the belief by some firms that, because their tax returns have not been completed, they may still self-certify as a small business while knowing, or suspecting, that their immediate, prior year revenues make them large. This misunderstanding of the size regulations can have dire . . . Read More
VA Amends Rules on Price Adjustments, Comments on Its Use of the Vets First Authority and Cascading Set-Asides
On February 21, 2018, the U.S. Department of Veterans Affairs (VA) issued final rules to amend its regulations that pertain to Economic Price Adjustment clauses for firm-fixed-price contracts, identifying VA’s Task-Order and Delivery-Order Ombudsman; clarifying the nature and use of consignment agreements; adding policy coverage on bond premium adjustments and insurance under fixed-price contracts; and providing for indemnification of contractors for medical research or development contracts. These final rules adopt the proposed rule published on March 13, 2017, and will . . . Read More
SBA’s Office of Hearings and Appeals Clarifies the (Not So Obvious) Effect of Size and Status Recertifications
In a recent case with wide-ranging implications, the Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) confirmed the broad nature of SBA’s general rule that a contractor maintains its size and socio-economic status for the life of a contract. See In the Matter of Analytic Strategies, Inc., SBA No. VET-268 (Jan. 29, 2018) . As a quick primer, SBA regulations provide that, where a concern represented itself and qualified as small and/or for a certain socio-economic status (e.g., SDVOSB, HUBZone, EDWOSB/WOSB) at the time of its initial offer, it maintains that . . . Read More
Review of NAICS Codes Assignments Reveals Inconsistencies and Small Percentage of Successful Appeals
The U.S. Government Accountability Office (“GAO”) has released a report on its review of several issues related to the North American Industry Classification System (“NAICS”) codes. Although it found that there are some inconsistencies in the assignment of NAICS codes – and thus size standards – for substantively similar procurements, only about 20 percent of NAICS codes appeals are successful. This is likely due to the fact that, in order to win a NAICS code appeal, an appellant must demonstrate . . . Read More
Cybersecurity Update
Last month many of you listened to the webinar Jon Williams and I did regarding the December 31, 2017, deadline to comply with the Department of Defense (DoD) Federal Acquisition Regulation Supplement (DFARS) 252.204-7012 and how to implement the security controls set forth in the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171. Now that the deadline has passed and we’ve entered into a new era of being compliant with the rules, we thought it would be a . . . Read More
Defining “Unconditional” Ownership and Control of SDVOSBs: SBA Proposes to Relax Ownership and Control Requirements
Recently, we wrote about the VA’s proposed rule to eliminate its own ownership and control criteria for SDVOSB and VOSB eligibility under the Vets First contracting program. The proposed rule stems from Congress’ mandate in the National Defense Authorization Act for Fiscal Year 2017 (“NDAA”) that SBA be the sole agency responsible for issuing regulations relating to the ownership and control of SDVOSBs and VOSBs. On Monday, the SBA released a proposed rule regarding the sole definition of ownership and control that would apply . . . Read More
Don’t Get Lost Filing and Prosecuting CDA Claims
Although the Contract Disputes Act (“CDA”) is intended to provide an efficient way for contractors to resolve disputes with the Government, contractors often encounter difficulties when submitting and prosecuting CDA claims. A claim may not satisfy the CDA’s requirements, such as providing a certification or requesting a final decision. Or, a contractor may face problems at the appeal stage due to jurisdictional issues. A recent decision from the Federal Circuit, Securiforce International America, LLC v. United States, Nos. 2016-2586, 2016-2633 (Fed. Cir. Jan. 17, 2018) , provides a good reminder on some of these issues. . . . Read More
How to Tell Your Customer “Hands Off My Workforce!”: Understanding Your Rights as a Government Contractor
I need this project completed by next week! We decided to move your offices down two floors. Can you work through the weekend? Most contractors are used to their government customers’ idiosyncratic preferences. Satisfying the customer’s needs is par for the course. But at what point does a government official’s overbearing nature change from inconvenient to impermissible? This is a question we’ve been hearing more and more often from our clients. As a rule, the government is not supposed to . . . Read More
The Government Shutdown Top 10: Things You Should Know Before You Send Employees Home
With a possible federal government shutdown looming, many government contractors will face difficult employment decisions. If your company could be facing these decisions, keep in mind the following labor and employment issues that could expose the company to liability: 1. Don’t risk exemptions under the Fair Labor Standards Act (FLSA): Employers should exercise caution so as not to risk losing an employee’s exempt status that may trigger liability for overtime hours the employee worked prospectively and retrospectively. An exempt, salaried employee . . . Read More