OHA Confirms M&A-Related Recertification Won’t Impact Contractor’s Eligibility Under Pre-Existing, Set-Aside Contracts
For small businesses, navigating the recertification rules promulgated by the Small Business Administration (SBA) is no easy task. SBA rules generally provide that the size of a concern is determined at the date of its initial offer including price and if the firm is small at that time, it generally will be considered small throughout the life of the contract. However, if a concern undergoes a merger, sale, or acquisition, or novates its small business contract to another concern (each . . . Read More
GSA Moratorium on Enforcement of Economic Price Adjustment Provisions: 3 Important Takeaways for Government Contractors
In response to rising costs for government contractors amid skyrocketing inflation, the General Services Administration (GSA) is temporarily suspending the enforcement of many limitations contained in several Economic Price Adjustment (EPA) contract clauses. Below we summarize three important takeaways for federal contractors—especially small businesses and small-disadvantaged businesses—to help you manage your GSA contract performance in light of rapidly changing economic circumstances. The GSA’s March 17, 2022, acquisition letter establishing the moratorium applies to these EPA contract clauses: GSAR 552.216-70 Economic . . . Read More
The Significance of Equal Pay Day for Federal Contractors
This past Tuesday, March 15, marked Equal Pay Day, a day signifying how far into this year women (across all races and ethnicities) had to work to earn what men were paid in 2021. While the topic of pay equity is not new, recently there has been growing momentum on the state and federal levels to strive towards equal pay across genders. We previously wrote about the changing landscape on the pay equity front here . To commemorate Equal Pay Day, . . . Read More
President Biden Signs PRICE Act to Reform Federal Procurement and Help Federal Small Business Contractors
President Biden recently signed the PRICE Act (Promoting Rigorous and Innovative Cost Efficiencies for Federal Procurement and Acquisitions Act). The Act expands opportunities for small businesses to work with the federal government and encourages identification and promotion of best practices for acquisition techniques and procurement practices. In this blog, we review the goals of the Act and its impact on the small business contracting community. The PRICE Act amplifies the role of federal small business contractors by encouraging the adoption of innovative . . . Read More
Board Rejects Software Company’s Attempt to Enforce License Agreement Against Government Agency
Software companies frequently choose to sell their products to the government through resellers as a cost-effective way to reach the federal marketplace with minimal compliance obligations. But even when the government purchases software from a reseller, the government often must agree to the software company’s end-user license agreement (EULA). For years, there have been questions about how software companies could enforce those EULAs. There is still no definitive answer, but the Civilian Board of Contract Appeals (CBCA) recently confirmed that . . . Read More
SBA HUBZone “Legacy Employee” Grace Period Ends: 3 Changes Affecting Recertification in 2022
As part of sweeping changes to the HUBZone rules in the 2019 Final Rule , SBA implemented the so-called HUBZone “legacy employee” rule. This new rule was welcomed by HUBZone firms because it permits them to continue counting an employee as a HUBZone employee even after the employee moves out of a HUBZone, as long as certain requirements are satisfied. Specifically, to qualify as a HUBZone legacy employee, the rule requires that an employee (i) reside in a HUBZone for at least 180 . . . Read More
DOJ Recovers Over $5.6 Billion From Fraud and False Claims Act Matters in FY 2021: 6 Key Takeaways
On February 1, 2022, the U.S. Department of Justice (DOJ) announced that it had recovered more than $5.6 billion in Fiscal Year (FY) 2021 settlements and judgments from civil cases involving fraud and the False Claims Act (FCA). This total represents the second-largest government haul for such matters ever and the largest recovery since FY 2014. The over $5.6 billion also far outpaces DOJ’s approximately $2.25 billion in FY 2020 recoveries. The announcement showcases DOJ’s heightened focus on fraud in government . . . Read More
Three’s Company: Court Decisions Clarify Company’s Role in FOIA Litigation Over Possible Release of Confidential Information
Two recent appeals court decisions highlight a company’s role in Freedom of Information Act (FOIA) litigation challenging the government’s decision to withhold the company’s information from public release. These types of FOIA lawsuits arise when the government refuses to release a company’s confidential information after a FOIA request and the requester challenges the action in federal court. In federal court, the government bears the burden of proving that the withheld information falls within a FOIA exemption, but the company that . . . Read More
PPP Loan Fall-Out: Expect More Audits and Investigations
Unfortunately, the PPP Loan fall-out is far from over. As we noted in the last blog on PPP issues , we are seeing a number of PPP Forgiveness denials for a number of different reasons, and, along with that, we are seeing the first audits and investigations as well. Specifically, companies that already received forgiveness for loans over $2M are being audited and investigated by SBA on a rolling basis. As part of that, SBA is asking for additional supporting documentation for the amounts claimed, . . . Read More
OHA Decision on Recertification May Impact Eligibility of Small Business Contractors Competing for Set-Aside Contracts
Over the past few years, the Small Business Administration’s (SBA) recertification rules have been the subject of much debate, with some arguing that recertification impacts an offeror’s eligibility for award and for future set-aside orders under multiple-award contracts (MACs). These rules came under further scrutiny in a recent size protest and appeal to the SBA Office of Hearings and Appeals (OHA). OHA’s decision makes a number of important clarifications regarding the impact of recertification on small business contractors’ eligibility to . . . Read More