SBA Proposes Rules for OHA to Consider CVE Appeals and Protests
In late October 2017, the period to comment on SBA’s proposed rule to amend the SBA Office of Hearings and Appeals (“OHA”) rules of practice to implement provisions of the National Defense Authorization Act for Fiscal Year 2017 (“2017 NDAA”) closed. By way of background, the 2017 NDAA, which Congress passed on December 23, 2016, prohibits the VA from issuing rules related to the status of SDVOSB, requiring it to instead follow SBA regulations. The 2017 NDAA specifically granted OHA . . . Read More
Enhanced DoD Debriefing Requirements in the Senate Version of the FY 2018 NDAA May Reduce Bid Protests
On September 18, 2017, the Senate passed its version of the National Defense Authorization Act (“NDAA”) which authorizes nearly $700 billion in defense spending for Fiscal Year 2018 and contains significant procurement reform provisions. One of those reforms deals with new Department of Defense (“DoD”) debriefing requirements. Currently, unsuccessful offerors are entitled to little information under FAR part 15 procurements. Under FAR 15.506(d), a post-award debriefing must include, at a minimum: the agency’s evaluation of any significant weaknesses or deficiencies . . . Read More
Imminent Deadline Looms for Government Contractors on Cybersecurity Compliance
Now that the government fiscal year end has passed, government contractors that handle controlled unclassified information (“CUI”) must turn their attention – if they haven’t already – to the quickly approaching calendar year end deadline of being compliant with cybersecurity obligations imposed under Defense Federal Acquisition Regulation Supplement (DFARS) § 252.204-7012. U.S. Department of Defense (“DoD”) rules adopted in 2016 require that government contractors handling “controlled unclassified information” have until December 31, 2017, to implement standards set forth in NIST . . . Read More
Has the Government Solicited Bids Under the Correct 2017 NAICS Code? Here’s How to Make Sure That It Does!
On October 1, 2017, the U.S. Small Business Administration (“SBA”) updated its table of the North American Industry Classification System (“NAICS”) codes, which resulted in numerous changes, including additional industries, the merger of industries, and increased and decreased size standards. For example, NAICS 452210 (Department Stores) was combined into one industry from two 2012 NAICS Codes: 452111 (Department Stores except Discount Department Stores) and 452112 (Discount Department Stores). Additionally, NAICS 452210’s size standard increased from 29.5 Million to 32.5 Million. . . . Read More
U.S. Supreme Court Denies Petition for Certiorari on Constitutional Challenge to 8(a) Program
On October 16, 2017, the U.S. Supreme Court denied the petition for a writ of certiorari filed by Rothe Development, Inc. in R othe Development, Inc. v. Department of Defense & Small Business Administration . Rothe, a non-minority-owned federal contractor, challenged the SBA’s 8(a) Program, a program which gives benefits to small business concerns owned and controlled by socially and economically disadvantaged individuals. Rothe alleged that the statutory basis of the 8(a) Program denies it, a company not owned or controlled by socially and economically disadvantaged individuals, equal protection of the law, . . . Read More
Limitations on Subcontracting – What’s the Latest and Why Isn’t It in My Contract Yet?
Over a year ago, SBA released its final rule implementing changes in how limitations on subcontracting are calculated for set-aside prime contracts. Not a day goes by that we do not field questions from clients as to what these new SBA regulations mean and how to determine compliance. By far, the biggest query we receive is whether SBA’s limitations on subcontracting rules (e.g., 13 C.F.R. § 125.6) are incorporated into a current contract. It is SBA’s position that these new . . . Read More
Important Update Regarding 8(a) Applications
Seemingly without notice, this past weekend, SBA updated its General Login System (“GLS”) to no longer allow new 8(a) applicants to create a profile in GLS. This is so that SBA can launch their streamlined and modernized 8(a) application process through certify.sba.gov. The certify.sba.gov platform is SBA’s initiative to harmonize the certification process for all of its small business contracting programs – such as 8(a), woman-owned small business, all small mentor/protégé program, and HUBZone – into one online platform. However, . . . Read More
SBA Office of Hearings and Appeals Reaffirms “Unconditional Ownership” Requirement in the SBA SDVOSB Program
A recent case reinforces that, just because the corporate governing documents of an SDVOSB satisfy the unconditional ownership requirements for VA’s SDVOSB set aside program, does not mean that the unconditional ownership requirements under SBA regulations will be met. Last month, the SBA Office of Hearings and Appeals issued a decision, Veterans Contracting Group, Inc., SBA No. VET-265 (2017), which reaffirmed the SBA SDVOSB Program’s requirement that an SDVOSB be 51-percent unconditionally and directly owned by one or more service-disabled . . . Read More
Do Not Underestimate the Importance of Small Business Subcontracting Plans
Companies that pursue contracts with the Federal Government should not underestimate the importance of small business subcontracting plans. If you do business with the Government and are not a small business, you are likely aware that any contractor receiving a contract with a value greater than $150,000 must agree in the contract that small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns will have the maximum practicable opportunity to . . . Read More
Bankruptcy Fails to Save Contractor from Multimillion Dollar SCA Back Wage Liability
Any contractor who has been subject to a Department of Labor (“DOL”) investigation knows what unease feels like, even if there is no reason to believe the company will be subject to liability. One of the first questions we get as we help companies maneuver the process is “what are the consequences if DOL does find something wrong?” For companies that quickly realize there might be a problem, this question is even more poignant. Last month FPMI Solutions, Inc. (“FMPI”), . . . Read More