Relying on an Affiliate for Past Performance to Win A Contract
Government contractors work hard to please their customers not only to fulfill their contractual obligations but also to establish a solid past performance record and to secure more work. When a company lacks past performance experience, it can find itself at a significant competitive disadvantage against its competitors. Companies without track records often try to address the problem by relying on the experience of an affiliated entity. The affiliate could be a new company they have acquired or, for example, . . . Read More
Mediation: The Conflict Resolution of Choice for Many Business Disputes
Chances are that your company, at some point, has entered into a contract that contains a provision requiring that the parties engage in a form of alternative dispute resolution (“ADR”) either in lieu of, or prior to, instituting a lawsuit to settle a dispute. Contractual ADR provisions usually call for the parties to either engage in binding arbitration, typically under the auspices of the American Arbitration Association (“AAA”), or to submit the matter to non-binding mediation prior to filing suit. It is a . . . Read More
SBA Regulation Invalidated by Court of Federal Claims: Nonmanufacturer Rule Applies to Supply Portions of Service Contracts
It has been the common understanding within the U.S. Small Business Administration (“SBA”), and the small business government contracting community as a whole, that the nonmanufacturer rule applies only to contracts for the provision of supplies (i.e., goods) and not to service contracts, regardless of whether or not such service contracts have a supply component. This understanding was even memorialized in a regulatory change that SBA made in 2011 whereby the agency stated that the nonmanufacturer rule did not apply . . . Read More
The Ins and Outs of NAICS Code Appeals
By Katie Flood In this time of heightened competition on all federal procurements, it is critically important that small business contractors use the tools at their disposal to help them stay competitive and secure work. While agencies are able to “set-aside” work for small businesses, a fundamental aspect of these set-asides ends up being the North American Industry Classification System (NAICS) codes and the corresponding size standards which must be assigned. The NAICS code determines the industry which “best describes” the work to be performed . . . Read More
SBA’s Template for Joint Venture Agreements – Is it OK to Use for your 8(a) Joint Venture?
By Kimi Murakami The answer as to whether 8(a) firms can use the U.S. Small Business Administration’s (“SBA”) joint venture (“JV”) agreement template seems to depend on which SBA District Office your small business is governed by. Recently, some of our small business clients that are governed by the SBA’s Washington Metropolitan Area District Office received notice from their Business Opportunity Specialist (“BOS”) that the agency’s template for JV agreements would no longer be accepted. It is unclear whether this is true for all SBA . . . Read More
Attract and Retain Top Talent When You Cannot Compete Straight Up on Cash
One of the biggest challenges that a business owner may face is attracting and retaining top talent to help drive value and build their company. There are a variety of employee incentive compensation tools that can be used to attract and retain talent. Business owners need to consider: Which type of employee incentive tools will work best for that particular business owner’s company? To answer that question, a business owner needs to drill down on what goal is to be . . . Read More
Skipping Intervention in a GAO Bid Protest Can Be a “Pound Foolish” Exercise
Virtually everyone agrees that bid protests before the U.S. Government Accountability Office (“GAO”) are valuable tools to ensure the integrity, fairness, consistency, and predictability of the federal procurement system. However, for awardees of federal contracts, bid protests by their competitors are often a frustrating and costly process that can cause delays and uncertainties for their future operations. Because of the costs and distractions to the business, it is not uncommon for contractors—particularly those who are small—to choose not to intervene or otherwise participate in . . . Read More
Big Jumps Proposed to Size Standards for Environmental Remediation and Other Employee-Based Size Standards
On September 10th, SBA released proposed increases to the small business size standards for many of the industries that use employee-based size standards. The affected industries include some very popular ones for the contracting community, such as Environmental Remediation Services (exception to 562910), Research and Development in Biotechnology (541711), and Research and Development in the Physical, Engineering, and Life Sciences (541712). In many cases, the proposed increases are significant, allowing more and larger firms to qualify as small in these . . . Read More
The Importance of a Formal Document Retention Policy
By Brian Wilbourn As all of us are likely painfully aware, the volume of emails, correspondence and other documents that we generate and receive, whether we’re at home or at work, seem to grow at an ever-increasing rate. At home, we can often dispose of unwanted papers and files with little worry. In business, however—and for government contractors in particular—disposing of the wrong documents can have serious consequences. On the other hand, while contractors do not want to delete the . . . Read More
2013 Federal Small Business Contracting Scores an A!
By Barbara Connell with Aronson LLC On August 1, 2014, the Small Business Administration (SBA) released the Small Business Procurement Scorecard for fiscal year 2013. The annual scorecard is an assessment tool that measures how well federal agencies reach their small business and socio-economic prime contracting and subcontracting goals and reports agency-specific progress. Federal agencies scored an A for fiscal year 2013, achieving 100.6% of their 2013 small business contracting goals. For the first time in over 7 years, the . . . Read More