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
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
The VA Proposes to Align Vets First Ownership and Control Eligibility Criteria with the SBA’s Regulations
On January 10, 2018, the VA issued a proposed rule to eliminate its own ownership and control criteria for SDVOSB and VOSB eligibility under the Vets First contracting program, in order to align ownership and control requirements with the SBA’s SDVOSB program regulations. The proposed rule implements Congress’ mandate in the 2017 National Defense Authorization Action (“NDAA”) that the SBA be the sole agency responsible for the establishment of ownership and control requirements governing SDVOSB and VOSB eligibility. In an attempt to . . . Read More
New Year, New Certification?
With a new year upon us, it is an optimal time for contractors to review their size/status certifications on SAM.gov. A contractor’s representations in the SAM database qualify as certifications upon which federal agencies and prime contractors may rely. An inaccurate certification on SAM could lead to a protest by the SBA or liability under the False Claims Act. Therefore, it is vital that contractors keep these certifications up-to-date. SBA’s regulations require contractors to certify their size in SAM “at . . . 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 Rothe 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 . . . 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
The Sisyphean Labor of the DAR Council: Segregation and Reintegration Data Rights
Having just presented on data rights issues to a number of government contracting officers and procurement professionals, as well as private sector contract management personnel, during the 2017 National Contract Management Association World Congress, it became clear that many people are confused (and rightly so) about what is happening with regard to the segregation and reintegration rules. Given that it took four years to get the first DFARS rule proposed, and then, in the 2017 National Defense Authorization Act (“NDAA”), . . . Read More
SBA Launches New HUBZone Map
The Small Business Administration (“SBA”) recently launched a new version of the Historically Underutilized Business Zone (“HUBZone”) map on the SBA website. The new HUBZone map designates areas as eligible HUBZone locations and indicates whether an address qualifies as one or more HUBZone designations, such as census tract, county, Indian land, disaster area, closed base area, or redesignated area. For certain types of HUBZones, like redesignated areas, disaster areas, and closed base areas, the map also indicates the date when . . . Read More
Do the Proposed Changes to SBA’s HUBZone Program Go Far Enough?
H.R. 3294, the HUBZone Unification and Business Stability Act of 2017, proposes several changes to the HUBZone program that are intended to reduce certification timelines, stabilize the program, and collect and report on performance metrics designed to measure the success of the HUBZone program. While this is a step in the right direction, the proposed changes do not go far enough to provide a meaningful impact to the deficiencies in the program. To analyze the positive impact the proposed bill . . . Read More
House Bill Would Reduce Use of LPTA in All Agencies’ Procurement
A recent bill before the U.S. House of Representatives seeks to limit the use of the lowest price technically available (“LPTA”) source selection process in procurements. H.R. 3019, which was introduced on June 22, 2017, would create a policy to avoid using LPTA criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process. The LPTA process dictates that when conducting a competitive procurement, the agency will select the offeror that . . . Read More