As many of our clients know, there are several mentor-protégé programs run either by the SBA or specific agencies that are intended to help small businesses develop and enhance their ability to serve as a prime contractor or subcontractor in federal contracts. For example, the SBA has the 8(a) mentor-protégé program and the all-small mentor-protégé program, and it also approves agency mentor-protégé programs, such as the Department of Homeland Security’s program, which is designed to help small businesses obtain and perform subcontracts under agency prime contracts.
The Department of Defense (DoD) also has an agency-specific mentor-protégé program, but it was a creature of statute, like the SBA’s programs, and does not require SBA approval. Congress first authorized a pilot mentor-protégé program for the DoD in 1990, and the program began in October 1991. Since then, it was renewed, expanded, and changed. However, the National Defense Authorization Act (NDAA) for fiscal year 2016 expanded the program only through fiscal year 2018 for the formation of new mentor-protégé agreements and through fiscal year 2021 for the reimbursement of costs incurred under existing agreements, among making other changes to eligibility requirements. In other words, the DoD’s mentor-protégé program—agency-described as “the oldest continuously operating federal mentor-protégé program in existence”—was allowed to expire by Congress in 2018.
Last month, Senator Martin Heinrich (D-NM) and Senator Joni Ernst (R-IA) introduced the Defense Small Business Advancement Act of 2019 (S.1320), intended to reauthorize and—according to articles and press releases—improve the DoD’s mentor-protégé program. Specifically, the bill permanently authorizes the mentor-protégé program, requires the DoD’s Office of Small Business Programs to establish performance goals and conduct periodic reviews of approved mentor-protégé agreements, and strikes all references to “pilot program.” To date, the bill was referred to, and remains in, the Senate Committee on Armed Services.
When first introduced, DefenseNews opined that the timing of the bill’s introduction sets it up for inclusion in the NDAA for fiscal year 2020. Indeed, the Senate Committee on Armed Services referred the Senate’s version of the NDAA for fiscal year 2020 to the full Senate, and the text of that bill (S.1215) includes a section providing for the codification and permanent authorization of the DoD’s mentor-protégé program. It does not include the provisions proposed by Senators Heinrich and Ernst requiring performance goals and reviews, but it would make the program permanent. The House’s version of the NDAA for fiscal year 2020 (H.R. 2500) is scheduled for markup by the House Committee on Armed Services on June 12, 2019, but it does not contain a corresponding permanent authorization for the DoD’s mentor-protégé program.
We will monitor whether the Senate version of the NDAA for fiscal year 2020 is passed in the Senate and referred to the House before the House version is passed and sent to the Senate. Since the House and Senate must ultimately pass the same bill for it to be sent to the President for signature, the fate of the DoD’s mentor-protégé program, at least at present, seems to rest on which version of the NDAA is ultimately passed by Congress.
In the meantime, please contact a member of PilieroMazza’s Government Contracts Group if you have questions about the DoD’s program or other mentor-protégé programs, as well as ways in which we can assist you in developing and enhancing your ability to serve as a prime contractor or subcontractor in federal contracts.
Emily Rouleau, the author of this blog, is a member of the firm’s Government Contracts Law, Business & Transactions Law, Labor & Employment Law, and Litigation practice groups.