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  1. This week, the SBA published a press release affirming its continued support of its 8(a) Business Development Program in response to recent 8(a) Program attacks in the courts. In the press release, business industry leaders across the nation joined SBA Administrator, Isabella Casillas Guzman, in praising the 8(a) Program, its successful history, and its driving policy and spirit. If you are not up to speed on the recent 8(a) Program happenings, take a look through the recent 8(a) articles collected in our 8(a) Contractors’ Toolkit for more information. But in a nutshell, there was a recent federal district court decision in Ultima Servs. Corp. v. U.S. Dep’t of Agric. that enjoined the SBA from applying a rebuttable presumption of social disadvantage based on membership in a marginalized racial or ethnic group, which you can read about here. Since that decision, the 8(a) Program has been experiencing some interruptions, as well as some monumental changes. For a period of time, all new applications were paused. And many applicants and participants were nothing short of panicked as to what was going to happen to this wonderful program and their participation in it. Since then, SBA’s 8(a) Program certification portal, certify.sba.gov, has been reopened, and 8(a) Business Opportunity Specialists across the country have been working with current participants to maintain their eligibility generally and for pending 8(a) awards. SBA is now requiring all new applicants and all existing 8(a) Program participants to draft a detailed narrative to demonstrate its compliance with the social disadvantage requirement–just one of the numerous 8(a) Program eligibility rules. So, since SBA has now implemented official changes removing any type of race- or ethnicity-based presumption of social disadvantage for individuals applying to and already in the 8(a) Program, you may be thinking that should have ended the 8(a) Program attacks. And frankly, you would not be alone in that thought. But unfortunately, such is not the case. Claiming to be “still suffering from the lingering effects of defendants’ discrimination[,]” the plaintiff in Ultima has now also asked the court to enjoin the use of the 8(a) Program in the administrative and technical support industry altogether. The motion notes that the plaintiff does not agree with the SBA’s “interpretation of the existing injunction.” But it didn’t stop there. The plaintiff also asked the court: (i) to halt all 8(a) contract options and similar modifications for those who were previously presumed disadvantaged; (ii) to stop SBA from providing any kind of shortened or “less rigorous” narrative reviews at this time; (iii) to appoint someone to review SBA’s narrative reviews or to simply make public these extremely-personal and often-painful narratives, instead; and (iv) to enjoin all actions on 8(a) contracts with any participants previously presumed socially disadvantaged–whether they have an SBA-approved narrative in place now or not. All this to say, the SBA’s recent press release could not have come a more crucial time for the 8(a) Program, which it notes is “the federal government’s premier business development program helping socially and economically disadvantaged small business owners expand their footprint in the federal marketplace through training and contract support.” The press release begins with a powerful statement from SBA Administrator Guzman, noting the recent court injunction and order and reassuring the nation that the 8(a) Program is still “open for business.” Since the injunction, Guzman says, “SBA has reviewed or recertified thousands of current 8(a) participants through a process consistent with the court’s order[,]” and has now “reopened the 8(a) application portal to new participants – ensuring a vast, talented pool of vendors are available to federal agencies.” Guzman also notes the 8(a)’s successful history of fulfilling a crucial role in government contracting. In her words: The SBA’s 8(a) Program has more than a 50-year track record of making contracting with the U.S. government more accessible for thousands of small businesses who in turn provide critical products and services to advance agency missions. Leveling the playing field not only provides entrepreneurs from historically underserved communities the opportunity to grow their businesses, create jobs, and contribute to their local economies – it is also crucial to enhancing performance across our federal government. Finally, Guzman eloquently expresses her faith in the 8(a) Program’s future and driving policy, stating: As we await a final ruling, the SBA and Biden-Harris Administration remains committed to supporting the 8(a) Program and standing up for the small business owners who have helped drive America’s historic economic growth. We will not let attacks from those who seek to take us backward chill our efforts to promote equity, expand access to the American Dream, and ultimately strengthen our country’s industrial base. Guzman’s statements alone provide hope and reassurance in response to the recent judicial attacks on the 8(a) Program. But the press release also quotes several business industry leaders in support of the program. One such leader, Chris James, President and CEO of The National Center for American Indian Enterprise Development, calls the 8(a) Program “one of the federal government’s most effective tools for establishing and growing minority-owned businesses,” and says the following: I have witnessed its impact firsthand, both as a former SBA official and as the leader of an organization that has worked with countless 8(a) companies at all stages of their development. I applaud the SBA and Administrator Guzman for their unyielding support for the 8(a) Program and look forward to working with them to ensure minority-owned businesses have access to resources that will help them succeed. And another leader, Justin Nelson, Co-Founder and President of the National Gay and Lesbian Chamber of Commerce (NGLCC), exclaims his pleasure in seeing the reopening of the 8(a) Program to new applications. He says: This represents a significant opportunity for the diverse business community to thrive and succeed. The NGLCC looks forward to working closely with the Small Business Administration to ensure that LGBTQ and other diverse-owned businesses that have faced discrimination in their entrepreneurial journey can share their experiences and be a part of the program. The 8(a) Program is not just about federal contracting and training; it’s about empowering socially and economically disadvantaged small business owners to reach their full potential and contribute to a more inclusive, prosperous economy. In addition, the press release provides moving statements from leaders in the Native Hawaiian Organizations Association, the National Asian/Pacific Islander American Chamber of Commerce and Entrepreneurship, and additional groups promoting racial and ethnic diversity in industry, as well as the Board for Women Impacting Public Policy and other women leadership groups. In essence, each leader expresses what the 8(a) Program has done for them and their communities, explaining how the 8(a) Program has helped so many overcome the systematic barriers and inequalities that plague these groups of people. The leaders also seem to align on the wide-spread benefits the 8(a) Program’s promotion of diversity in the marketplace has provided for our nation as a whole. Ramiro Cavazos, President and CEO of the United States Hispanic Chamber of Commerce, says, “over five million Hispanic-owned businesses . . . contribute over $800 million to our nation’s economy every year[,]” and “[t]heir innovation and resilience drive America’s economy.” Together, through equitable access to key programs to level the economic playing field, we forge a path to brighter opportunities and shared prosperity.” Rhett Buttle, President of Public Private Strategies Institute, says, “[t]he program has and will continue to help entrepreneurs access the American dream to start small businesses which are the backbone of our economy.” Shaundell Newsome, Co-Chair of Small Business for America’s Future, says, “[s]mall businesses can face extra challenges and need a level playing field[,]” and the 8(a) Program “can help them thrive which in turn will bolster our economy[.]” And Chrystel Cornelius, President and CEO of the Oweesta Corporation, reminds us all of “the importance of Native entrepreneurs and small businesses in accessing significant federal contracting opportunities in supporting and building Native economies and economic sovereignty.” Finally, the press release concludes with the following statement, as well as the reiteration that the 8(a) Program remains “open for business”: In 2021, President Biden set an overall goal of awarding 15 percent of federal prime contracting to small disadvantaged businesses by fiscal year 2025, representing a 50 percent increase in spending on these businesses from when he first took office. The 8(a) Program has helped achieve historic progress toward this goal – under President Biden, federal agencies have achieved record levels of spending on contracts with small businesses overall, and with small disadvantaged businesses specifically. The federal government’s small business prime contracting program supported the creation of 727,800 jobs nationwide in fiscal year 2022 alone. * * * We at SmallGovCon are keeping a close eye on the current 8(a) Program legal landscape, and we will update our readers as this matter develops further. We–like Guzman and many of the leaders quoted in the press release–feel the 8(a) Program has provided crucial opportunities for our disadvantaged business owners nationwide. And we hope to see the program continue to thrive despite the recent attacks. Indeed, SBA’s 8(a) Program is “a long-time instrument of economic equity for minority business enterprises[,]” in the words of Ying McGuire, President and CEO of National Minority Supplier Development Council. Need assistance with your social disadvantage narrative or other 8(a) or federal contracting matters? Questions about this post? Email us or give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post SBA and Industry Leaders Reaffirm Support for 8(a) Program in Light of Recent Judicial Attacks first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  2. Partner Nicole Pottroff will be attending and presenting at the the ICBSSHOW in Oklahoma City so please stop by our table to say hello. The ICBSSHOW, offers informational sessions featuring experts in government procurement, as well as one day of matchmaking to introduce you and your business to government decision makers. Also, there is access to government agency buyers and policy leaders, prime contractors, and tribal procurement representatives looking to expand their vendor pools. The post Conference Announcement: ICBS Show, Oklahoma City, October 23-25, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  3. If you’re interested in winning more B2G business through the bid process, but you don’t have all the answers, join this LIVE forum and talk about this market with people who have helped hundreds of companies win BILLIONS of dollars in government contracts. The event host, Nick Bernardo, President & founder of MyGovWatch.com, has over 20 years of experience helping companies of all sizes figure out how to find, compete for, and actually win government contracts. Sign up now to join this free opportunity to speak with experts, who have actually helped people succeed in govcon, who can answer ALL your questions. Register here. The post MyGovWatch Live: The B2G Roundtable with Nicole Pottroff & Greg Weber, Federal Contracts Attorneys, October 18, 2023, 12:00pm CDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  4. Happy Friday the 13th! It seems very fitting to have a Friday the 13th fall in the month of October, right? The pumpkins are being gathered from the patches in preparation of carving and I see Halloween decorations everywhere I go. It’s also conference season at SmallGovCon.com. I was in Iowa last month, John Holtz is headed to Nebraska next week for the Fall Meet the Buyers Government Contracting Conference and Nicole Pottroff will be going to Oklahoma the following week for the ICBS Conference. Please come out to see them if you are in the area. Some interesting articles this week, including new cybersecurity rules, small business updates, and the continuing resolution. We hope you have a safe Friday the 13th! FAR Council updates whistleblower protection, small business rules The reason why the Air Force pulled the plug on a huge cyber contract may surprise you Credit for Lower Tier Subcontracting and Other Amendments Ownership and Control and Contractual Assistance Requirements for the 8(a) Business Development Program: Correction Diversity in government contracts still falls short of equal opportunity for disadvantaged firms Empowering Female Entrepreneurs: Tips For Success During Women’s Small Business Month Navy discourages military generative AI, LLM usage Out with the old, in with the new, as the Army tries new pilot program to off load some of its expired equipment Navy Awards 9 Companies Positions on $600M NAVFAC Construction, Repair Contract New Army chief of staff targets ‘the network’ as top modernization priority New rule sets stage for banning risky technologies from government supply chains What the continuing resolution still leaves unresolved Ownership and Control and Contractual Assistance Requirements for the 8(a) Business Development Program; Correction SDTX and RI USAOs jointly resolve False Claims Act violation The post SmallGovCon Week in Review: October 9-13, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  5. Please join attorney John Holtz, as he heads back to his home state of Nebraska, to the Meet the Buyers Conference. This is Nebraska’s premier government contracting conference where businesses can advance their contracting knowledge, connect with other business owners, and network directly with agency representatives and buyers. John will be doing two presentations: joint ventures, as well as size and affiliation issues. Don’t miss the chance to meet directly with Federal, State, and Local government agency reps, government contracting industry people, and resource providers and please stop by the Koprince McCall Pottroff table and say hi to John. More information and registration here. The post Event: Meet the Buyers Fall 2023 Conference | October 17-19 | Scottsbluff, Nebraska first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  6. A joint venture agreement must closely follow Small Business Administration rules to be compliant for a small business set-aside. And SBA interprets those rules strictly. If they are not followed, a joint venture that was up for award, can see that award go up in smoke. Here, SBA said that a joint venture involving a Service-Disabled Veteran-Owned Small Business (SDVOSB) was not compliant because it was both (a) not specific enough and (b) too detailed in providing for oversight of actions of the JV partners. In Silotech-Apex JV, LLC, SBA No. VSBC-297, 2023 (Aug. 2023), the VA sought roof replacement services under 236220, Commercial and Institutional Building Construction, with a corresponding $45 million annual receipts size standard. It was set aside for SDVOSBs and VA made award to Silotech-Apex JV, LLC (Silotech), a joint venture. A protester argued that the joint venture agreement for Silotech was noncompliant for various reasons. OHA looked at the following provisions in the joint venture operating agreement and found the agreement to lack the required level of detail. But it also placed too much control in the hands of the non-SDVOSB member. Not Detailed Enough First, a JV agreement must contain a provision “[s]pecifying the responsibilities of the parties with regard to negotiation of the contract, source of labor, and contract performance ….” 13 C.F.R § 128.402(c)(7). OHA noted that the purpose of the solicitation was roofing replacement and had definite details, “providing roofing specifics, details on buildings, drawings of the roof, and locations.” The JV agreement: states “[e]ither venture will have the right to visit the contract site to evaluate the contract performance … [b]oth venturers will jointly have qualified site representation onsite during construction.” Section 7.0 of the JV Agreement further states “the venture” will identify key personnel, with Silotech “taking the lead”; identifies Silotech Group as the responsible member for contract negotiations; and identifies the percentages of work to be performed by each member. OHA found this noncompliant because the agreement “does not specify the responsibilities of the parties as to contract performance” even though the solicitation included plenty of details related to contract performance areas with respect to roofing replacement. Note that the regulation does allow a lesser showing of detail for indefinite contracts under 13 C.F.R. 128.402, which states that, “If a contract is indefinite in nature, such as an indefinite quantity contract or a multiple award contract where the level of effort or scope of work is not known, the joint venture must provide a general description of the anticipated responsibilities of the parties with regard to negotiation of the contract, source of labor, and contract performance[.]” 13 C.F.R § 128.402(c)(7). Control by Non-SDVOSB Member Second, the JV Agreement created problems with negative control by the non-SDVOSB member. “The managing venturer must be responsible for controlling day to day management and administration of contract performance.” 13 C.F.R. § 128.402(c)(2)(i). Negative control is the ability to block actions by the SDVOSB managing venturer, such as through preventing a quorum or having a veto power. OHA determined that the JV Agreement documents gave too much control the non-SDVOSB member: Regarding new hires, job boards, terminations, badges, offer letters and other HR like responsibilities, the Operating Agreement states “[e]ach party shall be responsible for this task within their scope of work.” Thus, [non-SDVOSB company] ACS may exercise negative control by controlling the hiring and firing of employees, and other HR actions. ACS could conceivably exercise control by withholding enough employees from performance of the contract. OHA has repeatedly determined that the ability to hire and fire employees is considered day to day management and can result in negative control. Therefore, Silotech (the SDVSOSB company) did not have control of the day-to-day management and administration of contract performance. Arguably, having control over one’s own employees seems within the realm of involvement “as is commercially customary” under 13 C.F.R. § 128.402. But OHA did not agree, finding that the SDVSOB managing venturer must have control over contractual performance. Conclusion Joint venture members must be careful that their joint venture agreements include all required information under the pertinent SBA joint venture regulations. But they also must be careful not to include too much information. Conceivably, the language about each company controlling its own employees could have been left out of the joint venture agreement, perhaps avoiding some of the problems raised in this decision. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Joint Venture Agreement Fails for Lack of Detail–And Too Much Detail on Venturer Control first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  7. This week we had some actual fall temperatures at the SmallGovCon home offices. It’s finally pumpkin spice weather! We’ll be enjoying the fall weather and some football this weekend. Hope you enjoy the fall weather as well, along with some of top federal contracting headlines, including the continuing resolution to fund the government, new cyber rules, and the opening of the 8(a) portal. Fight over DHS consulting contracts moves to court What’s in the continuing resolution, and when does it expire? New cyber rules aim to standardize requirements for federal contractors SBA Administrator Guzman Releases Statement on the Reopening of the 8(a) Application Portal Sign On Letter to Congress for Stronger Whistleblower Protections for Government Contractors San Antonio Business Owner and Associates Arrested for Defrauding SBA Program Accredited Lenders Program Express Pilot Program Four Indicted For Defrauding Federal Program Intended For Service-Disabled Veteran-Owned Small Businesses In Connection With A Construction Contract For Cancer Treatment Center At Bay Pines VA Medical Center Less than a week in, contractors sort out the meaning of the 45-day continuing resolution Agencies Push for Federal Acquisition Regulation Amendment to Include New SBA Contract Protest Rules Treasury plots departmentwide contract to streamline cybersecurity services Senators move to financially protect contractors during government shutdowns Deputy Interior Secretary Beaudreau to step down The post SmallGovCon Week in Review: October 2-6, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  8. It’s the moment many have been waiting for–SBA has reopened its Certify portal to new applicants seeking admission into the 8(a) Business Development Program. SBA closed the portal to all new 8(a) Program applicants in early August 2023, following a decision from the Federal District Court of the Eastern District of Tennessee that took away applicant’s presumption of social disadvantage for certain designated groups. This resulted in all 8(a) participants being required to submit a social disadvantage narrative. To address this issue, SBA opened Certify bit by bit to current participants who had not previously submitted a social disadvantage narrative, prioritizing current 8(a) participants with pending awards followed by current 8(a) participants without pending awards. Now, SBA has opened Certify to new applicants that wish to apply for participation in the 8(a) Program who now must demonstrate their social disadvantage. This very sudden change has had a lot of effects on both current participants and applicants, and has created a plethora of questions and frustrations. At this point, all participants and applicants must prove their basis for social disadvantage prior to award of a contract or acceptance into the program. We blogged on what makes a good social disadvantage narrative back in August. SBA also has a wealth of information you can access for guidance. In the past, some 8(a) applicants had to submit a social disadvantage narrative. If you believe you have already submitted a social disadvantage narrative, you should check your information in Certify or reach out to your Business Opportunity Specialist for confirmation. SBA has been clear that participants who initially were admitted into the program with an approved social disadvantage narrative will not be required to submit a second narrative. It is always best to check if you are unsure. All narratives, whether from an applicant or participant, must be submitted through Certify. Format for SDN Going forward, every individual applicant for the 8(a) Program must prove their social disadvantage, but apparently now means there is an option to do so via a method other than submitting a narrative. SBA states that the 8(a) Program application has been updated to include “a plain language fillable questionnaire for applicants to identify social disadvantage.” Interestingly, it then states that “[f]irms continue to have the option to prepare a social disadvantage narrative and upload it directly to Certify.” At first glance, this language suggests that a narrative is not required. Thankfully, the Certify Help Desk Database does clarify. In Certify, the applicant has the option to submit a written social disadvantage narrative or complete a new section titled “Experiences that have affected your business.” Within this new section, applicants are instructed to fill in fields that describe the event that affected your business including: What happened? How did this situation affect opportunities to start of expand your business? Which of the following contributed to the discrimination in the situation? When did it happen? Where did it happen? Who contributed to the discrimination. These questions align with the guidance that SBA has given to current participants as far as what needs to be included in a narrative for it to be successful. And, if you take the option to fill out the “Experiences that have affected your business” form instead of submitting a formal narrative, you will still be required to fill this information out for two different experiences. The standard for social disadvantage—chronic, substantial, and has occurred within American society—applies to proving disadvantage whether by a narrative or form. As a side note, this process has no effect on the annual review process. If you are a current participant with a social disadvantage narrative pending review, and your annual review is due, complete the annual review. It is a requirement of continued 8(a) Program participation, and there are no extensions due to pending narratives. It will be interesting to see how this all works out in the end as there is still ongoing litigation regarding the case at the heart of this issue (the Ultima Services Corp. decision). For more information, view all of KMP’s 8(a) Program information in our 8(a) Toolkit. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post UPDATE: SBA Reopens its Certify Site for all 8(a) Program Applicants first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  9. Happy Friday. It’s time to say goodbye to September and welcome in October already. Where does the time go? As I’m sure you all are aware, this week’s federal government contracting news is all about the possible government shut down and its impact on federal services and federal government contractors. Lawmakers have today and tomorrow to come to some sort of agreement. We’ve included some articles below with additional information on this situation as well as other federal government contracting news. Have a great weekend. What closes and what keeps running in a federal government shutdown Federal Real Property:Preliminary Results Show that Increased Telework and Longstanding Challenges Led to Underutilized Federal Buildings A Message to IAM Federal Employees and Federal Contract Workers Regarding a Possible Government Shutdown US Department of Labor Recovers $101K in Benefits Wages, Damages for 51 Workers Employed on Two Federally Funded Projects in California Government shutdown puts contractors in precarious position Fall 2023 Meet the Buyers Conference Provides the Opportunity for Government Contracting Success Readout of SBA Administrator Guzman’s Participation in Events with Congressional Black Caucus Foundation Minimum Wage for Federal Contracts Covered by Executive Order 13658, Notice of Rate Change in Effect as of January 1, 2024 Why the Amazon anti-trust case is important to GovCon Federal contract workers stand to lose in possible government shutdown US judge refuses to block venture capital fund’s grants for Black women US Department of Labor, LABCORP Subsidiary Enter Agreement After Compliance Review Alleged Hiring Discrimination by Federal Contractor Yale University and Its Professor Agree to Pay $1.5 Million For Failure to Share Patent Royalties with VA Here’s how many feds would stay on the job – both with and without pay – during an upcoming shutdown CISA’s next version of secure-by-design guidance expected in ‘coming weeks’ Inside the Federal Acquisition Service’s reorganization The post SmallGovCon Week in Review: September 24-29, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  10. One of the pillars of the SBA’s HUBZone program is the location of a company’s employees. In August of this year, SBA released an Information Notice emphasizing important points about where employees reside, and HUBZone entity’s efforts to employ the necessary amount of employees residing in HUBZone areas. While SBA’s HUBZone policies don’t have the weight of law as compared to a regulation, the HUBZone office will generally enforce this sort of guidance quite strictly. So don’t think it’s just a suggestion. As these are crucial elements of eligibility, it is important for all HUBZone businesses to be aware and reminded of SBA’s expectations. We have covered the basics of how to qualify for the HUBZone program before. I highly recommend you read that article, along with this one (and our other HUBZone articles), if you are interested in the HUBZone program. As you may notice, one of the unique aspects of the HUBZone program is the emphasis on where employees reside. To qualify to participate in the HUBZone program (among many other items) a business must have at least 35% of its employees residing within a HUBZone. Participants must also certify that they will attempt to maintain the 35% requirement throughout performance of any HUBZone contract, and those that fall below 20% during contract performance will be definitively determined to have failed to attempt to maintain the HUBZone residency requirements. SBA, in a recent Information Notice focused in on reminders to contractors about what truly qualifies as employing a HUBZone resident, and how to maintain the necessary employment percentages. Legitimate Employment of HUBZone Residents SBA reminded contractors that part of the HUBZone’s program’s goals is to “increase employment opportunities, investment, and economic development” in historically underutilized business zones. In pursuit of that SBA expects individuals to be actually working. Not simply a name on a spreadsheet or payroll to try and meet HUBZone requirements. SBA makes it clear in this information notice that simply hiring HUBZone residents but not having them conduct work will not meet program requirements. SBA warned contractors that “if they appear to be placing individuals on their payroll without providing them legitimate work” then SBA could decline or decertify firms from the HUBZone program. SBA expects that employees work “a minimum of 40 hours during the four-week period immediately prior” to the date SBA reviews a business for HUBZone status. In addition, HUBZone could request job descriptions and information that demonstrates work is being performed within that job description’s expectations for each part time employee. This could include: timesheets, progress reports, and attendance reports Be sure to keep copies of these types of documents. SBA makes specific mention of contractors utilizing third-party employment agencies. If a HUBZone contractor utilizes a third-party employment agency, they should be “prepared to submit evidence to SBA that the company providing the HUBZone employees is a legitimate leasing company that is primarily engaged in the business of leasing employees to other businesses.” Maintaining Employment Percentages SBA’s other main point in its information notice was on HUBZone contractors maintaining 35% HUBZone residency requirements. As noted above, the regulation states HUBZone contractors must “attempt to maintain” 35% of employees being residents of a HUBZone during certification. Of course, since the only guarantee in life is change, SBA notes that there may be times a contractor falls below that 35% standard. In that situation, contractors must make “substantive and documented efforts” to reach that 35% minimum. But regardless of efforts taken, if the percentage falls below 20%, then the contractor is conclusively seen as failing to meet the 35% requirement. SBA in its information notice makes it clear that 20% is not the goal, and “being above 20% alone does not demonstrate that a firm is attempting to maintain 35% HUBZone residency.” So, being above 20% does not function as a safe harbor unless the contractor takes concrete actions trying to meet the 35% requirement. SBA warned that any firm performing a HUBZone contract at the time of their HUBZone certification anniversary “must be prepared to submit evidence that the firm was making substantive and documented efforts to maintain” 35% HUBZone residency. Proof could include written offers of employment to HUBZone residents, advertisements seeking HUBZone employees, job fair attendance at or near HUBZones, and evidence that they have not dropped below 20% during contract performance. SBA closed out their information notice with a warning to contractors that if a firm drops below 20% HUBZone employee residency, then they must notify the SBA and “voluntarily decertify from the program or they will be proposed for decertification.” While these are things SBA has mentioned before, it’s clear that the HUBZone office is bringing renewed attention to them. While the two items emphasized by SBA recently are both well-known pillars of HUBZone certification, this notice is a warning to HUBZone contractors that SBA will be focusing enforcement on these items. By reiterating the parameters of expectations, SBA will likely feel little sympathy for contractors who fail to meet them. In fact, the SBA mentioned this very information notice in a press release announcing efforts to “root out abuse and fortify the integrity of the HUBZone program.” SBA plans include increased enforcement, increased debarment, increased audits, and updated regulations. So, if you are a HUBZone contractor, now would be the time to double check your employment records, and plan for any efforts you can take if you don’t meet the 35% requirement or don’t have HUBZone employees conducting work within their job descriptions. If you fail to plan ahead for these items, then you can probably expect some risks to your HUBZone certification. Questions about this post? Email us. Need legal assistance? call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post No Work No Play: SBA Reminds Contractors of HUBZone Employment Requirements first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  11. In Fiscal Year 2022, 1,595 bid protests were filed with GAO. While that seems like a large number, it pales in comparison to the number of federal contracts the federal government awards in a given year. On average, the government awards over 11 million contracts per year. That’s a lot of acquisitions that are not subject to any feedback from outside the agency. But things might change now with the new rule that the FAR Council enacted. Today, we’ll take a look at what this entails. Back in 2015, the Office of Federal Procurement Policy tested out a simple survey system for offerors to provide feedback on the acquisitions process. It was quickly realized that a lot of contractors were displeased with aspects of this process. But, prior to that point, there was no way for a contractor to provide feedback that would be reviewed by someone other than the contracting officer, who probably wouldn’t want to share any negative reviews with their higherups. The FAR Council (DoD, GSA, and NASA) realized what we just noted above: The vast majority of contracts are never protested, and any feedback could be kept under lock and key by the contracting officers. This is not conducive to a culture aimed towards improving the federal acquisitions process. As a result, the process then began to introduce a new survey program, called Acquisition 360, as a means of letting contractors provide feedback on the preaward and debriefing process. Fast forward to today. The FAR Council has issued a final rule to get this feedback process started. With this system, offerors can comment on their experiences with the preaward process and the debriefing process. To clarify, this system is not for feedback on contract administration matters. The rule creates a new contract clause, FAR 52.201-1, Acquisition 360: Voluntary Survey. The clause will state: (a) All actual and potential offerors are encouraged to provide feedback on the preaward and debriefing processes, as applicable. Feedback may be provided to agencies up to 45 days after award. The feedback is anonymous, unless the participant self-identifies in the survey. Actual and potential offerors can participate in the survey by selecting the following link: https://www.acquisition.gov/​360. (b) The Contracting Officer will not review the information provided until after contract award and will not consider it in the award decision. The survey is voluntary and does not convey any protections, rights, or grounds for protest. It creates a way for actual and potential offerors to provide the Government constructive feedback about the preaward and debriefing processes, as applicable, used for a specific acquisition. Unsurprisingly, the program was mostly welcomed by contractors. There is one big caveat, however: The rule itself will not be mandating that clause be included in any contracts. Commentors attempted to convince the FAR Council otherwise, and the response was: While actionable feedback is desired, it is equally important that participants understand the survey is completely voluntary and will not impact the outcome of a specific acquisition. Adding language to further encourage survey use may confuse participants or compel a response out of fear that not responding would preclude the opportunity to participate in an acquisition. We admittedly find this response puzzling. It is unclear how requiring contracting officers to provide contractors with information on how they can provide feedback in Acquisition 360 would be confusing or somehow give contractors the impression they must provide feedback. Indeed, the FAR Council’s statement seems to not even be responsive to the actual assertion: It reads as though the FAR Council believes the commentator was stating that contractors should be forced to provide feedback, rather than that contracting officers should be forced to make offerors aware of Acquisition 360 for the acquisition. It’s more likely that many agencies were not keen on the idea of telling contractors how they can critique their acquisitions. That said, there is nothing preventing agencies themselves from requiring their contracting officers to include the clause. No doubt many agencies will take this well and require it of their officers. However, we suspect that some agencies will be reluctant to implement it, and so the FAR Council may want to circle back on this after some time has passed to see how much it is being utilized. Additionally, offerors and the public should not expect access to any individual instance of feedback submitted through Acquisition 360. The information will be retained for internal government use, although the government is considering producing generalized data sets based on the combined survey responses. In any case, the FAR Council reasons that “the open-comment fields present the possibility of personal or private information being disclosed, if entered voluntarily by a participant.” As such, “review and redaction of comments would be necessary prior to publication to prevent the unintentional release of personal or private information.” This position is understandable, but at the same time, we think the government should consider balancing this out with its other aim of transparency when it reviews how this program is working. Overall, we think the feedback system idea is good, and we think it can help improve the acquisition process. That said, we are concerned that agencies and contracting officers also have a substantial incentive to not utilize it: Why make potential critics aware of how they can provide criticism? However, we expect that this will be utilized by many agencies. After all, DoD implemented its extended debriefing process on its own, and that has helped improve its acquisitions. In any case, we think this is a step in the right direction. Contractors: If you want to provide feedback on the acquisition process for a solicitation you bid on, keep in mind Acquisition 360. The newest version of the system goes into effect on September 22, 2023. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Watching the Watchman – New FAR Rule Opens Door to Further Feedback on Acquisition Process first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  12. Happy Friday, Readers. We hope you have had a great week and are looking forward to the weekend. Talk around the proverbial water cooler, this week, has been about the possible government shut down. On midnight, September 30th, fiscal year 23 will come to an end. Apparently, if certain things aren’t passed by Congress and signed by the President, the new fiscal year will start with a shutdown, and that has a lot of government contractors nervous. We have included some articles on this topic and other federal government news below. Have a great weekend. Meetings: Regional Small Business Regulatory Fairness Boards DOD Software Licenses: Better Guidance and Plans Needed to Ensure Restrictive Practices Are Mitigated Ultima Services asks court to bar SBA’s 8(a) program in the administrative, technical support industry SBA accused of sidestepping court ruling on race-conscious program FBI to Award Up to $358M in Contracts for Architectural, Engineering & Planning Services How contractors are bracing for a federal government shutdown Contractors prepare for shutdown or at least an austere October Brace for potential government shutdown, federal contractor group warns Minority and women business owners learn, compete at Opportunity Inclusive Business Summit Government Shutdown: What Government Contracting Businesses Need To Know Federal Contracting Program for Women Entrepreneurs Expands Guidelines for Reporting Bundled and Consolidated Contracts GAO union employees keep flexible work options in new contract A messy dispute caught one company for millions of dollars of government refund demands CIO-SP4 protest dismissed after NIH commits to corrective action Pentagon chooses 8 new ‘hubs’ to lead $2B effort to revitalize US microelectronics Navmar to Pay $4.4 Million to Settle False Claims Act Allegations Regarding Double-billing and Cost-Shifting The post Small GovCon Week in Review: September 18-22, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  13. It’s a tale as old as time, and I’m not talking about “Beauty and the Beast.” I’m talking about an offeror who failed to comply with the registration requirements in FAR 52.204-7. What’s FAR 52.204-7? It’s the FAR provision that requires, among other things, all offerors to be registered in the System for Award Management, or SAM as it is better known. And, as we have seen many times before, there is no way around this rule. Often, failure to be registered in SAM limits an offeror’s eligibility before award is made, making the offeror ineligible for award. However, this time, it affected the award that had already been made, resulting in the court entering a preliminary injunction against the government continuing with its original award. As the Court of Federal Claims (COFC) stated, COFC has repeatedly upheld an agency’s determination that an offeror is ineligible for award because the offeror did not comply with aspects of the FAR. The type of failure to comply may vary, but a common form of non-compliance, and the one subject to this protest, is the failure to register in SAM. Myriddian, LLC v. United States, No. 23-443 (Fed. Cl. May 23, 2023). Additionally, in a somewhat unique situation, the court in Myriddian not only had to inform the awardee, Cloud Harbor, that it was noncompliant and, therefore, ineligible, but also had to inform the contracting agency, the Department of Health and Human Services (DHHS). The relevant solicitation incorporated FAR 52.204-7 by reference. That rule requires that an offeror be registered in SAM at the time of offer submission, “and shall continue to be registered until time of award, during performance, and through final payment of any contract, basic agreement, basic ordering agreement, or blanket purchasing agreement” per FAR 52.204-7(b). And “registered in SAM” is more than just having a record in the system. Specifically, “registered in SAM” means: The offeror has entered all mandatory information, including its unique entity identifier, the Electronic Funds Transfer (EFT) indicator, its Commercial and Government Entity (CAGE) code, and data required by the Federal Funding Accountability and Transparency Act of 2006; The offeror has completed the Core, Assertions, and Representations and Certifications, and Points of Contact sections in SAM; The government has validated all mandatory data fields, including validating the offeror’s Taxpayer Identification Number (TIN); and The government has marked the record “Active.” FAR 52.204-7. Cloud Harbor was registered in SAM when it submitted its offer (making this protest different from protests where the offeror is not registered in SAM at time of offer submission, but gets registered by the time an award is made). And, as DHHS pointed out, Cloud Harbor was also registered at the time of award. Yet, for a 17-day period of time sometime between when Cloud Harbor submitted its proposal and when DHHS made the award, DHHS’s registration in SAM lapsed, making Cloud Harbor ineligible for an award under the solicitation. While DHHS tried to frame the SAM registration requirement as one that it had the authority to waive, the plain language of FAR 52.204-7 led COFC to disagree. The judge, citing many prior decisions, held that FAR 52.204-7 was unambiguous, and the registration requirement was mandatory. Not only that, but COFC pointed out a myriad of prior decisions in which the Government itself argued that the registration requirement was mandatory and non-waivable. (I see you, COFC, using the Government’s own words against itself.) Since DHHS didn’t get to waive the requirement, it then attempted to argue that FAR 14.405 allows agencies to correct minor irregularities in an offeror’s proposal when the irregularity is immaterial to an invitation for bids. Unfortunately, for both DHHS and Cloud Harbor, the ability to make corrections to minor irregularities only applies to procurements that are performed according to FAR Part 14, pertaining to sealed bidding with non-negotiated procurements. Here, we had a negotiated procurement that was subject to FAR Part 15, meaning DHHS had no authority to allow correction of a minor irregularity, like the lapse in SAM registration by Cloud Harbor. Following DHHS’s failure to prove that Cloud Harbor was eligible for award, the rest of the decision focused on whether an injunction was warranted. COFC went through the factors that merit an injunction—(1) likelihood of success on the merits; (2) irreparable harm absent immediate relief; (3) the balance of interests weighing in favor of relief; and (4) that the injunction serves the public interest—and determined that all the requirements for a preliminary injunction were met. Accordingly, COFC issued the preliminary injunction, and ordered the parties to continue with the protest to achieve a final resolution, demonstrating the vital importance of accurate and continual SAM registration to the federal government contracting process. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post COFC: Lapsed SAM Registration During Proposal Evaluations Makes Offeror Ineligible for Award first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  14. Happy Friday, Readers. We hope you had a great week. We are starting to get a little fall weather around these parts, which is exciting. Fall has also brought the prospect of a potential government shutdown and what the impact will be, as reflected in some of these articles. The budget process is complicated, so we are all waiting to see how it shakes out. We’ve also included some other articles on topics such as OASIS+ and cybersecurity, we hope will be of interest to you below. Have a great weekend. US Department of Labor, Navient Corp. Enter Into Agreement to Resolve Allegations of Hiring Discrimination PF 2023-41 Class Deviation from the Federal Acquisition Regulation provision at 52.204-7, System for Award Management Air Force needs to clarify its goals for space technology acquisition GSA’s OASIS+ sucked into the protest void US Department of Labor, Nielson Company US Reach Agreement to Resolve Alleged Race-Based Hiring Discrimination in Dallas, San Antonio Top 10 Common Legal Mistakes to Avoid in Federal Government Contracting Congress Losing Patience on Federal Workforce’s Return to Office Bootcamp held for small business owners on how to win government contracts GSA announces new political appointees New Pentagon cyber strategy emphasizes industry and global partnerships Senate confirms deputy secretary at VA IRS to remain ‘fully operational’ if Congress triggers government shutdown Subcontractor Sentenced to Pay Nearly $9 Million in a Criminal Fine and Restitution for Rigging Bids and Defrauding the U.S. Military GSA shifts Federal Acquisition Service organizational structure to align with customers The post SmallGovCon Week in Review: September 11-15, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  15. As we have previously written about in several recent 8(a) articles and updates, which can all be found on our 8(a) landing page here, SBA had previously told all 8(a) participants not pending an 8(a) award to “sit tight” and wait for the go-ahead to submit their social disadvantage narratives. Well, according to SBA’s just-released Certify Help Desk Guidance, it appears that go-ahead was just given to all the (justifiably) anxious 8(a) participants out there hoping to confirm their continued 8(a) Program eligibility as soon as possible. If you are one of our loyal blog readers, you are already well aware of SBA’s new requirement for all individually-owned 8(a) applicants and participants to now demonstrate their social disadvantage via a social disadvantage narrative–even those that had previously qualified for the rebuttable presumption of social disadvantage based on membership in one of SBA’s designated groups. These SBA actions are the direct result of the recent decision in the Ultima case out of the Federal District Court out of the Eastern District of Tennessee, which you can read all about here. SBA’s swift reaction to the Ultima decision and injunction, unfortunately, came with a lot of uncertainty for all 8(a) applicants and all 8(a) participants not currently pending an 8(a) award, as the 8(a) application and certification portal, Certify.SBA.Gov, was essentially closed for any narrative submissions. SBA has still been requesting, accepting, and prioritizing social disadvantage narratives from any active 8(a) participants currently pending 8(a) awards–obviously, trying to minimize the immediate impact of the Ultima decision and recent 8(a) Program changes on our federal agencies, need for supplies and services, and economy. As such, those 8(a) Program participants were promptly contacted by their Business Opportunity Specialists (BOSs) about drafting and uploading their social disadvantage narratives on a very short timeframe. But all the while, SBA was essentially just advising all other 8(a) applicants and participants to get their narratives drafted as quickly as possible–not to wait–but also, to “sit tight” for further instructions on how to actually get those narratives to the SBA. This has, understandably, caused some concern and panic in the 8(a) community given that everyone previously accepted into the 8(a) Program based on the rebuttable presumption of social disadvantage is basically now “pending” eligibility until their narratives are both submitted and approved. While some of that uncertainly remains, specifically for new 8(a) applicants, it at least looks like the next step in SBA’s implementation of the Ultima decision is underway: the acceptance of narratives from current 8(a) Program participants who are not pending current 8(a) award from a federal agency. As you can see from the Certify Help Desk Guidance SBA just released, for all those who are already in the 8(a) Program but now needing to submit their social disadvantage narrative to stay in the program, SBA has just opened the door for those submissions. And SBA’s recent guidance has also assured everyone of what we already suspected, which is that the sooner you can submit your narrative, the sooner your narrative can be reviewed and approved, and the sooner you can confirm your 8(a) eligibility for future awards and opportunities through the program. So, best bet is to get moving on your narrative drafting and submission as soon as possible. Keep an eye on our blog for updates regarding new 8(a) applications, as we assume that accepting new applications will be the next step by SBA once they prioritize those with pending awards, followed by those already in the 8(a) Program. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post UPDATE: SBA Opens Certify Portal for Social Disadvantage Narrative Uploads by Current 8(a) Participants Not Pending 8(a) Award first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  16. There is a saying that sometimes to go forward, you have to go back first. In August, the Department of Labor (“DOL”) published a final rule that will update the Davis-Bacon Act, with some methodologies previously abandoned. Unsurprisingly, this final rule focused on enforcement of labor standards, and was quite lengthy (numbering in the hundreds of pages). Despite it’s voluminous size, there was one major change that federal contractors will find of interest, a change to the method of determining prevailing wage. That is the focus of this post. A quick primer on the Davis-Bacon Act (the Act), is likely warranted prior to discussing one of the key takeaways from the DOL’s recent final rule. In summary, the Act is a federal law that sets rates for paying staff of contractors and subcontractors when performing certain federal contracts. As such, the Act has been of great interest to contractors for quite some time (the Act first came into being in the 1930s, almost 100 years ago). The Act directs the DOL to determine the “locally prevailing wage rate,” basically functioning as a way for contractors to set minimum wages for staff when performing certain federal contracts, such as construction, alteration, or repair (including painting and decorating) of public buildings or public works. We have discussed prevailing wages and consequences of not following the Act previously, but this final rule presents some shifts to how the Act functions. According to the DOL, the Davis-Bacon Act hasn’t faced a “comprehensive regulatory review in nearly 40 years,” and this final rule aims to do just that. On August 23, 2023, the DOL published a final rule that updates the regulations under the Act and it’s related acts (these are referred to in publications as the “Davis-Bacon Related Acts” or “DBRA”). The DOL, in their FAQs for this regulatory update, state that the federal contracting landscape has changed significantly. Consequently, this final rule aims to “provide clarity to contracting agencies, contractors, and workers, and to enhance the effectiveness and consistency of the administration and enforcement” of the Act and related rules. Through this final rule, one of the items of clarity is how the “prevailing wage” is determined. Through the final rule, the Wage and Hour Division of the DOL is actually amending the methodology to determine the “prevailing wage.” Interestingly, through the final rule, the DOL is resurrecting an old method for determining prevailing wage. This methodology was colloquially known as the “three-step process” (or 30% rule) and stopped being used in 1983. Under this “three-step process,” if there is no established wage rate paid to a majority of workers within a particular classification, then a wage rate will be seen as “prevailing” if it is a rate that is paid to at least 30 percent of the workers in that classification. If there is no wage rate paid to at least 30% of workers in a certain classification, then you simply utilize a weighted average rate to determine prevailing wage. How DOL explains the original three steps for finding a prevailing wage in the final rule is as follows: Any wage rate paid to a majority of workers; and if there was none, then The wage rate paid to the greatest number of workers, provided it was paid to at least 30 percent of works, and if there was none, then The weighted average rate. The DOL will also change how it determines wages in rural and metropolitan areas, to “more accurately reflect modern labor force realities, allow more wage rates to be determined at smaller levels of geographical aggregation, and will increase the sufficiency of data at the statewide level.” All of these changes appear to be DOL attempting to make wages much more local and specified. As stated in the final rule, the DOL expects that reintroducing the “three step process” “will reduce the use of average rates roughly by half—from 63 percent to 31 percent.” The DOL also decided against using a median wage rate for “prevailing wage.” The DOL also pointed to Congressional testimony from the Solicitor of Labor in 1962 about the three step process: “An average rate ‘does not reflect a true rate which is actually being paid by any group of contractors in the community being surveyed.’ Instead, ‘it represents an artificial rate which we create ourselves, and which does not reflect that which a predominant amount of workers are paid.‘” These updates and explanations from DOL shows that the DOL believes these prevailing wage methodology changes will result in much more specific local prevailing wages being found. DOL likely thought that the more recent methodology resulted in broad rates that encompass larger areas, and thus different economic realities for the contractors present. Despite being quite a change to current methodology, DOL is simply shifting back to the way it determined prevailing wages under the Act prior to 1983. While the prevailing wage methodology change is of course one of great interest to contractors, as stated earlier, this final rule is quite lengthy and covers more than simply prevailing wage methods. Be sure to review it and check back on our site for updates. The DOL has released some good guidance on the Final Rule, including FAQs, Comparison Charts, and Compliance Guides. In addition to checking out the final rule, it is likely a good idea for contractors affected by the Act to review the DOL’s varying guidance documents, as the final rule as a whole represents a lot of changes to the Act that could impact contractors. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Davis-Bacon Act Resurrects Old Prevailing Wage Methodology first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  17. Steven Koprince, Govology Legal Analyst and retired founder of Koprince McCall Pottroff will be presenting this webinar which covers the Foreign Ownership, Control or Influence (FOCI) Rules for Federal Contractors, including which contracts are subject to FOCI rules, how does the government evaluate whether a contractor is operating under foreign ownership, influence, or control, what responsibilities does a contractor or potential contractor have to identify and report FOCI concerns, and more. Don’t miss your chance to learn all about FOCI, in plain English! Register here today! The post Govology Webinar: Foreign Ownership, Control or Influence (FOCI) Rules for Federal Contractors, Sept. 14, 2023, 1:00pm EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  18. Happy Friday! We hope you enjoyed the nice long weekend. After this long heatwave, we’ve been enjoying the cooler weather this week, here in Kansas. I think it’s safe to say that most everyone is ready for fall. There was a lot of activity this week in federal government contracting. We have included some articles that we hope will be of interest, including updates on the 8(a) Program, and a lot of changes on the IT front for federal agencies. Enjoy the weekend! SBA program upended in wake of Supreme Court affirmative action ruling Sen. Ernst to agencies: No more ‘easy As’ on the SBA scorecard Maryland Woman Charged for Role in Million Dollar Fraud at New Orleans Marine Forces Reserve Facility You’re not innovating if you’re not talking to small business SBA looking to accelerate AI breakthroughs as part of ‘customer-centric’ transformation VA vows ‘full review’ of website after IT issues impact disability claims for nearly 57,000 veterans How NASA, NOAA and AI might save the internet from devastating solar storms The Pentagon’s innovation arm has a new chief and a new strategy Verizon agrees to settle False Claims allegations over cyber standards for federal contractors GSA opens office to support Biden’s open government plan Federal agency contingency plans lay in wait for shutdown notices Army switches from GDIT to Leidos to run its multibillion-dollar hardware contract vehicle UW and Wyoming APEX Accelerator to Host ‘Lunch and Learn’ Workshop Sept. 13 The post SmallGovCon Week in Review: September 4-8, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  19. Our very own Nicole Pottroff was featured in the Washington Post yesterday, in an article titled: “SBA program upended in wake of Supreme Court affirmative action ruling.” This article covers SBA’s 8(a) Program and its recent changes, as well as the federal court decisions that sparked the changes and some of the more widespread concerns moving forward. As you probably know as one of our readers, the 8(a) Program has always been a subject close to our hearts here at SmallGovCon. We have been fortunate enough to help countless companies get into the program, stay in the program, and navigate all the opportunities and benefits it has to offer. As such, we have been blogging about the 8(a) Program since long before the recent changes. And since then, we have blogged consistently on everything from the federal court decisions at issue to the SBA’s implementation of the ordered changes to the 8(a) Program–doing our best to ensure our readers stay up-to-date on all things 8(a) in these times of uncertainty and change. So suffice to say, we are excited to see the program being talked about on such a highly-esteemed, public, national forum. We are also very proud to see Nicole’s name in such a significant article on that forum. If you haven’t yet, please go check out the article linked here. https://www.washingtonpost.com/business/2023/09/07/sba-8a-program-ruling-affirmative-action/ The post Partner Nicole Pottroff Discusses Recent 8(a) Program Changes in Washington Post Article first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  20. I’m excited to announce that I will be presenting at Senator Ernst’s Entrepreneur Expo in Ames, Iowa. This is a wonderful opportunity for Iowa’s small businesses to learn about government contracting and federal innovation programs. This event will feature successful small business speakers, multiple information sessions with procurement experts, and networking opportunities with federal, state, and local agency officials. I’ll be discussing both the SBA Mentor-Protégé Program and small business joint ventures. There are multiple programming tracks within the Expo for participants to choose from, as well as networking sessions. Hope to see you there! Free registration at this link. Additional information about this event here. The post Event Announcement: Senator Joni Ernst’s Entrepreneur Expo, September 22, 2023 Ames, Iowa first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  21. For large and small contractors alike, teaming agreements are often essential to winning and successfully performing federal government contracts. Many agencies are (increasingly) requiring teaming agreements for a prime contractor to rely on subcontractor experience, qualifications, or resources. Even where a teaming agreement is not required to compete for a contract, it can still significantly reduce the likelihood of disputes during contract performance. So it is easy to see why teaming agreements are special enough to be the star of their own show. In this webinar, government contracts attorney, Nicole Pottroff & Greg Weber, will explain how to develop, negotiate, and administer teaming agreements that are both compliant and effective, covering best practices for teaming agreements that go beyond the bare minimum legal requirements and lead to more successful teams. Please join us! Register here. The post Virtual Event Announcement: Teaming Agreements hosted by Wyoming APEX Accelerators, September 13, 2023, 1:00pm CDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  22. Join this webinar as John Holtz and I explore the pivotal role of NAICS codes in determining eligibility for SBA’s exclusive small business set-aside contracts. Recent revisions in size thresholds, size calculations, and industry classifications within the latest NAICS manual have reshaped the landscape. We’ll also discuss NAICS codes appeals, which can be a powerful tool. Register here. The post Govology Webinar: Cracking the Code: NAICS Essentials for Government Contractors, September 12, 2023, 1:00pm EDT first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  23. SBA administers four socioeconomic programs: Service-Disabled Veteran-Owned Small Business (SDVOSB), 8(a) Business Development Program (8(a)) Women-Owned Small Business Program (WOSB) and HUBZone. The SDVOSB, 8(a), and WOSB programs all require that the key owner generally have control over the long-term decision-making and the day-to-day operations of a company. These same rules apply to the veteran-owned small businesses program (VOSB) as well. A recent decision from the Office of Hearings and Appeals at SBA reveals that the operating agreement or bylaws for these types of companies must be very clear about how they are operated. In VSBC Appeal of: Tree Services, Inc., SBA No. VSBC-291 (2023), OHA looked at a VOSB company that was seeking certification. SBA denied certification due to what it considered defects in the bylaws. SBA rules state that “Non-qualifying-veterans may be found to control or have the power to control in circumstances where non-qualifying-veterans control the Board of Directors of the Applicant or Participant, either directly through majority voting membership, or indirectly, where the by-laws allow non-qualifying-veterans to prevent a quorum or block actions proposed by the qualifying veterans.” 13 C.F.R. § 128.203. Specifically, the company had increased the size of its board from six to nine directors, but only one director was a veteran. However, the bylaws stated that: “The number of directors of the corporation shall be one (1).” “The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.” SBA’s initial review of the bylaws indicated it would likely not meet the veteran control requirements “(1) there appears to be only one veteran among Appellant’s nine-member Board and (2) the quorum and voting provisions in the Bylaws would enable non-veteran directors to block corporate decisions.” More directly, SBA recommended that the company revise the bylaws to avoid any confusion about veteran control, and provided a deadline for an amendment. When the company did not amend the SBA denied the certification application, writing that ““it appears that there are more Directors than authorized by the Bylaws and only one Veteran individual [i.e., Mr. Anna] holds a Director position, it cannot be determined that the Veteran is able to meet the Board of Director quorum and voting requirements set forth in the Bylaws.” Here’s one interesting thing about the Veteran Small Business Certification (VetCert) program–it allows a company to revise its documents and resubmit for an updated review. This means that, in many cases, a veteran-owned company can update its documents and address concerns from the SBA. It’s something that most companies should take advantage of. In this, the company did not take advantage of the opportunity to amend. After denial, though, Tree Services filed an appeal with OHA, arguing that, although SBA gave it until May 12, 2023 to amend its bylaws, SBA nevertheless denied the application on May 10, 2023. Interestingly, OHA granted the appeal. OHA noted that, under SBA’s rules for the VeCert program, SBA can “request additional documentation at any time in the eligibility determination process.” 13 C.F.R. § 128.302(c). SBA must, however, “take into account any clarifications made by an Applicant in response to” an SBA request for information, and must ‘consider’”’ all information provided by the concern in deciding whether the concern qualifies as a VOSB or SDVOSB.” In this case, SBA did not play by its own rules and denied the application prior to the deadline. The applicant, though, did not indicate it would amend its bylaws, or provide a response showing its bylaws met the requirements. In the end, OHA remanded this matter back to SBA for further consideration. Thoughts When a government reviewer such as SBA gives a company an opportunity to revise an application to meet any errors, it’s usually (although not always) the right move to take advantage of the opportunity. This is often the case when it comes to a certification program such as the VetCert program. However, SBA must also play by the rules as well. If it appears SBA did not abide by the deadline it set, it may be worth appealing such a decision. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Clearing Things Up: OHA Remands Matter for Unclear Veteran-Owned Bylaws first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  24. Happy Friday! We always know it’s almost Labor Day when the sunflower fields start blooming in Kansas. They hold a special place in our hearts because they are the state flower. People come from miles around to visit and photograph the beautiful fields each year. I mean, how can you not smile when you see a sunflower, right? We hope you have some fun plans for the long Labor Day weekend and if you have a bit of spare time, we have provided some interesting articles on what’s happening in federal government contracting below, including new small business data, updated rules on the 8(a) Program, and more. Have a great holiday weekend. SBA Releases New Small Business Award Data Hub Local Small Business Achievements by Fiscal Year Government contracting: Protecting the recipe to your intellectual property Contractors make plans for a messy start to the next fiscal year U.S. Department of the Treasury, IRS Release Guidance on Inflation Reduction Act Provision to Ensure Good-Paying Clean Energy Jobs, Expand Clean Energy Workforce CAAC Consultation to Issue a Class Deviation From the Federal Acquisition Regulation (FAR) Regarding the Small Business Administration (SBA) Memorandum, “Impact of Recent Court Decision (Ultima Servs. Corp. v. Dep’t of Ag. (E.D. Tenn.)) on the use of the 8(a) Program” Asphalt Paving Company and President Plead Guilty to Bid Rigging SBA Announces Extension of Moratorium on 8(a) Eligibility Requirement Telework leads to feds ‘phoning it in,’ says senator seeking IG assessment Defense Contracting:DOD’s Use of Federal Prison Industries Class Deviation—Verification of Eligibility for the 8(a) Program The post SmallGovCon Week in Review: August 28-Sept. 1, 2023 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
  25. While some federal contractors have (understandably) been focused on the court decision that found the 8(a) Program’s rebuttable presumption of social disadvantage for members of certain racial minorities unconstitutional, the SBA doesn’t just operate the 8(a) Program. It has to look out for all small businesses in America as well. In connection with this obligation, the agency recently released a new web application that allows visitors to discover a great deal about federal small business awards and socio-economic set aside awards. Called the “Small Business Data HUB,” this free program provides some interesting insights on how the government awards contracts. In this post, we’re going to explore this datahub a little and see what’s going on. Local Scorecard When you first go to the datahub, the default view is the local scorecard for the state of Alabama (As that is alphabetically the first state). The local scorecard provides details on the total federal awards to businesses within a certain state or territory, a certain SBA region, or a certain SBA district, depending on which area the user chooses in the dropdowns to the left. The data also shows a breakdown of award by small business type: Small Disadvantaged Businesses (SDB), Women-Owned Small Business (WOSB), HUBZone, and Service-Disabled Veteran-Owned Small Business (SDVOSB). One curiosity we quickly noted is how much Alaskan small businesses received in federal contracts relative to all Alaskan businesses. The state’s businesses received about $5.95 billion in federal contracts in 2022. $5.29 billion of that was for small businesses, a whopping 88.81% of the federal contract value! And small disadvantaged businesses got most of that share, likely due to the many Alaska Native Corporation 8(a) companies based in Alaska. Compare this to California, where small businesses received only 25.44% of the federal contract value that the state’s businesses received in 2022. Or New York, where small businesses received only 12.49% of the federal contract value that the state’s businesses received in 2022. It does not appear that it’s just large (population-wise) states that tend to see most federal contracts go to larger businesses. For example, in 2022, only 9.38% of federal contract value went to small businesses for the state of Iowa. In fact, California has seen a great increase in the proportion of federal contract value going to small businesses, as it’s seen an increase of over 10% since 2017. Vendor Counts The Vendor Counts tab allows viewers to see how many active federal contractors there are, nationally as well as by state, NAICS, or agency the vendor is performing for. The idea is fairly straightforward, just like the local scorecard. One thing to observe is that there has been a clear trend going back at least as far as 2009 (which is as far back as the data on the site goes)—there has been a steep decline in the number of active federal contractors, going from 148,778 in 2009 to 85,013 in 2022. The decline has been quite consistent too, with the number only increasing for 2009 to 2010 and 2015 to 2016, and even there the increase has only been slight. The number of small business federal contractors has essentially followed the same path, going from 121,181 in 2009 to 62,670 in 2022. In fact, it is fairly safe to say that the drop in small business contractors has made up most of the overall decline in federal contractor numbers. One group bucks the trend though: Small Disadvantaged Businesses (SDBs). This has increased from 13,080 in 2009 to 23,260 in 2022. Top Funding Offices and Vendors This tab is what it sounds like: It tells you which agency branches and which federal contractors have awarded and received the most awards in terms of contract value, respectively. This you can breakdown by state, congressional district, and even county, along with NAICS and PSC code. It only goes back for the past three fiscal years, however. Hopefully, more years will be added to help with data tracking. As for the information itself, unsurprisingly, when it comes to the agencies, the Department of Defense always takes up much of the top 10, and always holds 4 of the top 5 spots. It is a bit surprising that in fiscal years 2020 and 2021, the CDC did not jump any higher than the 6 spot, considering the COVID pandemic. As for vendors, naturally the top vendors are almost all giants, such as Pfizer, Lockheed Martin, and Raytheon. The one exception appears to be Modernatx, Inc., which in FY 2021 received $7,363,802,576 in federal contracts. The reason it appears to be an exception is that all of that contract value was small business dollars. So, congrats to Modernatx on what must have been a very successful year! Set Asides The final tab provides how much is being set aside for small businesses and the various SBA programs like 8(a) and WOSB. This can be broken down by department and agency as well. One thing that is very curious is that while the small business contractor count has decreased since 2010, the amount set aside for small businesses has nearly doubled since 2010, going from $55.9 billion in 2010 to $99.5 billion in 2022. While much of this can be attributed to general growth in the federal government and some is likely attributable to inflation and increases in size standards, the percentage of federal contract value set aside for small businesses has increased from 12.93% in 2010 to 16.40% in 2022. So, while competition has declined, demand has also increased, suggesting a favorable situation for small business contractors who have remained in the (increasingly consolidated) market. Thoughts This program could be very helpful, especially for new contractors or contractors wishing to expand their services, in helping determine where the money is. It will also be very useful for agencies in helping track their progress in achieving their goals with regards to set-aside percentages. From a legal perspective, some of the data could also potentially be useful in protests, although how useful and in what contexts will remain to be seen. Either way, this is a good resource from the SBA and we recommend it to all federal contractors. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post SBA Releases New Small Business Award Data Hub first appeared on SmallGovCon - Government Contracts Law Blog.View the full article
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