Effective January 1, 2023, certification of veteran-owned small businesses (“VOSBs”) and service-disabled veteran-owned small businesses (“SDVOSBs”) moved from the Department of Veterans Affairs’ (“VA”) Center for Verification and Evaluation (“CVE”), to the Small Business Administration’s (“SBA”) Veteran Small Business Certification Program (“VetCert”). Previously, VOSBs and SDVOSBs only needed to be independently verified for VA sole-source and set-aside awards – for procurements by all other federal agencies, SDVOSBs could self-certify without an outside review. The final rule, published November 29, 2022, but effective January 1, 2023, shifts the venue to SBA while also implementing four key requirements from the National Defense Authorization Act for Fiscal Year 2021, as discussed below.

Continue Reading News For Veteran-Owned Small Businesses – SDVOSB and VOSB Certification Moves to the SBA in 2023

The federal government uses its contracting dollars not only to purchase the supplies and services it needs, but also to support broader policy goals. For example, the government has special contracting priorities for veteran-owned small businesses (VOSBs) and service-disabled veteran-owned small businesses (SDVOSBs), as well as women-owned small businesses (WOSBs) and economically-disadvantaged women-owned small businesses (EDWOSBs), and others, like the 8(a) business development program and small businesses more generally. In other words, these special types of businesses are able to compete for government contracts with a limited pool of competitors (and limited competition should yield a higher likelihood of business success for these small businesses). But access to these contracting priorities comes with a complex web of regulatory requirements unparalleled in the commercial sector. And one way to make sure that only eligible small businesses are receiving these special set-aside and sole-source awards is through what is known as a “status protest,” where it is alleged that the specialized small business does not actually qualify for the status and priority that is being claimed.

Continue Reading Comparing Two Small Business Status Protests: Veteran-Owned Small Business CVE Protests and Women-Owned Small Business Status Protests—Different Processes but Similar Results

The U.S. Small Business Administration (“SBA”) recently released its annual Procurement Scorecard, demonstrating the federal government’s continued prioritization of small business contracting and subcontracting. In 2021, the government awarded $154.2 billion dollars in federal prime contracts – an increase of $8.5 billion over the prior year – with at least an additional $72 billion in small business subcontracts – a decrease of $10.8 billion from the prior year. These subcontracting figures continue the trend from prior years, which may lead to increased scrutiny of small business subcontracting plans to reverse the perceived decline. (In 2020, small business subcontracting decreased by an estimated $7.9 billion). Overall, the government yet again exceeded the service-disabled veteran-owned small business goal of 3%, and more than doubled the small disadvantaged business goal of 5%, but continued to struggle to meet the 5% women-owned small business and 3% HUBZone small business goals. The SBA released these figures in its FY 2021 Small Business Procurement Scorecard, available here.

Continue Reading SBA Annual Scorecard Shows Federal Government Continues to Prioritize Small Business Contracting

The Small Business Administration’s (“SBA”) Office of Hearing and Appeals (“OHA”) rejected a small business government contractor’s 8(a) participation determination appeal as untimely, notwithstanding the contractor’s claim the termination letter at issue was sent to a junk email folder.
Continue Reading SBA OHA Says Small Business on Notice of Email in Junk Folder: Appeal Untimely

As we head into the new year, it seems like a good time to check-in on the adjusted small business set-aside thresholds for 2022. As you may recall, the threshold are tied both to the micro-purchase threshold and the simplified acquisition threshold. While these rates are periodically adjusted for inflation, the thresholds remain unchanged going into 2022. Currently, the micro-purchase threshold is $10,000 and the simplified acquisition threshold is $250,000. Here’s what that means for small business set-asides:

Continue Reading What Are the 2022 Small Business Set-Aside Thresholds?

The U.S. Small Business Administration (“SBA”) recently announced that, yet again, the federal government exceeded its small business contracting goal by awarding $145.7 billion dollars in federal prime contracts – 26.01% of the government’s total procurement spending – to small businesses last year, with at least an additional $82.8 billion in small business subcontracts. The SBA released statistics in its FY 2020 Small Business Procurement Scorecard, available here. Notably, while small business contracting increased $13 billion in prime contracts, small business subcontracting may have decreased by an estimated $7.9 billion. Other Scorecard highlights include that the U.S. government exceeded the service-disabled veteran-owned small business goal of 3% and far-exceeded the small disadvantaged business goal of 5%. The government failed, however, to meet the women-owned small business goal of 5% and the HUBZone goal of 3%.

Continue Reading Small Business Federal Government Contracting Dollars Continue to Increase

Many small businesses learn the hard way that a “bid protest” and a “size protest” differ in much more than name only. Whereas generally a “bid protest” challenges agency action taken in connection with a procurement and can be timely brought at the Government Accountability Office (“GAO”) or in the U.S. Court of Federal Claims (“COFC”) after award, a “size protest” challenges an offeror’s eligibility as “small” for a small business set-aside and must be filed with the U.S. Small Business Administration (“SBA”) within 5 days of contract award; otherwise, a disappointed offeror will forfeit its right to challenge the awardee’s size. While this consequential distinction may seem clear in a vacuum, a recent decision by the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) demonstrates that distinguishing between a “bid protest” and a “size protest” may not always be so easy. Instead, the Federal Circuit’s decision leaves open the possibility that even when a timely size protest was not filed with the SBA, a disappointed offeror still may be able to challenge the contracting officer’s failure to refer an awardee of a small business set-aside to the SBA for a size status determination by filing a bid protest at the COFC.

Continue Reading “What’s In A Name?”: Federal Circuit Holds Claims Court Blurred Distinction Between ‘Size Protests’ And ‘Bid Protests’ In Dismissal For Failure To Exhaust Administrative Remedies

The U.S. Small Business Administration (“SBA”) recently announced that the federal government exceeded its small business contracting goal by awarding $132.9 billion dollars in federal contracts – 26.5% of the government’s total procurement spending – to small businesses last fiscal year, with at least an additional $90.7 billion in subcontracts.  The SBA recently released statistics in its FY 2019 Small Business Procurement Scorecard, available here and here.  Also notable in these reports: (a) for only the second time ever the government met the 5% woman-owned small business goal; (b) the government met the service-disabled veteran-owned small business goal (3%, awarded 4.39%); and (c) the government also met the small disadvantaged business goal (5%, awarded 10.2%).  The government did not, however, meet the 3% HUBZone goal, coming in at 2.28%.  That said, small business contracting was up across all categories.  Here we provide a summary of the SBA’s findings, noting some of the potential opportunities available for small business contractors, while also highlighting some of the risks inherent in doing business with the U.S. government.
Continue Reading Government Small Business Contracting Continues to Increase: Creating Opportunities and Potential Pitfalls

The devastating economic impact of the COVID-19 pandemic already has set in, with the future of thousands of businesses hanging in the balance.  Big and small businesses alike are finding it difficult to cope with the downturn.  The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) provisions related to small business loans provide a glimmer of hope.  Among other forms of economic relief, the CARES Act created the $349 billion Paycheck Protection Program (“PPP”) to provide funding to assist small businesses impacted by the pandemic.  After the initial allocation of PPP funds was exhausted the President signed a bill providing an additional $484 billion in relief, including $310 billion for the PPP, on April 24, 2020[1].  It may turn out for some businesses, however, that these provisions will be nothing more than fool’s gold.  The U.S. Small Business Administration (“SBA”) loan programs, including the PPP under the CARES Act, only are available to qualifying businesses that strictly comply with complex rules related to the size of the business, including its employee count, financial condition, affiliations, control and ownership, and industry classifications.  Businesses that reflexively jumped at the SBA money grab without discipline or compliance are at risk of aggressive government enforcement that surely will follow.
Continue Reading Small Business Money Grab Under the CARES Act Brings Enforcement Risks

In response to widespread interest in allowing more small business participation in opportunities involving cloud computing, the Small Business Administration (“SBA”) has decided to exclude cloud computing from the limitation
Continue Reading Small Business Subcontracting for Cloud Computing Gets Easier

In its most recent attempt to strike the appropriate balance between the Veterans First and AbilityOne programs, the U.S. Department of Veterans Affairs (“VA”) issued on May 20, 2019 a class deviation to the VA Acquisition Regulations (“VAAR,” 48 C.F.R. Chapter 8), instructing contracting officers to conduct a “Rule of Two” analysis before procuring from the AbilityOne Procurement List.
Continue Reading Veterans Are First at the VA Following New Class Deviation Implementing Recent Federal Circuit Mandate