Buying a small business government contractor may not be as simple as a standard acquisition. This is particularly true if the small business wants to continue to qualify for federal small business set-aside and sole-source awards during negotiations. The U.S. Small Business Administration (“SBA”) treats stock options, convertible securities, and agreements to merge (including agreements in principle), as having a “present effect” on the power to control a concern. So if a letter of intent is sufficiently firm to be considered an agreement in principle, the SBA’s regulations require such agreements be given “present effect” on the power to control a concern – deeming the two entities are immediately affiliated. In other words, the small business likely is no longer small (and, if it is a specialty small business concern, like woman-owned or service-disabled veteran-owned, it is likely ineligible for those programs as well) before the deal even is done. On the other hand, agreements to open or continue negotiations towards the “possibility of a merger or a sale of stock at some later date” are not considered agreements in principle, and are not given present effect. In practice what this means is that a letter of intent must be carefully drafted to ensure that it does not trigger the present effect rule before the parties are ready or willing to be considered affiliated.
The Infrastructure Investment and Jobs Act, commonly referred to as the Bipartisan Infrastructure Bill, passed on November 15, 2021. Included in the $1.2 trillion spending package are expansions to various “Buy America” provisions, a set of statutes and regulations that apply to federal financial assistance used to support infrastructure-related projects. “Buy America” requirements differ from the requirements under the Buy American Act of 1933, which focuses on direct procurement by the federal government.
Continue Reading Buy America Provisions in the Infrastructure Bill: What this Means for Foreign Companies
Volume X – Accounting for the Cost of Business Combinations Under Government Contracts
Mergers and acquisitions create additional costs and complex accounting issues for government contractors. There are fees for accounting, legal, and business consultants. There may be restructuring costs associated with combining business operations. Segments may be closed and retirement plans may be terminated. Golden handcuffs and golden parachutes are also common. Assets may be revalued, goodwill may be created, and there may be changes in cost accounting practices.…
Volume VIII – Foreign Buyers Do Make a Difference
Not every potential buyer is a U.S. corporation controlled by U.S. interests. It is important, both for the buyer and the seller, to understand the implications of foreign ownership, control, or influence (“FOCI”) on the feasibility of a sale to foreign interests and the processes that apply to such sales. As the title of this posting makes clear, foreign buyers do, in fact, make a difference.…
Volume VII—Investing in Small Businesses
Numerous government contracts programs support small businesses. There are prime contracts set aside for various categories of small business entities. Agencies have small business contracting goals and take them very seriously. Prime contractors often are incentivized, through evaluation factors, to propose significant small business participation. They can also face liquidated damages for failing to make good faith efforts to comply with their small business subcontracting plans. These programs promote economic growth by incentivizing investment in small business entities.
The primary obstacle to investing in small businesses, from a government contracts perspective, is that it is quite easy to lose small business size status as the result of a corporate transaction. The difficulties arise from the doctrine of “affiliation.”…