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

On September 10, 2020, the General Services Administration (“GSA”) hosted a webinar related to its implementation of Section 889 of the 2019 NDAA – the ban relating to certain Chinese telecom companies – and associated updated FAR clauses.  (We previously have written about Section 889 here, here, here, and here).  Below we provide highlights from the meeting.  Slides presented at the meeting also are available here.
Continue Reading GSA’s Take on Implementation of Section 889

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

With the Department of Justice’s (DOJ) decision to drop charges against Michael Flynn, materiality has come to the forefront of popular legal discourse.  At the same time, prosecutors and whistleblowers will carefully consider enforcement/false claims actions against entities who may have wrongfully received relief funds under the Coronavirus Aid, Recovery, and Economic Stability Act (CARES Act).  Such actions likely will turn on whether alleged misrepresentations were materially false.  Those applying for CARES Act funds, such as those under the Paycheck Protection Program (PPP), must ensure all of their representations and certifications are truthful.  However, those accused of making misrepresentations in order to receive government funds may find refuge in a more narrow view of the materiality requirement.
Continue Reading Materiality Concerns For CARES Act Enforcement Cases

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

By David Gallacher

Nearly three years ago, on September 27, 2010, the President signed into law the Small Business Jobs Act of 2010 (“Jobs Act”), which directed the Small Business Administration (“SBA”) to implement a variety of small business size and integrity requirements. As noted in our prior blog posting discussing many of these requirements, many of these provisions posed a significant threat to government contractors – both large and small businesses alike. On October 7, 2011, the SBA published its blueprint for implementing the statutory requirements. See 76 Fed. Reg. 52313 (the “Proposed Rule”). The Proposed Rule contained language that many industry participants and observers found alarming, particularly the requirements that:

Continue Reading Threats and Vulnerabilities – What Every Contractor Should Know About The SBA’s New “Presumed Loss” and “Deemed Certification” Rules