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

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.”


Continue Reading What You Need to Know About Mergers and Acquisitions Involving Government Contractors and Their Suppliers

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

By Townsend Bourne

When it comes to government regulations, nothing ever stays the same. Following are some key regulatory updates/proposed changes over the last month that we thought might be of interest to government contractors, particularly small businesses who often bear the brunt of the government regulations.


Continue Reading What’s New Out There? A Regulatory Update

By Shauna E. Bailey

Proposed DoD Rule: Detection and Avoidance of Counterfeit Electronic Parts (DFARS Case 2012-D-005)

On May 16, 2013, the Department of Defense (“DoD”) issued a proposed rule that would amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) relating to the detection and avoidance of counterfeit parts, in partial implementation of the National Defense Authorization Act (“NDAA”) for Fiscal Year (“FY”) 2012 (Pub. L. 112-81) and the NDAA for FY 2013 (Pub. L. 112-239). 78 Fed. Reg. 28780 (May 16, 2013). The proposed rule would impose new obligations for detecting and protecting against the inclusion of counterfeit parts in their products. Public comments in response to the proposed amendment are due by July 15, 2013.


Continue Reading What’s New Out There? A Regulatory Update

By Kerry O’Neill

Under the Small Business Administration’s (“SBA”) 8(a) Mentor-Protégé program, large businesses provide various forms of business development assistance to small businesses participants, including, for example, technical and/or management assistance, financial assistance, and assistance in performing prime contracts. The program, whose governing regulations are set out in 13 C.F.R. Part 124, offers substantial opportunities for large businesses to participate in performance of federal government contracts through partnering with 8(a) program participants on a variety of contractual arrangements, including set-aside procurements, subcontracts, and prime contracts.


Continue Reading The 8(a) Mentor Protégé Program: Opportunities for Large and Small Businesses

By W. Bruce Shirk & Kerry O’Neill

On February 11, 2011, the Small Business Administration issued final regulations addressing an array of issues relating to the agency’s programs, including the size standards applicable to nonmanufacturers or dealers, the elimination of the vexing use of both SIC and NAICS codes for size standards and adoption of the latter as the sole criteria for use in the standards, and the 8(a) mentor-protégé program. 76 Fed. Reg. 8222 (Feb. 11, 2011).
 


Continue Reading Small Business Savvy? Senate Bill Would Undercut New SBA Regulations

By Townsend L. Bourne

The U.S. Small Business Administration (“SBA”) issued a proposed rule on March 16, 2011 that increases the small business size standards for 35 industries and one sub-industry in North American Industry Classification System (“NAICS”) Sector 54, Professional, Scientific and Technical Services and one industry in NAICS Sector 81, Other Services. The proposed rule is one of several rules to be proposed by the SBA that will examine and potentially change the small business size standards for industries grouped by NAICS Sector. The SBA undertook this effort following passage of the Small Business Jobs Act of 2010, implemented on September 27, 2010, and Executive Order 13563, signed by President Obama on January 18, 2011, which calls for agencies to undertake a review of possible ineffective or outdated rules and, if necessary, update and streamline their rules to better meet regulatory objectives.
 


Continue Reading Objects In SBA’s Mirror Are Smaller Than They Appear: A Summary Of SBA’s Proposed Rule To Increase Small Business Size Standards

By David S. Gallacher

On September 27, 2010, President Obama signed into law the Small Business Jobs and Credit Act of 2010 (Pub. L. No. 111-240). The Act is intended to free up capital by providing tax cuts for small businesses (some of which are temporary) and to promote exports of U.S. products, all with a view to stimulating the small business sector as an engine of job creation.  But, as usual, the Administration’s efforts to improve the economy through stimulus measures also give rise to new risks for companies doing business with the federal Government – whether as a prime or a subcontractor, as a large or a small business.
 


Continue Reading Size Does Matter – Impacts Of The Small Business Jobs Act Of 2010

By Jonathan S. Aronie

There is a theory in physics that a seemingly isolated event in one part of the world can have a significant, downstream impact in another. They (the Physics set) call it the Butterfly Effect. It’s a central element of something called Chaos Theory (referenced by Jeff Goldblum in the original “Jurassic Park”), and you can see it in action in all walks of life. Even in Government contracting.
 


Continue Reading Did A Butterfly Just Flap Its Wings?The Potential Industry-Wide Consequences Of The SBA’s Recent Suspension Of A Premier IT Contractor