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Participants in the Small Business Administration’s 8(a) Business Development Program have faced a hard year—using up one of their nine years in the program during a time of unprecedented economic uncertainty.  For participants that are about to graduate, things are even bleaker.  Normally, those firms would have been preparing to compete without the ability to claim 8(a) status.  Instead, many were debating whether to voluntarily suspend their 8(a) status as a result of the pandemic and the declared disaster.  In light of these circumstances, Congress has repeatedly sought to aid 8(a) participants by allowing a one-year extension of 8(a) status for participants that were in the program on or before September 9, 2020.

 

Congress first included a proposed extension to the 8(a) program at Section 869 of the FY2021 National Defense Authorization Act.  The proposed extension provides that 8(a) participants admitted “on or before September 9, 2020” will be allowed to extend their participation in the program by an additional year (allowing for up to 10 years) regardless of whether the participant previously elected to suspend participation.  Additionally, the NDAA includes language requiring SBA to “issue regulations to carry out this section” within 15 days after the NDAA is enacted.

 

While both the House and Senate passed the FY2021 NDAA, President Trump vetoed the bill on December 23, 2020.  Anticipating a Trump veto, the House has moved forward with scheduling an override vote on December 28, 2020. The Senate scheduled its own vote for December 29, 2020.

 

Congress has now included the same provision in the Omnibus Spending Bill.  Per Section 330 of the Spending Bill, the SBA administrator is to ensure that small business concerns participating in the 8(a) program on or before September 9, 2020, may elect to extend participation in the program by a period of 1 year, regardless of whether the small business concern previously elected to suspend participation in the program pursuant to guidance of the Administrator.  As with the FY2021 NDAA, the Spending Bill requires that SBA issue regulations to carry out this section not later than 15 days after the date of enactment of this Act.

 

One way or another, a one-year extension to the 8(a) program appears imminent, granting participants an additional opportunity to utilize the program’s benefits.

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Photo of Amy Laderberg O'Sullivan Amy Laderberg O'Sullivan

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and counseling for corporate clients of all sizes and levels of experience as government contractors. On the litigation side, she has represented corporate clients in bid protests (agency level, GAO, ODRA, Court of Federal Claims, Court of Appeals for the Federal Circuit, as well as state and local bid protests in numerous jurisdictions), size and status protests before the U.S. Small Business Administration, claims litigation before the various Boards of Contract Appeals, Defense Base Act claims litigation at the Administrative Law Judge and Benefits Review Board levels, civil and criminal investigations, and she has been involved in complex commercial litigation.

Photo of Olivia Lynch Olivia Lynch

Olivia L. Lynch is a partner in Crowell & Moring’s Government Contracts Group in the Washington, D.C. office.

General Government Contracts Counseling. Olivia advises government contractors on navigating the procurement process, compliance and ethics, commercial item contracting, accessibility, supply chain assurance, and…

Olivia L. Lynch is a partner in Crowell & Moring’s Government Contracts Group in the Washington, D.C. office.

General Government Contracts Counseling. Olivia advises government contractors on navigating the procurement process, compliance and ethics, commercial item contracting, accessibility, supply chain assurance, and various aspects of state and local procurement law.

Photo of Michael Samuels Michael Samuels

Michael Samuels is a counsel in Crowell & Moring’s Government Contracts Group. His practice involves counseling and representing government contractors on a wide range of issues.

Photo of Zachary Schroeder Zachary Schroeder

Zachary Schroeder is an associate in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group.

Zach represents contractors in both litigation and counseling matters. His practice focuses on representing contractors in bid protests before the Government Accountability Office…

Zachary Schroeder is an associate in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group.

Zach represents contractors in both litigation and counseling matters. His practice focuses on representing contractors in bid protests before the Government Accountability Office (GAO), the U.S. Court of Federal Claims, and the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition (ODRA). His practice also includes federal regulatory and ethics compliance, as well as various aspects of state and local procurement law, including representing contractors in size protests and affiliation matters. In the transactional context, Zach has performed government contracts diligence for government contractors in a range of industries.