This week’s episode covers a new DFARS provision about Commercial Solutions Opening, a bid protest decision about timeliness, significant developments in the SBA’s 8(a) Business Development Program, and updates to the Davis-Bacon Act and Related Acts, and is hosted by Peter Eyre, Olivia Lynch, and Yuan Zhou. Crowell & Moring’s “Fastest 5 Minutes” is a
The Small Business Administration has begun outreach to current participants in its 8(a) Business Development Program regarding the impact of the U.S. District Court for the Eastern District of Tennessee’s July 19, 2023 decision enjoining SBA from applying a rebuttable presumption of social disadvantage to individuals of certain racial and ethnic groups.
For 8(a) Participants whose program eligibility is based upon one or more individuals that relied upon the presumption of social disadvantage based on their membership in one of the identified groups (such as Asian Pacific Americans, Black Americans, Hispanic Americans, Subcontinent Asian Americans, and Native Americans), such participants will be required to establish their individual social disadvantage by completing a social disadvantage narrative. No new 8(a) contracts can be awarded to these entities until SBA affirmatively determines that the individual(s) upon whom eligibility is based has established personal social disadvantage.
Although the COVID-19 public health declaration officially ended in May, government investigations of pandemic relief fraud are from over. As observed in a recent report by the Small Business Administration Office of Inspector General, investigations will likely ensue for years to come in light of Congress’s decision to extend the statute of limitations to ten
On June 23, 2023, a coalition of companies, including venture capital firms like Kleiner Perkins, General Catalyst and Founders Fund, and start-up defense technology companies, published an open letter to the Department of Defense (DoD), addressed to Secretary Lloyd J. Austin, petitioning DoD to consider procurement reform to help “overcome barriers to innovation.” The group asserts these barriers create “antiquated methods for developing requirements and selecting technologies that have drastically limited” DoD’s access to “the best commercial innovation.” In particular, the coalition endorsed adopting four recommendations pulled from a report by The Atlantic Council, a non-partisan international affairs think tank.
First, the letter suggests that DoD modernize to align with the 21stcentury industrial base. The letter acknowledges that DoD has already taken a strong step in this direction by establishing the Defense Innovation Unit (DIU), which reports directly to Secretary Austin and whose mission is to accelerate the adoption of commercial technology. The coalition also encouraged DoD to provide DIU with additional staffing and resources to tap into the non-traditional defense industrial base, reinforce “buy before build” commercial practices, and help DoD speed up validation and approval of needs and funding.
On June 27, 2023, the Small Business Administration (SBA) Office of Inspector General (OIG) reported its estimate that SBA disbursed over $200 billion of potentially fraudulent COVID relief, including Economic Injury Disaster Loans (EIDL) and Paycheck Protection Program (PPP) loans. These possibly fraudulent loans represent at least 17% of all EIDL and PPP funds—or 21%
On May 25, 2023, the General Services Administration (GSA) and Small Business Administration (SBA) announced the launch of the 8(a) Multiple Award Schedule (MAS) Pool Initiative.
This Initiative advances President Biden’s commitment to equity and, in particular, the administration’s goal to increase contracts to small disadvantaged businesses (SBD).
Under the Initiative, GSA is establishing an 8(a) MAS Pool that will include new and existing MAS 8(a) contractors who are current, active 8(a) Program participants and whose contracts have been accepted into the pool by SBA.
Continue Reading GSA and SBA Move Forward with Plans to Establish an 8(a) MAS Pool in July 2023
On January 23, 2023, in AttainX, the Government Accountability Office (GAO) sustained the protest of an award to an 8(a) joint venture based on, among other reasons, a finding that the agency’s evaluation of the joint venture’s experience was inconsistent with the Small Business Administration (SBA) regulations concerning joint ventures (JVs), citing 13 C.F.R. § 125.8(e) and 13 C.F.R. § 124.513(f).
The protest involved a General Services Administration (GSA) solicitation for IT services to maintain and modernize the USDA Farm Loan Programs systems and applications. The solicitation required offerors to submit a description of their “similar experience” on other contracts. In response, an 8(a) joint venture (MiamiTSPi) submitted two experience examples:
GSA evaluated MiamiTSPi as Acceptable under the “similar experience” factor and ultimately made award to MiamiTSPi. Disappointed offeror AttainX protested, arguing, among other things, that even though GSA had only rated MiamiTSPi as Acceptable under “similar experience” as opposed to a higher rating, GSA unreasonably neglected to evaluate the risk associated with the fact that the experience examples submitted by MiamiTSPi were not performed by the joint venture proposed as the prime contractor nor performed individually by the “managing member” of the joint venture.
Continue Reading When it Comes to Joint Venture Experience, Perfection May Be Hard to Attain(X)
On December 19, 2022, DoD issued a DFARS proposed rule that seeks to (1) implement the data-rights portions of the May 2, 2019 Small Business Innovation Research Program and Small Business Technology Transfer Program Policy Directive (SBIR/STTR Policy Directive), and (2) impose significant changes to technical data and computer software marking requirements. The SBIR/STTR portion of the proposed rule follows DoD’s advance notice of proposed rulemaking issued on August 31, 2020 (see 85 FR 53758) and incorporates the eight written public comments that DoD received. The proposed changes to marking requirements go beyond the SBIR/STTR Policy Directive and respond to the Federal Circuit’s decision in The Boeing Co. v. Secretary of the Air Force, 983 F.3d 1321 (Fed. Cir. 2020).
The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023, signed into law on December 23, 2022, makes numerous changes to acquisition policy. Crowell & Moring’s Government Contracts Group discusses the most consequential changes for government contractors here. These include changes that provide new opportunities for contractors to recover inflation-related costs, authorize new programs for small businesses, impose new clauses or reporting requirements on government contractors, require government reporting to Congress on acquisition authorities and programs, and alter other processes and procedures to which government contractors are subject. The FY 2023 NDAA also includes the Advancing American AI Act, the Intelligence Authorization Act for FY 2023, and the Water Resources Development Act of 2022, all of which include provisions relevant for government contractors.
On October 26, 2022, the Department of Defense published a class deviation establishing alternative procedures for verifying the small business size and status of joint venture offerors. This class deviation is necessary because, effective October 28, 2022, the Federal Acquisition Regulation has been updated to include new certifications for use by joint venture offerors in