In the early morning hours of April 3, 2020, SBA has released an overhauled Paycheck Protection Program (PPP) loan application form (SBA Form 2483) and Treasury has posted a draft temporary Interim Final Rule implementing Sections 1102 and 1106 of the CARES Act. Since the passage of the legislation a week ago and
With the Paycheck Protection Program (PPP) and funding for the Small Business Administration’s (SBA) Economic Injury Disaster Loans (EDIL) unlocking a combined total of over $360 billion for loans to cover urgent business costs, including payroll costs, employee benefits and leave, mortgage interest payments, debt refinancing, rent and utilities, the CARES Act has extended an…
In its February 18, 2020 Report, the Inspector General for the U.S. Department of Defense (DoD) concluded that $876.8 million in service-disabled veteran-owned small-business (SDVOSB) contracts were improperly awarded due to a lack of verification by contracting officials. The audit, which was conducted to determine whether DoD awarded contracts to businesses that actually qualified…
The Small Business Administration (SBA) has seemingly slipped a noteworthy change into a technical correction published in the Federal Register on March 26, 2018. Indeed, this “technical correction” actually appears to be an attempt to overturn the impact of a decision that the Office of Hearing and Appeals (OHA) issued in January 2018 – In…
On March 22, 2018, the Department of Defense (DoD), Office of the Under Secretary of Defense issued a Class Deviation letter to the heads of all Department of Defense agencies requiring, effective immediately, that every DoD agency ensure that its contracting officers implement the recommendations for enhanced post-award debriefings set forth in Section 818 of the 2018 National Defense Authorization Act (NDAA).
The direction makes clear that DoD agencies are to provide unsuccessful offerors who are given a debriefing in accordance with FAR 15.506(d) the opportunity to “submit additional questions related to the debriefing within two business days after receiving the debriefing.” The agency will then be required to “respond in writing to the additional questions submitted by an unsuccessful offeror within five business days after receipt of the questions” and must hold the debriefing open until it “delivers its written responses to the unsuccessful offeror.”
In this second part of our blog series about the July 25, 2016 SBA final rule implementing numerous changes to multiple SBA regulations and establishing a new small business Mentor-Protégé Program (SB MPP), we address how such implementation impacts the parallel 8(a) Business Development mentor-protégé program (8(a) MPP). As the final rule points out, the 8(a) MPP will remain intact; however, the SBA has made several changes to the regulations governing that program, which largely represent the SBA’s efforts to harmonize the two programs. The paragraphs below discuss some of these changes, including those impacting the requirements for entry, ongoing reviews and terminations, and reporting obligations.
Requirements for Entry into the 8(a) MPP
With the creation of the SB MPP, companies qualifying as an 8(a) have the option to participate in either the 8(a) or the SB MPP. Any current or future participant in the 8(a) MPP should be aware of the final rules’ numerous changes to this program, as discussed below.…
On July 25, 2016, the SBA published its final rule establishing a government-wide mentor-protégé program for the benefit of all small businesses as protégés. This widely-anticipated rule, implementing provisions of the Small Business Jobs Act of 2010 and the National Defense Authorization Act for Fiscal Year 2013, provides increased opportunity for small and large businesses to partner with one another. Effective August 24, 2016, this new program is expected to unleash a flood of new mentor-protégé agreements (MPAs) as well as joint ventures eligible to compete on set-aside procurements, and it could likely result in an increase in the number of set-aside procurements.
Below we discuss the benefits from participating in this program, the requirements for the mentor-protégé agreement (“MPA”), the eligibility criteria for mentors and protégés, and the requirements for joint ventures established pursuant to the MPAs. Given the numerous benefits to participating in this program, including the opportunity to joint venture, the SBA has layered into this final rule the requirement for numerous express certifications of compliance and severe consequences for violation of the SBA’s regulations, MPAs, and/or joint venture agreements. A separate blog post will address the changes that the SBA is implementing in the final rule to the SBA’s current regulations governing the 8(a) business development (BD) program.
In this part of our ongoing series (see Part I, Part II and Part III) on the Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments implementing the National Defense Authorization Act of 2013 (FY2013 NDAA) Amendments, we address the new recertification requirement that is triggered following the merger, sale, or acquisition of a firm that has submitted an offer as a small business concern (SBC).
A concern that represents itself as a small business and qualifies as small at the time of proposal submission is considered to be a small business throughout the life of that contract. This even applies for Multiple Award Contracts—the SBC is considered small for each order issued against the contract with the same NAICS code and size standard (unless a contracting officer chooses to request a new size certification in connection with a particular order). In other words, even where a concern grows to be other than small, the procuring agency may exercise options and still count the award as an award to a SBC, unless a recertification requirement has been triggered.
Given the great boon that comes to a firm upon award of a contract where it has qualified as a SBC, the SBA has long sought to set the right balance for what should happen when a small business is involved in a merger, sale, or acquisition. The concern is that if a SBC could submit a proposal with pricing, certify that it is small, and actually qualify on that date of proposal submission as small, should that small business be able to sell itself following proposal submission or contract award to a large business and allow the large business to benefit for up to five years of contract performance as a “small business”? The SBA’s answer to that is no. The SBA’s regulations as currently drafted require recertification in certain circumstances following a merger, sale, or acquisition but only once award has already been made. In the final rule, SBA imposes new recertification requirements aimed at changes that occur within the window between proposal submission and contract award.
The Government Contracts Group, along with our colleagues from the Corporate, White Collar, Litigation, and Labor & Employment Groups along with several guest speakers, presented on a broad range of current issues impacting government contractors during our annual OOPS and West Coast OOPS. Our practitioners covered hot topics such as the new labor and employment reporting and disclosure requirements, agency assessments of supply chain, and cyber security. We also provided guidance on how to navigate traditionally challenging areas for contractors, such as protection of intellectual property and data rights, classified contracting, and cost accounting. All of the presentations can be found using the links below.
As we have previously addressed, the Small Business Administration’s (SBA) final rule, Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments, has implemented numerous changes to small business contracting contained in the National Defense Authorization Act of 2013 (FY2013 NDAA). Below we discuss an important change to one affiliation test as well as newly introduced exclusions from affiliation. On the whole, these changes make it easier for small businesses to work together without risking a finding of affiliation.
Affiliation is a central component of SBA’s regulations: in determining a concern’s size, SBA counts the receipts, employees, or other measure of size of the concern whose size is at issue and all of its affiliates (domestic and foreign). In other words, these tests and (and exemptions or exclusions) affect whether SBA finds a concern to be small or other than small based on its relationships with other concerns.