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On September 23, 2022, the FAR Council issued a number of final rules amending the Federal Acquisition Regulation (FAR) to reflect changes previously implemented by the Small Business Administration (SBA) to its regulations on women-owned small businesses and HUBZones, as well as to clarify policy on joint ventures in small business contracting. 

The final rule on HUBZones (87 FR 58232) aligns the FAR’s definition of a HUBZone in provisions and clauses such as FAR 2.101, 52.212-3, 52.219-1, 52.219-8 and 52.219-9 to refer to the requirements described in 13 C.F.R. § 126.200 and SBA’s designation of a HUBZone small business concern in the Dynamic Small Business Search (DSBS). This is in line with the SBA’s recent revisions to the HUBZone regulations via which SBA annually certifies HUBZone entities in order to allow such entities to remain eligible for HUBZone contracts for the entire year rather than such entities being required to represent their status for each offer. Higher-tier contractors are required to confirm that a subcontractor representing itself as a HUBZone small business concern is certified by SBA as a HUBZone small business concern by accessing SAM or by accessing DSBS. The rule also allows contracting officers to award HUBZone set-aside and sole-source contracts at or below the simplified acquisition threshold. …

Continue Reading FAR Updated to Reflect Revised SBA Regulations

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Major changes to the way small business contractors obtain, and agencies evaluate, past performance references are set to arrive on August 22, 2022. On July 22, 2022, the Small Business Administration (SBA) published a final rule implementing provisions of Section 868 of National Defense Authorization Act for Fiscal Year 2021. The rule provides two new methods for small business contractors to obtain past performance ratings upon which they may then rely when submitting offers on prime contracts with the Federal Government.

First, a small business offeror may rely on the past performance of a joint venture of which it is a member, as long as the small business was involved in performance of the joint venture’s contract(s).  To that end, when submitting a proposal, the small business must: (1) identify the joint venture; (2) specify the joint venture’s contract(s) the small business elects to rely upon; and (3) detail the duties and responsibilities the small business carried out as part of the joint venture. Provided these requirements are met, the procuring agency shall (per 13 C.F.R. § 125.11) consider the past performance of the joint venture when evaluating the past performance of the small business concern.

Continue Reading SBA to Implement New Methods for Evaluating Expanded Sources of Small Business Past Performance

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On July 29, 2021, the Small Business Administration announced in an FAQ that it is discontinuing any reliance on the Loan Necessity Questionnaires, which the SBA had required of each borrower, that together with its affiliates, received Paycheck Protection Program loans with a principal amount of $2 million or greater. As we’ve previously discussed,…

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This week’s episode covers a new Executive Order on Climate-Related Financial Risk, the final DFARS provision on contract closeout, a new SBA decision involving a mentor-protégé joint venture, and a FedRAMP update, and is hosted by partners Peter Eyre and Olivia Lynch. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a…

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In this bullet point, Olivia Lynch, Amy O’Sullivan, Michael Samuels, and Zachary Schroeder address the SBA Office of Hearings and Appeals’ (OHA) recent decision in DSC-EMI Maintenance Solutions, LLC, SBA No. SIZ-6096. In the decision, OHA affirmed a size determination holding that a joint venture formed pursuant to SBA’s Mentor-Protégé Program was other-than-small because…

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The Government Accountability Office sustained a protest (Innovate Now, LLC, B-419546, April 26, 2021) against an Air Force solicitation that required the protégé member of any mentor-protégé joint venture offeror to meet the same experience requirements as all other offerors.  Specifically, the RFP required that a joint venture offeror must provide a minimum…

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On February 25, 2021, the U.S. Attorney’s Office for the Southern District of Illinois announced a settlement to resolve allegations that a contractor that was not an eligible participant in the Small Business Administration’s 8(a) Business Development Program violated the False Claims Act by controlling a joint venture that claimed 8(a) status and won an…

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In a previous blog post, we covered the Small Business Administration’s (SBA) consolidation of the 8(a) Business Development (BD) Mentor-Protégé Program and the All Small Mentor-Protégé Program.  Beyond consolidating the programs, SBA also made a host of additional changes to the 8(a) Program, almost all of which took effect on November 16, 2020.  As…

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As we’ve stressed about the mentor-protégé program, the Small Business Administration’s (SBA) primary concern is that the program benefits the small business protégés.

Past performance is a particularly delicate topic for small businesses, presenting something of a what-came-first-the-chicken-or-the-egg question.  Past performance is not strictly required in order to win prime federal contracts, and its weighting…

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In the Small Business Administration’s (SBA) October 2019 Final Rule covering Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments, SBA also included modification to two of the affiliation tests under 13 C.F.R. § 121.103.

(Note, SBA made a number of other changes to 13 C.F.R. § 121.103 focused on the joint venture affiliation test.)…