Small Business Administration

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In its recent decision, CVE Appeal of First State Manufacturing, Inc., SBA No. CVE-184-A (2021), the Small Business Administration Office of Hearing and Appeals (OHA) denied an appeal of a decision by the Department of Veterans Affairs Center for Verification and Evaluation (CVE) to cancel First State Manufacturing, Inc.’s verification of service-disabled veteran-owned small business (SDVOSB) status. CVE issued its Notice of Verified Status Cancellation based on concerns of present responsibility related to a consent judgment entered into merely a month before to resolve a False Claims Act (FCA) lawsuit against First State that required First State to pay over $393,000. Prior to the FCA lawsuit, First State’s Vice President for Marketing/Contract Administration and Chief Executive Vice President/Chief Financial Officer were criminally charged, pled guilty, and were sentenced to prison terms for bribing an Amtrak official to win federal Government contracts. In the appeal before OHA, First State argued that CVE erred in cancelling its verified SDVOSB status for two reasons: (1) the FCA consent judgment was based upon an underlying FCA settlement agreement that did not admit liability or wrongdoing by First State; and (2) the Federal Railway Administration, which oversees Amtrak funding, determined that First State was “presently responsible,” and that the likelihood of future harm to the Government did not warrant suspension or debarment. First State further argued that as the Federal Railway Administration is the agency with the potential injury, its determination of present responsibility should have been given greater deference by CVE.
Continue Reading False Claims Act Consent Judgment Prompts Termination of SDVOSB Status Even Without an Admission of Liability

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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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Far too often, investors, including venture capital companies, assume that as long as they do not retain the largest shareholder interest in a company, that they cannot create affiliation problems impacting what is a key to companies’ initial success in government contracting: small business status. Wrong. A recent U.S. Small Business Administration (SBA) Office of Hearings and Appeals (OHA) decision makes this a stark reality, upholding a determination that an apparent awardee in a set-aside procurement is other-than-small based on affiliation arising from its mere 4.16 percent stock ownership interest in another company.

Affiliation Generally
If a contractor has ever thought about certifying its size as small under a particular NAICS code, hopefully they reviewed the SBA regulations on affiliation in advance. The analysis of whether a company is small in size does not start and end with the receipts or number of employees for that company, but is instead considered as a spiderweb of connections with other individuals and entities. In order to determine a concern’s size, SBA counts not only the receipts or employees of the concern but also the receipts or employees of each of the concern’s domestic and foreign affiliates.

Concerns and entities are affiliates of each other when one controls or even has the power to control the other, or a third party or parties controls or has the power to control both. 13 C.F.R. § 121.103(a). In determining affiliation, there are numerous factors that the SBA must consider – including, ownership, management, and previous relationships with or ties to other concerns. SBA’s analysis concerns the totality of the circumstances; the absence of any single factor will not be considered dispositive.

Continue Reading Investors Beware: Minority Ownership Interests Can Create Affiliation and Defeat Small Business Size Status

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On December 29, 2014, the Small Business Administration issued long overdue proposed amendments to its regulations (with 60 days for comments) to implement many of the provisions of the National Defense Authorization Act of 2013 relevant to small business contracting.

Most notable is the complete overhaul of the calculation of the limitations on subcontracting requirement. The amendment proposes a major shift in the way the calculation is performed. The current method requires the prime contractor to be responsible for the specified percentage of cost of performing the contract (with variations depending on whether it is a contract for services, supplies, construction, or specialty trade construction). The amendment proposes shifting the calculation from this cost-based approach to the amount paid to the prime, which must be more than the specified percentage paid to other than “similarly situated” subcontractors. The proposed revision is intended to be easier to calculate, but complexities remain.
Continue Reading Significant Changes on the Horizon to Key SBA Regulations, Including the Limitations on Subcontracting

Contracting programs like the 8(a) Business Development Program, the Service-Disabled Veteran-Owned Small Business Concerns Program, and the Woman-Owned Small Business Program present tremendous opportunities for small businesses to grow and thrive by providing access to potentially lucrative government contracts with limited competition (“set aside” contracts).  But easily and often overlooked compliance issues may, by operation

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The FAR Council issued a proposed rule on March 7, 2013, that would amend the FAR to mirror recent changes to the Small Business Administration’s procedures for protests and appeals of small business size and status determinations.  The rule also seeks to provide uniformity for protests and appeals of status as a HUBZone small business concern, Service-Disabled Veteran-Owned Small Business (“SDVOSB”), Economically Disadvantaged Women-Owned Small Business (“EDWOSB”), or Women-Owned Small Business (“WOSB”).  Finally, the proposed rule also includes several other revisions, including changes to the requirements of the “nonmanufacturer rule,” updates to small business status following size determinations, and guidance on NAICS determinations.

Size Protests & Appeals.  The new rule would increase the time (from 10 to 15 days) for the SBA to make a size determination of a protested business concern.  It would also provide the contracting officer with the authority and discretion to authorize more time for the SBA to make its determination, and to award contracts, if necessary, when the SBA has not completed its determinations within 15 days.  For appeals, the proposed rule clarifies that it is entirely within the discretion of the SBA’s Office of Hearing and Appeals (“OHA”) whether to hear an appeal of a size determination, and within the contracting officer’s discretion whether to suspend an award to a party whose size determination has been appealed.  The proposed rule also allows for email delivery of written protests.

Continue Reading FAR Council Issues Proposed Rule Changes for Protests of Small Business Status

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Recent Changes to the Small Business Administration’s 8(a) Program took effect on March 14, 2011. This is the First major revision to the 8(a) program since 1998. Per the SBA, the goal of the rule changes were to better ensure that the benefits of the SBA flow to the intended recipients and to help prevent

A recent settlement by a construction company highlights the need for government contractors to ensure compliance with small business subcontracting requirements. Federal contractors with contracts over a certain size have long been required to put in place and implement a plan to subcontract a certain percentage of work to small and disadvantaged businesses. While the

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The big news Friday afternoon and over the weekend was the Small Business Administration’s decision to suspend GTSI—a major government contractor – from receiving new government orders. While the notice of suspension is not yet publicly available, the Washington Post reported that the suspension stems from the government’s view that GTSI engaged in improper relationships