In an article published by SmallBizDaily, Bass, Berry & Sims attorneys Todd Overman and Sylvia Yi provided insight on the regulatory improvements to the SBA’s Women Owned Small Business (WOSB) Program that helped the federal government finally achieve its goal of awarding five percent of its annual contracts to WOSBs. As Todd and Sylvia point out in the article, Fiscal Year 2015 marked the first time the federal government has met (and exceeded) its WOSB goal, coming in at 5.05 percent. The most significant changes that led to this successful year were concentrated within the past couple of years, including a December 2015 amendment to the Federal Acquisition Regulation (FAR) authorizing contracting officers to issue sole source awards to WOSBs.

The full article, “Contracts to Women-Owned Businesses Exceeds Expectations,” was published by SmallBizDaily on September 14, 2016, and is available online.

Since the start of September, the U.S. Treasury Department, Office of Foreign Assets Control (OFAC) has settled with two different companies for alleged violations of U.S. economic sanctions on Iran. The settlements, the first with World Class Technology Corporation (WCT) and the second with PanAmerican Seed Company (PanAmerican), yielded vastly different outcomes.  As summarized below, we think the divergent results serve to illustrate how OFAC weighs various factors in calculating penalty amounts.

WCT.  On September 7, 2016, OFAC settled with WCT for $43,200 based on alleged violations of the Iranian Transactions and Sanctions Regulations (ITSR).  The alleged violations occurred when WCT exported seven shipments of orthodontic devices to Germany, Lebanon and the United Arab Emirates with suspicion that the devices would be exported to Iran.  The devices were collectively valued at almost $60,000.  The exports occurred between April 2008 and July 2010.

Continue Reading Iran Sanctions: Recent Enforcement Sheds Light on OFAC Penalty Calculations

Key Points:

  • Dozens more Russian and Ukrainian entities have been designated as prohibited / restricted parties
  • A limited General License authorizes transactions, for a brief period of time, to halt business with a specific Russian entity
  • The designations reflect OFAC’s continued use of the “50 percent rule,” and the challenges of diligence on Russian transaction partners

Designations. On September 1, 2016, the U.S. Office of Foreign Assets Control (OFAC) designated 37 individuals and entities pursuant to its Ukraine-related sanctions program.  OFAC last designated individuals and entities under the Ukraine program in December 2015. Continue Reading Happy September: OFAC Extends Russia/Ukraine Sanctions

The Women Owned Small Business (WOSB) Program moved its certification process from the General Login System (GLS) to the SBA One Contracting Portal at certify.sba.gov in March 2016. This has streamlined the certification process for WOSBs and Economically Disadvantaged WOSBs (EDWOSBs). The website features a checklist to prepare for certification, an “Am I Eligible?” tool, and email notifications for expiration and renewal notices.

Continue Reading Everyone Bookmark certify.sba.gov

On August 2, 2016, the U.S. Treasury Department, Office of Foreign Assets Control (OFAC) issued a Finding of Violation against two health insurance providers for activities that violated U.S. economic sanctions. The companies allegedly had issued health insurance policies that covered individuals on OFAC’s List of Specially Designated Nationals and Blocked Persons (the SDN List).  In general, U.S. companies are prohibited from performing any transaction with or involving parties on the SDN List.

Continue Reading OFAC Dings Two Health Insurance Providers, on the Same Day, for Violating U.S. Sanctions

On July 26, 2016, responding to rising cyber attacks and public criticism, the federal government issued a Presidential Policy Directive (PPD-41), to clarify the role of law enforcement agencies, to increase coordination across the government, and to divide cybersecurity efforts into three categories: asset response, threat response and intelligence support. PPD-41 outlines five key principles for the federal government and federal agencies in complying with the “whole-government” approach to cybersecurity. Although the initiative is directed at the federal government and sector-specific agencies, private entities are also likely to be affected and are instructed on the best practice for cyber incident reporting.

PPD-41 emphasizes unity in the government’s response to cybersecurity incidents, outlining five guiding principles of the directive. In structuring incident reporting and protection mechanisms, the government seeks to emphasize shared responsibility, increased awareness, risk-based responses, respect to entities affected by the incident, unity in governmental efforts in responding to an incident, and allowing effective restoration and recovery following a cybersecurity breach. In distributing the responsibilities of cybersecurity, the government delineates specific agencies to take charge of the three categories of protection. The Department of Homeland Security (DHS) will lead asset response activities and post-breach recovery needs, the Department of Justice (DOJ) in collaboration with the FBI will be in charge of threat response, and the Office of the Director of National Intelligence (ODNI) will head intelligence support.

Continue Reading Federal Government Restructures Its Approach to Cybersecurity

On July 27, 2016, the U.S. Court of Federal Claims held that the U.S. Department of Health and Human Services (HHS) was unreasonable in cancelling its solicitation for on-site operational support for the HHS Unified Financial Managements System (UFMS).  The decision, Starry Associates, Inc. v. United States, is unusual, given that the Government Accountability Office (GAO) and the Court of Federal Claims are typically reluctant to oppose an agency’s decision to cancel a solicitation.  The decision serves as a useful reminder that such discretion is not unfettered and will be overturned where it is arbitrary and capricious.

Continue Reading A “Starry” Saga: Protester Prevails After Four Protests and an Overturned Solicitation Cancellation

On Friday, July 22, 2016, the Small Business Administration (SBA) released a Final Rule (Final Rule) establishing a government-wide mentor-protégé program for all small business concerns, designed to increase opportunities in the federal market place and improve development for small businesses. This expansion implements the authority Congress gave SBA in the 2013 National Defense Authorization Act to create mentor-protégé programs for Service-Disabled Veteran Owned Small Businesses (SDVOSB), HUBZone small businesses, women-owned small businesses (WOSB), and small businesses.

    The new program, which enables these categories of small businesses to benefit from the SBA-approved mentor-protégé arrangements previously only available to certified 8(a) small disadvantaged businesses, goes into effect on August 24, 2016, and will be implemented with the help of a newly formed unit within the SBA Office of Business Development devoted solely to processing and reviewing mentor-protégé applications and agreements. Instead of creating four new and separate programs covering each of the small business contracting programs (i.e., small business, SDVOSB, WOSB, and HUBZone), SBA chose to create a single program for all small business concerns modeled after the existing 8(a) Business Development (BD) mentor-protégé program, which will continue to operate as a separate program. Alongside these regulations, the Final Rule revises guidelines for joint venture agreements between a mentor and a protégé.

Opening the mentor-protégé program to new categories of small businesses creates significant opportunities for both large and small businesses. Because of the expected avalanche of applications from companies wishing to participate in this program, an overview of which is provided below, businesses that anticipate submitting applications for approval of mentor-protégé agreements should do so as soon as possible after the program goes into effect.
Continue Reading Mentor-Protégé Expansion Creates Opportunities for all Government Contractors Large and Small

We recently authored an article outlining the provisions and ramifications of the General Services Administration’s (GSA) final rule governing transactional data reporting, released on June 23, 2016.  As the most significant change to the GSA Federal Supply Schedules (FSS) program in the last two decades, the new rule requires each vendor subject to the provisions to electronically submit monthly reports that provide 11 transactional data elements and replaces the current requirements relating to Commercial Sales Practices (CSP) disclosures and the Price Reduction Clause (PRC). While many remain skeptical of the benefits of the new rule, the GSA believes the transactional data clause will reduce the administrative burden on contractors, promote competition and transparency, and benefit small businesses that often lack the necessary resources to devote to business intelligence and development.

Continue Reading Update: GSA Requests Comments on Releasing Data Obtained through the New Transactional Data Reporting Rule

On July 14, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued a revised version of its proposal to expand pay data collection from federal contractors and other employers with more than 100 workers. The revised proposal pushes back the date of the first required employer report to allow for the use of W-2 wage and salary reports.

The EEOC initially published its proposed rule in late January. The proposed rule expands the information certain employers must report to the federal government on an EEO-1 report. The EEOC’s proposal would add data on pay ranges and hours worked to the information currently collected.

The EEOC considered and adopted specific suggestions made by commenters during the initial 60-day comment period that ended earlier this year. For example, the EEOC moved the due date for the EEO-1 survey from September 30, 2017 to March 31, 2018, to simplify employer reporting by allowing employers to use existing W-2 pay reports, which are calculated based on a calendar year. In addition, the EEOC agreed to give employers the choice of reporting either a 40-hour week for full-time exempt and 20-hour week for part-time exempt workers, or in the alternative, providing an annual report for such employees. This change is in response to employer concerns for the non-standard weekly hours for this category of workers. The updated rule comes with a fresh, 30-day comment period that runs until August 15, 2016.

Continue Reading EEOC Issues Revised Equal Pay Data Rule