I recently authored an article for Strategic Consulting Solutions, Inc. (SCS) GovCon Advisor – a monthly news source for the government contracts industry. The article outlines the requirements of the Small Business Administration’s (SBA) All Small Mentor-Protégé Program (ASMPP), focusing on the Mentor-Protégé Agreement (MPA) and the recent Hendall case. As I point out, “The Hendall case is a great example of one of the primary business development benefits under the ASMPP – the ability for a large business and small business to form a joint venture and pursue a small business set aside contract as a team. Without the ASMPP JV affiliation exception – these businesses would normally be considered affiliates and unable to pursue the opportunity as a joint venture.  The case also highlights the importance of carefully drafting the MPA and being very specific as to the benefits the protégé will receive.”

The full article, “SBA’s All Small Mentor-Protégé Program Provides Critical Affiliation Exception for Eligible Joint Ventures,” is available on the SCS website.

  • Mandatory declarations of certain transactions now required
  • Certain changes to pre-existing regulations also announced and effective immediately
  • Mandatory declaration requirement may not ease burden on parties filing with CFIUS

On October 11, the U.S. Treasury Department took the first steps to implement the significant changes introduced under the Foreign Industrial Review and Risk Modernization Act (FIRRMA). FIRRMA broadens the mandate of the Committee on Foreign Investment in the United States (CFIUS), which reviews foreign investments in the United States that could impact U.S. national security.

Most notably, the Treasury Department is establishing a pilot program that imposes new obligations on foreign parties making investments, even non-controlling investments, in U.S. businesses involved in 27 explicitly designated industries. The pilot program defines such investments as “pilot program investments.”

Continue Reading CFIUS Pilot Program Creates New Obligations and Challenges

Conditioned Agreements to Negotiate (CAN)

When acquiring or selling small businesses, government contractors need to be cognizant of the Small Business Administration’s (SBA) “present effect rule.” Under this rule, SBA will find that certain letters of intent (LOI) or other agreements to merge have a “present effect” on the buyer’s ability to control the small business seller. Numerous decisions by the SBA’s Office of Hearings and Appeals (OHA) have discussed the acceptable parameters of LOIs.

In a recent decision, OHA further refined the elements considered in the determination of whether an LOI amounts to an “agreement in principle.” Continue Reading You “CAN” Avoid Affiliation in Negotiating an Acquisition

On October 16, I am joining Chris Waskowich, CIO of V2 Systems, for an hour-long webinar. We will help you understand what the NIST standards are, how they can impact your current and future DoD work, and most importantly how your company can get into compliance.

I will provide an update on DoD’s recent regulatory and policy updates and the impact of noncompliance, and Chris will provide practical guidance on how to bring your organization into compliance.

On September 24, 2018, the U.S. Department of Veterans Affairs (VA) issued a final rule that alters its regulations governing the Veteran-Owned Small Business Verification Program.  The final rule, “VA Veteran-Owned Small Business (VOSB) Verification Guidelines,” will go into effect on October 1, 2018.  This new rule brings much awaited clarity and uniformity to the regulations governing the VA’s ownership and control requirements for VOSBs and Service-Disabled Veteran-Owned Small Businesses (SDVOSBs).

Details of the VA VOSB Verification Guidelines

The rule places exclusive authority to implement VOSB verification regulations in the Small Business Administration (SBA), and goes so far as to seek the removal of all references to “ownership” or “control” from VA regulations.  Additionally, the rule provides clarification on certain portions of the VA verification process, and outlines the circumstances that will allow a company to qualify as a VOSB or SDVOSB under a surviving spouse or active employee stock ownership plan (ESOP).

Continue Reading VA Concedes Sole Responsibility for Verifying Veteran Contractor Ownership and Control to the SBA

I will be presenting the topic of “Federal Procurement Protests & Appeals” at the 2018 PDS/SCS GovCon Seminar on Thursday, October 18. This event provides attendees with up-to-date information on compliance and changes in the government contracts industry.

For more information about and to register for the event, please visit the event website.

  • FIRRMA would significantly expand CFIUS jurisdiction.
  • Mandatory filing would be required in some cases.
  • Parties that protect and maintain personal information are likely to face more scrutiny.

As we have described in recent blog posts in March 2018, January 2018 and October 2017, a rash of proposed transactions have not survived the Committee on Foreign Investment in the United States (CFIUS) process.  Most notably, as we described here, in March 2018, President Trump announced that he would not allow Singapore-based Broadcom to acquire U.S.-based Qualcomm, a rival chipmaker.

The president made his decision based on the recommendation of CFIUS, the U.S. government’s inter-agency committee that reviews transactions that could result in control of a U.S. business by a foreign person in order to determine if the transaction would have an effect on the national security of the United States.

Continue Reading Proposed CFIUS Reform Moves Forward

In early April, the GAO issued a final rule revising the existing bid protest process—the major revisions being the introduction of an Electronic Protest Docketing System (EPDS) and a protest filing fee. When the rule takes effect on May 1, 2018, the new EPDS will launch as the GAO’s electronic filing and document dissemination system for bid protests.

Continue Reading New GAO Bid Protest Procedures Take Effect on May 1

Congress created the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs in 1982 and 1992, respectively. These programs require certain government agencies to set aside a percentage of their extramural budgets so domestic small businesses can engage in research and development (R&D) with a strong potential for technology commercialization. Accordingly, 11 agencies support the SBIR program with five of them also having STTR programs. The Small Business Administration serves as the coordinating agency for the programs.

Small businesses receive multiple benefits by applying for SBIR/STTR awards. The funding is stable, predictable, and not a loan. In addition, the capital is non-dilutive, and the small business retains certain intellectual property rights for their developments. Companies can use their proposals for SBIR/STTR awards as an opportunity to develop a relationship with a university or other research institutions. These programs allow innovative small businesses to offset the cost of R&D while leaving them in control of any developed IP.

Continue Reading Additional Funding Available for SBIR/STTR Awardees at the State Level

In late March, Tennessee Governor Haslam proposed an amended budget for the fiscal year beginning July 1, 2018, which included $3 million toward LaunchTennessee Grants—demonstrating that Tennessee’s implementation of a matching program for Small Business Innovation Research (SBIR) and Small Business Technology Transfer Programs (STTR) survived as more than just a 12-month initiative.

Previous State Funding

Within the last year, Tennessee became the seventeenth state to implement a matching program for SBIR and STTR federal funding. However, there was no guarantee that the program would be funded for a second year. While Tennessee is among national leaders in terms of research funding, Tennessee-based businesses have not been as successful as other states in winning SBIR and STTR awards. This matching program sought to help increase the success rate.

Continue Reading LaunchTennessee’s SBIR/STTR Matching Fund Program Hoping for Another Successful Year