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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.

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 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

On July 31, 2018, the Interagency Suspension and Debarment Committee delivered its annual report to Congress on the status of the suspension and debarment system.  The report shows a continued high level of activity relative to the last decade and serves as a reminder that exclusion from the federal marketplace continues to be a risk for contractors that do not “cut square corners” with the government.

Decline in Suspensions May Indicate an Increase of Proactive Communication Between Contractors and Officials

The FY2017 report shows a modest decrease in the number of suspensions, proposed debarments, and debarments from the last fiscal year, a trend that has continued since the high-water mark set in FY2014.  But it also notes that the number of exclusions in FY2017, over 3,000, are almost double those reported when the Committee first began formally tracking the data in FY2009, approximately 1,800.

Continue Reading Slight Decrease in FY2017 Suspensions and Debarments, but Contractors Should Take Note of the Continued High Level of Activity

Bass, Berry & Sims attorney Richard Arnholt provided comments on the questionable communications related to the bidding process for two separate contracts awarded by the St. Louis Economic Development Partnership. In both cases, email exchanges between individuals in the St. Louis county executive and economic partnership offices and a top donor to the county executive’s campaign revealed that the donor requested feedback on his proposal prior to formally submitting the bid. The Economic Development Partnership subsequently awarded the two government contracts to the donor’s company.

Continue Reading Information on Inquiries Arising from Economic Development Partnership Bidding Process

Todd Overman will be presenting at the 31st Annual Government Small Business Conference in Tampa on May 4, 2018. The event, co-hosted by the Florida Procurement Technical Assistance Center at USF and the Florida SBDC at USF, is a unique conference for small business owners to learn how to optimize business opportunities through informative workshops, panel discussions, and a Business Opportunity Expo featuring federal agencies.

Todd’s presentation, “Early Themes for Government Contractors Under the Trump Administration,” will highlight regulatory updates implemented by the Trump Administration that impact government contractors, as well discuss enforcement trends that could impact certain industries.  Issues to be covered include domestic preference, small business developments, and cybersecurity enforcement.

EVENT DETAILS:

Continue Reading Event – Regulatory and Enforcement Update: Early Themes for Government Contractors Under the Trump Administration

In an article published by National Defense Magazine, Bass, Berry & Sims attorneys Richard Arnholt and Sylvia Yi provided insight on the significant changes affecting defense contractors from the National Defense Authorization Act (NDAA) for fiscal year 2018, specifically concerning bid protests.

There are two significant big protest changes in the new NDAA:

  1. the introduction of a new three-year pilot program in which large defense contractors will be required to pay the Department of Defense’s costs where a protest is denied by the Government Accountability Office (GAO); and
  2. the enhancement of post-award debriefing rights.

Continue Reading Richard Arnholt and Sylvia Yi Examine 2018 Changes in Challenges to Bid Protests from NDAA

Two Washington, D.C. area government contractors have agreed to pay the government for their respective roles in defrauding the U.S. Small Business Administration (SBA) in schemes to fraudulently obtain government contracts set aside for small businesses.  These two cases highlight the importance of small business compliance and the submission of accurate and complete certifications. Continue Reading Small Business Fraud Leads to Large Monetary Liability in Recent Cases

In mid-January, the General Services Administration (GSA) released their Semiannual Regulation Agenda. Within this agenda, GSA announced plans to update requirements in the General Services Administration Acquisition Regulation (GSAR)—concerning reporting cyber incidents that potentially affect GSA or its contractors.

The agency will be turning to the Federal Information Security Modernization Act of 2014 (FISMA), along with other cyber regulations, as a model on how to update its policies. These updates would be improvements to the existing cyber incident reporting policy within GSA Order CIO 9297.2—i.e. GSA Information Notification Policy. By integrating these updated policies into the GSAR, contracting officers would be required to include cyber incident reporting requirements within all of their procurement contracts. Continue Reading General Services Administration Announces Plans to Update Cybersecurity Requirements for Contractors

Our attorneys will be participating in a panel discussion on unique M&A issues in government contracts. The panel will address key M&A issues, including due diligence, differences in transactions with public and private companies, and solutions to common government contracts issues.

Sylvia Yi will moderate and Todd Overman will be a panelist for this event that will be held at Wiley Rein in Washington, D.C.

EVENT DETAILS:

Continue Reading Event: Due Diligence and Unique M&A Issues in Government Contracts