Small Business Regulations and Programs

According to American Express OPEN, “For the first time in history, the U.S. government has awarded 5 percent of federal government contracting dollars to women-owned small businesses—a big achievement for both the government and the approximately 9.4 million women-owned small businesses across the country.” On Thursday, March 17, I have the honor of presenting “The…

In a recent Armed Services Board of Contract Appeals (ASBCA) decision, Nelson, Inc., a Small Business Administration (SBA) certified HUBZone construction company based in Memphis, Tennessee, succeeded in reversing the termination for default of its $9.2 million contract with the U.S. Army Corps of Engineers (Corps). The decision highlights how important it is for contractors to maintain careful records of delays caused by factors outside of their control, not just to prove entitlement to additional time or damages, but also to protect against improper default terminations.

Nelson had a contract with Corps to build stone dikes on the Mississippi River. The project involved four sites, Loosahatchie, Robinson Crusoe, Friars Point and Cow Island, and spanned across three states, Tennessee, Mississippi and Arkansas. Nelson’s progress was significantly delayed at one of the sites, due to low water levels that precluded Nelson floating its equipment, then high water levels that prevented the contractor from working, as well as delayed guidance from the Corps regarding differing site conditions. When Nelson exceeded the 165 days allotted for the entire project, the Corps terminated the contract for default despite having not yet issued notices to proceed at two of the sites. Although extra days were supposed to be added to the schedule when river levels were too high or low for construction, the Corps ignored these days when calculating its timeline.Continue Reading The Importance of Keeping Detailed Records of Delays on Construction Projects

Have you submitted your final proposal? If so, and you’ve bid on a small business set aside supply contract, then it is probably too late to cure a possible violation of the non-manufacturer rule. In a recent decision, the Small Business Administration’s Office of Hearings and Appeals (OHA) concluded that once a firm has submitted its final bid or final proposal revision, any subsequent changes in performance approach would be ignored for purposes of assessing the challenged firm’s size and compliance with the non-manufacturer rule.
Continue Reading Is It Too Late to Cure a Violation of the Non-manufacturer Rule?

The NDAA of 2015 not only authorized sole source awards to WOSBs and EDWOSBs, it also eliminated WOSB and EDWOSB self-certification. The SBA, however, chose not to implement this section of the law in its sole source rule issued September 14, 2015 (see our blog post on SBA’s rule here) due to the complexity of its implementation.

On December 18, 2015, the SBA issued an advanced notice of proposed rulemaking (ANPRM), inviting comments on the four methods of certification permitted by the NDAA: federal agency, state government, SBA, and national certifying entities approved by SBA. With regard to these methods, the SBA is seeking comments on the following:

(1) Whether each of the methods should be pursued;

(2) Concerns of feasibility regarding any of the methods;

(3) Possibility of a grace period for those who have self-certified to obtain approved certification; and

(4) What should become of the current WOSB repository.

Under SBA’s current rules, businesses may self-certify after submitting required documents to the SBA repository or get certified by a third party provider.  Currently, there are four third party entities that have been approved by the SBA to certify firms as WOSBs or EDWOSBs. The SBA is considering how many third party entities are necessary to process the certifications under the new rule and whether the cost to WOSBs and EDWOSBs should be taken into consideration in selecting third party certifiers.Continue Reading WOSBs: Self-Certification Ending Soon

John Shoraka, Associate Administrator of Government Contracting and Business Development at the U.S. Small Business Administration (SBA), testified before the House Committee on Small Business Subcommittee on Contracting and the Workforce on October 27, 2015. Concerns were raised regarding the stagnant progress of implementing the expansion of the mentor-protégé program as provided for in…

The Small Business Administration (SBA) issued a final rule on September 14, 2015, expanding contracting officers’ authority to issue sole source awards to Women-Owned Small Businesses (WOSBs) and Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs). This rule takes effect on October 14, 2015 (the “New Rule”).

Prior to the issuance of the New Rule, the WOSB program was the only SBA small business contracting program without a sole source option. The New Rule will put WOSBs on equal footing with SBA’s other socioeconomic small business programs with respect to a sole source award option.Continue Reading New Rule Possible Boon to WOSB/EDWOSB Contracting Opportunities

Despite fulfilling its contractual obligations and voluntarily disclosing its possible oversight, nLight Photonic, Inc. (“nLight”), a Washington-based small business, was pushed to a $420,000 settlement with the Department of Justice to resolve allegations that it violated the False Claims Act by knowingly submitting false certifications regarding its eligibility for contracts and grants under the U.S. Small Business Administration’s (“SBA”) Small Business Innovation Research (“SBIR”) program.

The SBIR program was created to encourage U.S. small businesses to conduct federal research & development that may also serve the community at-large. To be eligible for SBIR funds, a company must satisfy several conditions, including:

1. Having a U.S. place of business;
2. Being majority owned and controlled by individuals that are U.S. citizens (or permanent residents) or by another entity meeting this requirement; and
3. Employing fewer than 500 employees.

Continue Reading Small Business Reaches Settlement to Resolve Allegations it Falsely Certified Compliance with SBIR Program

I recently authored an article outlining a recent decision impacting the affiliation requirements between mentors and protégés when entering into a joint venture. As affirmed in the recent case, a mentor and protégé may enter into a joint venture to compete for government contracts, but must adhere to the strict SBA regulations to be considered.…

Given the substantial benefits small businesses enrolled in the 8(a) Business Development Program receive, the Small Business Administration (SBA) has strict eligibility standards. To qualify for admission into the Program, a small business must be “unconditionally owned and controlled by one or more socially and economically disadvantaged individuals…” 13 C.F.R §124.10. While disadvantaged entities can have business relationships with non-disadvantaged entities they must be wary of not crossing the line from independence to dependence. When a relationship between a disadvantaged and non-disadvantaged entity becomes so close that independent business judgment by the disadvantaged entity is compromised, it can result in the disadvantaged entity’s termination from the 8(a) program.   A recent case decided by the SBA serves as a friendly reminder of this important limitation.
Continue Reading Reminder from SBA: Don’t Cross the Line and Become “Unduly Reliant”

The Small Business Administration (SBA) issued a final rule limiting liability from fraud penalties for firms and individuals who misrepresent their small business size status if they acted in good faith reliance upon a small business status advisory opinion (“Advisory Opinion”) issued by Small Business Development Centers (SBDCs) or Procurement Technical Assistance Centers (PTACs). While not perfect, the final rule provides a process for businesses to receive some guidance from SBA prior to making size representations in connection with award of federal procurements.

First, the rule establishes certain criteria that Advisory Opinions must meet. For instance, an Advisory Opinion must contain a written analysis explaining the reasoning underlying the determination that a concern meets or exceeds size standards and must contain a copy of an SBA Form 355. Additionally, Advisory Opinions must take into account the principles of affiliation. Furthermore, copies of evidence documenting compliance with size standards must be provided by the business and attached to the Advisory Opinion. Following public comments on the proposed rule, the SBA included in the final rule specific types of evidence a firm may provide including payroll records, time sheets and federal income tax returns.Continue Reading SBA Finalizes Safe Harbor Rule for Small Business Size Representations

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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