On June 6, the U.S. Small Business Administration (SBA) issued a final rule modifying its methodology for calculating the size of small businesses using an employee-based size standard and authorizes businesses participating in its Business Loan, Disaster Loan, Surety Bond, and Small Business Investment Company (SBIC) programs to choose whether to use a three-year or five-year receipts average when determining eligibility. The final rule becomes effective on July 6, 2022.
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Small Business Regulations and Programs
Buyer Beware: Settling FCA Allegations Costs Manufacturer $5.2 Million
Numet Machining Techniques, a Connecticut-based machined parts manufacturer for commercial and military aerospace engines, recently agreed to pay $5.2 million to settle alleged violations of the False Claims Act (FCA) for misrepresenting its size standard following an acquisition.
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[WEBINAR] SBA ASMPP Joint Ventures: Best Practices for Successful Partnerships
By Sylvia Yi & Todd Overman on
Posted in Small Business Regulations and Programs
A key benefit of Small Business Administration’s (SBA) All Small Mentor Protégé Program (ASMPP) is the opportunity for mentors and protégés to form joint ventures to bid together on prime and subcontracts as a small business. As the number of MPP relationships has grown, so too has the use of the ASMPP joint ventures (JV) to pursue opportunities previously out of reach for both parties. Hear from a panel of experts on best practices in JV formation, structuring, and growing the MPP relationship.
Please join Bass, Berry & Sims attorneys Todd Overman (moderator) and Sylvia Yi, joined by Steven Williams (Deloitte) and Ken Dodds (Live Oak Bank), for a webinar on June 28 at 1:00 p.m. ET / 12:00 p.m. CT, as they discuss these opportunities and much more. Click here to register.…
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Opportunities for Small Business within Federal Contracting Space
By Todd Overman on
In a May 4 article published by American City Business Journals’ The Playbook, I offered insight on the opportunities for small businesses to engage with federal contracting and practical steps to get started.
The federal government spent more than $665 billion on contracts in FY2020, and a variety of special programs for contracts are designed to meet the goal of spending at least 23% of all contracting dollars with small business owners.…
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Key Considerations for Emerging Companies: Government Contracting Opportunities for “Small Businesses”
By Todd Overman on
With a contracting budget approaching $650 billion per year, the United States government is the largest consumer of goods and services globally. In 2020, the federal government spent $145 billion, an equivalent of 26% of its total procurement spending, with small businesses. Breaking into government contracting can be a tremendous opportunity for small and emerging…
Selling Assets During a Protest? Careful You Don’t Jump the Shark
In the past, we have cautioned readers about the potential impact of transactions on pending awards, particularly on the ability of a contractor to protest. A recent decision from the Court of Federal Claims (COFC) shows that transactions during a protest may also pose risks to a contractor’s standing.
On September 9, COFC dismissed a protest filed by Lank Shark Shredding LLC after Land Shark sold assets after the protest had been filed. Land Shark had filed a May 2019 complaint challenging the Department of Veterans Affairs’ (VA) cancellation of a service-disabled veteran-owned small business (SDVOSB) set-aside contract for shredding services. The solicitation had been canceled because only Land Shark had submitted a timely proposal and the VA determined that Land Shark’s proposal suffered from pricing and technical defects.
Background: Company Sold Assets After Protest Was Filed
During oral argument in June 2021, it was revealed for the first time that Land Shark had sold “its name, assets, and business interest, and that these transactions raised questions regarding whether the case caption should be amended to reflect Land Shark’s new name, Disabled Veterans Security, LLC, … and whether any entity had standing to bring this case.”…
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Bleak House Redux: Another Federal Circuit Win in Protracted Protest Litigation
As we previously discussed in a 2019 blog post, since 2018 Bass, Berry & Sims Government Contracts and Litigation attorneys have successfully defended B&O JV in a host of challenges to an 8(a) small business set-aside award by the Federal Law Enforcement Training Center (FLETC). On May 20, 2021, the Federal Circuit gave our client and team yet another win when it denied a request for a rehearing filed by Safeguard Base Operation, LLC, a disappointed offeror that included in the joint venture the prior incumbent.
Over the past three years, we have successfully defended B&O JV against over half a dozen challenges to the award filed by Safeguard. Our team’s undefeated record includes:
- A Small Business Administration size protest.
- Five GAO protests, the last of which resulted in a decision.
- A challenge at the Court of Federal Claims (COFC) to FLETC’s override of Competition in Contracting Act (CICA) stay of the contract award and subsequent appeal to the Federal Circuit.
- A collateral attack on the award in Georgia state court.
- A COFC bid protest that was also appealed to the Federal Circuit.
Safeguard’s primary complaint was that it had been improperly excluded from the competition for failure to include plug numbers provided by FLETC for service work request Contract Line Item Numbers (CLINs). When multiple potential offerors submitted questions about a potential ambiguity, FLETC included the plug numbers in its answers that were incorporated into the RFP in an amendment and instructed offerors to include those amounts in the applicable CLINs. Safeguard, however, did not follow this instruction. Safeguard also alleged that FLETC had breached an implied-in-fact contract to fairly and honestly consider its proposal.…
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See You at GovCon Summit 2021!
We are looking forward to participating in Solvability’s GovCon Summit 2021 of which the firm also serves as a sponsor. This year’s GovCon Summit will provide tactics and strategies from the nation’s top GovCon professionals that have helped thousands of companies win government contracts.
Attendees of GovCon Summit 2021 will learn how to increase revenue…
Bass, Berry & Sims Successfully Protests—And Then Defends—Client Award of a Task Order Before the GAO
By Richard Arnholt & Sylvia Yi on
After a successful challenge last year to the award of a service-disabled veteran-owned small business (SDVOSB) set aside task order for technology service desk operations by the U.S. Customs and Border Protection (CBP or the Agency), our government contracts team successfully defended the award of that task order after the re-evaluation to our client, Patriot, LLC. The challenge and subsequent successful defense of the award highlight the usefulness of the protest process, a process some contractors are hesitant to use.
CBP initially awarded the task order, issued under the Chief Information Officer-Solutions and Partners 3 (CIO-SP3) indefinite delivery indefinite quantity (IDIQ) Government-Wide Acquisition Contract (GWAC), to Candor Solutions, LLC in April 2020. Patriot protested the award to Candor on April 16, 2020, and less than two weeks later the Agency took corrective action.
Candor’s September 2020 Protest
In September 2020, after re-evaluation, CBP awarded the task order to Patriot. Candor protested, alleging the agency:
- Used a facially unreasonable adjectival rating scheme.
- Unreasonably deviated from the rating scheme.
- Unreasonably evaluated Candor’s proposal.
- Did not evaluate Patriot’s proposal in accordance with the solicitation.
COFC: “Rule of Two” Must Be Analyzed Before “Any” Acquisition
By Todd Overman on
Posted in Small Business Regulations and Programs
The Court of Federal Claims (COFC) recently affirmed that agencies are required to apply the “Rule of Two” to all federal acquisitions in its decision of Tolliver Grp., Inc. v. United States. Further, agencies must give a reasonable explanation supported by factual evidence when canceling solicitations. The decision ensures that small businesses will continue to have robust access to federal procurement opportunities.
Army Cancels SDVOSB RFPs in Favor of Unrestricted Multiple Award Contract
The two solicitations at issue in this case were for the procurement of training staff for a field artillery school located in Fort Sill, Oklahoma. Both solicitations were set-aside for service-disabled veteran-owned small businesses (SDVOSBs). After the Army awarded the contracts to two SDVOSBs, a third SDVOSB bidder protested the awards, alleging deficiencies in the Army’s evaluation of various factors.
The Army issued Notices of Corrective Action for both contracts, stating that it would cancel both awards, “[r]e-evaluate the requirement and acquisition strategy to ensure that it accurately reflects the Army’s current need,” and either cancel or amend the solicitations. The Army’s internal memorandums indicate that part of the rationale for revisiting the solicitations was because the Army now had a new multiple award indefinite delivery indefinite quantity (MAIDIQ) contract vehicle that encompassed the scope of the two solicitations at issue.…
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