Mentor-Protégé Joint Venturing: Friend or Foe?
With the arrival of the All Small Mentor-Protégé Program , the question of how to structure teaming relationships has come to the forefront of many contractors’ minds. This is especially true because companies in approved mentor-protégé relationships may form joint ventures to pursue set-aside work, even if not all the joint venture partners are small businesses or otherwise qualify for the socioeconomic status of the set-aside. Still, recently our clients have questioned why they should form a joint venture when they can pursue the work in a . . . Read More
NDAA Makes Changes to the SDVOSB Programs and Authorizes GAO Jurisdiction to Hear Task Order Protests
Congress often includes provisions dealing with small business programs in its annual National Defense Authorization Act. 2016 was no exception. This year, In Section 1832, Congress has attempted to provide some uniformity to the Veterans Administration and the Small Business Administration programs for our veteran-owned small businesses. Here are the highlights: Uniformity in Service-Disabled Veteran Definitions Defines “small business concern owned and controlled by service-disabled veterans” in the small business act and makes the definition universal for both the . . . Read More
Court Grants Challenge to Agency’s Corrective Action in Response to Protest
By Julia Di Vito A recent court decision may provide other disappointed offerors a pathway for challenging agencies’ corrective action that unreasonably favors the original contract awardee. In Professional Service Industries, Inc. v. U.S., — Fed. Cl. —, No. 16-1038C (2016), the U.S. Court of Federal Claims recently granted a bid protest of the Federal Highway Administration’s (“FHWA”) corrective action taken in response to a disappointed offeror’s protests at the Government Accountability Office (“GAO”). In granting this protest, the Court found . . . Read More
The HUBZone Price Preference Provides a Benefit to Contractors– but at a Price
The Historically Underutilized Business Zone (“HUBZone”) Act, 15 U.S.C. § 675a, sets forth three ways in which contracting agencies may provide contracting assistance to HUBZone contractors. The contracting agency may award contracts to HUBZone contractors on a sole source basis or they may restrict competition to just HUBZone contractors. In addition, on contracts to be awarded under full and open competition, contracting officers are to give a price preference to the prices offered by HUBZone contractors. The HUBZone Act states . . . Read More
Investing in Small Businesses Through SBA’s SBIC Program
We work with many firms that have or would like to invest in small businesses. One of the biggest issues for an investor in a small business is the potential that the investment will create an affiliation between the investor and the small business. An “affiliation” under SBA’s rules can cause the small business to lose its small business status. For example, to protect its investment, the investor may require certain protections or veto rights over the day-to-day operations of . . . Read More
How to Succeed Under SBA’s New Mentor-Protege Program
By Katie Flood and Megan Connor As of November 1st, SBA’s certify.sba.gov portal is operational and accepting applications for the new Small Business Mentor-Protégé program. By now, you’ve heard of the program and are considering its potential value for your business. However, there are a few key things you should consider before submitting your application, in order to best situate you and your potential partner for SBA approval and to maximize your success under the program. First, it is critical that . . . Read More
Does Sarbanes-Oxley Apply to Government Contractors?
By Michael A. de Gennaro Certain government contracts contain representations and warranties which require primes and subs to “comply with all applicable provisions of the Sarbanes-Oxley Act (“SOX”).” Several times, clients have asked which SOX provisions specifically apply to them, and this article will answer that question on a high level. As a threshold matter, we must clarify a common misconception about SOX. Enacted in 2002, SOX is often thought to apply only to publicly-traded companies, but that is not . . . Read More
Proposed Changes to FAR to Clarify Requirements for 8(a) Sole Source Contract Justification Over $22 Million
By Megan Connor On November 15, 2016, the DOD, GSA, and NASA issued a proposed rule to amend the FAR to clarify guidance for justifications of sole source 8(a) contract awards exceeding $22 million. This proposed rule responds to recommendations made by the Government Accountability Office (“GAO”) in its report, “Slow Start to Implementation of Justifications for 8(a) Sole-Source Contracts” ( GAO-13-118 ). The GAO report focuses on the revisions made to the FAR to implement section 811 of the National Defense Authorization . . . Read More
Court enjoins DOL Overtime Rule Implementation: December 1 Effective Date – No Longer Valid
Client Alert On November 22, just a few days before its December 1 implementation date, a Texas court issued a nationwide preliminary injunction stopping implementation of the Department of Labor’s (DOL) rule to more than double the current salary threshold for certain exemptions from overtime pay. Twenty-one states, the U.S. Chamber of Commerce, and other business groups filed lawsuits, later consolidated into one, arguing that the DOL exceeded its statutory authority in raising the salary threshold and by providing for . . . Read More
The Firm Fixed Price Profits Reduction Clause: Government Takes All the Benefits and None of the Risk?
It has been well understood in the Federal Acquisition Regulation (“FAR”), and in government contracting generally, that different contract types balance the risks and rewards so as to ensure both the government and the contractor share in the risk. In Firm Fixed Price (“FFP”) contracts, the contractor takes on the risk of any cost overruns, while it can benefit from reduced costs to take home more profits. With cost reimbursable contracts, the government gains the benefit of cost underruns but . . . Read More