This is the second in a series of three articles brought to you by Maria L. Panichelli and Edward T. DeLisle for GovBizConnect, an online professional network for government contracting professionals. 

Originally published on the GovBizConnect website.

Welcome to the second installment of our three-part series, Key Considerations in Small Business Teaming: How to Form a Productive Partnership While Safeguarding your Interests and Protecting your Small Business Eligibility. You can read Part I here. Today, we will be focusing on how to avoid common pitfalls in teaming. But check out our previous installment on the differences of teaming and joint venturing, and stay tuned for our final installment, which will address how to draft an enforceable teaming agreement that will protect your interests as a small business. Continue Reading Key Considerations in Small Business Teaming: Part 2 – Avoiding the Common Pitfalls of Teaming

WelcomeOnviaLegalLandscape to the fourth edition of Legal Landscape, a series we have developed with Onvia’s blog to provide government contractors with a quick, but thorough, summary of important legal developments and regulations in government contracting, as well as a plain-English explanation of how those developments may affect contractors at all levels of government. Contractors should keep in mind that state and local agencies often look to changes in federal regulations as a guide for future changes at their respective levels. Changes recently made in the federal arena are likely to trickle down to state and local governments. Continue Reading Legal Landscape: SBA Expands the WOSB/EDWOSB Contract Program, Importance of the Economic Loss Rule and Self-Reporting Requirement Changes

On March 3, 2016, the SBA announced that it has expanded the list of industries in which a contract can be set-aside for women-owned small businesses (“WOSB”) or economically disadvantaged women-owned small businesses (“EDWOSB”). This expansion was mandated last year by section 825 of the National Defense Authorization Act for Fiscal Year 2015 (“NDAA”), which required numerous changes be made to the SBA’s WOSB/EDWOSB contracting program.

Continue Reading In a Major Win for Women Owned Businesses, SBA Expands WOSB/EDWOSB-Eligible Industry List

If you participate in federal government procurement programs, either as a prime contractor or as a subcontractor, listen up!  Your small business size status may have changed on July 14, 2014 as a result of an interim rule issued by the SBA. The rule increased revenue-based size standards for numerous industries, including general and specialty construction. The SBA has estimated that approximately 480 additional firms will now be considered “small” under the new size standards. Federal contractors and subcontractors should visit the System for Award Management (SAM) and verify that all profile and certification information are up to date based upon the revised size standards. A summary of the changes to the construction NAICS codes is set forth below.

The SBA cited inflation as the reason for the change; the last time the size standards were adjusted for inflation was back in 2008.  These adjustments are in addition to the recent size standard revisions that were implemented following passage of the Small Business Jobs Act of 2010 (Jobs Act).

The rule made other changes as well, most notably:

  • An adjustment to program-based size standards, with the exception of the new alternative size standard for SBA’s 7(a) and 504 loan programs that was established under the Jobs Act.  The new alternative size standard will remain in effect until SBA establishes a permanent alternative size standard for the 7(a) and 504 loan programs.
  • Deletion of references to surety bond guarantee size standards for contracts awarded in Presidentially declared disaster areas following Hurricanes Katrina, Rita, and Wilma in 2005.
  • Deletion of the determination date for eligibility under the SBA’s Economic Injury Disaster Loan (EIDL) Program in connection with Hurricanes Katrina, Rita, and Wilma.

The SBA encourages contractors to review the new rule and provide feedback.  The comment period closes on August 11, 2014.  Additional information about small business size standards is available on the SBA’s website.

If you need assistance in determining whether you are a “small” business under these newly established NAICS codes, or in general, please do not hesitate to contact us.  Here are the new standards for general and specialty construction:

SECTOR 23—CONSTRUCTION
Subsector 236—Construction of Buildings

NAICS Code

NAICS U.S. Industry Title

New Standard

236115 New Single-family Housing Construction (Except For-Sale Builders) $36.5 million
236116 New Multi-family Housing Construction (Except For-Sale Builders). $36.5 million
236117 New Housing For-Sale-Builders $36.5 million
236118 Residential Remodelers $36.5 million
236210 Industrial Building Construction $36.5 million
236220 Commercial and Institutional Building Construction $36.5 million

Subsector 237 Heavy and Civil Engineering Construction

NAICS Code

NAICS U.S. Industry Title

New Standard

237110 Water and Sewer Line and Related Structures Construction $36.5 million
237120 Oil and Gas Pipeline and Related Structures Construction $36.5 million
237130 Power and Communication Line and Related Structures Construction $36.5 million
237210 Land Subdivision $27.5 million
237310 Highway, Street, and Bridge Construction $36.5 million
237990but Other Heavy and Civil Engineering Construction $36.5 million
237990 Dredging and Surface Cleanup Activities $27.5 million

 Subsector 238 Specialty Trade Contractors

NAICS Code

NAICS U.S. Industry Title

New Standard

238110 Poured Concrete Foundation and Structure Contractors $15 million
238120 Structural Steel and Precast Concrete Contractors $15 million
238130 Framing Contractors $15 million
238140 Masonry Contractors $15 million
238150 Glass and Glazing Contractors $15 million
238160 Roofing Contractors $15 million
238170 Siding Contractors $15 million
238190 Other Foundation, Structure and Building Exterior Contractors $15 million
238210 Electrical Contractors and Other Wiring Installation Contractors $15 million
238220 Plumbing, Heating and Air-Conditioning Contractors $15 million
238290 Other Building Equipment Contractors $15 million
238310 Drywall and Insulation Contractors $15 million
238320 Painting and Wall Covering Contractors $15 million
238330 Flooring Contractors $15 million
238340 Tile and Terrazzo Contractors $15 million
238350 Finish Carpentry Contractors $15 million
238390 Other Building Finishing Contractors $15 million
238910 Site Preparation Contractors $15 million
238990 All Other Specialty Trade Contractors $15 million
238990 Building and Property Specialty Trade Services $15 million

SECTOR 22—UTILITIES
Subsector 221 Utilities

NAICS Code

NAICS U.S. Industry Title

New Standard

221310 Water Supply and Irrigation Systems $27.5 million
221320 Sewage Treatment Facilities $20.5 million
221330 Steam and Air Conditioning Supply $15 million

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.

Maria L. Panichelli is an Associate in the firm’s Federal Practice Group.

As Federal government contractors know all too well, Federal procurement has entered the electronic age in a big way.  Not only are solicitations advertised solely through the internet at http://www.fedbizopps.gov, prospective contractors must be registered with another website, FedTeDS, www.fedteds.gov, in order to access plans, specifications and amendments electronically.  Prospective contractors must also be registered with the Central Contractor Registration site, www.ccr.gov, to be eligible to access FedTeDS. The Federal Acquisition Regulation, at FAR 4.1201, now provides that "Prospective contractors shall complete electronic annual representations and certifications at http://orca.bpn.gov. Instead of submitting executed Representations and Certifications with bids and proposals, prospective contractors can choose to rely on their electronic versions, FAR 52.204-8, in order to comply with the requirements of any particular solicitation.  However, what is the effect on a bidder or offeror’s status if the information in the electronic file is wrong, missing, or incomplete? Is the bidder/offeror considered nonresponsive and is its bid/offer rejected?

In a recent decision of the Government Accountability Office, S4, Inc., B-299817, August 23, 2007, the Comptroller General found that the awardee’s failure to list NAICS code 541513 in its ORCA certifications did not render the proposal nonresponsive.  The GAO concluded that additional information was also available to the Contracting Officer and found that additional information made it reasonable for the Contracting Officer to conclude that the offeror met the small business size standard for the solicitation.  This is consistent with other GAO decisions that have repeatedly held that “the failure to include with a bid completed standard representations and certifications does not render the bid nonresponsive because it does not affect the bidder’s material obligations.  Such a failure therefore may be waived as a minor bidding irregularity and the information may be furnished after bid opening.