Small Business Contracting

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Sanford Federal, Inc., the selected awardee for a U.S. Department of Veterans Affairs (the VA) contract, learned the hard way that a contractor simply cannot ignore a size protest, regardless of its actual merit.

On August 8, 2023, the VA issued an RFQ for boiler plant safety device testing, calibration and inspection for one of its facilities in Arizona. The RFQ was set aside entirely for Service-Disabled Veteran-Owned Small Businesses and assigned NAICS code 238290, Other Building Equipment. The corresponding size standard for this code was $22 million in average annual receipts. The VA received two timely quotes and selected Sanford for the award. The non-awardee, Caldaia Controls, Inc., filed a protest with the contracting officer asserting that Sanford was not a small business because it received significant contract awards between 2019 and 2023, which, when averaged, exceeded the procurement’s applicable size standard. The contracting officer forwarded the protest to the cognizant SBA Area Office (Area Office). Continue Reading An SBA Public Service Announcement: If You See Something, Say Something

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In Steiner Construction Co., Inc., the Government Accountability Office (GAO) upheld the U.S. Coast Guard’s (USCG) award of a $1.19 billion small business set-aside shipbuilding contract to a business concern that was later determined to be other than a small business. The protestor argued that the Small Business Administration (SBA) Office of Hearing and Appeals (OHA) decision to vacate an earlier SBA Area Office’s size determination that found the awardee to be an eligible small business concern required that the USCG terminate the award. Continue Reading It’s No Big Deal: How a Non-Small Business Won a Small Business Set-Aside Contract

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The SBA is proposing two new methods for small businesses to obtain the often elusive qualifying past performance commonly required when competing for federal contracts. The proposed rules implement new provisions of the National Defense Authorization Act (NDAA) Fiscal Year 2021 (FY 2021), which will permit a small business government contractor to use the past performance of a joint venture, of which it was a member, “provided that the small business worked on the joint venture’s contract or contracts.” The proposed rules will also authorize small businesses to use past performance as a first-tier subcontractor.
Continue Reading Please Pass the Past Performance Rating: SBA’s Proposed New Rules to Help Small Businesses Become More Competitive

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The SBA made numerous changes to its regulations in the past year, but the FAR Council has largely failed to keep pace. Then, earlier this month, the FAR Council published three final rules to implement long-awaited changes to the FAR’s small business contracting requirements. While the changes concern small business contracting requirements, they will impact business contractors of all sizes. For example, one of the rules makes noteworthy changes to the FAR’s Limitations on Subcontracting, resulting in a more friendly regulatory landscape for small business prime contractors. Another of the rules provides clarity for large business contractors who seek to demonstrate “good faith efforts” to comply with a small business subcontracting plan. The new changes bring the FAR’s small business contracting requirements in line with the SBA’s regulations and will be incorporated into new contracts beginning on September 10, 2021.
Continue Reading What FAR Council Updates to Small Business Contracting Requirements Mean for Large and Small Business Contractors

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Late last year, the U.S. Small Business Administration (SBA) issued a lengthy final rule that made changes to various SBA regulations. While the SBA highlighted its changes to the Mentor-Protégé program, the rule will have wide-ranging impacts on small business contracting, including the treatment of a small business offeror’s capabilities, past performance, and experience.

Prior to the issuance of the SBA’s new rule, FAR 15.305(a)(2)(iii) stated that an agency “should” consider the past performance of key subcontractors, but the use of “should” left agencies with broad discretion to consider (or not consider) subcontractor past performance. In many cases, agencies still issued solicitations that explicitly precluded consideration of subcontractor experience. Such limitations prevented small business offerors from using key subcontractors or a teaming arrangement to establish the required experience and past performance.
Continue Reading SBA Changes Ensure Small Businesses Can Utilize Teaming Arrangements and Subcontractor Experience

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On December 3, 2018, the Department of Defense (DoD) issued a deviation from the FAR’s self-performance requirements, which applies to subcontracting limitations on contracts set aside for small businesses. Although the changes to subcontracting limitations were mandated by the 2013 National Defense Authorization Act (yes, 2013), implementation has been slow and piecemeal. The Small Business Administration (SBA) did not implement the changes until June 2016, and although the FAR Council recently issued a proposed rule that would bring the FAR into compliance, the FAR has not officially caught up. In the meantime, the discrepancy between the FAR and the SBA regulations has caused headaches for contractors who must decide whether to comply with the FAR, the SBA regulations, or both. The DoD’s deviation will bridge the gap for all DoD contracts until the FAR catches up. 
Continue Reading Department of Defense Issues FAR Deviation for Limitations on Subcontracting

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When an agency decides to set aside an acquisition for participation only by small businesses, certain subcontracting limitations apply to the small business awardee. For construction contracts, the small business contractor cannot pay subcontractors more than 85% of the amount they receive from the agency. For service and supply contracts, the small business contractor cannot pay more than 50% of the amount paid to it by the agency to other entities that are not similarly situated. Work performed by similarly situated entities is not considered in determining if the limitation on subcontracting is violated. A similarly situated entity is defined as a small business subcontractor that is a participant of the same small business program as the prime contractor and is small for the NAICS code assigned by the prime contractor to the subcontract.
Continue Reading Recent GAO Decision Suggests SBA Regulation Regarding Limitations on Subcontracting Takes Precedence Over the FAR

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The Small Business Administration (SBA) and the Department of Veterans Affairs (VA) finalized new regulations, effective October 1, 2018, that govern eligibility to obtain contracts that are set aside for veteran-owned small business and service-disabled veteran-owned small business (collectively, “(SD)VOSB”). The regulatory changes are intended to improve coordination between the VA’s “Vets First” program, which covers (SD)VOSB set-asides issued by the VA, and the SBA’s program, which covers (SD)VOSB set-asides issued by all other government agencies.
Continue Reading SBA and VA Publish Final Revisions to Regulations That Govern Set-Asides for VOSBs and SDVOSBs

Last week, I attended the ChallengeHER event in Arlington, VA where I had the pleasure of meeting other females in federal contracting. ChallengeHER events, which are organized by Women Impacting Public Policy (WIPP), the U.S. Small Business Administration (SBA), and American Express (AMEX), are designed to supply women business owners with information and resources regarding the SBA’s Women-Owned Small Businesses (WOSB) Program in order to provide more federal government contracting opportunities for small businesses owned by women.

One thing was made clear at the event – federal agencies, including the Department of Defense (DoD), are indeed striving to achieve their goals of awarding 5% of their prime contracting dollars to WOSBs. Ms. Amy Kim, the SBA’s WOSB Program Manager, informed attendees that although federal agencies fell just shy of meeting the 5% goal in FY2017, they did award $20.8 Billion contracting dollars to WOSBs. While this number also includes contracting dollars awarded to WOSBs under other SBA socio-economic programs, it was encouraging to learn that FY2017 saw $723.5 Million in WOSB set-aside contract award dollars, which is a 60% increase from FY2016! Several representatives from the DoD discussed how the number of set-aside contract award dollars can continue to increase.
Continue Reading Reminder to Women Owned Businesses – Take Advantage of Federal Contracting Opportunities!

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Effective May 25, 2018, the Small Business Administration (“SBA”) amended its regulations regarding a contractor’s size and/or socio-economic status following a novation, merger, or acquisition. Specifically, through a “technical correction,” the SBA revised its regulations to dictate that when a company becomes “other than small” or no longer has a certain socio-economic status (veteran-owned, woman-owned, HUBZone, etc.) as a result of a novation, merger, or acquisition, the business is no longer eligible to compete for set-aside task orders on multiple-award contracts held by the company. This change in eligibility is applicable even where the contracting officer does not specifically request a recertification. 
Continue Reading Contractor Beware: SBA Expands Impact of Novation, Merger, or Acquisition on Size and Socio-Economic Status