On April 26, 2022, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the FAR to include overseas contracts as part of agency small business contracting goals. This would allow small business contracting procedures to apply to overseas procurements. Prior to this rule, FAR 19.000(b) explicitly stated that small business programs did not apply outside the United States and its outlying areas. This new rule from the Councils follows an SBA regulation amendment that sought to apply the Small Business Act to overseas acquisitions—an area that the SBA’s regulations were silent about previously. The primary aim of the Councils’ and SBA’s rule changes are to expand overseas opportunities for small businesses.
Continue Reading Set Asides Will Now Apply to Overseas Procurements

On September 10, 2021, the FAR Council published a final rule amending the Federal Acquisition Regulation (FAR) to clarify how contracting officers should evaluate a prime contractor’s “good faith efforts” to comply with a small business subcontracting plan.
Continue Reading FAR Council Publishes Update to Small Business Subcontracting Regulations

This past week, the FAR Council issued a proposed rule that would potentially speed up payments to small business prime contractors and subcontractors across the federal government. The proposed rule, found at 86 Fed. Reg. 53,923, seeks to incentivize agencies to pay prime contractors that are small businesses within 15 days instead of 30 days after receipt of a proper invoice if no payment date is specified in the contract. It also would apply to prime contractors that subcontract with small businesses, applying a similar 15-day requirement to pay small subcontractors when accelerated payments are received. According to the proposed rule, the FAR Council will apply this to most federal contracts by seeking determinations to make this new rule applicable to commercial contracts as well as those under the Simplified Acquisition Threshold.
Continue Reading New Proposed Rule Seeks to Implement Accelerated Payments to Small Business Contractors Across the Government

On June 1, 2021, the Biden-Harris Administration announced that it intends to use the federal government’s purchasing power to grow federal contracting with small disadvantaged businesses by 50 percent, translating to an additional $100 billion over five years. This is one of many new steps intended to help narrow the racial wealth gap and reinvest in communities. In explaining this new policy goal, the Administration recognized that:
Continue Reading Biden-Harris Administration Announces Increase in Federal Contracting Goals for Small Disadvantaged Businesses

In an unusual turn of events, the SBA Office of Hearings and Appeals (OHA) recently reversed course and granted a Petition for Reconsideration in a case involving a challenge to the Service-Disabled Veteran-Owned Small Business (SDVOSB) status of a company. (CVE Protest of Blue Cord Development Group, LLC, SBA No. CVE-188-P (2021)) After initially determining that the company was not controlled by service-disabled veterans because the relevant manager lacked the necessary control and experience, OHA granted the Petition for Reconsideration and overturned that determination.
Continue Reading SBA OHA Reverses Course and Finds Company Met SDVOSB Requirements

The Small Business Administration’s HUBZone program provides federal contracting assistance for qualified small business concerns located in historically underutilized business zones in an effort to increase employment opportunities, investment, and economic development in such areas. The Small Business Administration defines HUBZones and publishes a map identifying the location of all HUBZones. Certified businesses located in a HUBZone are eligible to participate in the HUBZone program goal of awarding at least three percent of federal contract dollars.
Continue Reading SBA Extends the HUBZone Map Freeze to June 30, 2023

Mentor-protégé programs, such as the government-wide one at the SBA for all small business concerns, are designed to help small contractors engage in federal contracting by allowing larger, more experienced mentor firms to provide assistance to protégés. Generally, the proteges receive financial, technical, or management aid from mentors, and the mentors may receive subcontracting goal credits, reimbursement of expenses, and other incentives in return. One of the key concepts behind these programs is to increase the capacity of small business concerns to compete for contracts they would not ordinarily qualify for otherwise. The U.S. Government Accountability Office’s (GAO) recent decision in Innovate Now, LLC, B-419546, Apr. 26, 2021, confirmed this underlying principle.
Continue Reading GAO Confirms Yet Another Benefit of Mentor-Protégé Programs

The spread of COVID-19 (Coronavirus) remains unclear, but its impacts are already being felt. Supply chains are being disrupted and companies are implementing preventative measures to protect their employees. Many businesses have already suspended non-essential travel, encouraged remote working arrangements, and advised employees to follow the Centers for Disease Control risk-reduction strategies. Given these delays and disruptions, it’s logical to wonder:  Are delays or impacts related to the Coronavirus an excusable delay?

The answer is yes, if you can prove it. Below we outline the standard contract clauses dealing with delays from epidemics and discuss how courts have interpreted those clauses in the past when contractors claimed their delays should be excused due to an epidemic.
Continue Reading Is Coronavirus an excusable delay?

Happy New Year to mid-size government contractors! SBA’s determination of small business status under receipts-based size standards is transitioning from a three-year to a five-year lookback period starting today. The change is the result of a final rule that SBA issued on December 5, 2019. The rule is intended to allow mid-size businesses to regain or keep their small business status longer. The expectation is that this will increase small business contracting dollars and set-asides. A breakdown of the rule is below.
Continue Reading The new five-year lookback period for small business size status

In order to bring a bid protest in the Court of Federal Claims, you must have standing. To win the protest, you have to show prejudice. Although distinct, these two requirements are related and often confused. The Federal Circuit’s decision in American Relocation Connections, L.L.C. v. United States, No. 2019-1245 (Fed. Cir. Oct 2019), explains the difference between the “standing” needed to bring a bid protest and the “prejudice” needed to win.

Standing involves the threshold legal question of whether the protester has alleged a sufficiently direct economic interest to bring the case. It operates as a limit on the universe of plaintiffs eligible to file a protest. A protester has standing to challenge the award of a federal contract in the Court of Federal Claims only if it was an actual bidder or offeror that had a “substantial chance” of winning the contract. For pre-award protests, only a prospective offeror that would suffer a “nontrivial competitive injury” has standing to protest.

Unlike standing, “prejudice” is the ultimate factual question of whether the protester was actually harmed by a procurement error. Establishing prejudice is an element of the protester’s burden of proof. Without it, the protest will fail.Continue Reading The difference between standing and prejudice in a federal bid protest