Affiliation is a dirty word to small business federal government
contractors. For good reason: it can turn a small business into a large one and
destroy its eligibility for socioeconomic programs and set-aside contracts. Proactive
small business contractors, therefore, routinely audit their affiliation risks
and, if necessary, take actions to fracture that affiliation.
One of the ways a company might try to fracture affiliation is
to sell a division or business line to a third party. Because this division is
sold, the company might be tempted to assume that its corresponding revenues
are not considered as part of the affiliation analysis (under the former
A recent OHA decision, however, instructs that a division or line of business does not qualify under the former affiliate rule.
As I’m sure most other attorneys can commiserate with, I
often have a recurring nightmare that I miss a filing deadline. Doing so can lead
to terrible results: dismissed cases and, in some cases, sanctions against the
attorney. For this reason, we always check, double-check, and triple-check our
filing deadlines, and strive to file documents early, when possible.
Given my fear, I gain no pleasure in reading about missed
filing deadlines, especially when the goof is the subject of a matter outside
the attorney’s control.
But as a recent decision by the SBA’s Office of Hearings and Appeals demonstrates, even the most sympathetic of excuses won’t excuse a late appeal filing.
When the SBA issued its final rule implementing the Runway Extension Act’s 5-year receipts calculation period earlier this month, it allowed for a two-year transition: until January 6, 2022, the SBA will allow businesses to choose either a 3-year or a 5-year receipts calculation period.
This transition phase is helpful, the SBA noted, to small businesses that might be adversely affected by an abrupt change to the receipts calculation period—namely, businesses with declining revenues over the preceding five years that are nonetheless close to the applicable size standard cap.
SBA’s accommodation of these companies is, by any measure, a commonsense solution to prevent inadvertent harm caused by the Runway Extension Act. But notwithstanding this laudable policy objective, is the new transition period legal?
At SmallGovCon, we’ve closely followed the SBA’s
implementation of the Small Business Runway Extension Act. After much confusion
caused by the delayed implementation of the Act, there’s finally a light at the
end of the tunnel: the 5-year receipts calculation period will become effective
January 6, 2020.
Importantly, the SBA’s final rule implements relief for businesses that will be adversely affected by the change to a 5-year receipts calculation period.
Let’s take a look.
Forming a joint venture is an important tool to help small businesses increase their competitiveness under federal acquisitions. But for all the benefits, some headaches remain.
One common issue arises when a solicitation requires the prime contractor to hold a facility security clearance. Because a joint venture is an unpopulated legal entity formed for the purpose of bidding on a specific opportunity, the joint venture itself (as the prime contractor) often lacks the needed clearance—even though the joint venture’s members might both hold it. In these situations, a form-over-substance evaluation may leave the joint venture ineligible for award.
Fortunately, the SBA has recognized the silliness of such an exclusion and has invited feedback on a potential solution.
As many small business government contractors know, the SBA offers two mentor/protege programs: one reserved for 8(a) participants; the other, a universal program open to all small businesses—not just 8(a) companies.
Since the All-Small Mentor/Protege Program was rolled out in 2016, many have wondered why the SBA still runs two programs, instead of a single, consolidated program.
Fans of government efficiency, your cries are soon to be answered. Earlier today, the SBA issued a comprehensive proposed rule that, among other things, would consolidate the 8(a) Mentor/Protégé Program into the All-Small Mentor/Protégé Program.
Executive Order 13495 has had a bit of a rocky past.
Originally issued by President Clinton, the Order has been rescinded and then
replaced, depending on the President’s political persuasions. After being reinstated
by President Obama in 2009, many (like me) assumed that President Trump would
have promptly rescinded it again.
Three years into his administration, President Trump has now acted: on Halloween, he rescinded Executive Order 13495.