A few weeks ago, SBA released a proposed rule that would, among other things, modify the HUBZone program. We took a look at some of these changes when the proposals were released. As we promised in that post, we stated we were going to discuss some other aspects of the proposed rule in later posts. Today, we’ll be looking at some of the other changes that SBA is proposing for the HUBZone program, as there’s a lot. In this post, we’ll be focusing on other changes to how HUBZone employees are determined, new rules on certification and decertification, and changes to the “attempt to maintain” rule with regards to maintaining 35% HUBZone resident workforce. Some of these changes reflect a stricter approach from SBA that contractors should be on the lookout for.
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Some Assembly Required: GAO Addresses How Agencies Should Approach Trade Agreements Act Compliance
The Trade Agreements Act (TAA) (along with its cousin, the Buy American Act) is one of the more complex acts to deal with in federal government contracting. We have taken a look at the TAA before, noting that it does not apply to small business set-asides and discussing how it applies in its related FAR clause, FAR 52.225-5. One of the key requirements under the TAA, as shown in FAR 52.225-5, is that the product has been “substantially transformed…into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed” in one of the qualifying countries: the United States, various “qualifying countries”, and “designated countries”. (These countries are ones that the US has a trade agreement with, hence the law’s name) Of course, when agencies receive offers, they generally can’t go visit the assembly sites. This raises the question: When can an agency rely on a contractor’s offer and when must it do a little more digging?
Continue readingSupreme Court Weighs in on Deference to Agencies: What the End of Chevron Deference Means for Federal Contractors
On June 28, 2024, the Supreme Court issued its decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). It was a pretty notable news story as the case overturned the 1984 case of Chevron v. Natural Resources Defense Council, ending what has been called “Chevron deference.” This actually has many implications for federal contractors and how they interact with the federal government. Today, we’ll generally explore what this decision means for federal contractors.
Continue readingVOSB Program Possibly Expanding? Congress Takes Next Step Towards VOSB Expansion
The Veteran-Owned Small Business (VOSB) Program has long held a sort of unheralded position in SBA and federal contracting. Unlike its much more expansive counterpart, the Service-Disabled Veteran-Owned Small Business (SDVOSB) Program, the VOSB Program only allows for set asides for VOSBs for VA procurements (and even within VA SDVOSB companies are in a higher tier than VOSBs). In contrast, all agencies can set aside contracts for SDVOSBs. This has limited the desirability of admission to the program for many veteran owners, many of whom do not do work, that the VA needs. But things might be changing, as Congress has proposed a big step towards expanding what agencies can set-aside contracts for VOSBs.
Continue readingBack to Basics: The Buy American Act
We get a lot of questions about federal government contracting as federal government contracting attorneys, which makes sense. One thing we get asked about a lot is the Buy American Act. This is also unsurprising, as the government really did not do the best job in making it clear what this act does. We have talked about the Act before, but now, let’s take a deeper dive into it.
Continue readingA Better Leg to Stand On: Federal Circuit Court Eases Way for Protesters to Show Prejudice at COFC
If you’re a contractor thinking about protesting an award decision to the Court of Federal Claims (COFC), you have to show that the agency’s mistake prejudiced you in some way (the same goes for GAO, as we have explored before). That is, you have to show that there was a substantial chance you would have received contract award if not for the agency’s mistake. In a recent decision by the Federal Circuit Court of Appeals, it appears that the COFC will have to give protesters a good bit of benefit of the doubt on this question going forward. We explore that here.
Continue readingClearing Things Up? A Quick Look at the Proposed Plain Language in Contracting Act
In 2010, Congress passed the “Plain Writing Act,” which essentially requires that federal agency communications to the public must be in language that “the public can understand and use” and is “clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.” In other words, the idea was that agencies should stop using so much jargon and legalese. However, this arguably didn’t apply to contract opportunity notices. Congress is now looking at making sure that omission changes with the proposed “Plain Language in Contracting” Act, at least with regards to small business set-asides. We explore this more in depth in this post.
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