Author Archives: Stephanie Ellis

Congress Directs SBA to Take Stab at COVID-19 Loan Fraud

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President Biden signed two bills aimed at preventing fraud by participants within the Small Business Association on August 2, 2022. H.R. 7334 is titled the COVID-19 EIDL Fraud Statute of Limitations Act of 2022 (EIDL Act). H.R. 7352 is titled the PPP and Bank Fraud Enforcement Harmonization Act of 2022 (PPP Act). Both Acts establish a ten-year statute of limitations for fraud by borrowers under their respective programs. The head of the U.S. Small Business Administration, Administrator Isabella Casillas Guzman credited the Acts with a renewed ability to investigate and prosecute borrowers who committed fraud in SBA lending programs created to assist small businesses during the height of the COVID-19 pandemic.

For both programs, the main purpose is to put in place a a ten-year statute of limitations for fraud.

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SBA Issues 2021 Small Business Scorecard, Small Businesses Contracting Over $154 Billion!

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The SBA recently released the Government Wide Small Business Procurement Scorecard for fiscal year 2021. This annual scorecard details information on the various categories of small businesses recognized by the SBA, including whether SBA met its goals related to small business federal contractors. Specifically, the scorecard is used to assess “how well federal agencies reach their small business and socio-economic prime contracting and subcontracting goals,” to “provide accurate and transparent contracting data,” and “report agency-specific progress.” SBA met or exceeded its goals in the majority of categories despite the fact that the overall number of small businesses decreased. Below, we take a look at the process, the numbers, and discuss which groups are, and which are not, receiving the greatest benefits.

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Nonprofit Parent Companies do not Automatically Cause Affiliation for SBA Size Determinations

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The Office of Hearings and Appeals, more commonly referred to as OHA, is tasked with deciding size determination appeals that arise under the Small Business Act of 1958, as well as 13 C.F.R. parts 121 and 134. When an unsuccessful offeror raises a question, via a size protest, regarding an Awardee’s size under the North American Industry Classification System (NAICS) code on any given solicitation, the SBA Area Office will review the protest and issue a size determination. Then, a losing party can appeal the size determination to OHA.

Affiliation is a common topic that OHA addresses. In a recent decision, OHA looked at the question of how nonprofits fit into the affiliation rules. Since a small business has to be a for-profit entity, can a small business be affiliated with a nonprofit parent company?

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Back to Basics: Pre-Award Bid Protests

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Many bid protests we handle at Koprince McCall Pottroff are filed after the contract has been awarded to an offeror. However, sometimes there are issues that are apparent in the solicitation that require clarification or correction prior to the bidding or proposal deadline. In these situations, potential offerors can file a pre-award protest that challenges solicitation terms, but, as with most GAO matters, there are strict deadlines that must be adhered to if the protestor wants to avoid her protest being dismissed. While pre-award protest is the common term, remember that a challenge to a solicitation’s terms is due before the proposal deadline.

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Department of Defense Unveils Plan to Address Effects of Inflation on Contracts

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Inflation. A word no one likes, but it is something that is currently impacting nearly every facet of our lives. Gas prices continue to rise, grocery costs are through the roof, and everyday living expenses are taking more hard-earned money from our country’s workers than ever before. However, consumers are not the only ones feeling the effects. Costs and expenses of running a business have increased dramatically as well, and those in the federal contracting world are no exception. Questions from both contractors and contracting officers (CO) prompted the Department of Defense (DOD) release new guidance on May 25, 2022, conveying how it plans to handle inflation through economic price adjustments (EPA) as well as when the use of EPAs is appropriate. However, the guidance also discourages flexibility for increased costs based on inflation.

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Back to Basics: EDWOSB Eligibility

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Last week, Nicole Pottroff went through the basics of eligibility for participation in the SBA’s Women-Owned Small Business (“WOSB”) Federal Contracting Program. Today, I’ll walk you through the additional eligibility requirements for participation in SBA’s Economically Disadvantaged Women-Owned Small Business (“EDWOSB”) Program as stated in 13 C.F.R. § 127.200(a). If it has you feeling a little déjà vu, there is good reason for that. Eligibility requirements for the SBA’s WOSB and EDWOSB Programs are very similar, with only a couple small, but very important, differences.

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Should We Discuss This? Agencies Required to Enter into Discussions with All Offerors in Competitive Range

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If you google “GAO discussions,” you will likely see a multitude of results talking about “meaningful discussions.” Source selection authorities (SSA) are given a large amount of discretion beyond that. Despite the high level of discretion SSAs have, there are still certain boundaries that they must work within. These boundaries are premised on the fairness principle that is woven throughout the FAR and other procurement rules. In particular, the process of discussions must fit within these boundaries. Discussions allow all offerors that are still being considered for award an equal opportunity to address deficiencies, weaknesses, and adverse past performance information. But what if the contracting agency engages in discussions with only one offeror, who also happens to be the awardee?

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