Author Archives: Steven Koprince

SBA Affiliation Rules: SBA OHA Says Control is the Key

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The SBA affiliation regulation, 13 C.F.R. § 121.103, states that all affiliation is premised on the notion of control.  In other words, two companies are affiliated when the same person or entity controls or has the power to control both.

The size appeal decision of the SBA’s Office of Hearings and Appeals in Size Appeal of Manroy, USA, LLC, SBA No. SIZ-5244 (2011), explains that when there is no overlapping control, there is no affiliation, even if one or more of the indicia of affiliation described in the regulation might arguably be present.

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SBA OHA: Capital Contributions Not a Factor in Determining Affiliation

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A small government contractor needs to keep a close eye on its relationships with large businesses, as almost any type of interaction between the companies, such as contracts, bonding assistance, and overlaps in employees or officers may be considered evidence of SBA affiliation in a size appeal.  But, at least in one opinion issued by the SBA’s Office of Hearings and Appeals, the capital contributions of a large business member were irrelevant to an affiliation analysis.

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8(a) Mentor-Protege Joint Ventures and Subcontracts: An Underused Practice?

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The revised 8(a) program regulations adopted in March 2011 contained so many significant changes that some of them seem to have gotten lost in the shuffle.  One of these unheralded changes allows a joint venture comprised of an 8(a) mentor firm and its SBA-approved protégé to joint venture as a small business for federal subcontracts.  It’s a major change because under the old rule, SBA 8(a) mentor-protege joint ventures could only joint venture as “small” for prime contracts.

So,  why aren’t more 8(a) firms taking advantage of this new mentor-protege joint venturing capability?

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Illicit Payments to Contracting Officer’s Representative Result in Jail Time, Fines

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It should go without saying that making cash payments to a federal contracting official can bring stiff penalties.  Yet every now and then we hear about criminal convictions of government contractors who can’t seem to resist the lure of gifts, gratuities, and other illicit payments to government officials.

Speaking of which, here’s one right now…

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SBA Affiliation and Joint Ventures: SBA OHA Explains the Rules

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Is a small business affiliated with its joint venture partner?  Forgive the stereotypical lawyerly response, but the answer is “yes and no.”  A small business is affiliated with its joint venture partner on a procurement-specific basis, but typically is not affiliated with its joint venture partner on an ongoing basis.  The SBA’s Office of Hearings and Appeals succinctly explained the basic rules relating to joint ventures and affiliation in Size Appeal of Innovative Resources, SBA No. SIZ-5238 (2011).

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Emailing Your Proposal? Don’t Wait Until The Last Minute

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I hate waiting until the last minute to do things.  My wife knows that we need to get to the airport with plenty of time to spare before our flight takes off, or I start getting stressed.  When I have a filing deadline, I tend to submit my documents well in advance.  Sometimes, I have to wait for a client’s sign-off on a final draft, or a last tweak to an exhibit, as the minutes to the deadline tick away.  When that happens, people who know me well can see my blood pressure begin to slowly rise.

My way of doing things isn’t everyone’s.  For folks who “work best under pressure,” as they say, working right up until a deadline is par for the course.  But as one recent GAO bid protest decision highlights, emailing a proposal to a procuring agency at the last minute can be dicey because electronic deliveries are not necessarily instantaneous.  Filing shortly before the deadline closes, even by email, may result in a late proposal.

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False SDVOSB Certification Results in Criminal Conviction

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In this era of enforcement, lost contracts are just the tip of the iceberg when it comes to false certifications of eligibility for the SBA’s and VA’s small business programs.  The story of John White and Mitsubishi Construction Corp. should serve as a dire warning about just how serious the consequences of false certifications can be.

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