You may have noticed that SBA issued a final rule last week that created sweeping changes to the SBA’s 8(a) Program regulations, but along with that, SBA made sure to slip in a change to the ostensible subcontractor rule that has been a sticking point for many contractors when facing affiliation concerns. With this final rule, SBA will update the regulations to provide contractors certain ways to defend against potential ostensible subcontractor rule affiliation, depending on the type of contract at issue. This represents a shift in thinking, related to how to combat allegations brought under this affiliation rule and could present some new wrinkles for contractors to consider when setting up subcontracting arrangements.
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GAO Upholds Low Agency Bar to Waive OCI
The FAR requires offerors, in most situations, to disclose any actual or potential organizational conflicts of interest (OCI) that exist when submitting an offer or proposal in response to a solicitation. While it is rare that an offeror will be excluded from competition solely due to the existence or potential of an OCI, offerors who do not disclose as required will most likely be excluded, making this a situation where you generally want to disclose the existence of an OCI up front, not explain after the agency’s discovery through other means. Offerors may choose to avoid, mitigate, or neutralize an OCI by putting up a organizational barrier between the individual creating the OCI and the perceived or actual conflict. However, in some situations, avoiding, mitigating, or neutralizing the OCI may not be in the agency’s best interest. In that case, and as happened in Accenture Federal Services, LLC, agencies are given the option to waive the requirements of FAR subpart 9.5, thereby making award regardless of the existence or potential of an OCI.
Continue readingSBA Final Rule Relaxes Change of 8(a) Program Ownership, Allows Limited Populated Joint Ventures
SBA has issued a final rule updating some of its rules relating to the 8(a) Program. The final rule will have an impact on some aspects of ownership and control requirements for the 8(a) Program, including providing some flexibility for change of ownership and making some 8(a) set-aside processes a little cleaner. The rule would also allow for populated joint ventures between similarly situated joint venture members.
We wrote about the proposed rule last year. Below are some of the key takeaways from the final rule and any changes from the proposed rule.
Continue readingBack to Basics: GAO’s Protest Timeliness Rules
Here in Kansas, it is certainly starting to feel like thunderstorm season–and one of my favorite seasons, I might add. But over in D.C., some may say it is starting to feel like protest season! That said, anyone familiar with the protest process at D.C.’s Government Accountability Office (GAO) is probably also quite familiar with the strict timeliness rules GAO applies to such protests. And frankly, even for the seasoned GAO protesters, a refresher on the timeliness rules can be quite beneficial–especially given the answer to when a certain type of protest is due is not always an easy calculation. So, let’s take it back to the basics and run through some of those rules here.
Continue readingForeign Ties: SBA Publishes Notice of SBIR and STTR Program Policy Directives Update
The Small Business Administration recently published a notice of an amendment to the Policy Directives for the Small Business Innovation Research (SBIR) Program and the Small Business Technology Transfer (STTR) Program on April 3, 2023. The intent of the amendment is to incorporate a template that federal agencies may use to request information from SBIR and STTR applicants that the applicants are statutorily required to disclose. The revisions will be effective May 3, 2023, unless the SBA receives significant adverse comments prior to the effective date. Not sure what the SBIR and STTR Programs are? I’ve provided a very brief overview below. Curious about the required disclosures? Read on to find out!
Continue readingBack to Basics: Debriefings
Debriefings are a crucial part of the complicated world of bidding on Government contracts. They can provide wonderful insight to contractors on where they can improve, where their proposals were strong, and in cases, may provide information that could indicate to a contractor that a bid protest may be warranted. Therefore, it is vitally important for contractors to understand what Debriefings are, what they can and can’t provide you, and why they matter. Previously, we here at SmallGovCon discussed 5 things you should know about Debriefings, but in this post we will do a more detailed dive into Debriefings based on the current regulations and contracting landscape.
Continue readingSBA Final Rule Updates Employee-Based Size Standards, but not for Nonmanufacturer Rule
This month, SBA issued a final rule updating its size standards for multiple NAICS codes in the manufacturing industries and industries with employee-based size standards in other sectors (except wholesale trade and retail trade). As the final rule explains in great detail, SBA increased some of the NAICS code’s size standards and retained others. Additionally, SBA decided to retain an employee based size standard for the nonmanufacturer rule. Let’s take a closer look.
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