Category Archives: Statutes and Regulations

SBA Eliminates Megawatt Hours Size Standards

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The SBA has issued a final rule eliminating the unusual megawatt hours size standard applicable to six NAICS codes in NAICS Sector 22.  The SBA’s revision replaces the megawatt hours size standard with a 500-employee size standard, and eliminates the requirement that a firm must be “primarily engaged” in the generation, transmission  or distribution of energy for sale.

Although the megawatt hours size standard may have made sense when it was adopted in the 1970s, the SBA appropriately recognized that the market has changed.  Perhaps most important, the “primarily engaged” component of the megawatt hours size standard unfairly excluded many companies from competing as “small” in NAICS Sector 22.

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VA SDVOSB Protests: New Rule Allows Appeals

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The VA SDVOSB protest process has been criticized by some (including a certain Kansas-based government contracts attorney) for failing to offer a right of appeal.  Under the VA’s rules, if a protested company was found to be ineligible as a SDVOSB, its only option was to sue the VA in federal court–an expensive and time-consuming proposition.

Until now.

Today, the VA published an interim final rule, under which a protested SDVOSB has the right to an appeal within the VA.  The new system isn’t perfect, but it’s a step in the right direction.

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Bill Introduced To Transfer SDVOSB Verification To SBA

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Today, Congressman Mike Coffman introduced the Improving Opportunities for Service-Disabled Veteran-Owned Small Businesses Act of 2013.

The bill would standardize the requirements for SDVOSB eligibility, eliminating the current differences between the SBA’s and VA’s regulations.  In addition, the bill would transfer responsibility for verifying SDVOSB status to the SBA (the VA would retain authority for determining whether an individual is a service-disabled veteran).

Hardy Stone’s website, VetLikeMe, has a more detailed summary of the bill.  I will be closely tracking this legislation and will post updates if and when it moves forward.

VA Seeks Public Comment on SDVOSB Verification Rules

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The VA is seeking public comment on its VOSB and SDVOSB verification regulations in an effort to “improve the regulations to provide greater clarity, to streamline the program, and to encourage more VOSBs to apply for verification.”

As part of the public comment process, the VA is inviting the public to weigh in on previously-suggested changes, as well as answer specific questions about ways the VA might improve its verification rules.

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CBCA Appeal Dismissed Because Contractor Filed By FedEx, Not USPS

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As has been well-documented by news outlets, the U.S. Postal Service plans to end Saturday delivery to save money.  With the USPS facing financial and customer service struggles, it is little wonder that many government contractors rely on rival FedEx to deliver important packages.

But when it comes to filing a contract appeal with the Civilian Board of Contract Appeals, contractors may want to think twice before calling FedEx.  As one unfortunate contractor recently discovered, thanks to an arcane (and in my view, unfair) provision in the CBCA’s rules, a package sent through the USPS is deemed timely filed with the CBCA on the date of its postmark, whereas a package sent by any other means–including FedEx–is not considered filed until it is actually received at the CBCA’s office in Washington, DC.

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New SBA Mentor-Protege Program: Clearing Up The NDAA Confusion

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True or false: the FY 2013 National Defense Authorization Act requires the SBA to create a mentor-protege program for all small businesses?

Contrary to published information issued by at least three large law firms, the answer is “false.”  In fact, although the NDAA authorizes the SBA to create a mentor-protege program for all small businesses, it does not require the SBA to create such a program.

Moreover, the erroneous statement that the NDAA requires the SBA to adopt a mentor-protege program for all small businesses is just one of three pieces of misinformation being circulated by one or more of these law firms.  Let’s take a quick look at the text of Section 1641 of the NDAA itself and put the confusion to rest.

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Limitations On Subcontracting: Congress Enacts Major Changes

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Congress has enacted major changes to the limitations on subcontracting rules for small government contractors.

The 2013 National Defense Authorization Act, signed into law by President Obama on January 3, contains two important changes to the subcontracting limits.  First, for services contracts, compliance with the limitations on subcontracting will be based on the total amount paid to the small business, not the cost of the contract incurred for personnel.  Second, small businesses will be able to meet their own performance requirements by subcontracting to other small companies.

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