SmallGovCon Week in Review: May 8-12, 2023

Posted on May 12, 2023 by Shane McCall

Happy Friday, Readers! The second week of May brought with it some rainy weather in the midwest. It’s difficult to stay ahead of getting the grass mowed when the grass is growing so quickly. Everything looks very lush and green here and the spring flowers are very colorful, as well. Only a few more weeks until school is out! Parents, are you ready?

We’ve included some interesting articles, from federal government contracting news this week, for you to read as you sit back and relax this weekend. There was multiple stories about efforts to increase a diverse small business supplier base, as well as news on some large multiple award contracts. Enjoy!

SBA New Rule: Guidelines for Compliance with Limitations on Subcontracting in 13 C.F.R. 125.6

Posted on May 9, 2023 by John Holtz

13 C.F.R. § 125.6 sets out the limitations on subcontracting for all small business set-asides (including 8(a), SDVOSB/VOSB, HUBzone, and WOSB/EDWOSB set asides.) These limitations on subcontracting are crucial for any small business federal contractor to be familiar with, and we have discussed how they work here. But, while the regulation does provide for certain legal penalties for violations of these limitations, up until SBA’s recent rule change, it didn’t provide for any direct consequences for a company’s past performance (although conceivably an agency could mention limitations on subcontracting as part of a CPARS review). Furthermore, SBA now will require that compliance with the limitations be looked at on an order-by-order basis for multi-agency set aside contracts where more than one agency can issue orders under the contract, and for full and open contracts where the task order is set aside for small businesses. All this is effective May 30, 2023, and we explore these changes here.

SmallGovCon Week in Review: May 1-5, 2023

Posted on May 5, 2023 by Shane McCall

Happy Friday and happy May! I don’t know about you, but it sure seems like the pace picks up in the spring, as the weather gets warmer. The kids are getting ready for the summer break, there are graduations and weddings to attend and of course, it’s time to start mowing the lawn and preparing the gardens, too. We hope amid all the activities you have a chance to relax this weekend and, in the meantime, here are a few articles from the federal government contracting world, including updates on some prominent GSA acquisitions and the formal end of vaccine requirements for contractors. Have a great weekend!

New Defenses to the Ostensible Subcontractor Rule are Coming

Posted on May 4, 2023 by Gregory Weber

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.

SmallGovCon Week in Review: April 24-28, 2023

Posted on April 28, 2023 by Shane McCall

It’s Friday, Readers! Hope everyone is ready for the weekend. The NFL Draft is right down the road in Kansas City this weekend and if you’re an NFL fan (as is almost required in Kansas City), I’m sure you are anxiously awaiting to see if your favorite players will be selected. What better way to welcome the weekend than with a bit of football excitement and a review of what’s been happening in the government contracting world?

In this week’s roundup, there were several articles concerning DoD contracts and some cautionary tales on why defrauding the federal government is a really bad decision. Enjoy your weekend!

GAO Upholds Low Agency Bar to Waive OCI

Posted on April 27, 2023 by Stephanie Ellis

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.

SBA Final Rule Relaxes Change of 8(a) Program Ownership, Allows Limited Populated Joint Ventures

Posted on April 26, 2023 by Shane McCall

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.