Some Assembly Required: GAO Addresses How Agencies Should Approach Trade Agreements Act Compliance

The Trade Agreements Act (TAA) (along with its cousin, the Buy American Act) is one of the more complex acts to deal with in federal government contracting. We have taken a look at the TAA before, noting that it does not apply to small business set-asides and discussing how it applies in its related FAR clause, FAR 52.225-5. One of the key requirements under the TAA, as shown in FAR 52.225-5, is that the product has been “substantially transformed…into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed” in one of the qualifying countries: the United States, various “qualifying countries”, and “designated countries”. (These countries are ones that the US has a trade agreement with, hence the law’s name) Of course, when agencies receive offers, they generally can’t go visit the assembly sites. This raises the question: When can an agency rely on a contractor’s offer and when must it do a little more digging?

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SmallGovCon Week in Review: August 12-16, 2024

Happy Friday, blog readers, and welcome to the week in review. Recent legislative and agency initiatives are shaping the landscape for federal contracting, cybersecurity, and support for veterans and small businesses, this week. A bipartisan Senate bill seeks to mandate cybersecurity vulnerability disclosures by contractors, enhancing national security. In parallel, the Pentagon’s release of key Cybersecurity Maturity Model Certification (CMMC) contracting rules aims to fortify the defense supply chain against cyber threats.

On the small business front, the Small Business Administration (SBA) and the Department of Veterans Affairs (VA) are collaborating to promote veteran entrepreneurship, while various committees and task forces are actively addressing regulatory fairness and development support for veteran-owned businesses. These efforts, coupled with the General Services Administration’s (GSA) celebration of the Inflation Reduction Act’s two-year anniversary, underscore the federal government’s commitment to fostering a robust, secure, and inclusive economic environment. You can read more about those topics in the articles below. Have a great weekend!

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SBA: Ostensible Subcontractor Affiliation Arises from Improper Limitations on Subcontracting in Proposal

The SBA ostensible subcontractor affiliation rule has long confused contractors and their attorneys alike because its standards were not very clear. It was based on whether, in a small business contract, a subcontractor performs the “primary and vital requirements of a contract” or the prime contractor was “unusually reliant” on the subcontractor. SBA’s Office of Hearings and Appeals filled in the gaps on these terms. But in 2023, SBA updated its definition for these rules, declaring that if a small business prime contractor (other than under a general construction contract) met the limitations on subcontracting, it basically was not violating the ostensible subcontractor rule. A recent case looked at a circumstance where a small business prime contractor was not meeting the limitations on subcontracting.

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SBA Getting Strict on MPA Language

One of the most popular programs in small business federal contracting seems to be the SBA’s Mentor-Protege Program. It is generally a great program for small businesses to utilize the resources and knowledge of a larger or more experienced business to grow. In turn, it also gives large businesses the ability to work on small business contracting opportunities, and the Government the ability to contract with more robust teams. Unfortunately, there has been a recent trend of the SBA being somewhat strict on minor language in Mentor-Protege Agreements, possibly stifling participation in the program, or at least making it take longer for SBA to approve these agreements.

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SmallGovCon Week in Review: August 5-9, 2024

Happy Friday, All. Please enjoy our latest week in review in order to stay on top of federal contracting news. Some interesting stories include Senate efforts to enhance oversight of Other Transaction Authority (OTA) agreements and address delays in Major Acquisition Programs (MTA). Meanwhile, the GSA is pushing forward with updated standards to accelerate federal buildings toward zero emissions, reflecting a broader shift towards sustainability. In cybersecurity, CISA’s CDM program is set to tackle emerging threats in the cloud, while the Department of State is piloting AI adoption to improve operations. You can read more about these topics in the articles below. Have a great weekend!

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GAO Reminder: Don’t Delay, Submit Your Proposal Today

Submitting a proposal in the correct manner and on time are two of the most elemental aspects of any response to a solicitation. After all, if you don’t submit the proposal, there is zero chance that the agency will review your proposal. Unfortunately, every so often there are hiccups in the submission process that cause delays. And, as one disappointed offeror found out, in the vast majority of cases these delays will be held against the offeror and not attributed to the agency.

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Common Misconceptions: SBA’s Mentor-Protégé Program (Part II – Participation Rules & Limits)

The SBA’s Small Business Mentor-Protégé Program (MPP) is arguably one of the federal government’s most successful undertakings when it comes to supporting our nation’s small business policies, economy, and contracting goals. It fosters the development of small business protégés, allowing many different forms of mentor assistance. It includes opportunity for eligible protégés and their mentors to joint venture (JV) for set-aside contracts—often otherwise off-limits to mentors that don’t qualify for the set-aside status/size standard and/or to protégés incapable of competing for or performing such contracts on their own. MPP JV awards may also incentivize federal government customers—simultaneously getting closer to meeting their set-aside quotas and getting the know-how, qualifications, resources, and personnel of more experienced (typically larger) contractors.

While it’s easy to see why this program enjoys immense popularity amongst small and large businesses alike, confusion consistently shrouds SBA’s MPP, nevertheless (hence the need for a two-parter here). In this article, we’ll skip over the “basics” of SBA’s MPP (which you can read all about here) and instead, jump right into the last few common misconceptions surrounding the program (you can read about the first few in Part I).

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