In a recent notice for Tribal consultation and request for comments, as well as a published proposed rule, the SBA seems to be signaling an increase in oversight of Native or Tribally-owned entities who are 8(a) Participants. SBA has an apparent goal of enforcing more stringent repercussions for not fully adhering to some stipulations that exclusively pertain to Native or Tribally-Owned participants in the 8(a) Business Development Program. While not final yet, the SBA has placed these potential consequences, the reasoning behind them, and the proposed rule out in the public for discussion. As these actions may present some rather drastic changes for some 8(a) Participants, I have done a quick breakdown of them here.Continue reading
Tag Archives: tribal businesses
GAO Tested SBA on its Tribal 8(a) Verification Process and Found It Mostly Held Up
Federal and state-recognized Indian tribes and members of such tribes are presumptively socially disadvantaged, and if tribal association is verified, no further information is needed to verify social disadvantage for a Small Business Association (SBA) 8(a) program application. However, in 2021, the SBA Office of Inspector General (OIG) reported that, although the process for awarding 8(a) program status involves a multi-level eligibility review, the SBA does not have a formal verification procedure for verifying the federal or state-recognized status of Indian tribes associated with tribal applications. As such, GAO was asked to evaluate the SBA’s verification of 8(a) applications claiming federal or state-recognized tribal association. The following is a summary of those findings.Continue reading
Past Performance Reference From Sister Company Was “Inherently Biased”
In its evaluation of past performance, an agency was permitted to disregard a past performance reference prepared by an offeror’s sister company–which also happened to be in line for a subcontracting role.
In a recent bid protest decision, the GAO upheld the agency’s determination that the sister company’s reference was “inherently biased” and need not be considered in the agency’s past performance evaluation.
Guest Perspective: Section 811 Stifles Native American Economic Growth
While an eleventh hour agreement avoided the “fiscal cliff,” it did not fully resolve potential spending cuts. The agreement delayed the sequester, but its impacts are still being felt by contractors, particularly by small businesses. These entities are at the end of the planning process, and delaying a resolution only prolongs uncertainty.
For Native contractors, there is little to be happy about, and much that raises significant concerns. The consequences of the uncertainty in the federal contracting environment caused by the still looming possibility of sequestration, coupled with the enormously harmful effects of Section 811 of the National Defense Authorization Act for FY2010 (“NDAA”), are painting a potentially very dreary picture for these companies and the communities they serve.
SBA OHA Confirms Broad Affiliation Exception for Tribal Companies
The SBA Office of Hearings and Appeals has held that the SBA Area Office did not err by refusing to find affiliation between a tribally-owned company and its sister companies.
SBA OHA’s recent decision in Size Appeal of Bosco Contractors, Inc., SBA No. SIZ-5412 (2012), follows on the heels of Size Appeal of Roundhouse PBN, LLC, SBA No. SIZ-5383 (2012), in which SBA OHA found that the SBA had erred by adopting a too-narrow view of the tribal exception from affiliation.
SBA OHA: Tribal Companies Entitled to Broad Affiliation Exceptions
Indian tribes, their holding companies, and companies owned by those holding companies are entitled to broad exceptions from the ordinary SBA affiliation rules, according to a recent SBA Office of Hearings and Appeals size appeal decision.
SBA OHA’s decision in Size Appeal of Roundhouse PBN, LLC, SBA No. SIZ-5383 (2012), holds that the SBA cannot use non-applicable affiliation rules to circumvent the regulatory exception from affiliation between tribal companies. In its ruling, SBA OHA also sidestepped an interesting tribal size question: did Congress truly intend for some tribal companies to be “small” for 8(a) program purposes, but “other than small” for all other government contracts?
As you can probably tell, the Roundhouse PBN case is not your run-of-the-mill SBA OHA size appeal decision, meaning a slightly longer-than-normal blog post is in order. Let’s dive right in.