Legal Updates
Rothe Files Reply to DOJ/SBA/DOD’s Opposition for the Supreme Court to Review Case
This week, Rothe Development, Inc. (“Rothe”), a woman owned small business who could, arguably apply for and be granted 8(a) Program status, filed its Reply to the Department of Justice’s (“DOJ”) Opposition to Rothe’s Petition for Writ of Certiorari to the U.S. Supreme Court. In non-legalese, Rothe lost at the D.C. Circuit Court of Appeals when it challenged the facial (not the...
SBA’s Office of Hearings and Appeals Holds that the Ostensible Subcontractor Rule is Contract Specific and Dismisses Appeal
In Size Appeal of Bridgeway Professionals, Inc., SBA No. SIZ-5827 (May 2017), the SBA's Office of Hearings and Appeals (OHA) found that the Ostensible Subcontractor Rule was a contract specific finding of affiliation. In this case, the SBA's area office had found Bridgeway, the prime contractor, was unduly reliant on its subcontractor and made a finding of affiliation pursuant to the...
GAO Holds that Agency Properly Determined Sister Subsidiary’s Past Performance Evaluation Lacked Credibility In Evaluating Response to Solitication
Summary: In PacArctic, LLC, B-413914.3; B-413914.4 (May 2017), the GAO upheld that an agency's decision to disregard the past performance evaluation of a sister subsidiary when the only information on one of the contracts used for past performance came from a rating done by its sister subsidiary. As such, the GAO held that the agency reasonably determined that the information in the past...
CPAR Guide from Government-November 2016 and Government Slide Deck
The Contractor Performance Assessment Reporting System ("CPAR") is often misunderstood in both importance and how to move the needle if you get a bad review. A couple of resources from the Government may help without breaking the bank. This update will give you, all from Government sources, the following: (1) what CPARs are intended to do; (2) the November 2016 CPAR guide put out by the...
Department of Justice Granted Another Extension in the Rothe Case
The Department of Justice has moved for another extension in Rothe Development Inc., v. the Department of Defense and the SBA. You may recall that case was/is a facial Constitutional challenge to the SBA’s 8(a) Program. In short, Rothe lost at the DC Circuit Court of Appeals and asked the US Supreme Court to hear this case. DOJ will generally oppose this request (writ of certiorari) and...
New Legislation Introduced in the U.S. House to Help Small Businesses Recover Partial Payment of Claims Immediately through the Small Business Act
Rep. Brian Fitzpatrick (Pa), along with Rep. Stephanie Murphy (Fl.) and Steve Knight (CA), introduced a bill to the House Small Business Committee with bi-partisan support to amend the Small Business Act to provide interim partial payment to small business contractors that request an equitable adjustment due to a change order in terms of a construction contract, and for other purposes. The...
When is a Bridge Contract a New Award-GAO and SBA Offers Clarification
Many companies have struggled with the analysis of when a contract changes enough to truly become a new requirement. Recently, the SBA and GAO offered some guidance for SBA contracts subject to the SBA regulations. For more information and a cite to the case, please click here: Legal Update Bridge versus new Requirement
U.S. Department of Transportation Reaffirms its Commitment to Senator Sullivan to Recognize the Federal law ANCSA in Relation to its Disadvantaged Business Enterprise (“DBE”) Program
On October 15, 2016, Outlook Law wrote about the Department of Transportation’s guidance on ANCSA Corporation and acknowledgement of Federal law. Outlook Law gave and link to the guidance and a brief summary. https://outlooklaw.com/legal-updates/page/2/. Senator Sullivan has now received a commitment from U.S. DOT that it stands behind its earlier position and will continue to recognize...
SBA’s Office of Hearings and Appeals (OHA) Finds that the Joint Venture Exemption for 8(a) Affiliation is Contract Specific, Remanding the Case to the Area Office for Further Findings on Other General Principals of Affiliation
In this size appeal case, the Office of Hearings and Appeals (“OHA”) remanded a case to the Area Office for further findings. In remanding the case, OHA found that even though the small firms qualified for a joint venture exemption at the time-with the regulations in place, the Area Office failed to consider other means of affiliation and should have done so. That is, the joint venture...
Acting Solicitor General for DOJ granted Extension by the U.S. Supreme Court in Rothe Development Corp., Inc. v. DOD and the SBA
Yesterday, the U.S. Supreme Court gave an extension to the Acting Solicitor General for the Department of Justice (“DOJ”) on the case entitled Rothe Development, Inc. v. Department of Justice and the SBA. Originally, the DOJ’s response/opposition to Rothe’s Petitioner for Certiorari to the U.S. Supreme Court (“Petition”) was due on May 17, 2017. The extension now gives DOJ...