Legal Updates
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...
Protest Sustained by GAO based upon Allegations of Lack of Price Realism by Agency and Failure of Agency to Recognize an OCI and Contractor’s Failure to Have an Appropriate Mitigation Plan in Place
A-P-T- Research, Inc., B-413731.2, April 2017. Protest Sustained by GAO based upon a lack of price realism analysis by agency for incumbent employees. The GAO also sustained the protest on the grounds that there was lack of acknowledgement by agency of an organization conflict of interest and, thus, the agency failed to conduct a reasonable analysis of a true mitigation plan for that...
GAO Sustains Protest Where Agency Failed to Refer Small Business Firm to the SBA for a Certificate of Competency Determination When Agency Made Determination of Responsibility
GAO protest challenging exclusion from a small business set-aside competition is sustained where the (1) agency found the protestor’s proposal unacceptable because it did not demonstrate required capabilities in health-related mission and (2) the agency failed to refer the small business protestor to the SBA under the SBA’s certificate of competency program. Competitive Range Solutions,...
Petition for Writ of Certiorari to the U.S. Supreme Court Challenging the Constitutionality of the 8(a) Program Filed by Rothe Development, Inc.
Rothe Development, Inc. (Rothe), has filed a Petition to be heard on appeal in front of the U.S. Supreme Court. Rothe is challenging the Constitutionality of the 8(a) Program, alleging the program is race based, making it subject to a very high level of review, which it does not pass, according to Rothe's argument. The D.C. Court of Appeals, in a 2-1 decision, strongly rejected Rothe's...
Brief Summary of the GAO Report on the Department of Defense’s Mentor Protege Program and Comparison to the Mentor Protege Program of the SBA
On April 11, 2017, the GAO, as required by a Congressional mandate, released its report on the Department of Defense’s (DOD) Mentor Protégé Program. GAO’s report examined the following: (1) DOD’s procedures for approving mentor protégé agreements; (2) DOD performance measures for the program; and (3) the differences between the DOD’s mentor protégé program and the SBA’s new All...
SBA Publishes Proposed Rule on Adoption of 2017 North American Industry Classification System (NAICS) for Size Standards
Today, the SBA published its proposed Rule on adoption of the 2017 North American Industry Classification System (“NAICS”) as it relates to size standards. The SBA must receive comments by June 29, 2017. This update will include a short summary of the NAICS Code changes (“NAICS 2017”), why they were done, a link to the Federal Register Proposed Rule, and a somewhat rough reprint of...
Mentor Protege Regulations Do Not Always Protect From Affiliation
SIZE APPEAL OF: SAGE ACQUISITIONS, LLC, APPELLANT SBA No. SIZ-5783, 20162016 WL 6 October 2016 In a recently published decision, the SBA’s Office of Hearings and Appeals (“OHA”) held that when the 8(a) partner to a Joint Venture protected from affiliation by the Mentor Protégé exception performs only the “administrative and ministerial” functions of a contract, the Joint...
False Claims Act Damages Retroactivity and the U.S. Supreme Court Orders the Second Circuit to Reconsider Case under the new Escobar Certification Standard
February 27, 2017 By: Christine V. Williams Not Legal Advice: Please consult your attorney for specific legal advice that may apply to you In the Government’s 2016 fiscal year, it recovered $4.7 billion in settlements and judgments under the False Claims Act (“FCA”); becoming the third highest year in recovery. Attorney General Sessions has indicated that the FCA violations will...
Constitutional Challenge Appeal to the SBA’s 8(a) Program Denied En Banc Rehearing
Rothe Development, Inc.’s, appeal in the DC Circuit Court of Appeals (Rothe v. DoD and SBA) was heard by a three judge panel. Rothe challenged the facial validity of the SBA’s 8(a) Program and lost. There was an amicus brief filed on behalf of indigenous people, including Tribes, Alaska Natives, and Native Hawaiians. The amicus brief distinguished between a racial classification, which...
A Look Back at 2016 GAO Protests
According to the GAO Bid Protest Annual Report to Congress for Fiscal Year 2016, published in December, the GAO received 2,789 cases: 2,621 protests, 80 cost claims, and 88 requests for reconsideration. The GAO closed 2,734 cases during the fiscal year: 2,586 protests, 61 cost claims, and 87 requests for reconsideration. Of the 2,734 cases closed, 375 were attributable to GAO’s bid protest...