Legal Updates

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

By: Christine V. Williams on 04/19/2017

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

By: Christine V. Williams on 04/18/2017

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

By: Christine V. Williams on 03/09/2017

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

By: Christine V. Williams on 02/26/2017

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

By: Christine V. Williams on 01/13/2017

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

By: Christine V. Williams on 01/01/2017

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...

National Defense Authorization Act of 2017 Restored and Upped Jurisdiction of the GAO for Bid Protests in Relation to Civilian Task Orders

By: Christine V. Williams on 01/01/2017

In November, I wrote about the expiration of the GAO’s jurisdiction to hear bid protest in relation to civilian task orders.  That short article may be found here: https://outlooklaw.com/legal-list/gao-lacks-jurisdiction-hear-protests-valued-10-million-civilian-agency-idiq-orders-jurisdiction-expired-ryan-consulting-group-inc-b-414014/ On December 23, 2016, President Obama quietly signed...

On December 23, 2016, the SBA Announced the Pending Implementation of Section1614 of the NDAA of 2014 providing that an Other than Small Prime Contractor shall Receive Small Business Credit for its Subcontracting Plan AND the Prime Contractor must Publish the SBA Size Standard with its Subcontract

By: Christine V. Williams on 01/01/2017

The SBA is amending its regulations to implement section 1614 of the National Defense Authorization Act for Fiscal Year 2014 (NDAA 2014). Section 1614 amended the Small Business Act to provide that where a prime contractor has an individual subcontracting plan for a specific prime contract with an executive agency, the prime contractor shall receive credit towards its subcontracting plan goals...

On December 27, 2016, the SBA Correct/Clarified its Joint Venture Profit Rules that Accompany the Mentor Protégé Changes to All Programs Eligible to Participate

By: Christine V. Williams on 01/01/2017

On October 19, 2016, the SBA issued a correction pertaining to 8(a) joint venture profits, which clarified 13 CFR 124.513 in that populated joint ventures were eliminated, which, in turn, disallowed profits commensurate with the ownership interest.  81 FR 71981.  As such, the joint venture rule now states that the 8(a) Participant in a joint venture must receive profits from the joint venture...

The Department of Defense (DOD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) Release a Proposed Rule for Comment on Further “Clarification” of the Justification for 8(a) Sole Source Awards for 8(a) Participants Owned by Tribes, Alaska Native Corporations (ANCs), and Native Hawaiian Organizations (NHOs)

By: Christine V. Williams on 11/15/2016

The Department of Defense (DOD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) Release a Proposed Rule for Comment on Further “Clarification” of the Justification for 8(a) Sole Source Awards for 8(a) Participants Owned by Tribes, Alaska Native Corporations (ANCs), and Native Hawaiian Organizations (NHOs)  DOD, GSA, and NASA are...