Legal Updates

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

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...

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...

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...

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 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,...

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...

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...

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...

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...