Legal Updates

Final sweeping rules issued by the SBA were implemented today to apply provisions of the National Defense Authorization Act, which pertain to performance requirements applicable to small businesses and socioeconomic program set-aside contracts as well as small business subcontracting. It also amends the SBA’s regulations relating to the nonmanufacturer rule and affiliation rules. Finally, this...

On April 27, 2016, the SBA’s Office of Hearings and Appeals (“OHA”) issued an order dismissing a size appeal.  The protestor had filed the original size protest in front of the General Accountability Office (“GAO”), rather than the SBA’s Area Office.  The protestor was hoping for an automatic stay with the GAO, but did not receive it and then went directly to OHA.  In dismissing...

The GAO in an interim rule, link below, is proposing to install a $350.00 filing fee for bid protests. The GAO is developing an electronic filing systems, called the Electronic Protest Docketing System (EPDS). The GAO asserts the fee is necessary to implement and support EPDS. As many clients have commented over the year that anyone seems to be able to file a frivolous protest without...

On May 2, 2016, an interim final rule was published regarding False Claim Act (FCA) civil penalties. A brief recount of this adjustment is necessary to get the scope of how large the adjustment is pursuant to 31 U.S.C. 3729 (nearly doubles). There is also another adjustment contemplated by formula beginning in January of 2017. Briefly summarized below are the increases in the FCA penalties and...

There is currently a circuit split on implied certification for False Claim Act (“FCA”) cases. That is, some federal circuits hold that a contractor impliedly certifies its data without having an explicit certification or affirmative representation of truth. This type of circuit split makes a Supreme Court decision ripe to reconcile the circuits or rule which circuit’s holding is correct....

On April 15, 2016, the Army sent out a new directive, which is attached. The directive gives guidance to move away from the “use it or lose it” funding for programs, which often result in the end of the Government’s fiscal year spending uptick. That is, the Army is trying to implement a new policy that if funds are not used for a program, that the program does not automatically suffer a...

Christine V. Williams filed an Amicus brief on behalf of the amici, which include: Native American Contractors Association, Alaska Federation of Natives, Alaska Native Village Corporation Association, National Congress of American Indians, Sovereign Omaha Tribe of Nebraska, Sovereign Winnebago Tribe of Nebraska, Great Plains Tribal Chairman's Association, ANCSA Regional Association, The National...

Update on GAO Report Issued Today Today, the GAO issued a report specifically dealing with firms owned by Alaska Native Corporations that participate in the 8(a) Program. The main thrust of the report is additional compliance and oversight. It contains a lot of information and 6 recommendations. The SBA took issue with the recommendations and I have summarized both the recommendations and the...

Recently, the Federal Acquisition Regulations (FAR) was amended to better track corporate performance of affiliated companies. In short, this is rule is likely designed to combat entities that had issues performing federal contracts and reformed or reconstituted themselves or affiliated companies to avoid the consequences of those issues. This is going to primarily effect FAR Part 9 and 52 by...

Women Owned Small Business Contracting Program with the designated NAICS Codes thatqualify for WOSBs were announced in the federal register today. Effective today. A link is established for reference. In order to carry out the Women-Owned Small Business Federal Contract Program (WOSB Program), the U.S. Small Business Administration (SBA) was required by section 825 of the National Defense...