SBA | The Contracting Education Academy

February 22, 2021 By cs

Why systemic bias exists in government contracting programs

President Joe Biden issued an executive order to advance racial equity and support underserved communities.

The executive order promotes racial equity and emphasizes that advancing that ideal requires a systemic approach to embedding fairness in the decision-making process; it encourages agencies to recognize inequities in their policies and programs and work to redress them. Agencies are required to assess whether and to what extent their programs and policies perpetuate systemic barriers to opportunities and benefits for underserved communities.

The underlying emphasis here is that programs and initiatives that are meant to support, grow and allow the underserved communities to prosper are often hindered, and obstacles are created which prevent the full impact of the programs to be realized.

Too often, congressional initiatives to support underserved communities are implemented in regulations, programs, procedures and processes in such a way that all but neuter the intended outcomes. At best, under the mantra of ensuring that the benefits flow to the intended recipients, well-intentioned civil servants implement the programs in such a way to “protect” the underserved either from themselves or from would be charlatans, thus negating or totally eliminating the intended impact. At worst, maligned bureaucrats can’t stand by and witness government programs generate wealth for minorities and the underserved communities, and thereby create procedural roadblocks, hurdles and sand traps.

There are countless examples of the above, but I will provide one for illustrative purposes. Consider the intended benefits of the Small Business Administration’s 8(a) Business Development Program.

Keep reading this article at: https://federalnewsnetwork.com/commentary/2021/02/why-systemic-bias-exists-in-government-contracting-programs/

January 28, 2021 By cs

8(a) participants to receive one-year extension through COVID-19 bill

Congress has included in the new COVID-19 relief bill a one-year extension of the term for participation in the 8(a) Program.

Under the provision, any small business concern participating in the 8(a) program on or before September 9, 2020 may “elect to extend such participation by a period of 1 year.”

This is good news, especially for those concerns in their last year of viability in the 8(a) program who may have felt shortchanged from COVID’s effects on the economy.

This provision is found under Section 330 of the “Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act” (Division N, Title III of the “Consolidated Appropriations Act, 2021”). The Consolidated Appropriations Act, 2021 was passed on December 27, 2020. If you’re trying to find it, it’s at page 2183 of the 5593-page (!) law.

Keep reading this article at: https://smallgovcon.com/8a-program/8a-participants-to-receive-one-year-extension-through-covid-19-bill/

January 14, 2021 By cs

COFC confirms ‘rule of two’ analysis applies before agency decides to utilize a multiple-award vehicle

The U.S. Court of Federal Claims (COFC) issued a decision on Nov. 30, 2020 that supported the Small Business Administration’s position regarding the Rule of Two analysis requirements for government acquisitions.

The central question surrounding the case was whether the U.S. Army could cancel a Federal Acquisition Regulation (FAR) Part 8 service-disabled veteran-owned small business (SDVOSB) set-aside procurement under the General Services Administration’s Federal Supply Schedule (FSS) and move the requirement to a multiple-award indefinite-delivery, indefinite-quantity (MAIDIQ) contract vehicle that the plaintiff, The Tolliver Group, Inc. (Tolliver), did not hold.

In its protest, Tolliver argued, in part, that the Army’s actions violated the Rule of Two because the agency was required to determine whether two or more small businesses were capable of performing the requirement prior to choosing to put the procurement on the MAIDIQ contract.

The COFC’s decision confirms that the Rule of Two analysis applies before an agency elects to procure a requirement from a multiple-award contract (MAC) vehicle under FAR Part 16.5.

The Rule of Two requires contracting officers to set aside any acquisition over the simplified acquisition threshold for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns and (2) the award will be made at fair market prices.

In Tolliver, the Army argued that a Rule of Two analysis was not required because—according the Small Business Jobs Act, as implemented in 15 U.S.C. § 644(r)—federal agencies have the discretion to issue MACs without first conducting a Rule of Two analysis to determine whether it should be set aside for small businesses.

Keep reading this article at: https://www.jdsupra.com/legalnews/cofc-confirms-rule-of-two-analysis-83418/

January 8, 2021 By cs

Judge rules that lying about 8(a) eligibility violates False Claims Act

Another court has joined the growing chorus of judges who are singing the same tune on set-aside fraud: when a government contractor lies about its eligibility for a set-aside contract, it violates the False Claims Act, and can be sued by either the Department of Justice or a whistleblower.

The new case is United States ex rel. Montes v. Main Building Maintenance Inc., and the decision was issued on December 22, 2020, by Judge Jason Pulliam of the Western District of Texas.

This is a qui tam case brought under the False Claims Act by a whistleblower, or “relator” as it’s called under that statute. The relator alleges that two parents, Robert and Elvira Ximenes, created a company, JXM, to bid on government contracts reserved (or, in technical terms, “set aside”) for contractors that qualified for the so-called “8(a) Business Development program” for small businesses that are owned by “socially and economically disadvantaged people or entities.”

To qualify for such set-aside contracts, the business must first be “certified” as eligible by the Small Business Administration (SBA). And to be eligible for such certification, the business must make a series of representation to SBA about who both owns the business, and who controls the business.

Keep reading this article at: https://www.natlawreview.com/article/federal-judge-texas-rules-lying-about-eligibility-8a-business-development-program

December 2, 2020 By cs

New small business rules: Capabilities of small business joint venture members and first-tier subs

The U.S. Small Business Administration (SBA) has published a long-awaited rule that made important changes to numerous small business contracting programs and the rules Federal agencies must follow when contracting with small businesses.

These changes went into effect on November 16, 2020. You can read a summary of the rule here and read the rule itself here.

Here, we take a closer look at changes in the way procuring agencies will have to consider the past performance, experience, security clearances, capabilities, and certifications of small businesses and small business joint ventures.

To understand why the new rule is important, it’s useful to consider the current state of affairs. When businesses compete for Government contracts, they often create joint ventures or put together subcontractor teams with different companies complementing each other’s capabilities and experience. In general, procuring agencies have had wide latitude in being able to specify on a procurement-by-procurement basis the extent to which the prime offeror itself must have certain capabilities and experience, and the extent to which the offeror may rely upon subcontractors or joint venture members to fill in any gaps.

There currently is one principal exception to that wide latitude. When an offeror is a small business joint venture, the procuring agency is required to consider the past performance and experience of the joint venture members (including of any large business mentor joint venture member) as the past performance and experience of the joint venture itself. 15 U.S.C. § 644(q)(1)(C); 13 C.F.R. § 125.8(e) (Dec. 27, 2016).

Keep reading this article at: https://www.mondaq.com/unitedstates/government-contracts-procurement-ppp/999586/new-small-business-rules-capabilities-of-small-business-joint-venture-members-and-first-tier-subcontractors

President Joe Biden issued an executive order to advance racial equity and support underserved communities.

Congress has included in the new COVID-19 relief bill a one-year extension of the term for participation in the 8(a) Program.

The U.S. Court of Federal Claims (COFC) issued a decision on Nov. 30, 2020 that supported the Small Business Administration’s position regarding the Rule of Two analysis requirements for government acquisitions.

Another court has joined the growing chorus of judges who are singing the same tune on set-aside fraud: when a government contractor lies about its eligibility for a set-aside contract, it violates the False Claims Act, and can be sued by either the Department of Justice or a whistleblower.

The U.S. Small Business Administration (SBA) has published a long-awaited rule that made important changes to numerous small business contracting programs and the rules Federal agencies must follow when contracting with small businesses.

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