SBA | The Contracting Education Academy

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

August 28, 2020 By cs

PPP loan forgiveness: Challenges for lenders

Since April 2020, more than 5,400 lenders across the United States have faced common challenges arising from the Paycheck Protection Program (PPP).

Participating lenders have been charged with interpreting a slew of evolving regulatory guidance while vetting millions of borrower applications.

Participating lenders have also been tasked with responding to information requests from Congress, federal regulators and law enforcement authorities investigating potential fraud and abuse in the emergency loan program. Yet another challenge looms on the horizon as lenders determine whether and to what extent disbursed PPP loans are eligible for forgiveness.

At first glance, the forgiveness process appears simple. A PPP borrower must complete an application for forgiveness and submit the application to its lender. The lender is then responsible for approving or denying the borrower’s forgiveness application by verifying certain documentation and calculations and then requesting payment from the SBA, as applicable.

However, because the lender stands between the PPP borrower requesting forgiveness and the federal government making payment, lenders face a number of challenges and risks in connection with PPP loan forgiveness.

Keep reading this article at: https://www.mondaq.com/unitedstates/financial-services/977036/ppp-loan-forgiveness-challenges-for-lenders

The Contracting Education Academy at Georgia Tech has established a webpage where all contract-related developments related to the coronavirus (COVID-19) are summarized. Find the page at: https://contractingacademy.gatech.edu/coronavirus-information-for-contracting-officers-and-contractors/

August 25, 2020 By cs

4 lessons from SBA’s $30 million ‘Certify’ platform debacle

Let me know if you’ve heard this one before: An agency hires “experts” to develop an application, spends tens of millions of dollars and the effort falls flat.

This easily could be the story to focus on with Small Business Administration’s Certify.SBA.gov project.

A recent agency inspector general report found the agency brought in U.S. Digital Service experts, spent upwards of $30 million over the last five years to develop the platform only for most of the effort to go to scrap and forcing SBA to basically start over again.

Instead this is a story about perseverance. It’s a story about lessons learned that every agency should keep in mind. And this is a story that offers an inside view into why federal projects do fail and how simple steps could change the direction of any IT project.

Keep reading this article at: https://federalnewsnetwork.com/reporters-notebook-jason-miller/2020/08/4-lessons-from-sbas-30m-certify-platform-debacle/

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.

Since April 2020, more than 5,400 lenders across the United States have faced common challenges arising from the Paycheck Protection Program (PPP).

Let me know if you’ve heard this one before: An agency hires “experts” to develop an application, spends tens of millions of dollars and the effort falls flat.

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