On May 11, 2020, SBA finally published its regulations to implement a statutory requirement to certify Women- Owned Small Business Concerns (WOSBs) and Economically Disadvantaged Women-Owned Small Business Concerns (EDWOSBs) participating in the Procurement Program for Women-Owned Small Business Concerns (the Program). The current self-certification process remains available until October 15, 2020. Beginning on July 15, 2020 (the effective date of this rule), contracts currently awarded to WOSBs/EDWOSBs who are self-certified may continue but, if a recertification requirement is triggered (e.g., within 120 days of the end of a 5-year contract), the company must represent that it is a certified WOSB or EDWOSB in order for the award to continue to count towards an agency’s WOSB goal. For new WOSB/EDWOSB set-aside contracts, a concern must be able to demonstrate that it has applied for certification before the date it submitted a bid, and that it has not previously sought and been denied certification. For new WOSB/EDWOSB sole-source contracts, a concern must already be certified at the time it seeks to obtain the sole-source contract. In both situations, the concern must be certified prior to award. There are several ways that a business may become certified, including through a no-cost application submitted to SBA. Companies may begin submitting applications for certification beginning July 15. Between now and July 15th, certified WOSBs must download their documentation that is currently in the WOSB Program Repository. In addition, concerns that are owned and controlled by women certified through the 8(a) BD Program, concerns that are third-party certified, and concerns that were subject to a program examination or status protest and received a positive decision in the three years prior July 15th will all be considered certified. If you would like more information on this program, or any other Federal Government contracting questions, we are here to help. Just contact us through our website, FerliseAssociates.com or call 732-380-7739.
As each one of us now serves as a foot soldier in the war against COVID-19, we at Ferlise and Associates want to encourage all our friends and readers to stay informed and follow the health and safety guidelines so that we may defeat this common enemy as quickly as possible. While we all transition to a new way of doing business, we want you to know that we have at your disposal decades of experience in Federal Government contracting and are always available to answer your questions.
Your friends at Ferlise and Associates.
Effective January 6, 2020, a small business may use a 5-year lookback to calculate its revenue for a “receipts-based” NAICS code. However, if a 3-year lookback is more beneficial, it may use that instead…at least until January 6, 2022. After this two-year transition period, all small businesses will use the 5-year lookback period.
SBA is finally looking into the disconnect between its Joint Venture (JV) rules and Agency Facility Security Clearance requirements. Many of you may have run into this problem. Your JV is is the “prime offeror” and the agency’s solicitation requires the prime to have a facility security clearance. Your JV (being a separate legal entity) is “unpopulated” and cannot qualify for a facility security clearance since the clearance is dependent upon the personnel who will be monitoring/administering the security requirements. Technically, you fail to meet the solicitation requirement and a decision by GAO (ProTech Services USA, LLC , File: B-417484, Date: July 19, 2019) agreed with the agency on this point. (The decision involved SBA because the protester claimed that the determination was one of “responsibility” rather than a material requirement of the solicitation.) However, each of the members that make up the JV do have facility security clearances. To remedy this problem, SBA has asked for comments on how best to remedy this problem in its proposed rule regarding merging the 8(a) and All Small Mentor Protégé Programs (https://www.govinfo.gov/content/pkg/FR-2019-11-08/pdf/2019-23141.pdf). The SBA recommends that either the JV itself or the “lead” venturer could hold the required clearance. If you are a small business “protégé” in the SBA’s Mentor-Protégé Program, this may not be much help since you are the lead venture and may not have the required clearance. However, the SBA added that if “security” is ancillary to the principal purpose of the procurement, the non-lead partner, e.g. the Mentor, could possess such a clearance and satisfy the requirement. If you want to weigh in on this issue with SBA, you have until January 17, 2020. For any questions on Joint Ventures or Mentor-Protégé Programs, please give us a call at 732-380-7739.
We are very pleased to announce that Susan Harbort has joined our team!
Prior to joining Ferlise and Associates, Susan was a Department of the Army civilian attorney for 30 years. Susan has significant experience in all aspects of the source selection process, protests before the Government Accountability Office and Court of Federal Claims, as well as Agency level protests, contract claims and appeals, and contract administration issues. Susan most recently served as a Business Law Division Chief, serving as the senior legal advisor to PEO IEW&S and CECOM ILSC.
Welcome aboard Susan!
On May 14th, the SBA published a Proposed Rule to amend its regulations to require Woman-Owned Small Businesses (WOSBs) and Economically-Disadvantaged Woman-Owned Small Businesses (EDWOSBs) to be certified by either SBA, other Federal Agencies, a State government, or a national certifying entity approved by SBA in order to be awarded a set-aside or a sole-source contract. Currently, WOSBs/EDWOSBs are permitted to self-certify and can continue to self-certify for contract awards that are not set-aside or sole-source.
The text of the proposed rule can be found at https://www.govinfo.gov/content/pkg/FR-2019-05-14/pdf/2019-09684.pdf with comments due by July 15, 2019.
If you have any questions about this program, please contact us at FerliseAssociates.com or (732) 380-7739.
Please take a moment this Memorial Day weekend to remember those who so bravely fought for our freedom.
Mark Sagan and Dave Sharman were elected to the Communications-Electronics Command (CECOM) Hall of Fame, and will be inducted at a ceremony at Aberdeen Proving Grounds on May 1st. They join F&A founder Victor Ferlise in the Hall of Fame, who was part of the inaugural class of inductees.
Mark was a central player in the Army Legal Community for 32 years, culminating in his service as CECOM Chief Counsel. During his tenure, Mark was recognized as the “go to” attorney within the Department of Army and was frequently hand-picked to participate in the most complex and politically sensitive matters where his expertise and counsel were relied upon with absolute confidence by DA and DoD senior leaders in connection with the Army’s most critical, complex, and controversial multi-billion dollar programs. Mark’s work was a key component in the Army’s ability to successfully field systems that vastly improved warfighter survivability, as recognized by his selection to the Hall.
Following his service as a Marine, Dave served 31 years as an Army logistician, finishing as Director of the CECOM Logistics and Readiness Center (LRC). As the Command’s senior leader for logistics, he was responsible for not only the management of over 2000 military and civilian employees, but also the creation of the vision, strategy and implementation plans necessary to achieve an integrated enterprise approach to logistics sustainment for all the Army’s Command, Control, Communications, Computers, Intelligence, Surveillance and Reconnaissance (C4ISR) weapon systems. David’s achievements during his various positions in the LRC were outstanding and have made a lasting impact on CECOM in the areas of national inventory control point, national maintenance point, security assistance to allied nations, production and industrial base management and planning, integrated logistics planning, and field technical assistance with a global footprint encompassing over 20 countries and 100 plus sites.
Congratulations Mark and David!
Effective April 3, 2019, GSA is removing its SBA Mentor-Protégé Program regulations because of duplication with the SBA’s Government-wide Mentor-Protégé Program. The SBA’s program became effective on August 24, 2016 and has gained popularity as Agency Contracting Officers have become more familiar with the benefits of that program. If you would like more information on the background, requirements, and benefits of a Mentor-Protégé arrangement, please contact us to discuss. t 6;\lsdpri
There is a lot of confusion about Small Business goals that we usually see in Requests for Proposals (RFPs) along with requirements to submit Small Business Subcontracting Plans (SBSPs) and/or Small Business Participation Plans (SBPPs). Hopefully, we can shed a little light on the subject.
Since Small Businesses are credited with most of the technical innovations and job creation in the US, the federal Government has a significant interest in seeing that the small business community remains robust. One of the ways to help company growth and stability is through profitable federal contracting opportunities. To this end, the Government established the Small Business Administration (SBA) through enactment of the Small Business Act of 1953. One of the SBA’s goals is to make sure that Small Businesses win a “fair proportion” of federal contracts. That’s why the Government established prime contracting and subcontracting goals.
Congress has established the following prime contracting goal – 23% of all federal contracts should be awarded to Small Businesses. Further, Congress established the following socioeconomic goals: Small Disadvantaged Businesses (SDBs) – 5%; Woman-Owned Small Businesses (WOSBs) – 5%; Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) – 3%; and Historically Underutilized Business Zone (HUBZone) Small Businesses – 3%. Note that the Department of Veterans Affairs (VA) also has a mandate to track award to Veteran Owned Small Businesses (VOSBs) because of their unique position, but awards to VOSBs are not usually tracked outside the VA.
While these are goals for federal contracts overall, the SBA also negotiates “Agency-wide” goals with each federal Department or Agency each year which may account for some of the different figures you see. For example, for FY 2017, the VA had an overall Small Business prime contracting goal of 28.5% and they exceeded that goal by awarding 29.72% to Small Businesses. They also had an overall Small Business subcontracting goal of 17% which they missed slightly by achieving only 16.60%. (You can see all the Agency goals and achievements for FY 2017 on the SBA website at https://www.sba.gov/document/support–small-business-procurement-scorecard-overview .)
The Agency goals may be higher or lower than the national goals. In addition, the Agency can set goals for each procurement higher than those negotiated with SBA. However, the sum total of all the Agencies’ goals must meet the goals for the federal Government by statute (i.e., 23%, 5% or 3% depending on socioeconomic category).
Since the Government also tracks the percentage of subcontracts as well as Prime contracts, there is a mandatory requirement that Large Business contractors who win federal contracts over the simplified acquisition threshold must give the “maximum practicable opportunity to participate in contract performance” to SDVOSBs, WOSBs, SDBs, HUBZones, and other Small Businesses that don’t fall into one of those categories. If the contract is expected to exceed $700,000 (or $1.5M for construction), the Prime must create a SBSP that meets specific detailed requirements.
For some acquisitions (particularly those from Department of Defense), you may have also seen a requirement to create a SBPP. This participation plan is different from the SBSP in a number of ways and when required, must be submitted by both Large and Small Businesses (unlike the SBSP which is only required from Large Businesses).
The title of the plan is the key to the distinction between the two documents – an SBPP credits the Small Business Prime’s “participation” in achieving the goals and does not mandate any subcontracting (if the goals can be met by the Small Business Prime alone). The SBSP is limited to Large Businesses who must subcontract to meet Small Business goals. SBPPs take various forms and do not conform to the specific requirements that the SBSP does
There are numerous nuances to this subject which can’t be covered in this short space, but the “bottom line” is that there are serious consequences to not achieving your Small Business goals so you need to ensure that your plans are constructed properly and reasonably. If you need help with understanding the Small Business program goals and documents, we may be able to help.