809 Panel Likely to Scale Back Harmful Small Business Recommendations

October 4, 2018

By Isaias "Cy" Alba IV
Practice Area: Government Contracts Law

As we have noted in the past, when the 809 Panel first convened, a number of the members believed that small business programs provided little for the warfighter at DOD and, thus, were simply unnecessary. Indeed, the Panel’s initial recommendation was going to be the full elimination of small business goals—which effectively stops small business set-asides entirely. The idea was that government personnel were wasting time counting dollars instead of focusing on increasing the lethality of the warfighter. While helping the warfighter is clearly laudable, DOD is the largest buyer in the world, and it purchases much more than simply weapons of war. Indeed, small businesses perform many functions that do not directly implicate warfighting, and certainly not lethality initiatives. Moreover, the services the small businesses do provide are critical to ensuring that the U.S. government has a robust supply chain and are not tethered to a handful of oligarchic corporations. Luckily for all small businesses, it appears that the 809 Panel has realized this fact and could be making a turn to support small business initiatives.

Given the latest information on the 809 Panel, it now appears that the small business goals will not be eliminated after all and that the small business marketplace, which employs hundreds of thousands of Americans, will be spared from a direct attack. What is less clear, however, is how the changes to commercial buying practices could still harm not just small businesses, but also increase cronyism, decrease transparency and accountability, and increase the risk of conflicts of interest and self-dealing. Specifically, if the government were allowed to simply buy like you or I, it would effectively mean a contracting officer could find a friend, maybe even a friend that could give him or her a lucrative job after leaving the government or that would employ his or her spouse, etc., instead of competing the work fairly and openly. While we certainly hope the rush to commercial buying will not overshadow the laws and regulations created to address the fact that the government is not a commercial entity and that the dollars it spends are owned by all of us, not just generals and bureaucrats. Unfortunately, we will have to wait until the third volume of the 809 Panel report is released to learn the specifics of the plans, but rest assured we will be getting as much information as we can, and we will share it with all of our friends and clients.

About the Author: Cy Alba is a partner and member of the Government Contracts and Small Business Programs groups. He may be reached at ialba@pilieromazza.com.
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