Small Business Goodies in the National Defense Authorization Act

December 10, 2015

By Pamela J. Mazza

Often the House and Senate Small Business Committees utilize the annual National Defense Authorization Act (NDAA) to effectuate changes for small business. The NDAA must pass each year, so it is a useful vehicle upon which to attach small business provisions that may otherwise need to move through multiple congressional committees before becoming law.

The NDAA for fiscal year 2016 moved through both the House and Senate and went before the conference committee. On October 7, 2015, the Senate approved the conference committee’s report; however, on October 22, 2015 the president vetoed the bill as presented. The bill was revised, reintroduced and was passed by the House and Senate on November 10, 2015. It was signed by the president on November 25, 2015.

The following is a list of key provisions in this year’s bill that will affect small business government contractors:    

  • Adjust SBA’s scorecard to better determine if the agency is meeting each of the goals established for prime contracts and subcontracts, and rate of participation.
  • Develop a method of calculating a score which can be used to evaluate compliance of the agency in meeting established goals.
  • Agency heads are responsible for the agency’s success in achieving small business prime contracting, as well as subcontracting goals and percentages.
  • Require agencies to use a variety of industries to meet small business goals.
  • Amend the data quality improvement plan to require agencies to certify the accuracy of the data reported on bundled and consolidated contracts.
  • Require agency to publicly publish notice if a solicitation requires substantial bundling and/or consolidation within seven days of making the determination.
  • Require agencies to evaluate the past performance and qualifications of team members and joint venture partners during the solicitation process.
  • Allows agencies to assist small businesses who have concerns, prior to the award of a contract, that a solicitation might be structured in a way that restricts the ability of small businesses to compete for the award.

In addition, the bill:

  • Extends authorization for the DOD Mentor-Protégé Pilot Program by one year.
  • Requires the Secretary of Defense to report to Congress on any negotiated comprehensive subcontracting plans that do not meet the subcontracting goals.
  • Clarifies that the non-manufacturer rule only applies to contracts for products.
  • Requires training of contracting officers, restricts third-party agent activities, requires honest price ranking, and requires that revisions to offers be allowed throughout the solicitation process.
  • Increases surety bonds issued under the SBA preferred program to 90 percent and makes it easier for small businesses to obtain compliant bonds.
  • Establishes jurisdiction for SBA’s Office of Hearings and Appeals to hear appeals of size standards.
  • Adjusts the HUBZone Program to better address areas subject to BRAC and disaster areas.
  • Requires the DOD to report any negotiated comprehensive subcontracting plans that do not meet the negotiated subcontracting goals to Congress.
  • Creates a pilot program which will make it easier to award contracts under $7,500,000 to small businesses or non-traditional defense contractors.

While some of these provisions may not require implementing regulations, others will be subject to SBA rulemaking and FAR amendments. Stay tuned for how these changes will affect the small business government contracting community.

About the Author: Pam Mazza is the managing partner of PilieroMazza. She may be reached at pmazza@pilieromazza.com.

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